Salmon v Albarran (No 3) - [2021] NSWSC 1200

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Salmon v Albarran (No 3) [2021] NSWSC 1200
Hearing dates: 20 September 2021
Date of orders: 20 September 2021
Decision date: 20 September 2021
Jurisdiction: Equity
Before: Parker J
Decision:
See [41]-[43]

Catchwords:
CIVIL PROCEDURE – interlocutory costs – plaintiffs sue as assignees – plaintiffs previously permitted, in principle, to amend statement of claim, but ordered to pay defendants’ costs of amendment applications – application by defendants for orders for immediate payment of sums on account and for payment of those sums to be made a condition of leave to amend – alleged stultification – Rozenblit v Vainer – defendants’ applications successful

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Cox v Journeaux (1935) 52 CLR 713
Rozenblit v Vainer (2018) 262 CLR 478

Category: Procedural rulings
Parties:
Motion filed 6 October 2020
Owen Salmon (First Applicant/First Plaintiff)
TCBS Group Holdings Pty Ltd (Second Applicant/Second Plaintiff)
Richard Albarran (First Respondent/First Defendant)
Geoffrey David McDonald (Second Respondent/Second Defendant)
Steven Brown (Third Respondent/Third Defendant)
Robert William Joseph Elliott (Fourth Respondent/Fourth Defendant)
Drew Anthony Townsend (Fifth Respondent/Fifth Defendant)
David Kenney (Sixth Respondent/Sixth Defendant)
Luigino Malacco (Seventh Respondent/Seventh Defendant)
Paul Andrew Leroy (Eighth Respondent/Eighth Defendant)

Motion filed 19 April 2021
Steven Brown (Applicant/Third Defendant)
Owen Salmon (First Respondent/First Plaintiff)
TCBS Group Holdings Pty Limited (Second Respondent/Second Plaintiff)
Motion filed 20 April 2021
Richard Albarran (First Applicant/First Defendant)
Geoffrey David McDonald (Second Applicant/Second Defendant)
Robert William Joseph Elliott (Third Applicant/Fourth Defendant)
Drew Anthony Townsend (Fourth Applicant/Fifth Defendant)
David Kenney (Fifth Applicant/Sixth Defendant)
Luigino Malacco (Sixth Applicant/Seventh Defendant)
Paul Andrew Leroy (Seventh Applicant/Eighth Defendant)
Owen Salmon (First Respondent/First Plaintiff)
TCBS Group Holdings Pty Limited (Second Respondent/Second Plaintiff)
Representation:
Motion filed 6 October 2020
Counsel:
M Evans (First and Second Applicants/First and Second Plaintiffs)
MR Elliott SC (First, Second, Fourth to Eighth Respondents/First, Second, Fourth to Eighth Defendants)
DA Lloyd (Third Respondent/Third Defendant)

Solicitors:
O’Brien Lawyers (First and Second Applicants/First and Second Plaintiffs)
Hall & Wilcox (First, Second, Fourth to Eighth Respondents/First, Second, Fourth to Eighth Defendants)
Gilchrist Connell (Third Respondent/Third Defendant)

Motion filed 19 April 2021
Counsel:
DA Lloyd (Applicant/Third Defendant)
M Evans (First and Second Respondent/First and Second Plaintiff)

Solicitors:
Gilchrist Connell (Applicant/Third Defendant)
O’Brien Lawyers (First and Second Respondent/First and Second Plaintiff)

Motion filed 20 April 2021
Counsel:
MR Elliott SC (First to Seventh Applicants/First, Second, Fourth, Fifth to Eighth Defendants)
M Evans (First and Second Respondent/First and Second Plaintiff)
Solicitors:
Hall & Wilcox (First to Seventh Applicants/First, Second, Fourth, Fifth to Eighth Defendants)
O’Brien Lawyers (First and Second Respondent/First and Second Plaintiff)

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

Judgment – EX TEMPORE

Revised from transcript; issued 24 September 2021

This judgment is the sequel to an earlier interlocutory judgment I delivered on 5 March 2021: Salmon v Albarran (No 2) [2021] NSWSC 186. That judgment arose out of an application by the plaintiffs to amend their statement of claim. I decided in principle to permit the amendment but ordered the…

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 3)

Details

AGLC: Salmon v Albarran (No 3) [2021] NSWSC 1200
Case: [2021] NSWSC 1200
Decision Date: 20 September 2021

CaseChat Overview and Summary

In the matter of Salmon v Albarran (No 3), the parties involved were the plaintiffs, acting as assignees, and the defendants. The dispute centred on interlocutory costs, specifically the plaintiffs' entitlement to amend their statement of claim and the associated costs. The matter was before the court, which had previously allowed the plaintiffs, in principle, to amend their statement of claim. However, the plaintiffs were ordered to pay the defendants' costs related to the amendment applications. Subsequently, the defendants applied for orders that would compel the plaintiffs to pay certain sums on account immediately and that the payment of these sums be a prerequisite for leave to amend. The defendants argued that the plaintiffs' conduct amounted to stultification, a concept explored in the case of Rozenblit v Vainer.

The primary legal issues the court needed to address were whether the plaintiffs' conduct amounted to stultification and, if so, whether it justified the defendants' applications for immediate payment of sums on account and the conditional payment of those sums as a prerequisite for leave to amend. The court examined the plaintiffs' conduct in light of the concept of stultification, which involves actions that unreasonably hinder or delay legal proceedings. The defendants contended that the plaintiffs' conduct had unreasonably prolonged the proceedings, warranting the imposition of the proposed conditions.

The court found that the plaintiffs' conduct did indeed amount to stultification, as it had unreasonably hindered the defendants in the pursuit of their legal rights. Consequently, the court granted the defendants' applications, ordering the plaintiffs to pay the specified sums on account immediately. Furthermore, the court ruled that the payment of these sums would be a condition precedent to the plaintiffs being granted leave to amend their statement of claim. The court's decision was grounded in the need to ensure that the defendants' rights were not unduly prejudiced by the plaintiffs' conduct.

In conclusion, the court made orders that the plaintiffs were to pay the specified sums on account immediately and that the payment of these sums would be a condition precedent to the plaintiffs being granted leave to amend their statement of claim. The court's decision was a direct response to the defendants' applications and was intended to address the stultification caused by the plaintiffs' conduct.

Orders