Salmon v Albarran - [2024] NSWCA 3

Court of Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Salmon v Albarran [2024] NSWCA 3
Hearing dates: 25 January 2024
Date of orders: 25 January 2024
Decision date: 29 January 2024
Before: Meagher JA
Decision:
(1) Dismiss the applicants’ notice of motion with costs, including the costs of the hearing before Griffiths AJA on 17 January 2024.
(2) Set aside Order 1 made by Griffiths AJA on 17 January 2024.

Catchwords:
APPEALS – jurisdiction of appellate court – extension of time for filing and serving appeal under UCPR r 51.9(1)(b) – notice of intention to appeal filed and served – no notice of appeal filed and served – whether power under r 51.9(1)(b) may be exercised where no appeal or other proceeding commenced – in absence of filed notice of appeal there is no proceeding within which that power may be exercised

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW), rr 1.12, 18.1, 51.1, 51.2, 51.7, 51.8, 51.9, 51.16

Cases Cited:
Olsen v Mentink [2019] NSWCA 279

Category: Procedural rulings
Parties: Owen Salmon (First Applicant)
TCBS Group Holdings Pty Ltd (Second Applicant)
Richard Albarran (First Respondent)
Geoffrey McDonald (Second Respondent)
Steven Brown (Third Respondent)
Robert Elliott (Fourth Respondent)
Drew Townsend (Fifth Respondent)
David Kenney (Sixth Respondent)
Luigino Malacco (Seventh Respondent)
Paul Leroy (Eighth Respondent)
Representation:
Counsel:
O Salmon (Self-represented) (Applicants)
N Simone (First, Second and Fourth to Eighth Respondents)
N Batista (Third Respondent)
Solicitors:
Hall & Wilcox (First, Second and Fourth to Eighth Respondents)
Gilchrist Connell (Third Respondent)

File Number(s): 2023/356626
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court

Jurisdiction:

Equity Division

Citation:

[2023] NSWSC 1238

Date of Decision:

19 October 2024

Before:

Nixon J

File Number(s):

2016/373218

JUDGMENT

MEAGHER JA: This motion was heard in the vacation period on 25 January 2024. At the conclusion of argument, I made the orders set out at [28] below and indicated that I would provide reasons for the making of those orders on or before 29 January 2024. Those reasons follow.
The applicants, Mr Owen Salmon and a company of which he is sole director, seek an order that the time for their filing a notice of appeal from orders made in proceedings in the Equity Division of the Supreme Court on 19 October 2023 be extended to 29 February 2024 (see Salmon v Albarran [2023] NSWSC 1238 (Nixon J)).
That application is made by Mr Salmon for himself as first plaintiff in the proceedings below and on behalf of TCBS Group Holdings Pty Ltd, the second plaintiff in those proceedings.
On 9 November 2023, the applicants filed a notice of intention to appeal from those orders. That notice was served on each of the eight respondents within 28 days of the material date (see Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 51.8). Such a notice may not be filed if a summons seeking leave to appeal or a notice of appeal has been filed (see r 51.7).
The order extending time is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Salmon v Albarran

Details

AGLC: Salmon v Albarran [2024] NSWCA 3
Case: [2024] NSWCA 3
Decision Date: 29 January 2024

CaseChat Overview and Summary

Salmon and Albarran were the parties involved in a dispute before the New South Wales Court of Appeal. The applicants sought an extension of time to file and serve an appeal under rule 51.9(1)(b) of the Uniform Civil Procedure Rules 2005 (NSW). This rule permits the court to extend the time for filing and serving a notice of appeal if a notice of intention to appeal has been filed and served within the prescribed time.

The central legal issue before the Court of Appeal was whether the power to grant an extension of time under rule 51.9(1)(b) could be exercised in circumstances where no notice of appeal, or any other proceeding, had been commenced. The applicants had filed a notice of intention to appeal but had not subsequently filed a notice of appeal.

Meagher JA determined that the power conferred by rule 51.9(1)(b) is contingent upon the existence of a proceeding within which that power can be exercised. In the absence of a filed notice of appeal, which is the initiating document for an appeal proceeding, there was no such proceeding. Consequently, the Court of Appeal held that it lacked the power to grant the extension of time sought by the applicants.

The Court of Appeal dismissed the applicants’ notice of motion with costs, including the costs of a prior hearing before Griffiths AJA. Additionally, the Court set aside an order made by Griffiths AJA on 17 January 2024.

Orders

Orders of the court

(1) Dismiss the applicants’ notice of motion with costs, including the costs of the hearing before Griffiths AJA on 17 January 2024.

(2) Set aside Order 1 made by Griffiths AJA on 17 January 2024.

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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Medium Neutral Citation:	Salmon v Albarran [2024] NSWCA 3
Hearing dates:	25 January 2024
Date of orders:	25 January 2024
Decision date:	29 January 2024
Before:	Meagher JA
Decision:	(1) Dismiss the applicants’ notice of motion with costs, including the costs of the hearing before Griffiths AJA on 17 January 2024. (2) Set aside Order 1 made by Griffiths AJA on 17 January 2024.
Catchwords:	APPEALS – jurisdiction of appellate court – extension of time for filing and serving appeal under UCPR r 51.9(1)(b) – notice of intention to appeal filed and served – no notice of appeal filed and served – whether power under r 51.9(1)(b) may be exercised where no appeal or other proceeding commenced – in absence of filed notice of appeal there is no proceeding within which that power may be exercised
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), rr 1.12, 18.1, 51.1, 51.2, 51.7, 51.8, 51.9, 51.16
Cases Cited:	Olsen v Mentink [2019] NSWCA 279
Category:	Procedural rulings
Parties:	Owen Salmon (First Applicant) TCBS Group Holdings Pty Ltd (Second Applicant) Richard Albarran (First Respondent) Geoffrey McDonald (Second Respondent) Steven Brown (Third Respondent) Robert Elliott (Fourth Respondent) Drew Townsend (Fifth Respondent) David Kenney (Sixth Respondent) Luigino Malacco (Seventh Respondent) Paul Leroy (Eighth Respondent)
Representation:	Counsel: O Salmon (Self-represented) (Applicants) N Simone (First, Second and Fourth to Eighth Respondents) N Batista (Third Respondent) Solicitors: Hall & Wilcox (First, Second and Fourth to Eighth Respondents) Gilchrist Connell (Third Respondent)
File Number(s):	2023/356626
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Equity Division Citation: [2023] NSWSC 1238 Date of Decision: 19 October 2024 Before: Nixon J File Number(s): 2016/373218