Background

Sharna Clemmett balances a resolute awareness of the needs of clients and instructing solicitors with her ultimate remit; to provide consistently outstanding verbal and written advocacy, technical advice, and case leadership. Sharna was called to the Bar in 2012. She has since developed a strong practice in Commercial Law, Equity, Wills and Estates, Property, Consumer Law, Proceeds of Crime and Insolvency.

Sharna first discovered her gift for advocacy at university. It was her ability to distil arguments into well-articulated and precise submissions that led to her success in mooting, and to pursue a career as an advocate.

From February 2008 to December 2011, Sharna practised in Commercial Litigation and Insolvency at Sparke Helmore Lawyers. Her role involved advising on, and acting in relation to, disputes and other matters in the areas of real property, trusts, contracts, fraud, partnership disputes, large and complex liquidation, applications to set aside statutory demands, winding up applications, receivership, voluntary administration, general insolvency and court procedure.

In her first year as an admitted solicitor, Sharna worked as Tipstaff to the Hon RW White in the Equity Division of the Supreme Court of New South Wales.

Sharna is also a volunteer with the Mosman Music Club and has a great interest in painting, ocean kayaking, and playing the violin.



Focus Areas + Select Cases

A.V. Jennings Properties Ltd v Kam Civil Pty Ltd [2013] NSWSC 1900: this was a claim for payment for services and the delivery of land fill, in which Sharna acted for a small, family-run earthmoving company, KAM Civil, against AV Jennings. After a hard-fought Local Court hearing, in which judgment was awarded for the plaintiff, AV Jennings appealed to the Supreme Court. Sharna successfully defended the appeal.

Arogen Pty Ltd v O'Meley [2013] NSWSC 1197: Sharna, led by Miles Condon SC, acted for the plaintiff in a bitterly fought family dispute over equitable ownership of a family-run business and shares in Arogen Pty Ltd. The plaintiff established that purported deeds of trust, relied upon by the defendants, were forged, and obtained a release from the “Harman Undertaking” so the forgeries could be provided to the police. Later, Sharna (with Mr Condon) successfully opposed an application by the defendants to re-open their case to adduce evidence – persuading the Court that the evidence had been obtained by illegal means: Arogen Pty Ltd and Ors v O'Meley and Anor (No 2) [2013] NSWSC 1893.

Singh v Singh [2015] NSWSC 1457: Sharna acted for one of the plaintiffs in a claim for family provision. Another plaintiff challenged the testamentary capacity of the deceased. A legal issue arising in this case included the operation of s 48 of the Protected Estates Act 1983 or s 83 of the NSW Trustee and Guardian Act where there had been transfers of certain assets pursuant to powers of attorney. The issue considered by the Court was whether those gifts had been deemed – an important issue in the administration of many deceased estates.

Sharna is regularly briefed to advise and appear on estate matters, including unconscionability / undue influence matters for the NSW Trustee and Guardian. Sharna regularly acts for and advises executors on issues arising in the course of administering deceased estates.

Stone v Stone (2015) 17 BPR 33,443; [2014] NSWSC 1655: Sharna acted for the New South Wales Trustee and Guardian on behalf of the plaintiff on an application to sell her property so that care could be provided to the plaintiff, and successfully defended a claim for a constructive trust over the property.

Fitness First Australia Pty Ltd v Fenshaw Pty Ltd (2016) 18 BPR 35,847; [2016] NSWSC 47: Sharna acted for the plaintiff on a claim for declarations as to the proper construction of the outgoings clause in a commercial lease. Although unsuccessful at trial, the plaintiff has appealed. The appeal is listed for hearing in August 2016.

O’Meley v O’Meley [2013] NSWSC 1496: Sharna, led by Miles Condon SC, acted for the owner of a property which was occupied by her grandson, who sought access to her property to have it valued for sale and, ultimately, possession of the property. These proceedings were related to a broader family dispute: Arogen Pty Ltd v O'Meley [2013] NSWSC 1197 and Arogen Pty Ltd and Ors v O'Meley and Anor (No 2) [2013] NSWSC 1893. This judgment dealt with the interlocutory orders for access for valuation. There then followed proceedings before the CTTT and, ultimately, Sharna acted for the plaintiff in obtaining judgment for possession of the property, by orders given by Pembroke J on 18 November 2013 (O’Meley v O’Meley, unreported).

Bull v The Australian Quarter Horse Association [2014] NSWSC 1665: Sharna, led by Anthony McInerney SC, acted for the plaintiff against the Australian Quarter Horse Association (AQHA). The plaintiff had sought to register a cloned quarter horse, and claimed that the AQHA had acted improperly in refusing that application. Although ultimately unsuccessful, the plaintiff’s case raised a number of legal issues, including breach of contract, oppression and natural justice.

Re Moylan Investment Group Pty Ltd (in liq) [2015] NSWSC 353: Sharna was briefed to advise and appear for the liquidator conducting examinations, and seeking orders for the production of documents, in respect of a rogue financial advisor. This judgment was but one aspect of the application for the production of documents, pursuant to the liquidator’s powers under the Corporations Act 2001.

Proceeds of Crime

Sharna is regularly briefed by the Australian Federal Police on proceeds of crime matters (matters involving restraining orders, forfeiture orders, exclusion applications and examinations).

Commissioner of the Australian Federal Police v Lee [2016] NSWSC 915

Commissioner of the Australian Federal Police v Lee (No 2) [2016] NSWSC 1131 (appeared for the Commissioner of the Australian Federal Police; re-opening of Commissioner of the Australian Federal Police v Lee [2016] NSWSC 915 – question of the order in which exclusion from restraining and forfeiture orders must be heard vis-à-vis the hearing of the final forfeiture application under the Proceeds of Crime Act 2002 (Cth)) • Commissioner of the Australian

Federal Police v Cui [2016] NSWSC 1118 (appeared for the Commissioner; question of the order in which exclusion from restraining and forfeiture orders must be heard vis-à-vis the hearing of the final forfeiture application under the Proceeds of Crime Act 2002 (Cth))

Consumer Law

Sharna is currently briefed for the Australian Competition and Consumer Commission on claims against private colleges for conduct in contravention of the Australian Consumer Law (Phoenix and Empower). Sharna, with Geoffrey Kennett SC, has provided advice on, among other things, reasonable grounds for the Phoenix matter.

Owners Corporation disputes

McElwaine v The Owners – Strata Plan No 75975 [2016] NSWSC 1589: Sharna appeared with Anthony McInerney SC for the defendant owners corporation, on a dispute about whether a common law claim in negligence could be maintained in respect of obligations owed by the owners corporation pursuant to s 62 of the Strata Schemes Management Act 1996 (NSW). Held by Young AJ that such a claim is inconsistent with the statutory scheme of the Act.

Legal costs and solicitor’s duties Sharna has been briefed to advise and appear in relation to:

  • Professional conduct complaints against solicitors, in relation to legal costs (advice); o claims by clients against solicitors and barristers, in relation to costs (advice);
  • Claims by solicitors against clients, for recovery of costs (see Stankovic v Magee [2014] NSWCA 439; appeal from Peter Michael Magee t/as Armstrong Legal v Stankovic (District Court of New South Wales; unreported, 10 December 2015)
  • Negligence claims against solicitors (both for the plaintiff and defendant solicitors) (advising and appearing in the Supreme Court of New South Wales)
  • Disputes about entitlement to funds held in trust by solicitors (see Joseph Gambino v Johansson Services Pty Limited trading as Contested Wills & Probate Lawyers [2016] NSWSC 1582 – claim in circumstances where garnishee order had been issued on solicitors by a third party)

 



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