SUPREME COURT OF QUEENSLAND
CITATION:
Lewis v Lewis [2022] QSC 208
PARTIES: Richard LEWIS
(Plaintiff)v
Robert LEWIS
(Defendant)FILE NO/S:
95/19
DIVISION:
Trial Division
PROCEEDING:
Trial
ORIGINATING COURT:
Supreme Court
DELIVERED ON:
30 September 2022
DELIVERED AT:
Brisbane
HEARING DATE:
15 August 2022 to 18 August 2022
JUDGE:
Crowley J
ORDER: 1. The Defendant’s counterclaim is dismissed.
2. I declare the Partnership between the Plaintiff and the Defendant was dissolved on 21 January 2019.
3. I order that the business and affairs of the Partnership be wound up.
4. I order that for the purposes of the winding up of the Partnership:
i. a final settlement of accounts be undertaken by an accountant to ascertain the assets of the Partnership available for distribution;
ii. such accountant to be appointed by written agreement between the Plaintiff and the Defendant within 14 days of these orders, and failing such agreement, the Plaintiff is to arrange for the appointment of an accountant nominated by the Chief Executive of the Institute of Chartered Accountants; and
iii. after the final settlement of accounts, the assets of the Partnership are to be distributed in accordance with sections 42 and 47 of the Partnership Act 1891 (Qld), without deduction for the Defendant’s Remuneration Claim.
CATCHWORDS:
PARTNERSHIP – DISSOLUTION AND WINDING UP – DISSOLUTION BY THE COURT – GENERALLY – where the parties are brothers – where the parties were equal partners in a partnership – where the plaintiff seeks a declaration that the partnership was dissolved on or about 21 January 2019 in accordance with ss 42 and 47 of the Partnership Act 1891 (Qld) – where it is uncontentious that the Court ought to make this declaration – where the defendant brings a counterclaim for payment of unpaid wages, together with interest – whether unpaid wages and interest ought to be recognised and discharged in any final settlement of accounts before distribution of any surplus
CONTRACTS – PARTICULAR PARTIES – PARTNERS –where the defendant was employed by the partnership – where there was never a written contract or agreement setting out the terms of the defendant’s employment by the partnership or his remuneration – whether the parties entered into verbal agreements as to the defendant’s wages – whether, if established, verbal terms should be implied into those agreements – whether, if established, one of the agreements was abandoned or superseded – whether, if established, the defendant was paid in accordance with the agreements – whether, if established, the defendant is entitled to remuneration under the agreements
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – FORM OF PLEADING – STATEMENT OF MATERIAL FACTS ETC. NOT EVIDENCE – where the defendant gave evidence about a conversation between the parties – where the defendant had not pleaded this conversation – whether the purported conversation was a material fact that had to pleaded by the defendant – whether the purported conversation was a matter that if not stated specifically may take the plaintiff by…
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- AGLC
- Lewis v Lewis [2022] QSC 208
- Case
- [2022] QSC 208
- Decision Date
CaseChat Overview and Summary
The court found that the partnership had been dissolved as of 21 January 2019, in accordance with sections 42 and 47 of the Partnership Act 1891 (Qld). While there was evidence of a conversation not pleaded by the defendant, the court ruled that the omission did not prejudice the plaintiff to the extent of denying procedural fairness. The court held that the defendant was not entitled to remuneration under the verbal agreements, as they were not finalised and there was no agreement on the actual amount. Furthermore, the court determined that the defendant's counterclaim was not time-barred, and the amendments made to the pleadings did not constitute a new cause of action.
The court dismissed the defendant's counterclaim, declared that the partnership was dissolved on 21 January 2019, ordered the winding up of the partnership, and directed the final settlement of accounts and distribution of assets according to the Partnership Act, without deducting the defendant's remuneration claim.
Orders
Orders of the court
1. The Defendant’s counterclaim is dismissed.
2. I declare the Partnership between the Plaintiff and the Defendant was dissolved on 21 January 2019.
3. I order that the business and affairs of the Partnership be wound up.
4. I order that for the purposes of the winding up of the Partnership:
i. a final settlement of accounts be undertaken by an accountant to ascertain the assets of the Partnership available for distribution;
ii. such accountant to be appointed by written agreement between the Plaintiff and the Defendant within 14 days of these orders, and failing such agreement, the Plaintiff is to arrange for the appointment of an accountant nominated by the Chief Executive of the Institute of Chartered Accountants; and
iii. after the final settlement of accounts, the assets of the Partnership are to be distributed in accordance with sections 42 and 47 of the Partnership Act 1891 (Qld), without deduction for the Defendant’s Remuneration Claim.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Section 35 of the Partnership Act provides:35Dissolution by expiration or notice(1)Subject to any agreement between the partners, a partnership is dissolved—(a) if entered into for a fixed term—by the expiration of that term;(b) if entered into for a single adventure or undertaking—by the termination of that adventure or undertaking;(c) if entered into for an undefined time—by any partner giving notice to the other or others of the partner’s intention to dissolve the partnership.(2) In the last mentioned case the partnership is dissolved as from the date mentioned in the notice as the date of dissolution, or, if no date is so mentioned, as from the date of the communication of the notice. In those circumstances, it will be appropriate to make the declaration sought by Richard that the Partnership was dissolved on 21 January 2019. As noted above, various objections were taken to certain evidence sought to be given by Robert about matters that were about the content of conversations that were not pleaded. I allowed this evidence to be given on a provisional basis and indicated that I would rule upon the question of admissibility in each case in due course. The first and principal objection arose during the cross-examination of Richard. Robert’s counsel put to Richard that in June 1993 he had a conversation with Robert about what he should be paid in respect of his unpaid wages. It was put that this was a conversation which happened at Emerald on 25 June 1993. Richard denied any such conversation.[120] It was suggested to Richard that in that conversation Robert proposed he should be paid $150,000 but Richard suggested $100,000 would be fairer. Richard denied this was the case and maintained that the $100,000 amount came up in the conversations in 1989 and 1990. Richard’s counsel objected to this line of questioning on the basis that the asserted conversation on 25 June 1993 had not been pleaded and that as a result Richard had approached the case on a mistaken basis. Robert’s counsel accepted that the conversation had not been pleaded but submitted it was a matter of evidence, consistent with Robert’s case, that the parties had not arrived at any concluded agreement in 1992.[121][120]T1-81:11-25.[121]See Further Amended Defence at paragraph 24B(c)(2)B and paragraph 24B(c)(4)G - wherein it is pleaded that the Plaintiff and the Defendant did not finalise the amount the Defendant was to be paid for the unpaid wages or the lump sum for interest to that time during the Theresa Street Meeting alleged to have taken place in or about late 1992; Second Further Amended Counterclaim at paragraphs 5B, 5C and 5D – in respect of the asserted Reasonable Sum Implied Term. On the question of admissibility, the issue for me to determine is whether this conversation should have been pleaded and, if so, whether Richard has been taken by surprise and denied procedural fairness by its omission from Robert’s pleaded case. Whilst there is some discrepancy in the pleadings between what is asserted by Robert in his Further Amended Defence about the Theresa Street Meeting (i.e. that he and Richard agreed that he should be paid a “reasonable rate of remuneration for his work, together with interest”) and what is pleaded in his Second Further Amended Counterclaim (that he and Richard agreed he would be paid “remuneration” by the Partnership in consideration for his work for the Partnership for the period 1 November 1982 to 30 June 1988), I do not accept Richard’s complaint that he has approached the case on a mistaken basis.[122] It is made plain in the Second Further Amended Counterclaim that Robert contends that the amount he was to be paid for his unpaid wages, and the lump sum for interest to that time, was not finalised during the Theresa Street Meeting. Although Robert pleads there was an express oral term agreed to that he would be paid remuneration, he also pleads there was no agreement as to the actual amount. The pleadings further make plain that Robert contends it was an implied term of the 1982-1988 Wages Agreement that he would be paid remuneration calculated by reference to a “reasonable wage”. The evidence given by Robert about the Theresa Street Meeting and the 1982-1988 Wages Agreement was consistent with the pleaded case in those respects. [122]T1-82:8-29.