Salmon v Albarran (No 2) - [2021] NSWSC 186

Supreme Court

New South Wales

Medium Neutral Citation: Salmon v Albarran (No 2) [2021] NSWSC 186
Hearing dates: 9 February 2021
Date of orders: 5 March 2021
Decision date: 05 March 2021
Jurisdiction: Equity
Before: Parker J
Decision:
See [58]

Catchwords:
CIVIL PROCEDURE – pleadings – amendment – former statement of claim struck out – application for leave to re-plead – foreshadowed advocate’s immunity defence – plaintiffs allege solicitor’s conduct fraudulent – re-pleading permitted

Cases Cited:
Attwells v JacskonLalic Lawyers Pty Ltd (2016) 259 CLR 1
Omutta Pty Ltd v Wilson (No 2) [2019] NSWSC 401

Category: Procedural rulings
Parties: Owen Salmon (First Applicant/Plaintiff)
TCBS Group Holdings Pty Ltd (Second Applicant/Plaintiff)
Richard Albarran (First Respondent/Defendant)
Geoffrey David McDonald (Second Respondent/Defendant)
Steven Brown (Third Respondent/Defendant)
Robert William Joseph Elliott (Fourth Respondent/Defendant)
Drew Anthony Townsend (Fifth Respondent/Defendant)
David Kenney (Sixth Respondent/Defendant)
Luigino Malacco (Seventh Respondent/Defendant)
Paul Andrew Leroy (Eighth Respondent/Defendant)
Representation:
Counsel:
M Evans (Applicants)
MR Elliott SC (First, Second, Fourth to Eighth Respondents)
DA Lloyd (Third Respondent)
Solicitors:
O’Brien Lawyers (Applicants)
Hall & Wilcox (First, Second, Fourth to Eighth Respondents)
Gilchrist Connell (Third Respondent)

File Number(s): 2016/373218
Publication restriction: Nil

Judgment

This interlocutory judgment arises out of two separate applications by the plaintiffs for leave to amend their Statement of Claim. The form of the amendment is now largely uncontroversial. This judgment deals with the remaining area of controversy about the form in which the amendments should be permitted, and costs.
The plaintiffs sue as assignees of Terra Cresta Business Services Pty Ltd (“TCBS”). TCBS was placed in liquidation in July 2008. Before then its business was the provision of management, accountancy and consulting services.
The second plaintiff, TCBS Group Holdings Pty Ltd (“TCBSGH”), was the holding company of TCBS. The first plaintiff, Owen Salmon, was a director of both TCBSGH and TCBS. He appears to have controlled both companies’ affairs.
The third defendant, Steven Brown, is a solicitor who previously acted for TCBS (and according to Mr Salmon, for him personally). Mr Brown is sued for breach of duty and fraud in acting for TCBS, between 2006 and 2008, in a commercial dispute. The dispute was with two of TCBS’ customers, known as BACF and BACM, which between them allegedly owed TCBS more than $1.5 million.
The first defendant, Richard Albarran, and the second defendant, Geoffrey David McDonald, are (or were at relevant times) partners of the accountancy firm, Hall Chadwick. Mr Albarran and Mr McDonald were appointed by TCBS as the receivers of BACF and BACM. They are sued for breach of duty as receivers and also for participation in Mr Brown’s alleged breaches of duties as a solicitor.
I will refer to Mr Albarran and Mr McDonald as the “Receivers”. The fourth to eighth defendants are other partners of Hall Chadwick. I will refer to them and the Receivers collectively as the “Hall Chadwick partners”.

Claims, defences and procedural history

The underlying facts and the claims made against the defendants are complex. Slattery J summarised them in…

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 (No 2)

Details

AGLC: Salmon v Albarran (No 2) [2021] NSWSC 186
Case: [2021] NSWSC 186
Decision Date: 05 March 2021

CaseChat Overview and Summary

The parties involved in this case were Salmon and Albarran, and the matter was heard in the Supreme Court of New South Wales. Salmon, the plaintiff, sought to amend their statement of claim after their initial claim was struck out. The dispute arose from Salmon's allegations against Albarran, a solicitor, for fraudulent conduct in relation to a legal matter. The primary legal issue the court had to address was whether Salmon should be granted leave to re-plead their case, considering that the initial statement of claim had been dismissed and that Albarran had anticipated a defence of advocate's immunity.

The court examined the circumstances under which leave to amend pleadings could be granted, particularly when the initial pleadings had been struck out. The judge noted that the court's discretion to allow amendments was broad, but it was not unfettered. The court considered whether the proposed amendments addressed the deficiencies in the initial pleadings and whether there were any grounds for denying leave, such as delay or prejudice to the defendant. In this instance, the court found that the plaintiffs had adequately addressed the shortcomings of their initial statement of claim and that the anticipated defence of advocate's immunity did not constitute a bar to re-pleading. The court also highlighted the importance of ensuring that the plaintiffs' claims were not barred by the doctrine of res judicata or by the statute of limitations.

Ultimately, the court granted Salmon leave to re-plead, allowing them to pursue their allegations against Albarran. The court's decision was based on the premise that the plaintiffs had shown a reasonable prospect of success on the merits and that there were no overriding reasons to deny leave. The court's ruling underscored the principle that while the doctrine of advocate's immunity was significant, it did not preclude a client from pursuing a claim against a solicitor for fraudulent conduct if such a claim was properly pleaded.

Orders