Salmon v Albarran

Case [2025] NSWCA 42


Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Salmon v Albarran [2025] NSWCA 42
Hearing dates: 10, 11 March 2025;
14 March 2025 (written submissions)
Decision date: 21 March 2025
Before: Ward ACJ at [1];
Leeming JA at [4];
Ball JA at [261]
Decision:

1. Appeal dismissed.

2. Notice of motion dated 14 August 2024 dismissed.

3. Appellants to pay the respondents’ costs in this Court.

Catchwords:

EQUITY — fiduciary duties — solicitor — claim against solicitor personally by other side in litigation — whether client gave informed consent to solicitor continuing to act — solicitor subsequently in breach of duty by putting forward settlement deed in which solicitor received a benefit — whether error in finding by primary judge that breach not dishonest — whether primary judge could accept concession that liability in equity depended on finding of dishonesty — whether claim statute-barred absent dishonesty

RECEIVERS — instrument appointing receivers expressed to be signed, sealed and delivered — whether a deed — whether primary judge erred in finding instrument was not a deed and therefore six year limitation period applicable — whether receivers breached fiduciary duties or were knowingly involved in breach of duty by solicitor — whether any breach was dishonest — whether any claim against receivers statute-barred

PROCEDURE — appeals — notice of appeal — failure to identify grounds briefly and specifically — failure to comply with statement as to challenge to findings of fact — failure to comply with page limit — unnecessary to address numerous subgrounds of appeal and submissions

Legislation Cited:

Conveyancing Act 1919 (NSW), s 38

Corporations Act 2001 (Cth), ss 513A, 513B, 513C

Legal Profession Act 2004 (NSW), s 347

Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015, r 32

Limitation Act 1969 (NSW), ss 11, 47

Limitation of Actions Act 1958 (Vic), ss 5, 21

Partnership Act 1892 (NSW), s 10

Uniform Civil Procedure Rules 2005 (NSW), rr 15.1, 36.16, 51.18, 51.36

Cases Cited:

Albarran v Members of the Companies Auditors and Liquidators Disciplinary Board (2007) 231 CLR 350; [2007] HCA 23

Banque Commerciale SA (En Liqn) v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11

Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd [2008] NSWCA 243

Baulkham Hills Private Hospital Pty Ltd v G R Securities Pty Ltd (1986) 40 NSWLR 622

Berry v CCL Secure Pty Ltd (2020) 271 CLR 151; [2020] HCA 27

BH Australia Constructions Pty Ltd v Kapeller (2019) 100 NSWLR 367; [2019] NSWSC 1086

Boardman v Phipps [1967] 2 AC 46

Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49

Cassaniti v Katavic (No 2) [2023] NSWCA 107

Comptroller of Stamps v Associated Broadcasting Services Ltd [1990] VR 335

Comptroller of Stamps v Associated Broadcasting Services Ltd [1990] VR 345

Crackin’ Snack Pty Ltd v Gameking Australia Pty Ltd [2024] NSWCA 182

de Robillard v Council of the New South Wales Bar Association; Council of the New South Wales Bar Association v…

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AGLC
Salmon v Albarran [2025] NSWCA 42
Case
[2025] NSWCA 42
Decision Date

CaseChat Overview and Summary

The appeal concerned a claim brought by the appellants, Mr Salmon and others, against the respondent, Mr Albarran, who had acted as solicitor for the appellants in previous litigation. The appellants alleged that Mr Albarran had breached his fiduciary duties to them, both by continuing to act for them without informed consent and by subsequently putting forward a settlement deed in which he received a personal benefit. The appellants also brought claims against receivers appointed under an instrument, alleging they breached their fiduciary duties or were knowingly involved in Mr Albarran's breach.

The primary legal issues before the Court of Appeal were whether Mr Albarran breached his fiduciary duties to the appellants, whether any such breach was dishonest, and whether the claims against him and the receivers were statute-barred. Relatedly, the court considered whether the instrument appointing the receivers was a deed, which would have engaged a longer limitation period, and whether the primary judge had erred in finding that the breach was not dishonest and in accepting a concession that equitable liability depended on dishonesty.

The Court of Appeal found that the primary judge had not erred in concluding that Mr Albarran's conduct in presenting the settlement deed, which included a benefit to himself, constituted a breach of his fiduciary duty. However, the court agreed with the primary judge that the breach was not dishonest, and that the appellants had provided informed consent for Mr Albarran to continue acting for them, thereby negating the claim based on that ground. The court also upheld the primary judge's finding that the instrument appointing the receivers was not a deed, meaning the six-year limitation period applied and the claims against the receivers were statute-barred. The court noted that the appellants' notice of appeal failed to comply with court rules regarding the identification of grounds and challenges to findings of fact.

Consequently, the appeal was dismissed, and the notice of motion dated 14 August 2024 was also dismissed. The appellants were ordered to pay the respondents’ costs in the Court of Appeal.

Orders

Orders of the court

1. Appeal dismissed.

2. Notice of motion dated 14 August 2024 dismissed.

3. Appellants to pay the respondents’ costs in this Court.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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