• Lawyers in Sydney
• Lawyers in Melbourne
• Lawyers in Brisbane
• Lawyers in Perth
• Family lawyers
• Employment lawyers
• Criminal lawyers
• Wills and estates lawyers
• Find a lawyer

1. Nova Builders Pty Ltd (Nova Builders) is the owner of a development site in Greenway in the ACT (the Site). Excavation work was performed on that Site at different times between 2019 and 2020 by Beno Excavations Pty Ltd (formerly trading as Benex) (Benex) and Civil & Civic Corporation Pty Ltd (Civil). A dispute arose as to whether Benex or Civil was entitled to payment for various of the works performed.

2. On 3 November 2023, Mossop J delivered a judgment finding against Civil in relation to the claims: Nova Builders Pty Ltd v Beno Excavations Pty Ltd (No 3) [2023] ACTSC 319 (Nova No 3). In that judgment, his Honour found that Civil’s director, Mr Moseley, had dishonestly issued invoices in March 2020 to Nova Builders seeking payment to Civil that he knew Civil had no entitlement to: Nova (No 3) at [115]. In so finding, Mossop J rejected Mr Moseley’s evidence that there was a joint venture between Civil and Benex. His Honour found that Mr Moseley’s evidence on this issue “reflected a lack of honesty in his dealings with others and a complete disregard for the obligations imposed upon him by the law in relation to those dealings”: Nova (No 3) at [82]. Justice Mossop subsequently ordered that Civil pay Nova’s costs of the litigation, on an indemnity basis: Nova Builders Pty Ltd v Beno Excavations Pty Ltd (No 5) [2023] ACTSC 370.

3. Nova Builders then sought an order for non-party costs orders against Mr Moseley and Chamberlains Law Firm (Chamberlains), who represented Civil in the proceedings before Mossop J. The application for a personal costs order against Mr Moseley was subsequently withdrawn, but the application for a costs order against Chamberlains remains on foot.

4. In its written submissions on the non-party costs application, Chamberlains contended that it was precluded from advancing its full answer to the application, because the instructions which it had received from Civil were the subject of legal professional privilege, which Civil would not waive. Chamberlains submitted that in determining the costs application, full allowance needed to be made for its inability to give a full account of what had occurred: see Medcalf v Mardell [2003] 1 AC 120 at [23]; Lemoto v Able Technical Pty Ltd [2005] NSWCA 153; 63 NSWLR 300 at [92(c)] and Ridehalgh v Horsefield [1994] Ch 205 at 237; see also Dimov v The Owners, Units Plan (No 3) [2025] ACTSC 502 at [37] – [40].

5. On 6 March 2024, Nova Builders issued a subpoena to Chamberlains, requiring the production of: All documents which are communications between Benjamin Moseley and Chamberlains and Chamberlains and counsel or which record such communications, being, or relating to, the giving or obtaining instructions or advice concerning the matters alleged in Paragraphs 10 and 11 of the second defendant’s Further Amended Statement of Claim in proceedings SC276/2020 in the period between 1 April 2021 and 20 February 2023.

6. On 25 March 2024, Chamberlains produced documents pursuant to the subpoena.

7. I was informed that Mr Moseley and Civil do not waive legal professional privilege over 1 each of the documents produced. There was no dispute in the proceedings before me that the documents produced by Chamberlains are prima facie protected by legal professional privilege under s 119 of the Evidence Act 2011 (ACT). As s 131A of the Evidence Act applies Div 3.10 (which contains a 119 of the Evidence Act) to “preliminary proceedings of courts”, including orders for disclosure of documents produced pursuant to a subpoena. In these circumstances, counsel for Mr Moseley submitted that the Court should uphold his claim of legal professional privilege and should not make orders permitting inspection of the documents by any other party.

8. However, Nova Builders contends that client legal privilege was abrogated pursuant to s 125 of the Evidence Act 2011 (ACT), on the basis that the relevant documents are “evidence of communications made … in furtherance of the commission of a fraud”.

9. As can be seen from this brief outline, the factual and procedural background to these proceedings is complex. However, the issue which is at the heart of the present application is narrow in compass and may be shortly stated: Can the giving of instructions by a client to their lawyer to advance a case which the client knows to be untrue be said to be a communication “in furtherance of the commission of a fraud” within the meaning of s 125 of the Evidence Act?

10. For the reasons outlined below, I have concluded that the documents sought in the subpoena were produced in furtherance of a fraud. Accordingly, privilege is abrogated under s 125 of the Evidence Act.

Procedural history

11. At the oral hearing of this application, the parties informed the Court that the substantive proceedings were the subject of an appeal to the Court of Appeal, and that, if the appeal

1 It was unclear why Mr Moseley was said to be a client, separate to Civil. (It was only Mr Moseley, not Civil, who actively responded to the present application.) However, as this point was not taken on behalf of Nova (the party which issued the subpoena), I have considered it unnecessary to address this issue in this judgment. The distinction would become important if the liquidators of Civil determined to waive privilege, but Mr Moseley maintained a claim of privilege. was successful, any judgment on the present application would be rendered moot. The parties further advised that that any judgment delivered by the Court on this application would be placed “on ice” until the appeal proceedings concluded. Given this information, other judgments were prioritised above the present.

12. The Court of Appeal delivered judgment dismissing the substantive appeal on 18 May 2026: Civil & Civic Corporation Pty Ltd v Nova Builders Pty Ltd (No 2) [2026] ACTCA 14 (Civil & Civic (No 2)). At that time, I was also made aware that Civil had been placed under liquidation following the administration of the company and a resolution of the creditors for voluntary winding up.

13. Section 500(2) of the Corporations Act provides that: After the passing of the resolution for voluntary winding up, no action or other civil proceeding is to be proceeded with or commenced against the company except by leave of the Court and subject to such terms as the Court imposes.

14. On 21 May 2026, my associate wrote to the parties asking whether, in view of the voluntary winding up of Civil and the Court of Appeal decision, a judgment on the application should still be delivered. On 22 May 2026 and 5 June 2026, the legal representatives for Nova Builders indicated that they were seeking their client’s instructions. No other party replied to the Court’s email. In those circumstances, I listed the present application for mention on 3 July 2026 for this issue to be addressed.

15. I was subsequently informed by the legal representative for the liquidators of Civil that their client did not wish to be heard on the question as to whether judgment should be delivered.

16. Legal representatives for Nova Builders, Benex, and Chamberlains appeared at the mention on 3 July 2026. Counsel for Benex submitted that s 500(2) of the Corporations Act precluded the Court from delivering judgment without first lifting the statutory stay which that provision imposes. He drew my attention to the decisions of the New South Wales Supreme Court in Curnow Consulting Pty Ltd v JPD Media and Design Pty Ltd t/a Durie Design (No 3) [2018] NSWSC 827 (Slattery J) and In the Matter of Tolco Pty Ltd [2016] NSWSC 1069 (Brereton J) and a decision of the Federal Circuit and Family Court of Australia (Division 2) in Self Care Corporation Pty Ltd v Green Forest International Pty Ltd (No 17) [2025] FedCFamC2G 1426 (Cameron J). However, he further indicated that no party had any opposition to the Court delivering judgment on the application, including, if necessary, by lifting the statutory stay of the proceedings.

17. In Self Care Corporation at [6], Cameron J concluded that s 500(2) of the Corporations Act does not operate to prevent or delay the Court from proceeding to judgment. By reference to extrinsic material, and the underlying purpose of the provision, his Honour concluded that s 500(2) is only directed at the litigants in the proceedings, and not the Court itself: Self Care at [5] and [6]. In Tolco, administrators were appointed shortly after the hearing whilst judgment was reserved. Section 440D of the Corporations Act provided that the proceedings were thereby stayed. In those circumstances, Brereton J considered it appropriate to indicate the decision of the Court, without making formal orders: Tolco at [2]. In Curnow Consulting, Slattery J referred to a decision of the Victorian Supreme Court in M F Ltd Compliance and Risk Services Pty Ltd [2013] VSC 213 at [11], in which Lansdowne AJ had held that s 440D “does not prevent the delivery of a judgment in respect of an application already heard, which is a step taken by the Court, not by a party”. Nonetheless, his Honour considered it appropriate to take the “practical” course taken by Brereton J in Tolco, and published reasons whilst reserving the making of formal orders until a later date: Curnow Consulting at [12].

18. I have determined that it is appropriate to take the same approach as that taken by Brereton J in Tolco and Slattery J in Curnow Consulting, and to deliver the reasons for my decision, without making final orders on the application at this stage.

Legislation

19. Section 119 of the Evidence Act provides: 119 Litigation Evidence must not be presented if, on objection by a client, the court finds that presenting the evidence would result in disclosure of— (a) a confidential communication between the client and someone else, or between a lawyer acting for the client and someone else, that was made; or (b) the contents of a confidential document (whether delivered or not) that was prepared; for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.

20. Section 125 of the Evidence Act provides: 125 Loss of client legal privilege – misconduct (1) This division does not prevent the presenting of evidence of— (a) a communication made or the contents of a document prepared by a client or lawyer (or both), or a party who is not represented in the proceeding by a lawyer, in furtherance of the commission of a fraud or an offence or the commission of an act that renders a person liable to a civil penalty; or (b) a communication or the contents of a document that the client or lawyer (or both), or the party, knew or ought reasonably to have known was made or prepared in furtherance of a deliberate abuse of a power. (2) For this section, if the commission of the fraud, offence or act, or the abuse of power, is a fact in issue and there are reasonable grounds for finding that— (a) the fraud, offence or act, or the abuse of power, was committed; and (b) a communication was made or document prepared in furtherance of the commission of the fraud, offence or act or the abuse of power; the court may find that the communication was made or the document was prepared as mentioned in paragraph (b). (3) In this section: power means a power given by or under an Australian law.

21. The above provisions are applied to the granting of access to documents produced on a subpoena by s 131A of the Evidence Act.

Submissions

Nova Builders

22. The starting point for Nova Builders’ submission was Mossop J’s finding that no joint venture had ever existed, and that Mr Moseley had intended to deceive Mr Pierlot (the agent of Nova Builders, who received the invoices sent in March 2020). Nova Builders submitted that this finding “amounts to a finding of fraud for the purposes of s 125(1)(a) [of the] Evidence Act”.

23. Nova Builders further contended that the giving of instructions or advice relating to the amendment of Civil’s Statement of Claim so as to allege that the Civil was in a joint venture with Benex was a “furtherance of the commission of a fraud”, … in the sense that they continue the efficacy of the deception of Mr Pierlot, by taking steps to keep the payments he made beyond the legal reach of Nova.

24. Nova Builders continued: In the present litigation there was a risk that Civil may not be able to keep its hold on the $550,000. Accordingly, it – through Moseley – made forensic decisions and took steps calculated to avoid that outcome by adopting strategies which would maximise its ability to keep the money beyond the legal reach of Nova or Benex… The pleading of the joint venture in the Further Amended Statement of Claim was a cynical attempt to fight off Nova. But even if it exposed Civil to a claim from Benex for a share, it left Civil with (at least in the mindset of Moseley) a chance of holding off Benex as well. (Footnotes omitted.)

25. Nova Builders submitted that in determining whether the communications were made in furtherance of a fraud, it is necessary to assess “the motives and conduct of Civil, by its director, [Mr] Moseley”. It submitted that the knowledge and conduct of Chamberlains was not relevant to this issue.

26. In oral submissions, counsel for Nova Builders initially submitted that there was significance in the chronology of the pleadings that were filed on behalf of Civil. In particular, counsel noted that it was not until the filing of the Further Amended Statement of Claim that any assertion of a joint venture was made in Civil’s pleadings. However, in his submissions in reply, counsel for Nova Builders acknowledged that this chronology did not add anything of significance to his primary argument, namely, that Civil’s instructions to Chamberlains to assert in the pleadings and in the litigation generally that Civil and Benex were in a joint venture was a furtherance of the fraud which Mr Moseley had committed upon Benex and Nova.

Mr Moseley

27. Counsel for Mr Moseley did not cavil with the proposition that Mossop J had, in effect, made a finding of fraud against Mr Moseley. Rather, he contended that there is a distinction between communications that are made to a legal adviser “for the purpose of being guided in perpetuating the fraud or crime” and communications made “for the purposes of defending proceedings about the fraud”. Mr Moseley contended that the present communications fall into the second category.

Chamberlains

28. Chamberlains did not play an active role in the present application. Apart from generally supporting the submissions made on behalf of Mr Moseley as to the proper construction of s 125, counsel for Chamberlains did not make any submissions in support of, or, against the privilege claim.

No need for inspection of the documents

29. At the time that this issue was referred by Mossop J for determination by another judge, all parties envisaged that the determination of the claim for privilege would require inspection of the documents produced. However, during the course of oral argument, all of the parties subsequently agreed that it would not be necessary for me to inspect the documents produced in order to determine the question of access. Rather, the parties agreed that the present issue is to be determined by the proper construction of the words “in furtherance of the commission of a fraud” in s 125 of the Evidence Act.

Authorities

30. Section 125 of the Evidence Act is extracted above. Section 125 generally reflects the common law position that “… no Court can be called upon to protect communications which are in themselves parts of a criminal or unlawful proceeding”: Bullivant v Attorney- General (Vic) [1901] AC 196 at 201.

31. The “fraud” referred to in s 125 “is not limited to legal fraud in the narrow sense”. It extends to “all forms of fraud and dishonesty such as fraudulent breach of trust, fraudulent conspiracy, trickery and sham contrivances”, and also includes “the kind of sharp practice often associated with equitable fraud encompassed by the Shorter Oxford Dictionary sense of dishonesty, namely ‘lack of probity; disposition to deceive, defraud or steal’”: Carrafa v Asfar (No 3) [2023] NSWSC 24 at [13(2)], citing Kang v Kwan [2001] NSWSC 698 at [37].

32. In Kaye v Woods (No 2) [2016] ACTSC 87; 309 FLR 200, Mossop AsJ (as his Honour then was) held at [38] that: … the requirement that the document or communication be ‘in furtherance of’ the fraud etc requires more than the document or communication be relevant to it. Rather it must be connected to the fraud etc in the sense of helping it, advancing it or assisting it.

33. The fraudulent conduct can be on the part of the lawyer, the client, or a third party relevant to the proceedings. Where a client is engaged in fraudulent conduct, the lawyer need not be party to the fraud (or even aware of the fraudulent character of the transaction) for privilege to be revoked: see Carbotech-Australia Pty Ltd v Yates [2008] NSWSC 1151 at [22] and Carrafa v Asfar (No 3) at [13(7)]. For this reason, it is not necessary for the author of the document to know or intend that a fraud be committed: Carbotech at [23].

34. However, a communication which merely discloses a fraud or crime will not fall within s 125, because such a communication is not prepared “in furtherance of the fraudulent or criminal purpose”: Carbotech at [24]. Similarly, the provision of legal advice about the defence of an alleged fraud, the legal consequences of a past fraud, remedies that may be invoked by a victim of a past fraud, and/or the availability of any legal defences that may be available “would not be in furtherance of the commission of the fraud”: Amcor Ltd v Barnes [2011] VSC 341 at [62].

35. The position is different where the fraud is ongoing. As Brereton J held in Carbotech at [25]-[26], citing Watson v McLernon [2000] NSWSC 306: What is contemplated by the concept of a communication being in furtherance of the commission of a fraud or an offence was considered by Hodgson CJ in Eq in Watson v McLernon, where his Honour concluded (at [116]): The next question is, what would amount to furtherance of such a purpose? I accept that a purpose of merely concealing previous dishonest conduct, and avoiding adverse consequences, such as penalties or claims for damages, which could flow therefrom, would not amount to furtherance of the improper purpose. The policy of the law is to encourage people to get legal advice so that they can be aware of their rights in relation to such matters. However, if the person seeking advice proposes to continue the dishonest conduct… and proposes to use legal advice to assist in this purpose, then in my opinion that would be sufficient to amount to a furtherance of the improper purpose. In other words, if the client is obtaining legal advice in the context of an ongoing dishonest or fraudulent undertaking, so that the advice will or may impact upon or inform the client in the course of that undertaking, it will be regarded as being in furtherance of the improper purpose. (Emphasis added.)

36. In other words, conduct occurring after the fraud is “completed” can still be held in “furtherance of the commission” of the fraud, depending on the “nature and purpose of the conduct”: Amcor at [58]. Kyrou J explained the distinction in Amcor at [61] as follows: … legal advice that is sought about what positive steps can be taken to give continuing efficacy to the fraud, such as advice on positive steps to conceal the fraud or positive steps to place the relevant property beyond the reach of any court order that the victim may obtain … can be described as advice prepared in furtherance of the commission of a fraud. (Emphasis added.) Determination

37. As noted above, the documents that have been produced in response to the subpoena are documents which attract legal professional privilege under s 118 and/or s 119 of the Evidence Act. The communications contained therein are clearly communications that were prepared for the dominant purpose of Civil being provided with legal services relating to litigation that was then pending in this Court. The sole question for determination is whether that privilege has been abrogated by s 125 of the Evidence Act, which creates an exception to legal professional privilege where the communication is made “in furtherance of the commission of a fraud”.

38. Although Mossop J did not make an express finding that Mr Moseley had committed a fraud on Nova Builders and/or Benex, the substance of his Honour’s findings is tantamount to that conclusion. In particular, his Honour’s findings included: (a) Mr Moseley’s evidence was “completely unreliable”. It reflected “a lack of honesty in his dealings with others and a complete disregard for the obligations imposed upon him by the law in relation to those dealings”: Nova (No 3) at [82]; (b) Mr Moseley was “knew what he was doing was wrong”: Nova (No 3) at [89]; (c) Mr Moseley’s evidence in relation to the lack of payment to Benex was “obviously disingenuous”: Nova (No 3) at [107]; (d) Mr Moseley abused his position as general manager of Benex to obtain a financial benefit for Civil to which Benex was entitled: Nova (No 3) at [107]; (e) Mr Moseley intended that Mr Pierlot (Nova’s agent) make payments to Civil on the mistaken basis that Civil was authorised by the members of a joint venture to receive payment on behalf of Benex: Nova (No 3) at [114] – [115]; (f) At the time that he sent the invoices to Nova in January and February 2020, Mr Moseley knew that Civil was not the contracting party; that there was no agreement that included Benex which would permit Civil to receive any money relating to the performance of the work at the Site; and that Civil had no entitlement to the money which was claimed from Nova Builders: Nova (No 3) at [115].

39. On the basis of the above findings, I am comfortably satisfied that Mr Moseley committed 2 a fraud upon Benex and/or Nova Builders. I note that these findings were not disturbed by the decision of the majority of the Court of Appeal: Civil & Civic (No 2) at [103]. As Mr Moseley was a director of Civil, and was giving instructions to Chamberlains on behalf of Civil, I am also satisfied that Mr Moseley’s fraud should be attributed to Civil. (No submission to the contrary was advanced in the present application).

40. As counsel for Mr Moseley submitted, this is not the end of the inquiry. In order for s 125 to be enlivened, it is necessary for Nova Builders to demonstrate that the legal communications made by Mr Moseley to Chamberlains were made in “furtherance” of this fraud.

41. In this respect, as the authorities cited above make clear, the giving of advice about how to conceal a fraud may fall within s 125 of the Evidence Act if the advice concerns the taking of “positive steps” to conceal the fraud. Whilst the line between defending an allegation of a past fraud, and taking positive steps to conceal a past fraud is a fine one, in the present case, I am satisfied that the positive pleading of a joint venture, which Mr Moseley knew to be false, constituted the taking of a “positive step” to conceal the fraud. In effect, the pleading of the joint venture enabled the fraud to be continued. Accordingly, privilege is abrogated, whether or not Chamberlains was aware of Mr Moseley’s fraudulent intent.

42. Of course, this finding does not mean that legal professional privilege is abrogated with respect to all of the advice sought from and given by Chamberlains. For example, the

2 Such satisfaction may not strictly be required: see Kang at [41(6)]. giving of instructions and advice related to matters concerning the litigation that is not concerned with the setting up of the positive assertion of the existence of the joint venture will not be a communication “in furtherance of the fraud”.

43. The subpoena to produce documents appears to have been drafted with this distinction in mind. As outlined above, the subpoena only sought communications: … being, or relating to, the giving or obtaining instructions or advice concerning the matters alleged in Paragraphs 10 and 11 of the second defendant’s Further Amended Statement of Claim in proceedings SC276/2020 in the period between 1 April 2021 and 20 February 2023.

44. Paragraphs 10 and 11 of the Further Amended Statement of Claim relate to the allegations concerning the joint venture. As the subpoenaed documents are limited to this issue, I agree with the position taken by the parties that it is not necessary for me to inspect the documents produced in response to the subpoena at this time.

Orders

45. I will hear the parties as to what orders, if any, should be made to give effect to this decision.

I certify that the preceding forty-five [45] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker

Associate: JC Date: 3 July 2026