Re SLKALT Pty Ltd (in liq)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT
CORPORATIONS LIST

S ECI 2022 01010

IN THE MATTER OF SLKALT PTY LTD (IN LIQUIDATION) (ACN 005 289 190)

BETWEEN:

NICHOLAS GIASOUMI AND SHANE LESLIE DEANE IN THEIR CAPACITY AS LIQUIDATORS OF SLKALT PTY LTD
(IN LIQUIDATION) (ACN 005 289 190)

Plaintiffs

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JUDGE:	Attiwill J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 November 2023, 27 November 2023 and 7 May 2024 (further submission and a final list of disputed documents)
DATE OF JUDGMENT:	17 May 2024
CASE MAY BE CITED AS:	Re SLKALT Pty Ltd (in liq)
MEDIUM NEUTRAL CITATION:	[2024] VSC 250

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APPEAL — Appeal from a determination of a judicial registrar concerning legal professional privilege — Where appeal is a de novo hearing — Where documents have been produced to the Court by various persons and companies pursuant to compulsive processes under the Corporations Act 2001 (Cth) — Whether the evidence in support of the claims of privilege is sufficient and, as a result, whether the appellants have discharged their evidentiary onus in support of the claims of privilege — Where communications involved a third party, being the Company’s external accountant — Whether the communications with the Company’s external accountant were communications for the dominant purpose of legal advice — Whether privilege in the communications in the documents is jointly held with the Company — Whether the communications in the documents were in furtherance of the commission of a fraud — Appeal allowed, in part, in relation to one of sixty documents —Evidence Act2008 (Vic) ss 118, 124, 125, 131A and 133 — Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Limited (No 4) [2014] FCA 796; Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357; Farrow Mortgage Services Pty Ltd (in liq) v Webb & Ors (1996) 39 NSWLR 601; Yunghanns v Elfic Pty Ltd (2000) 1 VR 92 and Great Southern Managers Australia Limited (Receivers and Managers Appointed) (in liq) v Clarke (2012) 36 VR 308 considered and applied.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Dr O Bigos KC with Mr H Hill-Smith	Maddocks
For the Appellants (Michael Kurc, Riot Stores Pty Ltd and Damiss Nominees Pty Ltd)	Mr C Archibald KC with Mr D F McAloon	B2B Lawyers
For David Lurie	Mr S J Maiden KC	B2B Lawyers

TABLE OF CONTENTS

INTRODUCTION.............................................................................................................................. 1

THE PROCEEDING.......................................................................................................................... 3

BACKGROUND FACTS.................................................................................................................. 4

Kurc family and family entities.................................................................................................. 4
Decisions to pay down debt and to restructure........................................................................ 6
Retainer and initial instruction of B2B Lawyers....................................................................... 7
Involvement of B2B Lawyers, steps taken by Mr Kurc and subsequent transactions........ 8
Retainer and instruction of other lawyers............................................................................... 22
Liquidation of the Company..................................................................................................... 22
The disputed communications in the Documents................................................................. 23

DO DOCUMENTS 5-27, 29-30, 33, 35-38, 40-43, 45, 50 AND 58-59 CONTAIN COMMUNICATIONS MADE FOR THE DOMINANT PURPOSE OF LEGAL ADVICE? 24

Applicable law............................................................................................................................. 24
Submissions................................................................................................................................. 30
Analysis........................................................................................................................................ 31
......... Sufficiency of evidence..................................................................................................... 32
......... Documents concerning communications with Mr Goldman...................................... 38
Conclusion.................................................................................................................................... 51

IS PRIVILEGE IN THE COMMUNICATIONS IN THE DOCUMENTS HELD JOINTLY WITH THE COMPANY?....................................................................................................................... 52

Applicable Law............................................................................................................................ 52
Submissions................................................................................................................................. 59
Analysis........................................................................................................................................ 62

IF THE DOCUMENTS CONTAIN COMMUNICATIONS MADE FOR THE DOMINANT PURPOSE OF LEGAL ADVICE AND THE COMPANY DOES NOT HOLD PRIVILEGE JOINTLY IN ANY OF THE COMMUNICATIONS, DOES THE CRIME/FRAUD EXCEPTION APPLY TO THOSE COMMUNICATIONS?........................................................................ 73

CONCLUSION................................................................................................................................. 75

HIS HONOUR:

INTRODUCTION

The plaintiffs are the joint liquidators of SLKALT Pty Ltd (In Liquidation) (ACN 005 289 190) (the Company). Documents have been produced to the Court by various persons and companies, including the appellants, pursuant to compulsive processes under the Corporations Act 2001 (Cth) (the Corporations Act). The appellants object to some of the documents being inspected by the plaintiffs on the grounds that they contain communications subject to legal professional privilege. The plaintiffs dispute the appellants’ objections. On 2 August 2023, a Judicial Registrar ordered the plaintiffs and their solicitors have leave to uplift, inspect and copy the relevant documents. The appellants then commenced this appeal. This appeal is a de novo hearing.

The appellants provided the Court with a consolidated bundle of the documents over which privilege was claimed (document bundle) containing 1763 pages. The number of documents in dispute was narrowed during the hearing before the Judicial Registrar and also on this appeal. A final list of disputed documents was provided to the Court (the final list of disputed documents). A copy is included as Annexure A to this judgment for convenience. The final list of disputed documents addresses 67 itemised documents, with many of the documents being chains of emails and attachments. There is a substantial amount of duplication. Documents 1, 4, 32, 34, 44, 57 and 65 are shown as struck through in the final list of disputed documents. This is because the appellants abandoned their objection to the inspection of these documents. The final list of disputed documents sets out a convenient summary of the grounds of the plaintiffs’ disputes of the privilege claims. The issues on this appeal may be briefly stated and reflect how the appeal was conducted by the parties.

First, do Documents 5-27, 29-30, 33, 35-38, 40-43, 45, 50 and 58-59 contain communications made for the dominant purpose of legal advice? This involves the determination of two issues:

(a) whether the evidence in support of the claims of privilege concerning Documents 16-19, 22-26, 33, 35-38 and 50 is sufficient and, as a result, whether the appellants have discharged their evidentiary onus;

(b) whether the communications involving the Company’s external accountant, Mr Joel Goldman (Mr Goldman), in Documents 5-22, 24-27, 29-30, 35, 37, 40-43, 45 and 58-59 were made for the dominant purpose of legal advice.

There was no dispute between the parties that the appellants have established that the other documents (excluding Documents 1, 4, 32, 34, 44, 57 and 65 for which the appellants abandoned their objection to the inspection of these documents) contain communications made for the dominant purpose of legal advice.

Second, to the extent that any privilege is held in the communications in the documents in the final list of disputed documents, is that privilege held jointly with the Company? It was common ground that if the privilege was held jointly with the Company the plaintiffs are entitled to inspect the documents.

Third, if privilege is not held jointly with the Company in any of the communications in the documents, does the ‘fraud/crime’ exception to the privilege apply to the communications in those documents?

For reasons I am about to give, I have concluded:

(a) the communications in Documents 5-27, 29-30, 33, 35-38, 40-43, 45, 50 and 58-59 were made for the dominant purpose of legal advice except for the communications identified in this judgment at paragraph 112. There was no dispute that the other documents (excluding Documents 1, 4, 32, 34, 44, 57 and 65 for which the appellants abandoned their objection to the inspection of these documents) were made for the dominant purpose of legal advice;

(b) privilege in the communications is jointly held with the Company (excluding Documents 1, 4, 32, 34, 44, 57 and 65 for which the appellants abandoned their objection to the inspection of these documents and the communications identified in this judgment at paragraph 112), except for the communications in Document 64;

(c) in relation to the communications in Document 64 (i.e. being the only communications not subject of the joint privilege with the Company), the crime/fraud exception to the privilege does not apply.

THE PROCEEDING

On 24 March 2022, the plaintiffs filed an originating process seeking relief pursuant to ss 596A, 596B and 597(9) of the Corporations Act. There is no respondent to the proceeding. On 11 April 2022, a Judicial Registrar ordered, inter alia: summonses for examination to Mr Michael Kurc (Mr Kurc), an appellant, Mr David Kurc, Mr Solomon Kurc and Ms Lea Kurc be issued pursuant to s 596A of the Corporations Act, including for the production of certain documents; summonses for examination to Mr Goldman, as director of Goldman Financial Services Pty Ltd trading as Goldman & Associates, and Mr Lurie in his capacity as a partner of the partnership B2B Lawyers, be issued pursuant to s 596B of the Corporations Act, including for the production of certain documents; and the proper officers of Riot Stores Pty Ltd (Riot Stores) and Damiss Nominees Pty Ltd (Damiss Nominees), each also being an appellant, produce certain documents pursuant to s 597(9) of the Corporations Act.

On 20 April 2022, the plaintiffs filed summonses pursuant to the order made by the Judicial Registrar. Mr Kurc and Mr Goldman produced documents pursuant to the summonses. Riot Stores and Damiss Nominees produced documents pursuant to the order made by the Judicial Registrar. On 29 August 2022, a Judicial Registrar ordered, inter alia, that Mr Lurie have leave to be heard in relation to the application of the crime/fraud exception to the claims for privilege. No objection was taken on this appeal to Mr Lurie also being heard on this issue. On 26 September 2022, Mr Kurc, Riot Stores and Damiss Nominees filed a single consolidated list of the documents over which they made claims for privilege.

On 21 July 2023, the Judicial Registrar delivered her ruling concerning the claims for privilege. The Judicial Registrar concluded that all but one of the documents were privileged and that privilege was jointly held with the Company. As a result, the Judicial Registrar ordered, inter alia, that the plaintiffs and their solicitors have leave to uplift, inspect and copy all of the privileged documents produced to the Court, and for such documents to be without redaction and be returned directly within 14 days of uplift, insofar as is necessary. On 3 August 2023, the appellants filed a notice of appeal. On 4 August 2023, the Judicial Registrar ordered that the operation of the order that the plaintiffs and their solicitors have leave to uplift, inspect and copy the privileged documents be stayed until the hearing and determination of the appeal against that order. On 9 August 2023, the plaintiffs filed a notice of contention which contended that the judgment of the Judicial Registrar should be affirmed on grounds of fact or law which were not decided or were erroneously decided. The parties initially proceeded as if this appeal was not a de novo hearing and filed documents on this basis, including the notice of appeal, notice of contention and submissions. The Court raised these matters with the parties before and at the hearing of the appeal. As a result, the parties filed further submissions and the hearing of the appeal was conducted as a de novo hearing.

BACKGROUND FACTS
Kurc family and family entities

This appeal concerns circumstances involving the Kurc family and their family entities. The Kurc family includes Mr Kurc, his parents Ms Lea Kurc (who passed away on 18 May 2023) and Mr Solomon Kurc, his brothers Mr David Kurc and Mr Joshua Kurc, and his sister Ms Shirley Kurc. Mr Kurc gave evidence that over time the Kurc family acquired and developed assets that are held in various structures, including companies, trusts, partnerships and superannuation funds. The first plaintiff and joint liquidator of the Company, Mr Giasoumi, gave evidence that this group of related entities is referred to as the “Kurc Group”. The Company was formerly named “S. & L. Kurc Nominees Pty. Ltd.” It changed its name to “SLKALT Pty Ltd” on 16 July 2020. Mr Giasoumi gave evidence that the Company is the trustee of the Kurc Family Trust and operated solely in that capacity. The Company conducted the business of the retail sale of art and crafts supplies, both online and from retail stores located around Australia. The retail stores were located predominantly in high profile shopping centres and some shopping strips. The Company operated under various business names including “Riot Art and Craft Online”, “Riot Art & Craft” and “Riot Art”. The Company owned Riot stores trademarks, business names, brands, social media channels, a client database and the domain name “ The Company’s head office was located at Unit 10/104-110 Keys Road, Cheltenham (the Cheltenham property).

Mr Kurc gave evidence that in about 2002, Ms Lea Kurc ceased being involved in any day to day operations of the Company. From 2003 onwards, Mr Kurc was largely responsible for managing the Company. Since about this time, Mr Kurc has been largely responsible for looking after the family’s business interests, including as a director of a number of family companies. In 2015, Mr Solomon Kurc ceased being involved in the day to day operations of the Company. By around this time, Mr Solomon Kurc and Ms Lea Kurc were looking to retire as directors of the Company and to be removed as guarantors. Mr Kurc gave evidence:

6.… As directors of the Company, my parents were often named as guarantors on leases entered into by the Company and so they and I wanted to remove their names as guarantors to enable my parents to retire from managing the Company completely. It took approximately 5 years to complete this.

Mr Kurc gave evidence that from about this time, i.e. 2015, he gave increasing consideration to appropriate organisation for the succession of the family’s interests, including the structuring of finance and assets. I refer to the list of the entities in the Kurc Group prepared by Mr Giasoumi. The entities include, inter alia:

(a) Damiss Nominees. In 2020, Mr Kurc and Mr David Kurc were the directors. Mr Solomon Kurc and Ms Lea Kurc had ceased to be directors in June 2019. Mr Kurc gave evidence that Damiss Nominees is a Kurc family entity used, among other entities, to finance the family’s business interests;

(b) Riot Stores, which was incorporated on 22 January 2020. Mr Kurc has been the sole director at all times;

(c) Dajomis Pty Ltd (Dajomis). In 2020, Mr Kurc was the sole director. Mr Solomon Kurc and Ms Lea Kurc had ceased to be directors in July 2019;

(d) Kurc Services Pty Ltd (Kurc Services). Mr Solomon Kurc and Ms Lea Kurc have been the directors at all relevant times, save for a brief period between July to October 2019 when Mr Kurc was the director;

(e) Soleku Pty Ltd (Soleku). It is the trustee for the Soleku 2 Unit Trust. Mr Kurc and Mr David Kurc have been the directors since 2019, when Mr Solomon Kurc and Ms Lea Kurc ceased to be directors; and

(f) RACFS Pty Ltd (RACFS). In 2020, Mr Kurc was a director except for the period between 1 May 2020 to 10 August 2020. In 2020, Mr David Kurc was a director until 1 May 2020.

Decisions to pay down debt and to restructure

Mr Kurc gave evidence that finance was provided to the family’s business interests by the ANZ Bank and that family members and companies provided various securities. Mr Kurc gave evidence that in about 2018 he wanted to have the Company’s debt to the ANZ Bank paid down. He gave evidence that the Company had peaked at 68 physical stores and not all stores were growing or profitable so he decided to close some of the non-profitable stores. Mr Kurc gave evidence that in around 2019, he approached Mr Gerald Teh of Axis Capital to assist with refinancing the debt then owed to the ANZ Bank. Mr Kurc gave evidence that ultimately arrangements were made in 2020 including repaying debt to the ANZ Bank, and extending the time for the payment of debt owed by the Company to Damiss Nominees in exchange for security. This is addressed further later in this judgment. On 17 June 2019, Mr Solomon Kurc and Ms Lea Kurc ceased to be directors of the Company and of Damiss Nominees.

Mr Kurc gave evidence that by January 2020, the business was operating from physical retail stores and via a website. He gave evidence that the internet business at this time was loss making and a burden. He gave evidence that having regard to organising a structure suitable for the family’s interests, he considered it desirable for the internet business to be held separately from the business operated through the retail network. In January 2020, the Company obtained an independent valuation from the First Valuation Group which valued the Cheltenham property at $2,425,000. Mr Kurc gave evidence that in about January 2020, he decided that he wanted to move the Company’s internet business to another entity to “clean up the Company”, reduce its debt and pay off the remaining amount owed to the ANZ Bank. He gave evidence that at this time the Company’s internet business was trading poorly and its operating costs exceeded the income that it was generating. On 22 January 2020 Riot Stores was incorporated to be the entity that would acquire the Company’s internet business. Mr Kurc was appointed the sole director. On 11 March 2020, the Company sold the Cheltenham property to Soleku for $2,500,000.

Retainer and initial instruction of B2B Lawyers

In about late March 2020, Mr Kurc asked Mr Goldman, the Company’s external accountant, if he knew any lawyers that could assist him with the “process” of moving the Company’s internet business to another entity to “clean up the Company”, reduce its debt and pay off the remaining amount owed to the ANZ Bank. Mr Kurc gave evidence:

14.Accordingly, as stated at paragraph 9 of my August 2022 Affidavit, I asked an accountant, Joel Goldman, to recommend a lawyer that could provide guidance regarding estate and succession planning for the family, in the context of refinancing the remaining debt to ANZ (including to avoid any possible enforcement of securities held by ANZ) and a potential restructure of aspects of the family’s affairs. Mr Goldman provided me with the details of David Lurie of B2B Lawyers, who I proceeded to contact and engage.

At this time, Mr Kurc and Mr David Kurc were the directors of the Company and Damiss Nominees and Mr Kurc was the sole director of Riot Stores. Mr Lurie gave evidence that B2B Lawyers had not previously acted for members of the Kurc family or any of the family entities. Mr Kurc gave evidence that in about late March 2020, he “reached out to B2B Lawyers”. On 31 March 2020, Mr Kurc sent an email with the subject “Restructure” from the email address “[email protected]” to Mr Lurie, in which he stated, inter alia:

Our family business has retail stores
We’re interested in restructuring in the current environment and we were told your the best person to seek advise from for this

Mr Lurie responded by email in which he stated, inter alia: “It would help if I could get a corporate trust tree and balance sheets before our discussion.” Mr Kurc gave evidence that in his communications with B2B Lawyers, he predominantly spoke with Mr Lurie, but also spoke with Ms Rachel Chew (Ms Chew) and Ms Yun Ling (Ms Ling). Mr Lurie gave evidence that Ms Chew and Ms Ling were employees of B2B Lawyers working under his supervision. Both are no longer employees of B2B Lawyers. Mr Lurie gave evidence that he was contacted by Mr Kurc to assist Mr Kurc with “restructuring the family business”. Mr Kurc gave evidence:

I instructed B2B Lawyers to assist me with a restructure of the family business. Ultimately this included structuring Riot Stores Pty Ltd and to manage debts recorded to be payable by Damiss Nominees Pty Ltd as well as to manage the remaining amount payable to the ANZ bank.
I communicated with David back and forth for some time before it was clearly established what the best method forward for my family and me was and exactly what I was engaging B2B Lawyers to do. At this stage I was unsure as to the exact scope of the engagement that I required B2B Lawyers to act and who or which entity for.

Involvement of B2B Lawyers, steps taken by Mr Kurc and subsequent transactions

On 1 April 2020, Ms Chew sent an email to Mr Kurc. It provided advice in relation to the Covid-19 safe harbour regime and employment matters. Ms Chew provided an article and a template letter. Ms Chew also stated in the email “we will send by separate email details of the proposed transactions discussed this afternoon.” In the period between 2 and 5 April 2020, emails were exchanged between Mr Kurc, Mr Goldman and persons within B2B Lawyers, including Mr Lurie, with subjects, inter alia, “new entity” and “new entity and sale”.

On 6 April 2020, Banks Group valued the Company’s internet business at a combined value of $132,909 if sold unencumbered. On 8 April 2020, the Company sold the internet business to Riot Stores for $135,000 but subject to the existing securities over those assets. Damiss Nominees lent funds to Riot Stores to enable Riot Stores to pay the amount owing under the contract of sale to the Company. The existing securities remained in place over the assets. Mr Giasoumi gave evidence that the Company continued to trade its unprofitable retail stores while not paying rent. On 8 April 2020, a loan deed and general security charge were executed between the Company (as borrower and grantor under the general security charge) and Damiss Nominees (as lender and secured party under the general security charge) (with Riot Stores as Guarantor to loan deed) to document a loan. The loan deed was prepared by B2B Lawyers. Mr Lurie gave evidence that after a short time corresponding with Mr Kurc “to determine the scope of his retainer of B2B Lawyers” he had Ms Chew and Ms Ling provide Mr Kurc with a cost disclosure. On 14 April 2020, Ms Ling sent an email to Mr Kurc attaching a disclosure statement and cost agreement (the retainer agreement). There is no evidence that the retainer agreement was subsequently signed. Ms Ling stated in the email, inter alia, as follows:

The cost estimated in the sum of $28,000 plus GST plus disbursements of approximately $3,375.00 relate to our professional fees associated with general corporate restructure advice as outlined in the table below:

No. Description

1. Setting up a new IP structure and Unit Holders

a. Establishing the Riot Stores Unit Trust

b. Establishing the MK Riot Trust (discretionary trust) with adjustments for limitation of any capital distributions to spouses and partners

c. Establishing the DK Riot Trust (discretionary trust) with adjustments for limitation of any capital distributions to spouses and partners

d. Establishing the JK Riot Trust (discretionary trust) with adjustments for limitation of any capital distributions to spouses and partners

e. Change of trustees for each discretionary trust

2. Sale of Business

a. Sale of Business Agreement

b. General Security Charge Agreement including registration of security interest

c. Disbursement Authority

d. Assignment of Lease

3. Loan and Security

a. Loan Deed between Damiss Nominees Pty Ltd as lender and KFT as borrower

b. Loan Deed between Damiss Nominees Pty Ltd as lender and Riot Stores Pty Ltd as trustee for the Riot Stores Unit Trust as borrower

c. Deed of Guarantee and Indemnity between Riot Stores Pty Ltd as guarantor and Damiss Nominees Pty Ltd as secured party

d. General Security Charge Agreement in favour of Damiss Nominees Pty Ltd against Riot Stores Pty Ltd including registration of security interest

e. General Security Charge Agreement in favour of Damiss Nominees Pty Ltd against KFT including registration of security interest

f. General Security Charge Agreement in favour of Riot Stores Pty Ltd as trustee for the Riot Stores Unit Trust against KFT including registration of security interest

4. Disbursements

a. Stamp Duty for four trusts $800 ($200 each)

b. Shelf Companies to act as trustees for the 3 discretionary trusts $2100 (approx. $700 each)

c. Registration of 3 security interests on the PPSR: $75 ($25 each)

d. PPSR and company searches: approx. $400
Please note that the cost estimate excludes work associated with the supply agreement and consignment agreement between the Kurc Family Trust (KFT) and Riot Stores Pty Ltd, formal transfer of IP from KFT to Riot Stores Pty Ltd or a new IP entity, establishment of a new entity to hold the IP and any discussions relating to potential voluntary administration. A separate cost estimate will be provided for those works will be provided in due course.

The description of the matter is also set out in the retainer agreement attached to the email. The reference to the “Sale of Business” and work associated with that is a reference to the sale by the Company of the internet business. Mr Kurc gave evidence that some work was already underway by this time. This included the sale of business agreement and the loan deed between Damis Nominees and the Company. The retainer agreement identifies the clients as Damiss Nominees and Riot Stores. Mr Lurie gave evidence that the costs disclosure was addressed to Damiss Nominees and Riot Stores because these were the only entities that he understood were B2B Lawyers’ clients. The retainer agreement identifies the “Matter” as being “219116 and 220123”. I find that these are the internal matter numbers allocated by B2B Lawyers. This is important as there were also other matter numbers allocated by B2B Lawyers in relation to other work performed for members of the Kurc family and entities in the Kurc Group. I address this further later in this judgment. Mr Kurc gave evidence that he did not receive any other written cost retainers from B2B Lawyers other than the retainer agreement. Mr Kurc also gave evidence that at the time he received the retainer agreement he appreciated that the advice that he was seeking for organising “our affairs” was advice for the family entities being Riot Stores and Damiss Nominees rather than the Company.

Mr Kurc gave evidence:

16.…This cost disclosure stated that it did not include work pertaining to the consignment agreement or the formal transfer of intellectual property to Riot Stores Pty Ltd. Despite this cost disclosure not covering those items I continued to engage B2B Lawyers to act for Riot Stores Pty Ltd with respect to the consignment agreement.

Mr Lurie gave evidence:

10.Additional to the work performed for the Examinee Companies [i.e. Riot Stores and Damiss Nominees] under the cost disclosure described above, Michael Kurc also engaged B2B Lawyers on behalf of Riot Stores Pty Ltd to draft the consignment agreement and also to assist with the structuring the method in which the intellectual property sold to Riot Stores Pty Ltd would be held.

Mr Kurc gave evidence that except for his initial email to B2B Lawyers around the end of March 2020 he always communicated with B2B Lawyers using his personal and private Gmail email address which was not associated with the server of the Company. Mr Kurc gave evidence that the reason for this practice was to keep his communications with B2B Lawyers, sent on behalf of himself and/or Damiss Nominees and Riot Stores, separate and distinct from the communications that he was sending for and on behalf of the Company. The retainer agreement was sent to Mr Kurc’s Gmail address. Mr Kurc gave evidence that all invoices that were issued by B2B Lawyers were paid for by either Damiss Nominees or Riot Stores depending on the work covered by those invoices. Mr Kurc also gave evidence that the Company did not make any payments towards any invoices issued by B2B Lawyers. On 17 April 2020, Mr Kurc sent the following email to Mr Goldman and Mr Lurie. A claim for privilege over this document is no longer pressed:

Joel and David
Thanks for your help with the restructure [sic] As you know we have paid down debt through think tank and with judo bank late last year.
We sold the 10/104 keys Rd asset of Kurc family trust to soleku 2 trust paying all stamp duty and accounting for all capital gains in Kurc family trust.
As part of the generational change for our family the Kurc family trust has decided to restructure its business in an attempt to terminate onorous [sic] lease obligations strangling the retail stores.
Thanks for your help in setting up the future of the Kurc family business by separating the legacy business from the online business - this is where the growth is.
Only time will tell if the restructure as the desired outcome for us of setting up the family for future retailing especially after this coronavirus time [sic]
Regards.

On 8 May 2020, a document was prepared named “kurc group questions”. This document sets out a number of matters under headings titled “QUESTION 1” and “QUESTION 2”. I find that it was prepared by Mr Kurc because he gave evidence that he was the person largely responsible for managing the Company. There is a further version of this document, which has been marked up with text that is underlined and has document properties which show that it was modified by B2B Lawyers on 11 May 2020. Mr Giasoumi gave evidence that the marked up document states, inter alia:

QUESTION 1
Goal
Kurc Family Trust (OLD COMPANY) has $4.1m it owes ANZ. ANZ has security covering this debt.
Kurc Family Trust (OLD COMPANY) owes THINKTANK $3.1m secured against the assets of Kurc Family Trust (OLD COMPANY) and various other entities controlled by the Kurc Family.
The Kurc Family also has $6.2m it owes to Judo Bank secured against assets owned by Kurc Services Pty Ltd and Elster Avenue Property Trust. This loan IS NOT secured by Kurc Family Trust (OLD COMPANY)
The GOAL is to pay down all of this debt in the next 5.5 months.
ADVICE REQUIRED
How can we best achieve our goals above without complicating a future Administration or Liquidation of Kurc Family Trust and avoiding future potential roll backs and refunds of money we use to transfer to pay debt owed to secured creditors.
a)        KFT should first directly repay ANZ. The ANZ security is firm and there is no issue of preference.
b)        KFT should prepay Riot Stores Unit Trust (RSUT) for stock to be supplied to it. RSUT can then repay Think Tank and take security over the real estate and the mortgagor. Rachel has revised the Supply Agreement to make prepayment explicit.
c)        Need to understand more about Kurc Family Services Pty Ltd and the Elster Avenue Property Unit Trust. The Kurc Services Pty ltd financials for 30/06/2019 show it has assets of debts owed to it by the KFT of $424.658 and Damiss Nominees Pty Ltd of $405202. Are these debts still in existence? A balance sheet of the Elster Avenue Property Unit trust would be of interest.
QUESTION 2
PLAN FOR THE STOCK
Please advise if the below action is advisable
Kurc Family Trust (OLD COMPANY) currently owns approximately $750,000.00 in a warehouse at 104-110 Keys Rd Cheltenham (the Warehouse)
This should be sold on consignment to the RSUT
The view of the Director of Riot Stores Pty Ltd ATF Riot Stores Unit Trust (NEW COMPANY) is that its business should pay for and own all the goods in The Warehouse and all future goods that are to be sold to customers of the NEW COMPANY and to the OLD COMPANY.
Agreed
NEW COMPANY would sell the goods to the OLD COMPANY at a margin to cover the costs associated with sourcing and distributing the goods.
Agreed
OLD COMPANY would have to pay for goods in advance to NEW COMPANY.
Agreed
NEW COMPANY will invoice OLD COMPANY for all goods ordered by OLD COMPANY.
Agreed
OLD COMPANY will provide Purchase Orders to NEW COMPANY for the stock it orders
Agreed

On 22 May 2020, Mr Kurc sent an email to Mr Goldman and Mr Lurie in which he provided an update on rental negotiations between the Company and its landlords. On or about 27 May 2020, the Company (in its own right and as trustee for the Kurc Family Trust) entered into a Deed of Acknowledgement (Subrogated Rights) with Kurc Services (in its own right and as trustee for the Kurc Services Trust), Ms Lea Kurc (in her own right and as trustee for the Elster Avenue Property Trust) and Mr Solomon Kurc (in his own right and as trustee for the Elster Avenue Property Trust). This deed was prepared by B2B Lawyers. The deed provided that Kurc Services discharged in part the Company’s obligation to ANZ by paying $1,912,731.63 in reduction of the Company’s debt to ANZ and Mr Solomon Kurc and Ms Lea Kurc discharged in part the Company’s obligations to ANZ by paying $1,515,947.71 in reduction of the Company’s debt to ANZ. A further document was prepared titled “KURC GROUP – QUESTIONS FOR B2B LAWYERS”. I find that this document was prepared by Mr Kurc on about 28 May 2020. This is because the first line of the document refers to a position as at that date. I also find that it was prepared by Mr Kurc because he gave evidence that he was the person largely responsible for managing the Company. It is important to set out the document in full:

KURC GROUP - QUESTIONS FOR B2B LAWYERS
STATE OF PLAY
As of the 28th May 2020 S & L Kurc Nominees Pty Ltd atf Kurc Family Trust t/a Riot Art & Craft (OLD ENTITY) continues to trade from its 58 retail outlets.
The stores that it proposed to close Pre-Covid remain open as the cost of redundancies and make good of the stores exceeds the contribution these stores will be making whilst the OLD ENTITY remains on JobKeeper and pays no rent to the Landlords.
As we approach the start of June 2020 we have reached agreement to reduce our rent for three months (until the end of June 2020) with 5 of 7 Landlords where we have stores in retail strips.
For the stores in major shopping centres we have held discussions with GPT with whom we have 2 stores (Charlestown, NSW and Highpoint, VIC). These discussions were general in nature with the Landlord offer no specifics as to their offer apart from mentioning that they will send us information about their cash flow relief for tenants under JobKeeper and whether we preferred a waiver of rent or a deferral. We have kept our position silent on the matter and will wait until the landlord sends us their offer.
We have not sent out our request for rent relief letters as yet, although they are all prepared and in envelopes ready to send, as I don’t want to show our hand before the Landlord reaches out to us.
We have spoken to most of the other Landlords, including SCENTRE, but no mention was made of rent, the fact that we hadn’t paid for three months or if we wanted to discuss the matter. Everyone is holding their cards close and dont want to reveal their next moves.
We suspect that as 30th June 2020 approaches the institutional Landlords will seek clarity from tenants on their rent position and try to get some certainty concerning their tenants position moving forward. We will not be paying rent until Landlords approach us and agree to negotiate based on the terms (rent as a percentage of sales plus the return of our bank guarantees).
We continue to pay down the secured debt owed to ANZ Bank. At the start of May OLD ENTITY owed the ANZ $4.084m. At the end of May this debt will be down to $2.684m and by the end of June it will be down to $1.384m and by the end of July the debt will be extinguished.
PLANNING FOR THE FUTURE
We are now at the point that we are confident that we will have no secured debt owed to ANZ or ThinkTank by the end of September 2020.
The only secured debt owed will be owed to DAMISS NOMINEES PTY LTD, our related company. We have invested in our website and it trades profitably. In planning for the future we want to understand what the scenarios will be post 25/9/2020 when the SAFE HARBOUR COVID-19 regulations expire.
We need some answers to questions regarding process post SAFE HARBOUR COVID laws and the immediate period thereafter as we need to make some business decisions in the next 4 weeks that will be determined by how the process works.
Some Questions:
1.Will we be able to move from SAFE HARBOUR COVID-19 to the “standard” Safe Harbour provisions post 25/9/2020?
If we can, are we able to pay down debt to DAMISS NOMINEES, a secured creditor of OLD ENTITY. If we can use the Safe Harbour provisions post 25/9/2020 and get the stores trading through to Christmas 2020 we will be able to pay the debt of $4m back to this secured creditor.
2.The GSA for Damiss over OLD ENTITY was dated 16/4/2020. Does this mean we can’t pay back any of this debt until this time? If we can use SAFE HARBOUR after 25/9/2020 can we pay back a secured creditor in preference to an unsecured creditor or do all creditors need to be treated equally?
3.How long does the SAFE HARBOUR period last? Three months, six months? Would the SAFE HARBOUR period have to start from 25/9/2020?
4.Who manages the SAFE HARBOUR period? Would we need to formally appoint the insolvency practitioner to assist us? When would we need to make the formal plans for the SAFE HARBOUR period?
5.Would we have to pay rent when in a SAFE HARBOUR period post 25/9/2020?
6.Can we change the name of OLD ENTITY trustee company from S & L KURC NOMINEES PTY LTD to SLKALT PTY LTD? This is so our surname doesnt endlessly appear on google if we go into VA or Liquidation.
7.What are director’s risk and obligations in relation to insolvency during the SAFE HARBOUR period post 25/9/2020 and what are they until 25/9/2020?
8.We have trade creditors of $1m that we no longer use and dont particularly want to pay 100%. During this SAFE HARBOUR COVID period they obviously can’t issue proceeding against us but post 25/9/2020 how can these creditors be dealt with under a SAFE HARBOUR regime?
9.Do you have to make an announcement to staff, customers, suppliers, creditors that we are operating under a safe habour regime post 25/9/2020?

10. How can B2B Lawyers help with all the above?

On 2 June 2020, B2B Lawyers prepared a memorandum to Mr Kurc, Mr David Kurc and Mr Joshua Kurc. It was in relation to matter No 220129. This is not one of the matters described in the retainer agreement. This is a matter number in relation to “Corporate Advice”. The memorandum states:

Teleconference between Michael Kurc, David Kurc, Joshua Kurc, David Lurie, Rachel Chew and Yun Ling on 29 May 2020 at 11 am.
The following items were discussed:
1.Safe Harbour / Director's duties - Directors' duties do not fall under the Safe Harbour "defence". This means that directors must comply with all their other legal obligations at all times.
Michael advised that there are no breach of directors' duties.
2.Temporary relief/amendments to Safe Harbour - A director may only rely on the new temporary safe harbour provisions in relation to a debt incurred by the company, if:
·     the debt is incurred in the ordinary course of the company’s business;
·     the debt is incurred during the six month period starting 25 March 2020; and
·     the debt is incurred before any appointment of an administrator or liquidator of the company during the temporary safe harbour period.
3.Consultant - Engaging a consultant / Insolvency expert to advise on Safe Harbour compliance. The following consultants had been suggested:
(a)       John Lindholm of KPMG;
(b)       Daniel Juratowitch of Cor Cordis; and
(c) Nic Giasoumi of Dye & Co (Nic provided safe harbour advice for Roger David).

4.There is no requirement to make any announcement with respect to entity operating under a safe harbour regime.
5.Rental issue is not an insolvent trading issue as it is not a "new debt" subject to a new agreement.
6.Creditors - Michael advised that secured creditors are Think Tank and ANZ and related entities. There are not many unsecured creditors.
· ANZ debt will be paid off by end of June, by the Kurc Family Trust (KFT) or subrogated creditors (Kurc Services Trust and/or Elster Avenue Property Trust).
· Debt to Damiss Nominees can be paid back 6 months after 16 April 2020 (date GSA in favour of Damiss was signed).

7.        Stores - Keep stores open till Christmas/ early next year if possible.
·     $5M cashflow to pay off related entities.
·     Rental/landlord - consider paying outgoings and part of rental depending on the drop in turn over (case by case basis).
·     Old leases and non-payment of rental and/or outgoings are not vulnerable to insolvent trading claims. Any new arrangement with a landlord will be, if not adhered to.
8.Trade creditors - Michael raised issue as to trade creditor who is owed $600k. Stock has been sold. Best to pay down incrementally to obviate issuing of a statutory demand.
9.Statutory demand - The period for debtors to respond to statutory demands has been increased to 6 months (up from 21 days for both statutory demands and bankruptcy notices). The 6-month response period will apply for 6 months, commencing on 25 March 2020. The rules may change again in September.
10.Change in Trustee - B2B to attend to the change of name of trustee company from S&L Kurc Nominees Pty Ltd to SLKALT Pty Ltd.

11.      Intellectual Property Transfer
·     K&L Gates will attend to the transfer of trademarks.
·     B2B will attend to transfer of the social media and other intellectual property.

12. Wills – B2B to send email re Wills and testamentary trusts.
13.Property - There is a property owned by the siblings valued at $2M (approx. $1.8M equity)
· Proposed transaction - siblings to be guarantors with respect to Damiss’ loans to KFT and for Damiss to take charge over asset.

End of Memorandum

I have already referred in this judgment to the fact that the description of work and the associated costs in the retainer agreement excluded certain matters. This included, inter alia, the transfer of intellectual property from the Company to Riot Stores or a new entity and the establishment of any new entity to hold the intellectual property. B2B Lawyers performed work in relation to establishing Kurc IP Pty Ltd and the Kurc IP Unit Trust in the period from 7 May 2020 to 31 May 2020. B2B Lawyers provided an invoice to Mr Kurc for this work which was described as “Corporate Advice”. B2B Lawyers also provided an invoice for its work in relation to “Commercial Lease Negotiations” for the period from 7 May 2020 to 31 May 2020. Mr Giasoumi gave evidence that the Company’s bank statements show that on 2 July 2020 the Company paid B2B Lawyers’ invoice for this matter. On 16 June 2020, B2B Lawyers also provided advice in relation to Mr Kurc’s estate planning. This was described as matter number 220183. On 30 June 2020, Mr Lurie emailed a letter to Mr Kurc in relation to matter numbers 220129 and 220159. These matters are not the subject of the retainer agreement. The letter set out, inter alia, the following in relation to the Corporate Advice matter:

220129 – Corporate Advice

Invoice No. 148763

Please find enclosed our invoice number 148763 for work undertaken during the period 7 May 2020 to 31 May 2020 in the sum of $1,649.09 in relation to establishing Kurc IP Pty Ltd and the Kurc IP Unit Trust. Please note that the sum of $971.49 of the invoiced amount is for disbursements (company registration fees, PPSR search reports and stamp duty).
We note that we are currently working on the following documents and will provide you with an update as soon as we can:
1.Deed of Acknowledgment of Subrogated Rights (subject to review of ANZ documents);
2.Deed of Guarantee between the No 5 Partnership, Kurc Family Trust and Damiss Nominees Pty Ltd;
3.Loan and security documents for the loans recorded in the financials of the No 5 Partnership and No 3 Rupert St Pty Ltd;

4. Formal transfer of remaining IP (Matter No 220123); and
5. Assignment of leases (Matter No 220123).

The reference to “Matter No 220123” in paragraphs 4 and 5 of the letter is a reference to one of the matters the subject of the retainer agreement. In about early July 2020, Mr Kurc instructed B2B Lawyers to change the Company’s name, amend its memorandum and articles of association and take steps to retire a director. Mr Kurc gave evidence that since he was already dealing with Ms Ling on the consignment agreement he believed this “small piece of work could be drafted by her”. On 7 July 2020, the Company (in its own capacity and as trustee for the Kurc Family Trust) and Riot Stores (in its own capacity and as trustee for the Riot Stores Unit Trust) entered into a consignment agreement providing that the Company would take stock on a consignment basis for sale from Riot Stores. It was prepared by B2B Lawyers. On 10 July 2020, Mr David Kurc ceased to be a director of the Company. Mr Giasoumi gave evidence that in accordance with the consignment agreement between the Company and Riot Stores, the Company was charged a margin of between 10% to 20% for goods sold through the retail stores. Mr Kurc gave evidence that in July 2020, some of the physical stores were shut because of the Covid-19 Government mandates and the landlords for various leases were unhelpful and for the most part largely refusing to give any rent relief. Mr Kurc gave the following update to Mr Lurie and Mr Goldman in an email dated 13 July 2020 that stated, inter alia:

Just a note to update you on our recent trading.
We have paid back ANZ the bulk of our Secured Debt. All that remains is the $1.247m in bank guarantees that we will put aside in a term deposit to offset. This is being organised by the bank. Once these funds are with the bank they will release all security over our assets. The final payment to them will be August 7th 2020 and hopefully they release everything within a week or so thereafter.
Trading in the stores remains OK with all stores trading, albeit some on reduced trading hours in Victoria.
We have not paid any rent since March and it is our position that we can not pay until the end of the COVID period. The landlords are not offering deals apart from the black letter of the national code.
The landlords have been increasingly aggressive in their behaviour towards getting deals done but without exception all the large institutional landlords want longer terms at the current rent (2-3 years) for a short term abatement in rent.
We will not agree to anything until a full picture of the COVID-19 situation is able to be analysed and with the amount of increasing cases in VIC and potentially in NSW I dont think this will happen in the next 4 weeks.
The smaller Landlords are more reasonable and we have been able to come to agreements with them.
Our stock position remains tight and our cash flow positive and healthy.
We have our finance broker seeking new finance facilities for us if we need them for the future - these will utilise the current assets we have as a family.

On or about 17 July 2020, the Company (in its own right and as trustee for the Kurc Family Trust) entered into documents that were prepared by B2B Lawyers, being:

(a) Deed of Acknowledgement (Subrogated Rights) with Dajomis (in its own right and as trustee for the Lanby Investment Trust). The deed provided that Dajomis discharged in part the Company’s obligations to ANZ by paying $601,516.81 in reduction of the Company’s debt to ANZ;

(b) Deed of Acknowledgement (Subrogated Rights) with Viconn Pty Ltd (in its own right and as trustee for the Michael Kurc Family Trust), Teloa Pty Ltd (in its own right and as trustee for the David Kurc Family Trust) and JDLM Pty Ltd (in its own right and as trustee for the Joshua Kurc Family Trust). The deed provided that each of those entities discharged in part the Company’s obligations to ANZ by each paying $555,854.31;

(c) Deed of Acknowledgement (Subrogated Rights) with Soleku (in its own right and as trustee for the Soleku Trust) and Mr Solomon Kurc and Ms Lea Kurc (in their own right and as partners in the L Kurc & S Kurc Partnership) which provided that Soleku and the partnership discharged in part the Company’s obligations to ANZ by paying certain amounts; and

(d) Deed of Indemnity with Riot Stores (in its own capacity and as trustee for the Riot Stores Unit Trust) regarding gift card liabilities. Riot Stores (as the indemnified party) agreed to assume gift card liabilities to the extent that the Company (as the indemnifying party) did not honour them and the Company agreed to indemnify Riot Stores.

On 24 July 2020, a Specific Security Deed prepared by B2B Lawyers was entered into between the Company (in its own capacity and as trustee for the Riot Stores Trust Account Trust) and Riot Stores as trustee for the Riot Stores Unit Trust. It was prepared by B2B Lawyers. Pursuant to this deed the Company granted a security interest to Riot Stores as trustee for the Riot Stores Unit Trust over certain “ADI” accounts. On 7 August 2020, a Licence of Intellectual Property was entered into between Kurc IP Pty Ltd as trustee for the Kurc IP Unit Trust (as Licensor) and the Company in its own right and as trustee for the Kurc Family Trust (as Licensee). It was prepared by B2B Lawyers. On 2 September 2020, B2B Lawyers sent an email to the ANZ Bank confirming that, among other things, they acted for the Kurc Group and the Company would pay its remaining liabilities to the ANZ Bank within 30 days. On 28 October 2020, B2B Lawyers sent a letter by email to Mr Kurc enclosing invoices, including a further invoice in relation to the “Corporate Advice” matter. This invoice concerned Matter No. 220129. The invoice for this Corporate Advice concerns a wide range of matters. This includes, as recorded in the invoice for work done on 8 September 2020: “… regarding ANZ, subrogation, repayment of secured creditors, stand down staffing and tenancy dispute”. Some of these matters relate to the Company’s affairs. This includes matters concerning “stand down staffing” as the Company had sent letters to its employees standing down staff in August and September 2020. There is no evidence of any other entity within the Kurc Group having stood down staff at this time. The reference to “tenancy dispute” relates to the Company’s affairs. Mr Giasoumi gave evidence that on 1 September 2020, Mr Kurc sent Mr Lurie an email from the email address “[email protected]” about a tenancy dispute in relation to a property occupied by the Company that had been referred to the Victorian Small Business Commission for mediation. The matters concerning the ANZ Bank also concerned, inter alia, the affairs of the Company. Mr Kurc gave evidence that his parents also instructed B2B Lawyers for estate planning advice, and had wills and powers of attorney prepared for them.

Retainer and instruction of other lawyers

Mr Kurc gave evidence that where legal advice was sought for or on behalf of the Company, separate law firms were engaged. This included CIE Legal for employment related matters, Gilbert + Tobin for rent relief related matters, and K&L Gates for intellectual property related matters.

Liquidation of the Company

Mr Kurc gave evidence that by October 2020, the situation with the Company’s various landlords became “problematic”. He gave evidence:

As a result of the mounting debts from the Company’s leases and by this stage, particularly in Melbourne, the stores had been closed for a significant period, I no longer thought the Company’s business was viable. It was at this point I decided to place the Company into liquidation.

On 18 October 2020, the Company paid $3,103,714.79 to Damiss Nominees. Mr Giasoumi gave evidence that this was in purported discharge of the “secured” debt. The plaintiffs were appointed joint and several liquidators of the Company on 19 October 2020. Mr Giasoumi gave evidence that as at the date of appointment of the liquidators, the Company had ordinary unsecured creditors totalling $8,571,070.97 according to the report on company activities and property provided by Mr Kurc to the liquidators. Mr Giasoumi gave evidence that the Company had creditors claiming debts totalling nearly double that sum, being the sum of $16,362,516.45. Mr Giasoumi gave evidence that as at the date of appointment of the liquidators, 137 employees of the Company were owed a total of $3,079,155.53 and that as at 15 August 2022 a total of $2,364,285.60 had been paid to employees of the Company through the “Fair Entitlements Guarantee Scheme”. Mr Giasoumi gave evidence that the practical effect of the transactions deposed to in his affidavit sworn 15 August 2022 at paragraph 51 was that related parties received significant payments and possession of the Company’s assets, but unrelated creditors such as landlords and employees were not paid notwithstanding that the Company continued to trade using their services.

The disputed communications in the Documents

Mr Kurc gave evidence concerning a document titled “Consolidated List of Privilege Documents” which was prepared for this proceeding and exhibited as “MK-1” to his affidavit affirmed 1 August 2022. As I have already said, the number of documents in dispute was narrowed during the hearing before the Judicial Registrar and also on this appeal. The “Consolidated List of Privilege Documents” addresses the same 67 documents the subject of the final list of disputed documents. The “Consolidated List of Privilege Documents” includes a description of the document, the circumstances of the creation of the document and also identifies the “Client/Clients to whom legal advice was provided”. I make the following observations:

(a) Mr Kurc is identified, together with others, as a client concerning Document 64 and no other documents;

(b) Damiss Nominees and/or Riot Stores are identified as the only clients for 60 of the documents and, together with others, for 6 other documents, namely Documents 39, 60-62, 64 and 66;

(c) Dajomis is identified, together with others, as a client for Documents 39, 60-62 and 66;

(d) Ms Lea Kurc and Mr Solomon Kurc are identified, together with others, as clients for Documents 39, 60-62 and 66;

(e) Kurc Services is identified, together with others, as a client for Document 66.

Mr Kurc also gave detailed evidence concerning each of the 67 documents. Mr Lurie gave evidence that Mr Kurc’s description of each of the documents corresponds with his understanding of the documents. Mr Lurie also gave evidence:

I have reviewed the documents over which Michael Kurc and the Examinee Companies have claimed legal professional privilege. To the extent that comunications or documents, which are included in the bundle of documents over which legal professional privilege has been claimed by either of Michael Kurc or the Examinee Companies, were prepared or received by me or any of the staff at B2B Lawyers they were prepared or received in the course of the retainers described in paragraphs 8 and 10 above.

DO DOCUMENTS 5-27, 29-30, 33, 35-38, 40-43, 45, 50 AND 58-59 CONTAIN COMMUNICATIONS MADE FOR THE DOMINANT PURPOSE OF LEGAL ADVICE?
Applicable law

This case concerns the legal advice aspect of legal professional privilege and not the litigation aspect. There was no dispute as to the applicable law. First, the parties and Mr Lurie accepted that the claims for privilege are to be determined by applying the Evidence Act2008 (Vic) (the Evidence Act) and the common law. This is because the appellants’ claims for privilege concern:

(a) objection by an appellant to the disclosure of communications in documents produced by that appellant and, as a result, the Evidence Act must be applied to these objections (see s 131A(1) of the Evidence Act); and

(b) objection by an appellant to the disclosure of communications in documents produced by another person (e.g. Mr Goldman). As a result, the common law must be applied to these objections. The Evidence Act only applies if the person who is required to disclose the documents is the person who objects (see s 131A(1) of the Evidence Act).

Second, the relevant question in the present circumstances, both under the Evidence Act (i.e. ss 118 and 131A) and at common law, is whether the dominant purpose of the communication was for the lawyer to provide legal advice to the client. This was common ground between the parties. An appropriate starting point when applying the dominant purpose test is to ask what was the intended use or uses of the document which accounted for it being brought into existence (see AWB Limited v Honourable Terence Rhoderic Hudson Cole (No 5) [2006] FCA 1234 (AWB) at [44(6)] (Young J)). In Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Limited (No 4) [2014] FCA 796 (Asahi), Beach J stated:

[33]… One practical test is to ask whether the communication would have been made (whether the document would have been brought into existence) irrespective of the obtaining of legal advice. If so, the communication (document) may not satisfy the dominant purpose test. Such a test will entail addressing the question of the intended use(s) of the document which accounted for it being brought into existence.

The same question also applies in relation to copies of documents where the test is whether the copy itself came into existence for the dominant purpose of obtaining legal advice or assistance (see Barnes v Commissioner of Taxation [2007] FCAFC 88 (Barnes) at [5] (Tamberlin, Stone and Siopis JJ)).

Third, the appellants have the onus of establishing their claims of legal professional privilege, including each factual element necessary to establish the requisite dominant purpose. In this context, as stated by Beach J in Asahi:

[29]… focused and specific evidence is required in respect of each communication, rather than mere generalised assertion let alone opaque and repetitious verbal formulae. There should be sufficient evidence which proves directly or by inference that the dominant purpose for the communication was for the relevant client to be given or to obtain legal advice. The communication also has to be confidential…

The grounds of the privilege must be deposed to in terms which identify the legal basis upon which the claim is made and provide a sufficient description of the elements of the document relied upon to support the claim. A party claiming the privilege is not required to provide such particularity as would compromise the very privilege that is claimed (see Hodgson v Amcor Ltd; Amcor Ltd v Barnes (No. 2) [2011] VSC 204 [36]-[37] (Vickery J)).

Fourth, the “dominant purpose” is the purpose which was the ruling, prevailing or most influential purpose at the time the document was brought into existence. There can be only one dominant purpose. If there are two purposes of equal weight, neither fits the description of a “dominant purpose” (see IOOF Holdings Ltd v Maurice Blackburn Pty Ltd [2016] VSC 311 at [47] (Elliott J)).

Fifth, the purpose of the communication must be ascertained at the time when the document containing the communication came into existence (see Barnes at [5], [13] (Tamberlin, Stone and Siopis JJ)). The relevant purpose may be either that of the author or the initiator of the communication, or the person at whose request or under whose authority the communication was created or made (see Asahi at [31] (Beach J)).

Sixth, the purpose of the communication is to be objectively ascertained. Evidence of the subjective intention of the author or person requesting the creation of the communication in the document is significant but not conclusive. Purpose can also be determined from the content of the document understood in its full context (see Asahi at [32] (Beach J)).

Seventh, legal professional privilege protects communications rather than documents, as the test for privilege is anchored to the purpose for which the document was brought into existence (see AWB at [44(11)] (Young J)).

Eighth, the concept of legal advice is fairly wide and it extends to professional advice as to what a party should prudently or sensibly do in the relevant legal context (see AWB at [44(7)] (Young J)). Legal advisers may also advise on more general and broader issues concerning the financial and commercial dealings of their clients. Advice given by a lawyer, however, for a predominantly financial, personal or commercial purpose will not be protected by legal professional privilege (see Barnes at [8] (Tamberlin, Stone and Siopis JJ)). The Full Court of the Federal Court said in Barnes:

[8]… Although the courts have taken a pragmatic or realistic approach in circumstances where there is mixed advice given by or sought from a legal adviser, the test for privilege remains whether the dominant purpose of the creation of a document was for the provision of legal advice…

In DSE (Holdings) Pty Ltd v InterTAN Inc (2003) 135 FCR 151, Allsop J (as he then was) said:

[52] … It would be rare that one could, with any degree of confidence, say that a communication between client (or agent) and lawyer, in the circumstances of a retainer requiring legal advice and the directing of the client by a legal adviser, was not connected with the provision or requesting of legal advice. For the reasons given by Taylor LJ in Balabel, Colman J in Nederlandse and Anderson J in Dalleagles, too literal a requirement of identifying legal advice as express advice about the law would place undue emphasis on formalism and undermine the privilege.

Ninth, a document may contain numerous communications. Part of a communication may be privileged (see Commissioner of Taxation v PricewaterhouseCoopers [2022] FCA 278 [174] (Moshinsky J) (PricewaterhouseCoopers)). Each communication must be assessed. In PricewaterhouseCoopers, Moshinsky J said of email chains:

[175]The application of the principles of legal professional privilege in the context of email chains was discussed by Thawley J in Kenquist Nominees at [19]. Relevantly for present purposes, I consider that the principles apply to email chains in the following way (referring to the latest email in time as the “latest email”):
(a)If the communication being the latest email was made for the dominant purpose of the giving or receiving of legal advice, then it may be that the email chain will be privileged because the earlier emails in the chain are to be regarded as copies of documents provided for the dominant purpose of the giving or receiving of legal advice.
(b)For example, if the dominant purpose of the communication being the latest email was the giving of legal advice by a lawyer, then it may be that the email chain will be privileged because the earlier emails in the chain are to be regarded as copies of documents furnished by the lawyer with the advice being the latest email: see Kenquist Nominees at [19(2)].
(c)By way of further example, if the dominant purpose of the communication being the latest email was the obtaining of legal advice from a lawyer, then the email chain may be privileged because the earlier emails are to be regarded as copies of communications provided to the lawyer for the dominant purpose of obtaining legal advice: see Kenquist Nominees at [19(3)].
(d)The same principles can apply to earlier emails in the chain. For example, it may be that the latest email in the chain is not privileged, but the penultimate email (in time) may be a communication made for the dominant purpose of the giving or receiving of legal advice, and the earlier emails are to be regarded as copy documents which have been provided for the same dominant purpose.

Tenth, in cases where non-lawyers are involved, the key issue for determination remains whether the relevant communications were made for the dominant purpose of the lawyer giving advice to the client, despite being made by or disseminated to third party advisers (see Asahi at [11] (Beach J)). Advice by non-lawyers on ways to structure a transaction are extremely unlikely to attract privilege. This is because the purpose of the advice will, in most cases, be quite independent of the need for legal advice and, even if the parties have in mind that the advice will be submitted to a lawyer for comment, the purpose is unlikely to be the dominant purpose (see Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357 (Pratt) at [106] (Stone J)). In this context, I adopt the following propositions as synthesised by Beach J in Asahi at [37]-[44] based upon Pratt at [41]-[47] per Finn J and [105]-[107] per Stone J:

(a) a communication made by a third party adviser to a client’s lawyer if made for the requisite dominant purpose of the client obtaining legal advice from the lawyer will be privileged. The purpose may also be readily inferred given the directness of the communication from the third party adviser to the client’s lawyer;

(b) a communication made by a third party adviser to a client if made for the requisite dominant purpose of the client then obtaining legal advice will be privileged. The purpose is not as readily established as in the previous scenario;

(c) in a non-litigation setting, care needs to be taken with analysing the precise purpose for each communication;

(d) advices given by the non-legal advisers will rarely be capable of attracting privilege for the reason that they will almost invariably have the character of discrete advices to the principal as such, with each advice, along with the lawyer’s advice, having a distinctive function and purpose in the principal’s decision making;

(e) if non-legal advices are provided to a client who then chooses to provide them to its lawyers, that does not clothe the original non-legal advices with privilege. They ordinarily will have been prepared for a non-legal purpose. But copies that might subsequently be created by a client and given to its lawyers may attract privilege;

(f) a client, in procuring a non-legal advice from a third party adviser has it in mind at the time that it requests that advice that it will also submit the non-legal advice to its lawyer, that may just demonstrate a multiplicity of purposes for the creation of the non-legal advice. But in such a scenario, the privileged purpose is unlikely to be the dominant purpose. Each communication and the reason for its creation needs to be carefully reviewed;

(g) and in elaboration of this last point, a client may have conducted itself so as to demonstrate that the procurement and use of the non-legal advice was not for its communication to its lawyer, but rather to principally advise the client on the very subject matter of that non-legal advice. Further, the less the client performs the role of a conduit of that non-legal advice through to its lawyer and the more it “filters, adapts or exercises independent judgment” in relation to that advice, the less likely the dominant purpose test is likely to have been satisfied.

Finally, the Court has the power to inspect the documents in question. The Court has a discretion whether to do so under s 133 of the Evidence Act and at common law. It should not be hesitant to exercise such a power (see Esso Australia Resources Limited v The Commissioner of Taxation (1999) 201 CLR 49 at [52] (Gleeson CJ, Gaudron and Gummow JJ)). As stated by Young J in AWB at [44(12)]:

The Court has power to examine documents over which legal professional privilege is claimed. Where there is a disputed claim, the High Court has said that the court should not be hesitant to exercise such a power: Esso; see also Grant v Downs at 689. If the power is exercised, the court will need to recognise that it does not have the benefit of submissions or evidence that might place the document in its proper context. The essential purpose of such an inspection is to determine whether, on its face, the nature and content of the document supports the claim for legal professional privilege.

Justice Sifris (as he then was) in Tabcorp Holdings Ltd v State of Victoria [2013] VSC 302 (Tabcorp), considered the discretion conferred by s 133 of the Evidence Act to inspect a document to determine a question under pt 3.10 of the Evidence Act concerning privileges and stated (citations omitted):

[97]With regard to the exercise of this discretion, however, a party claiming privilege cannot delegate to the Court the task of establishing that the privilege exists. Adequate materials must be put before the Court to allow the claim to be entertained. As Tobias JA said in Bailey v Director-General, Department of Land and Water Conservation:
…the power under s 133 to inspect documents cannot be used as a substitute for admissible evidence to support the various elements necessary to establish privilege so that if evidence in respect of any one of those elements is missing, the gap cannot be filled by an inspection of the documents.

[98]In the absence of adequate substantiating evidence, the utility of inspecting the documents is also questionable, as examination of the terms of the documents alone may not answer the question of whether of not they were brought into existence for the dominant purpose of providing or receiving legal advice.

His Honour’s observations concerning the discretion under s 133 of the Evidence Act are also apt in determining a disputed claim to a privilege at common law.

Submissions

The appellants submitted that Mr Kurc was the author or recipient of the documents and he has provided a focused and specific explanation of the claims for privilege in respect of each of them. The appellants submitted that the dominant purpose test is satisfied by the evidence of Mr Kurc. The appellants submitted that these documents were broadly communications between client and lawyer providing instructions and leading up to the advice that culminated in various transactions and other arrangements. They further submitted that the plaintiffs failed to identify any deficiency in Mr Kurc’s evidence to suggest that the purpose of communications between client and lawyer were non-legal, in a situation where Mr Lurie was a lawyer engaged under the retainer agreement. They submitted the task of the Court was not to determine whether privilege was made out for each of the alleged privileged documents, but to only determine the issues raised between the parties, which could be narrowed or isolated by the party seeking inspection.

The appellants submitted that Mr Goldman was involved in these communications for the purpose of providing instructions and obtaining information. They submitted Mr Kurc’s evidence showed that Mr Goldman was a facility for providing the information for the instructions for the dominant purpose of legal advice. They submitted that Mr Goldman was not being asked for non-legal advice.

The plaintiffs confirmed that the areas of dispute with respect to privilege were confined to two issues. First, the plaintiffs submitted that the descriptions in Mr Kurc’s affidavit concerning some of the documents do not get past the threshold of demonstrating that those documents disclose legal advice. The plaintiffs submitted it is unclear from the evidence whether these documents contain advice, or whether they are merely transaction-focused documents in which no privilege subsists. The plaintiffs submitted that while the Court has power to inspect the documents, this is not a substitute for evidence from the appellants. It submitted that where insufficient evidence has been adduced by the party claiming privilege in support of the privilege claims, the Court should reject the claims without inspecting the documents. The plaintiffs submitted that although the Judicial Registrar inspected all of the documents, in this appeal it is open to the Court to decline to inspect them if it forms the view that insufficient evidence has been adduced by the appellants. During oral submissions, senior counsel for the plaintiffs also submitted, however, that the Court has the benefit of being able to look at the documents.

Second, the plaintiffs submitted that the Court should be sceptical in considering whether privilege subsists for documents which include communications with Mr Goldman. They submitted that emails sent or received by Mr Goldman must be assessed by the Court with particular care. They submitted that accounting advice is not privileged. They submitted that they cannot tell whether the documents concern accounting advice and the easiest way of assessing this would be for the Court to look at the documents. The plaintiffs submitted that the Court should inspect the documents that concern Mr Goldman.

Analysis

The fact of each communication being relevantly confidential is not in dispute. The documents in dispute were only circulated between Kurc family members, including Mr Kurc, entities within the Kurc Group, including Riot Stores and Damiss Nominees, B2B Lawyers and the Company’s external accountant, Mr Goldman. There was also no dispute between the parties that the persons and companies identified in the final list of disputed documents were clients of B2B Lawyers.

The issue in dispute is whether Documents 5-27, 29-30, 33, 35-38, 40-43, 45, 50 and 58-59 contain communications made for the dominant purpose legal advice. This involves the determination of two issues:

(a) whether the evidence in support of the claims of privilege concerning Documents 16-19, 22-26, 33, 35-38 and 50 is sufficient and, as a result, whether the appellants have discharged their evidentiary onus; and

(b) whether the communications involving the Company’s external accountant, Mr Goldman, in Documents 5-22, 24-27, 29-30, 35, 37, 40-43, 45 and 58-59 were made for the dominant purpose of legal advice.

Sufficiency of evidence

The evidence in support of the claims of privilege concerning Documents 16-19, 22-26, 33, 35-38 and 50 is sufficient. I did not inspect these documents in determining this issue. The evidence sufficiently establishes that the communications were for the dominant purpose of legal advice upon the restructure of the Kurc family business, including its implementation. The restructure of the Kurc family business included many aspects, including as follows: general advice upon the restructure; the sale and transfer of the Company’s internet business to Riot Stores (including licencing and intellectual property arrangements, assignments of leases and consignment and supply agreements); loan arrangements between various entities in the Kurc Group, including involving the Company, Riot Stores and Damiss Nominees (including various securities and charges); setting up new trusts; “structuring of finance and assets” and managing and refinancing the debt with the ANZ Bank (the Kurc restructure). I refer to the evidence concerning the context in which Mr Kurc sought legal advice from B2B Lawyers set out earlier in this judgment at paragraphs 14 to 31. Mr Kurc also gave evidence concerning the purpose of the communications in Documents 16-19, 22-26, 33, 35-38 (insofar as 38 is redacted) and 50 (insofar as it is redacted) in his affidavit affirmed 1 August 2022 at paragraphs 41-44, 47-51, 58, 60-63 and 75 respectively and also in the document titled “Consolidated List of Privilege Documents” which was prepared for this proceeding and exhibited as “MK-1” to Mr Kurc’s affidavit affirmed 1 August 2022. It is sufficiently established by this evidence that the dominant purpose of the communications concerned obtaining legal advice upon the Kurc restructure, including its implementation. There was no dispute between the parties that each of the persons and entities identified in the final list of disputed documents were clients of B2B Lawyers for the relevant communications. In addition, I now address each of Documents 16-19, 22-26, 33, 35-38 and 50 having regard to the specific evidence concerning each of these communications. As I have already stated, I did not inspect these documents to determine whether the evidence in support of the claims of privilege is sufficient.

Document 16: The plaintiffs submitted that the evidence does not establish that the document was created for the dominant purpose of legal advice. The evidence establishes that Document 16 is an email from Mr Lurie to Mr Kurc and Mr Goldman regarding the registration of various securities over the Company and containing an update from Mr Lurie as to the status of the loan documents and sale documents being drafted by B2B Lawyers. Matters concerning “Security” were the subject of the retainer agreement, as seen in paragraph 3 of the description of the work in the retainer agreement. The specific evidence concerning Document 16 in the document titled “Consolidated List of Privileged Documents” also establishes that it concerned legal advice.

Document 17: The plaintiffs submitted that “drafts” are not privileged and that from the description it does not look like it was created for the dominant purpose of legal advice. The evidence establishes that Document 17 contains the same correspondence as Document 15 but also attaches copies of the drafted loan deed, guarantees and general security charges. The plaintiffs do not impugn the sufficiency of the evidence concerning Document 15. The evidence establishes that B2B Lawyers provided draft documents to Mr Kurc. Matters concerning the “loan deed, guarantees and general security charges” were the subject of the retainer agreement, as seen at paragraph 3 of the description of the work in the retainer agreement. The specific evidence concerning Document 17 in the document titled “Consolidated List of Privileged Documents” also establishes that it concerned legal advice.

Document 18: The plaintiffs submitted that the provision of particulars is not for the dominant purpose of legal advice. The evidence establishes that Document 18 is the same as Document 16 but also contains an additional email from Ms Chew to Mr Kurc seeking “instructions” from him for particulars for a contract which was to record the intended purchase of the internet business from the Company by Riot Stores. As a result, I refer to my reasons in relation to Document 16. Matters concerning the “purchase of the internet business” were the subject of the retainer agreement, as seen at paragraph 2 of the description of the work in the retainer agreement which concerns the sale of business. The specific evidence concerning Document 18 in the document titled “Consolidated List of Privileged Documents” also establishes that it concerned providing instructions for the purposes of obtaining legal advice.

Fourteenth, the interests of the Company, together with each of the persons and entities identified as clients in the final list of disputed documents were inextricably linked in obtaining advice upon and the implementation of the Kurc restructure. This is because all of the important transactions the subject of the Kurc restructure involved the Company and others identified in the final list of disputed documents, including, most importantly, Riot Stores and Damiss Nominees. I refer to my above reasons at paragraph 152. In addition, during the relevant retainer of B2B Lawyers until the appointment of the liquidators to the Company (i.e. late March 2020 to 19 October 2020), Mr Kurc was largely responsible for managing the Company and also for looking after the Kurc family’s business interests, which included Riot Stores and Damiss Nominees.

Finally, I find that the holders of the joint privilege are the Company and each of the persons and entities identified in the final list of disputed documents as clients for the relevant communications in the documents (excluding Documents 1, 4, 32, 34, 44, 57 and 65 for which the appellants abandoned their objection to the inspection of these documents and the communications identified in this judgment at paragraph 112) except for the communications in Document 64. This is because I have already found that the Company was the holder of the joint privilege; and there was no dispute between the parties that each of the persons and entities identified in the final list of disputed documents were clients for the relevant communications in the documents.

In the event that I am incorrect and the Company did not join in communicating with B2B Lawyers to obtain legal advice, then I am of the view that a joint privilege nonetheless arose as Mr Kurc, in his capacity as a director of the Company, was in a formal legal relationship with the Company, and the communications the subject of the documents (except for Document 64) concern matters in which Mr Kurc, in his capacity as a director of the Company, and the Company shared an interest, namely the Kurc restructure. Mr Kurc was the directing mind of the Company as he was the person who had been largely responsible for managing the Company since 2003. Mr Kurc was the person within the Kurc family who communicated with B2B Lawyers. Mr Kurc, in his capacity as a director of the Company, and the Company shared an interest, namely the Kurc restructure. The Kurc restructure concerned, inter alia:

(a) the sale of the Company’s internet business to Riot Stores, including its terms and the documentation of that sale;

(b) the consignment of stock between the Company and Riot Stores, including the indemnities to be provided by it to Riot Stores and the documentation of the consignment agreement;

(c) the loan to the Company by Damiss Nominees, including the rate of interest to be charged and the documentation of the loan;

(d) the general security charge provided by the Company to Damiss Nominees; and

(e) other matters concerning the Company.

As a director of the Company, Mr Kurc owed duties to the Company, including fiduciary duties. He could not keep confidential from the Company how he intended to restructure the family business pursuant to the Kurc restructure. This is because it included the transactions I have just identified that involved the Company and substantially affected its interests.

I otherwise refer to the reasons I have given earlier in this judgment at paragraph 160 concerning the identification of the holders of the privilege.

IF THE DOCUMENTS CONTAIN COMMUNICATIONS MADE FOR THE DOMINANT PURPOSE OF LEGAL ADVICE AND THE COMPANY DOES NOT HOLD PRIVILEGE JOINTLY IN ANY OF THE COMMUNICATIONS, DOES THE CRIME/FRAUD EXCEPTION APPLY TO THOSE COMMUNICATIONS?

This issue only concerns Document 64. This is because the plaintiffs only relied upon this ground as an alternative to the claim of joint privilege and I have found that the Company holds joint privilege in the communications in the documents (excluding Documents 1, 4, 32, 34, 44, 57 and 65 for which the appellants abandoned their objection to the inspection of these documents and the communications identified in this judgment at paragraph 112) except for Document 64. Document 64 was not produced by Mr Goldman. It was produced by Mr Kurc and Damiss Nominees. As a result, the Evidence Act (ss 125 and 131A) applies for the reasons I have referred to earlier at paragraph 37. Section 125 of the Evidence Act relevantly provides:

125 Loss of client legal privilege—misconduct

(1) This Division does not prevent the adducing of evidence of—
(a)a communication made or the contents of a document prepared by a client or lawyer (or both), or a party who is not represented in the proceeding by a lawyer, in furtherance of the commission of a fraud or an offence or the commission of an act that renders a person liable to a civil penalty; or
(b)a communication or the contents of a document that the client or lawyer (or both), or the party, knew or ought reasonably to have known was made or prepared in furtherance of a deliberate abuse of a power.

(2) For the purposes of this section, if the commission of the fraud, offence or act, or the abuse of power, is a fact in issue and there are reasonable grounds for finding that—
(a)the fraud, offence or act, or the abuse of power, was committed; and
(b)a communication was made or document prepared in furtherance of the commission of the fraud, offence or act or the abuse of power—

the court may find that the communication was so made or the document so prepared.
…

The plaintiffs submitted that Mr Kurc manifested an intention to defeat, delay, hinder and/or defraud the creditors of the Company. The plaintiffs submitted that the restructuring transactions allowed for Mr Kurc and his related entities to be paid in full at the expense of external creditors. They submitted that, as a result, the communications in the documents are not privileged as the communications were made in furtherance of the commission of this fraud.

There was a dispute between the parties as to whether the plaintiffs were required to establish the matters in s 125(1) of the Evidence Act based upon reasonable grounds or to a prima facie standard (plaintiffs’ position) or balance of probabilities (Mr Lurie’s and ultimately the appellants’ position). I do not consider it necessary to resolve this dispute as no matter what evidentiary standard is applied there are no grounds for any finding that Document 64 contains communications in furtherance of the commission of the alleged fraud. I have read Document 64. Document 64 contains communications between Mr Kurc and B2B Lawyers in November 2020 concerning an upcoming meeting between Mr Giasoumi, as liquidator of the Company, Mr Kurc, as a director of the Company, and Mr Lurie and the preparation for that meeting, including responses to be made to Mr Giasoumi to various requests made by him for information. This was after the transactions took place that were relied upon by the plaintiffs as manifesting an intention to defeat, delay, hinder and/ or defraud the creditors of the Company. It was also after the Company went into liquidation.

There are no grounds for a finding that Document 64 contains communications made in furtherance of the commission of the alleged fraud.

CONCLUSION

In conclusion:

(a) the communications in Documents 5-27, 29-30, 33, 35-38, 40-43, 45, 50 and 58-59 were for the dominant purpose of legal advice except for the communications identified in this judgment at paragraph 112. There was no dispute that the other documents (excluding Documents 1, 4, 32, 34, 44, 57 and 65 for which the appellants abandoned their objection to the inspection of these documents) were made for the dominant purpose of legal advice;

(b) privilege in the communications is jointly held with the Company (excluding Documents 1, 4, 32, 34, 44, 57 and 65 for which the appellants abandoned their objection to the inspection of these documents and the communications identified in this judgment at paragraph 112) except for the communications in Document 64;

(c) in relation to the communications in Document 64 (i.e. being the only communications not subject of the joint privilege with the Company), the crime/fraud exception to the privilege does not apply.

As a result, the plaintiffs are entitled to uplift, inspect and copy the documents in the document bundle except for Document 64.

I will hear from the parties on the precise form of the orders, including costs.

ANNEXURE A

Final list of disputed documents

Document details	Pages	Author and circumstances of creation of document	Client/Clients to whom legal advice was provided	Is Privilege disputed because evidentiary onus not met?	Is Privilege dispute because Goldman is a party?	Does the Plaintiffs claim joint privilege	Does the Plaintiffs claim crime/fraud
1.	~~Email chain dated 31 March 2020~~ ~~Last email timed at 6:36pm~~	1-2	~~Email correspondence between Michael Kurc, Joel Goldman and David Lurie (B2B Lawyers) regarding legal advice~~	~~Damiss Nominees Pty Ltd~~ ~~Riot Stores Pty Ltd~~	NA	NA	NA	N/A
2.	Email chain dated 1 April 2020 with attachment Last email timed at 6:36pm	3-7	Email correspondence between Michael Kurc and David Lurie providing instructions to enable the provision of legal advice	Damiss Nominees Pty Ltd Riot Stores Pty Ltd	Yes	Yes
3.	Email chain dated 1 April 2020 Last email timed at 3:57pm	8-9	Email correspondence between Michael Kurc and David Lurie (B2B Lawyers), providing instructions to enable the provision of legal advice	Damiss Nominees Pty Ltd	Yes	Yes
4.	~~Email at 4:07pm on 1 April 2020 with attachment~~	10-15	~~Email correspondence between Rachel Chew, Michael Kurc and Joel Goldman regarding legal advice~~	~~Damiss Nominees Pty Ltd~~ ~~Riot Stores Pty Ltd~~	NA	NA	NA	N/A
5.	Email chain dated 2 April 2020 Last email timed at 5:41pm	16-28	Email correspondence between Michael Kurc, David Lurie, Joel Goldman and Yun Ling regarding legal advice	Damiss Nominees Pty Ltd Riot Stores Pty Ltd	Yes	Yes	Yes
6.	Email chain dated 2 April 2020 Last email timed at 12:28pm	29-31	Email correspondence between Michael Kurc, David Lurie and Joel Goldman providing instructions to enable the provision of legal advice	Riot Stores Pty Ltd	Yes	Yes	Yes
7.	Email chain dated 2 April 2020 Last email timed at 1:20pm	32-36	Email correspondence between Michael Kurc, David Lurie and Joel Goldman regarding legal advice	Damiss Nominees Pty Ltd Riot Stores Pty Ltd	Yes	Yes	Yes
8.	Email chain dated 2 April 2020 Last email timed at 1:23pm	37-38	Email correspondence between Michael Kurc, David Lurie and Joel Goldman regarding legal advice	Riot Stores Pty Ltd	Yes	Yes	Yes
9.	Email chain dated 2 April 2020 Last email timed at 2:39pm	39-44	Email correspondence between Michael Kurc, David Lurie and Joel Goldman regarding legal advice	Damiss Nominees Pty Ltd Riot Stores Pty Ltd	Yes	Yes	Yes
10.	Email chain dated 3 April 2020 Last email timed at 9:44am	45-57	Email correspondence between Michael Kurc, David Lurie, Joel Goldman and Yun Ling regarding legal advice and providing instructions	Damiss Nominees Pty Ltd Riot Stores Pty Ltd	Yes	Yes	Yes
11.	Email chain dated 3 April 2020 Last email timed at 10:51am	58-71	Email correspondence between Michael Kurc, David Lurie, Joel Goldman and Yun Ling regarding legal advice	Damiss Nominees Pty Ltd Riot Stores Pty Ltd	Yes	Yes	Yes
12.	Email chain dated 3 April 2020 Last email timed at 11:07am	72-86	Email correspondence between Michael Kurc, David Lurie, Joel Goldman and Yun Ling regarding legal advice	Damiss Nominees Pty Ltd Riot Stores Pty Ltd	Yes	Yes	Yes
13.	Email chain dated 3 April 2020 Last email timed at 12:06pm	87-102	Email correspondence between Michael Kurc, David Lurie, Joel Goldman and Yun Ling regarding legal advice and providing instructions	Damiss Nominees Pty Ltd Riot Stores Pty Ltd	Yes	Yes	Yes
14.	Email chain dated 3 April 2020 Last email timed at 3:21pm	103-275	Email correspondence between Yun Ling (B2B Lawyers) and Michael Kurc and Joel Goldman regarding legal advice	Damiss Nominees Pty Ltd Riot Stores Pty Ltd	Yes	Yes	Yes
15.	Email chain dated 3 April 2020 with attachments Last email timed at 4:19pm	276-453	Email correspondence between Michael Kurc, Joel Goldman, Yun Ling (B2B Lawyers) and David Lurie in connection with instructions received and legal advice provided	Damiss Nominees Pty Ltd Riot Stores Pty Ltd	Yes	Yes	Yes
16.	Email chain dated 3 April 2020 Last email timed at 4:49pm	454	Email correspondence between David Lurie, Michael Kurc with Joel Goldman regarding legal advice	Damiss Nominees Pty Ltd Riot Stores Pty Ltd	Yes	Yes	Yes	Yes
17.	Email chain dated 3 April 2020 with attachments Last email timed at 8:35pm	455-567	Email correspondence between, Michael Kurc, David Lurie, Joel Goldman and Yun Ling regarding legal advice	Damiss Nominees Pty Ltd Riot Stores Pty Ltd	Yes	Yes	Yes	Yes
18.	Email chain dated correspondence between 3 April 2020 Last email timed at 9:07pm	568-569	Email correspondence between Yun Ling, David Lurie, Rachel Chew, Michael Kurc and Joel Goldman providing further instructions for the purposes of obtaining legal advice	Damiss Nominees Pty Ltd Riot Stores Pty Ltd	Yes	Yes	Yes	Yes
19.	Email at 2:47pm on 4 April 2020 with attachments	570-625	Email from Rachel Chew to Michael Kurc and Joel Goldman copying providing further instructions for the purposes of obtaining legal advice	Riot Stores Pty Ltd	Yes	Yes	Yes	Yes
20.	Email chain dated 5 April 2020 Last email timed at 8:39pm	626-650	Email correspondence between Michael Kurc, Joel Goldman, David Lurie and Yun Ling regarding legal advice	Damiss Nominees Pty Ltd Riot Stores Pty Ltd	Yes	Yes	Yes
21.	Email chain dated 5 April 2020 Last email timed at 9:52pm	651-671	Email correspondence between Michael Kurc, David Lurie, Joel Goldman and Yun Ling regarding legal advice and providing instructions	Damiss Nominees Pty Ltd Riot Stores Pty Ltd	Yes	Yes	Yes
22.	Email chain dated 6 April 2020 Last email timed at 9:32am	672-673	Email correspondence between Michael Kurc, Joel Goldman and David Lurie regarding the provision of instructions to obtain legal advice	Riot Stores Pty Ltd	Yes	Yes	Yes	Yes
23.	Email chain dated 6 April 2020 Last email timed at 11:16am	674-675	Email correspondence between Michael Kurc and David Lurie providing instructions and legal advice	Riot Stores Pty Ltd	Yes	Yes	Yes
24.	Email correspondence dated 6 April 2020 at 11:23am	676	Email correspondence between Joel Goldman, David Lurie and Michael Kurc providing instructions	Riot Stores Pty Ltd	Yes	Yes	Yes	Yes
25.	Email chain dated 6 April 2020 with attachments Last email timed at 6:03pm	677-974	Email correspondence between Michael Kurc, David Lurie, Yun Ling and Joel Goldman regarding legal advice	Damiss Nominees Pty Ltd Riot Stores Pty Ltd	Yes	Yes	Yes	Yes
26.	Email at 5:03pm on 7 April 2020 with attachments	975-1149	Email from Rachel Chew to Michael Kurc and Joel Goldman regarding legal advice	Riot Stores Pty Ltd	Yes	Yes	Yes	Yes
27.	Email chain dated 8 April 2020 and attachment Last email timed at 2:55pm	1150-1155	Email correspondence between Rachel Chew, Yun Ling, Michael Kurc and Joel Goldman regarding legal advice	Riot Stores Pty Ltd	Yes	Yes	Yes
28.	Email chain dated 8 April 2020 Last email timed at 2:56pm	1156	Email correspondence between Michael Kurc and David Lurie regarding legal advice	Riot Stores Pty Ltd	Yes	Yes
29.	Email chain dated 8 April 2020 with attachment Last email timed at 2:56pm	1157-1160	Email correspondence between Rachel Chew, Yun Ling, Michael Kurc and Joel Goldman regarding legal advice	Riot Stores Pty Ltd	Yes	Yes	Yes
30.	Email chain dated 8 April 2020 Last email timed at 3:21pm	1161-1165	Email correspondence between Michael Kurc, David Lurie, Rachel Chew, Yun Ling and Joel Goldman providing instructions and receiving legal advice	Damiss Nominees Pty Ltd Riot Stores Pty Ltd	Yes	Yes	Yes
31.	Email chain dated 8 April 2020 Last email timed at 3:46pm	1166	Email correspondence between David Lurie and Michael Kurc regarding legal advice	Damiss Nominees Pty Ltd Riot Stores Pty Ltd	Yes	Yes
32.	~~Email dated 14 April 2020 at 1:06pm and attachment~~	1167-1176	~~Email from Yun Ling (B2B Lawyers) to Michael Kurc regarding cost disclosure~~	~~Damiss Nominees Pty Ltd~~ ~~Riot Stores Pty Ltd~~	NA	NA	NA	N/A
33.	Email chain dated 15 April 2020 Last email timed at 12:49pm	1177-1180	Email correspondence between Michael Kurc, David Lurie and Yun Ling providing instructions for the provision of legal advice	Damiss Nominees Pty Ltd Riot Stores Pty Ltd	Yes	Yes	Yes
34.	~~Email chain dated 17 April 2020~~ ~~Last email timed at 5:32pm~~	1181	~~Email correspondence between Michael Kurc and David Lurie providing instructions and legal advice~~	~~Damiss Nominees Pty Ltd~~ ~~Riot Stores Pty Ltd~~	NA	NA	NA	N/A
35.	Email at 2:25pm on 21 April 2020 with attachments	1182-1260	Email from Yun Ling to Michael Kurc and Joel Goldman regarding legal advice	Riot Stores Pty Ltd	Yes	Yes	Yes	Yes
36.	Email chain dated 21 April 2020 Last email timed at 4:16pm	1261-1262	Email correspondence between Yun Ling and Michael Kurc regarding legal advice	Riot Stores Pty Ltd	Yes	Yes	Yes
37.	Email at 12:28pm on 28 April 2020 with attachment	1263-1288	Email correspondence between Rachel Chew (B2B Lawyers), Michael Kurc and Joel Goldman regarding legal advice	Riot Stores Pty Ltd	Yes	Yes	Yes	Yes
38.	Email chain dated 11 May 2020 Last email timed at 2:50pm	1289-1306	Email correspondence between Michael Kurc, David Lurie, Gordana Milunovic (B2B Lawyers) providing legal advice	Riot Stores Pty Ltd	Yes	Yes	Yes
39.	Email chain dated 20 May 2020 Last email timed at 10:07am	1307-1340	Email correspondence between Michael Kurc, Yun Ling, David Lurie and Rachel Chew regarding the provision of legal advice	Damiss Nominees Pty Ltd Riot Stores Pty Ltd Dajomis Pty Ltd Lea and Solomon Kurc	Yes	Yes
40.	Email chain dated 20 May 2020 Last email timed at 11:02am	1341-1405	Email correspondence between Michael Kurc, Joel Goldman, Yun Ling, Rachel Chew and David Lurie requesting and providing information with legal advisors	Riot Stores Pty Ltd	Yes	Yes	Yes
41.	Email chain dated 21 May 2020 Last email timed at 2:06pm	1406-1409	Email correspondence between Michael Kurc, David Lurie and Joel Goldman regarding legal advice and providing instructions	Riot Stores Pty Ltd	Yes	Yes	Yes
42.	Email chain dated 21 May 2020 Last email timed at 3:57pm	1410-1413	Email correspondence between Michael Kurc, David Lurie, Joel Goldman and Yun Ling providing instructions and legal advice	Riot Stores Pty Ltd	Yes	Yes	Yes
43.	Email chain dated 21 May 2020 Last email timed at 4:01pm	1414-1419	Email correspondence between Michael Kurc, David Lurie, Joel Goldman and Yun Ling regarding legal advice	Riot Stores Pty Ltd	Yes	Yes	Yes
44.	~~Email at 4:25 pm on 22 May 2020~~	1420	~~Email from Michael Kurc to David Lurie providing further instructions for the purposes of obtaining legal advice~~	~~Damiss Nominees Pty Ltd~~ ~~Riot Stores Pty Ltd~~	NA	NA	NA	N/A
45.	Email chain dated 26 May 2020 with attachments Last email timed at 5:12pm	1421-1578	Email correspondence between Michael Kurc, David Lurie, Joel Goldman and Yun Ling providing further instructions for the purposes of obtaining legal advice	Riot Stores Pty Ltd	Yes	Yes	Yes
46.	Email chain dated 2 June 2020 Last email timed at 7:56pm	1579-1580	Email correspondence between Michael Kurc and David Lurie providing instructions and legal advice	Damiss Nominees Pty Ltd	Yes	Yes
47.	Email chain dated 29 June 2020 Last email timed at 1:41pm	1581-1582	Email correspondence between Michael Kurc and David Lurie (B2B Lawyers) regarding the provision of instructions to obtain legal advice	Damiss Nominees Pty Ltd	Yes	Yes
48.	Email chain dated 29 June 2020 Last email timed at 4:57pm	1583-1590	Email correspondence between Michael Kurc, David Lurie and Yun Ling containing legal advice and instructions for obtaining further legal advice	Riot Stores Pty Ltd	Yes	Yes
49.	Email at 12:12pm on 2 July 2020	1591-1592	Email correspondence between Michael Kurc David	Riot Stores Pty Ltd	Yes	Yes
50.	Email chain dated 4 July 2020 Last email timed at 10:13am	1593-1598	Email correspondence between Michael Kurc, Yun Ling, Rachel Chew and David Lurie providing instructions for the obtaining of legal advice	Riot Stores Pty Ltd	Yes	Yes	Yes
51.	Email chain dated 6 July 2020 with attachments Last email timed at 2:31pm	1599-1607	Email correspondence between Michael Kurc and Yun Ling regarding legal advice	Riot Stores Pty Ltd	Yes	Yes
52.	Email chain dated 6 July 2020 Last email timed at 3:03pm	1608-1611	Email providing instructions and legal advice to the parties listed	Riot Stores Pty Ltd	Yes	Yes
53.	Email chain dated 7 July 2020 Last email timed at 5:21pm	1612-1622	Email correspondence between Michael Kurc, David Lurie and Yun Ling containing legal advice and instructions for obtaining further legal advice	Riot Stores Pty Ltd	Yes	Yes
54.	Email chain dated 8 July 2020 with attachments Last email timed at 4:31pm	1623-1689	Email correspondence between Michael Kurc and Yun Ling regarding legal advice	Riot Stores Pty Ltd	Yes	Yes
55.	Email chain dated 8 July 2020 Last email timed at 8:18pm	1690-1692	Email correspondence between Michael Kurc and Yun Ling regarding legal advice	Riot Stores Pty Ltd	Yes	Yes
56.	Email chain dated 16 July 2020 Last email timed at 10:35am	1693-1697	Email correspondence between Yun Ling, Michael Kurc and David Lurie regarding the provision of legal advice	Damiss Nominees Pty Ltd Riot Stores Pty Ltd	Yes	Yes
57.	~~Email chain dated 21 July 2020~~ ~~Last email timed at 5:50pm~~	1698-1699	~~Email correspondence between Michael Kurc, Joel Goldman and David Lurie in connection with instructions received and legal advice provided~~	~~Damiss Nominees Pty Ltd~~ ~~Riot Stores Pty Ltd~~	NA	NA	NA	N/A
58.	Email at 3:01 pm on 27 July 2020 Last email timed at 3:01pm	1700	Email correspondence between Michael Kurc, Joel Goldman, David Lurie and Yun Ling providing instructions to enable the provision of legal advice	Riot Stores Pty Ltd	Yes	Yes	Yes
59.	Email chain dated 30 July 2020 with attachments Last email timed at 3:45pm	1701-1704	Email correspondence between Michael Kurc, Joel Goldman, David Lurie and Yun Ling providing instructions to enable the provision of legal advice	Riot Stores Pty Ltd	Yes	Yes	Yes
60.	Email chain dated 19 August 2020 with attachment Last email timed at 12:22pm	1705-1707	Email correspondence between Michael Kurc and Yun Ling regarding legal advice	Damiss Nominees Pty Ltd Dajomis Pty Ltd Lea and Solomon Kurc	Yes	Yes
61.	Email chain dated 19 August 2020 Last email timed at 4:31pm	1708-1710	Email correspondence between Michael Kurc and Yun Ling regarding legal advice	Damiss Nominees Pty Ltd Dajomis Pty Ltd Lea and Solomon Kurc	Yes	Yes
62.	Email chain dated 19 August 2020 Last email timed at 4:38pm	1711-1713	Email correspondence between Michael Kurc, Yun Ling and David Lurie regarding legal advice	Damiss Nominees Pty Ltd Dajomis Pty Ltd Lea and Solomon Kurc	Yes	Yes
63.	Email chain dated 31 August 2020 Last email timed at 3:23pm	1714-1719	Email correspondence between Yun Ling, Michael Kurc and David Lurie regarding the provision of legal advice	Damiss Nominees Pty Ltd Riot Stores Pty Ltd	Yes	Yes
64.	Email chain dated 19 November 2020 Last email timed at 2:05pm	1720-1723	Email correspondence between Lucienne Galea (B2B Lawyers) and Michael Kurc containing instructions and legal advice	Damiss Nominees Pty Ltd Riot Stores Pty Ltd Michael Kurc	Yes	Yes
65.	~~Email chain dated 22 February 2021~~ ~~Last email timed at 2:00pm~~	~~1724-1728~~	~~Email correspondence between Lucienne Galea, Michael Kurc, David Lurie and Yun Ling containing legal advice and attaching draft documents~~	~~Dajomis Pty Ltd~~ ~~Kurc Services Pty Ltd~~ ~~Lea and Solomon Kurc~~	~~Yes~~	~~Yes~~
66.	Draft Deed of Assignment and Novation	1729-1751	B2B Lawyers for consideration of clients	Damiss Nominees Pty Ltd Dajomis Pty Ltd Kurc Services Pty Ltd Lea and Solomon Kurc	Yes	Yes
67.	Draft Loan Deed	1752-1763	B2B Lawyers for consideration of clients	Damiss Nominees Pty Ltd Riot Stores Pty Ltd	Yes	Yes

No.	Description
1.	Setting up a new IP structure and Unit Holders
a.	Establishing the Riot Stores Unit Trust
b.	Establishing the MK Riot Trust (discretionary trust) with adjustments for limitation of any capital distributions to spouses and partners
c.	Establishing the DK Riot Trust (discretionary trust) with adjustments for limitation of any capital distributions to spouses and partners
d.	Establishing the JK Riot Trust (discretionary trust) with adjustments for limitation of any capital distributions to spouses and partners
e.	Change of trustees for each discretionary trust
2.	Sale of Business
a.	Sale of Business Agreement
b.	General Security Charge Agreement including registration of security interest
c.	Disbursement Authority
d.	Assignment of Lease
3.	Loan and Security
a.	Loan Deed between Damiss Nominees Pty Ltd as lender and KFT as borrower
b.	Loan Deed between Damiss Nominees Pty Ltd as lender and Riot Stores Pty Ltd as trustee for the Riot Stores Unit Trust as borrower
c.	Deed of Guarantee and Indemnity between Riot Stores Pty Ltd as guarantor and Damiss Nominees Pty Ltd as secured party
d.	General Security Charge Agreement in favour of Damiss Nominees Pty Ltd against Riot Stores Pty Ltd including registration of security interest
e.	General Security Charge Agreement in favour of Damiss Nominees Pty Ltd against KFT including registration of security interest
f.	General Security Charge Agreement in favour of Riot Stores Pty Ltd as trustee for the Riot Stores Unit Trust against KFT including registration of security interest
4.	Disbursements
a.	Stamp Duty for four trusts $800 ($200 each)
b.	Shelf Companies to act as trustees for the 3 discretionary trusts $2100 (approx. $700 each)
c.	Registration of 3 security interests on the PPSR: $75 ($25 each)
d.	PPSR and company searches: approx. $400

[2024] VSC 250

17 May 2024