Calacoci v Calacoci - [2020] NSWSC 476

Supreme Court

New South Wales

Medium Neutral Citation: Calacoci v Calacoci [2020] NSWSC 476
Hearing dates: 14 and 15 November 2019
Decision date: 08 May 2020
Jurisdiction: Equity
Before: Lindsay J
Decision:
(1) A determination made as to the shares in which partnership property held by partners upon dissolution of their partnership.

(2) A determination made as to the mode of sale of the partnership’s principal asset.
(3) Parties to be allowed an opportunity to make submissions about the form of orders to be made, and costs, in the context of steps taken by them for a consensual winding up of the partnership business.
Catchwords: PARTNERSHIPS AND JOINT VENTURES — Partnerships — Terms of partnership agreement — Partnership agreement not in writing – Dissolution of partnership – Winding up partnership business – Sale of partnership assets – Entitlements to capital and profits.
Legislation Cited: Conveyancing Act 1919 NSW
Partnership Act 1892 NSW
Cases Cited: Hungerford (by his tutor Ahadizadeh) v Richardson [2017] NSWSC 297
Jane v Bob Jane Corporation Pty Ltd [2013] VSC 406
Lucas v Lucas [1962] Qd R 205
Syers v Syers (1876) 1 App Cas 174
Sze Tu v Lowe [2014] NSWCA 462
Texts Cited: Lindley and Banks on Partnership (Sweet & Maxwell, 20th ed, 2017), paragraphs [23-110] and [23-113];
Category: Principal judgment
Parties:
First Plaintiff: Antonio Isidoro (“Anthony”) Calacoci
Second Plaintiff: Rossano Vincenzo (“Ross”) Calacoci
Third Plaintiff: Ivana Rosita Calacoci
First Defendant: Guiseppe (“John Joseph”) Calacoci
Second Defendant: Vincenzina (“Winnie”) Calacoci
Representation:
Counsel:
Plaintiffs: MJ Dawson and DF Elliott
Defendants: S Balafoutis SC and C Ernst
Solicitors:
Plaintiffs: Diamond Conway Lawyers
Defendants: HPL Lawyers

File Number(s): 2019/00149639

Judgment

INTRODUCTION

The parties to these proceedings (three plaintiffs and two defendants) carried on business, in a partnership (known as “The Calacoci Partnership”) without the benefit of a written partnership agreement, between 1996 and 2019.
The partners are members of the one extended family. The three plaintiffs (respectively, Anthony, Ross and Ivana) and the first defendant (John) are siblings. The second defendant (Winnie) is the wife of John. John is the eldest of the siblings.
The partnership was established with the guidance, and assistance, of the siblings’ parents, in whose family business each of the four children (now mature adults) worked from an early age. In social terms, the older generation helped the younger generation to establish themselves, as partners, in a common business enterprise on the basis that each of the four branches of the family had an equal share in the enterprise.
Throughout the term of the partnership, all partners routinely deferred to John’s management of the partnership business. He was routinely paid a monthly management fee in addition to drawings (supervised by him) each partner was paid on a monthly basis.
Those drawings were written up by John in his cash book in equal amounts for each of the plaintiffs and himself (representing himself and Winnie), together with his monthly management fee. Winnie played no active role in any part of the partnership business.
The business…

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 Calacoci v Calacoci

Details

AGLC: Calacoci v Calacoci [2020] NSWSC 476
Case: [2020] NSWSC 476
Decision Date: 08 May 2020

CaseChat Overview and Summary

The case of Calacoci v Calacoci involved a dispute between two siblings who were involved in a partnership that had not been documented in writing. The siblings had been operating a business together, but disagreements arose regarding the dissolution of the partnership, the winding up of the partnership business, and the distribution of partnership assets. The matter was heard in the Supreme Court of Victoria.

The primary legal issues the court had to address were whether an oral partnership agreement was valid and enforceable, and if so, what the entitlements of each party were to the capital and profits of the partnership. The court needed to determine the terms of the partnership, whether there were any implied terms, and how the partnership should be wound up in accordance with those terms. Additionally, the court had to consider the implications of the partnership's dissolution on the distribution of assets.

The court found that, despite the absence of a written partnership agreement, an oral agreement existed and was binding. The court inferred the terms of the partnership from the conduct of the parties and their statements. It was held that the partnership was to be wound up by selling the partnership assets and distributing the proceeds according to the shares of the partners. The court determined the respective entitlements of each party based on the evidence presented regarding their contributions to the partnership and the profits generated. Ultimately, the court ordered the sale of the partnership assets and the distribution of the proceeds in accordance with the determined entitlements.

Orders