Angius v Perez

There are two pleading disputes for determination before me involving the form of the existing defences and proposed amendments to those defences which have attempted to overcome acknowledged deficiencies in them.

These proceedings arise out of a dispute concerning the estate of Laura Angius, the late mother of the plaintiff, Robert Angius. The broad dispute concerns the payment of money in June 2022 for fees said to be owing to the first and second defendants, Jose Perez and Perez Varela Lawyers Pty Ltd (PVL), pursuant to written authorities that Mr Angius asserts were not signed by him but were fraudulently created by Mr Perez and PVL to obtain a financial benefit from Mr Angius.

Between October 2013 and 29 June 2022, Mr Angius retained Mr Perez and PVL in relation to matters concerning his late mother’s estate. Mr Perez is a practising solicitor and the principal and director of PVL. PVL instructed counsel, Vera Culkoff, to act for Mr Angius in relation to the estate dispute.

The third and fourth defendants, Brian Silvia and Geoffrey Granger respectively, are the liquidators of Angius Hotel Investments Pty Ltd (AHI) and Tararba Pty Ltd, companies in which Ms Angius held a 50% shareholding that had beneficially passed to Mr Anguis from his mother’s estate. On 6 December 2021, the court appointed Mr Silvia and Mr Granger as liquidators of AHI and Taraba. Pursuant to orders made on 21 September 2022, upon the realisation of assets the liquidators were to make an interim distribution, with 50% to be paid to Mr Angius as part of his beneficial entitlement to his mother’s estate.

The fifth defendant, Carney Lawyers Pty Ltd, was retained by the liquidators to advise on the interim distributions. The sixth and seventh defendants, Arthur Carney and Henry Wrench, were responsible for the legal work undertaken at Carney Lawyers. I will collectively refer to Carney Lawyers, Mr Carney and Mr Wrench as the Carney defendants.

On 22 June 2022, the liquidators paid the interim distributions totalling $5.075 million to PVL in accordance with an allegedly fraudulent direction that Mr Angius says was not signed by him. Mr Angius says that he did not become aware of the fraud until 29 June 2022, at which time he terminated his retainer of PVL. It appears that by 31 July 2022, Mr Angius had appointed Julie Orsini as solicitor to act for him.

On 8 December 2022, Mr Angius filed the statement of claim (SOC) against Mr Perez, PVL and the liquidators alleging, amongst other things, fraudulent misappropriation of funds by Mr Perez and PVL and breaches of fiduciary duties and negligence in the distribution of the funds by the liquidators. These allegations were later extended to the Carney defendants in the further amended statement of claim filed by Mr Anguis on 18 December 2023 (FASOC). In the FASOC, Mr Angius claims that the Carney defendants acted negligently.

On 22 February 2024, the Carney defendants filed their defence to the FASOC (Carney defence).

On 15 March 2024, the liquidators filed their defence to the FASOC (liquidators’ defence).

On 1 April 2025, the Carney defendants filed the notice of motion seeking to amend the Carney defence to the FASOC (proposed Carney amended defence). In general terms, the amendments in the proposed Carney amended defence replace the generic defined term of “the Lawyers” in the Carney defence with the names of two identified individuals (Ms Culkoff and Ms Orsini) in the pleading of concurrent wrongdoers for the purposes of the proportionate liability provisions in the Civil Liability Act 2002 (NSW) (CLA), as well as setting out more extensively the basis on which that defence is pleaded.

On 29 April 2025, Mr Angius filed a notice of motion seeking to strike out the parts of the Carney defence (which are sought to be amended by the proposed Carney amended defence) and the equivalent parts of the liquidators’ defence.

I am required to determine these two applications. It is accepted by the Carney defendants that the parts of the Carney defence which are sought to be amended are deficient and should be struck out if I am not minded to grant them leave to file the proposed Carney amended defence. It is accepted by the liquidators that if I strike out any parts of the Carney defence, then the equivalent parts of the liquidators’ defence should also be struck out.

For the reasons set out below, I have determined that the Carney defendants’ application for leave to file and serve the proposed Carney amended defence should be dismissed and the relevant parts of the Carney defence and the liquidators’ defence should be struck out. In other words, I consider that Mr Angius should be successful in relation to both applications.

On 22 June 2022, allegedly relying on fraudulent directions, the liquidators paid $5.075 million to PVL at the direction of PVL and Mr Perez. A total of $2.075 million was paid into PVL’s general office account (PVL account) and $3 million was paid into Piper Alderman’s trust account to be held on trust on the direction of PVL (as PVL had no trust account). Mr Angius later recouped a substantial portion of the $3 million payment.

On 29 June 2022, Mr Angius says that he first became aware of the $5.075 million payment and one of the forgeries. On the same day, Mr Angius then notified the liquidators of the forgery, terminated his retainer with PVL, informed the liquidators he was no longer legally represented and instructed the liquidators not to make any payment to Mr Perez or PVL. By this date, it would appear that Mr Perez had dissipated approximately $1 million from the first tranche of $2.075 million, leaving a balance of $1.075 million.

On 29 June 2022, Mr Angius wrote to Ms Culkoff to inform her that he had terminated PVL’s retainer and asked her to notify the parties and the court of PVL’s dismissal and the unauthorised transfer.

On 7 July 2022, Ms Culkoff sent an email to the Associate to Robb J, copied to Mr Wrench, Mr Perez, Mr Carney and Malcolm Quirey of Piper Alderman, which stated:

The “disturbing email below” was an email dated 6 July 2022 from Ms Culkoff to Mr Perez and Mr Quirey. The email stated that Ms Culkoff had “very disturbing communications” from Mr Angius requesting that the matter be urgently be relisted before Robb J, and that she had spoken to the liquidators and they had been disturbed by Mr Angius’ allegations. In summary, the effects of Mr Angius’ allegations were that:

In the email of 6 July 2022, Ms Culkoff stated:

On around 31 July 2022, Mr Angius consulted Ms Orsini, who was retained soon afterwards and briefed Ms Culkoff. By this date, Mr Perez had dissipated approximately $1.815 million from the first tranche of $2.075 million, leaving a balance of $260,000.

By 6 September 2022, Mr Perez had dissipated the entirety of the first tranche of $2.075 million, leaving a balance of nothing.

On 21 September 2022, Robb J granted leave to the liquidators to make final distributions in the windings up of AHI and Tararba pursuant to s 488(2) of the Corporations Act 2001 (Cth), and for their release upon the completion of those distributions pursuant to s 480 of the Corporations Act. Ms Culkoff, appearing for Mr Angius, informed the court of the dispute between Mr Angius, Mr Perez and PVL, and that Ms Orsini intended to seek freezing orders. No application for any freezing orders was made at that time.

On 26 October 2022, Mr Angius, acting through Ms Orsini and Ms Culkoff, sought freezing orders before Robb J. His Honour declined to deal with the application on an urgent basis. When the proceedings next came before Robb J on 9 November 2022, his Honour declined to make the freezing orders due to a lack of any evidentiary basis.

On 18 November 2022, on the giving of the usual undertaking as to damages by Mr Angius, Hammerschlag CJ in Eq accepted an undertaking from Mr Perez not to dispose of the balance of the funds left in the PVL account in lieu of making freezing orders and ordered Mr Perez to file an affidavit disclosing the status of the $2.075 million transferred by the liquidators to the PVL account, how much of the $2.075 million remained in the PVL account and what amounts had been withdrawn from the PVL account and for what purpose.

On 8 December 2022, Mr Angius filed the SOC making claims against Mr Perez, PVL and the liquidators. In essence, Mr Angius alleged that:

Various cross-claims and motions were filed in relation to the SOC; however, they are not outlined below as the issues for determination before me relate only to the different iterations of the SOC and the corresponding defences.

On 3 February 2023, Mr Perez and PVL filed their defence to the SOC.

On 7 March 2023, the liquidators filed their defence to the SOC.

On 12 March 2023, Mr Perez and PVL filed an amended defence to the SOC.

On 27 March 2023, Mr Perez filed a notice of motion seeking to restrain Ms Culkoff from acting for Mr Angius on the basis that Mr Perez formerly instructed her while he was acting for Mr Angius.

On 24 April 2023, Mr Angius filed an amended statement of claim (ASOC).

On 15 May 2023, the liquidators filed and served their amended defence to the ASOC, paragraph 78 of which pleaded a defence of proportionate liability.

On 21 May 2023, Mr Angius served a reply to the liquidators’ amended defence, which denied paragraph 78 of the amended defence and did not assert that it was improperly pleaded in any way.

On 20 June 2023, the application to restrain Ms Culkoff was resolved by Ms Culkoff, without admissions of any kind, giving an undertaking not to appear for Mr Angius in these proceedings without the leave of the court. Ms Orsini continues to act for Mr Angius.

On 8 December 2023, Kunc J made orders in these proceedings, including an order that Mr Angius be granted leave to file and serve the FASOC.

On 18 December 2023, Mr Angius filed the FASOC joining the Carney defendants as the fifth, sixth and seventh defendants.

On 20 December 2023, Natalie Polorotoff (Special Counsel at K&L Gates, the solicitors for the Carney defendants) sent an email to Ms Orsini (solicitor for Mr Angius) requesting “a box link to all pleadings and other court documents filed and/or served in the proceedings to date”.

On 20 December 2023, Ms Orsini sent an email in reply to Ms Polorotoff, which provided a link to various pleadings filed in the substantive proceedings. In the email, Ms Orsini then stated:

On 17 January 2024, Ms Polorotoff sent an email to Ms Orsini attaching a request for particulars (Request for Particulars). Paragraphs 116, 117, 144 and 145 of the Request for Particulars are as follows:

On 19 January 2024, Ms Orsini sent a letter to Ms Polorotoff responding to the Request for Particulars (Response). Paragraphs 116, 117, 144 and 145 of the Response stated as follows:

On 22 February 2024, the Carney defendants filed the Carney defence, which relevantly states at [64], [68] and [73]–[79] (emphasis in original):

On 15 March 2024, the liquidators filed and served the liquidators’ defence. Paragraph 75 of the liquidators’ defence pleads a similar contributory negligence defence to that contained in paragraph 64 of the Carney defence. Paragraph 78 of the liquidators’ defence pleads a similar proportionate liability defence to that contained in paragraph 68 of the Carney defence.

On 15 March 2024, Mr Angius filed a reply to the liquidators’ defence.

On 28 February 2025, the proceedings were listed for directions before Hammerschlag CJ in Eq, who made the following orders:

On 14 March 2025, in accordance with the orders made by Hammerschlag CJ in Eq above, Ms Polorotoff sent an email to all parties attaching a form of the proposed Carney amended defence, which specifically identified Ms Culkoff and Ms Orsini as possible concurrent wrongdoers and retained the general defined term of “the Lawyers”.

The solicitors for Mr Angius (Ms Orsini) and the Carney defendants (Ms Polorotoff) then engaged in correspondence concerning the form of the proposed Carney amended defence.

On 1 April 2025, the Carney defendants filed a notice of motion seeking leave to file and serve the proposed Carney amended defence in the form attached to the notice of motion.

Subsequently, after the hearing on 11 August 2025, the Carney defendants sent to my Associate the precise form of the proposed Carney amended defence for which they sought leave. I have extracted the relevant proposed amendments from that version of the proposed Carney amended defence below.

Paragraph 64 of the proposed Carney amended defence is in the same form as paragraph 64 of the Carney defence outlined above. The amendments contained in the proposed Carney amended defence are in the following form (emphasis in original):

The form of the proposed Carney amended defence for which leave is now sought addressed many of the criticisms made by counsel for Mr Angius during the course of the hearing on 11 August 2025. It has significantly changed from what was attached to the notice of motion filed on 1 April 2025.

On 29 April 2025, Mr Angius filed the notice of motion seeking, amongst other things, to strike out paragraph 78(d) of the liquidators’ defence and paragraphs 68(b) and 73–79 of the Carney defence in their entirety on grounds that they disclose no reasonable grounds of defence, have a tendency to cause prejudice, embarrassment and delay in the proceedings, and are otherwise an abuse of process.

On 29 April 2025, Mr Angius also served a proposed reply to the liquidators’ defence.

As at 1 August 2025, all parties have served the evidence in chief upon which they wish to rely at trial, except for the Carney defendants who have not served any evidence yet. No orders have been made for the Carney defendants to serve their evidence.

Mr Angius is yet to file any evidence in reply.

On 11 August 2025, I heard the application by the Carney defendants for leave to amend the Carney defence in the form of the proposed Carney amended defence and the application by Mr Angius to strike out particular paragraphs of the liquidators’ defence and the Carney defence.

There has been no formal application by Mr Perez and PVL to amend their defence or by the liquidators to amend the liquidators’ defence. The liquidators have indicated that if I grant leave to the Carney defendants to amend the Carney defence that they will seek leave to make similar amendments to the liquidators’ defence.

Pleadings are central to the conduct of a case as they ensure procedural fairness by defining the issues in dispute, give parties advance notice and prevent a ‘trial by ambush’. Their function is to clearly set out the case that must be met.

In Gould v Mount Oxide Mines Ltd (in liq) (1916) 22 CLR 490; [1916] HCA 81, Isaacs and Rich JJ at 517, stated:

The need for pleadings to be sufficiently clear was emphasised by Mason CJ and Gaudron J in Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11, who stated at 286 that:

In Banque Commerciale, Dawson J at 296–7 examined the function of pleadings in defining the issues between the parties (citations omitted):

Additionally, in Banque Commerciale, Brennan J at 288 quoted with apparent approval the remarks of Jessel MR in Thorp v Holdsworth (1876) 3 Ch D 637, concerning the object of pleadings as stated at 639:

Pleadings not only inform the opponent of the case to be met but also facilitate the just, quick and cheap determination of the real issues in the proceedings, which is the overriding purpose of the rules of court in their application to civil proceedings: s 56(1) of the Civil Procedure Act 2005 (NSW) (CPA). In Dickens v New South Wales (No 3) [2018] NSWSC 485, Adamson J stated at [36] and [38]–[39] that:

The concept of whether a pleading is embarrassing has also been the subject of extensive judicial consideration, as drawn together by Johnson J in McGuirk v University of New South Wales [2009] NSWSC 1424 at [32]–[35]:

In Ucak v Avante Developments [2007] NSWSC 367, Hammerschlag J at [35]–[42] set out the requirements that must be met for a pleading of concurrent wrongdoers under Part 4 of the CLA (emphasis in original):

The approach in Ucak has been followed in H.S.D. Co Pty Ltd v Masu Financial Management Pty Ltd [2008] NSWSC 1279, Rothman J at [18]; Permanent Custodians Ltd v King [2010] NSWSC 509, Schmidt J at [17]–[19]; The Owners Strata Plan v Brookfield Multiplex Limited [2010] NSWSC 360, McDougall J at [3]–[4]; Dartberg Pty Ltd v Wealthcare Financial Planning Pty Ltd (2007) 164 FCR 450; [2007] FCA 1216, Middleton J at [31]; and Bingo Holdings Pty Ltd v GC Group Company Pty Ltd [2021] NSWCA 184, Meagher, Payne and Brereton JJA at [21].

In The Owners – Strata Plan No 87265 v Saaib [2021] NSWSC 150, Henry J summarised the approach in Ucak, at [514] as follows:

The Carney defendants submit that the Carney defence in paragraph 68(b)(ii) does not comply with the requirement set out in Ucak to identify a particular concurrent wrongdoer, namely identifying a particular person. They say that the proposed Carney amended defence seeks to make a substantive change to the Carney defence to rectify this deficiency by naming with precision two lawyers said to be concurrent wrongdoers.

The first identified individual is Ms Orsini. Following recent service of evidence received by the solicitors for the Carney defendants (namely on 18 February 2025 and in answer to a notice to produce received on 30 March 2025), Ms Orsini has been identified as being retained by Mr Angius in July 2022 (being approximately one month after the alleged fraud was discovered).

The second identified individual is Ms Culkoff. Following receipt of an affidavit served in these proceedings in February 2024, Ms Culkoff has been identified as having been acting for Mr Angius or at least corresponding on his behalf with this court in July 2022.

The Carney defendants submit that the delay in identifying Ms Orsini and Ms Culkoff is due to only recently receiving the evidence that Ms Orsini was retained, being as recent as a few weeks ago. The Carney defendants submit that the evidence of Ms Orsini’s retainer and correspondence sent by Ms Culkoff are inconsistent with the Response to the Request for Particulars provided in January 2024.

The Carney defendants say that they now seek to align the pleadings with the evidence and rectify the deficiency in the current pleadings.

The Carney defendants submit that Mr Angius knows what advice was given by Ms Orsini and Ms Culkoff and whether they acted promptly regarding the freezing orders. The Carney defendants also submit that because this information is within Mr Angius’ knowledge, and not known by the Carney defendants, Mr Angius must therefore respond to the proposed amendments to the Carney defence as he considers appropriate.

The Carney defendants claim that there is no prejudice to Mr Angius where:

Mr Angius submits that the Carney defendants should not be permitted to plead that Ms Orsini and Ms Culkoff were professionally negligent in the manner proposed by the amendments. At the heart of Mr Angius’ complaints is that the proposed amendments to the Carney defence rely only on hypothetical “if-then” statements, raising a mere possibility of negligence without pleading the necessary material facts such as:

Mr Angius claims that those material facts are not within the knowledge of the liquidators and the Carney defendants, and are protected by legal professional privilege, which has not been waived. Mr Angius says that this means the liquidators and the Carney defendants will never obtain the evidence required to support such allegations, making the concurrent wrongdoer defences futile.

Mr Angius submits that the solicitors for the liquidators and the Carney defendants have candidly acknowledged in affidavits that they do not know what legal advice was given and cannot form the view that the defences have reasonable prospects of success. Mr Angius refers to Ms Polorotoff’s affidavit sworn 1 April 2025, at [37], where she states: “While I do not know what advice was obtained by the plaintiff from Ms Orsini and/or Ms Culkoff …”. Mr Angius claims the proposed amendments to the Carney defence do not cure these defects and so they remain deficient.

Mr Angius claims that to allow such amended pleadings would permit the Carney defendants to circumvent their solicitors’ professional obligations to only advance claims with a proper factual and legal basis. Mr Angius says that the existing paragraphs in the Carney defence should therefore be struck out, leave to amend refused, and the Carney defendants ordered to pay Mr Angius’ costs of the two notices of motion on an indemnity basis.

The liquidators made submissions seeking to support paragraph 78(d) of the liquidators’ defence in response to the submissions made by Mr Angius that it should be struck out.

In summary, the liquidators’ submissions were as follows:

Whilst it is true that the very nature of a concurrent wrongdoer pleading rests on a hypothetical yet to be proved (whether the defendant has any liability at all to the plaintiff, which will most often be denied), each of the central pillars for the alleged basis on which the concurrent wrongdoer is also said to have caused the same loss and damage cannot itself be a hypothetical. This is a case where those central pillars are posed as hypotheticals.

I consider that the amendments sought to be made in the proposed Carney amended defence contain fundamental flaws in its pleading of concurrent wrongdoers. The Carney defendants have not pleaded whether or not Mr Angius sought any legal advice from either Ms Culkoff or Ms Orsini on what steps he should take to prevent PVL and Mr Perez dissipating or otherwise dealing with the funds, what legal advice was sought and whether or not either Ms Culkoff or Ms Orsini gave that legal advice.

As a result, the proposed pleading relies on hypothetical “if-then” statements and omits the material facts necessary to disclose a proper defence. As emphasised in Banque Commerciale and Gould, such defects undermine the essential function of pleadings, which is to define the issues in dispute with sufficient clarity so as to ensure procedural fairness and prevent a trial by ambush. Conjectural or conditional allegations fail to achieve this function.

The use of “if-then” statements in the proposed Carney amended defence (including at paragraph 68(b)(ii)) highlights the Carney defendants’ failure to plead the material facts necessary to establish their case. The Carney defendants do not identify with specificity the particular conduct it is alleged Ms Culkoff and Ms Orsini engaged in or failed to engage in. The Carney defendants do not plead whether Ms Culkoff and Ms Orsini were instructed to provide legal advice, whether they failed to do so, whether any legal advice was given, or whether Mr Angius, if legal advice was given, failed to follow it. As Hammerschlag J observed in Ucak at [36], a pleading that asserts only a conclusion, without the material facts on which it depends, is impermissible.

Instead, the central pillars of the entire concurrent wrongdoer defence in respect of Ms Culkoff and Ms Orsini contained in paragraph 68(a)(ii) raise the following hypotheticals:

A chain of hypothetical alternatives does not amount to a statement of material facts but is rather an exercise in conjecture. Such an approach causes embarrassment in the pleading sense because the opposing parties cannot discern the case they are required to meet: Dickens, Adamson J at [36]–[39]; McGuirk, Johnson J at [32]–[33]. The absence of clear factual allegations also prevents the issues from being properly defined, thereby frustrating the overriding purpose of the CPA to secure the just, quick and cheap resolution of the real issues in dispute: s 56(1) of the CPA.

The problem with the conjecture is highlighted in paragraphs 90 (with respect to Ms Culkoff) and 103 (with respect to Ms Orsini) of the proposed Carney amended defence where it is stated that the loss or damage was caused by them “to the extent that she failed to provide the Advice and/or take the Action”, when it is not even known whether they were instructed to provide the advice or take the action and whether or not they gave advice to take the action. A pleading of professional negligence against each of them could never rest of such fundamental conjecture.

Although the Carney defendants contend that the proposed Carney amended defence cures a defect in the Carney defence by naming Ms Culkoff and Ms Orsini as concurrent wrongdoers (cf Ucak, Hammerschlag J at [35(a)]), that step alone does not overcome the more fundamental defect, being the absence of pleaded material facts.

The issue of futility was raised by Mr Angius on the basis that the relevant instructions and advice are legally privileged such that the Carney defendants may never know the requisite particulars to plead the necessary material facts. This may or may not be the case, but it would always be open to the Carney defendants to seek to plead their case based on inferences that arise in the circumstances. But as matters presently stand, without these particulars, the proposed Carney amended defence – if treated as though it was an initiating process for a cause of action – does not disclose the cause of action and damage with the requisite detail and is therefore deficient: Saaib, Henry J at [514], citing Ucak, Hammerschlag J at [35]–[42]; H.S.D, Rothman J at [18].

In my view, the absence of the pleaded material facts also precludes Mr Angius from being able to plead a proper reply in the form of s 5O of the CLA, namely that Ms Culkoff and Ms Orsini as professionals acted in a manner widely accepted in Australia by peer professional opinion as competent professional practice. Without the material facts of what it is alleged that Ms Culkoff and Ms Orsini did or omitted to do, it would be impossible for Mr Angius to be able to address the proposed amended pleading by reference to the matters in s 5O of the CLA.

Accordingly, in light of the Carney defendants’ failure to plead the material facts which would have been necessary to sustain a negligence claim against Ms Orsini and Ms Culkoff, I have determined that leave to amend the Carney defence in the form of the proposed Carney amended defence should be refused. As a result, the relevant parts of the Carney defence in its current form are deficient (as admitted by the Carney defendants) and should therefore be struck out. On the same basis, the equivalent parts of the liquidators’ defence should also be struck out.

I will permit the liquidators and the Carney defendants to propose further amendments to the liquidators’ defence and the Carney defence respectively, if they wish to take that course. With the benefit of the hearing and this judgment, they may well improve their proposed pleading (as they did between the hearing and this judgment), illustrating the danger for parties such as Mr Anguis in taking pleading points in advance of the trial rather than allowing the pleading to fail on its own terms then.

I will not order any timetable for that to occur. In the usual way, any such amendments should be sent to the solicitors for Mr Angius for his consideration and, if Mr Angius does not consent to the making of those amendments, then applications for leave to make those amendments will have to be made by the liquidators and the Carney defendants in due course.

For the reasons outlined above, I propose to make the following orders: