Re SLKALT Pty Ltd (in liq) [2024] VSC 250 (17 May 2024)

For the Appellants (Michael Kurc, Riot Stores Pty Ltd and Damiss Nominees Pty Ltd)

1 The plaintiffs are the joint liquidators of SLKALT Pty Ltd (In Liquidation) (ACN 005 289 190) (the Company). Documents have been produced to the Court by various persons and companies, including the appellants, pursuant to compulsive processes under the Corporations Act 2001 (Cth) (the Corporations Act). The appellants object to some of the documents being inspected by the plaintiffs on the grounds that they contain communications subject to legal professional privilege. The plaintiffs dispute the appellants' objections. On 2 August 2023, a Judicial Registrar ordered the plaintiffs and their solicitors have leave to uplift, inspect and copy the relevant documents. The appellants then commenced this appeal. This appeal is a de novo hearing.

2 The appellants provided the Court with a consolidated bundle of the documents over which privilege was claimed (document bundle) containing 1763 pages. The number of documents in dispute was narrowed during the hearing before the Judicial Registrar and also on this appeal. A final list of disputed documents was provided to the Court (the final list of disputed documents). A copy is included as Annexure A to this judgment for convenience. The final list of disputed documents addresses 67 itemised documents, with many of the documents being chains of emails and attachments. There is a substantial amount of duplication. Documents 1, 4, 32, 34, 44, 57 and 65 are shown as struck through in the final list of disputed documents. This is because the appellants abandoned their objection to the inspection of these documents. The final list of disputed documents sets out a convenient summary of the grounds of the plaintiffs' disputes of the privilege claims. The issues on this appeal may be briefly stated and reflect how the appeal was conducted by the parties.

3 First, do Documents 5-27, 29-30, 33, 35-38, 40-43, 45, 50 and 58-59 contain communications made for the dominant purpose of legal advice? This involves the determination of two issues:

(a) whether the evidence in support of the claims of privilege concerning Documents 16-19, 22-26, 33, 35-38 and 50 is sufficient and, as a result, whether the appellants have discharged their evidentiary onus;

(b) whether the communications involving the Company's external accountant, Mr Joel Goldman (Mr Goldman), in Documents 5-22, 24-27, 29-30, 35, 37, 40-43, 45 and 58-59 were made for the dominant purpose of legal advice.

4 There was no dispute between the parties that the appellants have established that the other documents (excluding Documents 1, 4, 32, 34, 44, 57 and 65 for which the appellants abandoned their objection to the inspection of these documents) contain communications made for the dominant purpose of legal advice.

5 Second, to the extent that any privilege is held in the communications in the documents in the final list of disputed documents, is that privilege held jointly with the Company? It was common ground that if the privilege was held jointly with the Company the plaintiffs are entitled to inspect the documents.

6 Third, if privilege is not held jointly with the Company in any of the communications in the documents, does the 'fraud/crime' exception to the privilege apply to the communications in those documents?

7 For reasons I am about to give, I have concluded:

(a) the communications in Documents 5-27, 29-30, 33, 35-38, 40-43, 45, 50 and 58-59 were made for the dominant purpose of legal advice except for the communications identified in this judgment at paragraph 112. There was no dispute that the other documents (excluding Documents 1, 4, 32, 34, 44, 57 and 65 for which the appellants abandoned their objection to the inspection of these documents) were made for the dominant purpose of legal advice;

(b) privilege in the communications is jointly held with the Company (excluding Documents 1, 4, 32, 34, 44, 57 and 65 for which the appellants abandoned their objection to the inspection of these documents and the communications identified in this judgment at paragraph 112), except for the communications in Document 64;

(c) in relation to the communications in Document 64 (i.e. being the only communications not subject of the joint privilege with the Company), the crime/fraud exception to the privilege does not apply.

8 On 24 March 2022, the plaintiffs filed an originating process seeking relief pursuant to ss 596A, 596B and 597(9) of the Corporations Act. There is no respondent to the proceeding. On 11 April 2022, a Judicial Registrar ordered, inter alia: summonses for examination to Mr Michael Kurc (Mr Kurc), an appellant, Mr David Kurc, Mr Solomon Kurc and Ms Lea Kurc be issued pursuant to s 596A of the Corporations Act, including for the production of certain documents; summonses for examination to Mr Goldman, as director of Goldman Financial Services Pty Ltd trading as Goldman & Associates, and Mr Lurie in his capacity as a partner of the partnership B2B Lawyers, be issued pursuant to s 596B of the Corporations Act, including for the production of certain documents; and the proper officers of Riot Stores Pty Ltd (Riot Stores) and Damiss Nominees Pty Ltd (Damiss Nominees), each also being an appellant, produce certain documents pursuant to s 597(9) of the Corporations Act.

9 On 20 April 2022, the plaintiffs filed summonses pursuant to the order made by the Judicial Registrar. Mr Kurc and Mr Goldman produced documents pursuant to the summonses. Riot Stores and Damiss Nominees produced documents pursuant to the order made by the Judicial Registrar. On 29 August 2022, a Judicial Registrar ordered, inter alia, that Mr Lurie have leave to be heard in relation to the application of the crime/fraud exception to the claims for privilege. No objection was taken on this appeal to Mr Lurie also being heard on this issue. On 26 September 2022, Mr Kurc, Riot Stores and Damiss Nominees filed a single consolidated list of the documents over which they made claims for privilege.

10 On 21 July 2023, the Judicial Registrar delivered her ruling concerning the claims for privilege. The Judicial Registrar concluded that all but one of the documents were privileged and that privilege was jointly held with the Company. As a result, the Judicial Registrar ordered, inter alia, that the plaintiffs and their solicitors have leave to uplift, inspect and copy all of the privileged documents produced to the Court, and for such documents to be without redaction and be returned directly within 14 days of uplift, insofar as is necessary. On 3 August 2023, the appellants filed a notice of appeal. On 4 August 2023, the Judicial Registrar ordered that the operation of the order that the plaintiffs and their solicitors have leave to uplift, inspect and copy the privileged documents be stayed until the hearing and determination of the appeal against that order. On 9 August 2023, the plaintiffs filed a notice of contention which contended that the judgment of the Judicial Registrar should be affirmed on grounds of fact or law which were not decided or were erroneously decided. The parties initially proceeded as if this appeal was not a de novo hearing and filed documents on this basis, including the notice of appeal, notice of contention and submissions. The Court raised these matters with the parties before and at the hearing of the appeal. As a result, the parties filed further submissions and the hearing of the appeal was conducted as a de novo hearing.

11 This appeal concerns circumstances involving the Kurc family and their family entities. The Kurc family includes Mr Kurc, his parents Ms Lea Kurc (who passed away on 18 May 2023) and Mr Solomon Kurc, his brothers Mr David Kurc and Mr Joshua Kurc, and his sister Ms Shirley Kurc. Mr Kurc gave evidence that over time the Kurc family acquired and developed assets that are held in various structures, including companies, trusts, partnerships and superannuation funds. The first plaintiff and joint liquidator of the Company, Mr Giasoumi, gave evidence that this group of related entities is referred to as the "Kurc Group". The Company was formerly named "S. & L. Kurc Nominees Pty. Ltd." It changed its name to "SLKALT Pty Ltd" on 16 July 2020. Mr Giasoumi gave evidence that the Company is the trustee of the Kurc Family Trust and operated solely in that capacity. The Company conducted the business of the retail sale of art and crafts supplies, both online and from retail stores located around Australia. The retail stores were located predominantly in high profile shopping centres and some shopping strips. The Company operated under various business names including "Riot Art and Craft Online", "Riot Art & Craft" and "Riot Art". The Company owned Riot stores trademarks, business names, brands, social media channels, a client database and the domain name "www.riotstores.com.au". The Company's head office was located at Unit 10/104-110 Keys Road, Cheltenham (the Cheltenham property).

12 Mr Kurc gave evidence that in about 2002, Ms Lea Kurc ceased being involved in any day to day operations of the Company. From 2003 onwards, Mr Kurc was largely responsible for managing the Company. Since about this time, Mr Kurc has been largely responsible for looking after the family's business interests, including as a director of a number of family companies. In 2015, Mr Solomon Kurc ceased being involved in the day to day operations of the Company. By around this time, Mr Solomon Kurc and Ms Lea Kurc were looking to retire as directors of the Company and to be removed as guarantors. Mr Kurc gave evidence:

1. ... As directors of the Company, my parents were often named as guarantors on leases entered into by the Company and so they and I wanted to remove their names as guarantors to enable my parents to retire from managing the Company completely. It took approximately 5 years to complete this.

13 Mr Kurc gave evidence that from about this time, i.e. 2015, he gave increasing consideration to appropriate organisation for the succession of the family's interests, including the structuring of finance and assets. I refer to the list of the entities in the Kurc Group prepared by Mr Giasoumi. The entities include, inter alia:

(a) Damiss Nominees. In 2020, Mr Kurc and Mr David Kurc were the directors. Mr Solomon Kurc and Ms Lea Kurc had ceased to be directors in June 2019. Mr Kurc gave evidence that Damiss Nominees is a Kurc family entity used, among other entities, to finance the family's business interests;

(b) Riot Stores, which was incorporated on 22 January 2020. Mr Kurc has been the sole director at all times;

(c) Dajomis Pty Ltd (Dajomis). In 2020, Mr Kurc was the sole director. Mr Solomon Kurc and Ms Lea Kurc had ceased to be directors in July 2019;

(d) Kurc Services Pty Ltd (Kurc Services). Mr Solomon Kurc and Ms Lea Kurc have been the directors at all relevant times, save for a brief period between July to October 2019 when Mr Kurc was the director;

(e) Soleku Pty Ltd (Soleku). It is the trustee for the Soleku 2 Unit Trust. Mr Kurc and Mr David Kurc have been the directors since 2019, when Mr Solomon Kurc and Ms Lea Kurc ceased to be directors; and

(f) RACFS Pty Ltd (RACFS). In 2020, Mr Kurc was a director except for the period between 1 May 2020 to 10 August 2020. In 2020, Mr David Kurc was a director until 1 May 2020.

14 Mr Kurc gave evidence that finance was provided to the family's business interests by the ANZ Bank and that family members and companies provided various securities. Mr Kurc gave evidence that in about 2018 he wanted to have the Company's debt to the ANZ Bank paid down. He gave evidence that the Company had peaked at 68 physical stores and not all stores were growing or profitable so he decided to close some of the non-profitable stores. Mr Kurc gave evidence that in around 2019, he approached Mr Gerald Teh of Axis Capital to assist with refinancing the debt then owed to the ANZ Bank. Mr Kurc gave evidence that ultimately arrangements were made in 2020 including repaying debt to the ANZ Bank, and extending the time for the payment of debt owed by the Company to Damiss Nominees in exchange for security. This is addressed further later in this judgment. On 17 June 2019, Mr Solomon Kurc and Ms Lea Kurc ceased to be directors of the Company and of Damiss Nominees.

15 Mr Kurc gave evidence that by January 2020, the business was operating from physical retail stores and via a website. He gave evidence that the internet business at this time was loss making and a burden. He gave evidence that having regard to organising a structure suitable for the family's interests, he considered it desirable for the internet business to be held separately from the business operated through the retail network. In January 2020, the Company obtained an independent valuation from the First Valuation Group which valued the Cheltenham property at $2,425,000**.** Mr Kurc gave evidence that in about January 2020, he decided that he wanted to move the Company's internet business to another entity to "clean up the Company", reduce its debt and pay off the remaining amount owed to the ANZ Bank. He gave evidence that at this time the Company's internet business was trading poorly and its operating costs exceeded the income that it was generating. On 22 January 2020 Riot Stores was incorporated to be the entity that would acquire the Company's internet business. Mr Kurc was appointed the sole director. On 11 March 2020, the Company sold the Cheltenham property to Soleku for $2,500,000.

Retainer and initial instruction of B2B Lawyers

16 In about late March 2020, Mr Kurc asked Mr Goldman, the Company's external accountant, if he knew any lawyers that could assist him with the "process" of moving the Company's internet business to another entity to "clean up the Company", reduce its debt and pay off the remaining amount owed to the ANZ Bank. Mr Kurc gave evidence:

1. Accordingly, as stated at paragraph 9 of my August 2022 Affidavit, I asked an accountant, Joel Goldman, to recommend a lawyer that could provide guidance regarding estate and succession planning for the family, in the context of refinancing the remaining debt to ANZ (including to avoid any possible enforcement of securities held by ANZ) and a potential restructure of aspects of the family's affairs. Mr Goldman provided me with the details of David Lurie of B2B Lawyers, who I proceeded to contact and engage.

17 At this time, Mr Kurc and Mr David Kurc were the directors of the Company and Damiss Nominees and Mr Kurc was the sole director of Riot Stores. Mr Lurie gave evidence that B2B Lawyers had not previously acted for members of the Kurc family or any of the family entities. Mr Kurc gave evidence that in about late March 2020, he "reached out to B2B Lawyers". On 31 March 2020, Mr Kurc sent an email with the subject "Restructure" from the email address "michael@riotstores.com.au" to Mr Lurie, in which he stated, inter alia:

Our family business has retail stores

We're interested in restructuring in the current environment and we were told your the best person to seek advise from for this

18 Mr Lurie responded by email in which he stated, inter alia: "It would help if I could get a corporate trust tree and balance sheets before our discussion." Mr Kurc gave evidence that in his communications with B2B Lawyers, he predominantly spoke with Mr Lurie, but also spoke with Ms Rachel Chew (Ms Chew) and Ms Yun Ling (Ms Ling). Mr Lurie gave evidence that Ms Chew and Ms Ling were employees of B2B Lawyers working under his supervision. Both are no longer employees of B2B Lawyers. Mr Lurie gave evidence that he was contacted by Mr Kurc to assist Mr Kurc with "restructuring the family business". Mr Kurc gave evidence:

I instructed B2B Lawyers to assist me with a restructure of the family business. Ultimately this included structuring Riot Stores Pty Ltd and to manage debts recorded to be payable by Damiss Nominees Pty Ltd as well as to manage the remaining amount payable to the ANZ bank.

I communicated with David back and forth for some time before it was clearly established what the best method forward for my family and me was and exactly what I was engaging B2B Lawyers to do. At this stage I was unsure as to the exact scope of the engagement that I required B2B Lawyers to act and who or which entity for.

Involvement of B2B Lawyers, steps taken by Mr Kurc and subsequent transactions

19 On 1 April 2020, Ms Chew sent an email to Mr Kurc. It provided advice in relation to the Covid-19 safe harbour regime and employment matters. Ms Chew provided an article and a template letter. Ms Chew also stated in the email "we will send by separate email details of the proposed transactions discussed this afternoon." In the period between 2 and 5 April 2020, emails were exchanged between Mr Kurc, Mr Goldman and persons within B2B Lawyers, including Mr Lurie, with subjects, inter alia, "new entity" and "new entity and sale".

20 On 6 April 2020, Banks Group valued the Company's internet business at a combined value of $132,909 if sold unencumbered. On 8 April 2020, the Company sold the internet business to Riot Stores for $135,000 but subject to the existing securities over those assets. Damiss Nominees lent funds to Riot Stores to enable Riot Stores to pay the amount owing under the contract of sale to the Company. The existing securities remained in place over the assets. Mr Giasoumi gave evidence that the Company continued to trade its unprofitable retail stores while not paying rent. On 8 April 2020, a loan deed and general security charge were executed between the Company (as borrower and grantor under the general security charge) and Damiss Nominees (as lender and secured party under the general security charge) (with Riot Stores as Guarantor to loan deed) to document a loan. The loan deed was prepared by B2B Lawyers. Mr Lurie gave evidence that after a short time corresponding with Mr Kurc "to determine the scope of his retainer of B2B Lawyers" he had Ms Chew and Ms Ling provide Mr Kurc with a cost disclosure. On 14 April 2020, Ms Ling sent an email to Mr Kurc attaching a disclosure statement and cost agreement (the retainer agreement). There is no evidence that the retainer agreement was subsequently signed. Ms Ling stated in the email, inter alia, as follows:

The cost estimated in the sum of $28,000 plus GST plus disbursements of approximately $3,375.00 relate to our professional fees associated with general corporate restructure advice as outlined in the table below:

Establishing the MK Riot Trust (discretionary trust) with adjustments for limitation of any capital distributions to spouses and partners

Establishing the DK Riot Trust (discretionary trust) with adjustments for limitation of any capital distributions to spouses and partners

Establishing the JK Riot Trust (discretionary trust) with adjustments for limitation of any capital distributions to spouses and partners

General Security Charge Agreement including registration of security interest

Loan Deed between Damiss Nominees Pty Ltd as lender and KFT as borrower

Loan Deed between Damiss Nominees Pty Ltd as lender and Riot Stores Pty Ltd as trustee for the Riot Stores Unit Trust as borrower

Deed of Guarantee and Indemnity between Riot Stores Pty Ltd as guarantor and Damiss Nominees Pty Ltd as secured party

General Security Charge Agreement in favour of Damiss Nominees Pty Ltd against Riot Stores Pty Ltd including registration of security interest

General Security Charge Agreement in favour of Damiss Nominees Pty Ltd against KFT including registration of security interest

General Security Charge Agreement in favour of Riot Stores Pty Ltd as trustee for the Riot Stores Unit Trust against KFT including registration of security interest

Shelf Companies to act as trustees for the 3 discretionary trusts $2100 (approx. $700 each)

Registration of 3 security interests on the PPSR: $75 ($25 each)

Please note that the cost estimate excludes work associated with the supply agreement and consignment agreement between the Kurc Family Trust (KFT) and Riot Stores Pty Ltd, formal transfer of IP from KFT to Riot Stores Pty Ltd or a new IP entity, establishment of a new entity to hold the IP and any discussions relating to potential voluntary administration. A separate cost estimate will be provided for those works will be provided in due course.

21 The description of the matter is also set out in the retainer agreement attached to the email. The reference to the "Sale of Business" and work associated with that is a reference to the sale by the Company of the internet business. Mr Kurc gave evidence that some work was already underway by this time. This included the sale of business agreement and the loan deed between Damis Nominees and the Company. The retainer agreement identifies the clients as Damiss Nominees and Riot Stores. Mr Lurie gave evidence that the costs disclosure was addressed to Damiss Nominees and Riot Stores because these were the only entities that he understood were B2B Lawyers' clients. The retainer agreement identifies the "Matter" as being "219116 and 220123". I find that these are the internal matter numbers allocated by B2B Lawyers. This is important as there were also other matter numbers allocated by B2B Lawyers in relation to other work performed for members of the Kurc family and entities in the Kurc Group. I address this further later in this judgment. Mr Kurc gave evidence that he did not receive any other written cost retainers from B2B Lawyers other than the retainer agreement. Mr Kurc also gave evidence that at the time he received the retainer agreement he appreciated that the advice that he was seeking for organising "our affairs" was advice for the family entities being Riot Stores and Damiss Nominees rather than the Company.

1. ...This cost disclosure stated that it did not include work pertaining to the consignment agreement or the formal transfer of intellectual property to Riot Stores Pty Ltd. Despite this cost disclosure not covering those items I continued to engage B2B Lawyers to act for Riot Stores Pty Ltd with respect to the consignment agreement.

1. Additional to the work performed for the Examinee Companies [i.e. Riot Stores and Damiss Nominees] under the cost disclosure described above, Michael Kurc also engaged B2B Lawyers on behalf of Riot Stores Pty Ltd to draft the consignment agreement and also to assist with the structuring the method in which the intellectual property sold to Riot Stores Pty Ltd would be held.

24 Mr Kurc gave evidence that except for his initial email to B2B Lawyers around the end of March 2020 he always communicated with B2B Lawyers using his personal and private Gmail email address which was not associated with the server of the Company. Mr Kurc gave evidence that the reason for this practice was to keep his communications with B2B Lawyers, sent on behalf of himself and/or Damiss Nominees and Riot Stores, separate and distinct from the communications that he was sending for and on behalf of the Company. The retainer agreement was sent to Mr Kurc's Gmail address. Mr Kurc gave evidence that all invoices that were issued by B2B Lawyers were paid for by either Damiss Nominees or Riot Stores depending on the work covered by those invoices. Mr Kurc also gave evidence that the Company did not make any payments towards any invoices issued by B2B Lawyers. On 17 April 2020, Mr Kurc sent the following email to Mr Goldman and Mr Lurie. A claim for privilege over this document is no longer pressed:

Joel and David

Thanks for your help with the restructure [sic] As you know we have paid down debt through think tank and with judo bank late last year.

We sold the 10/104 keys Rd asset of Kurc family trust to soleku 2 trust paying all stamp duty and accounting for all capital gains in Kurc family trust.

As part of the generational change for our family the Kurc family trust has decided to restructure its business in an attempt to terminate onorous [sic] lease obligations strangling the retail stores.

Thanks for your help in setting up the future of the Kurc family business by separating the legacy business from the online business - this is where the growth is.

Only time will tell if the restructure as the desired outcome for us of setting up the family for future retailing especially after this coronavirus time [sic]

Regards.

25 On 8 May 2020, a document was prepared named "kurc group questions". This document sets out a number of matters under headings titled "QUESTION 1" and "QUESTION 2". I find that it was prepared by Mr Kurc because he gave evidence that he was the person largely responsible for managing the Company. There is a further version of this document, which has been marked up with text that is underlined and has document properties which show that it was modified by B2B Lawyers on 11 May 2020. Mr Giasoumi gave evidence that the marked up document states, inter alia:

QUESTION 1

Goal

Kurc Family Trust (OLD COMPANY) has $4.1m it owes ANZ. ANZ has security covering this debt.

Kurc Family Trust (OLD COMPANY) owes THINKTANK $3.1m secured against the assets of Kurc Family Trust (OLD COMPANY) and various other entities controlled by the Kurc Family.

The Kurc Family also has $6.2m it owes to Judo Bank secured against assets owned by Kurc Services Pty Ltd and Elster Avenue Property Trust. This loan IS NOT secured by Kurc Family Trust (OLD COMPANY)

The GOAL is to pay down all of this debt in the next 5.5 months.

ADVICE REQUIRED

How can we best achieve our goals above without complicating a future Administration or Liquidation of Kurc Family Trust and avoiding future potential roll backs and refunds of money we use to transfer to pay debt owed to secured creditors.

a) KFT should first directly repay ANZ. The ANZ security is firm and there is no issue of preference.

b) KFT should prepay Riot Stores Unit Trust (RSUT) for stock to be supplied to it. RSUT can then repay Think Tank and take security over the real estate and the mortgagor. Rachel has revised the Supply Agreement to make prepayment explicit.

c) Need to understand more about Kurc Family Services Pty Ltd and the Elster Avenue Property Unit Trust. The Kurc Services Pty ltd financials for 30/06/2019 show it has assets of debts owed to it by the KFT of $424.658 and Damiss Nominees Pty Ltd of $405202. Are these debts still in existence? A balance sheet of the Elster Avenue Property Unit trust would be of interest.

QUESTION 2

PLAN FOR THE STOCK

Please advise if the below action is advisable

Kurc Family Trust (OLD COMPANY) currently owns approximately $750,000.00 in a warehouse at 104-110 Keys Rd Cheltenham (the Warehouse)

This should be sold on consignment to the RSUT

The view of the Director of Riot Stores Pty Ltd ATF Riot Stores Unit Trust (NEW COMPANY) is that its business should pay for and own all the goods in The Warehouse and all future goods that are to be sold to customers of the NEW COMPANY and to the OLD COMPANY.

Agreed

NEW COMPANY would sell the goods to the OLD COMPANY at a margin to cover the costs associated with sourcing and distributing the goods.

Agreed

OLD COMPANY would have to pay for goods in advance to NEW COMPANY.

Agreed

NEW COMPANY will invoice OLD COMPANY for all goods ordered by OLD COMPANY.

Agreed

OLD COMPANY will provide Purchase Orders to NEW COMPANY for the stock it orders

Agreed

26 On 22 May 2020, Mr Kurc sent an email to Mr Goldman and Mr Lurie in which he provided an update on rental negotiations between the Company and its landlords. On or about 27 May 2020, the Company (in its own right and as trustee for the Kurc Family Trust) entered into a Deed of Acknowledgement (Subrogated Rights) with Kurc Services (in its own right and as trustee for the Kurc Services Trust), Ms Lea Kurc (in her own right and as trustee for the Elster Avenue Property Trust) and Mr Solomon Kurc (in his own right and as trustee for the Elster Avenue Property Trust). This deed was prepared by B2B Lawyers. The deed provided that Kurc Services discharged in part the Company's obligation to ANZ by paying $1,912,731.63 in reduction of the Company's debt to ANZ and Mr Solomon Kurc and Ms Lea Kurc discharged in part the Company's obligations to ANZ by paying $1,515,947.71 in reduction of the Company's debt to ANZ. A further document was prepared titled "KURC GROUP - QUESTIONS FOR B2B LAWYERS". I find that this document was prepared by Mr Kurc on about 28 May 2020. This is because the first line of the document refers to a position as at that date. I also find that it was prepared by Mr Kurc because he gave evidence that he was the person largely responsible for managing the Company. It is important to set out the document in full:

KURC GROUP - QUESTIONS FOR B2B LAWYERS

STATE OF PLAY

As of the 28th May 2020 S & L Kurc Nominees Pty Ltd atf Kurc Family Trust t/a Riot Art & Craft (OLD ENTITY) continues to trade from its 58 retail outlets.

The stores that it proposed to close Pre-Covid remain open as the cost of redundancies and make good of the stores exceeds the contribution these stores will be making whilst the OLD ENTITY remains on JobKeeper and pays no rent to the Landlords.

As we approach the start of June 2020 we have reached agreement to reduce our rent for three months (until the end of June 2020) with 5 of 7 Landlords where we have stores in retail strips.

For the stores in major shopping centres we have held discussions with GPT with whom we have 2 stores (Charlestown, NSW and Highpoint, VIC). These discussions were general in nature with the Landlord offer no specifics as to their offer apart from mentioning that they will send us information about their cash flow relief for tenants under JobKeeper and whether we preferred a waiver of rent or a deferral. We have kept our position silent on the matter and will wait until the landlord sends us their offer.

We have not sent out our request for rent relief letters as yet, although they are all prepared and in envelopes ready to send, as I don't want to show our hand before the Landlord reaches out to us.

We have spoken to most of the other Landlords, including SCENTRE, but no mention was made of rent, the fact that we hadn't paid for three months or if we wanted to discuss the matter. Everyone is holding their cards close and dont want to reveal their next moves.

We suspect that as 30th June 2020 approaches the institutional Landlords will seek clarity from tenants on their rent position and try to get some certainty concerning their tenants position moving forward. We will not be paying rent until Landlords approach us and agree to negotiate based on the terms (rent as a percentage of sales plus the return of our bank guarantees).

We continue to pay down the secured debt owed to ANZ Bank. At the start of May OLD ENTITY owed the ANZ $4.084m. At the end of May this debt will be down to $2.684m and by the end of June it will be down to $1.384m and by the end of July the debt will be extinguished.

PLANNING FOR THE FUTURE

We are now at the point that we are confident that we will have no secured debt owed to ANZ or ThinkTank by the end of September 2020.

The only secured debt owed will be owed to DAMISS NOMINEES PTY LTD, our related company. We have invested in our website and it trades profitably. In planning for the future we want to understand what the scenarios will be post 25/9/2020 when the SAFE HARBOUR COVID-19 regulations expire.

We need some answers to questions regarding process post SAFE HARBOUR COVID laws and the immediate period thereafter as we need to make some business decisions in the next 4 weeks that will be determined by how the process works.

Some Questions:

1. Will we be able to move from SAFE HARBOUR COVID-19 to the "standard" Safe Harbour provisions post 25/9/2020?

If we can, are we able to pay down debt to DAMISS NOMINEES, a secured creditor of OLD ENTITY. If we can use the Safe Harbour provisions post 25/9/2020 and get the stores trading through to Christmas 2020 we will be able to pay the debt of $4m back to this secured creditor.

1. The GSA for Damiss over OLD ENTITY was dated 16/4/2020. Does this mean we can't pay back any of this debt until this time? If we can use SAFE HARBOUR after 25/9/2020 can we pay back a secured creditor in preference to an unsecured creditor or do all creditors need to be treated equally?

2. How long does the SAFE HARBOUR period last? Three months, six months? Would the SAFE HARBOUR period have to start from 25/9/2020?

3. Who manages the SAFE HARBOUR period? Would we need to formally appoint the insolvency practitioner to assist us? When would we need to make the formal plans for the SAFE HARBOUR period?

4. Would we have to pay rent when in a SAFE HARBOUR period post 25/9/2020?

5. Can we change the name of OLD ENTITY trustee company from S & L KURC NOMINEES PTY LTD to SLKALT PTY LTD? This is so our surname doesnt endlessly appear on google if we go into VA or Liquidation.

6. What are director's risk and obligations in relation to insolvency during the SAFE HARBOUR period post 25/9/2020 and what are they until 25/9/2020?

7. We have trade creditors of $1m that we no longer use and dont particularly want to pay 100%. During this SAFE HARBOUR COVID period they obviously can't issue proceeding against us but post 25/9/2020 how can these creditors be dealt with under a SAFE HARBOUR regime?

8. Do you have to make an announcement to staff, customers, suppliers, creditors that we are operating under a safe habour regime post 25/9/2020?

10. How can B2B Lawyers help with all the above?

27 On 2 June 2020, B2B Lawyers prepared a memorandum to Mr Kurc, Mr David Kurc and Mr Joshua Kurc. It was in relation to matter No 220129. This is not one of the matters described in the retainer agreement. This is a matter number in relation to "Corporate Advice". The memorandum states:

Teleconference between Michael Kurc, David Kurc, Joshua Kurc, David Lurie, Rachel Chew and Yun Ling on 29 May 2020 at 11 am.

The following items were discussed:

1. Safe Harbour / Director's duties - Directors' duties do not fall under the Safe Harbour "defence". This means that directors must comply with all their other legal obligations at all times.

Michael advised that there are no breach of directors' duties.

1. Temporary relief/amendments to Safe Harbour - A director may only rely on the new temporary safe harbour provisions in relation to a debt incurred by the company, if:

• the debt is incurred in the ordinary course of the company's business;
  • the debt is incurred during the six month period starting 25 March 2020; and
  • the debt is incurred before any appointment of an administrator or liquidator of the company during the temporary safe harbour period.

1. Consultant - Engaging a consultant / Insolvency expert to advise on Safe Harbour compliance. The following consultants had been suggested:

(c) Nic Giasoumi of Dye & Co (Nic provided safe harbour advice for Roger David).

1. There is no requirement to make any announcement with respect to entity operating under a safe harbour regime.
2. Rental issue is not an insolvent trading issue as it is not a "new debt" subject to a new agreement.
3. Creditors - Michael advised that secured creditors are Think Tank and ANZ and related entities. There are not many unsecured creditors.
   • ANZ debt will be paid off by end of June, by the Kurc Family Trust (KFT) or subrogated creditors (Kurc Services Trust and/or Elster Avenue Property Trust).
   • Debt to Damiss Nominees can be paid back 6 months after 16 April 2020 (date GSA in favour of Damiss was signed).

7. Stores - Keep stores open till Christmas/ early next year if possible.

• $5M cashflow to pay off related entities.
• Rental/landlord - consider paying outgoings and part of rental depending on the drop in turn over (case by case basis).
• Old leases and non-payment of rental and/or outgoings are not vulnerable to insolvent trading claims. Any new arrangement with a landlord will be, if not adhered to.

1. Trade creditors - Michael raised issue as to trade creditor who is owed $600k. Stock has been sold. Best to pay down incrementally to obviate issuing of a statutory demand.
2. Statutory demand - The period for debtors to respond to statutory demands has been increased to 6 months (up from 21 days for both statutory demands and bankruptcy notices). The 6-month response period will apply for 6 months, commencing on 25 March 2020. The rules may change again in September.
3. Change in Trustee - B2B to attend to the change of name of trustee company from S&L Kurc Nominees Pty Ltd to SLKALT Pty Ltd.

• K&L Gates will attend to the transfer of trademarks.
• B2B will attend to transfer of the social media and other intellectual property.

12. Wills - B2B to send email re Wills and testamentary trusts.

1. Property - There is a property owned by the siblings valued at $2M (approx. $1.8M equity)
   • Proposed transaction - siblings to be guarantors with respect to Damiss' loans to KFT and for Damiss to take charge over asset.

28 I have already referred in this judgment to the fact that the description of work and the associated costs in the retainer agreement excluded certain matters. This included, inter alia, the transfer of intellectual property from the Company to Riot Stores or a new entity and the establishment of any new entity to hold the intellectual property. B2B Lawyers performed work in relation to establishing Kurc IP Pty Ltd and the Kurc IP Unit Trust in the period from 7 May 2020 to 31 May 2020. B2B Lawyers provided an invoice to Mr Kurc for this work which was described as "Corporate Advice". B2B Lawyers also provided an invoice for its work in relation to "Commercial Lease Negotiations" for the period from 7 May 2020 to 31 May 2020. Mr Giasoumi gave evidence that the Company's bank statements show that on 2 July 2020 the Company paid B2B Lawyers' invoice for this matter. On 16 June 2020, B2B Lawyers also provided advice in relation to Mr Kurc's estate planning. This was described as matter number 220183. On 30 June 2020, Mr Lurie emailed a letter to Mr Kurc in relation to matter numbers 220129 and 220159. These matters are not the subject of the retainer agreement. The letter set out, inter alia, the following in relation to the Corporate Advice matter:

Please find enclosed our invoice number 148763 for work undertaken during the period 7 May 2020 to 31 May 2020 in the sum of $1,649.09 in relation to establishing Kurc IP Pty Ltd and the Kurc IP Unit Trust. Please note that the sum of $971.49 of the invoiced amount is for disbursements (company registration fees, PPSR search reports and stamp duty).

We note that we are currently working on the following documents and will provide you with an update as soon as we can:

1. Deed of Acknowledgment of Subrogated Rights (subject to review of ANZ documents);

2. Deed of Guarantee between the No 5 Partnership, Kurc Family Trust and Damiss Nominees Pty Ltd;

3. Loan and security documents for the loans recorded in the financials of the No 5 Partnership and No 3 Rupert St Pty Ltd;

4. Formal transfer of remaining IP (Matter No 220123); and

5. Assignment of leases (Matter No 220123).

29 The reference to "Matter No 220123" in paragraphs 4 and 5 of the letter is a reference to one of the matters the subject of the retainer agreement. In about early July 2020, Mr Kurc instructed B2B Lawyers to change the Company's name, amend its memorandum and articles of association and take steps to retire a director. Mr Kurc gave evidence that since he was already dealing with Ms Ling on the consignment agreement he believed this "small piece of work could be drafted by her". On 7 July 2020, the Company (in its own capacity and as trustee for the Kurc Family Trust) and Riot Stores (in its own capacity and as trustee for the Riot Stores Unit Trust) entered into a consignment agreement providing that the Company would take stock on a consignment basis for sale from Riot Stores. It was prepared by B2B Lawyers. On 10 July 2020, Mr David Kurc ceased to be a director of the Company. Mr Giasoumi gave evidence that in accordance with the consignment agreement between the Company and Riot Stores, the Company was charged a margin of between 10% to 20% for goods sold through the retail stores. Mr Kurc gave evidence that in July 2020, some of the physical stores were shut because of the Covid-19 Government mandates and the landlords for various leases were unhelpful and for the most part largely refusing to give any rent relief. Mr Kurc gave the following update to Mr Lurie and Mr Goldman in an email dated 13 July 2020 that stated, inter alia:

Just a note to update you on our recent trading.

We have paid back ANZ the bulk of our Secured Debt. All that remains is the $1.247m in bank guarantees that we will put aside in a term deposit to offset. This is being organised by the bank. Once these funds are with the bank they will release all security over our assets. The final payment to them will be August 7th 2020 and hopefully they release everything within a week or so thereafter.

Trading in the stores remains OK with all stores trading, albeit some on reduced trading hours in Victoria.

We have not paid any rent since March and it is our position that we can not pay until the end of the COVID period. The landlords are not offering deals apart from the black letter of the national code.

The landlords have been increasingly aggressive in their behaviour towards getting deals done but without exception all the large institutional landlords want longer terms at the current rent (2-3 years) for a short term abatement in rent.

We will not agree to anything until a full picture of the COVID-19 situation is able to be analysed and with the amount of increasing cases in VIC and potentially in NSW I dont think this will happen in the next 4 weeks.

The smaller Landlords are more reasonable and we have been able to come to agreements with them.

Our stock position remains tight and our cash flow positive and healthy.

We have our finance broker seeking new finance facilities for us if we need them for the future - these will utilise the current assets we have as a family.

30 On or about 17 July 2020, the Company (in its own right and as trustee for the Kurc Family Trust) entered into documents that were prepared by B2B Lawyers, being:

(a) Deed of Acknowledgement (Subrogated Rights) with Dajomis (in its own right and as trustee for the Lanby Investment Trust). The deed provided that Dajomis discharged in part the Company's obligations to ANZ by paying $601,516.81 in reduction of the Company's debt to ANZ;

(b) Deed of Acknowledgement (Subrogated Rights) with Viconn Pty Ltd (in its own right and as trustee for the Michael Kurc Family Trust), Teloa Pty Ltd (in its own right and as trustee for the David Kurc Family Trust) and JDLM Pty Ltd (in its own right and as trustee for the Joshua Kurc Family Trust). The deed provided that each of those entities discharged in part the Company's obligations to ANZ by each paying $555,854.31;

(c) Deed of Acknowledgement (Subrogated Rights) with Soleku (in its own right and as trustee for the Soleku Trust) and Mr Solomon Kurc and Ms Lea Kurc (in their own right and as partners in the L Kurc & S Kurc Partnership) which provided that Soleku and the partnership discharged in part the Company's obligations to ANZ by paying certain amounts; and

(d) Deed of Indemnity with Riot Stores (in its own capacity and as trustee for the Riot Stores Unit Trust) regarding gift card liabilities. Riot Stores (as the indemnified party) agreed to assume gift card liabilities to the extent that the Company (as the indemnifying party) did not honour them and the Company agreed to indemnify Riot Stores.

31 On 24 July 2020, a Specific Security Deed prepared by B2B Lawyers was entered into between the Company (in its own capacity and as trustee for the Riot Stores Trust Account Trust) and Riot Stores as trustee for the Riot Stores Unit Trust. It was prepared by B2B Lawyers. Pursuant to this deed the Company granted a security interest to Riot Stores as trustee for the Riot Stores Unit Trust over certain "ADI" accounts. On 7 August 2020, a Licence of Intellectual Property was entered into between Kurc IP Pty Ltd as trustee for the Kurc IP Unit Trust (as Licensor) and the Company in its own right and as trustee for the Kurc Family Trust (as Licensee). It was prepared by B2B Lawyers. On 2 September 2020, B2B Lawyers sent an email to the ANZ Bank confirming that, among other things, they acted for the Kurc Group and the Company would pay its remaining liabilities to the ANZ Bank within 30 days. On 28 October 2020, B2B Lawyers sent a letter by email to Mr Kurc enclosing invoices, including a further invoice in relation to the "Corporate Advice" matter. This invoice concerned Matter No. 220129. The invoice for this Corporate Advice concerns a wide range of matters. This includes, as recorded in the invoice for work done on 8 September 2020: "... regarding ANZ, subrogation, repayment of secured creditors, stand down staffing and tenancy dispute". Some of these matters relate to the Company's affairs. This includes matters concerning "stand down staffing" as the Company had sent letters to its employees standing down staff in August and September 2020. There is no evidence of any other entity within the Kurc Group having stood down staff at this time. The reference to "tenancy dispute" relates to the Company's affairs. Mr Giasoumi gave evidence that on 1 September 2020, Mr Kurc sent Mr Lurie an email from the email address "Michael@RiotStores.com.au" about a tenancy dispute in relation to a property occupied by the Company that had been referred to the Victorian Small Business Commission for mediation. The matters concerning the ANZ Bank also concerned, inter alia, the affairs of the Company. Mr Kurc gave evidence that his parents also instructed B2B Lawyers for estate planning advice, and had wills and powers of attorney prepared for them.

32 Mr Kurc gave evidence that where legal advice was sought for or on behalf of the Company, separate law firms were engaged. This included CIE Legal for employment related matters, Gilbert + Tobin for rent relief related matters, and K&L Gates for intellectual property related matters.

33 Mr Kurc gave evidence that by October 2020, the situation with the Company's various landlords became "problematic". He gave evidence:

As a result of the mounting debts from the Company's leases and by this stage, particularly in Melbourne, the stores had been closed for a significant period, I no longer thought the Company's business was viable. It was at this point I decided to place the Company into liquidation.

34 On 18 October 2020, the Company paid $3,103,714.79 to Damiss Nominees. Mr Giasoumi gave evidence that this was in purported discharge of the "secured" debt. The plaintiffs were appointed joint and several liquidators of the Company on 19 October 2020. Mr Giasoumi gave evidence that as at the date of appointment of the liquidators, the Company had ordinary unsecured creditors totalling $8,571,070.97 according to the report on company activities and property provided by Mr Kurc to the liquidators. Mr Giasoumi gave evidence that the Company had creditors claiming debts totalling nearly double that sum, being the sum of $16,362,516.45. Mr Giasoumi gave evidence that as at the date of appointment of the liquidators, 137 employees of the Company were owed a total of $3,079,155.53 and that as at 15 August 2022 a total of $2,364,285.60 had been paid to employees of the Company through the "Fair Entitlements Guarantee Scheme". Mr Giasoumi gave evidence that the practical effect of the transactions deposed to in his affidavit sworn 15 August 2022 at paragraph 51 was that related parties received significant payments and possession of the Company's assets, but unrelated creditors such as landlords and employees were not paid notwithstanding that the Company continued to trade using their services.

35 Mr Kurc gave evidence concerning a document titled "Consolidated List of Privilege Documents" which was prepared for this proceeding and exhibited as "MK-1" to his affidavit affirmed 1 August 2022. As I have already said, the number of documents in dispute was narrowed during the hearing before the Judicial Registrar and also on this appeal. The "Consolidated List of Privilege Documents" addresses the same 67 documents the subject of the final list of disputed documents. The "Consolidated List of Privilege Documents" includes a description of the document, the circumstances of the creation of the document and also identifies the "Client/Clients to whom legal advice was provided". I make the following observations:

(a) Mr Kurc is identified, together with others, as a client concerning Document 64 and no other documents;

(b) Damiss Nominees and/or Riot Stores are identified as the only clients for 60 of the documents and, together with others, for 6 other documents, namely Documents 39, 60-62, 64 and 66;

(c) Dajomis is identified, together with others, as a client for Documents 39, 60-62 and 66;

(d) Ms Lea Kurc and Mr Solomon Kurc are identified, together with others, as clients for Documents 39, 60-62 and 66;

(e) Kurc Services is identified, together with others, as a client for Document 66.

36 Mr Kurc also gave detailed evidence concerning each of the 67 documents. Mr Lurie gave evidence that Mr Kurc's description of each of the documents corresponds with his understanding of the documents. Mr Lurie also gave evidence:

I have reviewed the documents over which Michael Kurc and the Examinee Companies have claimed legal professional privilege. To the extent that comunications or documents, which are included in the bundle of documents over which legal professional privilege has been claimed by either of Michael Kurc or the Examinee Companies, were prepared or received by me or any of the staff at B2B Lawyers they were prepared or received in the course of the retainers described in paragraphs 8 and 10 above.

DO DOCUMENTS 5-27, 29-30, 33, 35-38, 40-43, 45, 50 AND 58-59 CONTAIN COMMUNICATIONS MADE FOR THE DOMINANT PURPOSE OF LEGAL ADVICE?

37 This case concerns the legal advice aspect of legal professional privilege and not the litigation aspect. There was no dispute as to the applicable law. First, the parties and Mr Lurie accepted that the claims for privilege are to be determined by applying the Evidence Act 2008 (Vic) (the Evidence Act) and the common law. This is because the appellants' claims for privilege concern:

(a) objection by an appellant to the disclosure of communications in documents produced by that appellant and, as a result, the Evidence Act must be applied to these objections (see s 131A(1) of the Evidence Act); and

(b) objection by an appellant to the disclosure of communications in documents produced by another person (e.g. Mr Goldman). As a result, the common law must be applied to these objections. The Evidence Act only applies if the person who is required to disclose the documents is the person who objects (see s 131A(1) of the Evidence Act).

38 Second, the relevant question in the present circumstances, both under the Evidence Act (i.e. ss 118 and 131A) and at common law, is whether the dominant purpose of the communication was for the lawyer to provide legal advice to the client. This was common ground between the parties. An appropriate starting point when applying the dominant purpose test is to ask what was the intended use or uses of the document which accounted for it being brought into existence (see AWB Limited v Honourable Terence Rhoderic Hudson Cole (No 5) [2006] FCA 1234 (AWB) at [44(6)] (Young J)). In Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Limited (No 4) [2014] FCA 796 (Asahi), Beach J stated:

[33] ... One practical test is to ask whether the communication would have been made (whether the document would have been brought into existence) irrespective of the obtaining of legal advice. If so, the communication (document) may not satisfy the dominant purpose test. Such a test will entail addressing the question of the intended use(s) of the document which accounted for it being brought into existence.

39 The same question also applies in relation to copies of documents where the test is whether the copy itself came into existence for the dominant purpose of obtaining legal advice or assistance (see Barnes v Commissioner of Taxation [2007] FCAFC 88 (Barnes) at [5] (Tamberlin, Stone and Siopis JJ)).

40 Third, the appellants have the onus of establishing their claims of legal professional privilege, including each factual element necessary to establish the requisite dominant purpose. In this context, as stated by Beach J in Asahi:

[29] ... focused and specific evidence is required in respect of each communication, rather than mere generalised assertion let alone opaque and repetitious verbal formulae. There should be sufficient evidence which proves directly or by inference that the dominant purpose for the communication was for the relevant client to be given or to obtain legal advice. The communication also has to be confidential...

41 The grounds of the privilege must be deposed to in terms which identify the legal basis upon which the claim is made and provide a sufficient description of the elements of the document relied upon to support the claim. A party claiming the privilege is not required to provide such particularity as would compromise the very privilege that is claimed (see Hodgson v Amcor Ltd; Amcor Ltd v Barnes (No. 2) [2011] VSC 204 [36]-[37] (Vickery J)).

42 Fourth, the "dominant purpose" is the purpose which was the ruling, prevailing or most influential purpose at the time the document was brought into existence. There can be only one dominant purpose. If there are two purposes of equal weight, neither fits the description of a "dominant purpose" (see IOOF Holdings Ltd v Maurice Blackburn Pty Ltd [2016] VSC 311 at [47] (Elliott J)).

43 Fifth, the purpose of the communication must be ascertained at the time when the document containing the communication came into existence (see Barnes at [5], [13] (Tamberlin, Stone and Siopis JJ)). The relevant purpose may be either that of the author or the initiator of the communication, or the person at whose request or under whose authority the communication was created or made (see Asahi at [31] (Beach J)).

44 Sixth, the purpose of the communication is to be objectively ascertained. Evidence of the subjective intention of the author or person requesting the creation of the communication in the document is significant but not conclusive. Purpose can also be determined from the content of the document understood in its full context (see Asahi at [32] (Beach J)).

45 Seventh, legal professional privilege protects communications rather than documents, as the test for privilege is anchored to the purpose for which the document was brought into existence (see AWB at [44(11)] (Young J)).

46 Eighth, the concept of legal advice is fairly wide and it extends to professional advice as to what a party should prudently or sensibly do in the relevant legal context (see AWB at [44(7)] (Young J)). Legal advisers may also advise on more general and broader issues concerning the financial and commercial dealings of their clients. Advice given by a lawyer, however, for a predominantly financial, personal or commercial purpose will not be protected by legal professional privilege (see Barnes at [8] (Tamberlin, Stone and Siopis JJ)). The Full Court of the Federal Court said in Barnes:

[8] ... Although the courts have taken a pragmatic or realistic approach in circumstances where there is mixed advice given by or sought from a legal adviser, the test for privilege remains whether the dominant purpose of the creation of a document was for the provision of legal advice...

47 In DSE (Holdings) Pty Ltd v InterTAN Inc [2003] FCA 1191; (2003) 135 FCR 151, Allsop J (as he then was) said:

[52] ... It would be rare that one could, with any degree of confidence, say that a communication between client (or agent) and lawyer, in the circumstances of a retainer requiring legal advice and the directing of the client by a legal adviser, was not connected with the provision or requesting of legal advice. For the reasons given by Taylor LJ in Balabel, Colman J in Nederlandse and Anderson J in Dalleagles, too literal a requirement of identifying legal advice as express advice about the law would place undue emphasis on formalism and undermine the privilege.

48 Ninth, a document may contain numerous communications. Part of a communication may be privileged (see Commissioner of Taxation v PricewaterhouseCoopers [2022] FCA 278 [174] (Moshinsky J) (PricewaterhouseCoopers)). Each communication must be assessed. In PricewaterhouseCoopers, Moshinsky J said of email chains:

[175] The application of the principles of legal professional privilege in the context of email chains was discussed by Thawley J in Kenquist Nominees at [19]. Relevantly for present purposes, I consider that the principles apply to email chains in the following way (referring to the latest email in time as the "latest email"):

(a) If the communication being the latest email was made for the dominant purpose of the giving or receiving of legal advice, then it may be that the email chain will be privileged because the earlier emails in the chain are to be regarded as copies of documents provided for the dominant purpose of the giving or receiving of legal advice.

(b) For example, if the dominant purpose of the communication being the latest email was the giving of legal advice by a lawyer, then it may be that the email chain will be privileged because the earlier emails in the chain are to be regarded as copies of documents furnished by the lawyer with the advice being the latest email: see Kenquist Nominees at [19(2)].

(c) By way of further example, if the dominant purpose of the communication being the latest email was the obtaining of legal advice from a lawyer, then the email chain may be privileged because the earlier emails are to be regarded as copies of communications provided to the lawyer for the dominant purpose of obtaining legal advice: see Kenquist Nominees at [19(3)].

(d) The same principles can apply to earlier emails in the chain. For example, it may be that the latest email in the chain is not privileged, but the penultimate email (in time) may be a communication made for the dominant purpose of the giving or receiving of legal advice, and the earlier emails are to be regarded as copy documents which have been provided for the same dominant purpose.

49 Tenth, in cases where non-lawyers are involved, the key issue for determination remains whether the relevant communications were made for the dominant purpose of the lawyer giving advice to the client, despite being made by or disseminated to third party advisers (see Asahi at [11] (Beach J)). Advice by non-lawyers on ways to structure a transaction are extremely unlikely to attract privilege. This is because the purpose of the advice will, in most cases, be quite independent of the need for legal advice and, even if the parties have in mind that the advice will be submitted to a lawyer for comment, the purpose is unlikely to be the dominant purpose (see Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122; (2004) 136 FCR 357 (Pratt) at [106] (Stone J)). In this context, I adopt the following propositions as synthesised by Beach J in Asahi at [37]-[44] based upon Pratt at [41]-[47] per Finn J and [105]-[107] per Stone J:

(a) a communication made by a third party adviser to a client's lawyer if made for the requisite dominant purpose of the client obtaining legal advice from the lawyer will be privileged. The purpose may also be readily inferred given the directness of the communication from the third party adviser to the client's lawyer;

(b) a communication made by a third party adviser to a client if made for the requisite dominant purpose of the client then obtaining legal advice will be privileged. The purpose is not as readily established as in the previous scenario;

(c) in a non-litigation setting, care needs to be taken with analysing the precise purpose for each communication;

(d) advices given by the non-legal advisers will rarely be capable of attracting privilege for the reason that they will almost invariably have the character of discrete advices to the principal as such, with each advice, along with the lawyer's advice, having a distinctive function and purpose in the principal's decision making;

(e) if non-legal advices are provided to a client who then chooses to provide them to its lawyers, that does not clothe the original non-legal advices with privilege. They ordinarily will have been prepared for a non-legal purpose. But copies that might subsequently be created by a client and given to its lawyers may attract privilege;

(f) a client, in procuring a non-legal advice from a third party adviser has it in mind at the time that it requests that advice that it will also submit the non-legal advice to its lawyer, that may just demonstrate a multiplicity of purposes for the creation of the non-legal advice. But in such a scenario, the privileged purpose is unlikely to be the dominant purpose. Each communication and the reason for its creation needs to be carefully reviewed;

(g) and in elaboration of this last point, a client may have conducted itself so as to demonstrate that the procurement and use of the non-legal advice was not for its communication to its lawyer, but rather to principally advise the client on the very subject matter of that non-legal advice. Further, the less the client performs the role of a conduit of that non-legal advice through to its lawyer and the more it "filters, adapts or exercises independent judgment" in relation to that advice, the less likely the dominant purpose test is likely to have been satisfied.

50 Finally, the Court has the power to inspect the documents in question. The Court has a discretion whether to do so under s 133 of the Evidence Act and at common law. It should not be hesitant to exercise such a power (see Esso Australia Resources Limited v The Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49 at [52] (Gleeson CJ, Gaudron and Gummow JJ)). As stated by Young J in AWB at [44(12)]:

The Court has power to examine documents over which legal professional privilege is claimed. Where there is a disputed claim, the High Court has said that the court should not be hesitant to exercise such a power: Esso; see also Grant v Downs at 689. If the power is exercised, the court will need to recognise that it does not have the benefit of submissions or evidence that might place the document in its proper context. The essential purpose of such an inspection is to determine whether, on its face, the nature and content of the document supports the claim for legal professional privilege.

51 Justice Sifris (as he then was) in Tabcorp Holdings Ltd v State of Victoria [2013] VSC 302 (Tabcorp), considered the discretion conferred by s 133 of the Evidence Act to inspect a document to determine a question under pt 3.10 of the Evidence Act concerning privileges and stated (citations omitted):

[97] With regard to the exercise of this discretion, however, a party claiming privilege cannot delegate to the Court the task of establishing that the privilege exists. Adequate materials must be put before the Court to allow the claim to be entertained. As Tobias JA said in Bailey v Director-General, Department of Land and Water Conservation:

...the power under s 133 to inspect documents cannot be used as a substitute for admissible evidence to support the various elements necessary to establish privilege so that if evidence in respect of any one of those elements is missing, the gap cannot be filled by an inspection of the documents.

[98] In the absence of adequate substantiating evidence, the utility of inspecting the documents is also questionable, as examination of the terms of the documents alone may not answer the question of whether of not they were brought into existence for the dominant purpose of providing or receiving legal advice.

52 His Honour's observations concerning the discretion under s 133 of the Evidence Act are also apt in determining a disputed claim to a privilege at common law.

53 The appellants submitted that Mr Kurc was the author or recipient of the documents and he has provided a focused and specific explanation of the claims for privilege in respect of each of them. The appellants submitted that the dominant purpose test is satisfied by the evidence of Mr Kurc. The appellants submitted that these documents were broadly communications between client and lawyer providing instructions and leading up to the advice that culminated in various transactions and other arrangements. They further submitted that the plaintiffs failed to identify any deficiency in Mr Kurc's evidence to suggest that the purpose of communications between client and lawyer were non-legal, in a situation where Mr Lurie was a lawyer engaged under the retainer agreement. They submitted the task of the Court was not to determine whether privilege was made out for each of the alleged privileged documents, but to only determine the issues raised between the parties, which could be narrowed or isolated by the party seeking inspection.

54 The appellants submitted that Mr Goldman was involved in these communications for the purpose of providing instructions and obtaining information. They submitted Mr Kurc's evidence showed that Mr Goldman was a facility for providing the information for the instructions for the dominant purpose of legal advice. They submitted that Mr Goldman was not being asked for non-legal advice.

55 The plaintiffs confirmed that the areas of dispute with respect to privilege were confined to two issues. First, the plaintiffs submitted that the descriptions in Mr Kurc's affidavit concerning some of the documents do not get past the threshold of demonstrating that those documents disclose legal advice. The plaintiffs submitted it is unclear from the evidence whether these documents contain advice, or whether they are merely transaction-focused documents in which no privilege subsists. The plaintiffs submitted that while the Court has power to inspect the documents, this is not a substitute for evidence from the appellants. It submitted that where insufficient evidence has been adduced by the party claiming privilege in support of the privilege claims, the Court should reject the claims without inspecting the documents. The plaintiffs submitted that although the Judicial Registrar inspected all of the documents, in this appeal it is open to the Court to decline to inspect them if it forms the view that insufficient evidence has been adduced by the appellants. During oral submissions, senior counsel for the plaintiffs also submitted, however, that the Court has the benefit of being able to look at the documents.

56 Second, the plaintiffs submitted that the Court should be sceptical in considering whether privilege subsists for documents which include communications with Mr Goldman. They submitted that emails sent or received by Mr Goldman must be assessed by the Court with particular care. They submitted that accounting advice is not privileged. They submitted that they cannot tell whether the documents concern accounting advice and the easiest way of assessing this would be for the Court to look at the documents. The plaintiffs submitted that the Court should inspect the documents that concern Mr Goldman.

57 The fact of each communication being relevantly confidential is not in dispute. The documents in dispute were only circulated between Kurc family members, including Mr Kurc, entities within the Kurc Group, including Riot Stores and Damiss Nominees, B2B Lawyers and the Company's external accountant, Mr Goldman. There was also no dispute between the parties that the persons and companies identified in the final list of disputed documents were clients of B2B Lawyers.

58 The issue in dispute is whether Documents 5-27, 29-30, 33, 35-38, 40-43, 45, 50 and 58-59 contain communications made for the dominant purpose legal advice. This involves the determination of two issues:

(a) whether the evidence in support of the claims of privilege concerning Documents 16-19, 22-26, 33, 35-38 and 50 is sufficient and, as a result, whether the appellants have discharged their evidentiary onus; and

(b) whether the communications involving the Company's external accountant, Mr Goldman, in Documents 5-22, 24-27, 29-30, 35, 37, 40-43, 45 and 58-59 were made for the dominant purpose of legal advice.

59 The evidence in support of the claims of privilege concerning Documents 16-19, 22-26, 33, 35-38 and 50 is sufficient. I did not inspect these documents in determining this issue. The evidence sufficiently establishes that the communications were for the dominant purpose of legal advice upon the restructure of the Kurc family business, including its implementation. The restructure of the Kurc family business included many aspects, including as follows: general advice upon the restructure; the sale and transfer of the Company's internet business to Riot Stores (including licencing and intellectual property arrangements, assignments of leases and consignment and supply agreements); loan arrangements between various entities in the Kurc Group, including involving the Company, Riot Stores and Damiss Nominees (including various securities and charges); setting up new trusts; "structuring of finance and assets" and managing and refinancing the debt with the ANZ Bank (the Kurc restructure). I refer to the evidence concerning the context in which Mr Kurc sought legal advice from B2B Lawyers set out earlier in this judgment at paragraphs 14 to 31. Mr Kurc also gave evidence concerning the purpose of the communications in Documents 16-19, 22-26, 33, 35-38 (insofar as 38 is redacted) and 50 (insofar as it is redacted) in his affidavit affirmed 1 August 2022 at paragraphs 41-44, 47-51, 58, 60-63 and 75 respectively and also in the document titled "Consolidated List of Privilege Documents" which was prepared for this proceeding and exhibited as "MK-1" to Mr Kurc's affidavit affirmed 1 August 2022. It is sufficiently established by this evidence that the dominant purpose of the communications concerned obtaining legal advice upon the Kurc restructure, including its implementation. There was no dispute between the parties that each of the persons and entities identified in the final list of disputed documents were clients of B2B Lawyers for the relevant communications. In addition, I now address each of Documents 16-19, 22-26, 33, 35-38 and 50 having regard to the specific evidence concerning each of these communications. As I have already stated, I did not inspect these documents to determine whether the evidence in support of the claims of privilege is sufficient.

60 Document 16: The plaintiffs submitted that the evidence does not establish that the document was created for the dominant purpose of legal advice. The evidence establishes that Document 16 is an email from Mr Lurie to Mr Kurc and Mr Goldman regarding the registration of various securities over the Company and containing an update from Mr Lurie as to the status of the loan documents and sale documents being drafted by B2B Lawyers. Matters concerning "Security" were the subject of the retainer agreement, as seen in paragraph 3 of the description of the work in the retainer agreement. The specific evidence concerning Document 16 in the document titled "Consolidated List of Privileged Documents" also establishes that it concerned legal advice.

61 Document 17: The plaintiffs submitted that "drafts" are not privileged and that from the description it does not look like it was created for the dominant purpose of legal advice. The evidence establishes that Document 17 contains the same correspondence as Document 15 but also attaches copies of the drafted loan deed, guarantees and general security charges. The plaintiffs do not impugn the sufficiency of the evidence concerning Document 15. The evidence establishes that B2B Lawyers provided draft documents to Mr Kurc. Matters concerning the "loan deed, guarantees and general security charges" were the subject of the retainer agreement, as seen at paragraph 3 of the description of the work in the retainer agreement. The specific evidence concerning Document 17 in the document titled "Consolidated List of Privileged Documents" also establishes that it concerned legal advice.

62 Document 18: The plaintiffs submitted that the provision of particulars is not for the dominant purpose of legal advice. The evidence establishes that Document 18 is the same as Document 16 but also contains an additional email from Ms Chew to Mr Kurc seeking "instructions" from him for particulars for a contract which was to record the intended purchase of the internet business from the Company by Riot Stores. As a result, I refer to my reasons in relation to Document 16. Matters concerning the "purchase of the internet business" were the subject of the retainer agreement, as seen at paragraph 2 of the description of the work in the retainer agreement which concerns the sale of business. The specific evidence concerning Document 18 in the document titled "Consolidated List of Privileged Documents" also establishes that it concerned providing instructions for the purposes of obtaining legal advice.

63 Document 19: The plaintiffs submitted that the description does not suggest that the document was prepared for the dominant purpose of legal advice. The evidence establishes that Document 19 is an email from Ms Chew to Mr Kurc and Mr Goldman providing a draft contract and charge and seeking further "instructions" regarding particulars of the proposed sale of the internet business to be incorporated into the draft document. Matters concerning the "sale of business agreement and a general security charge" were the subject of the retainer agreement, as seen at paragraphs 2 and 3 of the description of the work in the retainer agreement. The specific evidence concerning Document 19 in the document titled "Consolidated List of Privileged Documents" also establishes that it concerned providing further instructions for the purposes of obtaining legal advice.

64 Document 22: The plaintiffs submitted that there is no evidence the document is privileged. The evidence establishes that Document 22 is an email chain between Mr Lurie, Ms Chew, Ms Ling, Mr Kurc and Mr Goldman which included correspondence regarding when the settlement of the sale of the internet business should occur and Mr Goldman also provided tax registration details for Riot Stores. Matters concerning the "sale of the internet business" were the subject of the retainer agreement, as seen at paragraph 2 of the description of the work in the retainer agreement. The specific evidence concerning Document 22 in the document titled "Consolidated List of Privileged Documents" establishes that it regarded the provision of instructions to obtain legal advice.

65 Document 23: The plaintiffs submitted that there is no evidence the document is privileged as the description refers to the document "regarding the date of settlement of the sale" and this does not suggest that it is privileged. The evidence establishes that Document 23 contains the same correspondence as Document 22 except for two additional emails. As a result, I refer to my above reasons in relation to Document 22. The evidence establishes that the two emails concern the date of settlement of the sale of the internet business to Riot Stores. Matters concerning the "sale of the internet business" were the subject of the retainer agreement, as seen in paragraph 2 of the description of the work in the retainer agreement. The specific evidence concerning Document 23 in the document titled "Consolidated List of Privileged Documents" also establishes that it concerned providing instructions and legal advice.

66 Document 24: The plaintiffs submitted that there is no evidence the document is privileged. The evidence establishes that Document 24 is an email which is included in Documents 22 and 23. As a result, I refer to my above reasons in relation to Documents 22 and 23. The specific evidence concerning Document 24 in the document titled "Consolidated List of Privileged Documents" also establishes that it also concerns the provision of instructions.

67 Document 25: The plaintiffs submitted that there is no suggestion that the document was created for the dominant purpose of legal advice. Document 25 contains a subset of the communications in Document 21. The plaintiffs do not impugn the sufficiency of the evidence concerning Document 21. In addition, Document 25 contains a communication not in Document 21. The evidence establishes that it is an email from Ms Ling to Mr Kurc and Mr Goldman attaching revised loan and security documents drafted for Damiss Nominees as well as attaching an email previously sent by her with trust deeds for the shareholders of Riot Stores. Matters concerning the "loan and security documents" were the subject of the retainer agreement, as seen in paragraph 3 of the description of the work in the retainer agreement. The specific evidence concerning Document 25 in the document titled "Consolidated List of Privileged Documents" also establishes that it concerned legal advice.

68 Document 26: The plaintiffs submitted that there is no suggestion that the document was created for the dominant purpose of legal advice. The evidence establishes that Document 26 is an email from Ms Chew to Mr Kurc and Mr Goldman attaching an amended draft of the sale of internet business agreement and also a general security charge. Matters concerning the "sale of internet business agreement and also a general security charge" were the subject of the retainer agreement, as seen at paragraph 2 of the description of the work in the retainer agreement. The specific evidence concerning Document 26 in the document titled "Consolidated List of Privileged Documents" also establishes that it concerned legal advice.

69 Document 33: The plaintiffs submitted from the description that it does not seem to be for the dominant purpose of providing legal advice. The evidence establishes that Document 33 is an email chain between Mr Kurc and Mr Lurie in which Mr Kurc provided a disbursement authority and gave instructions regarding stocktakes to enable the drafting of the consignment agreement for Riot Stores. Matters concerning the "consignment agreement" were the subject of advice sought by Mr Kurc of B2B Lawyers. The specific evidence concerning Document 33 in the document titled "Consolidated List of Privileged Documents" also establishes that it concerned the provision of instructions for legal advice.

70 Document 35: The plaintiffs submitted from the description that it does not seem to be for the dominant purpose of legal advice. The evidence establishes that Document 35 is an email from Ms Ling to Mr Kurc and Mr Goldman concerning the transfer of intellectual property to Riot Stores and seeking instructions on stocktake and requesting copies of lease agreements. Matters concerning "transfer of intellectual property" were the subject of advice sought by Mr Kurc of B2B Lawyers. The specific evidence concerning Document 35 in the document titled "Consolidated List of Privileged Documents" also establishes that it concerns legal advice.

71 Document 36: The evidence establishes that Document 36 is an email from Mr Kurc to Ms Ling regarding the provision of instructions in response to Document 35. Matters concerning "intellectual property" were the subject of advice sought by Mr Kurc of B2B Lawyers. The specific evidence concerning Document 36 in the document titled "Consolidated List of Privileged Documents" also establishes that it concerns legal advice.

72 Document 37: The evidence establishes that Document 37 is an email from Ms Chew to Mr Kurc and Mr Goldman providing a draft copy of a supply agreement and detailing the "noteworthy" clauses. Matters concerning the "supply agreement" were the subject of advice sought by Mr Kurc of B2B Lawyers (i.e. the consignment agreement). The specific evidence concerning Document 37 in the document titled "Consolidated List of Privileged Documents" also establishes that it concerns legal advice.

73 Document 38: The evidence establishes that the redacted part of Document 38 concerns Document 37 and other correspondence that forms part of other Documents. The specific evidence concerning Document 38 in the document titled "Consolidated List of Privileged Documents" also establishes that it concerns legal advice.

74 Document 50: The evidence establishes that the redacted part of Document 50 concerns instructions to Ms Ling to draft a licence agreement with respect to the purchase of the intellectual property by Riot Stores. Matters concerning the "consignment agreement" were the subject of advice sought by Mr Kurc of B2B Lawyers. The specific evidence concerning Document 50 in the document titled "Consolidated List of Privileged Documents" also establishes that it concerns providing instructions for the obtaining of legal advice.

Documents concerning communications with Mr Goldman

75 I inspected and read Documents 5-22, 24-27, 29-30, 35, 37, 40-43, 45 and 58-59 concerning the communications with Mr Goldman. I inspected and read the documents to determine whether the communications concerning Mr Goldman were, in fact, for the dominant purpose of legal advice. The parties invited me to do so to determine this issue. Most of the documents form part of email chains.

76 Document 5 contains communications made for the dominant purpose of legal advice, including the communications to and from Mr Goldman. This is because:

(a) the latest email in the email chain is from Mr Kurc to Mr Lurie and Mr Galea (document bundle, page 16) titled "Fwd: new entity and sale". The communication in the latest email and in the forwarded emails were made for the dominant purpose of obtaining and providing legal advice;

(b) on 1 April 2020, Mr Kurc instructed Mr Lurie to include Mr Goldman in future correspondence;

(c) Mr Lurie requested advice from Mr Goldman on a number of occasions in relation to various matters. I refer to: an email from Mr Lurie to Mr Kurc, copied to Mr Goldman, Ms Ling and Ms Chew, but posing a question for Mr Goldman (document bundle, page 26); two emails each from Mr Lurie to Mr Goldman and Mr Kurc, copied to Ms Ling and Ms Chew, but each addressed to Mr Goldman (document bundle, pages 23-24 and 25) and a further email from Mr Lurie addressed to Mr Goldman (document bundle, page 22);

(d) Mr Lurie requested the advice from Mr Goldman for the dominant purpose of B2B Lawyers providing legal advice;

(e) Mr Goldman provided the advice requested and provided the advice directly to Mr Lurie, with Mr Kurc and other lawyers within B2B Lawyers copied. I refer to: two emails from Mr Goldman to Mr Lurie and Mr Kurc, copied to Ms Ling and Ms Chew, but each addressed to Mr Lurie (document bundle, 24 and 25-26) and an email from Mr Goldman to Mr Lurie and Mr Kurc, copied to Ms Ling and Ms Chew, responding to a request for advice from Mr Lurie (document bundle, page 23);

(f) the advice deposed to by Mr Kurc as being "advice from Joel [Mr Goldman] with regards to possible tax implications on certain structures" was advice sought by Mr Lurie and provided by Mr Goldman to Mr Lurie;

(g) Mr Goldman is otherwise sent or copied into emails together with Mr Kurc and persons at B2B Lawyers (e.g. document bundle, pages 16-22).

77 Document 6 contains a subset of the emails in Document 5. The latest email in the email chain is from Mr Goldman to Mr Lurie and Mr Kurc, copied to Ms Chew and Ms Ling (document bundle, page 29). The email is addressed directly to Mr Lurie. Mr Goldman responded to a question asked of him by Mr Lurie. The communications in the latest email and the other emails in the email chain were made for the dominant purpose of obtaining and providing legal advice.

78 Document 7 contains a subset of the emails in Document 5. The latest email in the email chain is from Mr Kurc to Mr Lurie and Mr Goldman (document bundle, page 32). Mr Kurc provided information concerning steps he was going to take and provided instructions. The communication in the latest email and the other emails in the email chain were made for the dominant purpose of obtaining and providing legal advice.

79 Document 8 contains a subset of the emails in Document 5. There are other communications in Document 8 that are not in Document 5. The latest email in the email chain is from Mr Lurie to Mr Goldman and Mr Kurc, copied to Ms Ling and Ms Chew (document bundle, page 37). The plaintiffs submitted that Mr Goldman's contribution cannot have been made for the dominant purpose of obtaining legal advice. The plaintiffs erroneously referred to "document 33" but it is clear they intended this to be a reference to Document 8 as they refer to text from paragraph 33 of Mr Kurc's affidavit which concerns Document 8. The plaintiffs also submitted that to the extent that Mr Goldman may have commented on draft transaction documents prepared by B2B Lawyers then that does not make those comments or subsequent drafts subject to privilege. The communications were made for the dominant purpose of obtaining and providing legal advice. This is because:

(a) the latest email answered a question asked by Mr Goldman. Mr Goldman's advice was requested by Mr Lurie for the dominant purpose of Mr Lurie providing legal advice. Mr Goldman was not asked by Mr Kurc to give the advice;

(b) some of the communications were directly between Mr Kurc and Mr Lurie, with Mr Goldman and other lawyers from B2B Lawyers copied in. Mr Kurc asked a question of Mr Lurie which Mr Lurie answered and provided legal advice. I refer to: an email from Mr Kurc to Mr Lurie, copied to Ms Ling, Ms Chew and Mr Goldman (document bundle, page 38) and an email in response from Mr Lurie to Mr Kurc copied to Ms Ling, Ms Chew and Mr Goldman (document bundle, pages 37-38);

(c) the other communications were otherwise directly between Mr Goldman and Mr Lurie, with Mr Kurc and also other lawyers from B2B Lawyers copied in. Mr Goldman asked a question and it was answered by Mr Lurie. I refer to: an email from Mr Goldman to Mr Lurie and Mr Kurc, copied to Ms Ling and Ms Chew, but directed to Mr Lurie (document bundle, page 37).

80 Document 9 contains a subset of the emails in Document 5. The latest email in the email chain is from Mr Lurie to Mr Goldman and Mr Kurc, copied to Ms Chew and Ms Ling (document bundle, page 39). Mr Lurie provided detailed legal advice and sought further instructions. The communication in the latest email and the other emails in the email chain were made for the dominant purpose of obtaining and providing legal advice.

81 Document 10 contains the emails in Document 5. In addition, there are two other communications in Document 10 that are not in Document 5. The latest email in the email chain is from Mr Goldman to Mr Lurie, copied to Ms Chew, Mr Kurc and Ms Ling (document bundle, page 45). The communication in the latest email and the other emails in the email chain were made for the dominant purpose of giving legal advice. This is because:

(a) in the latest email, Mr Goldman provided further information in response to a detailed legal advice and request for further instructions from Ms Ling (document bundle, page 45). The information given by Mr Goldman, deposed to by Mr Kurc, concerned the "proposed structure of Riot Stores Pty Ltd and the trusts to be set up for it" which was advice sought by Ms Ling;

(b) there is a communication from Mr Kurc to Ms Ling in which he provided further information. I refer to an email from Mr Kurc to Ms Ling, copied to Mr Lurie, Ms Chew and Mr Goldman (document bundle, page 45), in response to a detailed legal advice and request for further instructions from Ms Ling.

82 Document 11 contains the emails in Document 10. In addition, there is an email in Document 11 that is not in Document 10. The latest email in the email chain is from Mr Lurie to Mr Goldman, copied to Ms Chew, Mr Kurc and Ms Ling (document bundle, page 58). The communication in the email and the other emails in the email chain were made for the dominant purpose of obtaining and providing legal advice. This is because in the latest email, which is addressed to Mr Goldman, Mr Lurie provided legal advice and also posed numerous questions to be answered by Mr Goldman.

83 Document 12 contains the emails in Document 11. In addition, there are two other emails in Document 12 that are not in Document 11. The latest email in the email chain is from Mr Lurie to Mr Kurc, copied to Mr Goldman, Ms Ling and Ms Chew (document bundle, page 72). The communication in the latest email and the other emails in the email chain were made for the dominant purpose of obtaining and providing legal advice. In the latest email Mr Kurc gave legal advice. There is also a communication by email from Mr Kurc to Mr Lurie in which Mr Kurc provided instructions to Mr Lurie (document bundle, page 72).

84 Document 13 contains the emails in Document 12. In addition, there are three other communications in Document 13 that are not in Document 12. The latest email in the email chain is from Mr Goldman to Mr Lurie and Mr Kurc, copied to Ms Ling and Ms Chew (document bundle, page 87). The communication in the latest email and the other emails in the email chain were made for the dominant purpose of obtaining and providing legal advice. This is because Mr Goldman sent an email to Mr Lurie concerning the establishment of new trusts, Mr Lurie responded by asking questions and giving legal advice and then Mr Goldman responded in the latest email to the questions and advice of Mr Lurie (document bundle, pages 87-88).

85 Document 14 contains the emails in Document 13. Within Document 14 there are numerous copies of identical email chains. In addition, there are other communications in Document 14 that are not in Document 13. The latest email in the email chain is from Ms Ying to Mr Kurc and Mr Goldman, copied to Mr Lurie and Ms Chew (document bundle, page 103-104). The communication in the latest email and some of the other emails in the email chain were made for the dominant purpose of obtaining and providing legal advice. This is because:

(a) in the communication in the latest email, Ms Ying provided legal advice concerning the new trusts and ancillary matters (document bundle, pages 103-104);

(b) there are communications between Mr Kurc, Mr Goldman and Mr Lurie, copied to Ms Ling and Ms Chew, regarding the new trusts and also domain names (document bundle, pages 104-105). This includes legal advice given by Mr Lurie on the new trusts (document bundle, page 105, also at page 259);

(c) there are communications between Mr Goldman, Mr Lurie and Ms Ling concerning interest rates (document bundle, pages 231-232). Mr Lurie gave legal advice concerning this issue after receiving information from Mr Goldman;

(d) there are communications from Ms Ling to Mr Kurc and Mr Goldman, copied to Mr Lurie and Ms Chew, referring to documents concerning a loan deed, deed of guarantee and loan, and general security charges, and making observations on those documents (document bundle, pages 232-233);

(e) there are numerous copies of the above documents in Document 14 that form parts of email chains within Document 14.

86 There are some communications in Document 14 in the email chain that were not made for the dominant purpose of legal advice. The communications by email between Mr Kurc and Mr Goldman on 3 April 2020 at 4.19pm and 5 April 2020 at 8.06pm concern printing documents (document bundle, page 194). They were not copied or forwarded as part of the latest email for the dominant purpose of obtaining legal advice. Document 14 does not have the documents that were to be printed.

87 Document 15 contains a subset of the emails in Document 14. The latest email in the email chain is from Mr Kurc to Mr Goldman (document bundle, page 276) on 3 April 2020 at 4.19pm. This email and the documents attached to it (document bundle, pages 293-453) are not communications for the dominant purpose of obtaining or providing legal advice. This is because the communications were made, as deposed to by Mr Kurc, to ask Mr Goldman if he required printed versions for his signature. The actual deeds and ancillary documents to be printed are attached to the email (document bundle, pages 293-453). The remainder of the communications in Document 15 were made for the dominant purpose of obtaining and providing legal advice.

88 Document 16 contains communications made for the dominant purpose of providing legal advice. The latest email in the email chain, and the other emails in the email chain, are both from Mr Lurie to Mr Kurc copied to Mr Goldman and Ms Chew (including forwarding an email between lawyers at B2B Lawyers) and concern the timing of the registration of security interests with legal advice provided by Mr Lurie to Mr Kurc on that issue and the timing of the drafting of documents (document bundle, page 454). Mr Goldman is only a recipient of the emails.

89 Document 17 contains a subset of the communications in Document 14. The latest email in the chain is from Ms Ling to Mr Kurc and Mr Goldman, copied to Mr Lurie and Ms Chew (document bundle, page 455-456) attaching a loan deed, a deed of guarantee and loan and general security charges (document bundle, pages 477-567). The communication in the latest email and the other emails in the email chain were made for the dominant purpose of obtaining and providing legal advice. The latest email was made for the dominant purpose of providing legal advice as the email states that the documents should be reviewed and to let Ms Ling know if any amendments are required. The draft deeds and general security charges are attached and were made for dominant purpose of obtaining legal advice. Mr Goldman is only a recipient of the email.

90 Document 18 contains the communications in Document 16. In addition, Document 18 contains a communication which is not included in Document 16. The latest email in the email chain is from Ms Chew to Mr Kurc and Mr Goldman, copied to Mr Lurie and Ms Ling (document bundle, page 568). The communication in the latest email and the other emails in the email chain were made for the dominant purpose of obtaining and providing legal advice. As deposed to by Mr Kurc, Ms Chew was "seeking instructions from [Mr Kurc] with regards to particulars to be included in the contract...". It is a communication made for the dominant purpose of giving legal advice. This is because the information was required to enable B2B Lawyers to make some final adjustments to the drafts upon receipt of that information.

91 Document 19 is a communication made for the dominant purpose of providing legal advice. It is a communication in an email from Ms Chew to Mr Kurc and Mr Goldman, copied to Mr Lurie and Ms Ling, attaching and referring to documents concerning a sale of business agreement and a general security charge and making observations and giving legal advice on those documents. Ms Chew also requests further information and comments on the drafts.

92 Document 20 contains a subset of the emails in Document 14. In addition, it contains a communication not contained in Document 14. The latest email in the chain is an email from Mr Goldman to Mr Kurc only, and not copied to any other person, on 5 April 2020 at 8.39pm (document bundle, page 626). Mr Kurc gave evidence that Document 20 concerns the "tax consequences for Damiss Nominees Pty Ltd regarding the loans it was giving and the commerciality of the structure". This latest email was not made for the dominant purpose of obtaining or providing legal advice. This is because the advice provided by Mr Goldman to Mr Kurc concerned tax consequences and commercial matters. Mr Goldman's advice directly concerned the matters set out in two earlier communications that form part of the email chain, being an email from Mr Goldman to Ms Ling on 5 April 2020 at 8.01pm (document bundle, page 626) and an email from Mr Lurie to Mr Goldman, copied to Ms Ling, Mr Kurc and Ms Chew, on 5 April 2020 at 8.36pm (document bundle, page 626). Mr Goldman's email on 5 April 2020 at 8.39pm forwarded them in the chain of emails and is a reference to them. As a result, these emails were not forwarded as part of the chain of emails for the dominant purpose of obtaining or providing legal advice. The remainder of the communications in Document 20 in the email chain were made for the dominant purpose of obtaining or providing legal advice.

93 Document 21 contains a subset of the communications in Document 20. In addition, Document 21 contains a communication not in Document 20. The latest email in the email chain is from Mr Lurie to Mr Goldman, copied to Ms Ling, Mr Kurc and Ms Chew (document bundle, page 651). The communication was made for the dominant purpose of giving legal advice. The email contains legal advice from Mr Lurie and refers to a matter that Mr Goldman and Mr Kurc may wish to take into account. The remainder of the communications in Document 21 in the email chain were made for the dominant purpose of giving the legal advice.

94 Document 22 contains some communications that were not made for the dominant purpose of obtaining or providing advice. The last email in the email chain is from Mr Lurie to Mr Goldman and Mr Kurc, copied to Ms Ling and Ms Chew, on 6 April 2020 at 11.28am (document bundle, page 673). This communication was not made for the dominant purpose of giving legal advice. This is apparent from the three words in the email. There is also an email from Mr Goldman to Mr Lurie, copied to Ms Ling and Ms Chew, on 6 April 2020 at 11.23am providing details concerning the tax file number, Australian business number and GST details for a trust (document bundle, 672). This communication was not made for the dominant purpose of obtaining or providing legal advice.

95 Document 22 also contains some communications that were made for the dominant purpose of obtaining or providing legal advice. There are emails between Mr Kurc and Mr Lurie (sometimes including Mr Goldman directly and sometimes copied to Mr Goldman, together with Ms Ling and Ms Chew) concerning the timing of settlement (document bundle, page 672). Mr Lurie gave advice about timing after having been informed of a matter by Mr Kurc.

96 Document 24 is the same as a communication in Document 22 identified in these reasons at paragraph 94, being an email from Mr Goldman to Mr Lurie and Mr Kurc, copied to Ms Ling and Ms Chew, on 6 April 2020 at 11.23am and, as a result, was not for the dominant purpose of obtaining or providing legal advice. Document 24 is not privileged.

97 Document 25 contains a subset of the communications in Document 21. In addition, Document 25 contains a communication not in Document 21. The last email in the chain is an email from Ms Ling to Mr Kurc and Mr Goldman, copied to Mr Lurie and Ms Chew (document bundle, page 677). The communication in the email concerning the "Loan and Security Documents" was made for the dominant purpose of giving legal advice. This is because this part of the email refers to revised loan and security documents and asks for comments or further amendment. The draft loan and security documents attached to the email (document bundle, pages 702-792) were also provided for the dominant purpose of providing legal advice. The communication in the email concerning "Trust Deeds" was not made for the dominant purpose of giving legal advice. This is because this part of the email refers to arrangements for the signing of the trust deeds. The communication in the email concerning "Trust Deeds" also refers to an attached email and trust documents attached to this email. These form part of Document 25 and are an email from Ms Ling to Mr Kurc and Mr Goldman dated 3 April 2020 at 3.21pm (document bundle, page 793) and attachments (document bundle, pages 814-974). The email and the attachments were not forwarded for the dominant purpose of obtaining legal advice but to assist with the signing of the trust deeds. The remainder of the communications in Document 25 in the email chain were made for the dominant purpose of obtaining and providing legal advice.

98 Document 26 is a communication from Ms Chew to Mr Kurc and Mr Goldman copied to Mr Lurie and Ms Ling (document bundle, page 975) with attachments. The communication in the email of the matters in paragraphs 2-3 under the words "Please find enclosed" and the attachments referred to (document bundle, pages 1050-1149) were not made for the dominant purpose of providing legal advice. The statements made in this part of the email and the attachments were made for purpose of having the documents executed. The communication in the email of the matters in paragraph 1 under "Please find enclosed" and the attachment referred to being the tracked agreement and the remainder of the email were made for the dominant purpose of providing legal advice. This is because these matters identify amendments and why they were made.

99 Document 27 contains an email chain. The latest email in the email chain is from Mr Kurc to Mr Lurie and Ms Galea. The communication was made for the dominant purpose of obtaining legal advice. It forwarded an email from Ms Ling to Mr Kurc and Mr Goldman, copied to Mr Lurie and Ms Chew (document bundle, page 1150-1151). The forwarded email provided a summary of proposed terms of agreements on, as deposed to by Mr Kurc, "how Riot Stores Pty Ltd will manage and treat stock once the sale of the internet business is concluded". Mr Goldman is only a recipient of the email. The remainder of the communications in Document 27 in the email chain were also forwarded for the dominant purpose of giving legal advice.

100 Document 29 is the same as Document 27 except Document 29 does not include the email from Mr Kurc to Mr Lurie and Ms Galea. As a result, I refer to my above reasons concerning Document 27.

101 Document 30 contains emails between Mr Lurie and Mr Kurc, some of which are sent only between Mr Lurie and Mr Kurc and others are also sent or copied to Mr Goldman, Ms Chew and Ms Ling. The latest email in the chain is from Mr Kurc to Mr Lurie (document bundle, page 1161). These communications were made for the dominant purpose of obtaining and providing legal advice concerning, as deposed to by Mr Kurc, "the provision of information to assist with the drafting of the consignment agreement" and "security registrations". Mr Goldman is only a recipient of some of the emails.

102 Document 35 is an email from Ms Ling to Mr Kurc and Mr Goldman, copied to Mr Lurie and Ms Chew (document bundle, page 1182). The email is divided into three distinct sections, first, intellectual property; second, regarding property leases (and referred to attachments to the email, being commercial leases); and third, consignment and supply agreements. The communication, including the attachments to the email, was made for the dominant purpose of providing legal advice. This is because: the part under the heading "Transfer of IP" seeks instructions, the part under "Assignment of Property Leases" seeks further information and the part under the heading "Consignment and Supply Agreements" provides an update on the drafting of these documents and advice on timing. Mr Goldman is only a recipient of the email.

103 Document 37 contains a communication made for the dominant purpose of providing legal advice. The email is from Ms Chew to Mr Kurc and Mr Goldman, copied to Mr Lurie and Ms Ling, in which she attaches a draft supply agreement and provides legal advice on it. Mr Goldman is only a recipient of the email.

104 Document 40 contains communications made for the dominant purpose of legal advice. The latest email in the email chain is from Mr Kurc to Mr Lurie, Ms Ling, Ms Chew and Mr Goldman. This communication was made for the dominant purpose of obtaining legal advice. The other emails in the email chain were also for the dominant purpose of obtaining and providing legal advice. This includes communications from Mr Goldman and a response by Mr Lurie to that communication as follows:

(a) an email from Mr Goldman addressed to Mr Lurie, copied to Mr Kurc, Ms Ling and Ms Chew, in which Mr Goldman provides advice (document bundle, page 1344); and

(b) an email from Mr Lurie addressed to Mr Goldman, copied to Mr Kurc, Ms Ling and Ms Chew, in which Mr Lurie comments on the advice provided by Mr Goldman (document bundle, page 1346).

105 Document 40 otherwise contains correspondence between Mr Kurc and representatives of B2B Lawyers (to which Mr Goldman is copied in) in which Mr Kurc gives instructions and B2B Lawyers give advice. Document 40 also contains numerous copies of the same emails.

106 Document 41 contains communications made for the dominant purpose of legal advice. The latest email in the chain is from Mr Goldman to Mr Lurie, copied to Mr Kurc, Ms Ling and Ms Chew, which was made for the dominant purpose of obtaining legal advice. The other emails in the email chain were also made for the dominant purpose of obtaining legal advice. This is because:

(a) there is an email from Mr Goldman addressed to Mr Lurie in which he provides advice (document bundle, pages 1406-1407) and then an email from Mr Lurie addressed to Mr Goldman, copied to Mr Kurc, Ms Ling and Ms Chew, in which he gives legal advice (document bundle, page 1406);

(b) there are also emails from Mr Kurc to Mr Lurie (document bundle, page 1407) and from Mr Kurc to Mr Lurie, Ms Ling, Ms Chew and Mr Goldman (document bundle, 1407 and 1408-1409) in which he provides instructions;

(c) there is an email from Mr Lurie to Mr Kurc (document bundle, page 1407) in which he gives legal advice.

107 Document 42 contains communications made for the dominant purpose of providing legal advice. This includes a subset of the communications in Document 41. The latest email in the email chain is from Ms Ling to Mr Kurc and Mr Goldman, copied to Mr Lurie and Ms Chew in which she sought further instructions (document bundle, page 1410). This communication was made for the dominant purpose of providing legal advice. The other emails in the email chain were also made for the dominant purpose of providing legal advice.

108 Document 43 contains communications made for the dominant purpose of obtaining and providing legal advice. This includes the communications in Document 42. The latest email in the chain is from Mr Kurc to Ms Ling, copied to Mr Goldman, Mr Lurie and Ms Chew, in which he provides further instructions. The other emails in the email chain were also made for the dominant purpose of obtaining and providing legal advice.

109 Document 45 contains communications made for the dominant purpose of providing and obtaining legal advice. This includes the communications in Document 43. The latest email in the email chain is from Ms Ling to Mr Kurc, copied to Mr Lurie, Ms Chew and Mr Goldman, in which she gives legal advice and seeks further instructions. The other emails in the email chain were also made for the dominant purpose of obtaining and providing legal advice.

110 Document 58 contains an email from Mr Kurc to Mr Goldman, Mr Lurie and Ms Ling made for the dominant purpose of obtaining legal advice. Mr Kurc set out a matter being attended to by Mr Goldman and then requested Mr Lurie and Ms Ling to attend to matters concerning, as deposed to by Mr Kurc, setting up a wholesale sales division.

111 Document 59 contains an email chain. The latest email in the chain is from Mr Goldman to Mr Lurie, copied to, inter alia, Mr Kurc and Ms Ling in which he provides further information. This was made for the dominant purpose of obtaining legal advice. The other email in the email chain was also made for the dominant purpose of giving legal advice. This is an email from Mr Kurc to Mr Goldman, Mr Lurie and Ms Ling that is the email in Document 58.

112 In conclusion, the communications in Documents 5-27, 29-30, 33, 35-38, 40-43, 45, 50 and 58-59 were made for the dominant purpose of legal advice except for the following communications:

Final list of disputed documents (document number)

Part of communication not for the dominant purpose of legal advice

Email from Mr Kurc to Mr Goldman dated 3 April 2020 at 4.19pm

Email from Mr Goldman to Mr Kurc dated 5 April 2020 at 8.06pm

Email from Mr Kurc to Mr Goldman dated 3 April 2020 at 4.19pm

Attachments to the email from Mr Kurc to Mr Goldman dated 3 April 2020 at 4.19pm

Email from Mr Goldman to Mr Kurc dated 5 April 2020 at 8.39pm

Email from Mr Lurie to Mr Goldman, copied to Ms Ling, Mr Kurc and Ms Chew, dated 5 April 2020 at 8.36pm

Email from Mr Goldman to Ms Ling dated 5 April 2020 at 8.01pm

Email from Mr Goldman to Mr Lurie and Mr Kurc dated 6 April 2020 at 11.23am

Email from Mr Lurie to Mr Goldman and Mr Kurc dated 6 April 2020 at 11.28am

Email from Mr Goldman to Mr Lurie and Mr Kurc dated 6 April 2020 at 11.23am

Email from Ms Ling to Mr Kurc and Mr Goldman dated 6 April 2020 at 6.03pm

The words 'Trust Deeds' and the two paragraphs under this heading

Email from Ms Ling to Mr Kurc and Mr Goldman dated 3 April 2020 at 3.21pm

Attachments to the email from Ms Ling to Mr Kurc and Mr Goldman dated 3 April 2020 at 3.21pm

Email from Ms Chew to Mr Kurc and Mr Goldman dated 7 April 2020 at 5.03pm

The words 'Please find enclosed' and paragraphs numbered 2-3 under that heading

Attachments to the email from Ms Chew to Mr Kurc and Mr Goldman dated 7 April 2020 at 5.03pm

IS PRIVILEGE IN THE COMMUNICATIONS IN THE DOCUMENTS HELD JOINTLY WITH THE COMPANY?

113 There was no dispute between the parties as to the applicable law. First, legal professional privilege may be a joint privilege (see Tabcorp [119] (Sifris J)).

114 Second, no party submitted that there is any difference of substance between the common law and the Evidence Act (ss 124 and 131A) concerning a joint privilege in the present circumstances. In relation to the Evidence Act, s 124 provides:

(1) This section only applies to a civil proceeding in connection with which 2 or more parties have, before the commencement of the proceeding, jointly retained a lawyer in relation to the same matter.

(2) This Division does not prevent one of those parties from adducing evidence of -

(a) a communication made by any one of them to the lawyer; or

(b) the contents of a confidential document prepared by or at the direction or request of any one of them -

115 Third, as I have already said in this judgment, the burden of establishing the conditions of the privilege lies on the party claiming the privilege. In relation to the present issue of joint privilege, the plaintiffs have the burden of establishing that the privilege was joint (see In the matter of CGB Labour Hire Pty Ltd (in liq) [2023] NSWSC 17 (CGB) [72] (Meek J)).

116 Fourth, the holders of a joint privilege have no confidence against each other, but are able to maintain their privilege against others (see Tabcorp [120] (Sifris J)).

117 Fifth, a joint privilege will exist where two or more persons join in communicating with a legal adviser for the purpose of retaining his or her services or obtaining his or her advice. The privilege which protects these communications from disclosure belongs to all the persons who joined in seeking the service or obtaining the advice (see Farrow Mortgage Services Pty Ltd (in liq) v Webb & Ors [1996] NSWSC 259; (1996) 39 NSWLR 601 (Farrow), 608 (Sheller JA)). A joint privilege arises most clearly where two or more parties explicitly jointly retain a lawyer in relation to the same matter (see Tabcorp [119] (Sifris J)). Whether a lawyer has been jointly retained can also be determined by looking at the relationship between the parties, the relationship between the parties and the lawyer and the factual context of the retainer and/or advice (see Tabcorp [122] (Sifris J)). In Doran Constructions Pty Limited (in Liquidation) [2002] NSWSC 215 (Doran), Campbell J considered whether a joint privilege existed in the context of a group of companies. Campbell J said:

[62] I should also say that Mr Freeman's evidence [i.e. the lawyer's evidence], that during the meeting he was not asked to provide legal advice to Doran Constructions, is of little assistance. It is perfectly possible for there to be a conclusion that there was a retainer by, amongst others, Doran Constructions, even if no one in the course of the meeting said words to the effect of, "Will you please now advise Doran Constructions".

[76] In my view, there was a joint retainer in the present case. While the impetus for the transaction was, I accept, that Doran Holdings had been asked by its financiers to clean up its intercompany loan accounts, that "cleaning up" process required co-operative action on the part of all four companies involved. There is no basis for believing that any of the companies whose co-operation was involved, were excluded from the advice which was given. Certainly none of them sought advice from anyone other than Mr Freeman. That Doran Holdings was the impetus for the transaction, but all the companies needed to cooperate, is well captured by Mr Joyce's statement [i.e. the financial controller's statement] at the meeting, "Holdings wants to do a series of transactions to take the loans out of Holdings and place them in the Constructions group. Chris what are your thoughts on how we should go about it?" ...

118 These observations of Campbell J were referred to with approval by the Court of Appeal in Great Southern Managers Australia Ltd (Receivers and Managers Appointed) (in liq) v Clarke [2012] VSCA 207; (2012) 36 VR 308 (Great Southern) at [18] (Buchanan and Osborn JJA and Beach AJA). Campbell J in Doran also said:

[72] ...whether there is a communication made to, or from, a solicitor in his or her joint capacity is decided by objective evidence about whether the occasion for the communication was one where the solicitor was being asked to advance the purpose for which he or she was jointly consulted...

119 Campbell J in Doran determined that there was a joint retainer that included companies within the "Doran Group" and the Doran brothers. His Honour also stated:

[77] Mr Freeman [i.e. the lawyer] explained that:

"I was asked there to give certain advice, which I gave, but everything that went into that meeting was used by me to work out whether in fact I should give that advice, and what that advice should be". (See paragraph 26 above).

[78] This shows, it seems to me, that the entire meeting was one where the communications which passed, were ones to advance the purpose for which the solicitor was jointly consulted.

[79] Counsel for the examinee submitted that I should not conclude that there was a joint retainer because the interests of Doran Holdings and Doran Constructions were opposite, in relation to the debt transaction. If this is so, it does not appear to have been realised at the time.

120 In the context of the meaning of the words "jointly retained" in s 124 of the Evidence Act, the Court of Appeal said in Great Southern at [21] (Buchanan and Osborn JJA and Beach AJA):

[21] ...The section does not require all of the joint privilege holders to expressly retain the lawyer: it encompasses cases where one joint privilege holder retains the lawyer for its benefit and for the benefit of the other joint privilege holders...

121 Great Southern concerned the relationship of trustee and beneficiary and in circumstances where it was common ground that the relevant communication was the subject of a joint privilege between the applicant and the respondents. The issue was whether s 124 of the Evidence Act only applied in circumstances where there was an express retainer of the lawyer by all joint privilege holders. The Court of Appeal decided that it did not. The Court of Appeal stated that this approach accords with the approach taken by Campbell J in Doran.

122 As I have said, a joint privilege may also arise where two or more persons join in communicating with a legal adviser for the purpose of obtaining his advice. In Farrow, Sheller JA (with whom Waddell AJA agreed) (Meagher JA dissenting) said at 608:

Two or more persons may join in communicating with a legal adviser for the purpose of retaining his or her services or obtaining his or her advice. The privilege which protects these communications from disclosure belongs to all the persons who joined in seeking the service or obtaining the advice. The privilege is a joint privilege...

123 These observations of Sheller JA were referred to with approval in Great Southern (see [22] (Buchanan and Osborn JJA and Beach AJA)).

124 A joint privilege may arise where persons seek and obtain advice from a lawyer but only one of them enters into a retainer agreement_. Farrow_ concerned an appeal from a decision of Young J, who had found that there was not a contract (i.e. a retainer agreement) between directors of a company (i.e. the respondents on the appeal) and the solicitors (named Robilliard & Robilliard) but there was between one or other of the companies and Robilliard & Robilliard. On appeal, Sheller JA said at 618:

I think Young J was correct in his conclusion that the contract was in each case between one or other of the companies and Robilliard & Robilliard. This is what Young J understood to be meant by retainer. Robilliard & Robilliard could not and did not look to the respondents for payment of their fees. But Young J was also right to conclude, in my opinion, that advice was being sought from the solicitors not only by the companies but also by the respondents and the occasions of the seeking and giving of that advice were privileged in consequence. This left for consideration the question whether that privilege had been waived.

125 Sixth, a joint privilege will also exist if one of a group of persons in a formal legal relationship communicates with a legal adviser about a matter in which the members of the group share an interest. This has been described as a form of "common interest privilege" (see Sharpe v Grobbel [2017] NSWSC 1065 (Sharpe) [17] (Brereton J)) and also as a form of "joint privilege" (see Tabcorp [119] (Sifris J)). In my view, no matter how it is described, the applicable principles are well established. It concerns legal relationships such as between: a trustee and beneficiaries (see Great Southern), partners (see Yunghanns v Elfic Pty Ltd [2000] VSC 113; (2000) 1 VR 92) (Yunghanns)), a company and its shareholders (see Sharpe) and also between joint venturers (see Yunghanns). Justice Sifris in Tabcorp at [119] referred to the legal relationship being a "formal legal relationship". It is not sufficient for the parties to only share an interest in the subject matter of the advice obtained. The joint privilege that arises as implicit in the relationship is the duty or obligation to disclose to other parties the content of the communication (see Farrow, 608 (Sheller JA); CGB [145] (Meek J); Tabcorp [124] (Sifris J)). In CGB, Meek J considered circumstances concerning advice provided to directors of a company. Meek J said:

1. It seems to me on the materials before the Court that the proper inference is that the company had a direct interest in the advice and that the directors could only have sought such advice in a context in which they owed fiduciary duties to the company, and could not keep confidential from the company what the directors were proposing should happen with the business of the company and the staff of the company.
2. Even if the retainer was strictly speaking not a retainer to which the company was a party, it seems to me that the company clearly had a common interest in what was being proposed regarding the restructure.
3. In the circumstances, I find that there was a sufficient common interest such that the claim for privilege as against the company fails.

126 The applicable principles were conveniently set out by Warren J (as she then was) in Yunghanns in the context of a joint venture:

1. Privilege does not attach to communications against a person having a joint interest. The joint interest will encompass relationships falling in a special category including as between partners and between a trustee and cestui que trust. A joint venture is in the nature of a partnership in some respects. It involves the sharing of profits and the division of responsibilities within a relationship. The nature of the arrangement of a joint venture also involves special characteristics of trust and good faith analogous to that of a trust. If privilege does not attach to communications against a person having a joint interest where the relationship is one of partnership or trust then logically the attachment cannot arise where the relationship constitutes a joint venture. Where a joint venture exists the joint venturers have duties and obligations towards one another of a contractual and fiduciary type. It is the nature of the joint venture relationship that gives rise to the right of each joint venturer to obtain access to documents that are otherwise privileged against the world.

127 In Clarke & Ors v Great Southern Finance Pty Ltd & Ors [2012] VSC 260, Sifris J had regard to the interests of the relevant party, a beneficiary, in the advice received by the trustee for the benefit of the trust. Sifris J said, at [51]:

It is precisely because of this very relationship that the plaintiffs shared a very real direct interest in the advice and as a consequence are entitled (as all parties agree) to joint privilege over the relevant document.

128 On appeal, the Court of Appeal agreed with this finding. The Court of Appeal also referred to with approval the following observations of Sheller JA in Farrow:

So is it also if one of a group of persons in a formal legal relationship communicates with a legal adviser about a matter in which the members of the group share an interest. Communications by one partner about the affairs of the partnership or a trustee about the affairs of the trust are examples. Implicit in the relationship is the duty or obligation to disclose to other parties thereto the content of the communication. Accordingly, no privilege attaches to such communications as against others who, with the client, share an interest in the subject matter of communication.

129 As I have said in this judgment, this category of joint privilege has sometimes been referred to as a "common interest privilege". This category of joint privilege, however, concerns circumstances in which a claim of privilege cannot be sustained against a party who has a joint interest in the subject matter of the communication. It is based upon there being, inter alia, a legal relationship between the parties that gives rise to a duty or obligation to disclose to the other persons the communications. The learned authors of Cross on Evidence do not refer to this privilege as a "common interest privilege" but as a form of joint privilege.

130 Seventh, the plaintiffs submitted that a joint privilege is not confined to where there is a joint retainer, but also extends to circumstances in which persons have a common interest in the subject matter of the communications, although only one of them retains a solicitor. I do not accept this submission as it is too broadly expressed. It is not qualified by the need for the persons to be in a legal relationship in which a duty or obligation is implicit to disclose the content of the communication. The plaintiffs' submission is a direct quote from a statement by Brereton J in Sharpe, being a decision cited by the plaintiffs in support of the submission. It is clear, however, that Brereton J was referring to parties in a formal legal relationship in which there is a duty or obligation to disclose the content of the communication. This is because Brereton J made the statement relied upon by the plaintiffs and then, importantly, referred to this "feature" being referred to by the New South Wales Court of Appeal in Farrow and then relevantly set out the following from the judgment of Sheller JA in Farrow (including giving emphasis to certain words) at [15]:

So it is also if one of the group of persons in a formal legal relationship communicates with a legal advisor about a matter in which the members of the group share an interest. Communications by one partner about the affairs of the partnership or a trustee about the affairs of the trust are examples. Implicit in the relationship is the duty or obligation to disclose to other parties thereto the content of the communication. Accordingly no privilege attaches to such communications as against others who, with the client, share an interest in the communication.

131 Eighth, as observed by Campbell J in Doran at [72]:

... whether there is a communication made to, or from, a solicitor in his or her joint capacity is decided by objective evidence about whether the occasion for the communication was one where the solicitor was being asked to advance the purpose for which he or she was jointly consulted. It is appropriate to apply here the same test as Lord Buckmaster applied in Minter v Priest for the purpose of deciding whether a privilege arose at all, namely that the communication which is one made to the solicitor in his or her capacity as a jointly retained lawyer,"...must be such as, within a very wide and generous ambit of interpretation, must be fairly referable to the relationship".

132 Ninth, as stated by Foster J in Sheahan and Lock (Liquidators); In the Matter of Binqld Finances Pty Ltd (In Liq) [2015] FCA 718 (Sheahan) at [14]:

It is, of course, possible for one or more parties to a joint retainer to seek individual advice from time to time from the very same lawyers who have been jointly retained upon the basis or understanding on the part of all parties that that individual advice is to be privileged in favour of the party seeking the advice not only against external parties but also against all of the other parties to the joint retainer.

133 Finally, as I have already said earlier in this judgment, the Court has the power to inspect the documents in question and it should not be hesitant to exercise such a power.

134 The plaintiffs submitted that the question of whether B2B Lawyers acted for the Company is determined objectively by looking at all the relevant circumstances of the relationship. They submitted that the Court should find, based on an objective assessment of the evidence, that B2B Lawyers were asked to advise, and did provide advice, to the Company as well as other entities within the Kurc Group. The plaintiffs submitted that it was the same individual, namely Mr Kurc, who sought and received the advice. The plaintiffs submitted that Mr Kurc wore multiple hats, including as director of the Company. They submitted that when seeking and receiving advice from B2B Lawyers, Mr Kurc acted, inter alia, as a director of the Company. The plaintiffs submitted that the advice provided by B2B Lawyers went to the affairs of the Company and was also for the benefit of the Company. They submitted that apart from B2B Lawyers there was no other legal advisor for the Company in the restructurings and related transactions and these were overseen and facilitated by B2B Lawyers. They submitted that the advice from other firms apart from B2B Lawyers to the Company was limited specifically to employment issues, rent relief issues and intellectual property issues. The plaintiffs submitted that it is also significant that a large proportion of the communications with B2B Lawyers included the Company's accountant Mr Goldman, suggesting that the Company was jointly a client alongside the appellants. The plaintiffs submitted that while the retainer agreement did not refer to the Company as a named client, the work was done on behalf of or for the benefit of the Company, as can be seen by the context in which the work was sought. They submitted that the retainer came about for the restructure of the Company, and that the fact that the advice was given for the benefit of, or on behalf of, the Company, was evidenced in communications between Mr Kurc and B2B Lawyers.

135 The appellants submitted that the evidence does not establish that the Company was part of a joint retainer explicitly, nor did Damiss Nominees or Riot Stores have a formal pre-existing relationship which would require them to disclose to the Company the legal advice which they obtained. They submitted that the Company did not ask B2B Lawyers to advise it. The appellants submitted that the absence of any evidence of a joint retainer of B2B Lawyers is reinforced by the existence of the formal retainer agreement prepared by B2B Lawyers that identified the clients of B2B Lawyers as Damiss Nominees and Riot Stores and not the Company.

136 The appellants also submitted that the scope of work described in the retainer agreement included work items where the Company was the relevant counterparty and that if it had been intended that the Company was to jointly retain B2B Lawyers that could readily have been identified in the costs agreement. They submitted that there was no equivalent costs agreement between B2B Lawyers and the Company. They further submitted that the Company received legal advice from various other lawyers including CIE Legal, Gilbert + Tobin and Harry Silver. The appellants also relied upon Mr Kurc's practice of not communicating with B2B Lawyers via a Company related email account. They also referred to the fact that invoices issued by B2B Lawyers were paid for by Riot Stores or Damiss Nominees and not the Company. The appellants submitted that the evidence objectively supports a conscious decision being made to exclude the Company from the advice provided by B2B Lawyers in a manner that does not support a conclusion that the advice was sought 'for the benefit' of the Company as another joint privilege holder. The appellants submitted that the circumstances of the present case may be distinguished from those considered in Doran. The appellants submitted that the interactions between Mr Kurc and B2B Lawyers include limited instances, identified by Mr Kurc, where B2B Lawyers provided advice or assistance that pertained to the position of the Company. They submitted that they make no claim for privilege over the correspondence referable to those interactions. The appellants submitted that these limited instances do not evidence, or result in, some enduring and all encompassing 'joint retainer' that extended to all correspondence between B2B Lawyers and Mr Kurc, irrespective of the purpose or subject matter of the correspondence. The appellants also submitted that to the extent that the circumstances could be characterised as giving rise to some form of joint retainer of B2B Lawyers at some point in time (which they do not accept) it does not follow that one of the parties to that retainer could not have sought advice outside of the joint retainer, the privilege in which would not be shared. The appellants referred to Foster J's following observations in Sheahan at [14]:

It is, of course, possible for one or more parties to a joint retainer to seek individual advice from time to time from the very same lawyers who have been jointly retained upon the basis or understanding on the part of all parties that that individual advice is to be privileged in favour of the party seeking the advice not only against external parties but also against all of the other parties to the joint retainer.

137 The appellants did not further develop this submission.

138 The appellants submitted that the plaintiffs' approach to this issue has been premised upon no distinction being made or capable of being made between advice that was provided to the Company and advice that was sought by and provided to the appellants. They submitted that such an approach is too simplistic and does not withstand scrutiny. The appellants relied upon two examples. First, they submitted that some of the documents comprised correspondence between Mr Kurc and B2B Lawyers after the liquidators were appointed to the Company on 19 October 2020 and that as a result after that time Mr Kurc could not have been corresponding in his capacity as a director of the Company having relinquished control of it to the liquidators. Second, the advice provided by B2B Lawyers concerning 'Michael Kurc's Estate Planning' was plainly an instance of Mr Kurc obtaining individual advice for his own use in connection with his personal affairs. The appellants submitted that there was no evidence of B2B Lawyers being asked to advise the Company, and that the objective formal structures and arrangements supported that the retainer was only by Damiss Nominees and Riot Stores.

139 The appellants submitted that merely because Mr Kurc, who engaged B2B Lawyers on behalf of Damiss Nominees and Riot Stores, happened to also be director of the Company, did not mean that the knowledge he obtained would automatically be attributed to the Company as well. They relied on the following proposition from Sheller JA in Farrow at 609:

...The directors' knowledge of the decision to obtain advice and the contents of that advice cannot be treated as a disclosure to a party separate from the company itself. The directors receive and act upon this information as the mind and directing will of the company. Accordingly the disclosure involves no waiver of the company's privilege.

140 There was no dispute between the parties that the persons and companies identified in the final list of disputed documents were clients of B2B Lawyers. The only dispute between the parties concerned whether any privilege held by those clients was held jointly with the Company.

141 A joint privilege with the Company arose in the communications in the documents (excluding Documents 1, 4, 32, 34, 44, 57 and 65 for which the appellants abandoned their objection to the inspection of these documents and the communications identified in this judgment at paragraph 112) except for the communications in Document 64. This is because the Company joined in communicating with B2B Lawyers to obtain their legal advice in relation to the Kurc restructure, including its implementation. This is the subject matter of the communications in the documents. The evidence establishes that Mr Kurc sought legal advice from B2B Lawyers on behalf of, inter alia, the Company in relation to the Kurc restructure, including its implementation. The Company "jointly retained" B2B Lawyers within the meaning of s 124 of the Evidence Act. Mr Kurc gave evidence concerning the purpose of the communications in the Documents in the document bundle in his affidavit affirmed 1 August 2022 at paragraphs 26-92. It is clear from those paragraphs that the communications in the documents (excluding Documents 1, 4, 32, 34, 44, 57 and 65 for which the appellants abandoned their objection to the inspection of these documents and the communications identified in this judgment at paragraph 112) concerned obtaining legal advice concerning various parts of the Kurc restructure and its implementation except for paragraph 89 of his affidavit that concerns Document 64. It is also apparent from the documents themselves in the document bundle that I have read.

142 First, Mr Kurc took steps to retain a lawyer in late March 2020 to assist him in relation to the Kurc restructure, which then concerned, inter alia, the sale of the Company's online business to Riot Stores. Mr Kurc wanted to move the Company's online business to "clean up the Company", reduce its debt and pay off the remaining amount owed to the ANZ Bank. These matters concerned actions to be taken, inter alia, by the Company.

143 The initial steps taken by Mr Kurc then included: asking the Company's external accountant, Mr Goldman, to recommend a lawyer and sending an email to Mr Lurie of B2B Lawyers. Mr Kurc referred to "Our family business has retail stores" in his email to Mr Lurie. This is a reference to the Company. He also referred to wanting to restructure.

144 Second, in 2020 Mr Kurc was a director of the Company. David Kurc was also a director until 10 July 2020. Mr Kurc was, however, largely responsible for managing the Company and had been since 2003. Mr Kurc was also the sole director of Riot Stores and also a director of Damiss Nominees. I find that Mr Kurc took steps to obtain the advice of a lawyer on behalf of, inter alia, the Company. Mr Kurc was seeking advice for organising the family's affairs for the family entities for the Kurc restructure. The Company was an integral part of the family's affairs and the Company's affairs was the central focus of Mr Kurc seeking advice concerning the Kurc restructure.

145 Third, Mr Kurc's then ongoing instructions to B2B Lawyers established that the Company, inter alia, was seeking the advice of B2B Lawyers on the Kurc restructure.

146 On 17 April 2020, Mr Kurc sent an email to Mr Lurie. Mr Kurc thanked B2B Lawyers for its assistance and it is clear that he did so also on behalf of, inter alia, the Company as the matters set out in the email concern the interests of the Company. In the email he stated: "we have paid down debt through think tank and with judo bank"; "[w]e sold the 10/104 keys [sic] Rd asset"; "As part of the generational change for our family the Kurc family trust has decided to restructure its business in an attempt to terminate onorous [sic] lease obligations strangling the retail stores" and "Thanks for your help in setting up the future of the Kurc family business by separating the legacy business from the online business - this is where the growth is." These matters set out by Mr Kurc in this email concern the Company. Some of them also concern the subject matter of the retainer agreement, including "separating the legacy business from the online business". This involved the Company as it was the one selling the online business.

147 Further instructions were provided by Mr Kurc to B2B Lawyers concerning the "goals" of the restructure. I have already set out in this judgment the text of a document prepared by Mr Kurc on 8 May 2020 and provided to B2B Lawyers who marked up comments on it. This included Mr Kurc setting out "goals", inter alia, of the Company and seeking advice on how these goals could be achieved without complicating a future administration of liquidation of the Kurc Family Trust. It also concerned advice that the Kurc Family Trust should take certain steps, including repaying the ANZ Bank.

148 Mr Kurc gave evidence concerning the purpose of the communications in Documents 2-3, 5-31, 33, 35-43, 45-56, 58-64, 66 and 67 (being the documents in dispute) in his affidavit affirmed 1 August 2022. I also refer to the evidence of Mr Lurie at paragraph 8 of his affidavit affirmed 1 August 2022. It is established by this evidence that the communications in these documents (excluding the communications identified in this judgment at paragraph 112) concerned obtaining legal advice concerning various parts of the Kurc restructure, except for Document 64 that I address later in this judgment. For example, with respect the Kurc restructure, it is addressed by Mr Kurc in his affidavit affirmed 1 August 2022 as follows:

(a) general advice upon the restructure is addressed in the affidavit at paragraphs 27, 30, 39 and 40;

(b) the sale and transfer of the Company's internet business to Riot Stores (including licencing and intellectual property arrangements, assignments of leases and consignment and supply agreements) is addressed in the affidavit at paragraphs 30, 31, 32, 33, 34, 35, 36, 37, 41, 43, 44, 47, 48, 49, 51, 52, 53, 54, 55, 56, 58, 60, 61, 62, 63, 64, 65, 66, 67, 68, 70, 73, 74, 75, 76, 77, 78, 79, 80, 81, 83 and 84;

(c) loan arrangements between various entities in the Kurc Group, including involving the Company, Riot Stores and Damiss Nominees (including various securities and charges) are addressed in the affidavit at paragraphs 28, 30, 39, 41, 42, 45, 46, 50, 58, 64, 71, 72, 73, 85, 86, 87, 88, 90 and 92;

(d) setting up new trusts is addressed in the affidavit at paragraphs 38, 39 and 40;

(e) managing and refinancing the debt with the ANZ Bank is addressed in the affidavit at paragraphs 70, 81, 90 and 91.

149 Fourth, Mr Kurc gave evidence that except for his initial email to B2B Lawyers (i.e. the email dated 31 March 2020) he always communicated with B2B Lawyers using his personal and private Gmail address (i.e. michael.kurc@gmail.com), which was not associated with the server of the Company. The appellants submitted that the use of this email address was a separate and discrete process for communicating with B2B Lawyers separate from the Company's trading business email. The appellants submitted that this was a significant factor in construing the way in which the retainer of B2B Lawyers arose and confirms the purpose for which they were retained. There are, however, instances in which Mr Kurc communicated with B2B Lawyers using the Gmail address in communications in matters concerning the Company. These include the following:

(a) email from Mr Kurc to Ms Ling dated 8 May 2020 at 9.05am requesting templates for rent relief letters for the Company, being part of Document 38 for which no claim for privilege is made (i.e. the unredacted part of Document 38). This concerned leasing matters and the Company as a tenant of premises at this time;

(b) email from Mr Kurc to Mr Goldman and Mr Lurie dated 22 May 2020 at 4.25pm, being a communication for which the claim for privilege has been abandoned. The email address in the document bundle is identified as michael.kurc@gmail.com whereas the version of this document exhibited by Mr Kurc identifies the sender address as "michael kurc". This concerned, inter alia, leasing matters and the Company was a tenant of premises at this time;

(c) email from Mr Kurc to Ms Ling and Mr Lurie dated 4 July 2020 at 10.13am, being part of Document 50 for which no claim for privilege is made (i.e. the unredacted part of Document 50). It concerns a request for the preparation of a resolution of the members of the Company;

(d) email from Mr Kurc to Mr Goldman and Mr Lurie dated 13 July 2020 at 5.17pm. It has the subject line "kurc group progress to 13/7/2020" and concerns the "Kurc Group" which includes the Company.

150 Fifth, Mr Kurc dealt with B2B Lawyers together with Mr Goldman. As I have already said, Mr Goldman was the Company's external accountant. Much of the correspondence between Mr Kurc and B2B Lawyers is also addressed or copied to Mr Goldman. Mr Goldman also provided advice to Mr Lurie upon his request.

151 Sixth, there is no evidence that Mr Kurc expressly informed Mr Lurie or anyone else at B2B Lawyers that Mr Kurc was not acting for the Company in providing instructions to B2B Lawyers.

152 Seventh, many of the transactions the subject of the restructure required the co-operation and agreement of the Company. The matters the subject of the advice were mostly transactions in which the Company was, in fact, a party. Most importantly, this included advice concerning a number of substantial transactions involving the Company as follows:

(a) the sale of its internet business to Riot Stores, including its terms and the documentation of that sale;

(b) the consignment of stock between it and Riot Stores, including the indemnities to be provided by it to Riot Stores and the documentation of the consignment agreement;

(c) the loan to it by Damiss Nominees, including the rate of interest to be charged and the documentation of the loan;

(d) the general security charge provided by it to Damiss Nominees.

153 Eighth, the Company did not obtain any other legal advice from any other lawyer concerning the Kurc restructure, including the substantial transactions I have just referred to involving the Company. The Company obtained advice from other lawyers but this concerned other discreet matters.

154 Ninth, Mr Kurc gave evidence that Ms Ling stated in an email dated 3 April 2020 that the loan documents have been prepared from the perspective of Damiss Nominees and all other entities may wish to consider obtaining independent advice. The email forms part of Documents 14 and 17 in which she provided draft documents and made comment on them. Ms Ling's statement, however, assumes that the Company is a party to the communications. First, this is because the statement is directed to the Company (as borrower) and Riot Stores (as guarantor). It assumes that the Company and Riot Stores were privy to the communications. B2B Lawyers had drafted the documents from the perspective of one of its clients, namely Damiss Nominees, and informed the other clients, being privy parties to the communications, that this is what they had done. If the Company and Riot Stores were not clients and were not privy to this communication then there would have been no need for B2B Lawyers to have made any such statement. Second, Ms Ling did not state that B2B Lawyers did not act for the Company or Riot Stores, just that the documents had been prepared from the "perspective" of Damiss Nominees. Third, the appellants accept that Riot Stores was the client for the advice in relation to the communications in Document 14 and Document 17, as set out in the final list of disputed documents.

155 Tenth, Mr Kurc gave evidence concerning the purpose of some of the communications but this was raised no higher than mere assertion in many instances. I refer to the following:

(a) Document 19: "B2B Lawyers drafted this email to me for the benefit of Riot Stores Pty Ltd and was acting for Riot Stores when it provided me the draft documents and sought further instructions". These are assertions. The basis for the evidence is not identified. The email concerns advice concerning the Kurc restructure, namely the sale of the internet business from the Company to Riot Stores. The email concerns the affairs of the Company. In particular, I refer to paragraph 1 on page 570 of the document bundle;

(b) Document 28: "I asked for legal advice on behalf of Riot Stores Pty Ltd regarding the payment of the purchase price of the internet business". This is an assertion. The basis for the evidence is not identified. The email concerns advice concerning the Kurc restructure, namely the sale of the internet business from the Company to Riot Stores. Further, the communications concern a possible amount payable by the Company to Riot Stores and also an alternative to that;

(c) Document 33: "My instructions to B2B Lawyers in this regard was me engaging B2B Lawyers to continue acting for Riot Stores Pty Ltd and to draft the consignment agreement". This is an assertion. The basis for the evidence is not identified. Further, the communications between Mr Lurie and Mr Kurc concerned the stock of the Company and a stocktake of that stock;

(d) Document 39: "Discussions were also had in this correspondence surrounding the debts owed by the Company to Damiss Nominees Pty Ltd and other including my parents and I engaged in these discussions in my capacities as director of Riot Stores Pty Ltd and Damiss Nominees Pty Ltd." This is an assertion. The basis for the evidence is not identified.

156 Eleventh, there is no evidence of any express retainer agreement between the Company and B2B Lawyers. There is also no evidence that the Company paid for advice in relation to the Kurc restructure pursuant to the retainer agreement. There was an express retainer agreement between Damiss Nominees, Riot Stores and B2B Lawyers. It is unsigned. The plaintiffs did not, however, contend that it was not entered into by Damiss Nominees and Riot Stores. The retainer agreement concerned part of the work concerning the Kurc restructure. Damiss Nominees and Riot Stores paid B2B Lawyer's invoices. As I have already said, a joint privilege may arise where persons seek and obtain advice from a lawyer but only one of them enters into a retainer agreement. That is the present case. The absence of a retainer agreement between the Company and B2B Lawyers does not mean that the Company did not join in communicating with B2B Lawyers for the purpose of obtaining their legal advice in relation to the Kurc restructure and its implementation. This is because, as I have already said, the objective evidence is that Mr Kurc sought legal advice from B2B Lawyers on behalf of, inter alia, the Company in relation to the Kurc restructure. There is also evidence that B2B Lawyers undertook work for persons within the Kurc family and entities within the Kurc Group in circumstances in which it did not have an express retainer agreement. Mr Kurc gave evidence that he did not receive any other written retainer agreements from B2B Lawyers apart from the retainer agreement. In addition:

(a) Mr Kurc is identified as a client, together with others, concerning Document 64 in the final list of disputed documents. He is not identified as a client in the retainer agreement. There is no evidence of any written retainer agreement with Mr Kurc;

(b) Dajomis, Ms Lea Kurc, Mr Solomon Kurc and Kurc Services are also identified as clients of B2B Lawyers in the final list of disputed documents. These companies and persons are not identified as clients in the retainer agreement. There is no evidence of any written retainer agreement between B2B Lawyers and these persons and entities;

(c) Mr Kurc and Mr Lurie gave evidence that the retainer agreement did not include work concerning the consignment agreement but that this was undertaken by B2B Lawyers;

(d) there were other files (with different matter numbers) opened by B2B Lawyers in relation to Kurc family members and entities within the Kurc Group. For example, B2B Lawyers acted for the Company in relation to three matters, including a proceeding in the New South Wales District Court, as set out in the letter from B2B Lawyers to the plaintiffs' solicitors dated 2 May 2022. There is no evidence of any written retainer agreement in relation to any of these matters.

157 Twelfth, Mr Lurie gave evidence that the retainer agreement was limited to Riot Stores and Damiss Nominees because those were the only entities that he understood were clients of B2B Lawyers. I give this evidence little or no weight. This is because it is his subjective belief. He also does not set out the basis for the belief. It is an assertion. Further, it is also inconsistent with the detailed evidence of Mr Kurc concerning the other clients of B2B Lawyers, which included Mr Kurc, Ms Lea Kurc, Mr Solomon Kurc, Dajomis and Kurc Services, I have just referred to. Mr Lurie gave evidence that each of the documents, the subject of the claims of privilege, were prepared or received by B2B Lawyers in the course of the retainers identified by him in his evidence. This is a reference to the retainer agreement. I also give this evidence little or no weight. This is because he does not set the basis for the belief. It is an assertion. Again, it is also inconsistent with the detailed evidence of Mr Kurc concerning the other clients of B2B Lawyers concerning the communications in the documents, including Mr Kurc, Ms Lea Kurc, Mr Solomon Kurc, Dajomis and Kurc Services, I have just referred to that were not parties to the retainer agreement.

158 Thirteenth, the only communications in the documents that did not concern the Kurc restructure were the communications in Document 64. This contains communications between Mr Kurc and B2B Lawyers in November 2020, being about a month after the Company went into liquidation. I have read Document 64. Document 64 contains communications between Mr Kurc and B2B Lawyers in November 2020 concerning an upcoming meeting between Mr Giasoumi, as a liquidator of the Company, Mr Kurc, as a director of the Company, and Mr Lurie and the preparation for that meeting. This is not the subject of the retainer agreement. There is no other retainer agreement that concerns this work. There is no evidence as to who paid B2B Lawyers for this work. I find that by November 2020 Mr Kurc was communicating with B2B Lawyers for the purpose of retaining their services and obtaining their advice, in his capacity as a director of the Company, to assist him in responses to the plaintiffs, in their capacity as liquidators of the Company. This is because:

(a) the plaintiffs did not dispute the identity of the clients in the final list of disputed documents and this identified Mr Kurc, among others, as a client in relation to Document 64;

(b) in any event, in November 2020, Mr Kurc could not perform or exercise a function or power as an officer of the Company (see s 198G of the Corporations Act). Mr Kurc had no power to engage B2B Lawyers on behalf of the Company, including seeking any advice on its behalf;

(c) Document 64 concerns steps being taken by Mr Kurc, in his capacity as a director, to provide information to the plaintiffs, as liquidators of the Company (see s 530A of the Corporations Act). This provision concerns, in effect, the assistance that must be provided by an officer of a company to a liquidator of the company. Mr Kurc sought advice from B2B Lawyers in doing so. Document 64 does not concern the Kurc restructure;

(d) I accept that there is no express retainer agreement between Mr Kurc and B2B Lawyers but B2B Lawyers performed other work for members of the Kurc family and Kurc entities without a retainer agreement. I refer to my above reasons at paragraph 156.

159 Fourteenth, the interests of the Company, together with each of the persons and entities identified as clients in the final list of disputed documents were inextricably linked in obtaining advice upon and the implementation of the Kurc restructure. This is because all of the important transactions the subject of the Kurc restructure involved the Company and others identified in the final list of disputed documents, including, most importantly, Riot Stores and Damiss Nominees. I refer to my above reasons at paragraph 152. In addition, during the relevant retainer of B2B Lawyers until the appointment of the liquidators to the Company (i.e. late March 2020 to 19 October 2020), Mr Kurc was largely responsible for managing the Company and also for looking after the Kurc family's business interests, which included Riot Stores and Damiss Nominees.

160 Finally, I find that the holders of the joint privilege are the Company and each of the persons and entities identified in the final list of disputed documents as clients for the relevant communications in the documents (excluding Documents 1, 4, 32, 34, 44, 57 and 65 for which the appellants abandoned their objection to the inspection of these documents and the communications identified in this judgment at paragraph 112) except for the communications in Document 64. This is because I have already found that the Company was the holder of the joint privilege; and there was no dispute between the parties that each of the persons and entities identified in the final list of disputed documents were clients for the relevant communications in the documents.

161 In the event that I am incorrect and the Company did not join in communicating with B2B Lawyers to obtain legal advice, then I am of the view that a joint privilege nonetheless arose as Mr Kurc, in his capacity as a director of the Company, was in a formal legal relationship with the Company, and the communications the subject of the documents (except for Document 64) concern matters in which Mr Kurc, in his capacity as a director of the Company, and the Company shared an interest, namely the Kurc restructure. Mr Kurc was the directing mind of the Company as he was the person who had been largely responsible for managing the Company since 2003. Mr Kurc was the person within the Kurc family who communicated with B2B Lawyers. Mr Kurc, in his capacity as a director of the Company, and the Company shared an interest, namely the Kurc restructure. The Kurc restructure concerned, inter alia:

(a) the sale of the Company's internet business to Riot Stores, including its terms and the documentation of that sale;

(b) the consignment of stock between the Company and Riot Stores, including the indemnities to be provided by it to Riot Stores and the documentation of the consignment agreement;

(c) the loan to the Company by Damiss Nominees, including the rate of interest to be charged and the documentation of the loan;

(d) the general security charge provided by the Company to Damiss Nominees; and

(e) other matters concerning the Company.

162 As a director of the Company, Mr Kurc owed duties to the Company, including fiduciary duties. He could not keep confidential from the Company how he intended to restructure the family business pursuant to the Kurc restructure. This is because it included the transactions I have just identified that involved the Company and substantially affected its interests.

163 I otherwise refer to the reasons I have given earlier in this judgment at paragraph 160 concerning the identification of the holders of the privilege.

IF THE DOCUMENTS CONTAIN COMMUNICATIONS MADE FOR THE DOMINANT PURPOSE OF LEGAL ADVICE AND THE COMPANY DOES NOT HOLD PRIVILEGE JOINTLY IN ANY OF THE COMMUNICATIONS, DOES THE CRIME/FRAUD EXCEPTION APPLY TO THOSE COMMUNICATIONS?

164 This issue only concerns Document 64. This is because the plaintiffs only relied upon this ground as an alternative to the claim of joint privilege and I have found that the Company holds joint privilege in the communications in the documents (excluding Documents 1, 4, 32, 34, 44, 57 and 65 for which the appellants abandoned their objection to the inspection of these documents and the communications identified in this judgment at paragraph 112) except for Document 64. Document 64 was not produced by Mr Goldman. It was produced by Mr Kurc and Damiss Nominees. As a result, the Evidence Act (ss 125 and 131A) applies for the reasons I have referred to earlier at paragraph 37. Section 125 of the Evidence Act relevantly provides:

125 Loss of client legal privilege - misconduct

(1) This Division does not prevent the adducing 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 the purposes of 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 so made or the document so prepared.

...

165 The plaintiffs submitted that Mr Kurc manifested an intention to defeat, delay, hinder and/or defraud the creditors of the Company. The plaintiffs submitted that the restructuring transactions allowed for Mr Kurc and his related entities to be paid in full at the expense of external creditors. They submitted that, as a result, the communications in the documents are not privileged as the communications were made in furtherance of the commission of this fraud.

166 There was a dispute between the parties as to whether the plaintiffs were required to establish the matters in s 125(1) of the Evidence Act based upon reasonable grounds or to a prima facie standard (plaintiffs' position) or balance of probabilities (Mr Lurie's and ultimately the appellants' position). I do not consider it necessary to resolve this dispute as no matter what evidentiary standard is applied there are no grounds for any finding that Document 64 contains communications in furtherance of the commission of the alleged fraud. I have read Document 64. Document 64 contains communications between Mr Kurc and B2B Lawyers in November 2020 concerning an upcoming meeting between Mr Giasoumi, as liquidator of the Company, Mr Kurc, as a director of the Company, and Mr Lurie and the preparation for that meeting, including responses to be made to Mr Giasoumi to various requests made by him for information. This was after the transactions took place that were relied upon by the plaintiffs as manifesting an intention to defeat, delay, hinder and/ or defraud the creditors of the Company. It was also after the Company went into liquidation.

167 There are no grounds for a finding that Document 64 contains communications made in furtherance of the commission of the alleged fraud.

(a) the communications in Documents 5-27, 29-30, 33, 35-38, 40-43, 45, 50 and 58-59 were for the dominant purpose of legal advice except for the communications identified in this judgment at paragraph 112. There was no dispute that the other documents (excluding Documents 1, 4, 32, 34, 44, 57 and 65 for which the appellants abandoned their objection to the inspection of these documents) were made for the dominant purpose of legal advice;

(b) privilege in the communications is jointly held with the Company (excluding Documents 1, 4, 32, 34, 44, 57 and 65 for which the appellants abandoned their objection to the inspection of these documents and the communications identified in this judgment at paragraph 112) except for the communications in Document 64;

(c) in relation to the communications in Document 64 (i.e. being the only communications not subject of the joint privilege with the Company), the crime/fraud exception to the privilege does not apply.

169 As a result, the plaintiffs are entitled to uplift, inspect and copy the documents in the document bundle except for Document 64.

170 I will hear from the parties on the precise form of the orders, including costs.

Author and circumstances of creation of document

Client/Clients to whom legal advice was provided

Is Privilege disputed because evidentiary onus not met?

Is Privilege dispute because Goldman is a party?

Email correspondence between Michael Kurc, Joel Goldman and David Lurie (B2B Lawyers) regarding legal advice

Email correspondence between Michael Kurc and David Lurie providing instructions to enable the provision of legal advice

Email correspondence between Michael Kurc and David Lurie (B2B Lawyers), providing instructions to enable the provision of legal advice

Email correspondence between Rachel Chew, Michael Kurc and Joel Goldman regarding legal advice

Email correspondence between Michael Kurc, David Lurie, Joel Goldman and Yun Ling regarding legal advice

Email correspondence between Michael Kurc, David Lurie and Joel Goldman providing instructions to enable the provision of legal advice

Email correspondence between Michael Kurc, David Lurie and Joel Goldman regarding legal advice

Email correspondence between Michael Kurc, David Lurie and Joel Goldman regarding legal advice

Email correspondence between Michael Kurc, David Lurie and Joel Goldman regarding legal advice

Email correspondence between Michael Kurc, David Lurie, Joel Goldman and Yun Ling regarding legal advice and providing instructions

Email correspondence between Michael Kurc, David Lurie, Joel Goldman and Yun Ling regarding legal advice

Email correspondence between Michael Kurc, David Lurie, Joel Goldman and Yun Ling regarding legal advice

Email correspondence between Michael Kurc, David Lurie, Joel Goldman and Yun Ling regarding legal advice and providing instructions

Email correspondence between Yun Ling (B2B Lawyers) and Michael Kurc and Joel Goldman regarding legal advice

Email correspondence between Michael Kurc, Joel Goldman, Yun Ling (B2B Lawyers) and David Lurie in connection with instructions received and legal advice provided

Email correspondence between David Lurie, Michael Kurc with Joel Goldman regarding legal advice

Email correspondence between, Michael Kurc, David Lurie, Joel Goldman and Yun Ling regarding legal advice

Email chain dated correspondence between 3 April 2020

Email correspondence between Yun Ling, David Lurie, Rachel Chew, Michael Kurc and Joel Goldman providing further instructions for the purposes of obtaining legal advice

Email from Rachel Chew to Michael Kurc and Joel Goldman copying providing further instructions for the purposes of obtaining legal advice

Email correspondence between Michael Kurc, Joel Goldman, David Lurie and Yun Ling regarding legal advice

Email correspondence between Michael Kurc, David Lurie, Joel Goldman and Yun Ling regarding legal advice and providing instructions

Email correspondence between Michael Kurc, Joel Goldman and David Lurie regarding the provision of instructions to obtain legal advice

Email correspondence between Michael Kurc and David Lurie providing instructions and legal advice

Email correspondence between Joel Goldman, David Lurie and Michael Kurc providing instructions

Email correspondence between Michael Kurc, David Lurie, Yun Ling and Joel Goldman regarding legal advice

Email from Rachel Chew to Michael Kurc and Joel Goldman regarding legal advice

Email correspondence between Rachel Chew, Yun Ling, Michael Kurc and Joel Goldman regarding legal advice

Email correspondence between Michael Kurc and David Lurie regarding legal advice

Email correspondence between Rachel Chew, Yun Ling, Michael Kurc and Joel Goldman regarding legal advice

Email correspondence between Michael Kurc, David Lurie, Rachel Chew, Yun Ling and Joel Goldman providing instructions and receiving legal advice

Email correspondence between David Lurie and Michael Kurc regarding legal advice

Email from Yun Ling (B2B Lawyers) to Michael Kurc regarding cost disclosure

Email correspondence between Michael Kurc, David Lurie and Yun Ling providing instructions for the provision of legal advice

Email correspondence between Michael Kurc and David Lurie providing instructions and legal advice

Email from Yun Ling to Michael Kurc and Joel Goldman regarding legal advice

Email correspondence between Yun Ling and Michael Kurc regarding legal advice

Email correspondence between Rachel Chew (B2B Lawyers), Michael Kurc and Joel Goldman regarding legal advice

Email correspondence between Michael Kurc, David Lurie, Gordana Milunovic (B2B Lawyers) providing legal advice

Email correspondence between Michael Kurc, Yun Ling, David Lurie and Rachel Chew regarding the provision of legal advice

Email correspondence between Michael Kurc, Joel Goldman, Yun Ling, Rachel Chew and David Lurie requesting and providing information with legal advisors

Email correspondence between Michael Kurc, David Lurie and Joel Goldman regarding legal advice and providing instructions

Email correspondence between Michael Kurc, David Lurie, Joel Goldman and Yun Ling providing instructions and legal advice

Email correspondence between Michael Kurc, David Lurie, Joel Goldman and Yun Ling regarding legal advice

Email from Michael Kurc to David Lurie providing further instructions for the purposes of obtaining legal advice

Email correspondence between Michael Kurc, David Lurie, Joel Goldman and Yun Ling providing further instructions for the purposes of obtaining legal advice

Email correspondence between Michael Kurc and David Lurie providing instructions and legal advice

Email correspondence between Michael Kurc and David Lurie (B2B Lawyers) regarding the provision of instructions to obtain legal advice

Email correspondence between Michael Kurc, David Lurie and Yun Ling containing legal advice and instructions for obtaining further legal advice

Email correspondence between Michael Kurc, Yun Ling, Rachel Chew and David Lurie providing instructions for the obtaining of legal advice

Email correspondence between Michael Kurc and Yun Ling regarding legal advice

Email providing instructions and legal advice to the parties listed

Email correspondence between Michael Kurc, David Lurie and Yun Ling containing legal advice and instructions for obtaining further legal advice

Email correspondence between Michael Kurc and Yun Ling regarding legal advice

Email correspondence between Michael Kurc and Yun Ling regarding legal advice

Email correspondence between Yun Ling, Michael Kurc and David Lurie regarding the provision of legal advice

Email correspondence between Michael Kurc, Joel Goldman and David Lurie in connection with instructions received and legal advice provided

Email correspondence between Michael Kurc, Joel Goldman, David Lurie and Yun Ling providing instructions to enable the provision of legal advice

Email correspondence between Michael Kurc, Joel Goldman, David Lurie and Yun Ling providing instructions to enable the provision of legal advice

Email correspondence between Michael Kurc and Yun Ling regarding legal advice

Email correspondence between Michael Kurc and Yun Ling regarding legal advice

Email correspondence between Michael Kurc, Yun Ling and David Lurie regarding legal advice

Email correspondence between Yun Ling, Michael Kurc and David Lurie regarding the provision of legal advice

Email correspondence between Lucienne Galea (B2B Lawyers) and Michael Kurc containing instructions and legal advice

Email correspondence between Lucienne Galea, Michael Kurc, David Lurie and Yun Ling containing legal advice and attaching draft documents