AJEET GOBINDRAM VASWANI & Anor v SALVATORE GREGORY TAKOUSHIAN & 5 Ors

"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." — Per Lee Seiu Kin J, Para 4

Case Information

• Citation: [2023] SGHC 103 (Para 0)
• Court: In the General Division of the High Court of the Republic of Singapore (Para 0)
• Date of Judgment: 19 April 2023; hearing date noted as 28 September 2022 in the extracted material (Para 0)
• Coram: Lee Seiu Kin J (Para 0)
• Case Number: Suit No 384 of 2021 (Para 0)
• Area of Law: Civil Procedure — Privileges (Para 0)
• Counsel for the First Defendant: Yeo Yi Ling Eileen, Shalini Rajasegar and Saadhvika Jayanth (Advocatus Law LLP) (Para 0)
• Counsel for the Second to Fifth Defendants: Pillai K Muralidharan SC, Luo Qinghui and Ong Ken Wei (Rajah & Tann Singapore LLP) (Para 0)
• Counsel for the Sixth Defendant: Daniel Chia Hsiung Wen and Charlene Wee Swee Ting (Morgan Lewis Stamford LLC) (Para 0)

Summary

This decision concerned two summonses brought by the First Defendant to restrain the other defendants from disclosing a set of documents and from lifting redactions in another set of documents on the basis that the documents were privileged and that privilege had not been waived. The court identified the dispute as one about legal professional privilege, but it ultimately resolved the matter on implied waiver rather than on whether the documents were privileged in the first place. (Para 2) (Para 4)

The central reason for dismissal was that, even assuming the documents were privileged, the First Defendant had pleaded in his Defence that he relied on the legal advice contained in those documents. That pleading was treated as an implied waiver of privilege. The judge therefore considered it unnecessary to decide the antecedent question whether the documents were in fact privileged. (Para 3) (Para 4)

The court also addressed the fact that the legal advice had been rendered not only to the defendants but also to Eagle Hospitality REIT Management Pte Ltd and Eagle Hospitality Trust Management Pte Ltd, which were not parties to the suit. The judge held that this made no difference because those REIT Managers had not asserted privilege before the court. The applications were dismissed. (Para 5) (Para 1)

What Were the Summonses About and Why Did the First Defendant Bring Them?

The applications were brought in the context of a dispute over disclosure and redaction of documents said to contain legal advice. The First Defendant sought orders restraining the remaining defendants from disclosing one set of documents and from lifting redactions in another set of documents, on the ground that the documents were privileged and that he had not waived that privilege. The court’s description of the applications makes clear that the immediate controversy was not the substantive merits of the underlying suit, but the handling of documents in the course of litigation. (Para 2)

"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." — Per Lee Seiu Kin J, Para 2

The judge further recorded that the First Defendant’s position was that the Disputed Documents were privileged because they constituted legal advice rendered to him, among others. That factual premise mattered because the asserted privilege was not a generic confidentiality claim; it was a claim to legal professional privilege over advice said to have been given to the defendants in their capacity connected with the REIT. (Para 3)

Although the extraction does not set out the full procedural history of the summonses, it does show that the court had already dismissed the applications on 28 September 2022 and that the later material concerned leave to appeal and the scope of the appellate question. The practical significance of the summonses, therefore, lay in whether the documents could be protected from disclosure or redaction-lifting in the litigation. (Para 1) (Para 2)

How Did the Court Frame the Issue on Appeal?

The court framed the appellate question narrowly. The SGHC(A) had granted leave to appeal but limited it to one question: whether there was a prima facie case of error arising from the approach taken in assuming privilege existed in relation to certain documents. That framing is important because it shows the appeal was not a broad reconsideration of all privilege issues, but a targeted challenge to the analytical route adopted below. (Para 1)

"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." — Per Lee Seiu Kin J, Para 1

Within the judgment itself, the judge’s reasoning reveals that the decisive issue was implied waiver. The court treated the waiver question as antecedent and dispositive: if the First Defendant had waived privilege by pleading reliance on the legal advice, then there was no need to decide whether the documents were privileged at all. This is why the judgment repeatedly returns to the waiver point rather than undertaking a full privilege analysis. (Para 4)

That approach also explains the structure of the decision. The court did not embark on a detailed examination of the contents of the documents, the precise privilege category, or the mechanics of redaction. Instead, it asked whether the First Defendant’s own pleading had opened the door to disclosure. Once the answer was yes, the summonses failed. (Para 4)

What Was the Court’s Core Holding on Implied Waiver?

The court’s core holding was that, even if the Disputed Documents were privileged, the First Defendant had impliedly waived that privilege by pleading in his Defence that he had relied on the legal advice contained in those documents. The judge treated that pleading as sufficient to amount to waiver. This was the decisive ratio of the case as extracted. (Para 4)

"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." — Per Lee Seiu Kin J, Para 4

The significance of the holding lies in its practical effect. A party who chooses to rely on legal advice in pleadings may lose the ability to insist on privilege over the advice itself, at least where the reliance is pleaded in a way that puts the advice in issue. The judgment does not elaborate a broader doctrinal test in the extracted material, but it clearly applies the principle that reliance on privileged advice can amount to waiver. (Para 4)

Equally important is the court’s refusal to decide the underlying privilege question. The judge expressly said that because waiver disposed of the summonses, there was no need to determine whether the documents were indeed privileged. That means the case stands as an example of judicial economy in privilege disputes: if waiver is established, the court may not need to resolve the more difficult antecedent question of privilege. (Para 4)

"As this point disposes of the summonses, I saw no need to venture into a determination of whether the Disputed Documents were indeed privileged." — Per Lee Seiu Kin J, Para 4

Why Did the Court Say the REIT Managers’ Position Made No Difference?

The judgment also addressed a further complication: the legal advice in the Disputed Documents had been rendered not only to the defendants, as directors of the REIT, but also to Eagle Hospitality REIT Management Pte Ltd and Eagle Hospitality Trust Management Pte Ltd, the REIT Managers, who were not parties to the suit. The First Defendant’s privilege claim therefore potentially intersected with the interests of non-parties. (Para 5)

"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)." — Per Lee Seiu Kin J, Para 5

The judge held that this did not alter the outcome because the REIT Managers had not asserted privilege before the court. In other words, even if the REIT Managers might have had some entitlement to privilege in relation to the advice, that possibility did not assist the First Defendant in resisting disclosure in this application. The court’s focus remained on what was actually asserted before it, not on hypothetical rights that were not advanced. (Para 5)

"I am of the view that it makes no difference because the REIT Managers had not asserted that privilege before me" — Per Lee Seiu Kin J, Para 5

This part of the reasoning is significant because it distinguishes between the existence of a possible privilege interest and the assertion of that interest in proceedings. The extracted judgment does not suggest that a non-party’s unasserted privilege automatically disappears; rather, it says that, for the purpose of deciding these summonses, the absence of any assertion by the REIT Managers meant their position did not affect the result. The First Defendant therefore could not rely on their possible interest to defeat the waiver analysis. (Para 5)

What Did the Court Say About Whether the Documents Were Actually Privileged?

The court deliberately declined to decide whether the Disputed Documents were privileged. That is a notable feature of the judgment because privilege disputes often require the court to determine whether the communications fall within legal advice privilege or litigation privilege. Here, however, the judge considered that unnecessary once implied waiver had been found. (Para 4)

The judge’s approach was expressly pragmatic. Rather than entering into a potentially contested inquiry into the character of the documents, the court resolved the matter on a narrower and more immediate ground. The extracted material therefore shows a court using waiver as a threshold dispositive issue, avoiding a fuller privilege determination that would not change the result. (Para 4)

"As this point disposes of the summonses, I saw no need to venture into a determination of whether the Disputed Documents were indeed privileged." — Per Lee Seiu Kin J, Para 4

For practitioners, this means that a privilege application may fail even where the underlying privilege question remains unresolved. The lesson is procedural as much as substantive: if a party’s own pleading or conduct amounts to waiver, the court may stop there. The extracted judgment does not go further, and it should not be read as deciding the substantive privilege status of the documents. (Para 4)

How Did the Pleading in the Defence Affect the Privilege Analysis?

The judge identified the critical conduct as the First Defendant’s pleading in his Defence that he had relied on the legal advice given in the Disputed Documents. That pleading was treated as the act that impliedly waived privilege. The court did not need to find an express waiver; the waiver arose from the way the Defence was framed. (Para 4)

"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." — Per Lee Seiu Kin J, Para 4

The reasoning indicates that the content of pleadings can have direct consequences for privilege. If a party places legal advice in issue by asserting reliance on it, the party may no longer be able to shield that advice from scrutiny. The extracted judgment does not set out the full wording of the Defence, but it does identify the pleading as the operative fact. (Para 4)

That is why the court’s analysis is best understood as issue-based rather than document-based. The documents were not ordered disclosed because of a detailed inspection of their contents; they were exposed, at least for the purpose of the summonses, because the First Defendant’s own pleading had waived the protection he sought to invoke. (Para 4)

What Was the Procedural History Leading to the Judgment?

The extracted material shows that the judge had already dismissed the First Defendant’s applications on 28 September 2022. Those applications were summons no 2545 of 2022 and summons no 2546 of 2022. The later judgment records that dismissal and explains the context in which leave to appeal was sought. (Para 1)

"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." — Per Lee Seiu Kin J, Para 1

After that dismissal, the First Defendant sought leave to appeal. On 13 February 2023, the SGHC(A) granted leave but confined it to a single question concerning whether there was a prima facie case of error in the approach of assuming privilege existed for certain documents. This procedural narrowing is important because it shows the appellate court did not open the door to a wholesale reconsideration of the dispute. (Para 1)

"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." — Per Lee Seiu Kin J, Para 1

The judgment then proceeds to explain why, even on that limited question, the applications could not succeed. The answer was that the waiver point made the underlying privilege assumption unnecessary. Thus, the procedural history culminated in a reaffirmation of the dismissal rather than any modification of the earlier order. (Para 1) (Para 4)

What Arguments Can Be Reconstructed From the Extracted Material?

The extracted material expressly records the First Defendant’s position: he sought to restrain disclosure and lifting of redactions on the basis that the documents were privileged and that he had not waived privilege. It also records that he claimed the Disputed Documents were privileged because they constituted legal advice rendered to him, among others. Those are the only party submissions set out in the extraction. (Para 2) (Para 3)

"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." — Per Lee Seiu Kin J, Para 3

The extraction does not provide a detailed account of the other defendants’ submissions. Accordingly, any attempt to reconstruct their arguments beyond the fact that they were the “remaining defendants” against whom the restraint was sought would be speculative and is avoided here. What can be said, based on the judgment, is that the court did not need to engage with a contested merits analysis of those submissions because waiver resolved the matter. (Para 2) (Para 4)

From the court’s reasoning, one can infer that the opposing position succeeded because the First Defendant’s own Defence undermined his privilege claim. But the judgment as extracted does not set out a full adversarial debate on the issue, and it would be improper to invent one. The safe and accurate account is that the First Defendant advanced privilege and non-waiver, while the court rejected the application on implied waiver. (Para 2) (Para 4)

What Is the Practical Legal Significance of the Decision for Privilege Claims?

This case matters because it illustrates how a party can lose privilege protection by pleading reliance on legal advice. The court’s holding is a direct reminder that privilege is not merely about the confidential character of a document; it can also be affected by how a litigant deploys that document in the litigation. Once legal advice is relied upon in a Defence, the privilege claim may be treated as waived. (Para 4)

"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." — Per Lee Seiu Kin J, Para 4

The case also shows that courts may avoid unnecessary privilege determinations. If waiver is enough to dispose of the application, the court need not decide whether the documents fall within privilege in the first place. That can save judicial resources and prevent the court from making broader findings than are required to resolve the dispute. (Para 4)

Finally, the judgment highlights the importance of identifying whose privilege is actually being asserted. The REIT Managers were mentioned as recipients of the advice, but because they had not asserted privilege before the court, their possible interest did not alter the result. Practitioners should therefore be alert to the need for the correct privilege-holder, or all relevant privilege-holders, to be properly before the court when privilege is contested. (Para 5)

Why Does This Case Matter?

This case is a concise but important illustration of implied waiver in the context of legal professional privilege. It demonstrates that a litigant cannot necessarily invoke privilege over advice while simultaneously relying on that advice in pleadings. The court treated that inconsistency as sufficient to amount to waiver. (Para 4)

It also matters because it shows the court’s willingness to decide privilege disputes on the narrowest available ground. Rather than deciding whether the documents were privileged, the judge held that waiver made that question unnecessary. That approach is useful to litigators because it signals that privilege applications may fail at the threshold if the party’s own conduct has already undermined the claim. (Para 4)

In addition, the case is a reminder that privilege issues involving non-parties require careful attention to who is actually asserting the privilege. The REIT Managers were identified as recipients of the advice, but their failure to assert privilege meant their position did not change the outcome. That practical point can be decisive in multi-party commercial disputes. (Para 5)

Cases Referred To

Legislation Referenced

• Not answerable from the extraction; no statutory provisions are identified in the extracted material. (Para 0) (Para 4)

"I am of the view that it makes no difference because the REIT Managers had not asserted that privilege before me" — Per Lee Seiu Kin J, Para 5

"As this point disposes of the summonses, I saw no need to venture into a determination of whether the Disputed Documents were indeed privileged." — Per Lee Seiu Kin J, Para 4

"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." — Per Lee Seiu Kin J, Para 1

"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." — Per Lee Seiu Kin J, Para 1

"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)." — Per Lee Seiu Kin J, Para 5

"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." — Per Lee Seiu Kin J, Para 3

"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." — Per Lee Seiu Kin J, Para 2

"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." — Per Lee Seiu Kin J, Para 4

Source Documents

• Original Judgment — Singapore Courts
• Archived Copy (PDF) — Litt Law CDN

This article analyses [2023] SGHC 103 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.