WIJOAV Services Pty Ltd v Goldstone Private Equity Pty Ltd (No 7)

WIJOAV Services Pty Ltd v Goldstone Private Equity Pty Ltd (No 7) [2026] FCA 423 is a Federal Court decision about legal professional privilege in a commercial dispute over a venture capital fund. The immediate issue was whether documents held by Thomson Geer were privileged only for AVCE, or whether the privilege was jointly held with Mr James Angelis because he too was a client in relation to the relevant work.

Owens J held that joint privilege was established. The Court accepted that AVCE was a client on Ms Commins' side of the arrangement, but not the only client for the general retainer concerning establishment of the fund. For businesses, the practical message is that courts will closely examine the objective record of who selected the lawyer, who received the advice, who approved the work and how the parties behaved at the time.

The privilege dispute sat inside larger proceedings about interests in the Goldstone Private Equity Fund business. The main case had already produced findings of oppressive conduct, and the remaining issues included the price for a buy-out and the quantification of monetary relief. In preparing for that next hearing, certain defendants subpoenaed Thomson Geer for its complete file relating to legal services connected with the fund.

Thomson Geer produced materials to the Court. There was no dispute about one matter reference where Goldstone Private Equity Pty Ltd was accepted to be the client. The real contest concerned another matter reference, 5400793. AVCE maintained privilege over 248 documents in that packet. The defendants challenged that claim, arguing that AVCE was not the sole client and that Mr Angelis was also a client in relation to the work.

The available reasons show that in early 2023 Ms Commins and Mr Angelis had decided they wanted to establish a new investment fund in which Mr Angelis would be the cornerstone investor. They needed legal advice on the best structure and on the work required to establish the fund. Emails from April and May 2023 showed them discussing which law firm should be used, considering both Arnold Bloch Leibler and Thomson Geer, arranging meetings, sharing agendas, discussing likely fees and then deciding to proceed with Thomson Geer.

The Court treated those contemporaneous communications as more reliable than later high-level recollections. That mattered because both Ms Commins and the Thomson Geer partner, Mr Hodson, gave evidence supporting the position that AVCE was the client on her side and that Mr Angelis was included in some communications because he was the cornerstone investor. The Court accepted AVCE was a client, but found the broader claim that AVCE alone retained Thomson Geer for all relevant work was not supported by the documents.

The central legal issue was whether legal professional privilege over the subpoenaed Thomson Geer documents belonged solely to AVCE, or whether the privilege was jointly held because Mr Angelis was also a client in relation to the relevant work. The defendants' main argument was not that the communications lacked the dominant purpose of legal advice. Their main point was that AVCE was not the only client, and that Mr Angelis was also entitled to the benefit of the privilege.

That required the Court to determine the identity of the client or clients for the relevant retainer. Owens J said a retainer does not need to be express and may be implied from contemporaneous documentation. The Court referred to authority that an implied retainer depends on objective facts and circumstances showing a tacit agreement to provide legal services, and that the reasonable expectations of the alleged client matter. The reasons also referred to authority recognising a strong tendency to find a joint retainer where both parties to a transaction consult the same solicitor, provide the information needed for the work, and the solicitor accepts responsibility without clearly indicating that one of them is not a client.

The Court also dealt with a threshold point about whether AVCE, rather than Ms Commins personally, was the client on her side of the arrangement. Owens J was satisfied that AVCE was indeed a client. The reasons point to Ms Commins' evidence that she retained Thomson Geer on behalf of AVCE, her authority as sole director, her prior use of Thomson Geer for AVCE, and Mr Hodson's understanding that AVCE was the company through which she undertook investments. The fact that AVCE was not ultimately used in the final structure did not matter. The Court said the client through which legal advice was sought and obtained could still be AVCE even if other companies were later incorporated for the final structure.

The available text also notes that the defendants raised waiver if AVCE were found to be the sole privilege holder. However, the visible reasons do not clearly set out the Court's full conclusion on waiver, so that point should be treated cautiously.

Owens J rejected AVCE's contention that, apart from later separate retainers by Goldstone Private Equity, Thomson Geer had only ever been retained by AVCE alone. The Court said the contemporaneous written communications demonstrated clearly and unambiguously that the recollection or understanding of Ms Commins and Mr Hodson could not be regarded as objectively correct on that broader proposition. Those documents were a more reliable guide to events than witness recollections given years later.

The reasons then walk through the communications. They show Mr Angelis telling Ms Commins that Arnold Bloch Leibler appeared to be the better starting point for advice and proposing that the firm prepare a paper for their joint consideration. Ms Commins responded positively, while also mentioning Thomson Geer as another option. Further emails showed the two of them waiting for advice, jointly deciding who should take the matter forward, arranging a meeting with Thomson Geer, and treating the choice between firms as a joint decision about a single lawyer for the proposed fund.

The Court also relied on communications after the meeting with Thomson Geer. Mr Hodson sent an email to both Ms Commins and Mr Angelis outlining advice. Ms Commins then asked Mr Angelis whether he was happy with the content and said that, if he was, they could ask George to get started. She also raised whether they should each cover half the likely fees, while Mr Angelis suggested treating the fees as establishment costs that he would pay initially and recover from future profits of the fund. Ms Commins then said she would give George the green light. Owens J treated this as powerful evidence that they had agreed on the lawyer who would advise and act for them jointly in relation to establishing the fund, and had agreed how the likely fees would be paid.

The reasons continue with examples of both parties providing information and instructions to Thomson Geer and receiving advice or requests for further information. The Court said the conclusion that Thomson Geer was retained on behalf of both Ms Commins and Mr Angelis, or their respective corporate interests, was inescapable. At the same time, the Court recognised that there may have been separate engagements on specific topics. Those separate matters did not undermine the overall conclusion that the general retainer concerning establishment of the fund was joint.

This decision is especially useful because it shows the kinds of evidence a court will use when privilege is challenged. The reasons place heavy weight on contemporaneous emails about selecting a law firm, forwarding advice between participants, arranging meetings, circulating agendas, discussing fee estimates, approving the commencement of work and then jointly supplying information needed for the legal task. Those are ordinary business communications, but in a later dispute they can become decisive evidence of who the lawyer was acting for.

The reasons also show the limits of internal law firm administration. Mr Hodson said he identified AVCE as the client when the file was opened and that he usually sent engagement letters but did not do so here. The Court accepted AVCE was a client, but the file-opening decision and later recollections did not overcome the objective documentary record pointing to a joint retainer. In other words, administrative records matter, but they are not conclusive if the surrounding conduct points the other way.

The reasons also underline that the final transaction structure is not the only thing that matters. The Court said AVCE could still be a client even though it was not ultimately used in the final structure. That is commercially important. Businesses often change vehicles as a deal develops. The court will look at the position when the advice was sought, not just at the entities that ended up in the final documents.

Another practical point is that separate engagements need to be real, not merely asserted later. The reasons indicate that Ms Commins and Thomson Geer contemplated the possibility of separate engagements on specific matters. But because the general retainer was joint, the dividing line between joint work and separate work could become difficult to draw. Businesses should expect a court to test those boundaries against the actual communications and file history.

For business owners, founders and investors, the case is a warning against informal legal arrangements in the early stages of a shared project. It is common for one participant to take the lead, contact a lawyer they already know, copy the other side into emails and assume everyone understands that the lawyer really acts for only one party. This decision shows that assumption can fail. If the objective record shows a shared process of selecting the lawyer and receiving advice on a common structuring problem, the court may find a joint retainer and therefore joint privilege.

That can materially affect later litigation. A party who thought it controlled the legal file may discover that another participant is entitled to inspect communications because they were a joint client. That can change the evidentiary landscape, affect settlement leverage and create conflict-management issues for the law firm involved. It can also complicate any attempt to separate general project advice from advice on individual interests.

The safest commercial approach is to define the retainer clearly at the start. If the lawyer is acting jointly, say so and address confidentiality, conflicts and what happens if the relationship breaks down. If the lawyer is acting only for one participant, that should also be stated clearly, and the other participant should be told to obtain independent advice. If there will be both joint work and separate work, use separate engagement terms, separate matter references where possible, and separate communication streams. Billing arrangements should also match the intended structure rather than being left informal.

This case also shows the value of disciplined record-keeping. Engagement letters, conflict disclosures, file-opening notes, invoices and contemporaneous emails are not just administrative paperwork. They may become the best evidence of the retainer if a dispute later reaches court.

The judgment was delivered by Owens J on 13 April 2026. The orders published with the reasons required the parties to provide agreed proposed orders, or competing proposed orders if agreement could not be reached, by 15 April 2026. They also required proposed redactions by 28 April 2026 and directed that, subject to further order, the unredacted reasons were not to be published more broadly.

That procedural context matters. The reasons clearly state that joint privilege was established, but the final form of any inspection orders should be checked before relying on the procedural outcome for a specific document set. The available text is sufficient to explain the Court's reasoning on the retainer issue, but not to give a complete public account of every later step.