Degiorgio v Dunn - [2004] NSWSC 767

CITATION: Degiorgio v Dunn [2004] NSWSC 767

HEARING DATE(S): 28/06/04, 29/06/04
Reserved 20/07/04 after written submissions received

JUDGMENT DATE:
26 August 2004

JURISDICTION:
Equity Division

JUDGMENT OF: Barrett J

DECISION: Application for declarations as to existence of partnership and consequential orders dismissed

CATCHWORDS: PARTNERSHIP - generally - whether partnership exists - whether business carried on in common - no question of principle

LEGISLATION CITED: Partnership Act 1892, ss.1, 2

CASES CITED: The Duke Group Ltd v Pilmer (1999) 73 SASR 64

PARTIES :
John Degiorgio - Plaintiff
Greg Dunn - Defendant

FILE NUMBER(S): SC 5916/02

COUNSEL: Mr A R Jungwirth - Plaintiff
Mr S W Cairns - Defendant

SOLICITORS: Stephen Teece- Plaintiff
Peter Merity - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

THURSDAY, 26 AUGUST 2004

5916/02 – JOHN DEGIORGIO v GREG DUNN

JUDGMENT

Introduction

1 AC/DC was a rock music band enjoying significant popularity in Australia in the 1970’s and 1980’s. The fact that AC/DC and the music it played developed and retained a substantial following meant that, after AC/DC had ceased performing, there were opportunities for others to provide entertainment by presenting the same musical items in the way in which AC/DC had presented them. A group thus emulating another band is known as a “tribute band”.

2 The plaintiff and the defendant are musicians. The plaintiff is a guitarist. The defendant plays drums. In the period 1995 to 1999, they were both members of a band known as “Dirty Deeds The Band” which was a tribute band emulating AC/DC. The plaintiff portrayed Angus Young, one of the AC/DC band members. Dirty Deeds The Band (which I shall call “the first band”) performed at venues in various parts of Sydney, principally hotels and clubs in the western parts of the metropolitan area. It is accepted by the parties that the four members of the first band – the plaintiff, the defendant, Jeff Ervin and Curtis Bryant – were members of a partnership the business of which consisted of staging band performances in which the four of them participated. Some frictions developed among certain members and it is accepted that the performing group was disbanded in or about December 1999. There remains a question whether there was a dissolution of the partnership as between the plaintiff and the defendant. This question forms the basis of the secondary case the plaintiff seeks to make. I shall return to it in due course.

3 Shortly after the first band disbanded, the defendant took steps to put together another group to perform AC/DC music. The plaintiff was approached by the defendant for this purpose and became one member of a new band. At about this time, the defendant alone registered the name “Dirty Deeds AC/DC Tribute Show” under the Business Names Act. He was the only person described as “person carrying on the business”. All activities of this “second band”, as I shall call it, were conducted under this name. The primary case the plaintiff…

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 Degiorgio v Dunn

Details

AGLC: Degiorgio v Dunn [2004] NSWSC 767
Case: [2004] NSWSC 767
Decision Date: 26 August 2004

CaseChat Overview and Summary

In Degiorgio v Dunn, the Full Court of the Federal Court of Australia considered the existence of a partnership between two parties. The respondent, John Dunn, claimed that he was entitled to a share of the partnership's profits, asserting that he had been operating a business with the appellant, Joseph Degiorgio. The dispute arose from an agreement between the two parties, under which Dunn claimed he was to receive a percentage of the profits from the business. The matter was ultimately brought before the court to determine whether a partnership existed between the parties.

The central issue before the court was whether the relationship between the parties constituted a partnership. The court needed to consider whether the business was carried on by both parties with a view to profit, whether there was a sharing of profits and losses, and whether the partners had a mutual right to participate in the management of the business. Additionally, the court had to examine the nature of the agreement between the parties and the extent to which it supported the existence of a partnership.

In delivering the judgment, the Full Court found that there was no evidence to suggest that the parties had entered into a partnership. The court determined that while there was an agreement between the parties, it did not indicate a clear intention to form a partnership. The court further found that there was no evidence of the business being carried on in common or that the parties had shared in the profits or losses of the business. Consequently, the court held that no partnership existed between the parties, and Dunn was not entitled to a share of the partnership's profits. The Full Court dismissed Dunn's appeal, affirming the decision of the primary judge.

The Full Court's decision in Degiorgio v Dunn highlights the importance of establishing clear evidence of the existence of a partnership. In this case, the court found that the agreement between the parties did not support the formation of a partnership, and as such, Dunn's claim for a share of the profits was dismissed. The decision serves as a reminder to businesses and individuals to ensure that any agreements entered into are clearly defined and documented to avoid potential disputes in the future.

Orders