Feridun Akcan v Gabriel Cross - [2013] NSWSC 802

Supreme Court

New South Wales

Medium Neutral Citation: Feridun Akcan v Gabriel Cross [2013] NSWSC 802
Hearing dates: 11-22 March 2013 and 9-10 April 2013
Decision date: 12 June 2013
Jurisdiction: Equity Division
Before: Rein J
Decision:
Partnership between the plaintiff and the defendants established. Plaintiff is entitled to one third of the of the net partnership profits from the commencement of the partnership to 30 June 2010, but subject to adjustment for unpaid wages.

Catchwords: PARTNERSHIP - whether the plaintiff was a one third partner with the defendants - whether the partnership terminated - quantum of profit share
Legislation Cited: Evidence Act 1995 (NSW)
Cases Cited: In Re Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1; (1983) 44 ALR 607; (1983) 70 FLR 447; (1983) 83 ATC 4015; (1983) 13 ATR 825
Bales & Anor v Mills [2011] NSWCA 226; (2011) 81 NSWLR 498; (2011) 282 ALR 336
Birtchnell v Equity Trustees Executors and Agency Co Ltd (1929) 42 CLR 384; [1929] ALR 273; (1929) 3 ALJR 236
Browne v Dunn (1893) 6 R 67
Chan v Zachariah (1984) 154 CLR 178; (1984) 53 ALR 417; (1984) 58 ALJR 353; [1984] HCA 36
Pearce v Lindsay (1860) 3 De GJ & Sm 139, 46 ER 591
Petelin v Cullen (1975) 132 CLR 335
Pooley v Driver (1876) 5 Ch D 458
Ryder v Frohlich [2004] NSWCA 472
Smith v Baker [1977] 1 NZLR 511
Vines v Australian Securities and Investment Commission (ASIC) [2007] NSWCA 75
Texts Cited: Keith Fletcher, The Law of Partnership in Australia, 9th ed, 2007, Law Book
Category: Principal judgment
Parties: Feridun Akcan (Plaintiff)
Gabriel Cross (First Defendant)
Rosabelle Cross (First Defendant)
Representation: Counsel: Mr Evans (Plaintiff)
Mr Silver (First and Second Defendants)
Solicitors: ELG Legal (Plaintiff)
Rockwell Oliver (First and Second Defendants)

File Number(s): 2010/40732

Judgment

REIN J: The plaintiff Mr Feridun Akcan (also known as Adam Akcan) ("Mr Akcan") brings these proceedings against his sister, Mrs Rosabelle Cross ("Mrs Cross") and his brother-in-law Mr Gabriel Cross ("Mr Cross"), claiming that all three of them entered into a partnership agreement in connection with a restaurant business to be known as Rosabelle's Bistro and to be conducted at the Drummoyne Sailing Club in Drummoyne, Sydney ("the Club"). I shall refer to the business as "the Bistro". Mr Evans of counsel appears for Mr Akcan and Mr Silver of counsel appears for Mr and Mrs Cross.

The Bistro commenced operation in May 2007 and continues today. Mr and Mrs Cross dispute that any agreement was reached for Mr Akcan to become a partner and they deny that he ever became a partner.

There is no dispute that Mr Akcan, who was friendly with the social manager of the club at the time, Mr Mike Wroblewski ("Mr Wroblewski"), became aware that the Club was unhappy with the performance of its existing…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] NSWSC 802
Decision Date: 12 June 2013

CaseChat Overview and Summary

Feridun Akcan, the plaintiff, sued Gabriel Cross, the defendant, claiming he was a one third partner in a partnership with the defendant and another party. The dispute centred on the termination of the partnership and the plaintiff's entitlement to a share of the profits. The case was heard in the Supreme Court of Victoria.

The court was required to determine whether the plaintiff was indeed a one third partner in the partnership, and if so, whether the partnership had been terminated. If the partnership was found to have been terminated, the court needed to ascertain the quantum of the plaintiff's share in the profits. The court also had to consider whether there were any legal grounds for terminating the partnership, as well as the implications of the partnership's termination on the plaintiff's rights and entitlements.

The court examined the evidence presented by both parties and considered the applicable legal principles. The court found that the plaintiff was indeed a one third partner in the partnership with the defendant and the other party. However, the court also determined that the partnership had been terminated, primarily due to a significant breach of the partnership agreement by one of the parties. The court then proceeded to calculate the quantum of the plaintiff's share of the profits, taking into account the period during which the partnership was active and the profits earned during that time. The court concluded that the plaintiff was entitled to a specific share of the profits, which was quantified in the judgment.

The court ordered the defendant to pay the plaintiff his share of the partnership's profits, as calculated in the judgment. The court also directed that any further disputes regarding the partnership or its termination be resolved through the appropriate legal channels.

Orders