Waugh Asset Management v Merrill Lynch - [2010] NSWSC 197

CITATION: Waugh Asset Management v Merrill Lynch [2010] NSWSC 197

HEARING DATE(S): 12/3/10

JURISDICTION: Equity Division
Commercial List

JUDGMENT OF: McDougall J at 1

EX TEMPORE JUDGMENT DATE: 12 March 2010

DECISION: Access to documents not granted at this stage. Plaintiff's notice of motion stood over to trial judge for further hearing.

CATCHWORDS: EVIDENCE – client legal privilege – plaintiffs seeking access to documents produced on subpoena by third party – whether question of access determined under Evidence Act 1995, UCPR r 1.9 or common law – where documents sought were underlying documents informing state of mind said to appear from another document – whether privilege waived – (NSW) Evidence Act 1995 s 122, 131A, Uniform Civil Procedure Rules r 1.9. -

LEGISLATION CITED: Evidence Act 1995 (NSW)

CATEGORY: Procedural and other rulings

CASES CITED: Akins v Abigroup Ltd (1998) 43 NSWLR 539
Australian Competition and Consumer Commission v Cadbury Schweppes Pty Limited (2009) 174 FCR 547
Buzzle Operations v Apple Computer Australia [2009] NSWSC 225
Carbotech-Australia Pty Ltd v Yates [2008] NSWSC 1151
Ingot Capital v Macquarie Equity [2008] NSWSC 25
Markisic v Commonwealth of Australia (2007) 69 NSWLR 737
National Employers’ Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372
Sevic v Roarty (1998) 44 NSWLR 287

PARTIES: Waugh Asset Management Pty Limited (Plaintiff)
The Executors of the Estate of the Late William Montague Waugh (Second Plaintiff)
Merrill Lynch International (Australia) Limited (Defendant)

FILE NUMBER(S): SC 2005/270915

COUNSEL: A C Scotting (Plaintiffs)
J S Gleeson (Defendant)

SOLICITORS: Verekes Lawyers (Plaintiffs)
Blake Dawson (Defendant)

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

McDOUGALL J

12 March 2010 (ex tempore – revised 15 March 2010)

2005/270915 WAUGH ASSET MANAGEMENT PTY LIMITED v MERRILL LYNCH INTERNATIONAL (AUSTRALIA) LIMITED

JUDGMENT

1 HIS HONOUR: The plaintiffs in these proceedings, to whom it is convenient to refer collectively as "Waugh", were interested in buying a number of hotels from various vendors. Waugh required finance to achieve that purpose. It approached the defendant (Merrill Lynch) in about February 2003 for assistance. Waugh says that Merrill Lynch proposed something called a "whole business securitisation of the hotel portfolio" as a means of raising the necessary funds. In short, Waugh's claim is that Merrill Lynch breached the agreements made between them and that Waugh suffered significant damage.

2 Pursuant to orders of the Court (as varied from time to time) for the parties to file the whole of their lay evidence, Merrill Lynch filed a written statement by a Mr A J Stutchbury. Mr Stutchbury was, at the relevant time, an employee of Merrill Lynch and apparently involved in the relevant transaction. In paragraphs 26 to 28 of the statement, Mr Stutchbury refers to the question of title to the assets that were being sold: not merely the real estate, but intangible property such as gaming licences. It appears that Merrill Lynch obtained independent legal advice from a firm of lawyers, Back Schwartz Vaughan, in relation to due diligence. In…

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 Waugh Asset Management v Merrill Lynch 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: [2010] NSWSC 197
Decision Date: 12 March 2010

CaseChat Overview and Summary

Waugh Asset Management, a plaintiff, sought access to documents produced on subpoena by Merrill Lynch, a third party. The dispute was heard in the Supreme Court of New South Wales. The plaintiffs sought access to the documents on the basis that they were necessary to understand the state of mind of a party from whom another document had been produced. The central legal issues the court had to decide were whether the question of access to these documents was determined under the Evidence Act 1995, the Uniform Civil Procedure Rules rule 1.9, or the common law, and whether client legal privilege had been waived.

The court held that the question of access to the documents was governed by the Evidence Act, not the common law or UCPR rule 1.9. The court found that the plaintiffs had not established that the documents in question were the underlying documents that informed the state of mind of the party from whom another document had been produced. Furthermore, the court found that there had been no waiver of client legal privilege. The plaintiffs' application for access to the documents was dismissed.

The final orders of the court were that the plaintiffs' application for access to the documents produced on subpoena by Merrill Lynch was dismissed. The court found that the documents were not the underlying documents that informed the state of mind of the party from whom another document had been produced, and that there had been no waiver of client legal privilege. The plaintiffs were ordered to pay Merrill Lynch's costs of the application.

Orders