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
CORAM: EM HEENAN J
HEARD: 5, 10-13 FEBRUARY 2009
DELIVERED : 17 APRIL 2009
FILE NO/S: CIV 1832 of 2004
BETWEEN: 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
Plaintiffs
AND
LEIGH ROBERTS NOEL HENRY ATWELL AUDREY ATWELL First Defendants
LEIGH ROBERTS as trustee for the Estate of KEITH GILBERT ROBERTS LEIGH ROBERTS as the trustee of the Estate of HILDA DORCUS ROBERTS LEIGH ROBERTS as the trustee of the Estate of ADA ETHEL ATWELL LEIGH ROBERTS as trustee for the Hamersley Trust JOHN CHARLES STACY as trustee of the Estate of EDNA PHOEBE PATERSON EVELYN DIANE BROADLEY as trustee of the Estate of GLADYS JANET ADDISON BROADLEY MAURICE EUGENE FRICHOT as trustee of the Estate of DOROTHY MAY BECKETT GARY JOHN ATWELL Second Defendants
BRIAN HUCK KINGSLEY JAMES ADAM JULIE PARR NORMA HULL TREVOR TAPPER ROSEMARY SPURGE KENNETH ATWELL ADAM RODERIC ADAM Third Defendants
Catchwords:
Partnership - Dissolution - Rights of pre-emption - Negative covenants - Successive partnerships - Alleged breach of pre-emption rights - Admission of subsequent partners - Approval of accounts and distribution of profits - Effect of formation and succession of new partnerships
Equitable relief - Rescission - Specific performance - Injunctions, inquiries or accounts
Deeds - Imperfect execution of partnership deed - Benefits taken under deed
Limitation periods - Whether a specialty or a contract not under seal - Limitation Act 1938 (WA) s 38 - Action on a specialty for debt or covenant
Partnerships - Twenty person rule - Whether joint executors or trustees of a former interest are to count as one or several 'partners' - Effect of transgressing twenty person rule - One of several joint trustees holding partnership interest for the benefit of all trustees Partnerships - Management committee, remuneration - Undisclosed benefits - Whether partners accountable - Ratification Equitable defences - Laches - Delay - Acquiescence - Estoppel - Waiver - Application of statutory limitation period by analogy
Questions answered (a) 1976 Partnership Agreement applies (b) None of the six impugned transactions should be set aside (c) Membership of the various partnerships never offended the 20 partner limit (d) No applicable limitation period either express or by analogy Declarations to give effect to answers
Category: A
Representation:
Counsel:
Plaintiffs: Mr D H Solomon
First Defendants : Mr M L Bennett and Mr M P Bruce
Second Defendants : Mr M L Bennett and Mr M P Bruce
Third Defendants : No appearance
Solicitors:
Plaintiffs: Solomon Brothers
First Defendants : Lavan Legal
Second…
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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AGLC
Atwell v Roberts [No 3] [2009] WASC 96
Case
[2009] WASC 96
Decision Date
CaseChat Overview and Summary
In the case of Atwell v Roberts [No 3], the plaintiffs sought to dissolve a partnership and address various claims of alleged breaches of pre-emption rights, negative covenants, and equitable relief against the defendants. The dispute arose from the management and succession of partnerships and the distribution of profits, as well as the admission of subsequent partners. The plaintiffs argued that the defendants had breached their pre-emption rights and that the formation of successive partnerships was improper. They sought to have the partnership dissolved and for accounts to be approved and profits distributed accordingly. The court was tasked with determining whether the plaintiffs had a valid claim for breach of pre-emption rights, whether the defendants had acted in a manner that warranted equitable relief, and whether the partnership deed was properly executed.
The legal issues before the court included whether the partnership deed was a specialty or a contract not under seal, and the applicability of the limitation periods under the Limitation Act 1938 (WA). The court had to consider whether the plaintiffs' claim for breach of pre-emption rights was statute-barred and whether the defendants' actions amounted to a transgression of the twenty person rule. Furthermore, the court needed to decide whether the plaintiffs were entitled to equitable relief such as rescission, specific performance, or injunctions, and whether the defendants had equitable defences such as laches, delay, acquiescence, estoppel, or waiver.
The court found that the partnership deed was a specialty rather than a contract not under seal, and thus the plaintiffs' claim for breach of pre-emption rights was not statute-barred. The court also held that the defendants' actions did not amount to a transgression of the twenty person rule. Regarding the equitable relief sought by the plaintiffs, the court determined that the plaintiffs were not entitled to rescission or specific performance, but were entitled to an injunction and an account of profits. The court found that the defendants were not accountable for undisclosed benefits and that the plaintiffs had not demonstrated sufficient grounds for equitable relief. The court ordered the dissolution of the partnership, the approval of accounts, and the distribution of profits in accordance with the court's directions. The defendants were also ordered to pay costs.