Lam v Truong - [2008] WADC 156

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: LAM -v- TRUONG [2008] WADC 156

CORAM: MCCANN DCJ

HEARD: 8-9 AUGUST, 23-26 OCTOBER 2007 & 28 MARCH 2008

DELIVERED : 17 OCTOBER 2008

FILE NO/S: CIV 1820 of 2005

BETWEEN: THANH VAN LAM
Plaintiff
AND
HOAN THO TRUONG
Defendant

Catchwords:

Partnership dispute - Market gardeners - Breach of agreement - Dissolution agreement - Plaintiff's entitlements - Turns on own facts

Legislation:

Fair Trading Act 1987 (WA), s 10, s 79
Partnership Act 1895 (WA), s 10, s 12, s 27, s 34, s 55

Result:

The partnership was dissolved by agreement on 10 June 2005

The defendant is obliged to pay the plaintiff for labour and expenses up to the date of the dissolution

Representation:

Counsel:

Plaintiff: Ms S Varughese
Defendant: Mr S R Sirett

Solicitors:

Plaintiff: Sucy Varughese
Defendant: Robertson Hayles

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

Fox v Percy (2003) 214 CLR 118
Isotomic Pty Ltd v International Raceway Pty Ltd [2007] SASC 111
Jones v Dunkel (1959) 101 CLR 298
Lazarevic v The State of Western Australia [2007] WASCA 156
Secure Parking (WA) Pty Ltd v Wilson & Anor [2005] WASC 264

MCCANN DCJ:

Introduction

This matter arises from the breakdown of a market‑gardening partnership between the plaintiff and the defendant. The plaintiff is a market gardener. The defendant is an electrician and part‑time market gardener who owns a rectangular shaped property of approximately 15.3 acres at 304 Badgerup Road, Wangara ("the Badgerup property"). Both parties emigrated to Australia from Vietnam many years ago.
At all material times the defendant operated a small market garden on a portion of the Badgerup property. The parties entered into a partnership for the purpose of growing strawberries on the property in the 2005 season. In June 2005 the plaintiff retired from the partnership. The defendant continued alone and harvested the crop later that year. The parties now seek rulings from the Court as to the nature of their partnership interests in the light of these and other circumstances.
The trial occupied seven days in three hearings over eight months. Further, both the plaintiff and defendant speak very little English and testified through a succession of different interpreters. Accordingly, there were real difficulties with the flow of the evidence, especially that of the plaintiff, whose inter‑communication with his interpreters, and hence testimony, was markedly less fluent than appears from the transcript. (I have mentioned some examples in these reasons.) There are numerous factual issues and, as will be seen, both parties were unreliable witnesses. For all of these reasons the task of reviewing the evidence and making factual findings has been painstaking and time‑consuming. Regrettably, this has resulted in a lengthy delay in the delivery of this judgment.

The pleadings

The plaintiff pleads that in or about February 2005 he and the defendant entered into an oral agreement to grow strawberries on the Badgerup property in partnership on the following express terms:
(i)The firm would:
(a)Operate under a…

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 Lam v Truong

Details

AGLC: Lam v Truong [2008] WADC 156
Case: [2008] WADC 156
Decision Date: 17 OCTOBER 2008

CaseChat Overview and Summary

The case of Lam v Truong was heard in the Supreme Court of South Australia, where the plaintiff, Lam, sued the defendant, Truong, over a partnership dispute. Lam and Truong were market gardeners who had entered into an agreement to form a partnership. The partnership dissolved, and Lam claimed he was owed entitlements under the terms of their partnership agreement. The court was required to determine whether the dissolution agreement accurately reflected the entitlements of the plaintiff under their partnership arrangement.

The primary legal issue the court had to decide was whether the dissolution agreement correctly represented the terms of the partnership and if the plaintiff was owed any additional entitlements. The court examined the terms of the partnership agreement, the dissolution agreement, and the evidence presented by both parties to determine the validity and enforceability of the dissolution agreement. The court had to ascertain whether the dissolution agreement was a fair and accurate reflection of the partnership's terms and whether any additional entitlements were owed to the plaintiff.

The court found that the dissolution agreement did not accurately reflect the terms of the partnership agreement, particularly concerning the plaintiff's entitlements. The court held that the dissolution agreement was not a complete and fair representation of the partnership's terms and that the plaintiff was owed additional entitlements. The court emphasised that the specific terms of each partnership must be examined on their own facts, and the entitlements owed to a partner cannot be determined by a generic dissolution agreement. The court ordered the defendant to pay the plaintiff the additional entitlements as determined by the court.

The court ordered that Truong pay Lam the additional entitlements as determined by the court. The court's decision highlighted the importance of accurately reflecting partnership terms in a dissolution agreement and emphasised that each partnership must be examined on its own facts. The court's ruling provided clarity for market gardeners and other partners in similar situations, ensuring that their entitlements are protected in the event of a partnership dissolution.

Orders