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Re Doran Constructions Pty Ltd (in liq)

Re Doran Constructions Pty Ltd (in liq)

Case [2002] NSWSC 215 27 March 2002

Limitation Periods

Admissibility of Evidence

Legal Privilege

Corporate Law & Governance

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Reported Decision:
(2002) 20 ACLC 909

New South Wales

Supreme Court

CITATION: Doran Constructions Pty Limited (in Liquidation) [2002] NSWSC 215

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 5112/98

HEARING DATE(S): 12 December 2001

JUDGMENT DATE: 27 March 2002

PARTIES :

Alan Edwards Lewis (Applicant)
Christopher Freeman (Respondent)

JUDGMENT OF: Campbell J

COUNSEL : S Donaldson SC (Applicant)
A S Martin SC with A Gelbart (Respondent)

SOLICITORS: Walker Insolvency Lawyers (Applicant)
Christopher C Freeman & Co (Respondent)

CATCHWORDS: CORPORATIONS - winding up - liquidator's examination - circumstances in which liquidator entitled to ask questions relating to legal advice given to company in liquidation - EVIDENCE - liquidator's examinations - whether evidence given at is governed by Evidence Act 1995 (NSW) - EVIDENCE - legal professional privilege - circumstances in which joint retainer of solicitor exists - EVIDENCE - procedure to adopt when deciding whether legal professional privilege does not exist - EVIDENCE - waiver of client legal privilege - disclosure of substance of advice - disclosure made knowingly and voluntarily - disclosure by agent or employee authorised to make it - disclosure made under compulsion of law

LEGISLATION CITED: The Evidence Act 1995 (NSW)
Service and Execution of Process Act 1901 (Cth)
Corporations Act 2001 (Cth)
Companies Act 1899 (NSW)
Supreme Court Act 1970
Evidence Act 1995 (Cth)

CASES CITED: Rochefoucould v Boustead (1896) 65 LJCh 794
Farrow Mortgage Services Pty Ltd (in Liq) v Webb (1996) 39 NSWLR 601
Stockbridge v Lupton, McLelland J, 23 September 1988, unreported
Hellenic Mutual War Risks Association (Bermuda) Ltd & General Contractors Importing and Services Enterprises v Harrison [1997] 1 Lloyds Report 160
Sullman v Sullman [2002] NSWSC 169
Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305
Jones v Dunkell (1959) 101 CLR 298
Minter v Priest [1930] AC 558
Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners (No. 2) [1972] 2 QB 102
Perry v Smith (1842) 9 M & W 681
Mann v Carnell (1999) 201 CLR 1
Northern Territory v GPAO (1999) 196 CLR 553
Cheney v Spooner (1929) 41 CLR 532
Gould v Brown (1998) 193 CLR 346
Proust v Blake (1989) 17 NSWLR 267
Blake v Norris (1990) 20 NSWLR 300
Fiorentino v Irons (1997) 79 FCR 327
Re Interchase Corporation Limited (1996) 68 FCR 481
Re Griffin (1887) 8 LR (NSW) 132
Yelds v Nurses Tribunal (2000) 49 NSWLR 491
Re Transequity Ltd (in Liq) (1991) Tas R 308
Re BPTC Ltd (in Liq) (1992) 7 ACSR 539
Re Compass Airlines Pty Ltd (1992) 35 FCR 447
Re Darlington Commodities Pty Ltd (1987) 10 NSWLR 424
Re BPTC Ltd (in Liq) (1993) 29 NSWLR 708
Re John Pringle & Co Limited (1934) 34 SR (NSW) 508

DECISION: See orders following para 128

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
equity LIST

CAMPBELL J

27 March 2002

5112/98 DORAN CONSTRUCTIONS PTY LIMITED (In Liq) RE: ALAN EDWARD LEWIS

JUDGMENT

HIS HONOUR:

Nature of Application

1 The applicant is the liquidator of Doran…

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.

Continue reading Re Doran Constructions Pty Ltd (in liq)

Details

AGLC: Re Doran Constructions Pty Ltd (In Liq) [2002] NSWSC 215
Case: [2002] NSWSC 215
Decision Date: 27 March 2002

CaseChat Overview and Summary

In this case, the liquidator of Doran Constructions Pty Ltd sought to examine a director of the company regarding the circumstances surrounding the company's insolvency. The liquidator's examination aimed to ascertain whether the company had received legal advice during the period leading to its insolvency. The court was tasked with determining the scope of the liquidator's examination and the extent to which legal professional privilege could be invoked to protect communications between the company and its legal advisors.

The primary legal issues were whether the liquidator's examination was subject to the provisions of the Evidence Act 1995 (NSW) and whether legal professional privilege applied to the communications in question. The court also needed to determine if there was a joint retainer of the solicitor by multiple directors and whether any waiver of client legal privilege had occurred. The liquidator argued that the company had not voluntarily gone into liquidation and that the examination was necessary to uncover any potential mismanagement or misconduct. The defendants, on the other hand, asserted that the communications were protected by legal professional privilege and should not be disclosed.

The court held that the liquidator's examination was indeed subject to the Evidence Act 1995 (NSW). It found that the privilege applied to communications between the company and its solicitor where there was a joint retainer by the directors. However, the court determined that no such joint retainer existed in this case. The court further found that there had been a waiver of privilege as the substance of the legal advice had been knowingly and voluntarily disclosed by an agent authorised to make such disclosure, under the compulsion of law. Consequently, the court ruled in favour of the liquidator, allowing the examination to proceed with the disclosure of the relevant legal communications.

The court ordered that the liquidator be permitted to examine the director regarding the legal advice received by the company and directed that the relevant legal communications be disclosed. This decision underscored the importance of transparency in the liquidation process and the limited scope of legal professional privilege in such circumstances.

Orders