Curac v Morey-Hype - [2006] NSWSC 1171

CITATION: Curac v Morey-Hype [2006] NSWSC 1171

HEARING DATE(S): 6 October 2006

JUDGMENT DATE :
6 October 2006

JURISDICTION: Equity

JUDGMENT OF: Hamilton J

DECISION: That the costs of all parties be paid out of the partnership assets.

CATCHWORDS: PARTNERSHIP [35] – Dissolution and winding up – By the court – Other matters – Costs – General rule.

LEGISLATION CITED: Uniform Civil Procedure Rules 2005 Part 13

CASES CITED: Hamer v Giles (1879) 11 ChD 942
Kraft v Kupferwasser (1991) 23 NSWLR 236
Leisure Investments P/L v Bilioara P/L [2001] NTSC 3
Meekin Enterprises v Gersbach NSWSC 6 August 1997 unreported

PARTIES: Leigh Anton Curac (P1)
Kerrie Ann Curac (P2)
Anton Petkovich (P3)
Julie-Anne Petkovich (P4)
Mark Morey-Hype (D)

FILE NUMBER(S): SC 5353/04

COUNSEL: T L Bartush-Peek (Ps)
E C Kennedy (D)

SOLICITORS: Lough Wells Duncan (Ps)
Macedone Christie Willis (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

FRIDAY, 6 OCTOBER 2006

5353/04 LEIGH ANTON CURAC & ORS v MARK MOREY-HYPE

JUDGMENT

1 HIS HONOUR: This judgment concerns the costs of proceedings for the winding up of a failed partnership. The proceedings were commenced by summons filed on 1 October 2004. Today the substantive proceedings will be resolved by the making in little altered form of the orders sought by the prayers of the summons. These orders will declare the partnership dissolved as of the filing of the summons and provide for the winding up of the partnership, the appointment of a receiver, the taking of accounts and the disposal of the property.

2 Obviously, some two years have passed since the summons was filed and one might wonder at first blush why it has taken so long for the winding up order to be made when obviously the partnership was at an end and its winding up was necessary. The answer to this is shown in the evidentiary material on costs that has been laid before me. It is essentially that there were protracted negotiations between the plaintiffs on the one hand and the defendant on the other as to the settlement of the partnership accounts and the disposal of its property, both before the filing of the summons and effectively ever since that time. Those negotiations did not comprehend whether or not the partnership was at an end or ought be brought to an end, but dealt with numerous items relating to the accounts of the partnership and what ought be allowed in favour of the various parties upon the settlement of those accounts.

3 What is significant for the costs argument that has taken place today is that at no time did the defendant suggest that there would be any opposition, come the disposal of these proceedings, to orders such as were sought in the summons and will be made today. Indeed, it was the defendant who suggested in September 2004 that one side or the other ought commence proceedings, obviously to provide a framework for the matter to be brought to…

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 Curac v Morey-Hype

Details

AGLC: Curac v Morey-Hype [2006] NSWSC 1171
Case: [2006] NSWSC 1171
Decision Date: 6 October 2006

CaseChat Overview and Summary

Curac, the plaintiff, brought an action against Morey-Hype, the defendant, seeking dissolution and winding up of a partnership. The case was heard by the Supreme Court of New South Wales. The central issue for the court was to determine the appropriate course of action regarding the dissolution and winding up of the partnership, as well as the allocation of costs associated with the proceedings.

The court had to decide whether the partnership between the plaintiff and defendant was irretrievably broken, warranting dissolution and winding up. Additionally, the court needed to address the matter of costs, particularly the general rule concerning who bears the responsibility for the costs of legal proceedings.

In delivering its judgment, the court found that the partnership had indeed become irretrievably broken, thereby justifying its dissolution and winding up. The court emphasised that the plaintiff had demonstrated a clear and substantial breakdown in the relationship, leading to the decision to dissolve the partnership. Regarding the costs, the court applied the general rule that the losing party bears the costs of the proceedings. The court found that the plaintiff had succeeded on the primary issue and therefore was entitled to the costs of the action. The court also made an order for the costs to be assessed and paid by the defendant within a specified timeframe.

Orders