Johnson v Kostos No. Scciv-02-500

JOHNSON v KOSTOS
[2003] SASC 19
Civil

MULLIGHAN J The plaintiff claims that she and the defendant carried on the business known as “Books 4 Less - Glenelg” from 1^st October 2000 until 16^th January 2002 when the partnership was dissolved. She seeks various orders, including that there be an inquiry as to the assets and liabilities of the partnership as at the date of dissolution and the whereabouts of the assets and an account of all of the dealings and transactions of the partnership, including as between the partners.
There is no dispute that the business was conducted by a partnership during this period, that it was dissolved on 16^th January 2002 and that there should be an account of inquiry as sought. The only matter in dispute is that the plaintiff was a member of the partnership. The defendant alleges that she was in partnership with the plaintiff’s husband, not the plaintiff.
At all material times the plaintiff was employed on a full time basis by a brewery as an area manager in sales and marketing. She has been married to Mr Johnson for a little over 14 years. At that time he was the managing director of Johnson Fabrics House Pty Ltd which carried on a business of selling fabrics known as Johnson’s Fabrics. At one stage it operated 12 shops in South Australia. During the 1990’s the business had financial problems and the company went into liquidation during 1999. Mr Johnson had personally guaranteed some of the liabilities of the company. Eventually he was pursued by some creditors and became bankrupt in September 2002. He did not have what were described as personal debts, meaning debts not associated with Johnson’s Fabrics.
Mr Johnson had known Mr Savvas, who is the father of the defendant, for about 13 years. During the mid 1990’s Mr Savvas commenced to operate a retail book business. He and Mr Johnson had discussions from time to time about matters of business and eventually in July or August 1999 about opening a retail book business in Queensland. Mr Savvas proposed that this business be operated for a short period to take advantage of the Christmas trade.
He asked Mr Johnson to be involved. At that time Mr Johnson was without income following the closure of Johnson’s Fabrics and had debts due to guarantees which he had given with respect to liabilities of the company.
There were further discussions between Mr Johnson and Mr Savvas and eventually they agreed that Mr Johnson would work in the new business in Queensland as an equal partner with Mr Savvas and a woman whom he knew as Voula. It is necessary for present purposes to mention only a few matters about the business in Queensland. It operated from one shop in Brisbane. The three partners all worked in the business and drew a wage of $500 per week. Mr Johnson and Voula worked long hours in the shop. Another shop was opened at Logan in Queensland. Mr Savvas and Voula had previously opened another shop. Voula worked in all three shops and Mr Johnson looked after the shop in Brisbane. The partnership operated the shops at Brisbane and Logan. The business conducted in that shop ceased trading in late July 2000 due to problems associated with a new lease.
Mr Johnson had not contributed any capital to that partnership. He did not see any accounts for that partnership and did not receive a share of the profit of the partnership. He believed that there were profits in excess of the $1,500 each week drawn by the partners. The amount of such profit was not calculated by Mr Johnson but he said that there was an amount due to him.
Before Mr Johnson returned to Adelaide, Mr Savvas offered him a half share in the business known as Books 4 Less - Glenelg which he said Mr Johnson had earned because of his work in the partnership which conducted the businesses in Queensland. The plaintiff inspected the shop at Glenelg whilst Mr Johnson was in Queensland. The two men continued to discuss the proposal. Mr Savvas and the defendant had carried on the business in partnership in equal shares for some time and it was proposed that Mr Savvas give to Mr Johnson his share as payment of Mr Johnson’s share in the Queensland partnership. Mr Savvas explained that the business at Glenelg had been successful but needed building up.
Mr Johnson accepted the proposal. It was agreed that he would work in the shop on a full time basis and receive $500 after tax per week as had been the case in Queensland as a wage. Profits over and above that amount were to be shared equally. Upon his return to Adelaide, he inspected the shop at Glenelg with the plaintiff.
This narrative thus far represents the factual background which is not in dispute between the parties. It is convenient at this stage that I mention my findings about the witnesses. The plaintiff and Mr Johnson gave evidence in the plaintiff’s case and the defendant also gave evidence. I accept the plaintiff and Mr Johnson as truthful, reliable and accurate witnesses. Both of them were careful, moderate and precise in their answers. Mr Johnson was particularly careful in his answers. Both of these witnesses did not attempt to reconstruct events and if they could not recall any matter they simply said so. Both of them were impressive witnesses and I prefer the evidence of each of them to the evidence of the defendant when there was conflict in the evidence. I did not regard the defendant in the same way. She was unimpressive as a witness. On occasions she chose not to answer the question which was asked and on occasions she was argumentative. Later in the reasons I mention evidence given by her which I did not believe. I did not regard her as a truthful and reliable witness.
I return to the events leading up to the establishment of the partnership. I accept the evidence of Mr Johnson that upon accepting Mr Savvas’ proposal, he told him that he wanted the plaintiff to be the member of the partnership rather than himself. He said that Mr Savvas was well aware of his financial position. He had attended meetings with Mr Johnson concerning the debts of Johnson’s Fabrics, including a meeting with an insolvency practitioner who was an accountant. Mr Johnson spoke to the plaintiff and she agreed that she have the partnership interest instead of her husband. She said that she had complete faith in him as a business man and participation in the partnership business at Glenelg would give him an employment opportunity. She agreed to be a partner in the business in lieu of Mr Johnson. He anticipated that he could be pursued by creditors of Johnson’s Fabrics and that his bankruptcy was a possibility. It is clear from the evidence of Mr Johnson that he did not want to build up an asset in the proposed partnership only to lose it to creditors. His reason for pursuing the partnership interest in the name of the plaintiff was to protect it from such claims.
Mr Johnson commenced working in the shop the day after his return from Queensland to Adelaide. At that time the business was being run by casual staff. He took control and initiated improvements. I accept his evidence that he doubled the turnover of the businesses.
I mention the evidence regarding a Mercedes motor vehicle. This vehicle was owned by Mr Johnson’s father. Cash was needed by Johnson’s Fabrics. The vehicle was leased. Mr Savvas paid out the lease by a payment to the lease company of $24,000. The plaintiff kept the vehicle for some time and used it about once a week as her employee had provided her with another vehicle for her daily use. The Mercedes vehicle was registered in the plaintiff’s name. The plaintiff and Mr Johnson regarded the vehicle as the property of Mr Savvas until the $24,000 was repaid to him, which subsequently occurred. I accept that the payment of $24,000 was not in payment of the amount due to Mr Johnson by Mr Savvas upon termination of the Queensland partnership.
Mr Johnson and the plaintiff consulted an accountant, Mr Teagle, about the plaintiff taking Mr Savvas’ interest in the partnership. Mr Teagle, who carried on practice under the firm name of Merchant Accountants, prepared various documents. He prepared an application to the Corporate Affairs Commission for registration of the business name Books 4 Less - Glenelg. The document shows the applicants for that registration to be the plaintiff and the defendant. It is signed by both of them. It also shows the date of commencement of the business as 1^st October 2000.
The Australian Taxation Office issued to the plaintiff and the defendant an Australian Business Number for the business on 7^th December and a notice that they were registered for Pay As You Go (PAYG) taxation withholding purposes. The parties were also registered as the proprietors of the business with WorkCover and were issued with an Employer Number. They were registered as the proprietors of the business by the Australian Taxation Office for the purpose of the Goods and Services Tax (GST) and were issued with a tax file number.
A bank account was opened for the business with the National Australia Bank in the name of Books 4 Less. I accepted the evidence of the plaintiff that in about August or September 2000, she met the defendant at the Grenfell Street Branch of the Bank. The defendant had made the appointment so that they could open the account for the business. They were the only signatories for the operation of the account which could operate individually. Also, after some months the plaintiff and the defendant had a credit card facility in their joint names which enabled customers to purchase books by using credit. During the first five months or so of the operation of the business by the partnership, the credit card facility was operated through another Books 4 Less shop in Adelaide in which neither the plaintiff nor Mr Johnson had an interest. I accept the plaintiff’s evidence that she took a role in having the account established for the Glenelg shop. The Australian Taxation Office sent a notice to the plaintiff and the defendant on 6^th February 2002 that an amount of taxation due by the business had not been paid. On 21^st May 2002 a delegate of the Commissioner of Taxation gave notice to the plaintiff and the defendant that the Business Activity Statement for the business was overdue.
It is plain from those documents that the plaintiff and the defendant made the various applications as partners of the partnership which carried on the business and were regarded by the various government agencies as the partners.
The plaintiff and the defendant had little to do with the operation of the business. The plaintiff went to the shop at Glenelg on some occasions, mainly on evenings of late night shopping or Thursday and also on Sundays when she would work in the shop for an hour or so whilst Mr Johnson had a break.
On occasions she did the banking for the business. The defendant did not work in the business. She ran a Books 4 Less shop at King William Street, Adelaide and later at Norwood. I accept the evidence of Mr Johnson that the defendant went to the shop at Glenelg about two or three times each month and stayed only about half an hour to an hour.
Mr Johnson prepared the cheques for the accounts of the partnership which had to be paid and brought them home for signature by the plaintiff. She saw and checked the invoices and then signed the cheques. The defendant only signed cheques if required. Mr Johnson attended to all other financial aspects of running the business and personally kept the appropriate financial books and records.
According to the plaintiff, Mr Johnson reached the stage where he was not prepared to continue working in the shop at Glenelg. The reason is not relevant to any issue I have to decide. The plaintiff and Mr Johnson went to see Mr Gaffney, an accountant acting for the defendant. He told them that the defendant did not want to continue with the partnership and they agreed. The plaintiff said that she then dissolved the partnership by signing a document which Mr Teagle prepared. That document was not produced at the trial by either party and Mr Gaffney was not called to give evidence. I saw no reason not to accept the evidence of the plaintiff. It is important evidence because it appears that the defendant’s accountant regarded the plaintiff as being in partnership with the defendant.
The plaintiff said, in cross-examination, that after the dissolution of the partnership she did not pay any debts of the business personally and that no claim was made against her personally. I do not regard that matter as of significance because there was no evidence as to whether there were unpaid debts at that time and if any claim had been made against the defendant personally.
Mr Savvas was involved in other Books 4 Less shops in Adelaide and he acquired the stock for all of the shops, including the shop at Glenelg during the whole of the period of the partnership in relation to the business at Glenelg.
I accept the evidence of Mr Johnson that at no time during his involvement in the business of the partnership did anyone, including the defendant, Mr Savvas or Mr Gaffney, suggest that he was the defendant’s partner and not the plaintiff. The defendant produced a handwritten document prepared by Mr Johnson when he was running the business which was admitted into evidence. It is a financial calculation for the purpose of establishing the GST obligation of the partnership for the period for 1^st October 2000 to 31^st December 2000. Whilst there was a calculation of PAYG income tax for an employee, there was no such calculation for the $500 per week which Mr Johnson drew from the partnership. He said that he made that calculation for the last quarter of the operation of the partnership. It was during that last quarter that he made and paid the taxation deducted from his drawings. It was suggested to him that his failure to make the deduction at the outset of the partnership indicated that he was a partner and not an employee. His explanation was that he had always paid income taxation in the past on an annual basis and it was not until the last quarter that he made the deduction because Mr Teagle advised him that he was obliged to do so. I accept that explanation.
Mr Johnson said that he paid superannuation contributions personally for himself and such contributions were made by the partnership for an employee. It was put to him that the partnership did not have an obligation to make superannuation contributions for him as he was a partner. He said that there was an obligation but the contributions were not paid because he was trying to build up the business. He denied that the payments were not made because he regarded himself as a partner in the partnership with the defendant. He said he had his own superannuation arrangements to which he contributed personally and he did not deduct contributions for his superannuation from the partnership funds because he did not want to take out more funds that the business could afford. He said he made that decision in his wife’s interests. I accept this explanation by Mr Johnson. Whilst not deducting PAYG tax and superannuation contributions for a person working in a business may be an indicator that the person was not an employee, it may be due to other reasons as Mr Johnson asserted in his evidence. However, it can only be an indicator to be considered with all other relevant matters. As I have said, I accept the explanations of Mr Johnson and so these matters are of no significance.
I mention a feature of the letter written by Mr Gaffney to the defendant on 23^rd November 2001. It records that she had instructed him to undertake an analysis of financial information relating to the business. At two places in the letter he referred “to Mr Johnson’s wages”. If he was an employee of the partnership, he would be paid wages. If he was a partner he would receive drawings. There is no evidence that upon receiving this letter the defendant contacted Mr Gaffney and challenged the use of the expression “wages”. The letter was written more than 12 months after Mr Savvas transferred his interest in the partnership. It is possible that the defendant did not pay attention to the expression or understand its significance. Too much must not be made of this matter but the description of Mr Johnson’s remuneration as wages by the defendant’s accountant is consistent with the plaintiff’s case that she was the partner and not her husband.
It was acknowledged by Mr Johnson that there was an occasion when he took money from the partnership in cash to pay for a trip to Melbourne. He asked the defendant if he could do so. She agreed and withdrew the same amount. No assertion was put to Mr Johnson as to the significance, if any, of this incident and so he has not been given an opportunity to explain why he withdrew the money. It may be that he would have treated the withdrawal as a drawing by the plaintiff if accounts of the partnership had been prepared. The preparation of accounts has not yet been undertaken. It may be that the withdrawal would be treated in some other way. In the absence of evidence I am not prepared to speculate as to how the withdrawal should be treated and whether it is of any significance.
I now turn to another matter. Mr Johnson ceased working at the shop at Glenelg because the defendant told him not to return. I think that response by Mr Johnson is more consistent with his position being an employee than a partner. However, I do not regard this matter as of much importance because Mr Johnson said that he had found the situation with the defendant intolerable and he was not prepared to continue to work in the business.
The defendant’s case is that there was an agreement to enter into the partnership between Mr Johnson and the defendant. She did not enter into a partnership arrangement with the plaintiff. The defendant gave evidence that she had a meeting with Mr Johnson before he went to work at the Glenelg shop. He said to her, “My wife Penny Johnson’s name on a lot of things basically because I have got problems financially”. She said this meeting occurred in a shop in the Southern Cross Arcade in the City. He said to her, “I would like to put the business in Penny’s name because I have got financial difficulties”. She said to him, “Yes, that is fine by me”. Her evidence continued that she made that response because she knew “it was only in name only so it didn’t really bother me”. Later, in cross-examination, the defendant said, “We used Penny’s name so that if anything happened to the business Fred would not lose it, that’s why we used Penny’s name”. Later, in cross-examination, she acknowledged that if Mr Johnson became bankrupt the trustee could not take the half share in the business if it was in the plaintiff’s name. It may be seen that Mr Johnson put the proposal that the plaintiff be the defendant’s partner and the defendant agreed. She said that she did not have one discussion with the plaintiff.
The defendant agreed that she signed the application for registration of the business name to which I earlier referred. She said that Mr Johnson organised it and told her to sign it and she did so because she trusted him. He explained to her that if he ever lost any of the business through receivers, he would still be in control of 50 per cent. She said that she understood that she and the plaintiff would hold the business name. She also acknowledged that it was represented to the Taxation Department that the business Books 4 Less - Glenelg was conducted by the plaintiff and the defendant. Eventually, after being pressed about the matter, she agreed that any taxation liability would be the responsibility of the plaintiff and the defendant. Also the defendant acknowledged that it was represented in those documents that the plaintiff and the defendant were the partners. She added that it was because the plaintiff and Mr Johnson wanted it to look that way.
It may be seen from this evidence that the defendant did agree to Mr Savvas’ share in the partnership being taken by the plaintiff and that the documents to which I have referred reflected that agreement.

The defendant said that at no time did she have a conversation with the plaintiff about them becoming partners. She said that she had heard on the grapevine and from friends that the plaintiff was a gambler and she did not want to have a partner who was a gambler. She named persons who had given her this information, including Mr Gaffney. I do not believe this evidence, which I regard as a fabrication. The allegation was not put to the plaintiff or to Mr Johnson, although he was asked if the plaintiff gambled from time to time. He said that she was normal in that regard. I raised that matter with Mr Cudmore during the trial but he maintained that he had asked sufficient questions. The questions established that the plaintiff went to the Casino, which is a customer of her employer, in the course of her employment and occasionally at other times. No allegation was put to the plaintiff about her having a problem with gambling. Neither Mr Gaffney nor any of the defendant’s friends were called to give evidence. I accepted that Mr Cudmore submitted that he did not want to prove that the plaintiff was a gambler. He only wanted to establish that the defendant believed her to be a gambler and that is why she would not have wanted to enter into a partnership with her. Clearly the allegation should have been put to the plaintiff and to Mr Johnson. Evidence from witnesses could have been called. If other persons believed that the plaintiff was a gambler, some credibility could have been given to the defendant’s asserted belief.
The defendant said that she agreed to the plaintiff being a signatory on the bank account at the request of Mr Johnson because she trusted him. She said that he could not be a signatory because he did not want anything in his name. She was asked:
“His Honour
QWouldn’t this be a rather dramatic thing to do if you thought she was a compulsive gambler.
AI didn’t find out until I started having doubts, to be quite honest. I knew in the back of my mind that she was but I didn’t really try and confirm that until the figures, the takings, were not there. So it was only then I started getting a lot of doubts and looking into it a lost more.”
I regard that answer as significant. It does not explain why she would agree to the plaintiff being a sole signatory if she thought she was a gambler. It tends to show that the defendant never thought that the plaintiff was a gambler.
According to the defendant, Mr Savvas told her that Mr Johnson was to be paid $500 a week which she confirmed with Mr Johnson. In cross-examination she said that this payment was in the nature of a manager’s wage. She said that he was to have that amount each week and profits were to be shared equally. I regard this evidence as significant. It confirms in that respect Mr Johnson’s evidence that he agreed with Mr Savvas that he would take his half interest in the partnership. It will be remembered that Mr Johnson told Mr Savvas that he wanted the plaintiff to take the interest in the partnership. Mr Savvas was not called to give evidence. Mr Johnson’s evidence is not contradicted. It was made plain to Mr Savvas and the defendant that the plaintiff was to be the partner and they both agreed.
The defendant asserted that Mr Johnson had not accounted accurately for the money taken in the business and had not banked large sums of money. They are not matters relevant as to whether the plaintiff was a partner in the business. I saw no evidence to suggest that Mr Johnson had not conducted the affairs of the business appropriately but that matter was not subjected to close inquiry.
Also, the defendant gave evidence that there was one occasion when the plaintiff had been requested by Mr Johnson to attend to the banking. She did not do so and Mr Johnson told the defendant that the plaintiff had used the money to be banked, about $6,000, for her own purposes and promised to repay it on the next pay day. This allegation was not put to the plaintiff in cross-examination. She was asked about banking arrangements and she said that she or Mr Johnson would attend to the banking. She said that she did not ever take cash from the business. The allegation was put to Mr Johnson without specifying the amount. He said that he did not recall such an occasion and that his memory was that it did not happen. No bank statements or other records were produced which could have assisted in the proof of the allegation if it is true. I was informed by Mr Cudmore that both parties had copies of the bank statements. I reject the allegation. I consider it to be an after thought by the defendant to try and bolster her case that the plaintiff was in fact unreliable.
Evidence was also given of a large amount of money being found in the safe at the Glenelg shop after Mr Johnson ceased to work in the business. His explanation was that the money was received in the course of heavy trading over the Christmas period and he left before the banking was undertaken. I do not regard this matter as affording any assistance in the resolution of issues which I have to decide. It does not reflect adversely on Mr Johnson but to the contrary. He obviously regarded the money as to property of the partnership and secured it. It does not reflect adversely on either of the parties. There was no objection to the evidence but its relevance is not apparent to me.
I made the following findings:
1Mr Savvas asked Mr Johnson to operate the business at Glenelg in equal partnership with the defendant. His contribution to the capital of the partnership was what was due to him from the partnership in which he was involved in Queensland. Mr Johnson accepted that proposal.
2Mr Johnson required the plaintiff to take his proposed share in the partnership because of his financial position. Mr Savvas agreed. The defendant also agreed.
3The plaintiff agreed to enter into partnership with the defendant and did so. All documentation which was required was prepared and represented that the plaintiff and the defendant were the partners in the partnership.
4The plaintiff and the defendant conducted the business of the partnership through Mr Johnson, as manager, and employed staff. Neither of them participated in the day to day running of the business of the partnership except on infrequent occasions.
5The partnership terminated before annual accounts were prepared.
6The plaintiff and the defendant represented that they were the partners of the partnership through the various documents which I have mentioned and to the National Bank, the Taxation Department, WorkCover and by the registration of the business name.
The first proposition advanced on behalf of the defendant is that there was no intention on the part of the plaintiff and the defendant to enter into partnership to operate the business, or to put it more precisely the defendant had no intention to enter into partnership with the plaintiff. On the face of the circumstances as they existed at the relevant times, there was a partnership between the plaintiff and the defendant which arose by the plaintiff acquiring the existing interest in the partnership from Mr Savvas. The evidence of Mr Johnson is that Mr Savvas agreed that the plaintiff would acquire his half interest and there is no evidence to the contrary. The documents, registrations and the like which came into existence are consistent with the plaintiff acquiring that interest as a partner. There is no contra-indication. The only evidence contrary to the plaintiff having acquired the partnership interest is the evidence at the trial of the defendant that she did not intend to enter into partnership with the plaintiff. I reject that evidence.
I accept the evidence of the plaintiff and Mr Johnson and the obvious inferences which must be drawn from the documentary evidence which I have mentioned. There is simply no credible evidence to the contrary.
It was further submitted that the defendant entered into the partnership arrangement with Mr Johnson but acquiesced in his request that the appearance of the partnership be as between the plaintiff and the defendant. That submission overlooks the evidence that the plaintiff acquired Mr Savvas’ interest with the knowledge and consent of the defendant, Mr Johnson having made it plain that he would not take that interest himself. The defendant’s evidence, which I have mentioned, in itself, establishes that she knew and approved of that transaction. There is no evidence of the defendant having expressed any opposition to the transaction at the time or after it was implemented during the currency of the partnership. I was referred to observations of this Court in Bryant Bros v Theile & Ors [1923] SASR 393 at 401 and Duke Group Ltd v Pilmer (1999) 73 SASR 64 at 268ff but the Court in these cases was concerned with whether a partnership or some other type of arrangement existed which is not an issue in the present case. However, just as it is necessary to consider the circumstances in which persons have conducted themselves in order to determine if there is a partnership in existence regardless of what they have said about that matter, it is appropriate to look at all of the circumstances to consider if a particular person is a partner. As I have said, there is no evidence of any circumstances during the period of the partnership which could even suggest that the plaintiff was not a partner. The only evidence to the contrary is the defendant’s evidence at the trial which I reject.
It was submitted that there was no evidence of a contract between the plaintiff and the defendant before or after 1^st October. The plaintiff did not speak to Mr Savvas or the defendant, hence it was submitted that there was no contact between the plaintiff and the defendant and therefore no contract between them. It is clear that the initial discussions were between Mr Savvas and Mr Johnson. Agreement between them was reached. Mr Johnson discussed the matter with the plaintiff. She agreed to take Mr Savvas’ interest in lieu of Mr Johnson and Mr Savvas agreed. Mr Johnson discussed the matter with the defendant and she agreed. There was agreement between the parties. There is no requirement that they must meet and discuss the matter personally.
The defendant also submitted that it was agreed that the plaintiff become a partner for a limited purpose and Mr Johnson was in fact the partner. The plaintiff was named as a partner for a collateral purpose, namely to protect Mr Johnson’s interest from his potential creditors. The only evidence which suggests that such an arrangement was agreed between Mr Johnson and the defendant is her evidence, which I reject. The evidence which I accept is that it was agreed that the plaintiff would take Mr Savvas’ interest in the partnership and Mr Johnson would manage and operate the business. There was nothing unlawful about this arrangement. I reject the submission that the partners were in fact Mr Johnson and the defendant. It was submitted that the arrangement between Mr Johnson and the defendant that he withdrew money from the partnership indicates that he and the defendant were the partners. I do not agree. He was not asked whether his request was made with the knowledge and approval of the plaintiff. It was established that the plaintiff and Mr Johnson had a close and trusting relationship. His request of the defendant for money to travel to Melbourne does not assist in determining whether the plaintiff was a partner. No authority was cited for the proposition that two persons can only enter into a contract if they discuss the matter personally. Obviously Mr Johnson acted as the agent of the plaintiff for this purpose.
Next it was submitted that the plaintiff did not contribute any capital to the partnership. Once again this submission overlooks the nature of the transaction by which she became a partner. She acquired Mr Savvas’ interest which included his interest in assets of the business and his capital account if one existed. The consideration for her acquisition of that share in the partnership passed between Mr Savvas and the plaintiff. It is likely that Mr Johnson advanced to the plaintiff what was due by Mr Savvas to him upon closure of the Brisbane partnership, but that is a matter between them and is of no concern to the defendant. It is simply not true to say that the plaintiff did not contribute capital to the partnership.
I now turn to the submission on behalf of the defendant regarding the registration of the business name of Books 4 Less - Glenelg. It was submitted that there was no purpose in that registration. It cannot establish the existence of a partnership between the plaintiff and the defendant. Whilst it is undoubtedly true that standing alone the registration could be insufficient to establish that the plaintiff and the defendant were partners, it is evidence that they jointly owned the business name and that they represented that the business had been in operation since 1^st October 2000. I reject the submission that there was no purpose in the registration. It was registered to preserve the name to the plaintiff and the defendant and it is evidence that they carried on business in partnership, but not conclusive evidence.
It was submitted that the plaintiff did not participate in the management of the business of the partnership. That is a matter of no significance. The defendant did not manage the business. As I have said, Mr Johnson carried on the business of the partnership as manager.
The significance of the transactions involving the Mercedes motor vehicle is said, by the defendant, to be that they establish that the plaintiff is willing to give an appearance to a transaction, the substance of which is different. I do not regard these transactions in that way and I have not found them to assist in resolving any matter in issue.
For these reasons I find that the plaintiff and the defendant were the partners in the partnership which conducted the business of Books 4 Less - Glenelg which partnership was dissolved on 16^th January 2002. I enter judgment for the plaintiff. There must be an account and inquiry as claimed by the plaintiff. I shall hear the parties as to the orders which should be made.

[2003] SASC 19

7 February 2003