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
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…
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- AGLC
- Cheng v Lam [No 2] [2018] WASC 199
- Case
- [2018] WASC 199
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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