Ajeet Gobindram Vaswani and another v Salvatore Gregory Takoushian and others [2023] SGHC 103

On 28 September 2022, I dismissed Mr Salvatore Gregory Takoushian’s (“the First Defendant”) applications in summons no 2545 of 2022 and summons no 2546 of 2022. The First Defendant applied for leave to appeal to the Appellate Division of the High Court (“SGHC(A)”) by way of AD/originating application no 18 of 2022 and AD/originating application no 19 of 2022. On 13 February 2023, the SGHC(A) granted leave to appeal but limited it to one question, whether there was a prima facie case of error arising from the approach I had taken in making the assumption that privilege existed as regarding certain documents. I therefore limit my grounds to just this issue for which leave was granted.

In both summonses, the First Defendant sought to restrain the remaining defendants in this action (“Other Defendants”) from disclosing a set of documents and from lifting redactions made in another set of documents on the ground that they were privileged and that the First Defendant had not waived that privilege. I shall refer to these documents as the Disputed Documents.

The First Defendant had claimed that the Disputed Documents were privileged on the ground that they constituted legal advice rendered to, inter alia, the First Defendant. It is on this basis that the First Defendant came before me in both these summonses. If they were not privileged, then the First Defendant would not have any basis to make the applications.

It seemed to me that, even if the Disputed Documents were privileged, the First Defendant had, by virtue of the pleading in his Defence that he had relied on the legal advice given in the Disputed Documents, impliedly waived his privilege. As this point disposes of the summonses, I saw no need to venture into a determination of whether the Disputed Documents were indeed privileged. This is because, if the Disputed Documents are not privileged, the summonses would also be dismissed.

I should also deal with the following point. The legal advice in the Disputed Documents was rendered to the defendants, as directors of the REIT, as well as to Eagle Hospitality REIT Management Pte Ltd and Eagle Hospitality Trust Management Pte Ltd (“the REIT Managers”) (who are not a party to the suit). The question is whether, if the Disputed Documents are subject to privilege and the REIT Managers are entitled to assert it, my decision on the summonses ought to be any different. I am of the view that it makes no difference because the REIT Managers had not asserted that privilege before me (on the assumption that, not being a party, they are each entitled to do so).