by Amy Lowry | Apr 22, 2026 | Insights
Affidavits can cost you privilege. On 30 March 2026, in Mastercard v ACCC, the Full Court confirmed that asserting what was (or wasn’t) said internally may waive legal professional privilege – even before trial. Litigants must align evidence strategy with privilege risk or face forced disclosure of sensitive communications.
Case Summary
Mastercard v ACCC: When Affidavit Evidence Triggers Waiver of Privilege
The Full Federal Court’s decision in Mastercard Asia/Pacific (Australia) Pty Ltd v Australian Competition and Consumer Commission [2026] FCAFC 37 is a significant development in the law of implied waiver of legal professional privilege, with important consequences for how parties prepare affidavit evidence in complex litigation.
At its core, the decision confirms that privilege may be lost not only by disclosing legal advice, but by advancing a positive factual narrative while withholding related communications—and that this can occur well before trial.
Background to the Proceedings
The ACCC has commenced civil penalty proceedings against Mastercard alleging contraventions of ss 45, 46 and 47 of the Competition and Consumer Act 2010 (Cth).
The regulator alleges that, from 2017, Mastercard implemented a “credit leverage strategy” through strategic merchant agreements (SMAs). According to the ACCC, the purpose and effect of that strategy was to discourage merchants from routing debit transactions through the Eftpos network, thereby substantially lessening competition in the market for debit card acceptance services.
Mastercard denied any anti-competitive purpose. It pleaded that the SMAs were driven by legitimate commercial objectives, including:
- competing with rival payment schemes;
- responding to merchant expectations; and
- increasing Mastercard transaction volumes.
The Evidence and the Privilege Dispute
To support its defence, Mastercard relied on affidavit evidence from two senior executives, Mr Koh and Mr Molu, both of whom had been involved in reviewing or approving SMAs.
Their evidence went beyond merely denying the ACCC’s allegations. In substance, they asserted that:
- preventing Eftpos from competing was not their purpose or understanding;
- no one had communicated such a strategy to them; and
- their understanding was that the SMAs were commercially legitimate and pro-competitive.
The ACCC argued that, by advancing that evidence, Mastercard had impliedly waived legal professional privilege over communications involving those witnesses that related to:
- the strategy underpinning the SMAs;
- their purpose; and
- their likely competitive effect.
The primary judge accepted that submission in part and ordered Mastercard to produce defined categories of documents. Mastercard appealed that decision to the Full Court.
Key Issues on Appeal
The appeal raised three central questions:
- Is implied waiver confined to cases involving disclosure (express or implied) of legal advice?
- Did the affidavits of Mr Koh and Mr Molu give rise to waiver in this case?
- Can waiver arise before affidavit evidence is formally read at trial?
The Full Court’s ReasoningWaiver is governed by inconsistency—not rigid categories
The Court reaffirmed the principle in Mann v Carnell:
the touchstone of implied waiver is whether the privilege holder has engaged in conduct inconsistent with maintaining the confidentiality that privilege protects.
Importantly, the Court rejected Mastercard’s argument that waiver is limited to situations involving disclosure of the content of legal advice. While such cases are common, they are not exhaustive.
The Court emphasised:
- mere relevance is not enough to establish waiver;
- putting state of mind in issue is not, by itself, sufficient; but
- waiver may arise where a party makes positive assertions on a topic while withholding communications on that same topic.
The affidavits went beyond mere denials
The Full Court held that the evidence of Mr Koh and Mr Molu was not limited to putting the ACCC to proof. Instead, it advanced a positive factual narrative about Mastercard’s internal strategy and understanding.
By asserting:
- what was not communicated internally;
- what did not form part of their thinking; and
- what the purpose of the SMAs was,
Mastercard effectively invited scrutiny of the contemporaneous communications that informed (or may have contradicted) those assertions.
In those circumstances, it was inconsistent to maintain privilege over communications involving those witnesses on the same subject matter.
Waiver can arise pre-trial
The Court also rejected Mastercard’s argument that waiver could only arise once the affidavits were read into evidence at trial.
It held that:
- the filing and service of affidavits pursuant to case management orders is a significant forensic step;
- in the context of modern litigation and the overarching purpose in ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth),
waiver can properly be determined before trial; and
- delaying the issue could create unfair forensic advantages and undermine efficient case management.
Scope of the Waiver
The Court endorsed a confined, subject-matter approach to waiver.
The production orders were limited to communications:
- involving Mr Koh or Mr Molu;
- within the relevant time period; and
- concerning the strategy, purpose, and (for Mr Molu) the likely effect of the SMAs.
This reflects the Court’s balancing exercise—ensuring fairness without extending waiver beyond what is necessary.
Why This Decision Matters
This case carries significant practical implications for litigants and their advisers:
Affidavit evidence is a privilege risk
Carefully worded but assertive statements—such as:
- “no one communicated that strategy to me”;
- “that was not our intention”; or
- “my understanding was that the purpose was legitimate”
may trigger waiver if related communications exist.
Privilege and evidence strategy must be integrated
Privilege cannot be managed solely at the document review stage. Before serving affidavit evidence on contested issues, parties must consider whether privileged communications:
- inform,
- qualify, or
- contradict
the proposed evidence.
Waiver can occur early in proceedings
The decision confirms that privilege disputes may crystallise before trial, shaping discovery obligations and litigation strategy from an early stage.
Key Takeaways
- Implied waiver turns on inconsistency, not fixed categories.
- Disclosure of legal advice is not required for waiver to arise.
- Positive affidavit evidence on purpose, strategy or understanding may open the door to privileged communications.
- Waiver can arise upon filing and serving affidavits, not just at trial.
- Courts will confine waiver by subject matter, but will not permit selective disclosure that creates forensic unfairness.
Outcome
The Full Court dismissed Mastercard’s appeal and ordered it to pay the ACCC’s costs.5
![Stepanko v Miteff & Anor (No 2) [2026] QCAT 172](https://www.spirelaw.com.au/wp-content/uploads/2024/02/jene-stephaniuk-f5nwsbD_-wI-unsplash-scaled-e1712214108984-1080x675.jpg)
by Amy Lowry | Apr 20, 2026 | Insights
In this matter, the Queensland Civil and Administrative Tribunal (QCAT) ordered the removal of a Chinese elm tree situated on or near a property boundary following a dispute between neighbouring landowners. The applicant alleged that the tree’s root system was encroaching onto their land and causing damage and interference.
The Tribunal accepted that the tree was responsible for substantial, ongoing, and unreasonable interference with the applicant’s use and enjoyment of their property, particularly due to invasive root growth. The key findings were:
- The evidence before the Tribunal indicated that proposed alternative measures – such as the installation of root barriers or excavation works – were not viable long-term solutions. These options were found to be:
- potentially unsafe in the circumstances,
- unlikely to prevent continued root intrusion, and
- significantly more costly than removing the tree altogether.
- The respondents submitted that surrounding structures, including a swimming pool, would not be adversely affected by the tree’s roots. However, the Tribunal gave little weight to these submissions due to the absence of corroborating expert evidence.
- In applying the relevant considerations under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), the Tribunal assessed factors including the nature and extent of the interference, the risk of ongoing damage, and the reasonableness of available remedies. It ultimately determined that no practical or reasonable alternative short of removal would adequately address the issue.
Orders Made
- The Chinese elm tree is to be removed by, or under the supervision of, a suitably qualified and insured arborist.
- The removal process must include stump grinding or appropriate treatment of the root system to prevent regrowth or further encroachment.
- The costs of removal are to be shared equally between:
- the applicant,
- the adjoining property owners (first respondents), and
- the second respondent.
- No order was made in relation to legal costs.
Key Takeaways
- QCAT may order complete removal where tree-related interference is ongoing and cannot be effectively mitigated by less invasive measures.
- The Tribunal places significant weight on practical considerations, including cost, safety, and the likely effectiveness of proposed alternatives.
- Assertions regarding the absence of damage or structural risk will carry limited weight without supporting expert evidence.
- Apportionment of costs between parties remains common, even where one or more parties oppose removal.
![Case Update: York Property Holdings Pty Ltd v Tomkins Commercial & Industrial Builders Pty Ltd [2026] QCA 63](https://www.spirelaw.com.au/wp-content/uploads/2024/02/pexels-pok-rie-1255372-1-scaled-1-1080x675.jpg)
by Amy Lowry | Apr 20, 2026 | Insights
Facts
- York (principal/developer) engaged Tomkins (builder) to construct two residential apartment projects.
- A payment dispute arose under the Building Industry Fairness (Security of Payment) Act 2017 (Qld) (BIF Act), proceeding to adjudication.
- The dispute centred on façade works, including issues of:
- extent of completion, and
- alleged defects / non-compliant work.
- Tomkins’ payment claim:
- Valued façade works at approximately 46% complete;
- Applied a deduction of ~$4.76 million for “defective work”, said to reflect the estimated cost of rectification.
- York’s position:
- The façade works were only about 29% complete;
- The claimed deduction was not properly characterised as “defective work”, but rather an attempt to value incomplete works;
- The builder had not established actual defects or a proper basis for rectification costs.
- The adjudicator:
- Rejected that the works were proven to be defective in the strict sense;
- Accepted that the builder had raised legitimate concerns about compliance (including absence of a Form 15 certification);
- Found York had not adequately responded to those concerns;
- Allowed a deduction equal to the estimated rectification cost (~$4.76m) as a proxy for valuing work not in accordance with contract under s 72(1)(b)(iv).
- At first instance, the primary judge found aspects of the adjudicator’s reasoning to be problematic but ultimately upheld the decision, finding no jurisdictional error.
Decision (Court of Appeal)
- The Court of Appeal dismissed York’s appeal with costs.
- Key findings:
- The central statutory task for the adjudicator is to decide the amount of the progress payment under s 88 of the BIF Act.
- While parts of the adjudicator’s reasoning were described as “illogical” or internally inconsistent, that alone does not establish jurisdictional error.
- The adjudicator:
- Considered the contract, submissions, and payment materials;
- Grappled with the façade issue (completion vs defects);
- Ultimately valued the work by reference to rectification cost, which is expressly permitted under s 72 where work is not in accordance with the contract.
- Even if the adjudicator:
- conflated defect and valuation concepts, or
- failed to make a clear finding of “defect”,
this did not mean he failed to perform the statutory task.
- The Court emphasised that judicial review is limited—errors in reasoning will only invalidate a decision if they demonstrate a failure to exercise jurisdiction (not merely a flawed exercise of it).
Key Takeaways for Industry
1. Very limited scope to challenge adjudication decisions
- This decision reinforces that Security of Payment adjudications are highly resistant to judicial review.
- Even:
- logical inconsistencies, or
- imperfect reasoning
will not suffice unless they show the adjudicator did not actually perform the statutory task.
2. “Illogical” reasoning ≠ jurisdictional error
- The Court accepted the adjudicator’s reasoning was, in parts, difficult to reconcile.
- However, provided the adjudicator:
- addresses the dispute, and
- reaches a conclusion on valuation,
the courts will not intervene.
Practical implication:
Parties should not expect to “fix” an unfavourable adjudication outcome via judicial review.
3. Rectification cost remains a powerful valuation tool
- The case confirms that adjudicators can:
- value work by reference to the cost of rectification,
even where:
- defect findings are not clearly made, or
- the issue overlaps with incomplete work.
- This reflects the flexibility under s 72(1)(b)(iv) of the BIF Act.
Practical implication:
Respondents can deploy rectification cost arguments strategically, even where defect evidence is contested or incomplete.
4. Failure to respond to defect allegations is risky
- York’s failure to:
- engage substantively with defect concerns, and
- provide contractual certification (Form 15),
was influential in the adjudicator’s reasoning.
Practical implication:
Claimants must:
- directly address alleged defects in payment schedules and adjudication responses;
- ensure contractual certification requirements are strictly complied with.
5. Distinction between “defects” and “valuation” may blur
- The case shows that, in practice:
- arguments about defective work,
- non-compliant work, and
- extent of completion
may be treated interchangeably in adjudication.
Practical implication:
Submissions should be framed holistically, addressing:
- completion percentages,
- compliance with contract, and
- rectification cost—rather than treating them as siloed issues.
6. “Quick and dirty” regime reaffirmed
- The Court reaffirmed that the BIF Act operates as a rapid, interim payment regime, not a forum for perfect reasoning.
Bottom line:
Adjudication outcomes will stand unless there is a clear failure to exercise jurisdiction—not merely a flawed decision.
by Amy Lowry | Apr 20, 2026 | Insights
Queensland is preparing for a comprehensive overhaul of its trust law framework. The Trusts Act 2025 (QLD) is scheduled to commence on 28 April 2026, replacing the longstanding 1973 regime.
This reform represents a significant modernisation of trust administration, bringing Queensland into line with contemporary national standards and current trust practices.
Key Changes
Expanded trustee powers
Trustees will have the powers of an absolute owner (subject to their duties and the trust deed), enabling more flexible and efficient management of trust assets.
Codified trustee duties
For the first time, core trustee obligations are clearly set out in legislation. These include acting in good faith, exercising care and skill, prioritising beneficiaries’ interests, and maintaining proper records. This reduces uncertainty and strengthens accountability.
Stronger governance
New eligibility rules will prevent minors, insolvent individuals and disqualified persons from acting as trustees, improving governance standards.
Simplified succession
The process for appointing and replacing trustees will be more straightforward, with less reliance on court involvement.
Greater transparency
Beneficiaries will have enhanced rights to access trust information, increasing oversight of trustee conduct.
A supporting Trusts Regulation 2026 is expected to provide further operational detail, particularly in relation to transitional arrangements and administrative requirements.
Implications for Clients and Advisers
Higher compliance expectations
Trustees will face increased obligations, particularly around record-keeping and decision-making.
Increased beneficiary oversight
Expanded information rights may lead to more active beneficiary engagement and, in some cases, increased disputes.
More flexible trust management
While trustees gain broader powers, these operate within clearer statutory boundaries, requiring careful exercise.
Recommended Actions
To prepare for commencement, advisers and clients should:
- Review existing trust deeds
Assess compatibility with the new framework and identify provisions requiring amendment.
- Update precedents and templates
Align all documentation with the new powers, duties and eligibility requirements.
- Audit trustee arrangements
Confirm that current trustees meet the new eligibility criteria.
- Enhance governance practices
Implement robust record-keeping and reporting processes to meet increased transparency obligations.
- Engage with clients early
Discuss how the reforms may impact control, administration and risk within existing trust structures.
Conclusion
The commencement of the Trusts Act 2025 (QLD) marks a pivotal shift for estate planning and fiduciary practice in Queensland. Early, proactive preparation will be key to ensuring compliance and making effective use of the modernised regime.
by Amy Lowry | Apr 20, 2026 | Insights
The Queensland Supreme Court in Beck v Kucks [2026] QSC 35 has reaffirmed that electronic signatures carry the same legal weight as traditional wet-ink signatures.
In this case, the vendors signed a contract via DocuSign at a lower price than intended, without reading the document. Despite their claim of mistake, the Court ordered specific performance, requiring them to complete the sale at the signed (lower) price.
Key Findings
Signature is binding
A party is bound by their signature—electronic or physical—regardless of whether they have read the document.
Unilateral mistake not established
The vendors’ mistake was not operative, as the purchasers were unaware of the error and had no reason to suspect it.
No misleading conduct or rectification
There was no misleading or deceptive conduct, and no basis for rectification or estoppel, as there was no common intention to contract at the higher price.
Pre-contract communications are secondary
Earlier negotiations will not override the terms of a final signed contract without clear evidence of a shared intention.
Key Takeaways
- “I didn’t read it” is not a defence
Signing without review—even electronically—does not relieve a party of their obligations.
- Electronic execution = wet-ink execution
Platforms such as DocuSign are treated as conclusive evidence of agreement.
- Unilateral mistake is difficult to prove
Relief is unlikely unless the other party knew, or ought to have known, of the error.
- Diligence remains critical
The speed of electronic execution must not come at the expense of careful review.
Practical Reminders for Advisers
- Implement robust review processes
Ensure all documents are carefully checked prior to execution.
- Maintain strict version control
Confirm the correct, final version is circulated and signed.
- Educate clients on risk
Highlight the legal consequences of rapid electronic execution.
- Pause before signing
Exercise caution where negotiations are ongoing or terms remain uncertain.
Conclusion
Beck v Kucks is a clear reminder that the method of execution does not alter legal consequences. Whether signed digitally or physically, contracts are binding.
For advisers and clients alike, the message is simple: prioritise diligence over speed when using DocuSign or similar platforms.
