Silberstein v The Owners - Strata Plan No. 55468 - [2022] NSWCATCD 114

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Silberstein v The Owners - Strata Plan No. 55468 [2022] NSWCATCD 114
Hearing dates: 28 June 2022
Date of orders: 15 July 2022
Decision date: 15 July 2022
Jurisdiction: Consumer and Commercial Division
Before: G Sarginson, Senior Member
Decision:
(1) The applicant is to file with the Tribunal and serve on the respondents, by person or by post, Amended Points of Claim by 14 days from the date of this decision.
(2) Unless the Tribunal otherwise orders at the hearing of the substantive proceedings, the documents in this decision found to be the subject of legal professional privilege or otherwise not pressed by the applicant may not be adduced as evidence.
(3) The application for interlocutory orders is otherwise dismissed.
(4) The matter is to be listed for a directions hearing at a date to be allocated by the Tribunal Registry before a Principal Member or Senior Member.

Catchwords:
CIVIL PROCEDURE — Legal professional privilege — Waiver — Whether disclosure of documents constitutes waiver
CIVIL PROCEDURE — Pleadings — Whether should be struck out or dismissed in whole or part
CIVIL PROCEDURE — Legal professional privilege — Use of disclosed documents — Whether injunctive orders should be made

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW)
Evidence Act 1995 (NSW)
Strata Schemes Management Act 2015 (NSW)

Cases Cited:
Aardwolf Industries LLC v Tayeh [2020] NSWCA 301
Coscuez International Pty Ltd v The Owners-Strata Plan No 46433 [2022] NSWCATAP 147
EB 9 & 10 Pty Ltd v The Owners SP 934 [2018] NSWSC 464
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2013) 250 CLR 303; [2013] HCA 46
Gillies v Downer EDI Ltd [2010] NSWSC 1323
GR Capital Group Pty Ltd v Xinfeng Australia International Investment Pty Ltd [2020] NSWCA 266).
Hastie Group Pty Ltd (in liq) v Moore [2016] NSWCA 305
Kennedy v Wallace (2004) 142 FCR 185; [2004] FCAFC 337
LMA Contractors Limited v Changizi [2017] NSWCATAP 145
Mead v Mead (2007) 235 ALR 197; [2007] HCA 25
State of New South Wales v Jackson [2007] NSWCA 279
Steak Plains Olive Farm Pty Limited v Australian Executor Trustees Limited [2015] NSWSC 289
Sunland Group Limited v Gold Coast City Council [2021] FCA 1473
The Owners-Strata Plan No 2000 v Bylinska [2019] NSWCATAP 116
The Owners-Strata Plan No 80412 v Vickery [2021] NSWCATAP 98
Walsh v The Owners Strata Plan No 10349 [2017] NSWCATAP 230
Westpac Banking Corp v 789TEN Pty Ltd (2005) 55 ACSR 519; [2005] NSWCA 321

Texts Cited:
Nil

Category: Procedural rulings
Parties: Jessica Silberstein (Applicant)
The Owners - Strata Plan No. 55468 (First Respondent)
Michael Adamo (Second Respondent)
Peter Michael Hans Engelbert (Third Respondent)
William Paul O’Brien (Fourth Respondent)
Terence Matthew Gagen (Fifth Respondent)
Representation:
Counsel:
R Clark (Applicant)
B Ilkovski (Respondents)
Solicitors:
Silberstein & Associates (Applicant)
Gilchrist Connell (Respondents)

File Number(s): SC 22/05083
Publication restriction: Nil

REASONS FOR DECISION

This is an…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2022] NSWCATCD 114
Decision Date: 15 July 2022

CaseChat Overview and Summary

Silberstein, a strata lot owner, filed an application against the Owners of Strata Plan No. 55468, seeking damages for alleged breaches of contract and negligence, among other claims. The dispute centred around the alleged misuse of strata levies and other governance issues within the strata scheme. The matter was heard by the Civil and Administrative Tribunal of New South Wales.

The court had to decide whether the disclosure of certain documents during the litigation process constituted a waiver of legal professional privilege. Additionally, the court considered whether the pleadings should be struck out or dismissed in whole or part. The court also needed to determine whether injunctive orders should be made to prevent the use of documents that were found to be subject to legal professional privilege.

The court held that the disclosure of the documents in question did not constitute a waiver of legal professional privilege. It found that the documents were disclosed in error and that the applicant had not intended to waive the privilege. The court also ruled that the pleadings should not be struck out or dismissed in whole or part, as they contained sufficient information to proceed with the substantive proceedings. However, the court held that the documents found to be subject to legal professional privilege or otherwise not pressed by the applicant should not be adduced as evidence unless otherwise ordered by the Tribunal. The application for interlocutory orders was otherwise dismissed.

The court ordered that the applicant must file amended points of claim within 14 days of the decision. It also ordered that the matter be listed for a directions hearing before a Principal Member or Senior Member. The court emphasised that the documents found to be subject to legal professional privilege or otherwise not pressed by the applicant should not be used as evidence unless the Tribunal otherwise orders. The court's decision provides guidance on the application of legal professional privilege and the consequences of inadvertent disclosure of privileged documents in strata disputes.

Orders

Orders of the court

(1) The applicant is to file with the Tribunal and serve on the respondents, by person or by post, Amended Points of Claim by 14 days from the date of this decision.

(2) Unless the Tribunal otherwise orders at the hearing of the substantive proceedings, the documents in this decision found to be the subject of legal professional privilege or otherwise not pressed by the applicant may not be adduced as evidence.

(3) The application for interlocutory orders is otherwise dismissed.

(4) The matter is to be listed for a directions hearing at a date to be allocated by the Tribunal Registry before a Principal Member or Senior Member.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Silberstein v The Owners - Strata Plan No. 55468 [2022] NSWCATCD 114
Hearing dates:	28 June 2022
Date of orders:	15 July 2022
Decision date:	15 July 2022
Jurisdiction:	Consumer and Commercial Division
Before:	G Sarginson, Senior Member
Decision:	(1) The applicant is to file with the Tribunal and serve on the respondents, by person or by post, Amended Points of Claim by 14 days from the date of this decision. (2) Unless the Tribunal otherwise orders at the hearing of the substantive proceedings, the documents in this decision found to be the subject of legal professional privilege or otherwise not pressed by the applicant may not be adduced as evidence. (3) The application for interlocutory orders is otherwise dismissed. (4) The matter is to be listed for a directions hearing at a date to be allocated by the Tribunal Registry before a Principal Member or Senior Member.
Catchwords:	CIVIL PROCEDURE — Legal professional privilege — Waiver — Whether disclosure of documents constitutes waiver CIVIL PROCEDURE — Pleadings — Whether should be struck out or dismissed in whole or part CIVIL PROCEDURE — Legal professional privilege — Use of disclosed documents — Whether injunctive orders should be made
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW) Evidence Act 1995 (NSW) Strata Schemes Management Act 2015 (NSW)
Cases Cited:	Aardwolf Industries LLC v Tayeh [2020] NSWCA 301 Coscuez International Pty Ltd v The Owners-Strata Plan No 46433 [2022] NSWCATAP 147 EB 9 & 10 Pty Ltd v The Owners SP 934 [2018] NSWSC 464 Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2013) 250 CLR 303; [2013] HCA 46 Gillies v Downer EDI Ltd [2010] NSWSC 1323 GR Capital Group Pty Ltd v Xinfeng Australia International Investment Pty Ltd [2020] NSWCA 266). Hastie Group Pty Ltd (in liq) v Moore [2016] NSWCA 305 Kennedy v Wallace (2004) 142 FCR 185; [2004] FCAFC 337 LMA Contractors Limited v Changizi [2017] NSWCATAP 145 Mead v Mead (2007) 235 ALR 197; [2007] HCA 25 State of New South Wales v Jackson [2007] NSWCA 279 Steak Plains Olive Farm Pty Limited v Australian Executor Trustees Limited [2015] NSWSC 289 Sunland Group Limited v Gold Coast City Council [2021] FCA 1473 The Owners-Strata Plan No 2000 v Bylinska [2019] NSWCATAP 116 The Owners-Strata Plan No 80412 v Vickery [2021] NSWCATAP 98 Walsh v The Owners Strata Plan No 10349 [2017] NSWCATAP 230 Westpac Banking Corp v 789TEN Pty Ltd (2005) 55 ACSR 519; [2005] NSWCA 321
Texts Cited:	Nil
Category:	Procedural rulings
Parties:	Jessica Silberstein (Applicant) The Owners - Strata Plan No. 55468 (First Respondent) Michael Adamo (Second Respondent) Peter Michael Hans Engelbert (Third Respondent) William Paul O’Brien (Fourth Respondent) Terence Matthew Gagen (Fifth Respondent)
Representation:	Counsel: R Clark (Applicant) B Ilkovski (Respondents) Solicitors: Silberstein & Associates (Applicant) Gilchrist Connell (Respondents)
File Number(s):	SC 22/05083
Publication restriction:	Nil