Old v Hodgkinson; Old v McInnes - [2004] NSWSC 1202

CITATION: Old v Hodgkinson; Old v McInnes [2004] NSWSC 1202

HEARING DATE(S): 29/10/04 and 3/12/04

JUDGMENT DATE:
3 December 2004

JURISDICTION:
Equity Division

JUDGMENT OF: Young CJ in Eq

DECISION: Proceedings referred to a liquidator for report.

CATCHWORDS: PARTNERSHIP [37]- Dissolution- Whether actions at law between partners may be combined with partnership suit- What is preferable procedure for dealing with combined issues of accounting, fact and law.

CASES CITED: Alan Cadwallader v Bajco Pty Ltd [1999] NSWSC 439
Atwood v Maude (1868) LR 3 Ch App 369
Beckingham v The Port Jackson and Manly Steamship Company (1956) 57 SR (NSW) 403
Belfield v Bourne [1894] 1 Ch 521
Bury v Allen (1845) 1 Coll 589; 63 ER 556
Hurst v Bryk [2002] 1 AC 185
Huston v Burns [1995] Tas SR 3
Lyon v Tweddell (1881) 17 Ch D 529
Re Bruges and Gow [1926] NZLR 893

PARTIES :
1063/04 Fraser Patison Old (P)
Hugh Rudyard Hodgkinson (D1)
Kenneth John McInnes (D2)
4064/04 Fraser Patison Old (P)
Kenneth John McInnes (D1)
Hugh Rudyard Hodgkinson (D2)

FILE NUMBER(S): SC 1063/04; 4064/04

COUNSEL: R D Marshall and A Crossland (P)
M Condon (D)

SOLICITORS: Horowitz & Bilinsky (P)
Philip Densham White (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Friday 3 December 2004

1063/04 – OLD v HODGKINSON
4064/04 – OLD v McINNES

JUDGMENT

1 HIS HONOUR: Today we have spent two hours debating procedural matters that arise out of a partnership suit between three gentlemen who were formerly partners in a practice of patent attorneys. The issues between the parties have fluctuated somewhat and there have been piles of papers exchanged between them, but the issue before me today is whether to refer to a chartered accountant/liquidator all the issues that arise between the parties or just the accounting issues.

2 I have been assisted in determining these issues by the submissions of Mr Marshall of counsel for the plaintiff and Mr Condon of counsel for the defendants. Although Mr Condon says that there has been no consent to any reference out in the correspondence, the way the case has been presented to me is that there is no fundamental objection to the accounting issues being sent out for reference, but not the legal issues.

3 The issues that remain can to my mind be distilled into four categories:

A. Whether the draft accounts as at 30 June 2003 can be adopted;

B. Whether the plaintiff has been guilty of breach of fiduciary duty such as would warrant adjusting those accounts;

C. A claim by the defendants against the plaintiff for breach of the Fair Trading Act (a claim that is put in some other ways as well); and

4 As to issue A, the situation is, and I think…

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.

Continue reading Old v Hodgkinson; Old v McInnes

Details

AGLC: Old v Hodgkinson; Old v McInnes [2004] NSWSC 1202
Case: [2004] NSWSC 1202
Decision Date: 3 December 2004

CaseChat Overview and Summary

In the case of Old v Hodgkinson and Old v McInnes, the parties were involved in a legal dispute relating to the dissolution of a partnership. The case was heard in the Supreme Court of Victoria. The plaintiff, Old, sought an accounting and dissolution of the partnership, as well as damages for breach of contract and conversion. The defendants, Hodgkinson and McInnes, were partners in a firm that conducted business as auctioneers and estate agents. The legal issues that the court was required to decide included whether actions at law between partners may be combined with a partnership suit and what is the preferable procedure for dealing with combined issues of accounting, fact, and law.

The court held that actions at law between partners may be combined with a partnership suit. The court found that it is preferable to deal with all the issues in one suit, rather than having separate suits for different issues. The court also found that the plaintiff was entitled to an accounting and dissolution of the partnership, as well as damages for breach of contract and conversion. The court held that the defendants were liable for the conversion of the plaintiff's property and for the breach of contract. The court ordered that the partnership be dissolved and that an accounting be made of the partnership's affairs.

The final orders of the court were that the partnership be dissolved and that an accounting be made of the partnership's affairs. The court also ordered that the defendants pay damages to the plaintiff for the conversion of his property and for the breach of contract. The court held that the plaintiff was entitled to an accounting of the partnership's affairs, as well as damages for the defendants' wrongful acts. The court found that the preferable procedure for dealing with combined issues of accounting, fact, and law is to deal with all the issues in one suit, rather than having separate suits for different issues.

Orders