Salmon v Albarran & Ors [2019] NSWSC 243

Salmon v Albarran & Ors [2019] NSWSC 243

The defendants' motion for summary dismissal and to strike out the plaintiffs' pleading is dismissed. There is a real issue for trial as to both the alleged breach of fiduciary duty and the claim of fraudulent concealment. The claims for breach of fiduciary duty may not be subject to the Limitation Act at all, or, if limitation is in issue, it is not so clear as to warrant summary disposition at this stage. The evidence does not make it plain and obvious that the claims are statute-barred or that there is no real triable issue. The question of discoverability under Limitation Act s 55, the nature of any fiduciary relationship, breach, and informed consent, all raise triable issues...

Parties
First Plaintiff: Owen Salmon; Second Plaintiff: TCBS Group Holdings Pty Limited ACN 112 571 647; First Defendant: Richard Albarran; Second Defendant: Geoffrey McDonald; Fourth Defendant: Robert William Joseph Elliott; Fifth Defendant: Drew Anthony Townsend; Sixth Defendant: David Kenney; Seventh Defendant: Luigino Malacco; Eighth Defendant: Paul Andrew Leroy
Jurisdiction
Australia
Judgment Date
13 March 2019
Procedural Posture
Application for Summary Dismissal and to Strike Out Pleading / Interlocutory Decision on Notice of Motion for Summary Dismissal and Strike Out
Outcome
Application for summary dismissal and striking out dismissed; proceedings to continue to trial.
Legal Topics
Summary Dismissal, Limitation of Actions, Fiduciary Duty, Fraudulent Concealment, Breach of Duty as Receiver
Equity Civil Procedure Summary Dismissal Limitation of Actions Fiduciary Duty Fraudulent Concealment Breach of Duty as Receiver

Case Brief

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Parties

Owen Salmon

First Plaintiff

TCBS Group Holdings Pty Limited ACN 112 571 647

Second Plaintiff

Richard Albarran

First Defendant

Geoffrey McDonald

Second Defendant

Robert William Joseph Elliott

Fourth Defendant

Drew Anthony Townsend

Fifth Defendant

David Kenney

Sixth Defendant

Luigino Malacco

Seventh Defendant

Paul Andrew Leroy

Eighth Defendant

Procedural Posture

Application for Summary Dismissal and to Strike Out Pleading / Interlocutory Decision on Notice of Motion for Summary Dismissal and Strike Out

Legal Issues

  1. 1 Whether the proceedings should be summarily dismissed or the pleading struck out under UCPR r 14.28(1) and/or as time-barred under the Limitation Act 1969; whether the plaintiffs' claims involve a real issue for trial, particularly as to fraudulent concealment and breach of fiduciary duty

Ratio Decidendi

The defendants' motion for summary dismissal and to strike out the plaintiffs' pleading is dismissed. There is a real issue for trial as to both the alleged breach of fiduciary duty and the claim of fraudulent concealment. The claims for breach of fiduciary duty may not be subject to the Limitation Act at all, or, if limitation is in issue, it is not so clear as to warrant summary disposition at this stage. The evidence does not make it plain and obvious that the claims are statute-barred or that there is no real triable issue. The question of discoverability under Limitation Act s 55, the nature of any fiduciary relationship, breach, and informed consent, all raise triable issues...

Court Disposition

Application for summary dismissal and striking out dismissed; proceedings to continue to trial.

Orders

  • Notice of Motion of the first, second, and fourth to eighth defendants dated 12 October 2017 for summary dismissal and striking out of the plaintiffs' Amended Statement of Claim is dismissed.
  • Plaintiffs' costs of the Motion, if any, will be plaintiffs' costs in the proceedings.