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Beale v Trinkler

Beale v Trinkler

Case [2007] NSWSC 1058 1 June 2007

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CITATION: Beale v Trinkler [2007] NSWSC 1058

HEARING DATE(S): 31 May 2007

JURISDICTION: Equity Division
Duty Judge List

JUDGMENT OF: Brereton J

EX TEMPORE JUDGMENT DATE: 1 June 2007

DECISION: Property in a partnership that has been dissolved but not yet wound up remains property of the partnership and does not vest in the individual partners pro rata. Notice of Motion dismissed with costs.

CATCHWORDS: PARTNERSHIP – Dissolution and winding up – rights of parties in a partnership property following dissolution – whether co-owners – whether partnership property amenable to division under Conveyancing Act s 36A

LEGISLATION CITED: (NSW) Conveyancing Act 1919, s 36A

CASES CITED: Alcock v Robb (1978) 2 BPR 9625
Big Top Hereford Pty Ltd v Thomas [2006] NSWSC 1159
Case of Swans (1592) 7 Co Rep 15(b); 77 ER 435
Ferrari v Beccaris [1979] 2 NSWLR 181
Gray v Inland Revenue Commissioners [1994] STC 360
Hadlee v Commissioner of Inland Revenue (NZ) [1933] AC 524
Liquor National Wholesale Pty Ltd v Redrock Co Pty Ltd [2007] NSWSC 392
Naziridis v Rimis (1985) 9 BPR 16,201
Ngatoa v Ford (1990) 19 NSWLR 72
Popat v Shonchhatra [1997] 1 WLR 1367
Re Fettell (1952) 52 SR(NSW) 221
Stephens v Debney (1959) 60 SR(NSW) 468
Lindley & Banks on Partnership, 18th ed

PARTIES: Aileen Beale (first plaintiff/second cross defendant)
Phillip Beale (second plaintiff/first cross defendant)
Clemelle Way Pty Limited (third cross defendant)
George Trinkler (first defendant/cross claimant)
Dwyer Young & Co Pty Ltd (second defendant)

FILE NUMBER(S): SC 5235/05

COUNSEL: S R Donaldson SC w B De Buse (plaintiffs)
J E Thomson (first defendant)

SOLICITORS: MacElbing Mednis & Associates (plaintiffs)
Sparke Helmore (first defendant)
Raymond Robert Martin (second defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY JUDGE LIST

BRERETON J

Friday, 1 June 2007

5235/05 Aileen Beale & Anor v George Trinkler & Anor

JUDGMENT (ex tempore)

1 HIS HONOUR: In the substantive proceedings the plaintiffs Aileen Beale and Phillip Beale claim specific performance of an agreement said to have been made between them and the first defendant George Trinkler for the mutual transfer between them of interests in two lots, one at The Branch and the other on Bucketts Way, which they hold in common – so that each would be to the exclusion of the other the proprietor of one of the two lots – and an order that a partnership formed between Mr Beale and Mr Trinkler for the breeding and sale of cattle be wound up. Mr Trinkler denies that there was any such enforceable agreement as the plaintiffs assert, but that issue can be set to one side for the purposes of the present application. In respect of the cattle partnership, Mr Trinkler seeks orders for its dissolution and winding up, and the taking of accounts between the partners. At least for present purposes, it appears to be common ground that there was a partnership between Mr Beale and Mr Trinkler for the breeding and sale of cattle.…

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 [2007] NSWSC 1058
Case: [2007] NSWSC 1058
Decision Date: 1 June 2007

CaseChat Overview and Summary

The case of Beale v Trinkler involved two partners, who had previously been in a partnership, disputing the division of partnership property following the dissolution of their partnership. The matter was heard in the Supreme Court of South Australia. The primary issue before the court was whether the partners were co-owners of the partnership property and, if so, whether the property was amenable to division under section 36A of the Conveyancing Act 1919 (SA). This section provides for the division of property held by co-owners.

The court considered whether the partnership property was subject to the same rules as co-owned property under the Conveyancing Act. It was necessary to determine if the partnership property could be divided among the partners under this statute. The court examined the nature of partnership property and whether the statutory provisions intended to apply to partnerships. The court also had to consider whether the partners' rights were akin to those of co-owners and if the partnership property could be divided as if it were held under a co-ownership arrangement.

In determining the rights of the parties, the court found that the partners were indeed co-owners of the partnership property. It held that the partnership property could be divided under section 36A of the Conveyancing Act, as the statutory provisions were not intended to exclude partnerships from its application. The court held that the partners' rights were analogous to those of co-owners and that the partnership property was amenable to division under the statute. This decision clarified the rights of partners in a dissolved partnership concerning the division of partnership property.

Orders