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Giumelli v Giumelli

Giumelli v Giumelli

Case [2003] WASC 259 17 December 2003

Partnership Dissolution

Taking of Accounts

Capital Contributions

Interest on Capital

Valuation of Assets

Distribution of Assets

Simple Interest

Costs in Civil Litigation

Partnership Law

Civil Litigation & Procedure

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GIUMELLI -v- GIUMELLI & ORS [2003] WASC 259

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WASC 259
Case No:	CIV:1517/1986	Heard:	16-19 JUNE, 24 & 25 SEPTEMBER, 25 NOVEMBER, 2 & 15 DECEMBER 2003
Coram:	MASTER SANDERSON	Delivered:	17/12/03
No of pages:	28	Judgment Part:	1 of 1
Result:	Accounts taken
Category:	B
PDF Version

Parties:	ROBERT JOHN GIUMELLI GIOVANNI GIUMELLI ROSA GIUMELLI STEVEN GIUMELLI
Catchwords:	Partnership Taking of accounts Turns on own facts
Legislation:	The Partnership Act 1895 (WA)
Case References:	Giumelli & Anor v Giumelli (1998) 196 CLR 101 Giumelli v Giumelli (1996) 17 WAR 159 Queensland Trustees Ltd v Fawkner [1964] Qd R 153 R v Silverlock [1894] 2 QB 766 Warming v O'Sullivan [1962] SASR 287 Abel v Potts (1800) 3 Esp 242 Bain v Case (1829) 3 C & P 496 Barclays Bank v Bluff [1982] 1 Ch 172 Biala Pty Ltd v Mallina Holdings Ltd (1993) 13 WALR 11 Birkett v James (1977) All ER 805 Catternach v Water Conservation and Irrigation Commission (1962) 9 LGRA 352 Commonwealth v SCI Operations (1998) 192 CLR 285 Curley v Duff (1985) 2 NSWLR 716 Falcon v Famous Players Film Co Ltd [1926] 1 KB 393 Giumelli v Giumelli & Ors [2000] WASC 90 Gray v National Crime Authority [2003] NSWSC 111 Hungerfords v Walker (1989) 171 CLR 125 Jones v Dunkel (1959) 100 CLR 298 Ledger v Petagna Nominees Pty Ltd (1989) 1 WAR 300 McLauchlin v Prince [2001] WASC 43 Ninety Five Pty Ltd v BNP [1988] WAR 132 Orr v Ford (1989) 167 CLR 316 Popat v Schonchhatra [1997] 3 All ER 800 R v Duncan [1969] 2 NSWR 675 R v Perryman (1907) 147 CCC Sess Pap 1099 R v Rose (1995) Aus Crim L Rule v Jewell (1881) 18 Ch D 660 Syers v Syers (1876) 1 App Cas 174

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : GIUMELLI -v- GIUMELLI & ORS [2003] WASC 259 CORAM : MASTER SANDERSON HEARD : 16-19 JUNE, 24 & 25 SEPTEMBER, 25 NOVEMBER, 2 & 15 DECEMBER 2003 DELIVERED : 17 DECEMBER 2003 FILE NO/S : CIV 1517 of 1986 BETWEEN : ROBERT JOHN GIUMELLI

Applicant

AND

GIOVANNI GIUMELLI

ROSA GIUMELLI

First Defendants

STEVEN GIUMELLI

Second Defendant

Catchwords:

Partnership - Taking of accounts - Turns on own facts

Legislation:

The Partnership Act 1895 (WA)

Result:

Accounts taken

(Page 2)

Category: B

Representation:

Counsel:

Applicant : Mr R A C Cullen

First-named First Defendant : Mr G R Donaldson

Second-named First Defendant : Mr G R Donaldson

Second Defendant : Mr G R Donaldson

Solicitors:

Applicant : Dwyer Durack

First-named First Defendant : Chris Stokes & Associates

Second-named First Defendant : Chris Stokes & Associates

Second Defendant : Chris Stokes & Associates

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

Giumelli & Anor v Giumelli (1998) 196 CLR 101
Giumelli v Giumelli (1996) 17 WAR 159
Queensland Trustees Ltd v Fawkner [1964] Qd R 153
R v Silverlock [1894] 2 QB 766
Warming v…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Giumelli v Giumelli

Details

AGLC: Giumelli v Giumelli [2003] WASC 259
Case: [2003] WASC 259
Decision Date

CaseChat Overview and Summary

The case of Giumelli v Giumelli involved a taking of accounts in relation to the dissolution of a partnership between the plaintiff, Robert Giumelli, and the defendants, Giovanni and Rosa Giumelli, and Steven Giumelli. The court was required to determine the respective parties' entitlements as at the date of dissolution, 14 May 1986. The legal issues included the valuation of assets such as a loan, livestock, plant and equipment, and stock on hand, as well as the distribution of partnership assets according to the provisions of The Partnership Act 1895 (WA).

The court found that there was an agreement to pay interest on the loan to Anthony Giumelli, and that the interest should be regarded as an asset of the partnership. The court accepted Robert's evidence on the number of cattle and their value, as well as his evidence on the value of plant and equipment, despite objections from the defendants. The court also accepted Robert's evidence on the value of stock on hand.

The court assessed the value of the partnership as at the date of dissolution at $1,002,884, with a net figure of $879,725 after deduction of liabilities. The court found that Robert was entitled to 25 per cent of the net value of the partnership assets, along with simple interest on his entitlement from the date of dissolution to the date of judgment.

The court ordered that all costs of the parties, including reserved costs and the costs of transcript, be taxed if not agreed and paid out of the partnership assets prior to division among the parties. The court also ordered payment to Robert of 25 per cent of the balance of the ultimate residue due after deduction of taxed costs, together with simple interest at the rate of six per cent per annum from 14 May 1986 until payment.

Orders