Karri Country Produce Pty Ltd as trustee for the Franceschi Trust v Advance Packing and Marketing Services Pty Ltd as trustee for the APMS Unit Trust

Karri Country Produce Pty Ltd as trustee for the Franceschi Trust commenced proceedings against Advance Packing and Marketing Services Pty Ltd as trustee for the APMS Unit Trust. The plaintiff is a unit holder in the Trust and the defendant is the trustee of the Trust. The plaintiff sought, among other things, declaratory relief that the Trust Redemption Notice is invalid, that the units were not validly redeemed and that the plaintiff remains a unit holder of the Trust. The plaintiff made an application by chamber summons requiring the defendant to produce for inspection six documents over which the defendant claimed privilege. The plaintiff challenged the claims of privilege and sought production and inspection of the Privileged Documents. The court had to determine whether the defendant had established that the emails received or created by persons who were connected with unit holders in the Trust and who were lawyers, were received or created by them in their professional capacities as lawyers, and for the dominant purpose of giving or receiving legal advice; whether the defendant established that the communications were confidential and that the inclusion of third parties in those communications was consistent with the maintenance of confidentiality and legal professional privilege; whether advice obtained was for the purpose of the administration of the Trust, such that any privilege is a joint privilege that cannot be invoked against a beneficiary; whether the defendant established that without prejudice privilege attaches to the communications; and whether that privilege has been waived by communication to representatives of unit holders other than the plaintiff. The court found that the defendant established that the communications were confidential and that the inclusion of third parties in those communications was consistent with the maintenance of confidentiality and legal professional privilege. The court found that the privilege is a joint privilege that cannot be invoked against a beneficiary. The court found that the defendant established that without prejudice privilege attaches to the communications and that the privilege has not been waived by communication to representatives of unit holders other than the plaintiff. The plaintiff's application was allowed in part.