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Allegretta v Allegretta

Allegretta v Allegretta

Case [2001] WASC 115 11 May 2001

Contract Formation

Unconscionable Conduct

Partnership

Dissolution of Partnership

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ALLEGRETTA & ANOR -v- ALLEGRETTA & ANOR [2001] WASC 115

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASC 115
Case No:	CIV:1326/1995	Heard:	1-7 FEBRUARY 2001 & 18-24 APRIL 2001
Coram:	TEMPLEMAN J	Delivered:	11/05/01
No of pages:	27	Judgment Part:	1 of 1
Result:	Plaintiffs' claim dismissed Defendants' counterclaim successful in that they are entitled to a declaration that the partnership was dissolved and that the plaintiffs execute and deliver up transfers of licences
PDF Version

Parties:	FRANCO PETER ALLEGRETTA MAURO JOHN ALLEGRETTA MODESTO ALLEGRETTA IPPOLITA ALLEGRETTA
Catchwords:	Partnership Dissolution and winding up Informal partnership for purpose of carrying on family fishing business Dispute about terms of partnership agreement Dispute about whether partnership dissolved Turns on own facts
Legislation:	Nil
Case References:	In The Marriage of Elias (1977) 29 FLR 393 Tinker v Tinker [1970] P 136 Austell Pty Ltd v Commissioner for State Taxation (WA) (1989) 89 ATC-4905 Baburin v Baburin (No 2) [1991] 2 Qd R 240 Banks v Transport Regulation Board (Victoria) (1968) 119 CLR 222 Chan v Zacharia (1984) 154 CLR 178 Clay v Clay [1999] WASCA 8 Clegg v Edmondson (1857) 8 De G M & G 787 Commonwealth of Australia v Spotless Catering [1999] WASCA 136 Foley v Farrell (1933) 36 WALR 46 Harper v Minister for Sea Fisheries (1989) 168 CLR 314 In re Jarvis; Edge v Jarvis [1958] 1 WLR 815 Jorgensen v Boyce [1896] 22 VLR 408 Livingstone v Commissioner of Stamp Duties (1960) 107 CLR 411 Palmer v Moore [1900] AC 293 Pennington v McGovern (1987) 45 SASR 27 Rankine v Rankine (1995) 124 FLR 340 Taylor v Davies [1920] AC 636 Warman International Limited v Dwyer (1995) 182 CLR 544 Welsh v Nilsson [1961] NZLR 644

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : ALLEGRETTA & ANOR -v- ALLEGRETTA & ANOR [2001] WASC 115 CORAM : TEMPLEMAN J HEARD : 1-7 FEBRUARY 2001 & 18-24 APRIL 2001 DELIVERED : 11 MAY 2001 FILE NO/S : CIV 1326 of 1995 BETWEEN : FRANCO PETER ALLEGRETTA

First Plaintiff

MAURO JOHN ALLEGRETTA

Second Plaintiff

AND

MODESTO ALLEGRETTA

First Defendant

IPPOLITA ALLEGRETTA

Second Defendant

Catchwords:

Partnership - Dissolution and winding up - Informal partnership for purpose of carrying on family fishing business - Dispute about terms of partnership agreement - Dispute about whether partnership dissolved - Turns on own facts

Legislation:

Nil

(Page 2)

Result:

Plaintiffs' claim dismissed

Defendants' counterclaim successful in that they are entitled to a declaration that the partnership was dissolved and that the plaintiffs execute and deliver up transfers of licences

Representation:

Counsel:

First Plaintiff : Mr P R Eaton

Second Plaintiff : Mr P R Eaton

First Defendant : Mr J R Gilmour QC & Mr M D Howard

Second Defendant : Mr J R Gilmour QC & Mr M D Howard

Solicitors:

First Plaintiff : Hylton Quail

Second Plaintiff : Hylton Quail

First Defendant : Anthony Torre & Monaco

Second Defendant : Anthony Torre & Monaco

Case(s) referred to in judgment(s):

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Allegretta v Allegretta

Details

AGLC: Allegretta v Allegretta [2001] WASC 115
Case: [2001] WASC 115
Decision Date

CaseChat Overview and Summary

The case of Allegretta & Anor v Allegretta & Anor was heard in the Supreme Court of Western Australia. The plaintiffs, Franco Peter Allegretta and Mauro John Allegretta, sought orders for the dissolution and winding up of an informal partnership with their parents, Modesto and Ippolita Allegretta. The partnership was established for the purpose of carrying on a family fishing business. The defendants, the parents, counterclaimed for a declaration that the partnership was dissolved and that the plaintiffs execute and deliver up transfers of the licences relating to the fishing vessel. The court had to determine whether the partnership was dissolved in 1980 or 1982, and if it was, whether the plaintiffs were entitled to any compensation. After considering the evidence, the court found that the partnership was dissolved in May 1982, and that the plaintiffs were not entitled to any compensation. The court dismissed the plaintiffs' claim and granted the defendants' counterclaim, ordering the plaintiffs to execute and deliver up transfers of the licences relating to the fishing vessel.

Orders