AWB Limited v Cole [2025] FCA 1625 | Case summary

By interlocutory process filed on 4 December 2025 (Keyview IP) the liquidators seek orders that Keyview Investment Management Pty Limited (Keyview) produce unredacted copies of sixteen documents over which Keyview claims privilege. Some of those documents are the subject of the RWC IP. To the extent they are not, RWC also claims privilege over fifteen such documents. In addition, the liquidators seek orders for access against Keyview to six documents the subject of claims of common interest or joint privilege between RWC and Keyview which are included in the RWC IP document.
FSM was operated by its director, Mr Guo. On 14 May 2024, FSM entered into a loan agreement as borrower with Perpetual Corporate Trust Limited and La Trobe Financial Services Pty Limited (La Trobe Facility) to finance retail and residential development at a property situated at 317-335 Liverpool Road, Ashfield, New South Wales, 2131 (Ashfield Property). The La Trobe Facility was secured by a first-ranking mortgage over the Ashfield Property.
Zagga Investments Pty Limited (Zagga) financed another company associated with Mr Guo, FSLP Pty Limited (in liq), to undertake a development at Lindfield under a facility provided in 2022. Zagga's facility was partly secured by a second-ranking mortgage over the Ashfield Property.
La Trobe and Zagga were parties to a 2023 Deed of Priority over the Ashfield Property, amended on 16 May 2024 (Deed of Priority). As amended, the first lender's priority included $25 million plus interest, costs, fees, charges, duties and expenses.
In April and early May 2024, Mr Guo approached RWC, expressing interest in refinancing the Ashfield and Lindfield developments. At RWC, Mr Mao took the lead on the transaction and liaised with Mr Guo. Corrs Chambers Westgarth were initially engaged to review the La Trobe Facility documents. In early June 2024, Mr Mao asked Mr Stuart Dixon-Smith, a partner at King & Wood Mallesons (KWM), to assist and advise on the transaction.
In around early June, RWC contacted Keyview, proposing that it be a co-lender. Keyview was one of a small number of investment management firms with which RWC had a close relationship and which previously participated with RWC on syndicated loans.
On 7 June 2024, an introductory meeting was held at KWM's office, attended by Mr Guo, Mr Li (an acquaintance of Mr Guo), Mr Ajaka (RWC's CEO), Mr Lal (managing director of Keyview), Mr Dixon-Smith and Ms Wong (a senior associate at KWM). Mr Mao informed Mr Guo that RWC would take the lead on behalf of the lending syndicate, and KWM would be the syndicate's lawyers.
On 27 June 2024, it appears that, in substance and practical effect, KWM was retained jointly by RWC and Keyview to act on the transaction, although there does not appear to have been a formal costs agreement. As Ward J said in McDonald v Grech [2012] NSWSC 717 at [80], a retainer may be implied from the circumstances, which include, relevantly, consultation of the client or clients with the solicitor, and the undertaking by the solicitor of work for the client or clients. Ms Wong sent RWC a fee estimate to act for "RWC or a RWC-led lending syndicate on the refinancing of the borrower's facility". Later that day, Mr Mao emailed Ms Wong that the fee estimate was accepted and that KWM should proceed. The engagement of KWM thus contemplated the syndicate of RWC and Keyview as the relevant clients, that syndicate being led by RWC.
Throughout June to August 2024, Mr Mao (or Ms White on his behalf) communicated with Keyview and KWM by email in relation to the transaction. Legal advice provided by KWM was passed on to Keyview, and Mr Mao liaised with KWM to obtain answers to questions raised by Keyview.
On 7 August 2024, loan documentation was executed by RWC, La Trobe and FSM. This included a deed of assignment under which RWC's nominated professional trustee, AMAL Trustees Pty Limited (AMAL Trustees) as trustee for Adelaide Street Holdings Trust (ASH Trust) acquired the debt under the La Trobe Facility. The ASH Trust and its underlying unit trusts are managed by RWC, and the ultimate investors participate in a credit fund managed by RWC. The documentation also included a Deed of Amendment and Restatement (Amended Facility) which amended the La Trobe Facility and transfers of the securities to a security trustee for the ASH Trust, AMAL Security Services Pty Limited. The Amended Facility increased the interest rate, specified minimum interest, and set an establishment fee.
On 20 August 2024, Keyview became a co-lender, pursuant to a substitution agreement by which ASH Trust sold over 50% of the loan to a nominee of Keyview.
On 18 September 2024, Zagga's solicitors wrote to KWM, contending that RWC's securities under the Deed of Priority did not extend to FSM's increased indebtedness under the Amended Facility. At least from that point, litigation was reasonably contemplated by RWC. On 24 October 2024, Zagga brought proceedings against AMAL Security Services Pty Limited in the New South Wales Supreme Court seeking, among other things, declarations pursuant to ss 94 and 95 of the Conveyancing Act 1919 (NSW), that Zagga is entitled to redeem and have transferred to it the first mortgage.
Rather than pursuing its claim, on 1 November 2024, Zagga redeemed its security over the Ashfield Property by paying out RWC and Keyview in full and transferring a mortgage to a newly incorporated nominee, "Stingray". Zagga then discontinued its proceeding. On 7 November 2024, Stingray appointed the plaintiffs as administrators of FSM and its guarantor companies. On 12 December 2024, the administrators were appointed liquidators, funded by Stingray under a $13.1 million facility.
On 24 December 2024, the liquidators commenced the present examination proceedings. From 4-12 August 2025, the liquidators examined RWC examinees over several days. A further round of examinations began on 1 December 2025.
The liquidators, in their submissions, characterised the series of transactions as follows. They submit that an existing loan to FSM (at an interest rate of about 10.99%) was refinanced for a period of twelve months at a face value interest rate of 32.4%, but with a "Minimum Interest Amount" payable of $11,993,385 on a facility principal of $25 million for twelve months with first mortgage security. The liquidators say that at the time the refinancing transaction occurred, the development project was substantially complete, the pre-existing La Trobe Facility was for $25 million, the amount drawn down was $21.7 million, the expected cost to complete was $1.6 million, there were $24.28 million of pre-sales, and the total net realisable value of the project was $37.8 million.
The liquidators say that they are inquiring into the commercial arrangements by which that transaction occurred. The documents produced to date suggest to them that there was no updated term sheet that summarised those commercial arrangements. Rather, the liquidators say that Ms White informed Keyview that "the term sheet has been superseded by the loan documents the borrower is about to sign. The summary of this deal is in the legal opinion, which has been put into the data room".
The liquidators' position is that the commercial arrangements are reflected in part by the documents referred to as the "May 2024 Perpetual Loan Agreement", a Deed of Assignment made in relation to the May 2024 Perpetual Loan Agreement and associated securities, a Deed of Amendment and Restatement, the effect of which was to amend and restate the May 2024 Perpetual Loan Agreement. The liquidators say that those were also proposed to be accompanied by a Put Option to Purchase an Escrow Deed. The liquidators say that those documents appear to provide for the return of part of the Minimum Interest Amount paid by FSM to the financiers, to certain third parties, who are alleged to have provided unsecured "shareholder loans" and which, in some of the documents, are referred to as an "equity release".
It is common ground that the common law of privilege applies. At common law, privilege may be availed of to resist giving information or producing documents which would reveal communications between a client and his or her lawyer, made for the dominant purpose of giving or obtaining legal advice or the provision of legal services: Daniels Corporation International Pty Limited v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543 at [9] (Gleeson CJ, Gaudron, Gummow and Hayne JJ). The dominant purpose is the "ruling, prevailing or most influential purpose": Commissioner of Taxation v Spotless Services Limited [1996] HCA 34; (1996) 186 CLR 404 at 416 (Brennan CJ, Dawson, Toohey, Gaudron, Gummow and Kirby JJ). Attention is focussed on the purpose of the person who created the document or who, if not its author, had the authority to and did procure its creation: Pratt Holdings Pty Limited v Commissioner of Taxation [2004] FCAFC 122; (2004) 136 FCR 357 at [35] (Finn J, with whom Merkel J agreed). Although some emails were sent by Ms White, she had only just started her job at RWC in a junior capacity on 1 August 2024 and wrote what Mr Mao told her to write, and thus it is Mr Mao's intention that is relevant in those instances.
Provided a communication is made with the dominant purpose of seeking or obtaining legal advice, privilege protects communications between the client and third parties whose knowledge is desirable or necessary for the client to obtain that legal advice: New South Wales v Betfair Pty Limited [2009] FCAFC 160; (2009) 261 ALR 311 at [40] (Kenny, Stone and Middleton JJ).
Legal advice extends beyond formal advice as to the law and includes advice as to what a party should prudently or sensibly do in a relevant context, although it does not extend to purely factual or commercial advice: BWO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 181; (2020) 283 FCR 299 at [62] (Rangiah, SC Derrington and Abraham JJ); AWB Limited v Cole [2006] FCA 571; (2006) 152 FCR 382 at [109]-[110] (Young J).
Privilege extends to confidential communications passing between a client and the client's lawyer or a third party, or the client's lawyer and a third party, made for the dominant purpose of use in or in relation to existing or reasonably anticipated litigation. Whether litigation is reasonably contemplated is determined objectively, and there must be a real prospect of litigation, as distinct from a mere possibility, but it does not have to be more likely than not: Ensham Resources Pty Limited v AIOI Insurance Company Limited [2012] FCAFC 191; (2012) 209 FCR 1 at [52]-[57] (Lander and Jagot JJ).
A joint privilege arises where two or more persons communicate with a legal adviser for the purpose of retaining that adviser's services or obtaining that adviser's advice: Farrow Mortgage Services Pty Limited (in liq) v Webb [1996] NSWSC 259; (1996) 39 NSWLR 601 (Farrow) at 608 (Sheller JA, with whom Waddell AJA agreed). The many cases in which the principle stated in Farrow has been approved by this court were helpfully collected by Markovic J in Re Equititrust Limited (in liq) [2016] FCA 738; (2016) 341 ALR 301, at [12]-[13].
Disclosure of a privileged document to a third party will not waive privilege where the person entitled to the privilege and the person to whom the content is disclosed have such a commonality of interest in relation to the subject matter of the privilege that sharing of the content is consistent, rather than inconsistent, with an intention to preserve confidentiality and privilege: Marshall v Prescott [2013] NSWCA 152 (Marshall v Prescott) at [57] (Barrett JA, with whom McColl and Ward JJA agreed). Common interest is not a rigidly defined concept: Farrow at 609B.
Even where there is no common interest, disclosure to a third party does not necessarily waive privilege where there is an express or implied obligation of confidentiality: Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 (Mann) at [30] (Gleeson CJ, Gaudron, Gummow and Callinan JJ). Waiver occurs when a party acts inconsistently with the maintenance of the confidentiality which the privilege is intended to protect: Mann at [28] and [29]. The common interest supplies a rational basis for inferring an intention that the party's confidentiality should continue, and the parties' privilege should be maintained: Marshall v Prescott at [65]. But that intention may still be evident absent common interest. For example, in Network Ten Limited v Capital Television Holdings Limited (1995) 36 NSWLR 275 at 286, Giles J rejected a claim for common interest privilege, but also held that privilege had not been waived where the disclosure was to a limited number of people, on terms of confidentiality, for a particular purpose.
With the consent of the parties, I have been provided with copies of the documents in question in both their redacted and unredacted forms, consistently with the contemporary approach of courts not to be hesitant in examining the documents for themselves to resolve disputed claims: Esso Australia Resources Limited v Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49 at [52] (Gleeson CJ, Gaudron and Gummow JJ).
There is a set of 21 email communications between RWC and Keyview, namely, RWC IP documents A2, A3, A4, A6, A7, B7, and Keyview IP documents 1-10 and 12-16. KWM's solicitors are direct participants in some of those communications. These communications either communicate legal advice from KWM or are plainly made for the dominant purpose of obtaining or receiving such advice. From 27 June 2024, those communications were subject to a joint privilege, as they were made for the purposes of the joint engagement of KWM. Prior to that time, RWC and Keyview plainly had a common interest as anticipated co-lenders in entering into a transaction favourable to them in that capacity and in receiving advice and assistance from KWM as to the terms of that transaction and the preparation of appropriate transaction documents.
The parties also had separate interests which they were advancing, but the matters the subject of the claims for privilege relate to their commonality of interest in relation to pursuing and maintaining a syndicate of lenders, including amending documents from time to time. It has been recognised that the interests of parties may diverge, but the relevant question is whether they diverge in relation to the subject matter of the communication with the solicitor: UIL (Singapore) Pte Limited v Wollongong Coal Limited [2023] FCA 1578 at [117] (Beach J). The documents preceding 27 June 2024 are RWC IP documents B12-B14 and Keyview IP document 16.
In my view, the 21 email communications are covered by joint privilege or common interest privilege.
In any event, the communications were kept confidential between RWC and Keyview, and the circumstances in which Mr Mao of RWC and Mr Cvijetic of Keyview understood that the documents would be treated in that manner, in part based on past practices between the parties, are sufficient to give rise to an equitable obligation of confidence. In saying that, I also take into account, having read the documents for myself, the intrinsically sensitive nature of the information in question. The limited nature of any waiver by RWC in communicating with Keyview (if, contrary to my view as to joint or common interest privilege, waiver is relevant) is therefore not inconsistent with RWC's maintenance of privilege.
The plaintiffs draw attention to the fact that Keyview IP documents 1 to 5 were forwarded by Keyview to representatives of AMAL Trustees. However, in light of the fact that the ASH Trust is managed by RWC and its investors participate in a credit fund managed by RWC, and the limited purpose of the disclosure for execution of final documents and confirmation of payments, the disclosure objectively was on a mutual understanding and obligation of confidentiality and the maintenance of privilege, consistently with the evidence of Mr Cvijetic at [58] and [64] of his affidavit. As for the document referred to by Mr Cvijetic at [46], I do not regard that paragraph as a waiver of any privilege.
There is also a set of four emails (or attachments to emails) between RWC and KWM sent for the dominant purpose of obtaining legal advice or services, namely, RWC IP documents A1, A5, A10 and A11. I regard these documents as plainly protected by legal professional privilege.
There are ten emails and seven text message exchanges (being RWC IP documents B1-B6 and B8-B19) between RWC personnel. These communications either record legal advice from KWM or, while not communications with a lawyer, are made for the dominant purpose of obtaining such advice, and are therefore privileged. There is one email internal to Keyview, namely, Keyview IP document 11, which records legal advice from KWM.
There is also a set of communications from 18 September 2024 onwards, which were made in contemplation of legal proceedings, in light of the letter from Zagga's solicitors on that date referred to above. Those documents comprise RWC IP documents A5, B9-B11 and B18. Those documents are protected by the litigation privilege attaching to legal professional privilege.
For completeness, I note that there are no documents corresponding to the labels A8 and A9 in the RWC IP documents.
Accordingly, the RWC IP and the Keyview IP should be dismissed.

AWB Limited v Cole

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