Sargent v Sargent

[2023] NSWSC 1063

Supreme Court

New South Wales

Medium Neutral Citation:

Sargent v Sargent [2023] NSWSC 1063

Hearing dates:

31 August 2023

Date of orders:

31 August 2023

Decision date:

05 September 2023

Jurisdiction:

Equity

Before:

Kunc J

Decision:

Document A not privileged and access granted; Document B privileged and access denied

Catchwords:

EVIDENCE — Privileges — Client legal privilege — Loss of — “intentions…of a client or party who has died” — Evidence Act 1995 (NSW), s 121(1)

Legislation Cited:

Evidence Act 1995 (NSW)

Cases Cited:

d’Apice v Gutkovich - Estate of Abraham (No 1) [2010] NSWSC 1336

Singtel Optus Pty Ltd v Weston (2011) 81 NSWLR 526; [2011] NSWSC 108

Category:

Procedural rulings

Parties:

Darren Sargent (plaintiff)
Craig Sargent (defendant)

Representation:

Counsel: T Rollo (plaintiff)
D Liebhold/N Condylis (defendant)

Solicitors: Carroll & O’Dea Lawyers (plaintiff)
Walsh & Blair Lawyers (defendant)

File Number(s):

2022/199733

Publication restriction:

Nil

JUDGMENT

Summary

1. During the course of hearing a notice of motion which was ultimately settled by consent, the Court also dealt with claims of client legal privilege raised by the defendant to resist access being granted to the plaintiff to two documents produced by the defendant in answer to a notice to produce issued by the plaintiff (referred to as Documents A and B). The Court rejected the claim for privilege in Document A and granted access to the plaintiff. As to Document B, the privilege claim was upheld and access refused. These are the reasons for those rulings.

2. Without disrespect, I will refer to the parties by their given names. Mr T Rollo of Counsel appeared for the plaintiff, Darren. Mr D Liebhold of Counsel appeared with Mr N Condylis of Counsel for the defendant, Craig. The argument for Craig on the privilege claim was conducted by Mr Condylis.

The parties and the litigation

3. Darren and Craig are brothers. Their late parents were Barbara and John. John died in 2016 and Craig and Darren are the surviving executors of his estate. Barbara died in in 2021 and Craig is the executor of Barbara’s estate.

4. These proceedings relate to the ownership of a substantial group of businesses known as the “Sargent Group”. Darren sues Craig in the latter’s capacity as the executor of Barbara’s estate. His claims include:

1. That John and Barbara came to what is pleaded as the “Mutual Wills Agreement”, which Darren alleges Barbara breached, thereby causing damage to Darren which it is unnecessary for me to recite here;

2. A proprietary estoppel claim alleging that Barbara represented to Darren that the businesses comprising the Sargent Group would be divided equally between Darren and Craig (which has not occurred), in reliance on which Darren continued to work in the businesses of the Sargent Group for little or no salary;

3. An alternative claim by Darren for family provision from Barbara’s estate if the preceding claims are unsuccessful; and

4. A further and alternative claim in estoppel arising from representations that Barbara made to John about how she would dispose of her interests in the Sargent…