Clifford v Clifford - [2025] TASSC 29

[2025] TASSC 29

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Clifford v Clifford [2025] TASSC 29
PARTIES:	CLIFFORD, Carolyn Iris
v
CLIFFORD, Robert Raymond
FILE NO:	975/2019
DELIVERED ON:	29 May 2025
DELIVERED AT:	Hobart
HEARING DATE:	24 June 2024
JUDGMENT OF:	Brett J
CATCHWORDS:

Partnership - Facts and agreements evidencing partnership – Partnership in fact – Consideration of intention or relationship – Partnership found to be in existence notwithstanding lack of express agreement.

Aust Dig Partnership [1001]

Partnership – Partnership property – Nature of interest of partner – Partner's estate found to have an equal interest in ultimate residue upon winding up.

Aust Dig Partnership [1039]

Personal Property – Ownership and possession – Co-ownership – Joint ownership – Severance – Joint tenancy severed by testamentary agreement to leave each parties share to his respective spouse.

Aust Dig Personal Property [1011]

Legislation:
Lands Titles Act 1980
Living Marine Resources Management Act 1995
Partnership Act 1891
Fisheries Rock Lobster Rules 2022

Supreme Court Rules 2000

Cases cited:
Abela v Public Trustee (1983) 8 Fam LR 951
Burgess v Ransley (1976) 1 Ch 429
Jafari v 23 Developments Pty Ltd [2019] VSCA 201
Lindsay v Lindsay [2014] FamCA 401
Mischel Holdings Pty Ltd v Mischel [2013] VSCA 375
O'Brien v Komesaroff [1982] HCA 33, 150 CLR 310
Rae and Partners Pty v Shaw [2020] TASFC 14
Saitannis v Katsolis [2022] NSWSC 1468
Saleeba v Wilke [2007] QSC 298
Tasmanian Seafoods Pty Ltd v MacQueen [2005] TASSC 36
Wild v Meduri & Ors [2023] NSWSC 113
Wright v Gibbons (1949) 78 CLR 313

REPRESENTATION:

Counsel:

Plaintiff: J Sawyer
Defendant: P Zeeman

Solicitors:

Plaintiff: Chris Boland Lawyers
Defendant: Tierney Law

Judgment Number:	[2025] TASSC 29
Number of paragraphs:	86

Serial No 29/2025 File No 975/2019

CAROLYN IRIS CLIFFORD v ROBERT RAYMOND CLIFFORD

REASONS FOR JUDGMENT

BRETT J
29 May 2025

1 This case concerns the ownership of licences and associated entitlements related to the commercial fishing of rock lobster in Tasmania. To borrow from the submissions of plaintiff's counsel, I will refer to the licences and entitlements collectively as the fishing licences. Although I will describe their nature in more detail shortly, it is common ground in this case that the fishing licences, including the associated entitlements, constitute property capable of beneficial ownership, including co- ownership.
2 In 1991, the defendant, his wife Lesley and their son Michael, decided to commence a fishing business. They purchased a rock lobster fishing vessel and associated licences and entitlements, and commenced operating the vessel from Eaglehawk Neck. The defendant and Michael had previously purchased a block of land with a house on it in Eaglehawk Neck. When they started the fishing business, they moved into the house and set up a workshop on this land from which they offered a variety of repair and other services to the local community. They both had wide ranging trade qualifications and skills relevant to such services. This business was conducted in conjunction…

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 Clifford v Clifford

Details

AGLC: Clifford v Clifford [2025] TASSC 29
Case: [2025] TASSC 29
Decision Date: 29 May 2025

CaseChat Overview and Summary

The case of Clifford v Clifford involved a dispute between the parties, Clifford and Clifford, concerning the existence of a partnership and the division of profits. The matter was heard by the court, which had to determine whether a partnership was indeed in existence, despite the absence of a formal agreement. The central legal issues the court had to address were whether the conduct and agreements of the parties demonstrated the existence of a partnership and if so, what the nature and terms of that partnership were. The court needed to consider whether the intention of the parties, as inferred from their conduct and agreements, was sufficient to establish a partnership, even in the absence of an explicit written agreement.

The court found that the conduct and agreements of the parties evidenced a partnership in fact. It held that the intention of the parties and their relationship were paramount in determining the existence of a partnership. The court emphasised that the absence of a formal agreement did not preclude the existence of a partnership if the circumstances demonstrated otherwise. The court concluded that the conduct and agreements of the parties, including the sharing of profits and losses and the involvement in the business, were consistent with a partnership arrangement. The court determined that the intention of the parties to carry on a business together and their relationship were sufficient to establish the existence of a partnership.

The court ordered that the partnership be recognised and that the profits be divided according to the terms inferred from the conduct and agreements of the parties. The decision underscored the importance of examining the actual relationship and conduct of the parties to determine the existence of a partnership, rather than relying solely on the absence of a formal agreement. This case provides a useful reminder that the courts will look beyond the formalities and consider the substance of the relationship and conduct when determining whether a partnership exists.

Orders