Martin v Geoffrey Withers and Kim Withers Trading as G and G Custom Built

[2017] FCCA 30

FEDERAL CIRCUIT COURT OF AUSTRALIA

MARTIN v GEOFFREY WITHERS AND KIM WITHERS TRADING AS G & G CUSTOM BUILT [2017] FCCA 30

Catchwords:
INDUSTRIAL LAW – Small claim – employees entitlements following closure of business – liability of parties.

Legislation:

Fair Work Act 2009, ss.90, 117, 545.

Partnership Act 1892 (NSW), ss.24, 32, 33, 34, 35, 36, 37.

Cases cited:

Elders Pastoral Limited v Rutherford (1990) 3 NZBLC 99-201

Tower Cabinet Co v Ingram [1949] 2 KB 397

Applicant: DAVID ROSS MARTIN

Respondent: GEOFFREY WITHERS AND KIM WITHERS TRADING AS G & G CUSTOM BUILT

File Number: SYG 123 of 2016

Judgment of: Judge Altobelli

Hearing date: 2 December 2016

Date of Last Submission: 2 December 2016

Delivered at: Wollongong

Delivered on: 15 February 2017

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondent: Haywards Solicitors

ORDERS

1. Pursuant to s.545(2)(b) of the Fair Work Act2009, the Respondent, Kim Withers, pay to the Applicant the sum of $19,689.82 within 30 days of the date of this order.

2. The Respondent, Kim Withers be indemnified by the firm known as Geoffrey Withers and Kim Withers trading as G & G Custom Built as to any payment the Respondent makes pursuant to these orders.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 123 of 2016

DAVID ROSS MARTIN

Applicant

And

GEOFFREY WITHERS AND KIM WITHERS TRADING AS G & G CUSTOM BUILT

Respondent

REASONS FOR JUDGMENT

(as corrected)

Introduction

1. By way of an Application and Form 5 small claim under the Fair Work Act 2009 (‘the Act’), David Ross Martin, the Applicant, seeks relief against Geoffrey Withers and Kim Withers trading as G & G Custom Built, the Respondent.  These reasons for judgment explain the Orders the Court has made.  The Applicant’s claim is for $19,689.82, being accrued but unpaid annual leave in the sum of $15,433.82 and payment in lieu of termination of employment in the sum of $4,256.

Background

1. The Respondent carried on a business of kitchen sales and manufacturing from Taree, in regional New South Wales.  The operation of the business appears to date back to at least 1991.  On 15 December 1991, the Applicant commenced work with the Respondent, and his employment was effectively terminated on 15 October 2015, when the business closed.  By the time of his termination, the Applicant was employed as a manager/project coordinator whose duties included managing staff, on-site measures, CAD drawing, quoting, customer service, colour selection and coordinating trades.  He was employed on a full-time basis, and usually worked between 7 am and 3.30 pm.

2. The Applicant claims that he was an employee of the partnership between the Respondents, trading as G & G Custom Built.  His case is that Geoffrey Withers was responsible for the day-to-day running of the business.

3. Around 15 October 2015, Geoffrey Withers failed to turn up at work or to answer telephone calls.  He was listed as a missing person with New South Wales Police as at that time and was not subsequently located until February 2016.  The Applicant contends that he tried to communicate with Kim Withers, as the other partner, and wife of Geoffrey Withers.  He was concerned about the future operation of the business.  He contends that he found Kim Withers to be disinterested.  In any event, the business closed on 15 October 2015, obviously for lack of a proprietor.  The Applicant was not given notice, or payment in lieu.  In addition, he had accrued annual leave that was also unpaid.  In his application and small claim, he provides a schedule of the long service leave accrual and entitlement.  He also seeks some payment in lieu of notice, amounting to four weeks of wages.

4. On 24 June 2016, the Court made an order dispensing with personal service of the Application and supporting documents on Geoffrey Withers.  The Court declared on an undefended basis that the said Geoffrey Withers had contravened:

   a)s.90(2) of the Act, by failing to pay the Applicant accrued annual leave in the amount of $15,433.82; and

   b)s.117 of the Act, by failing to pay the Applicant payment in lieu of notice in the amount of $4256.

   Geoffrey Withers was ordered to pay to the Applicant $19,689.82 within 30 days of the Order.  As at the date of the final hearing no amount had, apparently, been recovered from Geoffrey Withers.

5. The Applicant chose to continue the claim against Kim Withers, on the basis that she was, at all relevant times, a partner in the business, and thus jointly and severally liable for any amount found owing to him, under the Act.

6. The Respondent’s case is, in essence, that she is not, and more importantly was relevantly not a partner in the alleged partnership of GC and KM Withers, and therefore should not be liable to the Applicant in any way.  She contends that there was no partnership between herself and Geoffrey Withers.

7. She agrees, however, that in 1991 when the Applicant was first employed, she was one of four partners that carried on a business known as G & G Custom Built.  The partners were Geoffrey Withers, Kim Withers, Graham Nicholson, and Christine Nicholson. 

8. Kim Withers contends that on 9 September 1999 this partnership was dissolved when the Nicholsons retired from the business.  Whereas the Applicant contends that Geoffrey Withers and Kim Withers continued on in a new family partnership, Kim Withers asserts that there was no new partnership between her then-husband and herself.

The Evidence

1. At the final hearing, the Applicant relied on his affidavit sworn on 9 November 2016, as well as his application and Form 5 small claim.  He was not required for cross-examination and, accordingly, the Court must accept his evidence unless it is clear from other evidence that a contrary conclusion should be arrived at.

2. The Applicant deposes that G & G Custom Built was established in 1987, and that when he was employed from 15 December 1991 the partnership was constituted by (as Kim Withers concedes) Geoffrey and Kim Withers, and the Nicholsons.  The Applicant concedes that this partnership was dissolved on 9 December 1999 and he relies in this regard on a letter dated 14 April 2016 from J.I. Broadfoot, a chartered accountant of Tuncurry in regional New South Wales, who appears to have been the accountant for the business.

3. The Applicant contends, supported by J.I. Broadfoot, that when the Nicholsons retired from the partnership, Geoffrey and Kim Withers formed a new family partnership to continue trading.  The Applicant contends that his employment continued with this new partnership.  Consistent with the letter from J.I. Broadfoot, the Applicant contends that the business name was, in effect, taken over and then registered in the name of GC and KM Withers and that that registration as such continued until 24 February 2016 - the date of the search of the business name.  The Applicant contended, indeed supported by J.I. Broadfoot, that when it became compulsory for businesses to obtain an ABN number for GST purposes, an ABN was indeed secured for what appears to have been the partnership of GC and KM Withers trading as G & G Custom Built.

4. The Applicant also adduces evidence in support of his contention that there was a partnership between Geoffrey and Kim Withers trading as G & G Custom Built evidenced by, for example, his PAYG payment summary 30 June 2015, his weekly payment slips, the GIO certificate of currency under the Workers Compensation Act 1987, the Building and Construction Industry Long Service Leave Corporation statement for the period 1 July – 12 November 2015, as well as Australian Taxation Office correspondence about superannuation.

5. The Court observes, at this point, that all of the evidence adduced in the Applicant’s case creates a prima facie impression that he was employed by the partnership of Geoffrey and Kim Withers trading as G & G Custom Built.  He acknowledges, however, that the day-to-day operation of the business was conducted by Geoffrey Withers.

The Evidence of Kim Withers

1. In the Respondent’s case, apart from relying on her Amended Response filed 21 October 2016, Kim Withers relied on her affidavits of 23 June 2016, 14 October 2016 and 22 November 2016.  There was also an affidavit of Alicia Maree Goodwin of 23 June 2016, the relevance of which was not apparent.  Kim Withers was cross-examined.

2. It is important to refer to some of the evidence of Kim Withers in detail. 

3. The first, and indeed a very important matter to note, is that in her Amended Response Kim Withers seeks an order that she be indemnified by Geoffrey Withers for any costs, liabilities and payments made in consequence of any orders made by the Court against her and in favour of the Applicant. 

4. Paragraph 2 of the Amended Response is important.  It states:

   “Following the dissolution of the partnership in 1999, Ms Withers understood that she was no longer involved in G & G Custom Built….  Ms Withers did not enter into a further partnership with Mr Withers, she did not participate in the operation of the Respondent’s business in any way and she never received any form of payment from the partnership.  Since 1999, Ms Withers understood that Mr Geoffrey Withers solely owned and operated G & G Custom Built.”

5. The Court observes that paragraph 2 of the Amended Response has been carefully framed in the first, and second sentences to set out her understanding (the word “understood” is used in both contexts.) 

6. In Kim Withers’ affidavit of 23 June 2016, she confirms her evidence that in 1985 when Geoffrey Withers established the partnership, she did not contribute to the establishment of the business, financially or in any other way.  She concedes, however, that the partnership was established on accounting advice as “a partnership for taxation purposes” (paragraph 4).  In paragraph 5 she refers to the dissolution of the original partnership in 1999, and to her lack of knowledge about a new partnership agreement having been executed.  She deposed that no new partnership was established and that she understood Mr Withers operated the business from that time on as a sole trader.

7. Kim Withers deposes that it was not until 2007 or 2008 that she first became aware of the fact that her name was appearing on various commercial documents relating to the business.  She contends that she asked Geoffrey Withers to remove her name from the business entirely, including removal of her name from the ABN registration.  In 2008, she deposes to learning that Geoffrey Withers failed to tell her about business debt, so she followed up her request to be removed from the business.  She was insistent in her evidence that she was never employed by, performed work for, received any wages or other distribution from or made any decisions in relation to the business.

8. At paragraph 9 of her affidavit, she deposes:

   “My contact with Mr Withers became irregular, and our marriage had fallen apart.  Since 3 April 2012 I have worked in Sydney during the week and would only visit our house in Tuncurry on the weekend.”

   In cross-examination, she agreed that the physical separation from her husband, Geoffrey Withers, took place when she moved to Sydney.  She then gives evidence about a taxation debt and her communication with her husband about this debt.  She deposes to a number of interactions with the Applicant in October 2015 and subsequently in which he was trying to recover what he perceived to be his entitlements.  Interestingly, in one conversation with the Applicant on 19 October 2015, Kim Withers said to him (paragraph 19):

   “I’m not involved in the business.  The only reason I might be listed as a partner is because Geoffrey lied to me.  He yelled at me and told me he had taken me out of the business completely back in 2008.”

   Kim Withers clearly was conscious of the fact that as at October 2015, she “might be listed as a partner” but equally clearly claimed to be the victim of her former husband’s deceit.

9. In this affidavit Kim Withers attaches a statutory declaration signed by Geoffrey Withers dated 2 April 2016.  She appears to place considerable weight on this document.  It is corroborative of Kim Withers’ assertion that she was not involved in the business and did not receive any income from it.  However, Geoffrey Withers states in his affidavit:

   “The only reason she was initially listed as a partner was through advice from an accountant Jack Broadfoot & Associates, in which he stated it would help with distribution of any profit of the business.  It was a result of my neglect that I did not formally remove Kim’s name from the business, the ABN and joint bank accounts and other business documentation.”

10. With great respect to Kim Withers, and those advising her, this document, which Kim Withers clearly relies on in her case, is in fact corroborative of the existence of a partnership for taxation purposes, whether formal or otherwise.  The Jack Broadfoot & Associates that Geoffrey Withers refers to is clearly the J.I. Broadfoot who provided the letter dated 14 April 2016 relied on in the Applicant’s case.

11. In Ms Withers’ affidavit of 14 October 2016 she annexes a response from the New South Wales Police pursuant to her government information public access application.  Amongst other things, the letter states that Mr Withers had been found, but did not want his whereabouts to be known.  Other documents annexed to her affidavit suggest that Geoffrey Withers continues to receive his Centrelink payments, and has been operating his bank account.  The New South Wales Police documents are clearly based on information produced by Kim Withers.  In her application, for example, she describes herself as the “next of kin” of the alleged missing person, Geoffrey Withers.  At another place she describes herself as the “ex-wife”.  At one part of the form it states “the NOK moved out of the family home approximately two years ago and has been residing in Sydney with their two daughters and grand-children since.  The last contact either she or their daughters have had with the MP was on 24 August this year.”

12. This information would suggest firstly, that the application was lodged in 2015, and secondly that Kim Withers represented to the New South Wales Police for the purposes of this application that she had only moved out of the family home in Tuncurry in about 2013.  She asserted previously, however, that the date of physical separation was in April 2012 when she commenced work in Sydney.

13. In another section of the form there is reference to:  “Kim Withers requested that she be the initial point of contact.”  There is another reference in this record which states:  “Withers stated she has obtained the MP’s St. George Bank account details, PBS medication details and has an updated photo of the MP.”

14. Attached to the application form is what appears to be a photocopy of the driver’s licence for Kim Maree Withers which expires 28 August 2016.  On the front side of the driver’s licence it refers to her address as (omitted), but on the reverse side where the official change of address label is attached it states (omitted).  What is clear is that the former home of Mr Withers and Ms Withers was (omitted).  It is unclear when the driver’s licence was originally taken out.

15. The next affidavit from Kim Withers was affirmed 22 November 2016.  In this affidavit she deals with the letter from the accountant, Jack Broadfoot dated 14 April 2016.  At paragraph 4, she agrees with the assertion that the original partnership involving the Nicholsons was dissolved on 9 December 1999.  In paragraph 5, however, she deposes as follows: 

    “I refer to the second paragraph of Mr Broadfoot’s letter.  I do not recall if I signed any document in relation to a new partnership following the dissolution on 9 December 1999.”

16. Clearly, Kim Withers does not rule out the possibility that she did sign a document which is, at the very last, the implied assertion that Mr Broadfoot makes.  Nonetheless, in paragraph 6 of her affidavit she insists that she never “had any involvement in the business of G & G Custom Built.”  She sets out once again her evidence about discovering the business debts in 2008 and her attempts to formally get out of the business at that time.  She also sets out evidence about the Australian Taxation Office proceeding.  It is clear that she managed to escape liability for that debt, having convinced the Australian Taxation Office that she was not a partner.  She annexes the letter from the Inspector-General of Taxation dated 14 November 2016 which clearly sets out the context of the representations made.  In the second paragraph of the said letter the Inspector-General states: 

    “I understand that as the ATO verbally agreed that since 2008 you were no longer a partner in your ex-husband’s business, G & G Custom Built...”

17. Given that Kim Withers does not produce to the Court the written or oral representations made to the Inspector-General of Taxation, the only reasonable inference the Court can draw is that she represented to the said Inspector-General that she had not been a partner since 2008 which is, of course, totally inconsistent with her submission to the Court that she was never a partner with Geoffrey Withers.

18. In any event, the Court otherwise has concerns about the annexure C, purporting to be the letter from the Inspector-General of Taxation as it seems that a substantial part of page 2 of that document was not reproduced.

19. Kim Withers was cross-examined.  Unlike Ms Withers, who was represented by an experienced solicitor, the Applicant was representing himself.  He did the best he could in circumstances where it was clear, and without in any way being disrespectful to him, that the Applicant did not really know what were the issues before the Court.  In any event, Kim Withers acknowledged that despite her evidence that she had received no financial benefit from G & G Custom Built and that Geoffrey Withers had in fact paid for a car that she had driven since 2000.

20. The Applicant cross-examined Kim Withers about the sale of their house at Tuncurry.  She confirmed that the property was jointly owned with Geoffrey Withers, and that she used a power of attorney that he had previously given to her in order to affect the sale.  She discovered that there was a $150,000 business overdraft secured against the house, as well as a number of other business debts.  The secured debts had to be paid out of the sale proceeds.  She says that she received about $50,000 net, that the property was sold in July and settlement was effected on 19 August 2016.  When the Court enquired as to why she had not disclosed this information in any of her affidavits, she explained that she did not think it was relevant and indeed that she had “never thought about it”.  She then added words to the effect:  “The partnership debts were paid out.”  When asked to explain what partnership debts other than the business overdraft were paid out she explained that two suppliers to the business had lodged caveats and that these were paid out on settlement.

Was there a partnership between Geoffrey and Kim Withers?

1. Whether there was a written partnership agreement between Geoffrey Withers and Kim Withers is not, of itself, indicative of the existence of a partnership between them.  It is interesting for the Court to observe that at its highest, the evidence of Kim Withers was that she did not recall signing one.  The evidence from the accountant, Mr Broadfoot does not indicate whether or not the partnership that emerged from the first partnership involving the Nicholsons was in fact reduced to writing.  There are obvious benefits in establishing a written partnership agreement, but the learned author of the Law of Partnership in Australia, ninth edition, expresses the opinion at 3.100 that “such formalities are generally not required by law.”

2. Whether there was a partnership in the circumstances of this case is a matter of fact and the matter can be determined in favour of the Applicant largely on the basis of the evidence of Kim Withers herself.  The best case scenario for Kim Withers is that whatever partnership existed between Geoffrey Withers and herself ended in 2008, but a more likely finding is that the Respondent has failed to adduce sufficient evidence to lead to a finding that what partnership there was with Geoffrey Withers has been dissolved. 

1. When one has regard to the relevant provisions of the Partnership Act 1892 (NSW) s.32, 33, 34 and 35, there is simply no evidence before the Court to suggest any of the matters referred to therein have occurred.

2. Indeed, the totality of the evidence before the Court including the PAYG payment summaries, weekly payslips, ABN and business name searches, GIO certificate of currency, and building and construction long-service leave corporation documents all very actively suggest to the world at large that the partnership between Kim Withers and Geoffrey Withers could not possibly have ceased to exist before the business closed on 15 October 2015.

3. But, as will be seen below, even if the assertion by Kim Withers was correct, and that she had somehow ceased to be in partnership with Geoffrey Withers, it makes no difference from the perspective of the Applicant.

Rights of the applicant against Kim Withers?

1. Section 36 of the Partnership Act1892 (NSW) provides as follows:

   36 Rights of persons dealing with firm against apparent members of firm

   (1) When a person deals with a firm after a change in its constitution, the person is entitled to treat all apparent members of the old firm as still being members of the firm until the person has notice of the change.

   (2) An advertisement in the Gazette and in at least one newspaper circulating in Sydney and one newspaper circulating in the district in which the firm carries on business shall be notice as to persons who had not dealings with the firm before the date of the dissolution or change so advertised.

   (3) The estate of a partner who dies, or who becomes bankrupt, or of a partner who, not having been known to the person dealing with the firm to be a partner, retires from the firm, is not liable for partnership debts contracted after the date of the death, bankruptcy, or retirement respectively.

2. The position of the Applicant, as an employee of the partnership in 2008 when Kim Withers asserts she ceased to be a partner, is that of a person dealing with the firm “after it changed in its constitution” (again, accepting the assertion of Kim Withers). Section 36(1) states that the Applicant “is entitled to treat all apparent members of the old firm as still being members of the firm until the person has notice of the change.” Of course, the evidence is replete with examples of the continued representation to the Applicant that he was employed by the partnership known as GC & KM Withers, ie, clearly including Kim Withers. There is no suggestion from the evidence, nor was it put to the Applicant or otherwise asserted, that the Applicant knew that Kim Withers was not a member of the firm known as GC & KM Withers until after 15 October 2015 when Geoffrey Withers disappeared.

3. At paragraph 6.115 of the Law of Partnership in Australia, 9th edition, the learned author states:  

   The liability of persons who represent themselves or suffer themselves to be represented as partners, without in fact ever having been partners, was dealt with in the proceeding section [referring to section 36 Partnership Act]. The first and second subsections of this provision concern the possible liability of persons, who were actually partners at one time but had ceased to be partners at the time of dealing upon which it is sought to make them liable. Two different classes of dealers are envisaged: namely, those who had dealings with the firm prior to the change and persons who had no such dealings. In either case, however, the retired partner, if he or she is to be held liable, on the subsection dealings, must be an apparent partner at the time of those dealings.

4. It should be noted that in the present case the Applicant falls into the former class of dealer, ie, one who had dealings with the firm prior to the (alleged) change in partnership. In other words, section 36(1) applies.

5. The learned author then refers to relevant court decisions.  The first is a judgment of the New Zealand Court of Appeal in Elders Pastoral Limited v Rutherford (1990) 3 NZBLC 99-201, and the second one being  Tower Cabinet Co v Ingram [1949] 2 KB 397 (CA). These cases establish the following propositions of law. The first is that the Applicant’s knowledge that Kim Withers was a partner in the firm before the (alleged) dissolution is one based on a belief arising from general notoriety.

6. The evidence before the Court satisfies it that the continued representations of Kim Withers being a partner postdating 2008 would have entitled the Applicant to believe that she was a partner at the relevant time.  Moreover, the focus is not on whether Kim Withers represented herself as a partner,  but rather whether she suffered herself to be represented as a partner, a matter which the Court finds is also clearly established on the evidence.  Even after she became aware of partnership debts and made certain protestations in 2007 and 2008, she did nothing to protect herself in any way. 

7. The cases also establish that in order for Kim Withers to be an “apparent” member of the firm, it means apparent to the Applicant, again a matter clearly established to the Court’s satisfaction.  In the absence of the Applicant having actual knowledge that Kim Withers was no longer a partner, he was perfectly entitled to treat her as continuing to be a partner. 

8. Section 37 of the Partnership Act 1892 (NSW) is relevant in this regard. It states:

   37 Right of partners to notify dissolution

   On the dissolution of a partnership or retirement of a partner any partner may publicly notify the same, and may require the other partner or partners to concur for that purpose in all necessary and proper acts, if any, which cannot be done without the partner’s or their concurrence.

9. At 7.65 of the Law of Partnership in Australia, the learned author observes:

   While this section is couched in the most general terms it is of particular importance to retiring partners, who by appropriate publication ensure freedom from liability for subsequent transactions of the continuing firm.

   It was not suggested in the Respondent’s case that she had exercised the rights available to her under s.37 of the Act.

Conclusion on liability

1. Even if the evidence of Kim Withers was accepted that her partnership with Geoffrey Withers was terminated in 2008, it would not change the position so far as the Applicant was concerned.  He was entitled to believe that she continued to be a partner and thus jointly and severally liable for the debts of the partnership.

2. The interpretation of s.36 advanced on behalf of Ms Withers was, with respect, clearly misconceived. Her solicitor’s submission was, in effect, that before s.36 could be invoked, the Court would have to find that there was a partnership between Geoffrey Withers and Kim Withers. His argument was, firstly, that there was no such partnership, and secondly, even if there was, that it was terminated in 2008, according to Kim Withers.

3. The Court finds, of course, that there was a partnership, but even if it ceased in 2008 the interpretation advanced about s.36 cannot possibly be correct. Section 36 sets out the rights of person dealing with a firm against apparent members of the firm. Subsection (1) makes it clear that it intends to deal with a situation when “a person deals with a firm after a change in its constitution...”.

4. This section is intended to deal with the rights of third-parties dealing with a firm in good faith and without notice of changes to the constitution of the firm. It specifically deals with past partnerships. All that a court has to do is to find that there was a partnership at some stage in order for s.36 to be invoked. Clearly, on the facts of this case, there was a partnership as at 2008 and even if it was somehow dissolved by Kim Withers, the Applicant’s continuing right to treat her as a partner was unaffected.

Quantum

1. On behalf of Kim Withers it was asserted that even if she was liable, the maximum judgment that could be entered against her in respect of annual leave was $13,135.16 as the Applicant was not entitled to a 17.5 per cent loading of $2,298.65.  This submission was made in passing and is not otherwise referred to in any of the material filed by Kim Withers, or in her solicitor’s outline of submissions.  Doing the best the Court can, the Applicant appears to be covered by the Building and Construction General On-Site Award 2010 [MA000020] which does provide for annual leave loading.  Accordingly, there is no basis for somehow reducing the Respondent’s liability. 

2. The Applicant is entitled to judgment against Kim Withers in the sum of $19,689.82.  Obviously, this liability is a joint and several one with Geoffrey Withers, and the Applicant could not recover more than the sum of $19,689.82 from either, or both of them. 

Kim Withers’ claim for indemnity

1. In her Amended Response Kim Withers seeks to be indemnified for any costs, liabilities and payments incurred or made in consequence of any orders made by the Court against her, by Geoffrey Withers.

2. If Kim Withers ceased to be a partner in the firm in 2008, she is clearly entitled to be indemnified by Geoffrey Withers in respect of the present judgment debt against her.

3. However, if Kim Withers did not cease to be a partner in 2008, then section 24(1)(2) of the Partnership Act 1892 (NSW) applies. This provision is entitled: “Rules as to the interests and duty of partners other than partners in incorporated limited partnership subject to special agreement.”

   The provision states that the interests of partners in the partnership property and their rights and duties in relation to the partnership shall be determined, subject to any agreement expressed or implied between the partners, by the following rules.  The relevant rule for present purposes is as follows: -

   (2) The firm must indemnify every partner in respect of payment made and personal liabilities incurred by the partner.

   (a) In the ordinary and proper conduct of the business of the firm, or

   (b) In or about anything necessarily done for the perseveration of the business or property of the firm.

4. Thus, if the partnership was not terminated in 2008, Kim Withers is entitled to be indemnified by the firm, ie, the partnership, just as, on the same scenario, Geoffrey Withers is entitled to be indemnified by the firm. 

5. As stated above, Kim Withers has failed to satisfy the Court that the partnership which the Court clearly believes existed between them as at 2008, and indeed probably since 1999, was dissolved or terminated. Accordingly, the right that Kim Withers has, and indeed the same right that Geoffrey Withers has, is pursuant to s.24 of the Act to be indemnified by the partnership.

6. Any order by the Court will thus need to reflect this indemnity.  The indemnity does not, of course, absolve the obligation of Kim Withers to meet the liability to the Applicant.

Conclusion

1. The Applicant has made out its case against Kim Withers trading as G & G Custom Built that she contravened section 90(2) of the Act, by failing to pay to the Applicant accrued annual leave in the amount of $15,433.82. The Court also is satisfied that the Respondent contravened s.117 of the Act, by failing to pay the Applicant payment in lieu of notice in the amount of $4,256. Accordingly, the Court orders that pursuant to s.545(2)(b) of the Act, that the Respondent, Kim Withers, pay to the Applicant the sum of $19,689.82 within 30 days of the date of this order.

2. However, the Court also declares that Kim Withers is entitled to be indemnified by the firm known as Geoffrey Withers and Kim Withers trading as G & G Custom Built as to any payment she makes pursuant to these orders.

I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Date: 15 February 2017

Corrections

Paragraph 28 – Addresses omitted.