The Owners Strata Plan 87265 v Saaib - [2020] NSWSC 21

Supreme Court

New South Wales

Medium Neutral Citation: The Owners Strata Plan 87265 v Saaib [2020] NSWSC 21
Hearing dates: 24 January 2020
Decision date: 30 January 2020
Jurisdiction: Equity
Before: R A Hulme J
Decision:
1. Uphold the claim by the Owners Corporation of client legal privilege in respect of the email communications caught by paragraph 3 of Mr Saaib's Notice to Produce of 20 December 2019.
2. Mr Saaib's application to be permitted to inspect and copy the same is refused.

Catchwords: CIVIL PROCEDURE – notices to produce – client legal privilege – whether documents privileged under s 119 Evidence Act 1995 (NSW) – communications between plaintiff and witness where witness is also defendant in contingent proceedings – implied obligation of confidentiality where dominant purpose of communications is obtaining evidence
Legislation Cited: Competition and Consumer Act 2010 (Cth), Sch 2 – The Australian Consumer Law, s 18
Evidence Act 1995 (NSW) ss 117, 119, 131A
Home Building Act 1989 (NSW)
Cases Cited: Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526
AW v Rayney [2010] WASCA 161
Grant v Downs (1976) 135 CLR 674
Hastie Group Ltd v Moore [2016] NSWCA 305
Singtel Optus Pty Ltd v Weston (2011) 81 NSWLR 526; [2011] NSWSC 1083
Sugden v Sugden (2007) 70 NSWLR 301
Category: Procedural and other rulings
Parties: The Owners Strata Plan 87265 (Plaintiff)
Tony Saaib (Defendant)
Representation:
Counsel:
N Kidd SC (Plaintiff)
S Lawrance with M Fernandes (Defendant)
Solicitors:
Mills Oakley
Centurion Lawyers Pty Ltd

File Number(s): 2016/382268

Judgment

HIS HONOUR: This judgment concerns an issue of client legal privilege raised by the plaintiff in proceedings that are set down for hearing next week. I have determined that the plaintiff's claim should be upheld for the reasons set out herein.

The proceedings

The Owners of Strata Plan 87265 (the Owners Corporation) commenced proceedings on 20 December 2016 against Mr Tony Saaib and others contending, inter alia, that there were defects in their strata complex at Marrickville and that Mr Saaib, as the builder, was responsible. Mr Saaib denies that he was the builder. There is an assertion that documents suggesting he was the builder were the subject of forgery. This proceeding is identified by the file number 2016/382268.
Ms Irene Alexandrova was an insurance broker who was responsible for obtaining insurance on behalf of clients, including home warranty insurance under the Home Building Act 1989 (NSW). She did so purportedly in respect of Mr Saaib for this particular building project.
Despite his denial, the Owners Corporation maintains that Mr Saaib was the builder. However, it has instituted a proceeding against Ms Alexandrova as a contingency in the event that its claim against Mr Saaib fails. It claims that she is liable for misleading and deceptive conduct in contravention of s 18 of The Australian Consumer Law (Competition and Consumer Act 2010 (Cth), Sch 2) by representing to the insurer, or its agent, that she was authorised to make application…

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.

Keep reading for free

Create a free CaseChat account to read The Owners Strata Plan 87265 v Saaib and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] NSWSC 21
Decision Date: 30 January 2020

CaseChat Overview and Summary

The case before the court involved the plaintiff, The Owners Strata Plan 87265, who sought to enforce a notice to produce documents against the defendant, Saaib. The dispute centred on whether certain documents were privileged under section 119 of the Evidence Act 1995 (NSW), specifically concerning communications between the plaintiff and a witness who was also a defendant in separate contingent proceedings. The matter was heard in the Supreme Court of New South Wales.

The legal issues that needed resolution were whether the communications between the plaintiff and the witness were privileged, and if so, whether this privilege extended to documents produced as a result of those communications. The court had to consider whether there was an implied obligation of confidentiality in these circumstances and whether the dominant purpose of the communications was to obtain evidence for litigation.

The court found that the communications between the plaintiff and the witness were indeed privileged. The privilege arose from the implied obligation of confidentiality that existed between the parties due to the dominant purpose of the communications being to obtain evidence. The court held that the privilege extended to the documents produced as a result of these communications, as they were created for the dominant purpose of obtaining evidence. Consequently, the plaintiff was not entitled to enforce the notice to produce against the defendant.

The court's decision reinforced the importance of maintaining confidentiality in communications between parties where the dominant purpose is to obtain evidence, and underscored the scope of privilege under section 119 of the Evidence Act 1995 (NSW). The court's ruling effectively protected the documents in question from being disclosed to the plaintiff, thereby upholding the confidentiality of the communications.

Orders