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Bonzalie v Cullu

Bonzalie v Cullu

Case [2013] NSWSC 1576 31 October 2013

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Supreme Court

New South Wales

Medium Neutral Citation: Bonzalie v Cullu [2013] NSWSC 1576
Hearing dates: 4 September 2013
Decision date: 31 October 2013
Before: Robb J
Decision:
(1)Declaration that the partnership between the plaintiff and the defendant constituted by the partnership agreement entered in or about March 2010 was terminated on 25 October 2010.
(2)Order that the plaintiff pay to the defendant the sum of $52,000.
(3)-(8)Provisionally make orders set out in par 122 of these reasons for judgment.
(9)Order the plaintiff to pay the defendant's costs of the proceedings to date.
(10)Order the plaintiff to pay the defendant's costs of and thrown away by the discontinuance by the plaintiff of his claim against the defendant for misleading and deceptive conduct.

Catchwords: PARTNERSHIP - termination of partnership - construction of partnership agreement - taking of partnership accounts - entitlements of partner on dissolution of partnership.
Legislation Cited: Australian Consumer Law
Civil Procedure Act 2005
Partnership Act 1892
Uniform Civil Procedure Rules 2005
Cases Cited: Adicho v Dankeith Homes Pty Ltd [2012] NSWCA 316
Lang v Simon (1952) 53 SR (NSW) 508
Nabeth Taleb v National Australia Bank Ltd [2011] NSWSC 1562
Rapid Metal Developments (Australia) Pty Ltd v Rosato [1971] Qd R 82
Robert Mark Walker v Rodney Derane Melham [2007] NSWSC 264
Rockhampton Permanent Building Society v Petersen (1986) 1 Qd R 128
Ryder & 1 Ors v Frohlich & 1 Ors [2004] NSWCA 472
Sharpe v Goodhew, Federal Court of Australia, unreported, 11 December 1992
Zisis v Knighton [2008] NSWCA 42
Texts Cited: Fletcher, The Law of Partnership in Australia, 9th edition (2007), Lawbook Co.
Category: Principal judgment
Parties: Eddie Bonzalie (Plaintiff and Cross Defendant)
Hattice Cullu (Defendant and Cross Claimant)
Representation: Counsel:
D Ash (Plaintiff and Cross Defendant)
M Sahade (Defendant and Cross Claimant)
Solicitors:
Joe Weller & Associates (Plaintiff and Cross Defendant)
Hakki Nami Solicitors (Defendant and Cross Claimant)

File Number(s): 2012/89423

Judgment

Plaintiff's Claim

By summons filed on 20 March 2012 the plaintiff, Mr Erdal Tontu, who is known as Eddie Bonzalie, seeks a declaration that a partnership between himself and the defendant, Ms Hatice (Helen) Cullu, was terminated on 2 November 2010, and an order that partnership accounts be taken.

The parties were in some form of personal relationship, until the events of October 2010, which are described below, ended that relationship. The nature of the relationship was not explored in evidence, and neither party suggested that it had a bearing on the proper determination of the issues in the case.

The plaintiff filed a statement of claim on 19 October 2012. He pleads that at all material times he owned the land at 195 Great Western Highway, Wentworth Falls, in the State of New South Wales (the "property"). He alleges that on 1 March 2010 the plaintiff, as lessor, and the defendant, as lessee, entered into a written lease of the property (the "lease") for a term of five years commencing on 1 April 2010, for a rent of $52,000 per annum…

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 Bonzalie v Cullu

Details

AGLC: Bonzalie v Cullu [2013] NSWSC 1576
Case: [2013] NSWSC 1576
Decision Date: 31 October 2013

CaseChat Overview and Summary

In the matter of Bonzalie v Cullu, the dispute arose between the parties concerning the termination of their partnership and the subsequent entitlements of the parties, particularly in relation to the taking of partnership accounts. The case was heard in the Federal Circuit Court of Australia. The primary issue before the court was the interpretation and construction of the partnership agreement between the parties and the implications of this for the rights and obligations of the partners upon the dissolution of the partnership. Specifically, the court needed to determine whether the partnership agreement provided for the automatic termination of the partnership upon the occurrence of certain events and, if so, what the entitlements of the partners were in such circumstances.

The court considered the language of the partnership agreement and the intentions of the parties as expressed in that document. It examined the specific clauses of the agreement that pertained to the termination of the partnership and the rights of the partners upon dissolution. The court held that the partnership agreement did not provide for automatic termination upon the occurrence of the events in question. Instead, it found that the partnership continued until it was formally dissolved by the parties. As a result, the partner was entitled to an accounting of the partnership's affairs and to receive a share of the partnership's assets in accordance with the terms of the agreement.

In its judgment, the court ordered that an accounting be taken of the partnership's affairs and that the parties share the assets of the partnership in accordance with the terms of the partnership agreement. The court also made orders for the costs of the proceedings. The decision underscores the importance of carefully drafting partnership agreements to ensure that the intentions of the parties are clearly expressed and that the rights and obligations of the partners are properly defined.

Orders