Christian v Cooper - [2020] QSC 224

SUPREME COURT OF QUEENSLAND

CITATION:

Christian v Cooper [2020] QSC 224

PARTIES:

JOHN CHRISTIAN

(Plaintiff)

v

TIMOTHY COOPER

(Defendant)

FILE NO/S:

BS No 1780 of 2017

DIVISION:

Trial Division

PROCEEDING:

Trial

DELIVERED ON:

24 July 2020

DELIVERED AT:

Brisbane

HEARING DATES:

15, 16, 17, 18, 19 and 26 June 2020

JUDGE:

Bowskill J

ORDERS:

The plaintiff’s claim is dismissed.

CATCHWORDS:

PARTNERSHIP – GENERALLY – FACTS AND AGREEMENTS EVIDENCING PARTNERSHIP – PARTNERSHIP IN FACT – CONSIDERATION OF INTENTION OR RELATIONSHIP –– where the plaintiff and the defendant were friends who had known each other for many years and became involved in gambling on horse racing using a suite of computer software comprising different components, which they were variously responsible for creating and maintaining – where the plaintiff contends the commercial relationship between the parties was a partnership, with the suite of software used for gambling being an asset of the partnership – where the defendant had been involved in similar gambling arrangements, with other people, previously, and contends there was no partnership, merely a wagering syndicate agreement between the parties, which either party was free to bring to an end at any time – whether the gambling activities could be characterised as the conduct of a business – whether the parties were conducting any such business “in common” within the meaning of s 5 of the Partnership Act 1891

Partnership Act 1891 (Qld) ss 5, 6

Babka v Federal Commissioner of Taxation (1989) 89 ALR 373
Brajkovich v Federal Commissioner of Taxation (1989) 89 ALR 408
Camden v McKenzie [2008] 1 Qd R 39
Canny Gabriel Castle Jackson Advertising Pty Ltd v Volume Sales (Finance) Pty Ltd (1974) 131 CLR 321
Commissioner of Taxation v Visy Industries USA Pty Ltd [2012] FCAFC 106
Evans v Federal Commissioner of Taxation (1989) 20 ATR 922
Fox v Percy (2003) 214 CLR 118
Jafari v 23 Developments Pty Ltd [2019] VSCA 201
Jones v Federal Commissioner of Taxation (1932) 2 ATD 16
Sales (Finance) Pty Ltd (1974) 131 CLR 321
Salib v Gakas [2010] NSWSC 505
Trautwein v Federal Commissioner of Taxation (No 2) (1935) 56 CLR 196
United Dominions Corporation Ltd v Brian Pty Ltd (1985) 157 CLR 1
Visy Industries USA Pty Ltd v Commissioner of Taxation [2011] FCA 1065
Wiltshire v Kuenzli (1945) 63 WN (NSW) 47

COUNSEL:
A J H Morris QC for the plaintiff

D de Jersey QC for the defendant

SOLICITORS:
Australian Law Partners for the plaintiff

Dundas Lawyers for the defendant

Introduction

The plaintiff, Mr Christian, and the defendant, Mr Cooper, have known each other for many years. They first met in about 2001, when Mr Cooper employed Mr Christian as a computer programmer, to work for a company Mr Cooper then ran with his brother. They subsequently became friends, sharing a joint interest in and love of gambling of various kinds. Mr Cooper is a self-taught computer programmer. He has no formal tertiary qualifications, but is acknowledged to have significant expertise and experience in software development.…

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 Christian v Cooper

Details

AGLC: Christian v Cooper [2020] QSC 224
Case: [2020] QSC 224
Decision Date: 24 July 2020

CaseChat Overview and Summary

Christian and Cooper had been friends for many years before they began gambling on horse racing using a suite of computer software, which they were responsible for creating and maintaining. Christian claimed the relationship between them was a partnership, with the software being a partnership asset. Cooper argued that there was no partnership, but rather a wagering syndicate agreement that either could terminate at any time. The court had to decide whether the gambling activities constituted a business and if the parties were conducting that business "in common."

The court examined whether the relationship between the parties met the statutory definition of a partnership under the Partnership Act 1891. It considered the nature of the activities, the level of control each party exercised, and the intentions of the parties. The court found that the relationship did not meet the statutory definition of a partnership, as it did not find that the parties were conducting the business "in common" as required by the Act. Instead, it found that the arrangement was more akin to a wagering syndicate agreement.

In reaching its decision, the court placed significant weight on the fact that the parties had not formalised their arrangement in any way, nor did they share profits or losses equally. The court also noted that Cooper had previously been involved in similar gambling arrangements with other people, which suggested that the arrangement was not intended to be a partnership. The court concluded that the plaintiff's claim should be dismissed.

The court dismissed the plaintiff's claim in its entirety, finding that the relationship between the parties was not a partnership within the meaning of the Partnership Act 1891. The court made no orders for costs.

Orders

Orders of the court

The plaintiff’s claim is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Christian v Cooper [2020] QSC 224
PARTIES:	JOHN CHRISTIAN (Plaintiff) v TIMOTHY COOPER (Defendant)
FILE NO/S:	BS No 1780 of 2017
DIVISION:	Trial Division
PROCEEDING:	Trial
DELIVERED ON:	24 July 2020
DELIVERED AT:	Brisbane
HEARING DATES:	15, 16, 17, 18, 19 and 26 June 2020
JUDGE:	Bowskill J
ORDERS:	The plaintiff’s claim is dismissed.
CATCHWORDS:	PARTNERSHIP – GENERALLY – FACTS AND AGREEMENTS EVIDENCING PARTNERSHIP – PARTNERSHIP IN FACT – CONSIDERATION OF INTENTION OR RELATIONSHIP –– where the plaintiff and the defendant were friends who had known each other for many years and became involved in gambling on horse racing using a suite of computer software comprising different components, which they were variously responsible for creating and maintaining – where the plaintiff contends the commercial relationship between the parties was a partnership, with the suite of software used for gambling being an asset of the partnership – where the defendant had been involved in similar gambling arrangements, with other people, previously, and contends there was no partnership, merely a wagering syndicate agreement between the parties, which either party was free to bring to an end at any time – whether the gambling activities could be characterised as the conduct of a business – whether the parties were conducting any such business “in common” within the meaning of s 5 of the Partnership Act 1891 Partnership Act 1891 (Qld) ss 5, 6 Babka v Federal Commissioner of Taxation (1989) 89 ALR 373 Brajkovich v Federal Commissioner of Taxation (1989) 89 ALR 408 Camden v McKenzie [2008] 1 Qd R 39 Canny Gabriel Castle Jackson Advertising Pty Ltd v Volume Sales (Finance) Pty Ltd (1974) 131 CLR 321 Commissioner of Taxation v Visy Industries USA Pty Ltd [2012] FCAFC 106 Evans v Federal Commissioner of Taxation (1989) 20 ATR 922 Fox v Percy (2003) 214 CLR 118 Jafari v 23 Developments Pty Ltd [2019] VSCA 201 Jones v Federal Commissioner of Taxation (1932) 2 ATD 16 Sales (Finance) Pty Ltd (1974) 131 CLR 321 Salib v Gakas [2010] NSWSC 505 Trautwein v Federal Commissioner of Taxation (No 2) (1935) 56 CLR 196 United Dominions Corporation Ltd v Brian Pty Ltd (1985) 157 CLR 1 Visy Industries USA Pty Ltd v Commissioner of Taxation [2011] FCA 1065 Wiltshire v Kuenzli (1945) 63 WN (NSW) 47
COUNSEL:	A J H Morris QC for the plaintiff D de Jersey QC for the defendant
SOLICITORS:	Australian Law Partners for the plaintiff Dundas Lawyers for the defendant