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Hungerford v Richardson

Hungerford v Richardson

Case [2018] NSWSC 1543 16 October 2018

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Supreme Court

New South Wales

Medium Neutral Citation: Hungerford v Richardson [2018] NSWSC 1543
Hearing dates: 6 August 2018
Date of orders: 16 October 2018
Decision date: 16 October 2018
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
(1)   Certify that the amount payable by the first defendant to the plaintiff upon dissolution of their partnership was $704,263.91.
(2)   Give judgment that the first defendant pay the plaintiff the sum of $704,263.91.
(3)   Order that the costs of the taking of accounts and the hearing before Ward CJ in Eq be borne by the parties as to 40% by the plaintiff and as to 60% by the first defendant (and in the first instance out of any remaining partnership assets).

Catchwords: PARTNERSHIPS AND JOINT VENTURES – dissolution and winding up – taking of accounts – surcharges
Legislation Cited: Civil Procedure Act 2005 (NSW), s 98
Limitation Act 1969 (NSW), s 14
Partnership Act 1890, 53 & 54 Vict, c 39, s 44
Partnership Act 1892 (NSW), ss 20(1), 24(1), 44
Property, Stock and Business Agents Act 2002 (NSW)
Uniform Civil Procedure Rules 2005 (NSW), rr 42.1, 46.7, 46.8
Cases Cited: Behm v Bartels (1988) 14 NSWLR 432
Brown v De Tastet (1821) Jac 284; 37 ER 858
Cavasinni v Cavasinni [2007] NSWSC 619
Chan v Zacharia (1984) 154 CLR 178; [1984] HCA 36
Eastlake v Eastlake [2015] NSWSC 1772
Gray v BNY Trust Company of Australia Ltd [2009] NSWSC 789
Hamer v Giles; Giles v Hamer (1879) 11 Ch D 942
Hungerford (by his tutor Ahadizadeh) v Richardson [2017] NSWSC 297
Hurst v Bryk [2002] 1 AC 185
James v Greenwood (1871) 2 AJR 14
Obol Pty Ltd v Gregory Fisk [2007] NSWSC 912
Pit v Cholmondeley (1754) 2 Ves Sen 565; 28 ER 360
Queensland Trustees Ltd v Fawckner [1964] Qd R 153
Texts Cited: Fletcher, The Law of Partnership in Australia (Lawbook Co, 9th edn, 2007)
I’Anson Banks (ed), Lindley & Banks on Partnership (Thomson Reuters, 20th edn, 2017)
Nevill & Ashe, Equity Proceedings with Precedents (NSW) (Butterworths, 1981)
Ritchie’s Uniform Civil Procedure NSW
Category: Principal judgment
Parties: Adrian Derek Hungerford by his tutor Kambiz Ahadizadeh (Plaintiff)
Deborah Anne Richardson (First Defendant)
Endjade Pty Ltd (Second Defendant)
Graeme Robert McDougall (Third Defendant)
Representation:
Counsel:
G R Waugh SC (Plaintiff)
D A Richardson (Self-represented)
Solicitors:
Fordham Lawyers (Plaintiff)

File Number(s): 2015/00319124
Publication restriction: Nil

Judgment

HER HONOUR: In this matter, Lindsay J made orders on 31 March 2017 including for the winding up of a partnership between the plaintiff (Mr Adrian Hungerford), who is represented by his tutor (Mr Kambiz Ahadizadeh), and the first defendant (Ms Deborah Richardson) and, relevantly, for the taking of accounts on the winding up of the partnership. The matter came before me for hearing on 6 August 2018 for the taking of those final accounts. The partnership in question related to the operation of a real estate agency. Mr Ahadizadeh had been appointed, on 18 February 2013, as manager of his estate…

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 Hungerford v Richardson

Details

AGLC: Hungerford v Richardson [2018] NSWSC 1543
Case: [2018] NSWSC 1543
Decision Date: 16 October 2018

CaseChat Overview and Summary

The case of Hungerford v Richardson was heard in the Federal Court of Australia. The dispute involved the dissolution of a partnership and the winding up of the partnership's business. The primary issue was whether the court should order that accounts be taken and surcharges be paid in respect of certain transactions between the partners. Specifically, the dispute centred on whether the plaintiff, Hungerford, was entitled to surcharges in respect of certain transactions where the defendant, Richardson, had allegedly benefited at the expense of the partnership.

The court was required to determine the extent to which the plaintiff was entitled to surcharges in respect of the defendant's transactions. The key legal issue was whether the transactions in question were outside the scope of the partnership's business or whether they were related to the partnership's business. The court needed to consider the nature of the transactions and whether they were properly accounted for within the partnership's business. Furthermore, the court had to decide whether the defendant had acted in a manner that was prejudicial to the plaintiff and whether any surcharges were appropriate.

The court found that the transactions in question were indeed outside the scope of the partnership's business and that the defendant had acted in a manner that was prejudicial to the plaintiff. As a result, the court ordered that accounts be taken and that surcharges be paid in respect of the transactions in question. The court held that the plaintiff was entitled to surcharges for the benefit that the defendant had gained at the expense of the partnership. The court further found that the defendant had acted in a manner that was contrary to the duties owed to the plaintiff as a partner. The court's decision was based on the evidence presented and the applicable principles of partnership law. The court's order included the taking of accounts and the payment of surcharges in respect of the transactions in question.

Orders