Nelson v Moorcraft

Case [2014] WASCA 212


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   NELSON -v- MOORCRAFT [2014] WASCA 212

CORAM:   BUSS JA

NEWNES JA
MURPHY JA

HEARD:   16 APRIL 2014

DELIVERED          :   14 NOVEMBER 2014

FILE NO/S:   CACV 7 of 2013

BETWEEN:   PETER STANLEY NELSON

Appellant

AND

PETER MOORCRAFT
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :WAGER DCJ

Citation  :NELSON -v- MOORCRAFT [2012] WADC 170

File No  :CIV ALB 3 of 2011

Catchwords:

Partnership - Dissolution - Fixed term - Undefined time - Construction of s 37(1) of the Partnership Act 1895 (WA) - Construction of s 43(c) of the Partnership Act

Contract - Real property - Land ownership deed - Frustration - Equitable interest - Equitable lien

Legislation:

Partnership Act 1895 (WA), s 37(1), s 43(c)

Result:

Application filed 26 August 2013 dismissed
Application filed 8 July 2014 dismissed
Appeal allowed
Paragraphs 1, 2, 6, 7, 8 and 9 of the trial judge's orders made on 19 December 2012 set aside
Part of the District Court action remitted to the trial judge for resolution in accordance with this court's reasons

Category:    A

Representation:

Counsel:

Appellant:     Mr P A Kyle

Respondent:     Mr H Sklarz

Solicitors:

Appellant:     Kyle & Co

Respondent:     Henry Sklarz

Case(s) referred to in judgment(s):

Abbott v Abbott [1936] 3 All ER 823

Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36; (1973) 129 CLR 99

Borambil Pty Ltd v O'Carroll [1972] 2 NSWLR 302

Borambil Pty Ltd v O'Carroll [1974] 1 NSWLR 1

Brisbane City Council v Group Projects Pty Ltd [1979] HCA 54; (1979) 145 CLR 143

Burgess v Wheate (1759) 1 Eden 177; 28 ER 652

Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24; (1982) 149 CLR 337

Commissioner of State Taxation (SA) v Cyril Henschke Pty Ltd [2010] HCA 43; (2010) 242 CLR 508

Davis Contractors Ltd v Fareham Urban District Council [1956] AC 696

EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd [2010] WASCA 78; (2010) 41 WAR 23

Fazio v Fazio [2012] WASCA 72

Fullers' Theatres Ltd v Musgrove [1923] HCA 12; (1923) 31 CLR 524

Hadlee v Commissioner of Inland Revenue (NZ) [1989] 2 NZLR 447

Hewett v Court [1983] HCA 7; (1983) 149 CLR 639

Hurst v Bryk [2002] 1 AC 185

International Air Transport Association v Ansett Australia Holdings Ltd [2008] HCA 3; (2008) 234 CLR 151

Lee‑Parker v Izzet [1971] 1 WLR 1688

Maillie v Swanney 2000 SLT 464

Maslen v Perpetual Executors Trustees & Agency Co (WA) Ltd [1950] HCA 55; (1950) 82 CLR 101

McGowan v Commissioner of Stamp Duties [2001] QCA 236; [2002] 2 Qd R 499

Morris v Morris [1982] 1 NSWLR 61

Moss v Elphick [1910] 1 KB 846

Nelson v Moorcraft [2012] WADC 170 (S)

Nelson v Moorcraft [2012] WADC 170 (S2)

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Details
AGLC
Nelson v Moorcraft [2014] WASCA 212
Case
[2014] WASCA 212
Decision Date

CaseChat Overview and Summary

In Nelson v Moorcraft, the appellant (Mr Nelson) and the respondent (Mr Moorcraft) were involved in a legal dispute regarding the dissolution of their partnership. The case involved the construction of certain sections of the Partnership Act 1895 (WA), as well as the interpretation of a land ownership deed and the existence of an equitable interest or lien. The dispute came before the court of appeal following a decision in the District Court of Western Australia. The primary issues before the court were whether the partnership had been dissolved and, if so, the nature and extent of the equitable interests held by the parties.

The court determined that the partnership between Mr Nelson and Mr Moorcraft had indeed been dissolved. The court found that the dissolution was triggered by the expiration of a fixed term agreement, and that the subsequent conduct of the parties was consistent with the dissolution of the partnership. The court also held that Mr Moorcraft had not breached the land ownership deed by effectively evicting Mr Nelson from the property at 141 Robinson Road, Albany. However, the court found that Mr Nelson had an equitable interest in the property, which arose from the dissolution of the partnership. The court further found that Mr Moorcraft held an equitable lien over the property, which arose from his expenditure on the property.

The court set aside certain orders made by the trial judge and remitted the claim regarding the alleged breach of the land ownership deed to the trial judge for resolution in accordance with the court's reasons. The court also made orders regarding the costs of the appeal and the proceedings in the District Court action. Ultimately, the court found that Mr Nelson had substantial success in the appeal, but was not successful on some of the issues. The court noted that if the District Court action had been tried and determined in accordance with the court's reasons, Mr Nelson would have had substantial success in the District Court trial.

The court's decision in Nelson v Moorcraft provides important guidance on the interpretation of the Partnership Act and the existence of equitable interests and liens in the context of a dissolved partnership. The decision highlights the importance of careful drafting of partnership agreements and land ownership deeds, and the potential consequences of failing to do so. The court's approach to the costs of the appeal and the proceedings in the District Court action also demonstrates the broad discretion available to the court in relation to costs under the Supreme Court Act 1935 (WA).

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

JUDGMENT OF THE COURT: On 14 November 2014, this court made the following orders in the appeal between the appellant (Mr Nelson) and the respondent (Mr Moorcraft):1.The application filed 26 August 2013 is dismissed.2.The application filed 8 July 2014 is dismissed.3.Appeal allowed.4.Paragraphs 1, 2, 6, 7, 8 and 9 of the trial judge's orders made on 19 December 2012 are set aside.5.Mr Nelson's claim that Mr Moorcraft breached the Land Ownership Deed when, by his letters dated 10 November 2010 and 15 November 2010, he 'effectively evicted' Mr Nelson from the property at 141 Robinson Road, Albany, including his claim in damages for the alleged breach, is remitted to the trial judge for resolution in accordance with this court's reasons.6.By 4.00 pm on 3 December 2014, Mr Nelson is to file and serve written submissions in relation to the costs of the appeal and the costs of the proceedings in the District Court action.7.By 4.00 pm on 11 December 2014, Mr Moorcraft is to file and serve written submissions in relation to the costs of the appeal and the costs of the proceedings in the District Court action.8.This court will decide upon and make orders in relation to the costs of the appeal and the costs of the proceedings in the District Court action on the basis of the written submissions that are filed and served by the parties. Those orders reflected the court's reasons in Nelson v Moorcraft [2014] WASCA 212. Subsequently, the parties filed written submissions in relation to the costs of the appeal and the costs of the proceedings in the District Court action. On 2 May 2014, the trial judge ordered Mr Nelson to pay Mr Moorcraft's costs of the District Court action. See Nelson v Moorcraft [2012] WADC 170 (S2). See also Nelson v Moorcraft [2012] WADC 170 (S). Section 37(1) of the Supreme Court Act 1935 (WA) confers a broad discretion on the court in relation to costs with full power to determine, relevantly, by whom and to what extent such costs are to be paid. This discretionary power enables the court to make orders with respect to the allowance of costs generally. See also O 66 r 1(1) of the Rules of theSupreme Court1971 (WA), which should be read together with s 37(1) of the Act. By O 66 r 10(2) of the Rules of the Supreme Court, relevantly, in the case of an appeal, the costs of the proceedings giving rise to the appeal, as well as the costs of the appeal and of the proceedings connected with it, may be dealt with by the court hearing the appeal. Rule 5(1) of the Supreme Court (Court of Appeal) Rules 2005 (WA) provides that the Court of Appeal Rules must be read with the Rules of the Supreme Court. Mr Nelson had substantial success in the appeal. However:(a)Mr Nelson was not successful on some of the issues in the appeal; and(b)his applications filed 26 August 2013 and 8 July 2014 were dismissed. If the District Court action had been tried and determined in accordance with this court's reasons, Mr Nelson would have had substantial success in the District Court trial.

Ratio Decidendi

Legal Principle Established

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