BETWEEN: MALCOLM WALTER ATWELL and IAN GEORGE ATWELL as Trustee of the Estate of WALTER CHARLES ATWELL on behalf of all partners in the Atwell Family Agency other than the respondents
Appellants
AND
LEIGH ROBERTS First-named First Respondent
NOEL HENRY ATWELL Second-named First Respondent
AUDREY ATWELL Third-named First Respondent
LEIGH ROBERTS as Trustee of the Estate of KEITH GILBERT ROBERTS First-named Second Respondent
LEIGH ROBERTS as Trustee of the Estate of HILDA DORCAS ROBERTS Second-named Second Respondent
LEIGH ROBERTS as Trustee of the Estate of ADA ETHEL ATWELL Third-named Second Respondent
LEIGH ROBERTS as Trustee for THE HAMERSLEY TRUST Fourth-named Second Respondent
JOHN CHARLES STACY as Trustee of the Estate of EDNA PHOEBE PATERSON Fifth-named Second Respondent
EVELYN DIANE BROADLEY as Trustee of the Estate of GLADYS JANET ADDISON BROADLEY Sixth-named Second Respondent
MAURICE EUGENE FRICHOT as Trustee of the Estate of DOROTHY MAY BECKETT Seventh-named Second Respondent
GARY JOHN ATWELL Eighth-named Second Respondent
BRIAN HUCK KINGSLEY JAMES ADAM JULIE PARR NORMA HULL TREVOR TAPPER ROSEMARY SPURGE KENNETH ATWELL ADAM RODERIC ADAM JONATHAN GRAHAM NICHOLLS as Trustee of the Estate of JOYCE CORONA NICHOLLS Third Respondents
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :EM HEENAN J
Citation :MALCOLM WALTER ATWELL and IAN GEORGE ATWELL as trustees of the Estate of WALTER CHARLES ATWELL on behalf of all other partners in the Atwell Family Agency other than the first defendants -v- ROBERTS [No 3] [2009] WASC 96
File No :CIV 1832 of 2004
Catchwords:
Partnership - Dissolution - Notional winding up - Pre-emptive rights provision - Retirement or death of partners - Admission of new partners by the continuing partners - Consequences of the formation of new partnerships - Alleged breach of the pre-emptive rights provision - Approval of accounts and distribution of profits
Equity - Equitable relief - Rescission - Specific performance - Injunctions, inquiries or accounts
First-named First Respondent : Mr M L Bennett & Mr M P Bruce
Second-named First Respondent : Mr M L Bennett & Mr M P Bruce
Third-named First Respondent : Mr M L Bennett & Mr M P Bruce
First-named Second Respondent : Mr M L Bennett & Mr M P Bruce
Second-named Second Respondent : Mr M L Bennett & Mr M P Bruce
Third-named Second Respondent : Mr M L Bennett & Mr M P Bruce
Fourth-named Second Respondent : Mr…
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.
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Details
AGLC
Atwell v Roberts [2013] WASCA 37
Case
[2013] WASCA 37
Decision Date
CaseChat Overview and Summary
The matter of Atwell v Roberts concerned an appeal against the dismissal of claims brought by the appellants against the respondents in relation to the dissolution of a partnership and the alleged breach of a pre-emptive rights provision in the deed. The case was heard and dismissed by the Supreme Court of Western Australia. The appellants argued that the respondents had breached a pre-emptive rights provision in the deed by admitting new partners without offering the appellants the opportunity to acquire the new units first. The respondents maintained that the pre-emptive rights provision had been complied with and that the partnership had been properly dissolved.
The central legal issue before the court was the proper construction of the pre-emptive rights provision within the context of the deed and the successive unit partnerships. The court was required to determine whether the transfers of units in partnerships constituted in compliance with the provision and, if any transfer did not comply with the provision, what the consequences of the non-compliance were. Additionally, the court needed to consider the equitable remedies available to the appellants in the event of a breach of the pre-emptive rights provision.
The court dismissed the appeal, finding that the pre-emptive rights provision was properly construed and that the respondents had not breached the provision. The court held that the transfers of units were in compliance with the provision and that the dissolution of the partnership and the distribution of profits were conducted appropriately. Consequently, the court found that the appellants were not entitled to any equitable relief, such as rescission, specific performance, or injunctions. The court also made orders for the appellants to pay the respondents' costs of the appeal and the application for special costs.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
JUDGMENT OF THE COURT: On 15 February 2013, this court dismissed the appellants' appeal. See Atwell v Roberts [2013] WASCA 37. The appeal raised issues as to the proper construction of a pre‑emptive rights provision in a deed evidencing the terms and conditions of successive unit partnerships; whether various transfers of units in partnerships constituted pursuant to the deed were made in compliance with the provision; and, if any transfer did not comply with the provision, the effect of the non‑compliance. On 15 February 2013, this court made the following orders:1.Appeal dismissed.2.The appellants pay the first and second respondents' costs of the appeal to be taxed, including the first and second respondents' costs of each amendment to the appellants' case and the first and second respondents' answer and the first and second respondents' costs of the written submissions in answer to the Court's request for clarification dated 2 July 2012.3.There be liberty to apply for any special costs order within 30 days. Pursuant to Order 3, the first and respondents made application for a special costs order. They seek orders as follows:1.The costs to be paid by the appellants to the first and second respondents pursuant to Order 2 of the orders made by this Honourable Court on 15 February 2013 be taxed without regard to the maximum limits (including hourly limits) prescribed by any relevant scale.2.Pursuant to section 280(2) of the Legal Profession Act 2008 (WA), the limits (including hourly limits) on costs fixed for Item 23 of the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2012 (WA) and any corresponding items of the Legal Practitioners (Supreme Court) (Contentious Business) Determination (WA) 2008 and 2010 be removed for the purposes of any taxation referred to in Order 1 herein and Order 2 of the orders made by this Honourable Court on 15 February 2013.3.Pursuant to Order 69 Rule 3 of the Rules of the Supreme Court 1971 (WA), the appellants pay the first and second respondents' costs of the running appeal hearing transcript and the transcript of each of the directions hearings held on 27 August 2010 and 7 December 2011.4.The appellants pay the first and second respondents' costs of the first and second respondents' second Counsel fee on hearing (including preparation) to be taxed on the basis set out herein.5.The appellants pay the first and second respondents' costs of this application to be taxed on the basis set out herein. The appellants oppose the application. The first and second respondents have filed an affidavit sworn 14 March 2013 by Amy Joanne Rumble, a legal practitioner employed by their solicitors, in support of the application. The appellants have filed an affidavit sworn 2 April 2013 by Christopher Stephen Williams, a partner of the firm of solicitors acting for them, in opposition to the application. The parties have also filed and served written submissions. Section 37(1) of the Supreme Court Act 1935 (WA) provides:Subject to the provisions of this Act and to the rules of court and to the express provisions of the Magistrates Court (Civil Proceedings) Act 2004, or any other Act, the costs of and incidental to all proceedings in the Supreme Court, including the administration of estates and trusts, shall be in the discretion of the Court or judge, and the Court or judge shall have full power to determine by whom or out of what estate, fund, or property, and to what extent such costs are to be paid.