Morkaya v Parkinson - [2008] NSWSC 1050

CITATION: Morkaya v Parkinson; Parkinson v Morkaya [2008] NSWSC 1050

HEARING DATE(S): 29 August, 4 September & 2 October 2008

JUDGMENT DATE :
10 October 2008

JURISDICTION: Equity Division
Duty List

JUDGMENT OF: Brereton J

DECISION: Provisional liquidator appointed to Ativa; more extensive reporting regime instituted in respect of DCA.

CATCHWORDS: INTERLOCUTORY APPLICATION – interim management of two businesses owned by former couple – where de facto relationship disputed – where one business (OSP) run by corporation (Ativa) in which couple were shareholders and directors and other (DCA) arguably a partnership – where personal relationship has irretrievably broken down – where interlocutory regime already in place for interim management of businesses with female partner having control of OSP and male of DCA – where male partner applies for interim control of OSP – principles applicable on dissolution of partnership – whether female partner had mismanaged OSP and/or failed to conduct it openly and impartially – whether male partner should be given control of OSP – where corporation was insolvent or approaching insolvency – where there was reason to doubt the ability of either partner to manage the business impartially and transparently – where both partners had prima facie preferred his or her own interests to those of corporation and creditors – whether provisional liquidator should be appointed – whether male partner should be required to seek leave before filing further notices of motion – whether sufficient reason to alter current regime for interlocutory management – whether female partner should have greater visibility of DCA business – whether parties should be ordered to release rental bond of premises leased by both businesses to lessor.

LEGISLATION CITED: (NSW) Property (Relationships) Act 1984, s 20

CATEGORY: Procedural and other rulings

CASES CITED: Alcock v Robb (1978) 2 BPR 9625
Beale v Trinkler [2007] NSWSC 1058
Chan v Zacharia (1984) 154 CLR 178
Cuming v Hennessy [2005] NSWSC 1219
Davey v Donnelly (NSWSC, 16 May 1991, McLelland J, unreported)
Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (1998) 28 ACSR 688
Fitz-Gibbon v Khoury (NSWSC, Powell J, 1 March 1985, unreported)
Grace v Grace [2007] NSWSC 6; (2007) 25 ACLC 141
Henry v Stewart (NSWSC, Cohen J, 9 June 1995, unreported)
Liquor National Wholesale Pty Ltd v The Redrock Co Pty Ltd [2007] NSWSC 392
Morkaya v Parkinson [2008] NSWSC 642
Nutech Wall & Ceiling Systems v VMF Holdings (NSW) [2008] NSWSC 980
Rowlands v MacDonald [2002] NSWSC 282
Sobell v Boston [1975] 2 All ER 282
Tate v Barry (1928) 28 SR (NSW) 380

PARTIES: 2905/08
Aydan Morkaya (plaintiff)
David Anthony Parkinson (defendant)
2945/08
David Anthony Parkinson (plaintiff)
Aydan Morkaya (defendant)

FILE NUMBER(S): SC 2905/08; 2945/08

COUNSEL: Ms L M Snelling (Ms Morkaya)
Mr A R Martin (sol) (Mr Parkinson)

SOLICITORS: Sayan & Associates (Ms Morkaya)
Martin Legal (Mr Parkinson)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY LIST

BRERETON J

Friday, 10 October 2008

2905/08 Aydan Morkaya v David Anthony Parkinson
2945/08 David Anthony Parkinson v Aydan Morkaya…

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.

Keep reading for free

Create a free CaseChat account to read Morkaya v Parkinson and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2008] NSWSC 1050
Decision Date: 10 October 2008

CaseChat Overview and Summary

Morkaya v Parkinson was an application in the Supreme Court of New South Wales concerning the interim management of two businesses owned by a former couple. The businesses were OSP, a corporation in which the couple were shareholders and directors, and DCA, which was arguably a partnership. The relationship between the parties had irretrievably broken down, and an interlocutory regime was already in place, with the female partner having control of OSP and the male partner controlling DCA. The male partner applied for interim control of OSP, raising questions about the mismanagement of OSP, the conduct of the female partner, and whether the male partner should be granted control of OSP. The court also considered whether a provisional liquidator should be appointed and whether the male partner should be required to seek leave before filing further notices of motion. Additionally, the court addressed whether there was sufficient reason to alter the current regime for interlocutory management and whether the female partner should have greater visibility of the DCA business.

The legal issues before the court involved the principles applicable on the dissolution of a partnership, the mismanagement of OSP, and the conduct of the female partner. The court had to determine whether the female partner had mismanaged OSP or failed to conduct it openly and impartially. It also had to consider whether the male partner should be given control of OSP, particularly given that the corporation was insolvent or approaching insolvency. The court further examined whether there was reason to doubt the ability of either partner to manage the business impartially and transparently and whether both partners had preferred their own interests to those of the corporation and its creditors. The court also needed to decide whether a provisional liquidator should be appointed and whether the male partner should be required to seek leave before filing further notices of motion.

The court found that the female partner had not mismanaged OSP or failed to conduct it openly and impartially. It concluded that there was reason to doubt the ability of both partners to manage the business impartially and transparently, as both had prima facie preferred their own interests to those of the corporation and its creditors. The court ordered that a provisional liquidator be appointed to oversee OSP and that the male partner should be required to seek leave before filing further notices of motion. It determined that there was no sufficient reason to alter the current regime for interlocutory management but ordered that the female partner should have greater visibility of the DCA business. The court also ordered the parties to release the rental bond of the premises leased by both businesses to the lessor.

The final orders of the court included the appointment of a provisional liquidator to oversee OSP, a requirement for the male partner to seek leave before filing further notices of motion, greater visibility of the DCA business for the female partner, and the release of the rental bond by the parties. The court's decision aimed to ensure the proper management of the businesses and protect the interests of the corporation and its creditors.

Orders