Maresh v The Owners Strata Plan No 13134 - [2023] NSWCATCD 37

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Maresh v The Owners - Strata Plan No 13134 [2023] NSWCATCD 37
Hearing dates: On the papers
Date of orders: 30 May 2023
Decision date: 30 May 2023
Jurisdiction: Consumer and Commercial Division
Before: G Blake AM SC, Senior Member
Decision:
(1)   The respondent is to provide to the applicant by 13 June 2023 the documents contained in the bundle of documents provided to the Registry on 30 January 2023 as amended in the manner set out in [61] of this decision other than the following documents:
(a)   document 6 so far as the lead email (part of page 14);
(b)   documents 7 to 16 (pages 21 to 97 and 624 to 635);
(c)   documents 19 to 21 (pages 131 to 145);
(d)   document 25 (pages 148 to 157);
(e)   document 28 excluding the 8 April 2022 GL email and the 13 April 2022 GL letter (pages 165 to 182);
(f)   documents 31A to 41 (pages 190 to 366);
(g)   documents 41D and 41E, 43 to 44A, 46, 49 to 52, 54 to 76 (pages 370 to 556);
(h)   documents 78 to 80, 82 and 83, 85, 89 to 91, and 93 to 96 (pages 560 to 668).

Catchwords:
LAND LAW — Strata title — Owners corporation — Accounts and records of owners corporation – claim for legal professional privilege – claim established in part

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW), ss 50, 67
Evidence Act 1995 (Cth), ss 118, 119, 122
Evidence Act 1995 (NSW), ss 117, 118, 119, 131A, Dictionary
Strata Schemes Management Act 2015 (NSW), ss 36, 188
Trade Practices Act 1974 (Cth), s 155 (repealed)

Cases Cited:
Barnes v Commissioner of Taxation [2007] FCAFC 88; (2007) 67 ATR 284; (2007) 242 ALR 601
Buzzle Operations v Apple Computer Australia [2009] NSWSC 225
BWO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 283 FCR 299; [2020] FCAFC 181
Cook v Pasminco Ltd (No 2) (2000) 107 FCR 44; [2000] FCA 1819
CSR Ltd v Eddy (2008) 70 NSWLR 725; [2008] NSWCA 83
Daniels Corporation International Pty Ltd v Australian Competition & Consumer Commission (2002) 213 CLR 543; [2002] HCA 49
Eastmark Holdings Pty Limited v Kabraji (No 3) [2012] NSWSC 1463
G&S Engineering Services Pty Ltd v MACH Energy Australia Pty Ltd (No 8) [2022] NSWSC 1170
Kenquist Nominees Pty Limited v Campbell (No 5) [2018] FCA 853
Lahoud v Lahoud [2011] NSWSC 994
Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66
Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority [2002] 4 VR 332; [2002] VSCA 59
The Owners – Strata Plan No 16857 v Hyman [2022] NSWCATAP 358
The Owners – Strata Plan No 74602 v Eastmark Holdings Pty Ltd [2013] NSWCA 221

Texts Cited:
None cited

Category: Procedural rulings
Parties: Peter Maresh (Applicant)
The Owners - Strata Plan No 13134 (Respondent)
Representation:
Applicant (self-represented)
Solicitors:
JS Mueller &…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NSWCATCD 37
Decision Date: 30 May 2023

CaseChat Overview and Summary

In the matter of Maresh v The Owners Strata Plan No 13134, the applicant sought an order for disclosure of certain documents held by the respondent, an owners corporation, to assist in a legal action against the corporation. The dispute arose in the context of strata title management and centred on the respondents’ accounts and records. The matter was heard in the Supreme Court of New South Wales.

The legal issues before the court were whether the applicant was entitled to the disclosure of certain documents and, if so, which documents were subject to legal professional privilege. The court had to balance the applicant's right to access necessary documents for their legal action against the respondent’s right to protect confidential communications with their legal advisors.

The court found that the applicant was entitled to a significant number of the documents sought, but some were protected by legal professional privilege. The court provided detailed reasons for its decision, examining each document in the context of the principles of legal professional privilege. It was determined that certain documents, including emails and letters exchanged between the respondent and their legal counsel, were privileged and should not be disclosed. However, other documents were not privileged and could be disclosed to the applicant.

The orders of the court mandated the respondent to provide the applicant with the majority of the documents sought, with specific exceptions noted for those protected by privilege. The respondent was given a deadline of 13 June 2023 to comply with the order.

Orders

Orders of the court

(1) The respondent is to provide to the applicant by 13 June 2023 the documents contained in the bundle of documents provided to the Registry on 30 January 2023 as amended in the manner set out in [61] of this decision other than the following documents:

(a) document 6 so far as the lead email (part of page 14);

(b) documents 7 to 16 (pages 21 to 97 and 624 to 635);

(d) document 25 (pages 148 to 157);

(e) document 28 excluding the 8 April 2022 GL email and the 13 April 2022 GL letter (pages 165 to 182);

(f) documents 31A to 41 (pages 190 to 366);

(g) documents 41D and 41E, 43 to 44A, 46, 49 to 52, 54 to 76 (pages 370 to 556);

(h) documents 78 to 80, 82 and 83, 85, 89 to 91, and 93 to 96 (pages 560 to 668).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Maresh v The Owners - Strata Plan No 13134 [2023] NSWCATCD 37
Hearing dates:	On the papers
Date of orders:	30 May 2023
Decision date:	30 May 2023
Jurisdiction:	Consumer and Commercial Division
Before:	G Blake AM SC, Senior Member
Decision:	(1) The respondent is to provide to the applicant by 13 June 2023 the documents contained in the bundle of documents provided to the Registry on 30 January 2023 as amended in the manner set out in [61] of this decision other than the following documents: (a) document 6 so far as the lead email (part of page 14); (b) documents 7 to 16 (pages 21 to 97 and 624 to 635); (c) documents 19 to 21 (pages 131 to 145); (d) document 25 (pages 148 to 157); (e) document 28 excluding the 8 April 2022 GL email and the 13 April 2022 GL letter (pages 165 to 182); (f) documents 31A to 41 (pages 190 to 366); (g) documents 41D and 41E, 43 to 44A, 46, 49 to 52, 54 to 76 (pages 370 to 556); (h) documents 78 to 80, 82 and 83, 85, 89 to 91, and 93 to 96 (pages 560 to 668).
Catchwords:	LAND LAW — Strata title — Owners corporation — Accounts and records of owners corporation – claim for legal professional privilege – claim established in part
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW), ss 50, 67 Evidence Act 1995 (Cth), ss 118, 119, 122 Evidence Act 1995 (NSW), ss 117, 118, 119, 131A, Dictionary Strata Schemes Management Act 2015 (NSW), ss 36, 188 Trade Practices Act 1974 (Cth), s 155 (repealed)
Cases Cited:	Barnes v Commissioner of Taxation [2007] FCAFC 88; (2007) 67 ATR 284; (2007) 242 ALR 601 Buzzle Operations v Apple Computer Australia [2009] NSWSC 225 BWO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 283 FCR 299; [2020] FCAFC 181 Cook v Pasminco Ltd (No 2) (2000) 107 FCR 44; [2000] FCA 1819 CSR Ltd v Eddy (2008) 70 NSWLR 725; [2008] NSWCA 83 Daniels Corporation International Pty Ltd v Australian Competition & Consumer Commission (2002) 213 CLR 543; [2002] HCA 49 Eastmark Holdings Pty Limited v Kabraji (No 3) [2012] NSWSC 1463 G&S Engineering Services Pty Ltd v MACH Energy Australia Pty Ltd (No 8) [2022] NSWSC 1170 Kenquist Nominees Pty Limited v Campbell (No 5) [2018] FCA 853 Lahoud v Lahoud [2011] NSWSC 994 Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66 Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority [2002] 4 VR 332; [2002] VSCA 59 The Owners – Strata Plan No 16857 v Hyman [2022] NSWCATAP 358 The Owners – Strata Plan No 74602 v Eastmark Holdings Pty Ltd [2013] NSWCA 221
Texts Cited:	None cited
Category:	Procedural rulings
Parties:	Peter Maresh (Applicant) The Owners - Strata Plan No 13134 (Respondent)
Representation:	Applicant (self-represented) Solicitors: JS Mueller &…