BADEN WILLIAM BANT AND REX DONALD BANT (as Executors of the Estate of JOYCE EILEEN BANT) -v- BANT & ANOR [2003] WASC 137

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WASC 137
Case No:	CIV:1583/2002	Heard:	18 JUNE 2003
Coram:	WHEELER J	Delivered:	31/07/03
No of pages:	10	Judgment Part:	1 of 1
Result:	Declaration that the property is partnership property
Category:	B
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Parties:	BADEN WILLIAM BANT AND REX DONALD BANT (as Executors of the Estate of JOYCE EILEEN BANT) BADEN WILLIAM BANT SHARON JOY THOMPSON
Catchwords:	Partnership Property held by co-tenants Whether partnership property
Legislation:	Partnership Act 1985 (WA)
Case References:	Bakewell v Deputy Federal Commissioner of Taxation (1937) 58 CLR 743 Clay & Ors v Clay, unreported; SCt of WA; Library No 970185; 28 April 1997 Elkin & Co Pty Ltd v Specialised Television Installations Pty Ltd [1961] SR (NSW) 165; (1959) 77 WN (NSW) 844 Evans v Guthridge (1864) 1 WW & A'B (E) 119 Ex parte McInnes (1870) 9 SCR (NSW) L 28 Folks v Woolf [1933] VLR 403 Forster v Hale (1798) 3 Ves 696; 30 ER 1226 Harvey v Harvey (1970) 120 CLR 529 Hurst v Bryk [1999] Ch 1, 10D (CA) Kelly v Kelly (1990) 92 ALR 74 Mangraviti v Mangraviti, unreported; SCt of New South Wales; 19 November 1992 Miles v Clarke [1953] 1 All ER 779 O'Brien v Komesaroff (1982) 150 CLR 310 Robinson v Ashton (1875) LR 20 Eq 25 Rushton (Qld) Pty Ltd & Anor v Rushton (NSW) Pty Ltd & Anor [2002] QCA 210 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : BADEN WILLIAM BANT AND REX DONALD BANT (as Executors of the Estate of JOYCE EILEEN BANT) -v- BANT & ANOR [2003] WASC 137 CORAM : WHEELER J HEARD : 18 JUNE 2003 DELIVERED : 31 JULY 2003 FILE NO/S : CIV 1583 of 2002 BETWEEN : BADEN WILLIAM BANT AND REX DONALD BANT (as Executors of the Estate of JOYCE EILEEN BANT)

Plaintiffs

AND

BADEN WILLIAM BANT

First Defendant

SHARON JOY THOMPSON

Second Defendant

Catchwords:

Partnership - Property held by co-tenants - Whether partnership property

Legislation:

Partnership Act 1985 (WA)

Result:

Declaration that the property is partnership property

(Page 2)

Category: B
Representation:

Counsel:

Plaintiffs : No appearance

First Defendant : Mr M J McPhee

Second Defendant : Ms P M V Edward

Solicitors:

Plaintiffs : No appearance

First Defendant : Michell Sillar McPhee

Second Defendant : Verschuer Edward

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

Bakewell v Deputy Federal Commissioner of Taxation (1937) 58 CLR 743
Clay & Ors v Clay, unreported; SCt of WA; Library No 970185; 28 April 1997
Elkin & Co Pty Ltd v Specialised Television Installations Pty Ltd [1961] SR (NSW) 165; (1959) 77 WN (NSW) 844
Evans v Guthridge (1864) 1 WW & A'B (E) 119
Ex parte McInnes (1870) 9 SCR (NSW) L 28
Folks v Woolf [1933] VLR 403
Forster v Hale (1798) 3 Ves 696; 30 ER 1226
Harvey v Harvey…

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 Bant v Bant

Details

AGLC: Bant v Bant [2003] WASC 137
Case: [2003] WASC 137
Decision Date

CaseChat Overview and Summary

In the case of Bant v Bant, the Supreme Court of Western Australia was tasked with determining whether a property, located at 23 Quarry Street, Fremantle, was partnership property. The plaintiffs, Baden William Bant and Rex Donald Bant as executors of the Estate of Joyce Eileen Bant, sought a declaration regarding the ownership of the property. The first defendant, Baden William Bant, contended that the property was partnership property, while the second defendant, Sharon Joy Thompson, argued that the property belonged to the co-owners in their own right. The court had to decide whether the property was partnership property, or if it belonged to the co-owners individually.

The court considered the legal principles surrounding partnership property, including the onus of proof resting on the party claiming that the property was partnership property. It also examined the evidence provided by the parties, such as the partnership accounts and the Deed of Partnership. The court concluded that the partners regarded the Quarry Street property as a partnership asset, and found that on the balance of probabilities, the property was indeed partnership property.

As a result, the court declared that the property was partnership property. This decision had implications for the distribution of the partnership's assets upon dissolution, as well as the distribution of Joyce Eileen Bant's estate.

Orders