The NSW Court of Appeal held (2-1, Meagher JA dissenting) that company directors could maintain legal professional privilege over legal advice obtained by their company where the advice concerned the directors' duties and potential personal liabilities, even after the company's liquidator had waived the company's privilege. Sheller JA held that where there was sufficient commonality of interest between the company and its directors, and the advice was sought on behalf of both, fairness required that the liquidator's waiver not be treated as waiver by the directors. The dissent (Meagher JA) would have held that the directors had no legal interest in the privileged material because the solicitor was retained and paid by the company alone, and waiver by the privilege-holder made it impossible for others to claim privilege.
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