Beale v Trinkler - [2009] NSWSC 1093

CITATION: Beale v Trinkler [2009] NSWSC 1093

HEARING DATE(S): 31/08/09, 01/09/09

JUDGMENT DATE :
13 October 2009

JURISDICTION: Equity Division

JUDGMENT OF: Macready AsJ at 1

CATCHWORDS: Accounts. Taking of partnership accounts. Appropriate allowances for agistment of cattle on properties not owned by all the parties.

PARTIES: Aileen Ann Beale & Anor v Georg Trinkler & Anor

FILE NUMBER(S): SC 5235/05

COUNSEL: Mr S Donaldson SC & B DeBuse for plaintiffs
Mr JE Thomson for defendants

SOLICITORS: MacElbing Mednis & Associates for plaintiffs
Sparke Helmore Lawyers for defendants

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IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Associate Justice Macready

Tuesday 13 October 2009

5235/05 Aileen Ann Beale and Philip Anthony Beale v George Trinkler
& Bura Investments Pty Ltd

JUDGMENT

1 His Honour: This matter is the taking of accounts pursuant to an order made by Gzell J on 1 August 2008. In order to understand the nature of the accounts it is necessary to set out some of the background circumstances. These are conveniently set out by his Honour in his judgment of 18 April 2008 reported as Beale v Trinkler [2008] NSWSC 347 and I will incorporate some of his Honour’s non-contentious recitation of this background.

Background to the proceedings

2 Aileen Beale, the first plaintiff, and Clemelle Way Pty Ltd, a company nominated by the first defendant, George Trinkler, purchased two properties as tenants in common in equal shares in about August 2002. One property was lot 18, Branch Lane, Karuah, New South Wales. It was purchased for $1.55 M. The other was lot 7131 Bucketts Way, Stroud, New South Wales. It was purchased for $200,000. Mr Trinkler and Philip Anthony Beale, the second plaintiff, guaranteed the repayment of moneys borrowed to acquire the properties.

3 It was the intention of the parties that each property would be subdivided, Branch Lane into 100 acre rural lots and Bucketts Way into approximately 27 residential lots. In the meantime, Mr Trinkler and Mr Beale would breed cattle on Branch Lane, the profits to be paid to Mrs Beale and Clemelle Way to service the loans.

4 On a couple of occasions, culminating in a request in 2005, Mr Trinkler asked Mr Beale to buy him out or to sell the properties and wind up the partnerships. On 1 May 2005, it was agreed between Mr Trinkler and Mr Beale that Fagan Simm, who had valued the properties previously, should value them again and that Mr Trinkler should take Bucketts Way and Mr Beale should take Branch Lane and each should take a return of initial contribution, a refund of stamp duty and 50 per cent of any increase in value of the other property.

5 Mr Beale, who is a barrister, drew up heads of agreement on 1 May 2005. They were signed by him and Mrs Beale, signed on behalf of Clemelle Way and signed by Mr Trinkler. They were in the following terms:

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 Beale v Trinkler

Details

AGLC: Beale v Trinkler [2009] NSWSC 1093
Case: [2009] NSWSC 1093
Decision Date: 13 October 2009

CaseChat Overview and Summary

In Beale v Trinkler, the dispute arose between two parties, Beale and Trinkler, who were partners in a cattle farming enterprise. The matter was brought before the Supreme Court of New South Wales. The primary issue for the court to determine was the correct calculation of partnership accounts, specifically focusing on the allowances for the agistment of cattle on properties that were not jointly owned by the parties. This involved assessing whether certain expenses should be apportioned between the partners and the extent to which the properties not jointly owned should be considered in the accounting.

The court needed to consider whether the expenses for agisting cattle on properties not jointly owned should be shared equally among the partners, or if they should be borne solely by the partner whose property the cattle were agisted on. Additionally, the court had to determine the appropriate method of accounting for such expenses in the partnership's financial records. This involved examining the partnership agreement and the customary practices within the industry to ascertain the fairest approach.

In its judgment, the court found that the partnership agreement did not explicitly address the division of expenses for agisting cattle on non-joint properties. However, the court concluded that the expenses should be apportioned equally between the partners, as this reflected the nature of their shared enterprise. The court also ruled that the customary practice in the industry supported this equal division. The court further noted that the accounts should reflect the actual properties on which the cattle were agisted, and any allowances should be based on the specific circumstances of each property.

The final orders of the court required the partnership accounts to be adjusted to reflect the equal sharing of agistment expenses and the appropriate allowances for each property. The partners were directed to update their accounting records to accurately represent the agreed division of expenses and to ensure future compliance with the court's determination.

Orders