Giumelli v Giumelli
[2003] WASC 259
GIUMELLI -v- GIUMELLI & ORS [2003] WASC 259
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASC 259 | |
| Case No: | CIV:1517/1986 | 16-19 JUNE, 24 & 25 SEPTEMBER, 25 NOVEMBER, 2 & 15 DECEMBER 2003 | |
| Coram: | MASTER SANDERSON | 17/12/03 | |
| 28 | Judgment Part: | 1 of 1 | |
| Result: | Accounts taken | ||
| 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
- 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
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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 O'Sullivan [1962] SASR 287
Case(s) also cited:
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
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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
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1 MASTER SANDERSON: This case brings to mind the aphorism which introduces Tolstoy's tragedy Anna Karenina:
"All happy families are the same. Each unhappy family is unhappy in its own way."
2 This present application is a taking of accounts. It relates to the dissolution of a partnership between the plaintiff and the defendants, the dissolution taking effect on 14 May 1986. In other words, I am to determine the respective parties' entitlements as at that date - something over 17 years ago. The difficulty of that task is not to be underestimated. However, before dealing with the matters in issue, I should give some background to the dispute between the parties. This present action represents one part of the dispute. It has generally been referred to as the "partnership action". There is another set of proceedings, still unresolved which I referred to as "the land action". The land action originally went to trial before Nicholson J (when his Honour was a Judge of this Court) in August of 1993. An appeal against his Honour's judgment was heard in November of 1995: see Giumelli v Giumelli (1996) 17 WAR 159. From this decision of the Full Court, there was an appeal to the High Court which was heard in 1998: see Giumelli & Anor v Giumelli (1998) 196 CLR 101. The headnote to the decision of the High Court provides a comprehensive summary of the nature of the dispute between the parties. It reads as follows:
"A married couple lived on a small orchard property. They conducted business there under an oral partnership. In 1966 they purchased another, larger, property some distance away. Only a small part of it was cleared. The new property was not a partnership asset. In 1968 their eldest son (T) left school to work on both properties. In 1971 their second son (Robert - the plaintiff in these proceedings) left school and commenced full-time work for the partnership. He received no wages but was given pocket money and keep. In 1973 T and Robert were admitted to the partnership without payment. Robert worked for the partnership without wages but was credited with earnings in its accounts. He was engaged with others in the family in developing and improving the larger property. All expenses for materials and contractors' charges were paid by the partnership. In 1974 a third son (Steven - the second defendant in these proceedings) left school and commenced working for the partnership for wages. He became a partner in 1982. T left the partnership in 1978. In 1974 the parents promised Robert,
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- then 18, that he would be given (an unidentified) part of the large property to compensate him for working without wages, for his efforts in the development and, later, for the fact that costs were being borne by the partnership (the first promise). In 1980 Robert intended to marry and was told by his parents that he could build a house on the larger property and that 'the house' would be his (the second promise). Robert engaged a builder and with him built a house costing $47,000. He was advanced $25,000 from partnership funds against his partnership account. After his marriage in 1981 the parents promised Robert that the larger property would be subdivided to create a lot (the promised lot) which would include the house and the orchard if he stayed on the property and did not accept an offer from his father-in-law of work elsewhere (the third promise). He refused that offer but his wife refused to live on the property. They separated late in 1981 and were divorced in 1983. Robert lived and worked on the property and planted a new orchard. He decided to marry a woman of whom his parents disapproved. In May 1985 they told him he would choose between his proposed new wife and the property. He married and left the property. Steven married in 1985 and lived with his own family in a house on the land the subject of the second promise. He made certain improvements on that land. In May 1986 Robert commenced proceedings against his parents and T and Steven to wind up the partnership and for a declaration that the partnership had a charge over both orchard properties for the value of improvements. In 1990 Robert sued his parents claiming a declaration that they held the larger property on trust to convey the promised lot to him and for consequential mandatory orders and accounts.
The trial judge in the 1990 action (Nicholson J) found that the first promise had been made, that the second promise had been made but in terms which did not sufficiently identify the land and that the third promise had been made in terms which obliged the parents to create a lot on a section of the larger property to include the house and orchard. He found that Robert had acted in reliance on expectations induced by the second and third promises, that he had suffered detriment in the case of the second promise constituted by the expenditure of money and labour on the house but had not suffered detriment in the case of the third promise because he was already a partner
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- and had chosen to remain in the partnership. The development of the orchard had been in the interests of the partnership. The judge granted relief in respect of the second promise in the form of an order for the payment of the greater of the amount expended by Robert on the house and the present value of the house and the land on which it stood. He did not order that the amount was to be charged on the property or any part of it. On appeal, the Full Court held that Robert had suffered detriment in the case of the third promise either in the loss of the property he had worked to improve or the loss of enjoyment of the improvements as a partner. The Full Court substituted for the trial judge's order a declaration that the parents held the whole of the larger property on trust since May 1986 to convey to Robert an unsubdivided portion thereof identified as the promised lot and ordered them to do all things necessary to procure the subdivision so as to create the promised lot."
3 The High Court allowed the appeal by Steven and his parents (the present defendants in this case) to the extent that they varied the orders proposed by the Full Court. Again, quoting from the headnote, the Court held that:
"Robert had incurred detriment from acting in reliance on the third promise so as to entitle him to equitable relief but that in the circumstances an order for conveyance, though the prima facie entitlement, should not be made and the appropriate relief was an order for payment of a monetary sum representing the present value of Robert's claim to the promised lot, calculated so as to do equity between the parties to the action and any relevant third parties, that sum being charged on the whole of the larger property until payment."
4 It should be borne in mind that the land action is a separate and distinct proceeding to the present action, the partnership action. I have quote from the headnote to the High Court decision only to give some factual background to the present dispute. In fact, this present action went to trial in 1990 before Pidgeon J. At issue at trial was the question of whether the partnership between the plaintiff and the defendants was dissolved and, if so, on what date. His Honour determined that the partnership was dissolved on 14 May 1986, that being the date upon which the plaintiff issued the writ in these proceedings. The remaining issue, then, is to determine the respective entitlements of the parties as to the assets of the partnership as at the date of dissolution. This requires the
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- taking of accounts. There are many and various reasons why it has taken 13 years between his Honour's decision and the hearing for taking of these accounts. Nothing is to be gained by examining the record and attempting to apportion blame for the extraordinary delay. All that can be said is that the present solicitors for both the plaintiff and the defendants have come to the matter relatively recently. Since the date of their involvement, the matter has progressed expeditiously. In other words, the present solicitors are in no way at fault for the delay in bringing this matter on for hearing.
Credibility of witnesses
5 As a general rule, taking of accounts is a fairly mechanical process. From time to time, a dispute might arise as to the value of a particular asset or the veracity of an entry in a particular journal. But it is not generally the case that the credibility of witnesses is central to the determination of the account. Not so in this case. Four discrete issues fell for determination between the parties and each of them depended upon the credibility of the witnesses. In particular, there was the evidence of the plaintiff (whom I will refer to as Robert) and the first and second defendants (whom I will refer to respectively as Mrs Giumelli and Steven). Each of these witnesses filed a number of affidavits and each was cross-examined. I had the opportunity to observe the way in which each gave their evidence and to make an assessment of their veracity as a witness.
6 Robert impressed me as a witness who spoke the truth. He came across as intense, perhaps humourless, certainly intent upon getting what he saw as his rightful entitlement. It was clear from the way he gave his evidence that he was born into the life of an orchardist and it was to that life he was dedicated. At no stage during the course of his cross-examination did I have the impression that he was answering questions in a self-serving fashion. Rather, in my view, he answered the questions put to him honestly and to the best of his ability. On one or two occasions, he took exception to the way in which questions were put to him. In fact, the cross-examination by counsel for the defendants was entirely fair and restrained. Nonetheless, Robert's annoyance seemed to me to be motivated by a genuine antagonism towards anyone who questioned his integrity or his understanding of orchards and their management. His response was in no way bluster designed to conceal a weak position. He was in all respects an impressive witness.
7 I did not form such a favourable impression of Mrs Giumelli. She gave her evidence with the assistance of an interpreter, although it was not
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- entirely clear whether she required an interpreter to understand the questions being put to her. It is true that she is an elderly woman and she may have been nervous about the possibility of her misunderstanding a question. But even making allowances for her age and her limited understanding of the operations of the orchard, I did not find her an entirely satisfactory witness. I was left with the impression that she gave her evidence in a fashion tailored to suit the defendants' case. Insofar as her evidence is in conflict with the evidence of Robert, I would prefer the evidence of Robert.
8 With respect to the evidence of Steven, I also have reservations. Particularly in relation to the valuation of plant and equipment, he seemed to me to offer evidence designed to support the defendants' position. That is not to say that his evidence was misleading. Rather, it was put in a way which was self-serving. I will deal with this finding a little more fully when dealing with particular aspects of the claim. For present purposes, it is sufficient if I say that, in relation to Steven's evidence, as with Mrs Giumelli's evidence, where the evidence is in conflict with that of Robert, I would prefer the evidence of Robert.
Matters in dispute
9 From time to time, each of the parties has prepared balance sheets showing the assets and liabilities of the partnership as at 14 May 1986. Over the years, the parties have been able to agree on most of the items found in these balance sheets. A dispute remains as to the value of four assets. (At the commencement of the hearing, there were five matters in dispute. During the course of his closing submissions, counsel for the plaintiff abandoned the claim with respect to one of these assets which was referred to as the "Pezzano loan".) Throughout the hearing, the parties were content to work from a document entitled "Amended Balance Sheets as at 14 May 1986" which appears as annexure GFW1 to the affidavit of Gregory Froomes Wyllie ("Mr Wyllie"), sworn 23 April 2003 (page 204 of the trial bundle of documents). Mr Wyllie's balance sheet shows as an asset of the partnership a loan made to Anthony Giumelli. There is no dispute that such a loan was made and that it was for an amount of $141,700. Both parties agree that the loan is an asset of the partnership. The dispute between the parties is as whether interest was payable on that loan, if so, at what rate and whether or not the interest payment should be included as an asset of the partnership. That is the first area of dispute.
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10 The second area of dispute concerns livestock. The parties agree that, as at the date of dissolution, there were a number of cattle on the property. They disagree as to the actual number of animals on the property and as to their value.
11 The third issue concerned the value of the plant and equipment on the property as at the date of dissolution. Being a working orchard, there were, naturally enough, items of plant associated with the running of the orchard. This plant consisted of such things as tractors and other motor vehicles, right down to pumps and irrigation equipment.
12 Fourthly, and finally, there was a question of stock on hand. It was the practice in the orchard to pick fruit, particularly apples, as they ripened and store the apples in cool rooms for sale at a later date. There was a difference between the parties as to the value of the fruit held in the cool room. There was no dispute between the parties that there was stock held in the cool room, nor was there any real dispute as to the amount of stock on hand. The dispute revolve around how that stock should be valued. Further, Robert said that there were certain other items such as fertiliser, fuel and the like, which were held by the partnership as at the date of dissolution and which had a certain value. The parties were unable to agree on the value for plant and equipment.
13 Determination of these four questions largely determines the account and the respective parties' entitlements. There is, however, a subsidiary issue which has to do with the way in which the assets of the partnership are to be distributed on dissolution. This has to do with the proper interpretation and application of the provisions of ThePartnership Act 1895 (WA). It is a question of law. The first step is to resolve the issues of fact between the parties.
The loan to Anthony Giumelli (also referred to as Tony)
14 Robert's evidence in relation to this loan is to be found conveniently in his affidavit of 23 March 1993 pars 27 to 30 (trial bundle of documents pages 58 to 60). It is appropriate that I quote this evidence in full:
"27. With respect to the document headed 'Loan - Antonio Giumelli' attached to the Amended Balance Sheet I say that in or about February 1984 the partnership made a loan of $141,700.00 to my brother Tony Giumelli, the third defendant, to assist him in the purchase of a small orchard in the Dwellingup District. There was a written agreement regarding the loan to my brother Tony by the
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- partnership. My father insisted on there being a written agreement and my mother wrote it out. It was brought down to Dwellingup by them to be signed by Tony at the time the final cheque for the loan was handed over to him in February 1984. I have not seen the written document since the date it was written and it has not been discovered in these proceedings by the defendants.
- 28. My parents insisted on an agreement in writing to protect the partnership in case there was trouble with Tony's wife at some later date. The loan was made specifically to Tony only and not to his wife. There was a lot of unpleasantness and pressure surrounding Tony's marriage as my parents did not approve. My parents' concerns also arose from problems experienced at the time when my first marriage broke down.
29. To the best of my knowledge and recollection the agreement provided for interest to be paid to the partnership by Tony on an annual basis at the current bank loan rate. However it was agreed between the partners and my brother Tony that in order to assist him until such time as his orchard was established that he could pay interest on the loan in work for the family partnership in lieu of cash. The agreement did not require him to repay any of the capital of the loan until such time as the orchard property was earning sufficient for him to make a living and to be able to repay the capital as well.
30. To the best of my recollection he was supposed to work for the partnership for 2 days a week. He started to do so but the amount of work he did for the partnership soon fell off because of his commitments to his own orchard. He helped with some picking and planting in the first year and with the planting of trees on several days but nothing like the extent to which he had agreed in place of the payment of interest to the partnership. After that he did little or nothing for the partnership and he advised us on a number of occasions that he was not able to do work for the partnership and that he would have to pay interest instead. To the best of my knowledge he continued until 14 May 1986 to neither carry out work for the partnership nor to pay interest on the loan."
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15 Robert expands somewhat upon this evidence in par 3 of his affidavit of 7 April 2003 (pages 143 to 145 of the trial bundle of documents). However, this evidence does not add materially to what he said in his earlier affidavit. There are two important aspects to Robert's evidence. First, he says that there was a written agreement and the written agreement was prepared by Mrs Giumelli. Secondly, there was no designated interest rate. In fact, what interest was payable was to be cut out by Anthony working for the partnership. Clearly, there was, even on Robert's case, a loose arrangement with respect to interest.
16 Since these proceedings were commenced, Mr Giovanni Giumelli ("Giovanni"), the husband of Mrs Giumelli and the father of Robert, Steven and Anthony, has passed away. However, his affidavit sworn 31 August 1993 was admitted into evidence. By pars 74 to 81 of that affidavit (pages 271 and 272 of the bundle of trial documents), Giovanni denies first that there was any agreement as to interest and second that his wife, Mrs Giumelli, wrote out any agreement. Anthony Giumelli was not called to give evidence by either party. That, then, leaves a direct conflict on the evidence between Giovanni and Robert as to whether or not there was any agreement as to interest.
17 Mrs Giumelli says in her affidavit of 12 December 2002, par 3 (trial bundle of documents page 311) that there never was any written agreement. Mrs Giumelli maintained that position under cross-examination (transcript pages 436 to 439). No written agreement has been discovered.
18 Under cross-examination, Mrs Giumelli appeared to say that part of the reason why there was no written agreement was that she could not write, presumably in English: see page 436 of the transcript. Even making allowances for Mrs Giumelli's difficulty with English, it seemed to me that she recanted somewhat from this position. In fact, it emerged later in cross-examination that Mrs Giumelli had been responsible for writing cheques and maintaining a record of sales of fruit. Robert did not suggest that Mrs Giumelli wrote out a comprehensive agreement. I find it difficult to accept that Mrs Giumelli could not have noted down the essential elements of the agreement between the partnership and Anthony. This was one aspect of her evidence that I found unsatisfactory.
19 Weighing the evidence of Robert on the one hand and Giovanni and Mrs Giumelli on the other, I am satisfied that there was an agreement as to interest. A note to this effect may or may not have been prepared by Mrs Giumelli - it is not a finding of fact that needs to be made one way or
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- the other to determine this aspect of the claim. However, on balance, I am satisfied that Robert's evidence on this point should be accepted and there was such a note made. What became of that note is unclear.
20 That, then, leaves the question of whether or not the agreement with respect to interest was so vague as to be unenforceable and not realistically an asset of the partnership. Counsel for the defendant made the point that Anthony could work for the partnership and thus not pay interest. While that is the case, Robert's evidence is to the effect that Anthony worked for the partnership for a limited time, but he did not do so consistently and certainly not for a period which would have expunged the partnership's right to claim interest. I accept Robert's evidence on this point. It also seems to me that, while this was a family arrangement and while it had about it a degree of uncertainty, there was no reason why if the partnership had chosen to do so, it could not have demanded payment of interest from Anthony. It is not appropriate in an application of this type that I should undertake a detailed analysis of the principles of uncertainty which might render a contract unenforceable. I am satisfied on the evidence as it stands that there was an agreement to pay interest and that this should be regarded as an asset of the partnership.
21 That, then, leaves the question of what interest rate should be applied to the loan. Mr Wyllie deals with this issue in his affidavit of 17 May 1993, par 9 (page 68 of the bundle of trial documents). He says, in essence, that he calculated the interest rate with respect to then prevailing bank interest rates. He also dealt with this in cross-examination: transcript pages 346, 348. It must be acknowledged that the calculation made by Mr Wyllie is somewhat rough and ready. But, in my view, it is a fair approximation of what interest was due to the partnership. The figure in the amended balance sheets is $47,999. I am satisfied that this amount ought be included as an asset of the partnership.
Livestock
22 There is a dispute between the parties as to the number and the value of cattle owned by the partnership as at dissolution. Tied into this second question was the issue of the condition of the cattle as at the date of dissolution. It was agreed between the parties that the running of cattle was a sideline to the orchard business. Robert said that, over the years, he had built up the quality and condition of the herd so that as at the date of dissolution the cattle were in first-rate condition. Robert and Mrs Giumelli maintained that the condition of the livestock was, at best, ordinary and that at market they would not have fetched top price.
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23 In pars 10 to 12 of his affidavit of 23 March 1993 (pages 42 to 44 of the bundle of trial documents), Robert says that he accepts that there were 174 cattle on hand and he says that he obtained that figure from the partnership tax return. He also sets out the basis upon which he valued the cattle. In his affidavit of 31 August 1993, Giovanni disputes that the partnership had 174 head of cattle. Essentially, he says that he did not believe the property could carry that amount of stock. It is clear that Robert was mistaken as to the number of cattle contained in the partnership accounts. In fact, it was not 174, it was 108. In his affidavit of 7 April 2003, Robert puts the number of cattle at "about 160-170": see par 5(m)(v) trial bundle of documents page 148. He says that he counted the cattle about every two weeks and he sets out the number of cattle sold, the number of calves born and the sales made each year.
24 Steven's evidence is that there were 108 cattle at hand as at the date of dissolution: see his affidavit of 12 December 2002, par 26.3(i) (page 278 of the bundle of trial documents). Steven does not say in his affidavit how he concluded that as at the date of dissolution there were 108 head of cattle on the property. In cross-examination, he said that he had counted them in 1986: transcript page 579, 581. It does seem remarkable that, if Steven had counted the cattle in 1986, he did not mention this fact in his affidavit of 12 December 2002. He was dealing directly with Robert's evidence that he (Robert) had regularly counted the cattle.
25 I accept the evidence of Robert on the question of the cattle numbers. I am satisfied that he had far more knowledge of the numbers than Steven and that he regularly counted the cattle. I would accept the numbers in Robert's affidavit of 7 April 2003.
26 There remains, then, the question of the quality of the livestock and their value. As I have indicated, it was Robert's position that the livestock were in good condition, while Mrs Giumelli and Steven maintained they were of average quality. In support of his position, Robert relied upon an affidavit of Terence John Fortescue ("Mr Fortescue"), sworn 4 April 2003. Mr Fortescue is a farmer and orchardist who lives close to the Giumelli land. He has know the Giumellis for many years and up until mid-1985 he was friendly with Steven and Mrs Giumelli, as well as Robert. He maintains a friendship with Robert. In pars 20 to 27 of his affidavit (page 166 of the bundle of trial documents), he deals with the condition of the cattle. He says that, although the cattle run by Giovanni were at first rough, the quality improved over the years. Mr Fortescue says he advised Giovanni how to go about improving the quality of the herd. He says that,
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- by 1985-1986, the quality of the herd was good and it has remained the same since.
27 The evidence of Robert and Mr Fortescue is further supported by the evidence of Timothy Charles Birmingham ("Mr Birmingham"). In an affidavit sworn 22 April 2003 (pages 173 to 176 of the bundle of trial documents), Mr Birmingham, who was a neighbour of the Giumellis says that he noted over the years the quality of the herd improved. Under cross-examination, Mr Birmingham said that the quality of the herd was typical of others in the area: transcript page 307.
28 I accept Robert's evidence that the herd was of good quality and on sale would have fetched market price. The evidence of Steven and Mrs Giumelli on this question I would reject. As to value, I am satisfied that the values ascribed to the cattle by Robert in par 5(m)(iv) of his affidavit of 7 April 2003 (trial bundle of documents page 147) are reasonable. I would accept that the use of the Market Summary for Cattle Sales being annexure RG2 to Robert's affidavit is an appropriate way to value the stock. That being so, I would put the value of stock as at the date of dissolution at $64,160.
Plant and equipment
29 The way in which Robert went about valuing the plant and equipment can be explained first by reference to the affidavit of Mr Wyllie, sworn 17 May 1993. The relevant paragraphs of that affidavit are pars 11 to 14 (pages 69 and 70 of the bundle of trial documents). Because of the importance of those paragraphs in explaining this aspect of Robert's claim I will quote the paragraphs in full:
"11. With respect to the item listed as 'Plant and Equipment' in the partnership balance sheet I prepared 2 Schedules, Schedules A and B, which are annexed to the Amended Balance Sheet prepared by me (exhibit A). I was advised by the plaintiff that there had been a change in the partnership as of 1 February 1978 when the third defendant left the partnership.
12. Schedule A includes the items of plant and equipment which had been purchased at some unknown prior date and for some unknown prior cost and which were acquired by the partnership on the change of partnership of 1 February 1978. Valuations of those items as at
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- 14 May 1986 were provided by the plaintiff (Robert) from his personal knowledge of the items in question.
- 13. Schedule B includes all items of plant and equipment for which the cost price and purchase date could be ascertained from the supporting partnership documents disclosed by the defendants. Valuations of these items were obtained:
13.1 By applying a reducing factor of 10% per annum to the cost price and diminishing balance from the date of purchase until 14 May 1986;
13.2 The valuations produced were then discussed with the plaintiff. When, in the opinion of the plaintiff the valuations so produced did not reasonably reflect the value of the particular item current as at 14 May 1986 the valuations were increased in line with the plaintiff's opinion and personal knowledge of the items in question.
14. The value of items of plant and equipment included in Schedules A and B as at 14 May 1986 has been assessed for the purposes of the amended balance sheet at the estimated actual value of each item as at that date and not in accordance with the depreciated value as calculated for income tax purposes. The reassessed value of plant and equipment has then been incorporated in the amended balance sheet."
30 It is common ground between the parties that, as part of the books of account of the partnership, there was produced on an annual basis a depreciation schedule of plant and equipment. This schedule was produced for tax purposes and all parties accepted that the depreciated value shown in the accounts did not necessarily reflect the true value of each item of plant and equipment. Given that position, Robert attempted, from his own knowledge, to assess what the true value of the plant and equipment was. The defendants, for their part, said that Robert was attempting to give opinion evidence in the nature of expert evidence which was inadmissible. That being so, the only value that could be put on the plant and equipment was the depreciated value as appearing in the depreciation schedule and for the purpose of the taking of accounts, that is the value of the equipment that should be adopted.
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31 As was to be expected, counsel for the defendants objected to those parts of Robert's affidavit and the parts of Mr Wyllie's affidavit which sought to value the plant and equipment. I ruled such evidence was admissible. I indicated to the parties that I would incorporate reasons for that determination. It is appropriate that I explain at this point why I ruled the evidence admissible.
32 There is no question but that Robert was offering his opinion as to the proper value of the plant and equipment. In his affidavit of 23 March 1993, Robert put the position this way (par 7) (page 41 of the bundle of trial documents):
"That knowledge and experience (the knowledge and experience of all matters connected with fruit growing and orchards) extended to the acquisition and purchase of equipment for the use of the partnership in carrying out its business. As part of that experience I acquired a knowledge of the prices of all relevant pieces of equipment which were used in the business, including both new equipment and second hand equipment. I had attended, on behalf of the partnership, a number of auctions and clearing sales of equipment of this nature and I was familiar with the prices that such equipment could attain on the second hand market."
33 In addition to Robert's evidence, the plaintiff also relied on affidavits of Roger John Beevis ("Mr Beevis"), sworn 19 August 1996 and 22 April 2003 and an affidavit of Darren Wayne Smith ("Mr Smith"), sworn 29 April 2003. Both of these gentlemen were valuers and both, undoubtedly, were experts in their field. Neither had the opportunity to view the plant and equipment in question. In the case of Mr Beevis, he undertook what he described as a "desk valuation". This involved looking at the depreciation schedule and putting a value on the plant and equipment. He expressed the view that this was a legitimate way of valuing the plant and equipment and as a consequence of this exercise he did produce an actual value. Mr Smith undertook much the same exercise on exactly the same basis.
34 There are obvious weaknesses in such evidence. A valuation undertaken on this basis has to make assumptions about the condition of the equipment. The description of the equipment provided in the depreciation schedule is brief to the point of being cryptic. Added to all of that, both witnesses were asked to value the plant and equipment as at May of 1986. Mr Beevis undertook his valuation in 1996 and Mr Smith
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- in 1995. The defendants, for their part, said that the evidence of the two valuers was unreliable because of the methodology employed and should be disregarded. They, in turn, relied upon the evidence of Jonathon Paul Gregson ("Mr Gregson"), also a valuer and auctioneer. Mr Gregson said that he regarded valuations of the sort undertaken by Mr Beevis and Mr Smith to be so unreliable as to be of no value.
35 On balance, I am satisfied that no reliance should be placed on the evidence of Mr Beevis and Mr Smith. In my view, the limitations they faced in attempting to value the plant and equipment were so significant that their evidence is unreliable. All the factors I have mentioned serve to undermine any attempted valuation. On this point, I accept the evidence of Mr Gregson that no accurate assessment of value was, in the circumstances, possible.
36 That, then, leaves the question of Robert's evidence as to value. I am satisfied that Robert could properly be regarded as an expert on the value of plant and equipment used in the orchard business. I have already alluded to Robert's total immersion in the orchardist profession. A necessary component of his expertise in that profession was an understanding of the plant and equipment used on the orchard and its condition. I accept his evidence that he kept a close eye on the value of plant and equipment used on orchards by, among other things, attending clearing sales. That is consistent with everything Robert said about his life as an orchardist. It is also consistent with what might be expected of a skilled professional.
37 It is true that Robert is not a professional valuer in the same way as Mr Beevis, Mr Smith and Mr Gregson are qualified valuers. It is also true that Robert has undertaken no course of study or undertaken any dedicated research which might lead him to be labelled as an expert. Rather, his expertise is gained through experience - much like the solicitor who, by virtue of experience was accepted as a handwriting expert in R v Silverlock [1894] 2 QB 766, per Lord Russell of Killowen CJ at 771. In my view, there can be no doubt that Robert knew the plant and equipment in possession of the partnership in May of 1986, knew its condition and, by virtue of his expertise and experience, was in a position to put a value on it.
38 When discussing this matter with the defendants' counsel during the course of dealing with his objection to the admissibility of the evidence, I suggested to him that the evidence might be admissible on the basis that, although evidence of opinion from a non-expert, Robert's qualifications
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- were such as to warrant the evidence being admitted. There are, of course, occasions when a non-expert can offer an opinion. In the days before the widespread use of breathalyser equipment, it was not uncommon for a police officer to be asked his opinion as to whether or not an individual was sober: see, for example, Warming v O'Sullivan [1962] SASR 287. A reading of the cases indicates that it is the experience of the person giving the evidence which is important. In Warming (supra) Napier CJ at 289 put the position as follows:
"In a matter of that sort (the sobriety of an individual) I should say that a police constable, who is dealing with the public generally - watching them as he meets them in the street and elsewhere - is probably as well qualified to express an opinion - on this question of drunk or sober - as anyone else. Speaking generally, a policeman should be well qualified to express an opinion on this question, since it is the ordinary course of his duties to note and observe the people with whom he comes into casual contact, and the course of these duties is such as to bring him into contact with not a few who are affected by liquor."
40 Having admitted Robert's evidence of the value of the plant and equipment into evidence, the question then is: what weight should be attached to that evidence? Counsel for the defendants attacked the evidence on two separate bases. First, he submitted that the methodology used by Robert to determine the value of the plant and equipment was flawed. Allied with that submission, counsel suggested that the description of equipment in the depreciation schedule was so vague as to not permit Robert, even with his knowledge of the orchard business, to be able to ascribe to it a value. Secondly, counsel submitted it was apparent looking at values placed on the equipment, that many of the values were illogical and arbitrary, tainting and rendering unreliable the whole valuation exercise.
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41 It is true that there is no identifiable logic as to why Robert should have approached the valuation of the plant and equipment the way that he did and as set out in Mr Wyllie's affidavit of 17 May 1993. In fact, during the course of cross-examination it became clear that Robert had valued the plant and equipment on the basis of what he thought it was worth: see transcript pages 237 to 267; in particular, page 244. With those items where the initial cost price was known, an exercise was undertaken as set out by Mr Wyllie. But even in those cases, in the end it was Robert's view of what the plant was worth that led him to his valuation. As I have already indicated, I am satisfied that Robert really did know the plant and equipment and did have a good understanding of what it was worth. I also accept that Robert knew what each item in the depreciation schedule represented and its condition: see, for example, transcript 244 - 245.
42 It is true that for some items of plant and equipment the value ascribed to them by Robert is odd and seems to an extent, arbitrary. By way of example, appearing as the sixth item in Schedule B is "Irrigation Piping". The written down value of the piping is put at $374. It was purchased in January 1978 for a cost of $1013 (see annexure "GW1" to Mr Wyllie's affidavit of 17 May 1993, page 35 of the bundle of trial documents). Robert ascribes to it a value of $418. That is an odd figure. It is not a figure which is reached by applying an annual 10 per cent depreciation. It is difficult to see why the figure should not have been rounded off. Robert was cross-examined about this and other like valuations and in the end, could provide no entirely satisfactory answer as to how the valuations were reached. It must be acknowledged that this was a weakness, and a considerable weakness, in his evidence. Nonetheless, taken in the overall, I am satisfied that his evidence should be accepted. In the end, I am satisfied that Robert, by virtue of his knowledge and experience as an orchardist, knew what this plant and equipment was worth. While at a disposal sale items would doubtless have gone for more or less than the value Robert ascribed to them, in the overall the result would have realised approximately the value that he put on the plant and equipment.
43 I therefore assessed the value of the plant and equipment at $277,800.
Stock on hand
44 There were two aspects to this dispute. First and foremost, there was the value to be ascribed to the fruit stock held in cold storage as at the date of dissolution of the partnership. As I have indicated above, this dispute
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- was of very narrow compass. There was a second dispute as to a number of other items of rather modest value. For instance, Robert said that there was a certain amount of fertiliser and seed on the property carried over from December 1985. He also said that there were chemicals and sprays and fuel. Mrs Giumelli and Steven disputed that any of these items were held on the property as at the date of dissolution. The parties agreed that there were certain fruit bins held by the partnership but disagreed as to their value.
45 The plaintiff and the defendants approached the valuation of the fruit stock in different ways. Robert relied on the evidence of Mr Wyllie. Mr Wyllie worked from receipts showing what was actually received for the fruit when it was sold. The defendants relied on the evidence of Harvey Eastwood Pickup ("Mr Pickup"), a chartered accountant and principal of the firm Pickup Golding. Mr Pickup prepared a detailed report supporting his valuation of the stock (see Mr Pickup's affidavit sworn 13 February 2003 and annexure "HEP1", pages 353 to 372 of the bundle of trial documents). Essentially his methodology was based upon assumptions as to the cool room capacity, the proportions of juicing fruit and the price.
46 Ultimately, it transpired that there was dispute over only one issue. That was the question of whether or not any juicing fruit was stored in the cool rooms as at May 1986. Mr Pickup assumed, on advice from Steven, that of the fruit stored as at the date of dissolution of the partnership, 30 per cent was eventually discarded and went for juicing. That meant that on the assumption the cool rooms were full as at the date the partnership terminated, the value of the stock arrived at by Mr Pickup had to be discounted by 30 per cent to allow for flawed fruit. It was Robert's position that in fact the fruit stored was only the quality product and all of the fruit stored in the cool room was saleable. He said the flawed fruit went to the juicing factory immediately after picking and was never stored. The difference between the parties on this aspect of the claim rested solely on this question - did the fruit in the cool room contain fruit which ultimately went for juicing, or had that fruit been removed before the fruit was stored in the cool room.
47 There was a direct conflict of evidence on this issue. Robert maintained that the flawed fruit was removed before the boxes were packed in the store room; Steven maintained that it was not. I have mentioned on a number of occasions I found Robert's evidence, in the overall, convincing and he was no less convincing on this aspect of the claim. Disconcertingly, the one aspect of Steven's evidence that I found
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- most convincing was his evidence in relation to the storing of the juicing fruit. In responding to questions in cross-examination he was spontaneous and direct, in contrast to other parts of his evidence. Neither parties saw fit to call any independent evidence either from persons who may have been present when the fruit was packed, or from somebody experienced in the industry who was able to state what the general practice was in May 1986.
48 In the end, I am satisfied that I should accept Robert's evidence on this point. In doing so I can do nothing more than repeat that I found him in all respects to be a witness of truth and reliable. I see no reason to doubt his evidence with respect to the practice involving the juicing fruit. While acknowledging the directness of Steven's evidence on this point, I prefer the evidence of Robert.
49 In relation to other stock on hand I also accept the evidence of Robert on this point. In my view it is entirely reasonable that an orchard operation such as that run by the parties would have had on hand a certain amount of fuel, chemicals, fertiliser and seed, as well as boxes, crates and the like for packaging. It is not difficult to imagine that being part and parcel of an ongoing farming operation. The quantities of fuel involved and the amounts of fertiliser, seed, chemicals and sprays are modest. It seems to me inherently unlikely that everything would have been run down to nothing in May 1986. I therefore accept Robert's evidence on this point and I would accept his values. In relation to the values, I need say nothing more than that I have accepted the values Robert put on the stock on hand on the same basis I accepted the values he put on the plant and equipment.
50 On that basis I would value the stock on hand as at 14 May 1986 at $164,840.
Value of the partnership
51 Taking into account the conclusions that I have reached with respect to the four matters in dispute and the items which are agreed between the parties, I assess the value of the partnership as at the date of dissolution at $1,002,884.00. After deduction of all liabilities - and all of these liabilities are agreed - the net figure for the partnership is $879,725.00.
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Plaintiff's entitlement to assets of the partnership
52 The way in which assets are to be distributed on final settlement of accounts consequent upon dissolution of a partnership is covered by s 57 of ThePartnership Act. That section reads as follows:
"In settlement accounts between the partners after a dissolution of partnership, the following rule shall, subject to any agreement, be observed:
(a) Losses, including losses and efficiencies of capital shall be paid first out of profits, next out of capital, and lastly, if necessary, by the partners individually in the proportion in which they were entitled to share profits.
(b) The assets of the firm, including the sums, if any, contributed by the partners to make up losses or deficiencies in capital, shall be applied in the following manner and order:
(1) In paying the debts and liabilities of the firm to persons who are not partners therein.
(2) In paying to each partner rateably what is due from the firm to him for advances as distinguished from capital.
(3) In paying to each partner rateably what is due from the firm to him in respect of capital.
(4) The ultimate residue, if any, shall be divided among the partners in the proportion in which the profits are divisible."
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54 It is then a question of applying s 57(b)(3) and (4). The way in which this might operate in practice can be illustrated in this way. Assume a partnership was commenced by two individuals on 1 July 2000. One individual contributed $100,000 and the other contributed $200,000. It was agreed between them that they would be equal partners. The parties traded for 12 months and agreed to terminate their partnership as at 30 June 2001. It was found that the assets of the partnership were $500,000. Applying s 57, each of the partners would have their capital repaid to them - in the one case $100,000, in the other, $200,000. The remaining partnership assets - the "ultimate residue" - would then be divided between them equally because they were equal partners. The end result then would be that one partner would be left with $200,000 and the other partner would be left with $300,000.
55 Of course, in practice things become somewhat more complex. Suppose, for instance, to develop the above example, the partner who contributed $100,000 drew throughout the 2000/2001 financial year $100,000. (Such an amount would generally be referred to by the partners as "drawings".) Suppose further that the partnership did not terminate on 30 June 2001 but continued on. When the accounts were drawn for 30 June 2001 the profit to which the second partner was entitled would have to be treated in the accounts in some way. There are two possible options. First, the capital account of the second partner could be adjusted to reflect his entitlement to the profit. That would mean his capital account would move from $200,000 to $300,000. Alternatively, the undrawn profit could be designated as a loan by the partner to the partnership - an "advance" to use the language of s 57(b)(2) of ThePartnership Act. Either way, the demands of double-entry bookkeeping require that the accounts reflect the value of the partnership and the entitlement of each of the parties to the assets.
56 The situation becomes even more complex when the value of the assets of the partnership is taken into account. When accounts are drawn for a partnership at the end of the financial year, the profit (or loss), made by the partnership is reflected in those accounts. Apart from anything else, that must be done for taxation purposes. But it is not common for the partnership to draw up a balance sheet which reflects a revaluation of the assets of the firm to properly reflect the entitlement of each partner on dissolution. There is simply no need for that exercise to be undertaken on a regular basis. It only becomes relevant at the time of dissolution of the partnership.
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57 The practical effect of this on the defendants' case can be explained in this way. The defendants say that the capital of the partnership as at 14 May 1986 was $576,338. This is based on the balance sheet prepared by the defendants' accountant, Jacques Ernest Max Gelle ("Mr Gelle"), which appears as exhibit "D" to his affidavit of 14 November 1990 (page 249 of the bundle of trial documents). The way Mr Gelle has calculated the capital entitlement is to first take the balance of the capital account as at 1 July 1985. With respect to Giovanni and Mrs Giumelli, this stood at $268,460, in the case of Robert, $124,862 and in the case of Steven, $55,186. To those capital accounts have been added each party's share of the net income both from the orchard and from investments. In the case of Giovanni, Mrs Giumelli and Steven, the accounts have been reduced by the amount of their drawings. That produces the figures for the capital account. It is then said that Robert is entitled to 25 per cent of the residue - ($945,262.70 minus $576,338 divided by four) - $92,231. To this is added his capital entitlement, making a total entitlement of $237,337.
58 On behalf of the plaintiff it is said that it is open for the partners to agree that capital is to be treated as being synonymous with partnership assets. It is said that there is evidence that in this case that is what the partners did. However, it is clear from the affidavits and from the cross-examination of the witnesses that there was no direct agreement on this question - it is doubtful whether it ever entered the contemplation of the parties. On behalf of the plaintiff, it is said that such an agreement is reflected in the way that the accounts of the partnership were maintained.
59 With respect, I can find no evidence of such an agreement. It is the case that the capital accounts were adjusted each year to reflect the undrawn profits of the partnership. There is no reason why that should not have been done. The accounts drawn by Mr Gelle as at the date of dissolution of the partnership do no more than reflect his long-established practice. It seems to me, on that basis, the starting point is the capital accounts as they appear in Mr Gelle's balance sheet drawn at the date of dissolution of the partnership and the methodology advanced by the defendants is the proper approach to be adopted in assessing the parties' entitlements.
60 Subsequent to the provision to each party of a copy of this judgment in draft form, the plaintiff submitted that the capital accounts as prepared by Mr Gelle were not an appropriate measure of each of the partners' interests in the partnership. This was based upon the evidence of Mr Wyllie, who pointed out that Steven had not long been a partner and to
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- credit him as having a 25 per cent interest in the partnership was inequitable. While I appreciate the strength of the submission I am satisfied that the proper approach is to work from the capital accounts as shown in Mr Gelle's balance sheet. That is the approach I have adopted.
61 The irony of all of this is that if the plaintiff was to receive 25 per cent of the total net value of the assets of the partnership as I have assessed them, his entitlement would be just under $1000 less than his entitlement using the above methodology.
Interest
62 The parties were agreed that the plaintiff was entitled to interest. However, they disagreed as to the date from which interest was to be calculated and the basis upon which it was to be calculated. The plaintiff claimed interest on a compound basis; the defendants said any interest should be calculated on a simple interest basis. It is convenient to deal with this second issue first.
63 It is clear that the proper basis for any interest in this case should be a simple interest calculation. As counsel for the defendants rightly pointed out, compound interest in equity is applied only in limited instances. Perhaps the best known is wilful default on the part of a trustee. While it may be the case that in certain circumstances, after dissolution of a partnership compound interest could be applied, this is not one of those cases.
64 The question as to the date from which interest is to be calculated is somewhat more difficult. Essentially, the defendants say that the plaintiff has not pursued this matter with sufficient diligence and it would be inappropriate to allow interest from the date of dissolution. The defendants say that the doctrine of laches precludes the plaintiff being awarded interest since the date of dissolution.
65 This is not an easy issue to resolve. It is true that there have been bursts of activity in these proceedings followed by long periods of delay. But it is also true that there has been significant animosity between the parties and a number of different actions which have, from time to time, diverted the attention of the plaintiff and his legal advisers. It must also be borne in mind that since the date of dissolution, the defendants have continued on with the partnership, using the assets of the partnership no doubt for good and productive purposes. In the meantime, and in large measure, the plaintiff has been kept out of his entitlement. That fact colours the claim for interest.
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66 On balance, I am satisfied that the plaintiff is entitled to simple interest on his entitlement from the date of dissolution of the partnership to the date of judgment. I am satisfied that is a fair reflection of the respective positions of the parties.
Costs
67 Given the length of time that this matter has been running, the large number of interlocutory applications and consequent court appearances and the length of time occupied by the taking of accounts, the costs are substantial and not surprisingly, an issue between the parties. Both the parties accepted that, as a general rule, the costs of an action for dissolution and winding-up of a partnership are ordered to be paid out of the partnership assets unless there are good reasons to the contrary: see Queensland Trustees Ltd v Fawkner [1964] Qd R 153. However, counsel for the plaintiff submitted that where an action is, in essence, instituted to try some disputed right, then the unsuccessful party may be ordered to pay the costs of the action. Counsel submitted that this was such a case. In essence, so it was said, the parties were engaged in an action in all but name.
68 While there is considerable force in counsel's submission, I am not satisfied that this is a case where I should depart from the usual rule. It cannot be suggested that in defending this action the defendants adopted an unreasonable position. The circumstances of the case were such that there was considerable doubt surrounding the four issues that fell for determination. While I have found in favour of the plaintiff in each case, the position of the defendants was both reasonable and principled and I am satisfied that the usual rule with respect to costs should apply.
Orders
69 Subsequent to the delivery of these reasons in draft, the parties have conferred and substantially agreed the orders to be made consequent upon the conclusions I have reached. There was dispute over one issue which I will deal with below. However, the orders that I propose to make are as follows:
(1) It is adjudged that:
1.1 The total value of the credits, property and effects of the partnership being carried on between the plaintiff and the first defendants and the second defendant ("the Partnership") as at 12 May 1986, being the date of dissolution, was $1,002,884;
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- 1.2 The agreed liabilities of the Partnership as at the date of dissolution were $123,159;
1.3 The total of the capital accounts of the Partnership as at the date of dissolution was $453,179; and
1.4 The ultimate residue for distribution between the partners as at the date of dissolution was $426,546 ("the Ultimate Residue").
- 2. All costs of the plaintiff and the defendants, including reserved costs and the costs of transcript, be taxed if not agreed and paid out of the Ultimate Residue of the Partnership prior to division among the parties, other than the plaintiff's costs incurred in respect of the preparation of the experts' reports of Roger John Beevis and Darren Wayne Smith.
3. There be no allowance to either party in respect of specific costs orders made against that party in the proceedings and, in respect of such costs, the party the subject of the adverse costs order shall not be entitled to deduct same from the Ultimate Residue prior to the division among the parties.
4. There be payment to the plaintiff of 25 per cent of the balance of the Ultimate Residue due after deduction of the taxed costs of the parties, together with simple interest thereon at the rate of six per cent per annum from 14 May 1986 until payment.
70 With respect to order 2 the defendants had sought an order that the costs associated with Mr Beevis and Mr Smith giving evidence in these proceedings not be allowed. The plaintiff conceded that the cost of their reports ought not be allowed but the costs associated with their giving evidence should be part of the total costs. I am satisfied that the plaintiff, in calling these two experts, behaved reasonably. True it is that I did not accept their evidence but given the difficulty of valuing the machinery, the plaintiff could not be criticised for adopting the course he did. Excluding the costs associated with preparation of the reports is, in my view, a proper way to deal with this aspect of the matter.
71 The plaintiff has in fact calculated the interest to which he says he is entitled. The position is complicated somewhat because from time to time the plaintiff has been paid part of his capital. Neither party proposed in
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- their draft orders that I should include a specific figure for interest calculated and accordingly I have not done so. However, if a difficulty does arise in relation to the interest the parties can seek further directions under the liberty to apply.
Conclusion
72 Finally, I should mention the efforts of counsel in this case. As may be apparent, this was a matter of some complexity. The hearing extended over six days and there were numerous affidavits dating back many years. Moreover, this is a bitter family dispute. To their credit, counsel approached the hearing in a spirit of cooperation which resulted in agreement on many issues. Cross-examination of witnesses was pointed but polite, with the result that matters in issue were properly amplified and elucidated. Both counsel were of great assistance to me and I think them for their efforts. They upheld the best traditions of the legal profession.
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