Owners of Strata Plan 64622 v Australand Corporation Pty Ltd & anor

In this case, the Owners of Strata Plan 64622 brought an action against Australand Corporation Pty Ltd and another defendant, concerning issues related to strata management and potential breaches of duty. The dispute was referred to a referee for a report on the issues of liability and quantum. The defendants sought to introduce evidence of "without prejudice" communications during the reference process, while the plaintiffs sought an order excluding such evidence. The court had to determine whether it should decide the matters or leave it to the referee.

The primary legal issue before the court was whether it should intervene and decide the admissibility of the "without prejudice" communications or leave it to the referee to determine. Additionally, the court had to consider whether the material in question was protected by the without prejudice privilege and, if so, whether any exceptions applied under section 131(2) of the Evidence Act 1995 (NSW). The plaintiffs argued that the "without prejudice" communications should be excluded from the referee's consideration, while the defendants contended that the referee should have the discretion to decide the admissibility.

The court held that it should intervene and decide the matter. It found that the overtly "open" offers made in the communications were excluded from protection under section 131(2)(d) of the Evidence Act, which deals with offers made without prejudice to liability. The court determined that other exceptions under section 131(2) did not apply, and thus, the affidavit containing the "without prejudice" communications was to be excluded from the referee's consideration. This ruling ensured that the referee would not be influenced by potentially inadmissible evidence when making its report.

The court's final orders included the exclusion of the affidavit containing the "without prejudice" communications from the referee's consideration and a direction that the referee proceed with the reference in accordance with the court's ruling on the admissibility of the evidence.