Kelly v Kelly

This matter concerned an application for special leave to appeal to the High Court of Australia. The applicant, Kelly, sought to overturn a decision of the Full Court. The dispute centred on whether a fishing licence, coupled with an abalone permit, constituted a partnership asset.

The primary legal issue before the High Court was whether the Full Court had erred in reversing the onus of proof, thereby requiring the applicant to prove an implied agreement that the fishing licence and abalone permit were partnership assets. The applicant contended that the Full Court should have applied section 21 of the *Partnership Act*, which establishes a presumption regarding property acquired with partnership funds.

The respondent argued that section 21 of the *Partnership Act* was not applicable in this instance. The respondent explained that the Chief Justice's judgment, which the applicant relied upon, did not suggest there was no presumption under section 21, but rather that in the specific circumstances of this case, there were no legal presumptions to be applied. This was because the fishing licence and abalone permit were acquired before the partnership was formed and were obtained due to the applicant's personal qualifications, not with partnership funds. The respondent further submitted that the authority attached to the licence was also a relevant consideration.