The tug of war between the special purpose liquidators (SPLs) of the Mosaic Brands Group and the Group’s directors and advisors has forced the protagonists to ask the Federal Court to determine if the directors can claim exclusive privilege over safe harbour advice contained in Minutes of board meetings and board packs.
Federal Court judge Brigitte Markovic this morning heard that orders for production obtained by Andrew McCabe, Wenjie Wang and Joe Hayes of Wexted Advisors had elicited 124,000 documents from Mosaic directors, lawfirm Hamilton Locke Pty Ltd, Deloitte SRT Pty Ltd and others.
Her honour also heard that the claims for exclusive privilege involved the safe harbour another legal advice Mosaic directors obtained prior to the company being placed into administration in October 2024.
Unsurprisingly McCabe, Wang and Hayes regards the meeting Minutes and board packs as property of the company that they’re entitled to scrutinise as part of their investigations into potential insolvent trading claims that the general-purpose liquidators are deemed as too conflicted to manage.
Equally, Mosaic’s board regards legal advice in regards to their safe harbour protections as coming under an exclusive privilege category that should prevent the dissemination of the advice to anyone other than the client.
The exclusive privilege claim is perhaps the last obstacle the Mosaic directors and their advisors have before they submit themselves for 10 days of public examination by counsel for the SPLs, though in the wake of this morning’s case management hearing the July 1 commencement date for the examinations will have to be scrapped to provide sufficient time for the material subject to the production orders produced to be assessed.
Further reading:
Now that is an interesting question. No issue with legal professional privilege but the question must be who holds the relevant privilege and the documents must be specifically identified in accordance with well recognised procedures. Much will depend on whether it is a company record or that of the individual directors.