The recent decision of Sharpe v Grobbel [2017] NSWSC
1065 acts as a reminder for lawyers about their duty to claim
privilege for clients even if they are no longer acting. It
highlights the point in time in which common interest privilege
arises and the threshold to be met to establish a forensic purpose
notwithstanding a break down in commercial relationships.
Background
The proceedings centre around an unhappy falling-out between the
four directors (and their related shareholder companies) of Climate
Friendly Pty Ltd (Climate Friendly), an Australian company whose
primary business relates to the development of land-based carbon
projects in Australia.
The substantive proceedings concern the enforceability of a
document (styled a Terms Sheet) executed by the directors of
Climate Friendly, which the plaintiff directors allege binds the
defendants to, inter alia, enter into a buy-back
transaction which would reduce the third defendant's
shareholding in Climate
