Ex-receivers fail to have deceit claim dismissed

Hall Chadwick's Richard Albarran denies deceit allegations.
Hall Chadwick’s Richard Albarran.
Barrister Geoff McDonald denies deceit allegations
Barrister Geoff McDonald.

It’s not often that an unrepresented layman defeats a senior counsel in a legal contest but just such an outcome was revealed on Wednesday this week in the NSW Supreme Court.

On one side was Owen Salmon, the former director shareholder of an entity called Terra Cresta Business Solutions.

Salmon doesn’t have silks on tap. What he does have is an insider’s knowledge of events that took place a decade and more ago and an implacable determination to see the wrongs he believes were done to him righted.

On the other side awaiting the judgment of Justice Michael Slattery was the esteemed barrister, Michael R Elliott, SC.

The pair were pitted against each other in November 2017 when Elliott’s clients – and we’ll get to them in a moment – sought to have Salmon’s amended statement of claim – alleging deceit and claiming damages – summarily dismissed.

Setting aside the fact that this judgment has taken well over a year to deliver, Elliott SC is representing some very well known names in the Australian insolvency space.

First and foremost are the equity partners of Hall Chadwick, Richard Albarran, Rob Elliott, David Kenney, Drew Townsend and Gino Malacco.

Also in there is former Hall Chadwick partner and now barrister Geoff Macdonald and bankruptcy trustee Paul Leroy, who these days runs Integrated Accounting Solutions after departing Hall Chadwick last year. See: Retiring Trustee Not So Shy When It Comes To Suing

INO makes no suggestion of wrongdoing. The allegations in Salmon’s claim are serious, and laid out in detail by Justice Slattery in: Salmon v Albarran & Ors [2019] NSWSC 243

This story starts in 2005, when Terra Cresta was engaged by Business Australia Capital Finance Pty Limited (BACF) and Business Australia Capital Mortgage Pty Limited (BACM) to provide management and accounting services.

BACF and BACM were companies controlled by the exceedingly colourful mortgage financier Ian Lazar, who is on track to face trail on fraud allegations later this year, mental health permitting. (See: Accused Fraudster Ian Lazar Unfit To Stand Trial)

Albarran and McDonald were appointed receivers of BACF and BACM in 2006.

For good measure this yarn also includes some other well known names, including Andrew Wily, who quit his registrations as a trustee in bankruptcy and registered liquidator only in the last few years and Jim Byrnes, whose notoriety goes back to the days when he was Alan Bond’s driver and bodyguard.

Justice Slattery was at pains to make clear that the allegations against the defendants, which are strongly denied, are untested.

“It would only be at final hearing that the principal defendants would have the opportunity to contest the plaintiffs’ allegations,” he said.

“The Court is not making any findings of fact in this judgment. But the Court is prepared to assume in the plaintiffs’ favour the allegations they make at face value, to see whether they can possibly be made out.

“This approach is in accordance with legal principles governing summary judgment applications.

“It does not constitute a finding on the part of the Court that the allegations are in fact correct. This cautionary note should be borne in mind throughout this judgment,” the judge warned.

After canvassing the allegations and the relevant principles the judge dismissed the defendants’ motion for summary dismissal and striking out of Salmon’s Amended Statement of Claim and ordered them to file their defences by March 29, 2019.

The matter will return to court for directions on April 3.

About the Author

Peter Gosnell
Insolvency News Online illuminates the practice of insolvency Australia-wide, highlighting the triumphs and travails of the nation’s registered practitioners and the accounting and legal professionals who work with them. INO is produced by Peter Gosnell, former business editor and senior business reporter at The Daily Telegraph newspaper. During a decade-long career, your correspondent reported on such notable corporate collapses as HIH, One.Tel, Westpoint and Fincorp as well as some of the nation's highest profile bankruptcies and the investigations and prosecutions arising from Australia's most notorious instances of white-collar crime.

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