The New South Wales Supreme Court's recent decision in Perpetual Corporate Trust Ltd v Maneva Pty Ltd [2026] NSWSC 818 (Perpetual v Maneva) provides a timely reminder that consideration of legal professional privilege (LPP) remains highly fact-dependent and requires evidence beyond bare assertion. The decision addresses three issues that frequently arise in litigation and investigations: evidencing privilege claims, assessing privilege in email chains and attachments, and preserving privilege when legal advice is shared with third parties.

Background

The dispute arose from loan enforcement proceedings brought by Perpetual Corporate Trust Ltd against Mario Evangelo, Janelle Evangelo, Maneva Pty Ltd and related parties following a default under a loan facility of approximately $6 million. Ms Evangelo cross-claimed and sought to have the proceedings managed alongside family law proceedings concerning her separation from Mr Evangelo.

Affidavits filed on behalf of the defendants in the transfer application annexed emails involving Ms Evangelo, her solicitor, Ms Burrows and a third person, Mr Osman. Ms Evangelo objected to parts of the affidavits, claiming LPP over certain of the communications under sections 118, 119 and 122(5) of the Evidence Act 1995 (NSW). The privilege dispute was referred to the Supreme Court for urgent determination, and the Court used its statutory power (under s 133 of the Evidence Act 1995 (NSW)) to inspect the documents and determine privilege.

Decision

Principles

In determining privilege, the Court must make an objective assessment, considering evidence advanced by the onus-bearing party as to the dominant purpose of the alleged privileged communication. The "ruling, prevailing or most influential" purpose for which a communication is made must either be in connection with the provision of legal advice, or in connection with active or contemplated litigation.

Sirtes J emphasised that email chains and attachments must be analysed separately: a document is not privileged merely because it is attached to, or forwarded with, a privileged email; nor does a privileged email in a chain make all earlier emails privileged.

“[29] A document does not acquire privilege merely because it is attached to, or transmitted under cover of, a privileged email. Similarly, an attachment prepared for the dominant purpose of legal advice or litigation may attract privilege even though the covering email is anodyne and is not privileged. Further, the privileged character of the most recent email in a thread does not invest previous emails in the thread with privilege.”

These principles guided his Honour's consideration of privilege, leading the Court to consider each relevant email and attachment at issue as a divisible unit from the broader email package.

Dominant Purpose and Email Correspondence

Ms Evangelo argued that email correspondence annexed to the Burrows Affidavit was privileged because it was sent for the dominant purpose of legal advice or communicating about litigation. The Court rejected that submission for one annexure and in part for another. A broad assertion that communications relate to legal advice or litigation was insufficient. After reviewing the correspondence, the Court found that some material contained no legal advice and was not created for a privileged purpose. An email from Mr Osman to Ms Evangelo's solicitors was also not privileged because it was not a solicitor-client communication and there was no evidence it was created for the dominant purpose of advice or litigation.

Privilege was, however, maintained over two emails between Ms Evangelo and her solicitors that contained legal advice and instructions.

The Court also rejected privilege claims over parts of the Osman Affidavit because they were unsupported by admissible evidence. A submission-style privilege schedule (in the style of a tabular privilege log) was not enough. Sirtes J reaffirmed that a bare assertion of privilege is an inadmissible assertion of law; evidence must identify facts showing the communication was created for the dominant purpose of legal advice or litigation.

Common Interest - Forwarding Legal Advice

Ms Evangelo had forwarded legal advice from her solicitors to Mr Osman, but argued privilege was not waived because they shared a common interest. She described Mr Osman as a trusted adviser who had provided financial assistance for her legal costs in the FCFCOA Proceedings.

The Court accepted that submission. Implied waiver turns on whether the privilege holder's conduct is objectively inconsistent with maintaining confidentiality. On the evidence, Sirtes J was satisfied that Ms Evangelo and Mr Osman shared a common interest in the outcome of the family law proceedings, including because of Mr Osman's financial exposure and advisory role.

As a result, disclosure of the legal advice to Mr Osman did not amount to waiver, and privilege over this annexure to the Osman Affidavit was preserved by the Court.

Key Takeaways

Perpetual Corporate Trust v Maneva highlights several practical points for managing LPP in disputes involving email correspondence and third-party communications:

• Forwarding legal advice to a third party may not waive privilege if a genuine common interest exists, but the position will be fact-specific.
• Clients should seek advice before circulating privileged material beyond the solicitor-client relationship. Even where the recipient is assisting with a dispute or has a financial interest in its outcome, it is possible that forwarding the advice would be considered a waiver of LPP should the relevant factual circumstances not evidence a common interest.
• Privilege claims must be supported by evidence. Courts will not accept broad or formulaic assertions that communications were created for the dominant purpose of legal advice or litigation.
• Each email and attachment in a chain should be assessed separately. The existence of privileged communications within a thread does not automatically extend privilege to all emails or attachments within that thread.