Lindsay and Lindsay & Ors

FAMILY COURT OF AUSTRALIA

LINDSAY & LINDSAY AND ORS [2014] FamCA 401

FAMILY LAW – PROPERTY –  Property Settlement – Where wife asserts property of the parties includes a 1/3 interest in a family partnership – Where husband and other respondents deny any such interest is held by either the husband or wife – Where wife pleaded 11 representations had been made to her by one or more of the respondents which were denied or alternatively said not to have the meaning for which the wife contends – Where wife made pleadings on the basis of partnership or in the alternative of joint venture, estoppel or constructive trust – Where convenient for the court to deal with the facts generally and proceed to a consideration of the individual pleaded claims to determine if they are made out – Where court not satisfied that any such representations had been made, or if made they had not been so in the way contended by the wife.

FAMILY LAW – PROPERTY – Partnership – Where court considered the definition of partnership as provided for in section 5 of the Partnership Act 1891 (Qld) – Where court considered in deciding whether or not a partnership exists section 6 of the Act sets out rules to which regard must be had which includes the receipt of a person of the profits of a business if prima facie evidence that the person is a partner in business – Where the court noted that whether or not persons are carrying on a business in common is a matter of fact and noted ‘the test of whether a business is being carried on in common can be reduced to the proposition: is the person who carries on that business doing so as agent for all the persons who are alleged to be partners?’ – Where court found a partnership relationship is founded in contract – Where the court found there was no existence of a partnership as there was never any discussion, much less agreement about the formation of a partnership attendant upon the marriage of the husband and wife; and that thereafter the parties have conducted themselves in a manner inconsistent with there being an extant farming partnership as asserted by the wife – Where the court further found that the absence of any liability on the part of any asserted partners other than the second and third respondents tells against the existence of a partnership – Where correspondence was also inconsistent with there being a partnership.

FAMILY LAW – PROPERTY – Joint Venture – Where wife asserts in the alternative  the property of the wife and husband includes a 1/3 interest in a joint venture – Where the court noted the critical test of the joint venture concept arises where participants intend to be involved in the supervision of an integrated business activity – Where found the foundation of a joint venture must be in an agreement which in order to be enforceable needs to…