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

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

The Court declined at the amendment stage to disallow the proposed paragraphs said to attract advocate's immunity because doing so would not dispose of the causes of action against Mr Brown, it was not clear that it would substantially shorten the proceedings, and the point about immunity in relation to fraudulent claims had not been fully briefed and argued. The plaintiffs were allowed to proceed with the claim as currently formulated at least until pleadings closed, while preserving the possibility of later determination. Costs were ordered against the plaintiffs for the unsuccessful and wasted amendment steps, but indemnity costs and immediate lump sum assessment were not warranted.

Jurisdiction
Australia
Judgment Date
05 March 2021
Procedural Posture
Interlocutory Civil Procedure Ruling on Applications for Leave to Amend Statement of Claim / Applications by Plaintiffs for Leave to Amend After Parts of the Former Statement of Claim Were Struck Out; Costs and Further Directions
Outcome
The first amendment motion attracted a costs order against the applicants. On the second amendment motion, costs were ordered against the applicants in favour of the Hall Chadwick respondents to date and in favour of Mr Brown up to 1 December 2020, with further proceedings on the motion adjourned. The Court declined...
Legal Topics
['amendment of Pleadings' 'strike Out' "advocate's Immunity" 'fraud Allegations Against Solicitor' 'limitation Defences' 'costs of Amendment Applications']
['civil Procedure' 'equity' 'professional Negligence' "solicitors' Duties" 'receivership'] ['amendment of Pleadings' 'strike Out' "advocate's Immunity" 'fraud Allegations Against Solicitor' 'limitation Defences' 'costs of Amendment Applications']

Case Brief

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Procedural Posture

Interlocutory Civil Procedure Ruling on Applications for Leave to Amend Statement of Claim / Applications by Plaintiffs for Leave to Amend After Parts of the Former Statement of Claim Were Struck Out; Costs and Further Directions

Legal Issues

  1. 1 ['Whether the plaintiffs should be permitted to re-plead by amendment after large parts of the Statement of Claim had been struck out.' "Whether aspects of the proposed claims against Mr Brown should be disallowed or struck out at the amendment stage on the basis of advocate's immunity." 'Whether limitation, relation-back, and standing issues should prevent amendment or be preserved for trial.' 'What costs orders should be made in respect of the amendment applications and costs thrown away.']

Ratio Decidendi

The Court declined at the amendment stage to disallow the proposed paragraphs said to attract advocate's immunity because doing so would not dispose of the causes of action against Mr Brown, it was not clear that it would substantially shorten the proceedings, and the point about immunity in relation to fraudulent claims had not been fully briefed and argued. The plaintiffs were allowed to proceed with the claim as currently formulated at least until pleadings closed, while preserving the possibility of later determination. Costs were ordered against the plaintiffs for the unsuccessful and wasted amendment steps, but indemnity costs and immediate lump sum assessment were not warranted.

Court Disposition

The first amendment motion attracted a costs order against the applicants. On the second amendment motion, costs were ordered against the applicants in favour of the Hall Chadwick respondents to date and in favour of Mr Brown up to 1 December 2020, with further proceedings on the motion adjourned. The Court declined...

Orders

  • ["Order that the applicants/plaintiffs pay the respondents/defendants' costs of the notice of motion filed 3 August 2020." "Order that the applicants/plaintiffs pay the first, second and fourth to eighth respondents/defendants' costs to date of the notice of motion filed 6 October 2020." "Order that the...