Moloney v Piachniarski

In the Supreme Court of Western Australia, the case of Moloney v Piachniarski [2004] WASC 240 involved a dispute over the dissolution of a partnership and the subsequent appointment of a receiver and manager. The partnership, which operated under various names in New South Wales, Western Australia, and Victoria, dissolved on April 10, 2003. The plaintiff, Patrick Moloney, claimed a two-fifths interest in the partnership, while each of the defendants, Marcel Piachniarski, George Okell, and Colm O'Donoghue, claimed a one-fifth interest. The defendants sought the appointment of a receiver and manager to wind up the partnership's affairs, a request the plaintiff opposed.

The court addressed several legal issues, including the jurisdiction to appoint a receiver under the Supreme Court Act 1935 (WA), s 25(9), and the inherent power of the court to make such an appointment. The court considered whether sufficient grounds existed for the appointment, given the dissolution of the partnership and the breakdown in relations between the parties. The court also examined the function and powers of a receiver and manager, the identity of the receiver, and the remuneration of the receiver.

The court concluded that the appointment of a receiver and manager was warranted due to the serious dispute between the parties and the need to address the trailing commissions and agreements with lending institutions. The court decided to confer on the receiver and manager specific powers, including the ability to collect books of account, records, and financial statements, and to dispose of partnership assets. The court declined to grant the receiver powers to investigate the conduct of the partnership affairs, as that was not within the scope of a receiver's duties. The court also rejected the proposal that the plaintiff indemnify the receiver for his remuneration and liabilities, stating that such costs should be borne by the partnership's property.

Ultimately, the court ordered the appointment of a receiver and manager, giving the parties an opportunity to confer and, if necessary, lead further evidence and make submissions concerning the identity of the receiver, the remuneration of the receiver, security to be given by the receiver, and any other necessary or incidental orders.