Palermo v Palermo [No 2]

Case [2014] WASC 6

PALERMO -v- PALERMO [No 2] [2014] WASC 6



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2014] WASC 6
15/01/2014
Case No:CIV:2544/201317 - 23 DECEMBER 2013
Coram:McKECHNIE J23/12/13
46Judgment Part:1 of 1
Result: Declaration that brothers are not in partnership
B
PDF Version
Parties:JOHN PALERMO
ANTHONY  PALERMO

Catchwords:
Partnership between two brothers
What constitutes a partnership decision to trade through corporate entities and trusts
Whether partnership still continues

Legislation:
Partnership Act 1895 (WA), s 7

Case References:
Atwell v Roberts [2013] WASCA 37; (2013) 43 WAR 507
Brooker v Friend & Brooker Pty Ltd [2006] NSWCA 385
Crossman v Taylor (No 3) [2011] FCA 734
Ebrahimi v Westbourne Galleries Ltd (1973) AC 360
Friend v Brooker [2009] HCA 21; (2009) 239 CLR 129
Morgan v 45 Flers Avenue Pty Ltd (1986) 5 ACLC 222; (1986) 10 ACLR 692
Nassar v Innovative Precasters Group Pty Ltd [2009] NSWSC 342
Re a Company; O'Neil v Phillips (1999) 2 All ER 961
Re Wondoflex Textiles Pty Ltd [1951] VLR 458
Salomon v A Salomon & Co Ltd (1897) AC 22

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
    IN CIVIL
CITATION : PALERMO -v- PALERMO [No 2] [2014] WASC 6 CORAM : McKECHNIE J HEARD : 17 - 23 DECEMBER 2013 DELIVERED : 23 DECEMBER 2013 PUBLISHED : 15 JANUARY 2014 FILE NO/S : CIV 2544 of 2013 BETWEEN : JOHN PALERMO
    Plaintiff

    AND

    ANTHONY PALERMO
    Defendant

Catchwords:

Partnership between two brothers - What constitutes a partnership decision to trade through corporate entities and trusts - Whether partnership still continues

Legislation:

Partnership Act 1895 (WA), s 7

Result:

Declaration that brothers are not in partnership


Category: B


Representation:

Counsel:


    Plaintiff : Mr M D Howard SC & Mr H H Jackson
    Defendant : Mr M F Holler & Mr J A Day

Solicitors:

    Plaintiff : Gadens Lawyers
    Defendant : Rockwell Olivier



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

Atwell v Roberts [2013] WASCA 37; (2013) 43 WAR 507
Brooker v Friend & Brooker Pty Ltd [2006] NSWCA 385
Crossman v Taylor (No 3) [2011] FCA 734
Ebrahimi v Westbourne Galleries Ltd (1973) AC 360
Friend v Brooker [2009] HCA 21; (2009) 239 CLR 129
Morgan v 45 Flers Avenue Pty Ltd (1986) 5 ACLC 222; (1986) 10 ACLR 692
Nassar v Innovative Precasters Group Pty Ltd [2009] NSWSC 342
Re a Company; O'Neil v Phillips (1999) 2 All ER 961
Re Wondoflex Textiles Pty Ltd [1951] VLR 458
Salomon v A Salomon & Co Ltd (1897) AC 22



1 McKECHNIE J:


What this case is about

2 Two brothers were once very close and spent 30 years in business intimately involved in decision-making. Activities included an accounting practice, property development, share dealing, corporate consulting and farming. In the last seven years, the trust which keeps any relationship glued together has dissipated and when they faced each other in court (over a five-day hearing), the antagonism was almost…

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Details
AGLC
PALERMO -v- PALERMO [No 2] [2014] WASC 6
Case
[2014] WASC 6
Decision Date

CaseChat Overview and Summary

The case of Palermo v Palermo [No 2] involves a dispute between two brothers, Anthony Palermo and John Palermo. The issue before the court was whether there existed a partnership between the brothers and, if so, whether this partnership continued to trade through corporate entities and trusts. The case was heard in the Supreme Court of South Australia.

The central legal question the court had to address was whether the actions of the parties demonstrated a continuing partnership. This involved determining whether the brothers had made decisions that indicated an ongoing partnership, including decisions to trade through corporate entities and trusts. The court needed to assess whether there were sufficient actions and decisions that demonstrated a partnership continued to exist.

The court found that there was insufficient evidence to establish that the brothers had made decisions as partners. Instead, the court determined that the actions of the brothers were consistent with the dissolution of the partnership. The court noted that the decisions made by the parties were not indicative of a partnership but rather of individual decisions made by each brother. Consequently, the court concluded that the brothers were not in partnership and made a declaration to this effect.

In light of the findings, the court made a declaration that the brothers were not in partnership. This declaration effectively resolved the dispute by confirming that there was no ongoing partnership between Anthony Palermo and John Palermo.

Orders

Orders of the court

Declaration that brothers are not in partnership

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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