Fazio v Fazio

[2012] WASCA 72

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   FAZIO -v- FAZIO [2012] WASCA 72

CORAM:   PULLIN JA

NEWNES JA
MURPHY JA

HEARD:   16, 17 & 18 NOVEMBER 2011

DELIVERED          :   29 MARCH 2012

FILE NO/S:   CACV 111 of 2010

BETWEEN:   GIACOMINO FAZIO

Appellant

AND

RIDOLFO FAZIO
First Respondent

GIUSEPPINA FAZIO
Second Respondent

SEBASTIANO CATALANO
ROSARIA CATALANO
Third Respondents

MARK ANTHONY CONLAN as Executor of the Estate of VINCENZO FAZIO (Dec)
Fourth Respondent

ANHAM NOMINEES PTY LTD
Fifth Respondent

ROADSTONE QUARRIES PTY LTD
Sixth Respondent

DANEHILL NOMINEES PTY LTD
Seventh Respondent

DANGAN NOMINEES PTY LTD
Eighth Respondent

ITALIA HOLDINGS PTY LTD
Ninth Respondent

RENMORE PTY LTD
Tenth Respondent

ITALIA STONE GROUP PTY LTD
Eleventh Respondent

BLUELAND HOLDINGS PTY LTD
Twelfth Respondent

RIDGECAP PTY LTD
Thirteenth Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :MARTIN CJ

Citation  :FAZIO -v- FAZIO [2010] WASC 263

File No  :CIV 1245 of 2008

Catchwords:

Partnership - Inferred agreement - Relevance of subsequent conduct - Release of interest - Accord and satisfaction - Abandonment - Repudiation - Inferences - Jones v Dunkel - Whether judge's findings beyond pleaded case - Sufficiency of evidence - Business records - Proprietary estoppel

Legislation:

Partnership Act 1895 (WA), s 7(1), s 7(2), s 8(3), s 16, s 29, s 33, s 37, s 42, s 43(a), s 43(b), s 44, s 45, s 50, s 51, s 57

Result:

Appeal dismissed

Category:    A

Representation:

Counsel:

Appellant:     Mr D H Solomon & Mr C S Williams

First Respondent           :     Mr C L Zelestis QC & Mr M N Solomon

Second Respondent      :     Mr C L Zelestis QC & Mr M N Solomon

Third Respondents        :     Mr C L Zelestis QC & Mr M N Solomon

Fourth Respondent        :     No appearance

Fifth Respondent           :     Mr C L Zelestis QC & Mr M N Solomon

Sixth Respondent          :     Mr C L Zelestis QC & Mr M N Solomon

Seventh Respondent      :     Mr C L Zelestis QC & Mr M N Solomon

Eighth Respondent        :     Mr C L Zelestis QC & Mr M N Solomon

Ninth Respondent          :     Mr C L Zelestis QC & Mr M N Solomon

Tenth Respondent         :     Mr C L Zelestis QC & Mr M N Solomon

Eleventh Respondent     :     Mr C L Zelestis QC & Mr M N Solomon

Twelfth Respondent      :     Mr C L Zelestis QC & Mr M N Solomon

Thirteenth Respondent    :     Mr C L Zelestis QC & Mr M N Solomon

Solicitors:

Appellant:     Solomon Brothers

First Respondent           :     Jackson McDonald

Second Respondent      :     Jackson McDonald

Third Respondents        :     Jackson McDonald

Fourth Respondent        :     No appearance

Fifth Respondent           :     Jackson McDonald

Sixth Respondent          :     Jackson McDonald

Seventh Respondent      :     Jackson McDonald

Eighth Respondent        :     Jackson McDonald

Ninth Respondent          :     Jackson McDonald

Tenth Respondent         :     Jackson McDonald

Eleventh Respondent     :     Jackson McDonald

Twelfth Respondent      :     Jackson McDonald

Thirteenth Respondent    :     Jackson McDonald

Case(s) referred to in judgment(s):

Adler v Australian Securities and Investments Commission [2003] NSWCA 131; (2003) 179 FLR 1

Agricultural & Rural Finance Pty Ltd v Gardiner [2008] HCA 57; (2008) 238 CLR 570

Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542

ALH Group Property Holdings Pty Ltd v Chief Commissioner of State Revenue [2012] HCA 6

Allen v Carbone [1975] HCA 14; (1975) 132 CLR 528

Australian Securities and Investments Commission v Rich [2009] NSWSC 1229; (2009) 236 FLR 1

Banque Commerciale SA (in liq) v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279

Barnes v Addy (1874) LR 9 Ch 244

Barnes v Alderton [2008] NSWSC 107

Barrier Wharfs Ltd v W Scott Fell & Co Ltd [1908] HCA 88; (1908) 5 CLR 647

Beattie and Sutherland v Osman (No 4) [2009] NSWSC 834

Bell Group Ltd (in liq) v Westpac Banking Corporation (No 9) and (No 10) [2008] WASC 239; [2009] WASC 107; (2008) 39 WAR 1

Blatch v Archer (1774) 1 Cowp 63

Booth v Booth [1935] HCA 15; (1935) 53 CLR 1

Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1

Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61; (2001) 53 NSWLR 153

Brandi v Mingot (1976) 12 ALR 551

Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424

Brown v Wren Brothers [1895] 1 QB 390

Butler v Wilson [2011] NSWSC 262

Canny Gabriel Castle Jackson Advertising Pty Ltd v Volume Sales (Finance) Pty Ltd [1974] HCA 22; (1974) 131 CLR 321

Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314

Commissioner of State Taxation of the State of South Australia v Cyril Henschke Pty Ltd [2010] HCA 43; (2010) 242 CLR 508

Connell v Bond Corporation Pty Ltd (1992) 8 WAR 352

DHJPM Pty Ltd v Blackthorn Resources Ltd (formerly called AIM Resources Ltd) [2011] NSWCA 348

Dilosa v Latec Finance Pty Ltd (1966) 84 WN (Pt 1) (NSW) 557

DTR Nominees Pty Ltd v Mona Homes Proprietary Ltd [1978] HCA 12; (1978) 138 CLR 423

EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd [2010] WASCA 78; (2010) 41 WAR 23

Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523

Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; (2002) 209 CLR 95

Farah Constructions Pty Ltd v Say‑Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89

Fazio v Fazio [2010] WASC 263

Federal Commissioner of Taxation v Everett [1980] HCA 6; (1980) 143 CLR 440

Festic v Atkinson (Unreported, WASCA, Library No 8484, 19 September 1990)

Fifteenth Eestin Nominees Pty Ltd v Rosenberg [2009] VSCA 112; (2009) 24 VR 155

Fitzgerald v Masters [1956] HCA 53; (1956) 95 CLR 420

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118

G v H [1994] HCA 48; (1994) 181 CLR 387

Geraghty v Minter [1972] HCA 42; (1972) 142 CLR 177

Gillett v Holt [2001] Ch 210

Gould & Birbeck & Bacon v Mount Oxide Mines Ltd (in liq) [1916] HCA 81; (1916) 22 CLR 490

HML v The Queen [2008] HCA 16; (2008) 235 CLR 334

Holloway v McFeeters [1956] HCA 25; (1956) 94 CLR 470

Hughes v NM Superannuation Pty Ltd (1993) 29 NSWLR 653

Integrated Computer Services Pty Ltd v Digital Equipment Corporation (Aust) Pty Ltd (1988) 5 BPR 11,110

Intelmail Explorenet Pty Ltd v Vardanian (No 2) (2009) FCA 1018; (2009) 82 IPR 281

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

Jones v Sutherland Shire Council [1979] 2 NSWLR 206

Jorgensen v Boyce (1896) 22 VLR 408

Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd [2007] HCA 61; (2007) 233 CLR 115

Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361

Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363

Lang v James Morrison & Co Ltd [1911] HCA 49; (1911) 13 CLR 1

Leeder v The State of Western Australia [2008] WASCA 192

Lewis v Lewis [2001] NSWSC 321

Lighting by Design (Aust) Pty Ltd v Cannington Nominees Pty Ltd [2008] WASCA 23; (2008) 35 WAR 520

LJ Hooker Ltd v Dominion Factors Pty Ltd [1963] 63 SR (NSW) 146

Lukin v Lovrinov (Unreported, SASC, Perry J, 9 April 1998)

Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352

MacRobertson Miller Airline Services v Commissioner of State Taxation (WA) [1975] HCA 55; (1975) 133 CLR 125

Manly Council v Byrne [2004] NSWCA 123

Marist Brothers Community Inc v Shire of Harvey (1994) 14 WAR 69

Marminta Pty Ltd v French [2003] QCA 541

Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367

Maslen v Perpetual Executors Trustees & Agency Co (WA) Ltd [1950] HCA 55; (1950) 82 CLR 101

Massoud v NRMA Insurance Ltd (1995) 62 NSWLR 657

McDermott v Black [1940] HCA 4; (1940) 63 CLR 161

Meares v Safecar Security Ltd [1983] QB 54

Moore v Morgan (1900) 21 LR (NSW) Eq 158

Morgan v Babcock & Wilcox Ltd [1929] HCA 25; (1929) 43 CLR 163

Moss v Elphick [1910] 1 KB 846

Mullins v Laughton [2003] 2 WLR 1006

Osborn v McDermott [1998] 3 VR 1

Palmer v Moore [1900] AC 293

Paterson v MacKenzie [1921] NZGLR 43

Peacock v Peacock (1809) 2 Camp. 45

Rowella Pty Ltd v Abfam Nominees Pty Ltd [1989] HCA 65; (1989) 168 CLR 301

RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620

Rushton (Qld) Pty Ltd v Rushton (NSW) Pty Ltd [2003] QCA 210; (2003) 1 Qd R 320

Ryder v Frohlich [2004] NSWCA 472

Sanpine v Koompahtoo Local Aboriginal Land Council (2005) NSWSC 365

Scaffidi v Perpetual Trustees Victoria Ltd [2011] WASCA 159

Scott v English [1947] VLR 445

Securities Pty Ltd v Challenger Group Holdings Pty Ltd [2008] NSWCA 193

Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262

Sobell v Boston (1975) 1 WLR 1587

Summers v The Commonwealth [1918] HCA 33; (1918) 25 CLR 144

The Administration of the Territory of Papua and New Guinea v Daera Guba [1973] HCA 59; (1973) 130 CLR 353

The Trustees of the Property of Cummins v Cummins [2006] HCA 6; (2006) 227 CLR 278

Thompson v De Lissa (Unreported, NSWSC, Powell J, 16 February 1990)

Thorner v Major [2009] 1 WLR 776

Truong v Lam [2009] WASCA 217

United Builders Pty Ltd v Mutual Acceptance Ltd [1980] HCA 43; (1980) 144 CLR 673

Vroon BV v Foster's Brewing Group Ltd [1994] 2 VR 32

WA Country Health Service v Wright [No 2] [2010] WASCA 120

Walker v Melham [2007] NSWSC 264

Wallera Pty Ltd v CGM Investments Pty Ltd [2003] FCAFC 279

Watson v Foxman (1995) 49 NSWLR 315

West v Government Insurance Office of NSW [1981] HCA 38; (1981) 148 CLR 62

Williams v The Minister Aboriginal Land Rights Act 1983 and the State of New South Wales [2000] NSWCA 255

Table of Contents

Introduction
The parties and the participants
Overview of the litigation and the judge's findings of agreement

Overview
Judge's finding of agreement

Nature of the appeal and disposition - overview

Introduction
The judge's approach to fact‑finding
Inferences and appellate review
Partnership - principles

Partnership - relation springing from agreement
A partner's interest

Dissolution

Findings of primary fact

The wedding gift of the South Terrace, Fremantle property to Jack and Maria
Partnership business
Jack's interest
Jack's dissatisfaction in mid‑1984
Jack's qualification as a real estate salesman in mid‑1984
Partnership business name - mid to late 1984
Jack's statements of assets and liabilities after 1984
Jack's tax return in respect of the 12‑month period from 1 July 1984 to 30 June 1985
The partnership's accounts and tax return for the 12‑month period from 1 July 1984 to 30 June 1985
Liabilities incurred by the partners - August 1984

Partnership affairs and Jack's role after 1984
Transactions post 1984 relied on by Jack
Jack's other business interests since 1984

Jack's failure between 1984 and 2008, to commence proceedings to assert any interest
The transfer of the Barrett Street property to Jack and Maria July/September 1984
Danehill journal

Discussion and conclusion

The appellant's seven principal propositions
The first principal proposition
The second principal proposition - the transfer of Barrett Street
The third principal proposition
The fourth principal proposition

The proposition
The respondents' pleading
The witnesses
The cases relied on by the appellant and the relevant principles

Disposition

The fifth principal proposition

The proposition
The background

Disposition

The sixth principal proposition
The seventh principal proposition
Ground 4 - overview

Overview

Grounds 4.1 to 4.4
Grounds 4.5 to 4.7 (Mandurah land)
Grounds 4.8 to 4.15 (Barrett Street property)

Background
Grounds of appeal
Disposition of grounds 4.8 to 4.15

Grounds 4.16 to 4.19 (accountant's letter dated 21 January 1985)

Background (reasons [198] ‑ [227])
Grounds of appeal
Disposition of the appeal

Grounds 4.20 and 4.22 (cash payments and Westpac undertakings)
Grounds 4.21 and 4.23 (Interim accounts as at 31 March 1985)

Background

Grounds
Disposition of the grounds

Grounds 4.24 and 4.25 (Mortgage to CBFC)
Ground 4.26 (Partnership accounts after 1984)
Grounds 4.27 & 4.28 (business name form)

Grounds

Background
Disposition of the appeal

Grounds 4.29 & 4.30 (Usual indicia of partnership)

Grounds

Background

Disposition

Grounds 4.31 to 4.43 (Post-1984 transactions)

Grounds

Grounds 4.45 & 4.46 (Sunday dinner in 1994)
Grounds 4.49 to 4.52 (Baptism June 2002 and 2003 correspondence)

Grounds

Disposition

Grounds 4.44, 4.47, 4.48 & 4.53.1 - 4.53.3 (Delay)

Grounds
Background - 1994 - 2003
2006 altercation (reasons [337] ‑ [341]).

Disposition

Grounds 4.54 to 4.57 (alleged retirement - alleged other objective facts)
Grounds 5 and 6 (estoppel claims)

Pleaded claims and background
Grounds of appeal

Disposition

Grounds 1 to 3 of the appeal
Grounds 7, 8 and 9
The notice of contention

Conclusion

1. PULLIN JA:  This is an appeal against a judgment which dismissed the appellant's claim for a declaration that he was a partner in Italia Limestone.  The firm was established in the 1950s.  By the 1960s the partners consisted of three groups, each holding a one‑third share.  One group was the Fazio family, the second the Catalano family and the third the Mignacca family.  The Mignacca and Catalano families were not concerned about how the Fazios held their one‑third interest.  The appellant became a partner in Italia Limestone, taking a share of the Fazio family's one‑third interest, sometime in the late 1960s or early 1970s.  In 1975 the Fazio partners acquired the interests of the Mignacca family.  As a result, the Fazios then held two‑thirds of the partnership and the Catalanos held one‑third. 

2. Mr Fazio senior, the appellant's father, was the dominant figure in the Fazio group.  The appellant worked in the partnership doing physical work.  The appellant fell out with his father and he ceased working for the firm in 1984. 

3. The central issue in the case was whether the appellant and his father reached an agreement whereby the appellant retired from the partnership in 1984.  The retrospectant circumstantial evidence led at trial overwhelmingly revealed that the appellant and the other parties conducted themselves on the basis that the appellant had retired from the partnership and had no further interest in it.  For example, the evidence revealed that the appellant signed a business name form in 1984 which stated that, with effect from 1 July 1984, he ceased to carry on business under the business name of Italia Limestone and the other partners were continuing to carry on business under that name.  The other partners also signed the form and it was lodged with the relevant department.  The evidence also revealed that at no time after October 1984 did the appellant, in many statements of his assets and liabilities, refer to any interest in the partnership either as an asset or a liability.  The subsequent tax returns did not disclose any income from the partnership and the partnership's tax returns made no further mention of the appellant as a partner.  The appellant knew, as was the fact, that he did not receive any share in partnership profits and was not called upon to sign any legal documents relating to partnership affairs.  Unlike the period before 1984, he never received partnership accounts.  He was never called upon to contribute capital to the partnership or to guarantee any borrowings. 

4. Then, nearly 20 years later in 2003, the appellant wrote a letter to the firm's accountants asking for partnership records and asserting that he was a partner.  This request for records was not complied with and the appellant made no similar assertion until after his father died in 2007.  The appellant then commenced proceedings alleging that he was still a partner and seeking, inter alia, a declaration to that effect, a winding up of the partnership and an account.

5. Despite the appellant's denial that he had retired from the firm, the trial judge found that there had been an agreement between the appellant and his father which provided that:

   (a)the appellant would retire from the partnership with effect from 1 July 1984;

   (b)the partnership would continue without there being a winding up of its affairs;

   (c)the appellant would be absolved from any liabilities arising from the future conduct of the partnership business; and

   (d)the appellant and his wife would be given a property in Barrett Street, Spearwood, in consideration for the appellant's surrender of his interest in the partnership.

6. The trial judge inferred that the other partners acquiesced in, and consented to, the agreement between the appellant and his father in those terms, given that they continued to operate the business and to prepare and sign documents which are consistent with that finding (trial judge's reasons [439], [441]).

7. As a result, the appellant's suit was dismissed. 

8. There were nine numbered paragraphs in the grounds of appeal, but there were 57 subgrounds in one of them, each containing a separate allegation of error.  Despite the number of separate allegations of error, they were ineffectual in demonstrating error in the trial judge's finding of an inferred agreement.  They were ineffectual because even if there were merit in those grounds, there were other circumstances found by the trial judge which are unchallenged and which on their own, pointed overwhelmingly to the existence of the agreement.  For example, the list of circumstances found and recorded in the trial judge's reasons at [228] were unchallenged.  That paragraph read:

   The plaintiffs accept that after 1984 none of the usual indicia of partnership suggested that Jack remained a partner in Italia Limestone.  He did not receive any share of partnership profits, nor did he return any partnership income in his own taxation returns.  Given his evidence with respect to the magnitude of the dispute that had arisen in relation to his taxation liability in respect of partnership profits during the year ended 30 June 1984, the significance of this cannot have escaped his attention.  Similarly, he would have been well aware that he was no longer required to pay provisional tax in respect of anticipated partnership profits.  Before 1984 he was called upon to sign legal documents relating to partnership affairs, but after 1984 he was not called upon to sign any such documents.  He never asked for, nor received partnership accounts after 1984, and never enquired, nor was he advised in any detail as to the state of the partnership's assets and liabilities until he asserted an interest in the partnership in December 2003.  He was never called upon to contribute capital to the partnership.  He was not called upon to guarantee any partnership borrowings after 1984, nor was it ever suggested that he would be responsible for partnership debts, notwithstanding the financial difficulties which the partnership suffered in the early 1990s.  Jack also accepts that when preparing statements of his own assets and liabilities for the purpose of borrowing, at no time after 1984 did he refer to a partnership interest in those statements, as either an asset or a liability.

9. The undisputed circumstances and evidence that property, namely real estate in Barrett Street, Spearwood, was transferred to the appellant and his wife around the time of the agreement, supports the trial judge's conclusion that he could infer the existence of the agreement referred to above.

10. In Hughes v NM Superannuation Pty Ltd (1993) 29 NSWLR 653, 670, Sheller JA said:

    As had been said by this Court, in B Seppelt & Sons Ltd v Commissioner for Main Roads (1975) 1 BPR 9147 at 9149 and 9154‑9156, subsequent communications may be taken into consideration as a factor in order to determine whether prior dealings between the parties gave rise to a binding agreement.

    This demonstrates that retrospectant circumstantial evidence is admissible to prove the existence of a contract.  See also the other cases cited by Murphy JA on this subject in his overview to ground 4.

11. During the hearing of the appeal, counsel for the appellant was closely questioned about the primary submission that there was insufficient evidence from which to infer that the appellant did retire as from 1 July 1984 on terms that the remaining partners would continue business in the partnership name.  Counsel for the appellant, who may have recognised the futility of that primary submission, then developed the alternative argument that if there were such an agreement, then there was no evidence that the agreement involved any consideration in exchange for the appellant relinquishing his interest in the partnership;

and that in consequence the appellant was entitled on this alternative basis for relief under s 55 of the Partnership Act 1895 (WA).

1. However, as the trial judge found and as Murphy JA has explained, the evidence revealed that such consideration was paid in the form of the transfer of the Barrett Street property.

2. What is set out above is the essence of the reason why the appellant's claim was correctly dismissed by the trial judge and why the appellant's appeal should be dismissed.  Murphy JA has dealt with the appellant's appeal in much greater detail.  Subject to these reasons, I agree with Murphy JA's reasons dismissing the appeal.  I would also uphold those aspects of the respondent's notice of contention upheld by Murphy JA, for the reasons given by him.

3. NEWNES JA: I agree with Murphy JA, for the reasons his Honour gives, that none of the grounds of appeal has been made out and the appeal should be dismissed. I would add that to the extent the appellant sought to rely on the appeal on an alternative contention that the appellant was entitled to relief under s 55 of the Partnership Act 1895 (WA) because there was no consideration for the relinquishment of his interest in the partnership upon his retirement, that contention must fail. As Murphy JA has set out, the consideration was the transfer to the appellant of the Barrett Street property. I agree with Murphy JA in relation to the notice of contention.

   MURPHY JA: 

Introduction

1. This is an appeal from a judgment in which the primary judge dismissed a claim by a son in a family partnership dispute concerning disputed events going back to the 1960s.  The family was the Fazio family.  The appellant and his wife commenced proceedings after the appellant's father, the senior member of the family and, historically, the driving force behind the family's interest in the partnership, had passed away.  The appellant and his wife contended that the appellant remained a partner of the partnership until it was dissolved upon the death of the appellant's father in 2007.  The first to third respondents (the other partners) denied this.  The appellant and his wife also contended that the appellant's brother had never been admitted to the partnership.

1. Broadly speaking, the principal issues in the case at trial were whether the appellant's brother had been admitted to the partnership and whether an agreement had been made in or about mid‑1984, under which the appellant had agreed, for consideration, to retire from the partnership and to relinquish his interest in it, with effect from 1 July 1984.  There were also estoppel claims, including a claim that the father's estate, the mother, and the brother, held one‑third of the non‑partnership family assets on trust for the appellant.

2. The primary judge found that the appellant's brother had been made a partner of the partnership.  He also held that by an agreement made in mid‑1984, the appellant had retired from the partnership and relinquished his interest in it, the consideration for which involved the appellant and his wife being given, for no payment, a property in Barrett Street, Spearwood (the 'Barrett Street property'). 

3. The second, but not the first, finding is under challenge in this appeal.  The estoppel claims were dismissed and the dismissal of one of the estoppel claims is also under challenge.  Although the appellant's wife was a plaintiff in the action below, she was not an appellant in this appeal.

4. The appeal should be dismissed.

5. The respondents, by notice of contention, allege that the primary judge's decision should be upheld on additional grounds, including that the appellant had, it is to be inferred, abandoned his interest in the partnership in favour of the other Fazio members.  Had it been necessary, I would have allowed the notice of contention on this particular ground. 

The parties and the participants

1. These reasons will, in large measure, adopt the terminology used by the primary judge in identifying the parties and the participants in the events the subject of the proceedings: 

   •Italia Limestone Company (Italia Limestone) - the business name of the partnership in question.

   •The Fazio family - various members of whom were partners of the relevant partnership.

   •Vince (or Vincenzo) Fazio - the (late) father of the appellant and his siblings.

   •Giuseppina - Vince's wife and the mother of the appellant and his siblings.

   •The appellant - Jack (or Giacomino).

   •Maria - Jack's wife.

   •Rudy (or Ridolfo) - Jack's brother and the other son of Vince and Giuseppina.

   •Sarina - the sister of Jack and Rudy and the daughter of Vince and Giuseppina.

   •The Catalanos - the family which held a one‑third interest in the partnership.  The relevant family members are Sebastiano (also called Sam) Catalano and his wife, Rosaria Catalano.

   •The Mignaccas - the family which held an interest in the partnership up to about early 1976 and thereafter ceased to have an interest in it.

   •Danehill Nominees Pty Ltd - a trustee company, the units in which were, in effect, held as to two‑thirds by the Fazio family (through Anham Nominees Pty Ltd as trustee for the V Fazio Family Trust) and as to one‑third by the Catalano family (through Dangan Nominees Pty Ltd as trustee for the Catalano Family Trust).

Overview of the litigation and the judge's findings of agreement

Overview

1. The judge gave the following overview of the litigation:  Fazio v Fazio [2010] WASC 263 [1] ‑ [8], [345].

2. Vince and his wife Giuseppina Fazio, migrated to Australia from Italy in 1952 with their 3‑month‑old son, Jack.  Their second child, Rudy, was born in Perth in 1961.  Their third child, Sarina, was born in Sicily in 1967 while the family was visiting Italy.

3. In 1956 Vince started a limestone quarrying and stone masonry business known as Italia Limestone, in partnership with a number of other Italian immigrants.  The composition of the partnership changed over the years, as some proprietors left, and were replaced by others.  By the late 1960s, the proprietors of the business were members of the Fazio family, members of the Catalano family and members of the Mignacca family.  At some point around then, or perhaps in the early 1970s, Vince and Giuseppina brought Jack into the partnership, giving him an equal portion of their share in the partnership business.  In December 1975, the Fazio partners, in effect, acquired the interest of the Mignacca partners, whereafter the Fazio partners held two‑thirds of the interest in the partnership, and the Catalano partners held one‑third.

4. Jack worked in the partnership business and was paid wages.  However, there was disharmony between Jack and his father, Vince, and in 1984, Jack ceased to work in the business.  Generally speaking, after 1984, the documents and records relating to the partnership do not record or suggest that Jack remained a partner.

5. The relationship between Jack and his father deteriorated further over time, and, in the last five years of Vince's life, there were a number of incidents involving hostility and aggression between the two of them.  Jack's relationship with his father impacted adversely upon his relationship with his siblings, and he became estranged from them, as well as from his parents.

6. In the latter part of 2003, Jack wrote to the partnership accountants seeking access to all partnership records which they held, and contending that he was a partner.  The accountants did not state a definitive position on the subject of his interest in the partnership, but refused him access to the partnership records which they held. 

7. Vince died on 5 August 2007. 

8. Despite some fluctuating fortunes, particularly in the early part of the 1990s, when the business was under significant financial pressure, the partnership's business prospered, and assets were acquired by various corporate entities related to and controlled by the proprietors of the partnership.  Often those assets included land in proximity to the outer suburbs of Perth, which was quarried for limestone used in building houses and in other construction work in those suburbs, or in coastal groynes.  As Perth expanded in size, the business became a substantial enterprise, and had a significant turnover.

9. The proceedings were commenced by Jack and his wife, Maria, on 12 March 2008. 

10. Under Vince's Will, Vince left Jack $1 million and conferred financial benefits on Jack's and Maria's children.

Judge's finding of agreement

1. The primary judge found, in effect, that there was an agreement, for consideration, for Jack to retire from the partnership and relinquish his interest in it with effect from 1 July 1984, and that the agreement was made in the middle of 1984.  His Honour's findings are summarised at [439] ‑ [441]:

   I find that at some point around the middle of 1984, it was agreed between Jack and Vince that Jack would retire from the partnership with effect from 1 July 1984, on the following terms:

   (a)the partnership would continue, without there being a winding up of its affairs;

   (b)Jack would be absolved from any liabilities arising from the future conduct of the partnership business; and

   (c)Jack and Maria would be given the lot in Barrett Street, Spearwood in consideration for Jack's surrender of his interest in the partnership.

   The defendants asserted that it was also agreed that Vince would pay for the cost of architect's plans for the house to be built in Barrett Street, as part of the consideration for Jack's retirement from the partnership.  However, the evidence falls short of establishing that connection.

   It is to be inferred that the other partners acquiesced in, and consented to the agreement between Jack and his father in these terms, given that they continued to operate the business, and to prepare and sign documents which are consistent with this finding.

2. The appellant accepted, as did the respondents, that the finding in [439] is to the effect that it is to be inferred that there was an express (oral) agreement between Jack and Vince, in the terms stated, made in mid‑1984.  The appellant contended, however, that on the proper construction of the judge's reasons, the judge did not find an agreement under which the other partners were bound.  This contention is addressed later in these reasons. 

Nature of the appeal and disposition - overview

Introduction

1. The scope and detail of the appellant's challenges in this appeal are considerable, to say the least.  Whilst there are only nine grounds of appeal, ground 4 alleges 57 separate errors, many of which contain multiple contentions.  It was to ground 4 that most of the arguments, in written and oral form, were directed in the appeal.  The errors alleged in ground 4 all attack the finding that the first to third respondents had established that Jack had retired from the partnership in 1984.  Grounds 1 to 3 alleged other very discrete errors in relation to partnership issues, and grounds 5 and 6 attacked certain estoppel findings.  The grounds of appeal, in their totality, contend in effect that the judge fundamentally erred in his approach to fact‑finding.

2. Interspersed amongst the errors alleged in the grounds, and, in particular ground 4, were, it seems to me, seven principal propositions contended for by the appellant.  These seven propositions are, I think, conveniently addressed together, rather than where they expressly or implicitly appear in their manifestations in support of various grounds.  Accordingly, I will address those seven propositions before addressing, in detail, each of the appellant's grounds and contentions in support of the grounds.  After dealing with the seven propositions, I will address grounds 4.1 to 4.57, then grounds 5 and 6, then grounds 1 to 3 and finally grounds 8 and 9.

3. Even before dealing with the appellant's seven principal propositions, it is appropriate to explain, in broad overview, why the appeal, with respect to the partnership issues, must fail.  I will do that in the remaining parts of this section of these reasons, under the following subheadings:

   (a)The judge's approach to fact‑finding;

   (b)Inferences and appellate review;

   (c)Partnership - principles;

   (d)Findings of primary fact; and

   (e)Discussion and conclusion.

The judge's approach to fact‑finding

1. In relation to his general approach to fact‑finding, the judge said (reasons [49]):

   A significant number of witnesses were called, including many (but not all) of the principal players.  Of course, one of the most significant players, Vince, is deceased.  The other principal witnesses were required to give evidence of events which took place over the course of many years.  One of the most significant periods in the history of the various events involving the Fazio family which were addressed by the evidence was the period between 1982 and 1984, leading up to Jack's departure from full‑time engagement in the Italia Limestone business.  That period was more than 25 years prior to the trial.  It would not be reasonable to expect any witness to have a precise recollection of the exact sequence of events, or of particular dates, or of the precise terms used in conversations at that time.  Accordingly, I have allowed a significant degree of latitude in evaluating evidence given by witnesses of events and conversations which took place many years ago.

2. The judge then referred to the schism and conflict within the Fazio family and continued (reasons [51] ‑ [52]):

   Given the inherent doubts which must attend oral recollections of events which occurred many years ago, in most instances decades earlier, and the partiality of most of the witnesses, I have placed significant weight upon contemporaneous documentary evidence and upon the inferences properly drawn from that evidence.  Where it is possible to establish objective facts from that evidence, I have then assessed the oral testimony in light of the inherent probabilities of a particular version of events, in the context of the established objective facts.

   I am not convinced that any witness gave evidence which he or she knew to be false.  As will be seen, however, I have in many instances rejected the oral testimony that was given by one or other witness as a result of the process I have just described.  In those instances, generally speaking, I consider that the evidence which I have rejected was given because of the insidious influence and effect of the family conflict which I have described upon the honest recollection and perception of the witness.

3. The judge also indicated that for the most part, he did not rely on the demeanour of the witnesses in making findings of fact. However, he was critical, in particular, of certain non‑party witnesses called by the respondents and had some reservations about the evidence of Rudy and Sarina, based on their demeanour (reasons [53] ‑ [55]).

4. With respect to Jack and his wife Maria, his Honour said that the impression he formed from their demeanour was that, in general, they were doing their best to provide truthful answers to the questions provided, but nevertheless their perception and the accuracy of their recollections had been overtaken by the conflict to which his Honour had referred. In some instances, his Honour concluded 'that their evidence had been fashioned to assist the case which they [sought] to advance' (reasons [53]).

5. The judge rejected Jack and Maria's evidence on numerous issues (eg, reasons [151], [193], [223], [245], [267], [277], [308], [322], [340]). In relation to the partnership issues, the judge also made express adverse findings about Jack's credibility on important matters, including, at least on some occasions, having regard to demeanour. In relation to one matter, for example, his Honour said that Jack's 'dissembling answers, and his reluctance to acknowledge that his evidence‑in‑chief was wrong, when plainly it was, reflect adversely upon his general credibility' [94]. The judge also said that Jack's 'transparently disingenuous attempts to distort the true nature of [one] transaction reflect adversely on his credibility generally' [151]; that Maria's evidence on an aspect of a matter concerning the Barrett Street property 'was not given confidently or plausibly' [173]; that Jack's explanation of a matter in cross‑examination was 'plainly an invention' [215]; that Jack's cross‑examination on another matter told 'very strongly against his credibility generally' [266]; and that in relation to the possession of certain partnership financial documents, the evidence of Jack and Maria 'was given in an attempt to avoid the obvious forensic significance of their discovery of those documents' [378].

6. The judge's observations of the inherent doubts which must attend oral recollections of events occurring many years earlier echoed the observations of the plurality in West v Government Insurance Office of NSW [1981] HCA 38; (1981) 148 CLR 62, 69 that (in an accident case in which four passengers were not called) the 'delay [of over 10 years] between accident and trial would surely have grossly affected the recollection of those witnesses of such a long‑past event'.

7. It is also to be observed that the judge's general approach in placing significant weight on contemporaneous documents and in evaluating oral testimony in the light of the inherent probabilities of the event in question is broadly consistent with the approach referred to by the Victorian Court of Appeal in Fifteenth Eestin Nominees Pty Ltd v Rosenberg [2009] VSCA 112; (2009) 24 VR 155. In that case, involving a family dispute, the court said at [112] ‑ [113]:

   The witnesses were giving evidence many years after the representations had allegedly been made.  The circumstances make applicable the approach described by Tamberlin J in Lake Cumbeline Pty Ltd v Effem Foods Pty Ltd (t/as Uncle Ben's of Australia) (in a passage cited with approval by the High Court when it upheld his Honour's decision):

   '[Given the lapse of time] between the events and conversations raised in evidence and the hearing of the evidence before me, the only safe course is to place primary emphasis on the objective factual surrounding material and the inherent commercial probabilities, together with the documentation tendered in evidence. In circumstances where the events took place so long ago, it must be an exceptional witness whose undocumented testimony can be unreservedly relied on. The witnesses in this case unfortunately did not come within that exceptional class. The discussions referred to in evidence were capable of bearing quite opposed meanings depending on subtle differences of nuance and emphasis, and a proper appreciation of the significance of those matters must necessarily be considerably diminished over such a long period of time.'

   Difficulties of recollection are likely, in our view, to be even greater in a case such as the present, where the dispute in question concerns dealings between members of the same family about family finances and inheritance. Recollections of what was said, or intended, are inevitably clouded by the overlay of emotion and by the intrusion of individual hopes and expectations and feelings of entitlement. The emotional overlay is all the more significant where, as here, those contending that promises were made, and relied on, are seeking to make good their sense of disappointed expectations.  (footnotes omitted)

8. The limited reliance on demeanour adopted by the judge also accords with the tenor of the observations of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [31]:

   Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances.  Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical.  (footnotes omitted)

   Reference may also be made to Watson v Foxman (1995) 49 NSWLR 315, 318 ‑ 319 in this regard.

Inferences and appellate review

1. Much of the appeal was concerned with the drawing of inferences by the primary judge.  It is convenient at the outset to mention the relevant principles.

2. The drawing of an inference is 'an exercise of the ordinary powers of human reason in the light of human experience':  G v H [1994] HCA 48; (1994) 181 CLR 387, 390. In Morgan v Babcock & Wilcox Ltd [1929] HCA 25; (1929) 43 CLR 163, 173, Knox CJ and Dixon J said that the matter 'must inevitably be judged by considering whether general human experience would be contradicted, if the proved facts were unaccompanied by the fact sought to be proved'; see also Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367, 385; Jones v Sutherland Shire Council [1979] 2 NSWLR 206, 222 ‑ 227. In Martin v Osborne, Evatt J said that in the 'ordered processes of logical thought ... regard must be had to every hypothesis which can compete with the hypothesis suggested by experience and knowledge of human affairs' (381).  His Honour observed that in that case the course of argument 'laid bare the paucity both in number and quality of the hypotheses which might be advanced' as alternative explanations for the hypothesis suggested by experience and knowledge of human affairs in that case. 

3. Martin v Osborne was a criminal case in which the respondent was charged with driving a commercial passenger vehicle on a particular day, whilst unlicensed.  The informant was required to prove, beyond reasonable doubt, that the passengers on the day in question were being carried for reward.  The informant did not call direct evidence from any passengers of payment for carriage.  The informant did call evidence to show that the defendant had, on the two preceding days, and the day in question, carried people between Melbourne and Ballarat.  Evidence of the fact of carriage on the two preceding days had been objected to.  Latham CJ, Dixon, Evatt and McTiernan JJ (Starke J dissenting) held that the evidence was admissible to show that the respondent was operating the car regularly for the carriage of passengers between the two places and held that, from this fact, the proper inference was that the respondent was doing so for reward, including on the day in question.  Hence the prosecution's case was proved.  The inference was properly drawn in proof of the offence, notwithstanding the absence of direct evidence from any passengers.  (See especially Latham CJ (370); Dixon J (377 ‑ 378); Evatt J (380 ‑ 381, 401 ‑ 402); McTiernan J (404).)

4. The drawing of inferences was referred to by the High Court in Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1, 5 in the following terms, quoted in Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352, 358:

   Of course as far as logical consistency goes many hypotheses may be put which the evidence does not exclude positively. But this is a civil and not a criminal case. We are concerned with probabilities, not with possibilities. The difference between the criminal standard of proof in its application to circumstantial evidence and the civil is that in the former the facts must be such as to exclude reasonable hypotheses consistent with innocence, while in the latter you need only circumstances raising a more probable inference in favour of what is alleged. In questions of this sort, where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture: see per Lord Robson, Richard Evans & Co Ltd v Astley [1911] AC 674, at p 687. But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise: cf per Lord Loreburn above, at p 678.  (emphasis added)

5. See also Holloway v McFeeters [1956] HCA 25; (1956) 94 CLR 470, 480 ‑ 481; Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298, 304 ‑ 305, 309 ‑ 310; and see The Trustees of the Property of Cummins v Cummins [2006] HCA 6; (2006) 227 CLR 278 [45] ‑ [48] in relation to an assessment, on the facts of that case, of competing hypotheses in the drawing of inferences.

6. Characterisation of a reasoning process between permissible inference and conjecture often occurs on a continuum, in which there may be no bright line division:  cf Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262 [84].

7. In order for an appellate court to interfere with a trial judge's findings of fact, it is necessary for an appellant to demonstrate error by the trial judge:  Fox v Percy [27]; Leeder v The State of Western Australia [2008] WASCA 192 [84]; Adler v Australian Securities and Investments Commission [2003] NSWCA 131; (2003) 179 FLR 1 [16] ‑ [17]; Williams v The Minister Aboriginal Land Rights Act 1983 and the State of New South Wales [2000] NSWCA 255 [60]; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 [23] ‑ [28]. In Williams v The Minister Aboriginal Land Rights Act [60], Heydon JA (as his Honour then was) said (Spigelman CJ & Sheller JA agreeing):

   The plaintiff bore the burden in the appeal not merely of showing that on the facts her contentions might be available or even correct, but of showing that the trial judge's conclusions ought to be reversed.  The plaintiff made only limited challenges to the credit-based findings of the trial judge.  Most of her challenges were to inferences drawn, or characterisations made, by the trial judge.  Even in relation to those challenges, however, the Court of Appeal is in the same position as that ascribed to the Full Federal Court in Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359 at 369 per Beaumont and Lee JJ:

   '... the court is not obliged to proceed to make new findings of fact on all relevant issues and discharge the judgment appealed from if those findings differ from those of the trial judge and do not support the judgment.  The court must be satisfied that the judgment of the trial judge is erroneous and it may be so satisfied if it reaches the conclusion that the trial judge failed to draw inferences that should have been drawn from the facts established by the evidence.  The court is unlikely to be satisfied if all that is shown is that the trial judge made a choice between competing inferences, being a choice the court may not have been inclined to make but not a choice the trial judge should not have made.  Where the majority judgment in Warren v Coombes [(1979) 142 CLR 531] (at 552-553) states that an appellate court must not shrink from giving effect to its own conclusion, it is speaking of a conclusion that the decision of the trial judge is wrong and that it should be corrected. (See also Edwards v Noble (1971) 125 CLR 296, per Barwick CJ (at 304), per Menzies J (at 308-309) and per Walsh J (at 318-319).)'

Partnership - principles

1. Numerous arguments by the parties centred upon the nature of partnership, the nature of a partner's interest in a partnership, and the legal effect of dissolution.  It is convenient to outline the relevant principles at this point.

Partnership - relation springing from agreement

1. Partnership is the relation which exists between persons carrying on business in common with a view to profit: s 7(1) of the Partnership Act 1895 (WA). Partnership is a relation springing from agreement, express or implied: Booth v Booth [1935] HCA 15; (1935) 53 CLR 1, 27. Under the general law, the agreement may be inferred from the circumstances proved in evidence: Peacock v Peacock (1809) 2 Camp. 45; the court may impute to the parties a tacit agreement to operate a business as partners: Booth v Booth (27). The general law principle is reflected, in this State, in s 7(2) of the Partnership Act, which provides that in deciding whether a partnership does or does not exist, the court may have regard to the contract and intention of the parties as appearing from the whole of the facts of the case. See also s 29 of the Partnership Act, which provides that the mutual rights and duties of partners, whether ascertained by agreement or defined by the statute, may be varied by the consent of all the partners, and such consent may be either express or inferred from a course of dealing.

2. Where a person is said to be a partner of a business, it is necessary to consider whether the business is being conducted by the persons conducting it, both on their own behalf, and as agent for the person alleged to be a partner:  Lang v James Morrison & Co Ltd [1911] HCA 49; (1911) 13 CLR 1, 11; Paterson v MacKenzie [1921] NZGLR 43, 44.

A partner's interest

1. A partner's interest in a partnership is an equitable chose in action:  Federal Commissioner of Taxation v Everett [1980] HCA 6; (1980) 143 CLR 440, 446 ‑ 447; United Builders Pty Ltd v Mutual Acceptance Ltd [1980] HCA 43; (1980) 144 CLR 673, 688; Commissioner of State Taxation of the State of South Australia v Cyril Henschke Pty Ltd [2010] HCA 43; (2010) 242 CLR 508 [27] ‑ [28].

2. The right is not a title to specific property, but a right to the partner's portion of the surplus after the realisation of assets and the payment of liabilities: s 33 of the Partnership Act; Canny Gabriel Castle Jackson Advertising Pty Ltd v Volume Sales (Finance) Pty Ltd [1974] HCA 22; (1974) 131 CLR 321, 327 ‑ 328. The interest of each partner can be finally ascertained only upon completion of the winding‑up and the identification of any surplus share: Commissioner of State Taxation v Cyril Henschke Pty Ltd [25].

3. This reasoning is reflected in a provision such as s 50 of the Partnership Act:  Commissioner of State Taxation v Cyril Henschke Pty Ltd [25]. Section 50 provides, in effect, that a partner is 'entitled' to have the assets applied to the payment of the partnership's (or firm's) debts and liabilities and to have the surplus assets applied in what is due to the partners (usually on the taking of accounts). The entitlement includes, in the absence of agreement to the contrary, the sale of the goodwill of the partnership business: s 51. By s 57 of the Partnership Act, in settling accounts between the partners after a dissolution, the statutory regime therein set out is to be applied, subject to any agreement to the contrary, leading to what is referred to as the 'ultimate residue' to be shared amongst the partners in the proportions in which profits are divisible. The 'ultimate residue' in s 57(3)(d) relates to the surplus remaining after external creditors have been paid (subpar (a)), and the partners have received out of the assets of the partnership a return of the advances they had made and of the capital they had contributed (subpars (b) and (c)). The 'ultimate residue' is in the nature of profit and not capital: Rowella Pty Ltd v Abfam Nominees Pty Ltd [1989] HCA 65; (1989) 168 CLR 301, 306 ‑ 307.

4. It has also always been accepted that a partner has an interest in every asset in the partnership, and that the interest is a 'beneficial interest' of its own kind (sui generis):  Canny Gabriel (328); Commissioner of State Taxation v Cyril Henschke Pty Ltd [24]; see also Maslen v Perpetual Executors Trustees & Agency Co (WA) Ltd [1950] HCA 55; (1950) 82 CLR 101, 129. The partner's interest before a winding‑up is more than a 'mere equity' for priority purposes, even though the partner's precise entitlement (to the surplus) can only be ascertained once the winding‑up of the partnership has been completed: Canny Gabriel (328); Commissioner of State Taxation v Cyril Henschke Pty Ltd [26].  It is a present beneficial interest in the nature of a proprietary interest:  Connell v Bond Corporation Pty Ltd (1992) 8 WAR 352, 365. Thus, even in an insolvent partnership in respect of which there will be a deficiency, and not a surplus, there is, nonetheless, a proprietary interest in such assets as constitute the partnership property pending realisation: Connell v Bond (368).

Dissolution

1. A partnership may be 'dissolved' in the sense of terminated or determined - as opposed to 'dissolved' in the other sense in which it is sometimes used to connote the winding‑up of the business - in a variety of ways.  (As to dissolution in the sense of termination, see, eg, Lindley and Banks on Partnership (19th ed, 2010) [24‑01]; Geraghty v Minter [1979] HCA 42; (1979) 142 CLR 177, 180 ‑ 181, 181 ‑ 182, 190 ‑ 192.) Dissolution in the sense of termination can include, for example, subject to any agreement to the contrary, dissolution by the death or bankruptcy of a partner (s 44 of the Partnership Act), or where the partnership was for a fixed term or a single venture and the fixed period has expired or the single venture has terminated (s 43(a) and (b)). 

2. A partnership may also be determined by curial decree in a variety of specified circumstances, including where an order is made on a 'just and equitable' ground:  s 46. 

3. A partnership is also dissolved by the happening of an event which makes it unlawful to carry on the business: s 45.

4. A partnership (whether for a fixed term or at will) may be determined by mutual agreement: Maslen v Perpetual Executor Trustees (112); Lindley and Banks on Partnership [24‑04].

5. The statute provides that in the case of a partnership for a fixed term, a partner may not retire except, in effect, by the consent or agreement of the other partners: s 36. The statute also provides that for a partnership where no fixed term is agreed, a partner may, unilaterally, determine the partnership by giving written notice to the other partners: s 37(1). Such written notice does not have to be given under seal, even where the original partnership agreement was constituted by a deed: s 37(2). Unless the partners otherwise agree, the partnership is dissolved on the date specified in the notice or, if no date is specified, as from the date of the communication of the notice: subs (c) and the concluding words of s 43. (Note also the overlap between s 37 and s 43 generally, which is discussed in relation to the broadly equivalent English provisions (s 26 and s 32) in Lindley and Banks on Partnership [9‑01] ‑ [9‑03], and where the learned authors observe, in effect, that both sections (and not just s 43), will take effect subject to any agreement between the partners to the contrary - see also Moss v Elphick [1910] 1 KB 846).

6. A retirement of a partner, mutually agreed or unilaterally effective, has the consequence of dissolving the partnership:  Commissioner of State Taxation v Cyril Henschke Pty Ltd [11]. 

7. Where a partner retires by mutual agreement on terms that the remaining partners will continue in partnership and take on the assets and liabilities of the old firm, without a break in the continuity of the business, the dissolution of the firm effected by the retirement of the partner is in the nature of what is often called a 'technical dissolution', or a 'notional dissolution' and the 'continuing' partners are, in point of law, operating a new partnership:  see Commissioner of State Taxation v Cyril Henschke Pty Ltd  [11] ‑ [12], [19], [24] ‑ [29]; Lindley and Banks on Partnership [19‑09], [24‑01] ‑ [24‑04]; Rushton (Qld) Pty Ltd v Rushton (NSW) Pty Ltd [2003] QCA 210; (2003) 1 Qd R 320 [9]. As McPherson JA observed, however, in Rushton v Rushton [9], the reference to a 'technical' or 'notional' dissolution is somewhat of a misnomer, because it is not the dissolution itself, but the winding‑up which is notional.  Where there is a binding agreement involving a 'technical dissolution' of the former partnership, with consideration being given for the retiring partner's chose in action, the former partner's chose in action is extinguished by accord and satisfaction:  Commissioner of State Taxation v Cyril Henschke Pty Ltd [19], [28]. 

8. Dixon J in McDermott v Black [1940] HCA 4; (1940) 63 CLR 161 said at 183 ‑ 185:

   The essence of accord and satisfaction is the acceptance by the plaintiff of something in place of his cause of action. What he takes is a matter depending on his own consent or agreement. It may be a promise or contract or it may be the act or thing promised. But, whatever it is, until it is provided and accepted the cause of action remains alive and unimpaired. The accord is the agreement or consent to accept the satisfaction. Until the satisfaction is given the accord remains executory and cannot bar the claim. The distinction between an accord executory and an accord and satisfaction remains as valid and as important as ever. An accord executory neither extinguishes the old cause of action nor affords a new one.

   ...

   The distinction depends on what exactly is agreed to be taken in place of the existing cause of action or claim. An executory promise or series of promises given in consideration of the abandonment of the claim may be accepted in substitution or satisfaction of the existing liability. Or, on the other hand, promises may be given by the party liable that he will satisfy the claim by doing an act, making over a thing or paying an ascertained sum of money and the other party may agree to accept, not the promise, but the act, thing or money in satisfaction of his claim. If the agreement is to accept the promise in satisfaction, the discharge of the liability is immediate; if the performance, then there is no discharge unless and until the promise is performed.

9. There may also be accord and conditional satisfaction:  Scott v English [1947] VLR 445, 453; Osborn v McDermott [1998] 3 VR 1; Scaffidi v Perpetual Trustees Victoria Ltd [2011] WASCA 159 [27] ‑ [33].

10. Where there is a retirement by agreement, the agreement may be formal (eg, as reflected in the formal instrument in Commissioner of State Taxation v Cyril Henschke Pty Ltd), or informal, including partly or wholly oral, or partly or wholly inferred.  Sobell v Boston (1975) 1 WLR 1587 appears to be an example of an oral agreement, which had been executed (see Goff J, as his Lordship then was, at 1588 ‑ 1590) where, although it is not clear, the court arguably inferred or implied a term of the agreement as to how the retiring partner's interest was agreed to be dealt with - see Truong v Lam [2009] WASCA 217 [27]. Insofar as the term was inferred or implied, it appears to have been aided by the circumstance that the agreement had been executed, and was not merely executory (1590 ‑ 1591). On the implications of terms in executed contracts, see the authorities collected in Lewison K and Hughes B, The Interpretation of Contracts in Australia (2012) [6.19].

11. As to inferred or at least partly inferred agreements respecting dissolution on the departure of a partner, see, for example, Jorgensen v Boyce (1896) 22 VLR 408; Palmer v Moore [1900] AC 293, and in the court below - Moore v Morgan (1900) 21 LR (NSW) Eq 158; Fitzgerald v Masters [1956] HCA 53; (1956) 95 CLR 420, 431, 439 ‑ 440; Cutts v Holland [1965] TAS SR 69, 71 ‑ 72; Thompson v De Lissa (Unreported, NSWSC, Powell J, 16 February 1990), 52; Lukin v Lovrinov (Unreported, SASC, Perry J, 9 April 1998), 22.

12. In the cases of Palmer v Moore, Cutts v Holland and Lukin v Lovrinov, the inferred agreement in question has been described as an 'abandonment'.  See also in this regard Ryder v Frohlich [2004] NSWCA 472 [135] ‑ [152]; Walker v Melham [2007] NSWSC 264 [28].

13. Some caution, however, may be required in using the word 'abandonment' with respect to an inferred agreement for dissolution, as the word may connote two different types of agreement.  One is in the usual sense of abandonment, or abrogation, as an inferred agreement for the discharge of the contract involving the mutual release of future, unperformed obligations:  DTR Nominees Pty Ltd v Mona Homes Proprietary Ltd [1978] HCA 12; (1978) 138 CLR 423, 434; see also Carter J W, Carter's Breach of Contract (2011) [12‑18] and the cases there cited.  Such an abandonment of the executory obligations and promises of the partnership agreement does not effect, in itself, a release of the outgoing partner's interest, and the outgoing partner may enforce such existing rights as he or she has consistent with the terms, ascertained and properly construed, of the agreement for retirement and subject to any statutory or equitable constraints on relief:  see, for example, Walker v Melham [28].  In that case, the plaintiff and the defendant became partners in about 1979 and carried on a business of house cladding and window fitting.  In 1984, they purchased an area of land as tenants in common in equal shares, upon which they constructed, and operated, a ski lodge.  It was a term of their agreement that both partners would contribute towards the day‑to‑day management and control of the ski lodge business.  They did so up to and including the 1993 ski season.  However, prior to the commencement of the 1994 season, their relationship deteriorated and the plaintiff decided to embark on a new business in Sydney.  In May 1994, the parties had an acrimonious meeting, following which they went their separate ways.  The judge, in the circumstances of that case, inferred an abandonment or abrogation of the contract with respect to future performance, but not an abandonment of the plaintiff's interest. 

1. The second type of agreement involves not just the mutual release of future performance, but also an agreed release of the outgoing partner's existing equitable chose in action represented by his or her interest in the partnership - see, eg, Jorgensen v Boyce; Palmer v Moore.  In the latter case, at (297), the Privy Council referred to the relevant abandonment in terms of the outgoing partner having 'totally abandoned his interest in favour of his co‑adventurers' (emphasis added). 

2. Where the outgoing partner's chose in action is 'released' in favour of the 'continuing partners', pursuant to an agreement, the effect is to enlarge the interests of the 'continuing partners' in the assets to be applied by them in the conduct of the business of the new partnership:  Commissioner of State Taxation v Cyril Henschke Pty Ltd [28] ‑ [29].

3. The abandonment of a contract, in the sense of the mutual release of future obligations, being an inferred agreement, does not depend upon the subjective intention of the parties, but upon whether their conduct (both acts and omissions) viewed objectively manifests an intention to discharge the contract:  Summers v The Commonwealth [1918] HCA 33; (1918) 25 CLR 144, 151 ‑ 152; Wallera Pty Ltd v CGM Investments Pty Ltd [2003] FCAFC 279 [2], [40], [57]; DTR Nominees Pty Ltd v Mona Homes Pty Ltd (434); Marminta Pty Ltd v French [2003] QCA 541 [21] ‑ [22]. The length of the term of the agreement is a matter of some relevance in assessing the likelihood of abandonment: Wallera Pty Ltd v CGM Investments Pty Ltd [50] (Kiefel J (as her Honour then was), Ryan & Gyles JJ agreeing).  It seems to me that the formalities of a particular agreement may also be a relevant factor.  It may, depending on all the circumstances, be more difficult to infer an agreement of abandonment where the parties have, in setting up their contractual relationship, expressed in detail in a formal instrument, the terms of their relationship, including the terms as to termination.

4. Similarly, whether there is an abandonment involving an agreement for release will depend upon the inference to be drawn from the conduct of the parties, viewed objectively.  The topic of inferred agreements is discussed more generally in [188] ‑ [195] below. 

5. I also mention, later in these reasons, the allegation of termination by acceptance of repudiation, raised by the first to third respondents in their notice of contention.  As discussed later, it is unnecessary, for the purposes of the disposition of this appeal, to consider whether a partnership may be terminated by the acceptance of a contractual repudiation:  see Hurst v Bryk [2002] 1 AC 185, cf Ryder v Frohlich [127] ‑ [133]. 

Findings of primary fact

1. There was evidence, which the judge accepted, as to the following matters, upon which the judge, in effect, made findings of primary fact.  Save to the very limited extent indicated below, these findings of primary fact are not challenged in this appeal.

The wedding gift of the South Terrace, Fremantle property to Jack and Maria

1. Vince acquired a property in South Terrace, Fremantle in 1976, and the property was unconditionally gifted to Jack and Maria for their wedding (reasons [90] ‑ [91], [103], [405]).

Partnership business

1. The business of the partnership was largely conducted by the male partners (reasons [362]).

2. Jack understood that, with respect to the Fazio family's interest in the partnership, membership of the partnership was ultimately determined by Vince as the head of the family (reasons [357]).

Jack's interest

1. Jack obtained his interest in the partnership from his parents as a gift (reasons [183], [421]).

Jack's dissatisfaction in mid‑1984

1. Jack's principal efforts on behalf of the partnership had, up to 1984, involved labouring activities.

2. By mid‑1984, Jack had become dissatisfied with his role as a labourer, and the remuneration it provided, and desired to cease work in the limestone business (reasons [405], [437]).  Following an incident on 8 October 1984, he never returned to any labouring or other work in the business (reasons [196] ‑ [197]).

Jack's qualification as a real estate salesman in mid‑1984

1. In mid‑1984 Jack qualified as a real estate salesman and commenced working with another person in a real estate business (reasons [171], [412], [434]).

Partnership business name - mid to late 1984

1. In mid to late 1984, Jack signed a business name form, bearing the date 22 June 1984, which stated that with effect from 1 July 1984 he ceased to carry on business under the business name of Italia Limestone and that the other partners (the Catalanos, and Vince, Giuseppina and Rudy Fazio) were continuing to carry on business under that name.  The document was signed by all the partners, including Jack, and was lodged with the relevant department on 10 October 1984 (reasons [194], [436], [437]).  (The finding that Jack signed the document is challenged in this appeal, but, as explained subsequently, the challenge is unmeritorious.)

Jack's statements of assets and liabilities after 1984

1. Jack, when preparing his own many statements of his assets and liabilities (for the purpose of financing), at no time after October 1984 referred to any interest in the partnership, as either an asset or a liability of his (reasons [407]).

Jack's tax return in respect of the 12‑month period from 1 July 1984 to 30 June 1985

1. Jack knew in the 12‑month period from 1 July 1984 to 30 June 1985 that unlike in previous years, he was no longer being required to pay provisional tax in respect of anticipated partnership profit (reasons [228]).

2. Jack's tax return for the 12‑month period from 1 July 1984 to 30 June 1985 (and other subsequent years) did not disclose any income from the partnership (reasons [228]).

The partnership's accounts and tax return for the 12‑month period from 1 July 1984 to 30 June 1985

1. The partnership's year‑end accounts and tax return for the 12‑month period from 1 July 1984 to 30 June 1985 made no mention of Jack.  They showed the Fazio (two‑thirds) interest in the partnership as being held by Vince, Giuseppina and Rudy Fazio.  The Catalanos continued to hold the other one‑third interest.  See reasons [228], [418], [434].

Liabilities incurred by the partners - August 1984

1. In August 1984, a mortgage document, securing funds advanced to the partners of the limestone business, recorded the names of all the partners with Jack's name typed in the text, but Jack's name had been struck out by hand, with the other partners signing and initialling the document (reasons [414]).

Partnership affairs and Jack's role after 1984

1. In the period after 1984 (reasons [228],  [407]):

   •Jack knew, as was the fact, that he did not receive any share of partnership profits, nor did he return any partnership income in his own taxation returns, and he knew, as was the fact, that he was not required to pay provisional tax in respect of anticipated partnership profits. 

   •Jack was not called upon to sign legal documents relating to partnership affairs, unlike the period prior to 1984.

   •Jack never received partnership accounts and never asked for them, except on two occasions in early 1985 and 2003, when his requests for documents were rejected; nor was he advised, nor did he inquire into, the state of the partnership's assets and liabilities.

   •Jack was never called upon to contribute capital to the partnership. 

   •Jack was not called upon to guarantee any partnership borrowings, nor was it ever suggested that he would be responsible for partnership debts, notwithstanding the financial difficulties which the partnership suffered in the early 1990s. 

Transactions post 1984 relied on by Jack

1. The judge described the above as constituting 'massive hurdles in the path of the plaintiff's proposition that Jack remained, or believed he remained a partner in Italia Limestone after 1984' (reasons [229]).  Jack sought to overcome those hurdles by pointing to a number of transactions subsequent to 1984 which he said showed that he continued as a member of the partnership.  The transactions relied on by Jack for this purpose numbered 13 in total.  At reasons [230] ‑ [308], the judge in each of the 13 cases, rejected the contention that the transaction showed that Jack remained a partner after 1984.  The judge concluded (reasons [309]):

   I have now set out my findings in relation to all the transactions after 1984 upon which the plaintiffs rely.  In general terms, I have not found anything in those transactions which materially advances the plaintiffs' case, and I have found a number of aspects of those transactions which are fundamentally inconsistent with that case.

2. Only the findings with respect to four of the 13 transactions relied upon by Jack at trial are under specific challenge in this appeal.

3. Amongst the findings of fact which are not challenged in relation to the other transactions are the following:

   (a)in relation to the 'Hope Valley' transaction, there is nothing in the dealings which would support Jack's case and, to the contrary, those dealings suggest that Jack and his interests were kept separate and distinct from the interests of the partnership and that dealings between the respective entities were undertaken at arms length (reasons [233]);

   (b)in relation to the 'Flynn Drive quarry' transaction, the proposal was structured in a way which provided Jack with an interest separate and discrete from the partnership's interest, which is fundamentally inconsistent with the proposition that Jack was, or believed he was, a partner in the partnership (reasons [277]);

   (c)in relation to the 'Seabird land', Jack and Maria supplied limestone from it to one of the partnership's competitors, which is inconsistent with the proposition that Jack was, or believed he was, a partner in the partnership (reasons [293]).

Jack's other business interests since 1984

1. Jack had interests in 'many many companies' and had been 'very entrepreneurial' in undertaking property transactions on his own behalf since 1984 (reasons [411]).

Jack's failure between 1984 and 2008, to commence proceedings to assert any interest

1. Jack did not make any written assertion of any interest in the partnership until he requested documents from the partnership's accountants in December 2003, and did not commence proceedings asserting any interest until 2008, after Vince's death (reasons [6], [228], [327] ‑ [333]).

2. Moreover, Jack knew, from at least 2002, that it had been asserted by the Fazio family (Rudy in the presence of Vince) that Jack had no interest in the partnership (reasons [326] ‑ [327]).

The transfer of the Barrett Street property to Jack and Maria July/September 1984

1. In July to September 1984, steps were taken to transfer to Jack and Maria, for no payment by them, a property at Barrett Street, Spearwood, registered in the name of Danehill (the trustee company the units in which were held by companies representing the Fazio and Catalano families in the same proportion as those families held their interest in Italia Limestone - reasons [16]).

2. The Barrett Street property was registered in the name of Jack and Maria on 6 September 1984.  The relevant transfer of the property had been executed on 19 July 1984.

3. A few days earlier, on 16 July 1984, Jack had signed an agreement with 'Fazio Homes' for a house to be built on the Barrett Street property.  See reasons [177] ‑ [178].

Danehill journal

1. There was also admitted into evidence (without any objection under s 79C(6) of the Evidence Act1906 (WA)), the following business record of Danehill.

2. Danehill's journal for the year ended 30 June 1984 recorded (reasons [181]):

   Lot 209 Barrett Street Being property withdrawn for private use.  (Used as settlement for Jack Fazio's share in Italia Limestone.)

Discussion and conclusion

1. On the findings of primary fact referred to in [78] ‑ [97] (ie, without reference to the Barrett Street transaction and the Danehill journal), the following inferences, as discussed below, were open, and capable of being drawn. 

2. First, that Jack had retired from the partnership with effect from 30 June 1984 and that he had done so consensually rather than unilaterally.  There was thereby a termination of the partnership as it had existed up to 30 June 1984.  Secondly, the agreed terms of Jack's retirement included that there would not be a general dissolution, that the other partners would continue to trade under the name of Italia Limestone in a new partnership without Jack, and that the new partnership would take over the assets of the former partnership and use them in the discharge of the debts and liabilities of the former partnership as well as for the discharge of the debts and liabilities of the new partnership.  Thirdly, the inference was open that, upon his retirement, Jack had abandoned or released his interest in the partnership in favour of the Fazio 'continuing' partners.  The inference may be collected from the whole of the conduct of the parties, that is, their acts and omissions in and from mid‑1984.  Jack's conduct, in mid to late 1984, in signing the business name form, commencing work in a real estate business, ceasing any work for Italia Limestone and in failing to assert any claim on or interest in the partnership, may be assessed in light of the fact that in his many statements of assets and liabilities after 1984 in relation to financing, Jack omitted reference to any interest in the partnership.  It is, objectively, unlikely that as an applicant for loan funds, he would have deliberately understated his assets, ie, his right to a surplus from the former partnership (or understated his liabilities if he believed the partnership to be insolvent).  It is also doubtful that a person of his entrepreneurial acumen would have done so by neglect.  It is also to be borne in mind that there was no suggestion at trial or on this appeal, by any party, that there was an express or implied agreement to the effect that Jack's share would be dealt with on the basis that it should be valued and the resulting sum paid to Jack by the 'continuing' partners (cf Sobell v Boston).  In these circumstances, the inference was fairly open, and capable of being drawn, that Jack had no subsisting interest in the former partnership as from 1 July 1984 and that, consequently, his interest had been released.  The corollary of the release, by necessary implication, is that Jack would be indemnified by the Fazio 'continuing' partners in respect of partnership debts and liabilities up to 30 June 1984.  Fourthly, Jack's retirement from the partnership was, in practical terms, principally a decision for the Fazio family members, rather than the Catalanos.  It is to be expected that any such agreement would have been initially reached between Vince as head of the Fazio family, and Jack.  Further, and for similar reasons, it would be expected that any agreement between Vince and Jack in relation to Jack's retirement from the partnership would be agreed to by the other Fazio partners (Giuseppina and Rudy), and the Catalanos.  It would be expected that the other members of the partnership would signify their concurrence by acting upon the basis of the agreement reached between Vince and Jack, rather than by an express restatement of the agreement.

3. In substance, the judge found an agreement along the above lines, subject to the matter to which I will refer in a moment.  As I have indicated, an agreement along these lines was, in my view, fairly open on the evidence to which I have referred.

4. The judge also found, however, an additional element of consideration for the release of Jack's interest in the partnership on his retirement.  His Honour found that it was agreed that Jack and Maria would be given, without payment by them, the Barrett Street property which was, at the time, registered in the name of Danehill.  Danehill was a trustee company, the units in which were, generally speaking, held by companies representing the Catalano and Fazio families in the proportions in which those families held their interests in Italia Limestone.  The transfer from Danehill to Jack and Maria was executed on 19 July 1984.  It was registered on 6 September 1984.  As the judge indicated at [421], the timing of the events concerning the Barrett Street transfer is significant.  The inference is fairly open that the Barrett Street property was part of the arrangement for Jack's retirement from the partnership.  The following matters are particularly significant in this regard:  the timing of the transaction; the fact that Jack and Maria were not required to pay for the property; the fact that they did not pay for the property; the fact that they had been gifted another property (South Terrace) for their wedding present and that it would be difficult to account for Barrett Street as simply parental largesse or benevolence; and the fact that Jack's and Maria's only explanation for the conferral of this benefit, which was the only alternative hypothesis presented at trial, was disbelieved and rejected by the judge.  The inference is confirmed by, but not dependent upon, the Danehill journal entry which records, in terms, the relationship between the two matters.

5. In light of the foregoing, the appeal on the partnership questions must fail.  Jack retired from the partnership pursuant to an agreement which included a term involving the transfer to Jack and Maria of the Barrett Street property, as the judge found.  Alternatively, Jack abandoned his interest in favour of the 'continuing' Fazio partners as alleged in the notice of contention. 

The appellant's seven principal propositions

1. It seemed to me, from the way the appellant's case was presented, that the appellant's submissions centred upon seven principal propositions.  The first was that the judge did not, on the proper construction of his reasons, find an agreement binding all the partners under which Jack resigned from and relinquished his interest in the partnership.  The second was that the judge could not have found an agreement in mid‑1984 to transfer the Barrett Street property as consideration, because the judge had not found that Jack had executed the business name form prior to the transfer of that property to Jack and Maria.  The third was that the judge had committed 'jurisdictional error' by deciding the case on a basis outside of the pleadings.  The fourth was that the judge was not entitled, as a matter of law, to infer the existence of the agreement which he found, because the Catalanos, or at least Sam Catalano, had not been called as a witness.  The fifth was that, putting aside the question of the absence of Mr Catalano's evidence, there was no or insufficient evidence from which the judge could have inferred the existence or terms of the agreement which he found.  The sixth was that the judge erred in placing any reliance on the Danehill journal which recorded that the Barrett Street property was used in settlement of Jack's share in the partnership of Italia Limestone.  The seventh was that the judge erred in not approaching the onus of proof on the basis that  the first to third respondents bore the onus of proving that Jack had not remained a partner.

The first principal proposition

1. The appellant contended that the judge's reasons disclose that he had not found an agreement giving rise to an accord and satisfaction, because the agreement found by the judge was one between Jack and Vince only.  The appellant contended that the judge's reasons show that the other partners had not themselves been parties to an agreement on the terms found by the judge.  The foundation for this submission, as I understand it, is that the words 'acquiescence' and 'consent' are, it is said, generally inapposite to convey the concept of agreement, and that those words cannot be read, in the judge's reasons, in a way which signifies the language of agreement. 

2. I do not accept the submission that the words 'acquiesced in, and consented to' (reasons [441]) are inapposite in this context to convey the notion of an agreement at law.  For example, in MacRobertson Miller Airline Services v Commissioner of State Taxation (WA) [1975] HCA 55; (1975) 133 CLR 125, Stephen J said at 136 ‑ 137:

   This doctrine, of the formation of contracts by offer and acceptance, encounters difficulties when sought to be applied, outside the realms of commerce and conveyancing, to the everyday contractual situations which are a feature of life in modern urban communities. Contracts for the carriage of passengers, one of the most common classes of contract in a commuter society and one which ordinarily involves the attempted imposition of contractual restrictions upon the passenger's rights should he suffer loss or injury, provide an instance of these difficulties....the contract being 'inferred from the acquiescence of the carrier in the presence of the passenger on the conveyance' - Lord Dunedin in Hood v Anchor Line [1918] AC 837 at 846, and see Wilkie v London Passenger Transport Board [1947] 1 All ER 258, per Lord Greene MR, at 259. (emphasis added)

1. Nearly 18 months later, on 19 November 2003, Jack wrote a letter to Vince.  The appellant contends that the judge erred in failing to find that this letter constituted an assertion by Jack, made to his father, that he was a partner.  In my view, the judge was correct to find that Jack did not make that assertion.  It was certainly not express, nor was it implicit.  The letter was a tentative inquiry as to whether Vince (age 76) regarded Jack, as a son, as having equal claim on the family businesses and assets, along with the other two children, Rudy and Sarina.  It is to be recalled in this context that Sarina was never a partner of the partnership.  No doubt Jack thought that, given Vince's age, the time was propitious to make such an inquiry about how the children would be treated.  It was signed 'your Eldest son'.  No error, as alleged, is established.

2. Next, the appellant says that the judge erred in finding that it was improbable that Jack would not have asserted he was a partner, if he had believed that to be the case.  Two reasons are advanced.  One is that Jack had, in cross‑examination, said that he wrote the letter with the assistance of Mr Lombardo.  That may be so, but it was still Jack's letter.  There is no evidence to suggest that Mr Lombardo prevailed upon Jack to omit such a claim.  The second reason advanced is that Jack wrote to the accountant three weeks later and did assert that he was a partner.  Again, I am not persuaded that the judge erred.  Jack's letter dated 8 December 2003 to the accountant indicates that Mr Cattalini had told Jack that he should first obtain Vince's approval, before Mr Cattalini could release partnership documents.  Yet, in the letter apparently written to Vince for that purpose, Jack makes no assertion to his father that he is a partner or that he had an entitlement to partnership documents.  It was evidently easier for Jack to make the claim to the accountant than to make it directly to Vince - the person in the position best to address such a claim on its merits.

3. The next complaint, in effect, invites the court to infer that Jack's understanding of partnership entitlements changed between 1985 and 2003.  There is no evidence to support that claim and the mere fact that there was a lengthy passage of time between those two dates does not in itself provide evidence of the claim.

4. The last complaint is that the judge should not have inferred that Mr Cattalini's letter of 15 December 2003 must have been understood by Jack as consistent only with the adoption of a position that Jack was not a partner.  In my view, the letter would, at least, have signified to Jack, and Jack would have understood, that his claim to be a partner had not been accepted.  That is somewhat different to the precise inference drawn by the judge, but the difference is immaterial.  The ground of appeal (4.52) contends that any error is of such a nature that the judge had erred in the ultimate finding that Jack had retired from the partnership in 1984.  Certainly, no error of that kind is established.

5. Grounds 4.49 to 4.52 have not been made out.

Grounds 4.44, 4.47, 4.48 & 4.53.1 - 4.53.3 (Delay)

Grounds

1. By these grounds, the appellant alleges that the judge erred in law or in fact in finding that Jack had retired from the partnership in 1984 in that the judge erred in:

   (a)finding that the appellant delayed in bringing proceedings when the court should have found that there was no material delay;

   (b)finding that the appellant delayed in asserting his rights after the existence of the rights became contentious, whereas the judge should have found that the rights became contentious in 2002, that Jack asserted his rights in 2003, and that his rights were not denied at any time earlier than 2006;

   (c)finding that a delay by the appellant in asserting his rights cast doubt over whether he believed he was a partner during the period of delay;

   (d)failing to infer that the respondents, or Vince, knew that Jack was a partner from the facts that they had not denied that he was a partner subsequent to the letter of 8 December 2003, that Vince had not instructed solicitors when preparing his Will that Jack had retired, and that the respondents intended to transfer the assets from the sixth respondent (Roadstone Quarries Pty Ltd) to the eleventh respondent (Italia Stone Group Pty Ltd) for the purpose of defeating any claim that Jack might bring.

Background - 1994 - 2003

1. The judge had found that Jack appreciated at Sunday dinner in 1994 that it was asserted that he was not a partner.  Although that finding is challenged (unsuccessfully), the other finding, that Jack knew from the baptism incident in June 2002 that it was asserted that he had no interest in the partnership or the family assets, is not challenged.  Accordingly, it is accepted that Jack knew from at least June 2002 that any interest that he might claim was contentious.

2. I have referred earlier to Jack's letter to his father on 19 November 2003 in which he did not assert any interest in the partnership.  The letter from the accountant dated 15 December 2003 involved a rejection of his claim for partnership documents which Jack did not pursue in Vince's lifetime.  A further two and a half years passed without Jack making any claim to an entitlement to the partnership or the family assets.  In April 2006, however, the claim was made in circumstances involving another family altercation, referred to below. 

2006 altercation (reasons [337] ‑ [341]).

1. Jack's evidence was that in about April 2006, he rang Mr Levin, a solicitor then in the employ of Italia Limestone to organise a meeting with his father.  Jack also rang Mr Cattalini and asked him to attend the meeting to discuss his partnership interest.  According to Jack, he told Mr Cattalini that if he did not receive proper answers, he would place caveats on all the properties held in connection with the business.  Jack attended his father's office for the purposes of the meeting.  He said he heard his father speaking on the telephone to Mr Cattalini about whether Jack could put caveats on company property.  After the call was completed, Jack told Vince that he was there to talk about his partnership interest.  Vince told Jack, in emphatic terms, to leave.  Jack then 'snapped'.  He reacted violently and went on a 'rampage of destruction'.  He 'started to break things including the granite boardroom table, chairs, windows, the front door, picture frames, and so on' (reasons [339]).  Whilst destroying the property he claimed that one third of everything he was breaking (after deducting the Catalanos' interest) was his.  The judge found that this sequence of events was explicable by reference to Jack's understanding that his claim of entitlement was disputed by Vince.  Although Jack denied this to be the case, the judge rejected his evidence.

2. Shortly after the altercation at the office, Mr Levin assisted Vince to obtain a restraining order against Jack. 

3. Shortly after this, Jack said that Mr Levin telephoned him to advise that Vince was looking at his Will, and that Vince would leave everything equally to his children.  Mr Levin denied this.  Although the judge had general reservations about Mr Levin's credibility, he preferred Mr Levin's evidence on this to Jack's.  His Honour regarded Jack's evidence as 'inherently implausible'.

4. His Honour observed that having rejected Jack's evidence, he was 'left with no plausible justification for Jack's failure to commence these proceedings prior to his father's death' (reasons [341]).

Disposition

1. As to the first alleged error, the appellant contends, as I understand it, that there were two compelling reasons why Jack delayed in bringing proceedings.  One was that Jack had been assured by Vince, through Mr Levin, that he would be left one‑third of everything in Vince's Will.  The judge rejected Jack's evidence of this conversation on the basis that it was plainly inconsistent with Jack's rampage and with the fact that Vince, with Mr Levin's assistance, had just obtained a restraining order against Jack.  The judge was undoubtedly correct to find that Jack's evidence was 'inherently implausible'.  

2. The second reason advanced by the appellant is that, in effect, he was, at heart, a dutiful Sicilian son who, out of deference to his father, would not take action whilst his father was alive.  The notion that Jack was restrained by a sense of filial deference is, at least from June 2002, impossible to accept on the evidence and findings of the judge.

3. As to the second alleged error, it is clear that Jack did not assert to Vince (or any other members of the partnership) any rights to an interest in the partnership in 2003.  His letter to the accountant dated 8 December 2003 was unusual in that whilst he claimed an interest in the partnership as a precursor to his request for partnership documents, he had not asserted those rights against Vince.  His recourse to the accountant without directly confronting Vince had led nowhere, and he remained mute with respect to any entitlement to an interest in the partnership for a considerable period of time thereafter.  It is, in my view, inaccurate to say that Jack's rights were 'denied' until 2006.  They had not been relevantly or sufficiently asserted to warrant a denial from the first to third respondents.

4. As to the third alleged error, it is not clear to me whether the appellant asserts that even if the other points with respect to delay fail, it was wrong for the judge to infer that the delay could cast doubt on Jack's asserted belief that he was a partner.  If, as I find, none of the grounds have been made out with respect to delay, it was open to his Honour to infer that Jack's failure to assert his claims cast doubt on his alleged belief that he was a partner.

5. The fourth alleged error raises three points.  The first alleges that it is to be inferred that the partners of the partnership failed to 'deny' that Jack was a partner after 2003 because they knew that he was a partner.  As to this, the appellant accepts in this appeal that Jack knew from June 2002 that it was asserted that he was not a partner.  No positive assertion was then made by Jack directly to any of the partners that he was a partner.  The claim to the accountants, which accompanied a request for partnership documents, was never pursued.  In these circumstances the judge was not in error in not finding that the respondents, by not communicating with Jack to say that he was not a partner, impliedly admitted that he was a partner.  The second and third points are related.  They relate to Vince's plans for the family and his business after his death.  The appellant alleges that neither the instructions for Vince's Will, nor the Will itself, records any agreement by Jack to leave the partnership.  That is so, but more importantly, the documents are consistent with an understanding that Jack was not a member of the partnership.  The succession planning, as the judge found, involved Vince seeking to prevent any attack by Jack on the assets of the partnership.  By this time, in late 2006, Jack had made known his plans to caveat partnership properties.  The succession planning does not reflect an implicit admission that Jack was a partner.  Rather, it reflects an intention, and a calculated and probably characteristic determination by Vince, to ensure that what he perceived to be his orderly succession planning, should not be disrupted by any claim whatsoever by Jack.

6. Grounds 4.44, 4.47, 4.48 and 4.53.1 ‑ 4.53.3 should be dismissed.

Grounds 4.54 to 4.57 (alleged retirement - alleged other objective facts)

1. The appellant alleges that the judge erred in fact or in law in finding that Jack had retired from the partnership in 1984 in that the judge erred in:

   (a)failing to find that the appellant's provision of labour to the partnership during July to October 1984 was inconsistent with the respondents' evidence of his retirement;

   (b)failing to have regard to the fact that the appellant's alleged retirement was not in writing, contrary to s 37 and s 42 of the Partnership Act;

   (c)preferring the evidence of the respondents' handwriting expert to that of the appellant's handwriting expert;

   (d)finding that after 1984 no representations were made to Jack or to Maria to the effect that the appellant was a partner in the partnership when the court should have found that representations of that kind were made as alleged by the appellant.

2. As to the first alleged error, although Jack continued to work as a labourer up to about mid‑October 1984, the judge also found, and it is not challenged, that he had completed his real estate course by this time and had commenced work in real estate as well.  There may have been reasons why it was convenient for Jack to continue to draw wages for a few months after 1 July 1984 from the partnership, but the mere fact that he did so is not inconsistent with the proposition that he retired from the partnership with effect from 1 July 1984 and had the Barrett Street property transferred to him by September 1984 in consideration for his retirement from the partnership. 

3. As to the second alleged error, neither party contended that there was a unilateral retirement by Jack. There was, accordingly, no basis upon which the judge needed to consider whether s 37 of the Partnership Act applied. Nor does the brief and enigmatic reference to s 42 disclose error.

4. As to the third alleged error, the contention that the judge ought to have preferred the evidence of the handwriting expert called by the appellant, remains unexplained and inexplicable.

5. As to the fourth alleged error, the appellant's contentions with respect to the judge's failure to find that representations had been made to Jack and Maria appear as part of grounds 5 and 6 in the appeal.  Accordingly, those matters (which, as will be seen, have no merit) are dealt with when I address those grounds.

6. Grounds 4.54 to 4.57 ought be dismissed.

Grounds 5 and 6 (estoppel claims)

Pleaded claims and background

1. The appellant pleaded two types of estoppel, both equitable in nature.  One was promissory estoppel.  The other was an estoppel concerned with the acquisition of proprietary rights, or proprietary estoppel.

2. The appellant pleaded that on the basis of the estoppels, Jack was beneficially entitled to two‑ninths of the partnership assets, and also to one‑third of the Fazio family assets other than the partnership assets.

3. The appellant's estoppel claims included pleas to the effect that:

   (a)at all material times since 1961 Jack believed and expected that:

   (ii)two‑ninths of the partnership assets were his property; and

   (ii)one‑third of the Fazio family assets, other than the partnership assets, 'were to be transferred to him on or before the death of [Vince]';

   (b)Vince knew of and encouraged, or alternatively induced, those beliefs and expectations; and

   (c)in reliance on those beliefs and expectations, and with the knowledge and encouragement of Vince, Jack contributed to the partnership and contributed to the wealth of the Fazio family in various respects.

4. In the pleaded claim with respect to two‑ninths of the assets of the partnership, it was not alleged that Jack believed that he was a partner, and that all the partners of the partnership were estopped from denying that he was a partner.  Also, it was not alleged that Vince acted with the actual or apparent authority of the partnership, or even with the authority of Giuseppina and Rudy.  Nor was it simply alleged that some portion of Vince's share of the partnership was held on trust for Jack.  Although there was a plea that any property received by Giuseppina and Rudy was impressed with a trust in favour of Jack on the basis that they received property either as volunteers or knowing of Jack's alleged beneficial interest, that plea assumes, rather than purports to establish, the existence of Jack's claimed beneficial interest in the partnership assets.

5. The estoppel plea with respect to one‑third of the Fazio family assets rested in substance on three statements by Vince allegedly made in 1976 and 1977.  The last pleaded act of any arguable detrimental reliance occurred in 1979.  Although Jack also referred to having filled out a form in 1990, his evanescent conduct on that occasion as a cipher could not arguably amount to detrimental reliance to found the estoppel claim to a third of the Fazio family assets.

6. The estoppel claim with respect to one‑third of the Fazio family assets was described by the judge, with some justification, as one of extraordinary breadth (reasons [452]).  In DHJPM Pty Ltd v Blackthorn Resources Ltd  (formerly called AIM Resources Ltd) [2011] NSWCA 348 [44], Meagher JA (Macfarlan JA concurring) observed that:

   [B]ecause of the different characteristics which give rise to the different species of equitable estoppel, it is necessary ... to attend carefully to the identification of the assumption or expectation which the object of the estoppel is said to be estopped from denying or asserting. This also directs attention to the relevant doctrine which must then be applied in a disciplined and principled way. (references and citations omitted)

7. Insofar as it was alleged that Jack believed, from 1961, that he would have one‑third of the Fazio family assets transferred to him 'on or before' Vince's death, it is difficult to discern the true nature and scope of Jack's alleged expectation and belief.  In particular, it is not clear whether it is said that Jack believed that Vince had any right to deal with any of the assets he acquired from time to time in the course of his lifetime without first transferring a third interest in each asset to Jack, or whether Jack believed that Vince could acquire and dispose of assets from time to time over his lifetime, providing either that Vince (in effect on his deathbed) assigned a one‑third interest to Jack with respect to all of the assets then in existence, or Vince made provision to that effect in his will.  A belief of the former kind has an air of commercial unreality about it.  The latter is, for all intents and purposes, a belief or expectation concerning the testamentary intentions of Vince, the fulfilment of which could be contingent upon a variety of tangible and intangible factors which, over a lifetime, might emerge to influence the fortunes and circumstances of the family as a whole and individual members within it, and to affect the bonds and relationships between members of the family.  This appeal may be disposed of without a consideration of whether statements by Vince had the quality of an assurance or promise upon which a proprietary estoppel might be founded:  cf Gillett v Holt [2001] Ch 210, 228 (the very particular circumstances of which were explained in detail at 214 ‑ 224); Barnes v Alderton [2008] NSWSC 107 [53] ‑ [58]; Butler v Wilson [2011] NSWSC 262 [61] ‑ [66]; Thorner v Major [2009] 1 WLR 776. Nor is it necessary to consider whether a necessary element of proprietary estoppel is that the assurances given to the claimant should relate to identified property owned, or about to be owned, by the defendant: cf Thorner v Major [61] ‑ [63].

8. The judge rejected the estoppel claim with respect to the partnership assets (reasons [445] ‑ [449]).  The judge addressed separately, and also rejected, the estoppel claim with respect to one‑third of the Fazio family assets (reasons [452] ‑ [460]).

Grounds of appeal

1. The appellant alleges (with respect to reasons [452] ‑ [460]) that the judge erred in law or in fact in:

   (a)failing to find that the respondents were estopped from denying that the appellant had an entitlement to a one‑third share of the Fazio family assets or that one‑third of the Fazio Family assets were held on trust for the appellant (ground 5);

   (b)finding that no representations were made to Jack or Maria to the effect that the appellant would receive one‑third of the Fazio family's wealth, when the court should have found that such representations were made as alleged (ground 6).

1. A number of preliminary observations may be made about these grounds.  First, they relate (in terms and by reference to the paragraphs the subject of the judge's reasons) only to the estoppel claim with respect to one‑third of the Fazio family assets.  The grounds do not challenge the judge's findings with respect to the partnership estoppel claim.  Secondly, the first ground (ground 5) does not assert, in any comprehensible way, relevant error.  It does not identify any particular errors of fact or law.  This is a case where, on the appellant's pleading, matters relevant to the estoppel case commenced in 1961 and spanned many years thereafter.  Two kinds of equitable estoppel were alleged.  The judge made findings, giving explicit reasons, for rejecting each of the equitable estoppels alleged, and did so by drawing on much of his earlier findings with respect to the relationship between the parties and the course of events over many years.  The ground, to a very serious degree, fails to comply with the requirement as explained by Malcolm CJ in Festic v Atkinson (Unreported, WASCA, Library No 8484, 19 September 1990) that:

   It is essential that grounds of appeal should be formulated with clarity.  The manner in which the learned trial Judge is said to have erred in law or in fact should be clearly identified. 

2. The second ground lacks utility because even if the judge erred in not finding that certain representations were made, the ground does not challenge the findings (reasons [459]) that Jack did not form a belief that he was entitled to one‑third of the assets, and that even if he had formed the belief, he had not acted in reliance on it. 

Disposition

1. The appellant's submissions in support are cursory to the point of being perfunctory.  In this regard, the nature and scope of the submissions in support appear to bear an inversely proportional relationship to the breadth of the first ground (ground 5).

2. Limited as they are, the submissions might also (it is not clear) appear to stray, impermissibly and without leave, into a challenge to the judge's findings with respect to the partnership estoppel claim.  In any event, nothing in the submissions demonstrate any error by the judge (reasons [449]) with respect to the partnership estoppel claim.

3. As to the estoppel claim with respect to one‑third of the Fazio family assets, the submission is to the effect (which is really confined to the second ground of appeal, ground 6) that the judge erred in finding that certain statements were not made by Vince to Jack and Maria because, it is said, the judge found that their demeanour did not warrant the rejection of their evidence.  The appellant referred in that regard to [53] of the judge's reasons, the effect of which I have set out earlier in these reasons.

4. The submissions have no merit.

5. First, the judge said, in effect, that based on their demeanour in court, the impression given was that Jack and Maria were 'in general' doing their best to provide honest and reliable evidence, 'but that their perception, and the accuracy of their recollections, have been overtaken by the [familial] conflict' and, further, that '[i]n some instances ... their evidence has been fashioned to assist the case which they seek to advance' (reasons [53]). Accordingly, even if the adequacy of the judge's findings was to be examined simply by reference to his general observations on demeanour at [53], those observations could not of themselves conceivably support the conclusion that the judge must be in error because he failed to accept Jack's and Maria's evidence.

6. Secondly, in any event, the argument suggests that the judge was required to accept the evidence of Jack and Maria providing that he did not form an unfavourable view as to their demeanour.  That is not so.  In Watson v Foxman, to which I have referred in [44] above, McLelland CJ in Eq said at 319:

   Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions of self‑interest as well as conscious consideration of what should have been said or could have been said.  All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed.  All this is a matter of ordinary human experience.

   Each element of the cause of action must be proved to the reasonable satisfaction of the court, which means that the court 'must feel an actual persuasion of its occurrence or existence'. Such satisfaction is 'not ... attained or established independently of the nature and consequence of the fact or facts to be proved' including the 'seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding':  Helton v Allen 63 CLR 691 at 712.

7. The above observations have been regarded as having general application and as equally applicable to the sufficiency of proof of representations in a claim for equitable estoppel:  Lewis v Lewis [2001] NSWSC 321 [70] (Hodgson J).

8. In this case, the evidence of Jack and Maria was contested in cross‑examination, and was controverted by Giuseppina and Rudy.  Moreover, the judge found (and grounds 5 and 6 do not challenge the findings), that Jack's and Maria's evidence was 'inherently implausible' and inherently improbable (reasons [454], [456] ‑ [457]).  The submission that the judge was bound to accept the evidence of Jack and Maria in these circumstances is misconceived.

9. Thirdly, as already indicated, the findings of an absence of belief and an absence of reliance are not challenged in grounds 5 or 6.

10. Grounds 5 and 6 should be dismissed.

Grounds 1 to 3 of the appeal

1. Grounds 1 to 3 concern the terms of the partnership as it existed in 1968 between three families, the Fazios, the Catalanos and the Mignaccas.  It was not in dispute that the Mignaccas had retired from the partnership by about 1976. 

2. These grounds relate to a document, described on its face as 'Deed of Partnership' and which, on its face, had been executed by the Catalano and Fazio families, but not the Mignaccas.  The typed text of the document referred to June 1968 with a blank space left for the insertion of the relevant date, which had not been completed.

3. The appellant's case at trial was that it should be inferred that this document had been executed by the Mignaccas or, if not executed by the Mignaccas, had been adopted by all the partners as governing the terms of their partnership.  The judge declined to draw that inference and grounds 1 to 3 of the appeal contend, in effect, that the judge erred in not drawing the inference for which the appellant contended.

4. The document was found in Mr Mignacca's papers by his son in 2003 and Mr Mignacca's son first gave it to the appellant in 2007, following the death of the appellant's father. The appellant said, however, that he had seen it in or about 1979 in a box of documents. The judge doubted that he did see it, but noted that the appellant had not asserted that he saw a version of the document signed by the Mignaccas (reasons [75]).

5. The judge's reasons for not inferring that it was executed by the Mignaccas or adopted by the partners as governing the terms of the partnership were, in essence, as follows:

   (a)there was no evidence that the document was ever referred to or relied upon by anyone in the conduct of the partnership: [62];

   (b)the document was prepared by solicitors and it would be expected that the solicitors would secure execution and stamping, yet there is no version of such a document in existence: [68];

   (c)draft documents for the dissolution of the partnership upon the retirement of the Mignaccas in 1976 refer to the business being carried on under a verbal agreement, indicating that someone involved with the partnership had instructed solicitors, at or about that time, that there was no written partnership agreement: [69] ‑ [72];

   (d)although Jack's evidence was that he saw the document in about 1979 at Italia Limestone, he does not assert that he saw a version signed by the Mignaccas: [75];

   (e)no other version of the document has been discovered by any party to these proceedings: [62].

6. None of the above findings are challenged by the appellant.  The appellant, nevertheless, contends that the 'inference properly arising' is that the deed was signed in counterparts, and that the Mignaccas had executed their counterpart and given it to the other families, because otherwise an unsigned version would not have been kept in Mr Mignacca's papers all these years.  The appellant also contends that the respondents' failure to adduce evidence from Giuseppina and the Catalanos 'regarding' the document should result in the court drawing the inferences contended for by the appellant.

7. The judge's unchallenged findings provide sound reasons for rejecting the inferences propounded by the appellant.  No error is shown.  The postulation that an unsigned copy would not have been amongst Mr Mignacca's papers unless there were executed counterparts is mere conjecture.  There was no evidence that the document had been signed by the Mignaccas.  There was no evidence which called for an explanation by the Catalanos or Giuseppina.  The submission that the absence of evidence on the topic by the Catalanos or Giuseppina weighs in favour of the appellant's case on this issue, reflects an impermissible attempt to use the rule in Jones v Dunkel to fill the gaps in the evidence of the appellant's case.

8. Moreover, the point goes nowhere.  At trial the appellant sought to rely on the document on the basis that there were terms to the effect that a partner was prohibited from transferring an interest in the partnership without the consent of the other partners and which gave any of the other partners the right to require a partner in breach of that term to retire from the partnership and to sell his or her interest to the other partners.  The appellant had alleged that Mr and Mrs Fazio had transferred, by gift, part of their interest in the partnership to Rudy in 1976 and thus breached the agreement, entitling the appellant to require his parents to retire from the partnership and to sell their partnership interests to him, which rights he had exercised by notices dated 28 February and 6 March 2008.

9. The judge found, in effect, that even if the terms of the 1968 document did govern the partnership arrangements at the time, the appellant's notice seeking to compel retirement of his parents was not served within one month of the appellant becoming aware of the relevant breach (reasons [66]). The judge found that Rudy was admitted as a partner with the consent of the appellant (reasons [380] ‑ [381]). These findings are not challenged by the appellant. Accordingly, grounds 1 to 3 serve no utility because the appellant had consented to Rudy's admission to the partnership and therefore there was no relevant breach and, in any event, the notice did not comply with the requirements of the document as it was given long after the appellant became aware of Rudy's interest.

10. Grounds 1 to 3 should be dismissed.

Grounds 7, 8 and 9

1. The appellant alleges that the judge erred in law or in fact in finding that none of the assets belonging to the fifth to thirteenth respondents were held in trust for the partners of the partnership. 

2. It is also alleged that the judge erred in law or in fact in finding that the real estate assets used for the purposes of the partnership's trading activities were held by corporate entities in which the partners had an interest equivalent to their interest in the partnership, whereas the judge ought to have found that the shareholdings, and the beneficial interests in trusts for which such entities were trustees, were not held in equivalent proportions to their interest in the partnership. 

3. It was also alleged that the judge erred in law or in fact in finding that the appellant's claim was not pleaded on the basis of invoking the principles in Barnes v Addy (1874) LR 9 Ch 244 and that the court should have found that such a claim was raised by pars 43, 43A and 44 of the statement of claim and its particulars.

4. In light of the conclusions reached with respect to grounds 1 to 6, it is unnecessary for me to address these grounds in detail. The following observations are sufficient. I see no error in the judge's findings at [461] ‑ [467]. No adequate basis for the claims had been pleaded or particularised and the appellant's statement of claim read more like a general indorsement than a statement of the material facts that would need to be proved to establish the claims. The particulars did not, in my opinion, cure the defects and there was manifestly no articulated claim on the basis of the second limb of Barnes v Addy.  These grounds should also be dismissed.

The notice of contention

1. By the notice of contention, the first to third respondents contended that the decision by the primary judge should be affirmed on various other bases, including abandonment in favour of the Fazio partners, acceptance of alleged repudiation by Jack, and various alleged limitation and equitable defences, including laches.

2. As indicated previously, I would, had it been necessary, have allowed the notice of contention insofar as it alleges that Jack abandoned his interest in favour of the Fazio partners.

3. The first to third respondents also alleged that there was a dissolution of the partnership by reason of what is alleged to be Jack's repudiatory conduct in mid‑1984.  The question of repudiation under the common law requires careful attention to the contract and its precise terms (and not, for this purpose, the equitable obligations attaching in consequence of the resulting relation), the characterisation of terms as essential, 'intermediate' or non‑essential, the nature of the alleged breach, whether the repudiation alleged is renunciatory in character or a breach of a term which would justify termination by the other party at law, and the efficacy of the purported acceptance of the repudiation.  On the question of repudiation, see generally Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd [2007] HCA 61; (2007) 233 CLR 115 [44] ‑ [56].

4. Termination as a result of abrogation or abandonment, and termination as a result of acceptance of repudiatory breach, both involve the discharge of further performance of the contract, but in the latter case, the innocent party maintains the right to sue for (common law) damages for the breach.  Each is an aspect of the common law concerning contracts.  The law is that the former effects a dissolution of the partnership.  The New South Wales Court of Appeal has found that the latter may also effect a dissolution:  Ryder v Frohlich [127] ‑ [133].  There is dicta and authority to the contrary in England:  Hurst v Bryk and Mullins v Laughton [2003] 2 WLR 1006 [86] ‑ [93]. It seems to me, with respect, that if, at law, the contract from which the relation 'springs' (see Booth v Booth (27)) has been validly terminated at law (and assuming there is no equitable constraint on the innocent party exercising its legal right to terminate, eg, an equitable estoppel), it is difficult, at least prima facie, to envisage that relation subsisting.  However, the point, although the subject of some written submissions, was not tested in the heat of debate at the hearing of this appeal, and it is unnecessary to express a concluded view for the disposition of this case. 

5. Nor, in light of the conclusions reached earlier, is it necessary to address the claim for laches, the other alleged defences with respect to delay, and the other aspects of the notice of contention.

Conclusion

1. In my view, each ground of appeal fails, and the appeal should be dismissed.