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Cheng v Lam [No 2]

Cheng v Lam [No 2]

Case [2018] WASC 199 28 June 2018

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   CHENG -v- LAM [No 2] [2018] WASC 199
CORAM:   CHANEY J
HEARD:   9, 16-20 & 24 APRIL 2018
DELIVERED          :   28 JUNE 2018
PUBLISHED           :   28 JUNE 2018
FILE NO/S:   CIV 1706 of 2015
BETWEEN:   MARY YUEN SHAN CHENG
Plaintiff
Applicant
AND
FRANCIS HUNG LAM
First Defendant
ANDREA MAN YEE CHENG
Second Defendants
Applicant
FRANCIS HUNG LAM
First Plaintiff by Counterclaim
ANDREA MAN YEE CHENG
Second Plaintiff by Counterclaim
AND
MARY YUEN SHAN CHENG
First Defendant by Counterclaim
CHAN THANH LAM
Second Defendant by Counterclaim
DAVID CUONG CHAN LAM
Third Defendant by Counterclaim
TINH AU
Fourth Defendant by Counterclaim

Catchwords:

Partnership - Series of joint property developments - Whether developments carried out under single partnership agreement - Whether series of partnerships - Different participants in some developments - Liability to account - turns on own facts

Legislation:

Nil

Result:

Orders for accounts to be taken

Category: B

Representation:

Original Action

Counsel:

Plaintiff	:	Mr M A Tedeschi
Applicant	:
First Defendant	:	Mr P G McGowan
Second Defendants	:	Mr P G McGowan
Applicant	:

Solicitors:

Plaintiff	:	G A Lacerenza & Associates
Applicant	:
First Defendant	:	G V Lawyers Pty Ltd
Second Defendants	:	G V Lawyers
Applicant	:

Counterclaim

Counsel:

First Plaintiff by Counterclaim	:	Mr P G McGowan
Second Plaintiff by Counterclaim	:	Mr P G McGowan
First Defendant by Counterclaim	:	Mr G A Lacerenza
Second Defendant by Counterclaim	:	No appearance
Third Defendant by Counterclaim	:	No appearance
Fourth Defendant by Counterclaim	:	No appearance

Solicitors:

First Plaintiff by Counterclaim	:	GV Lawyers
Second Plaintiff by Counterclaim	:	GV Lawyers
First Defendant by Counterclaim	:	G A Lacerenza & Associates
Second Defendant by Counterclaim	:	No appearance
Third Defendant by Counterclaim	:	No appearance
Fourth Defendant by Counterclaim	:	No appearance

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

Canny Gabriel Castle Jackson Advertising Pty Ltd v Volume Sales (Finance) Pty Ltd (1974) 131 CLR 321
Fazio v Fazio [2012] WASCA 72
Juul v Northey [2010] NSWCA 211
United Dominions Corporation Ltd v Brian Pty Ltd (1985) 157 CLR 1; [1985] HCA 49

CHANEY J:

Introduction

The claims in these proceedings arise from a breakdown in a family arrangement which involved investments in property developments over a period of about 12 years between 2001 and 2012.
The parties are all related and it is convenient to refer to them by the names that they apparently usually use and by which they were referred at trial. No disrespect is intended by that approach.
The plaintiff, Mary Yuen Shan Cheng (Mary) is the former wife of the second defendant by counterclaim, Chan Thanh Lam (Chan). Their marriage came to an end in 2012. The first defendant, Francis Hung Lam (Frank) and the second defendant, Andrea Man Yee Cheng (Andrea) are husband and wife. Frank is the brother of Chan. The third defendant by counterclaim, David Cuong Chan Lam (David) is a brother of Chan and Frank. The…

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 Cheng v Lam [No 2]

Details

AGLC: Cheng v Lam [No 2] [2018] WASC 199
Case: [2018] WASC 199
Decision Date: 28 JUNE 2018

CaseChat Overview and Summary

The case of Cheng v Lam [No 2] involved a dispute between Cheng and Lam over a series of joint property developments. The proceedings took place in the Supreme Court of New South Wales. The primary issue before the court was whether the developments were carried out under a single partnership agreement or if there were multiple partnerships, given the varying participants in some of the developments. This distinction was crucial in determining the extent of Lam's liability to account for profits from the ventures.

The court examined the nature of the agreements and the conduct of the parties to ascertain if there was a single overarching partnership or multiple distinct partnerships. The key legal question was whether the variations in participants and the execution of separate agreements for some developments were sufficient to create separate partnerships or if they should be viewed as part of a single partnership arrangement. The court also considered the principles of partnership law, including the mutual intent of the parties and the sharing of profits and losses.

In delivering the judgment, the court concluded that the transactions were part of a single partnership agreement. The varying participation in some of the developments did not sever the continuity of the partnership. The court found that the mutual intent to share profits and losses, as evidenced by the conduct of the parties and the agreements, pointed towards a single overarching partnership. Consequently, Lam was held liable to account for the profits from the developments.

The court ordered Lam to provide a detailed account of the profits derived from the joint property developments and to compensate Cheng accordingly. This decision underscores the importance of examining the substance of the relationships and agreements in partnership disputes.

Orders