Legal Research
Cases
Salmon v Albarran

Salmon v Albarran

Link copied

Case Copied 13 March 2019 57 min read

Contents

On this page

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Salmon v Albarran & Ors [2019] NSWSC 243
Hearing dates: 28 November, 13 December 2017, 21 February and 13 March 2018
Date of orders: 13 March 2019
Decision date: 13 March 2019
Jurisdiction: Equity
Before: Slattery J
Decision:
See paragraph [155].

Catchwords: PRACTICE AND PROCEDURE – Summary dismissal – plaintiffs file Amended Statement of Claim in February 2017 – defendants apply under Uniform Civil Procedure Rules 2005, r 14.28(1) to dismiss proceedings against them, on the basis that there is no real question to be tried – defendants propose to field a defence under Limitation Act 1969 – plaintiffs plead that the otherwise applicable limitation period was extended under Limitation Act, s 55 on the basis that the defendants concealed their cause of action from them until after the otherwise applicable limitation period expired – in reply, the defendants contend that uncontestable facts establish that the plaintiffs were well aware of the existence of their cause of action long before the applicable limitation period – whether or not the plaintiffs’ pleading raises a “real” issue for trial.
Legislation Cited: Civil Procedure Act 2005, ss 56, 57, 58(1)
Corporations Act 2001, ss 420, 1317K, 588FF
Federal Court of Australia Act 1986, s 31A
Limitation Act 1969, ss 14, 23, 47, 55
Uniform Civil Procedure Rules 2005, r 14.28(1)
Cases Cited: Beaman v Arts Ltd [1949] 1 All ER 465
Birtchnell v Equity Trustees Executors and Agency Co Ltd (1929) 42 CLR 384
Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 236 ALR 720
Burdick v Garrick (1870) LR5ChApp. 233
Bradman v Allens Arthur Robinson (2009) 103 SASR 438
Commonwealth Bank of Australia v Smith (1991) 42 FCR 390
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
George (a Bankrupt) v Fletcher (Trustee) [2010] FCAFC 53
General Steels Industries v Commissioner of Railways (1964) 112 CLR 125
In the matter of Galtari Pty Ltd (in liq) [2018] NSWSC 917
Jefferson Ford Pty Ltd v Ford Motor Co of Australia (2008) 167 FCR 372
Kovarfi v BMT& Associates Pty Ltd (No. 3) [2017] NSWSC 710
Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2009) 259 ALR 319
Maguire & Tansey v Makaronis (1997) 188 CLR 449
Nelson v Rye [1996] 2 All ER 186
New South Wales v Williams (2014) 242 A Crim R 22
North American Land and Timber Co Ltd v Watkins [1904] 1 Ch 242
Queensland Pork Pty Ltd v Lott [2003] QCA 271
Spellson v George (1992) 26 NSWLR 666
Spencer v Commonwealth of Australia (2010) 241 CLR 118
Three Rivers District Council v Governor & Company of the Bank of England (No. 3) [2001] UKHL16
Wannanup Development Nominees v Growden [2011] WASC 113
Wardley Australia Limited v State of Western Australia (1992) 175 CLR 514
Wentworth v Rogers (No. 5) (1986) 6 NSWLR 534
Texts Cited: JD Heydon, MJ Leeming and PG Turner, Meagher, Gummow & Lehane’s Equity: Doctrines & Remedies (5th…

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.

Keep reading for free

Create a free CaseChat account to read Salmon v Albarran and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] NSWSC 243
Decision Date: 13 March 2019

CaseChat Overview and Summary

The case of Salmon v Albarran involved a dispute between the plaintiffs and the defendants, which was brought before the court. The plaintiffs filed an amended statement of claim in February 2017. The defendants then applied under the Uniform Civil Procedure Rules 2005, rule 14.28(1) to dismiss the proceedings against them, on the basis that there was no real question to be tried. The defendants proposed to field a defence under the Limitation Act 1969. The plaintiffs, on the other hand, pleaded that the otherwise applicable limitation period was extended under the Limitation Act, section 55 on the basis that the defendants concealed their cause of action from them until after the otherwise applicable limitation period expired. In response, the defendants contended that uncontestable facts established that the plaintiffs were well aware of the existence of their cause of action long before the applicable limitation period.

The legal issues that the court was required to decide centred on the application for summary dismissal and whether the plaintiffs' pleading raised a "real" issue for trial. The court had to consider whether the defendants' application for summary dismissal should be granted, based on the arguments presented by both parties. The court also had to determine whether the plaintiffs' pleading raised a "real" issue for trial, considering the defendants' proposal to field a defence under the Limitation Act 1969 and the plaintiffs' claim that the limitation period was extended under the Limitation Act, section 55.

The court examined the arguments presented by both parties and considered the relevant legal provisions. The court found that the plaintiffs' pleading raised a "real" issue for trial, as it was not clear whether the defendants had concealed their cause of action from the plaintiffs until after the limitation period had expired. The court also found that the defendants had not established uncontestable facts that the plaintiffs were aware of their cause of action long before the applicable limitation period. Therefore, the court rejected the defendants' application for summary dismissal and allowed the proceedings to continue.

The court's decision was based on the evidence presented and the applicable legal provisions. The court found that the plaintiffs' pleading raised a "real" issue for trial, which was sufficient to reject the defendants' application for summary dismissal. The court also found that the defendants had not established uncontestable facts that the plaintiffs were aware of their cause of action long before the applicable limitation period. The court's decision was based on a careful consideration of the arguments presented by both parties and the relevant legal provisions.

Orders