Pantzer v Cockburn

[2000] NSWSC 870

CITATION:	Pantzer v Cockburn [2000] NSWSC 870
CURRENT JURISDICTION:	Equity
FILE NUMBER(S):	SC 1169 of 2000
HEARING DATE(S):	21 August 2000
JUDGMENT DATE:	21 August 2000
PARTIES :	Warren Pantzer - as trustee of a deed of assignment of the assets of Geoffrey Keith Strong under Part X of the Bankruptcy Act 1966 (Plaintiff/Third Cross-Defendant) Grant Manners Cockburn (Defendant/First Cross-Claimant) Clas Olaf Einberg (Defendant/Second Cross-Claimant) Paul Lucas (Defendant/Third Cross-Claimant) Harry Vilnis Hanzen (Defendant/Fourth Cross-Claimant) John David Cowley (Defendant/Fifth Cross-Claimant) Craig Manners Cockburn (Defendant/Sixth Cross-Claimant) Matthew John Rowe (Defendant/Seventh Cross-Claimant) Leslie Raymond Fleming (First Cross-Defendant) Geoffrey Keith Strong (Second Cross-Defendant)
JUDGMENT OF:	Windeyer J at 1

COUNSEL :	Mr J T Johnson (Plaintiff/Third Cross-Defendant) Mr G Laughton (Defendants/Cross-Claimants) No Appearance (First Cross Defendant) Mr F Gleeson (Second Cross Defendant)
SOLICITORS:	Robinson Creais (Plaintiff/Third Cross-Defendant) Coleman & Grieg (Defendants/Cross-Claimants) No Appearance (First Cross-Defendant) T W Williams (Second Cross-Defendant)
CATCHWORDS:	PARTNERSHIP - DISSOLUTION AND WINDING UP - claim for referral to Master for the taking of accounts of the partnership assets and judgment for amount found due - judgment resisted on ground of contingent liability of defendant partners for liability of former partner to dealings under power of attorney - no claim commenced against former partner or defendant partners - no basis to delay judgment
LEGISLATION CITED:	Legal Profession Act 1987
DECISION:

1

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WINDEYER J

MONDAY 21 AUGUST 2000

1169/00 WARREN PANTZER AS TRUSTEE OF A DEED OF ASSIGNMENT OF THE ASSETS OF GEOFFREY KEITH STRONG UNDER PART X OF BANKRUPTCY ACT 1966 v GRANT MANNERS COCKBURN & ORS

JUDGMENT

1    HIS HONOUR: In this matter the plaintiff as Trustee of a Deed of Assignment of the assets of Geoffrey Keith Strong seeks a declaration that a partnership conducted between Mr Strong and the defendants under the name of Coleman & Grieg Solicitors was dissolved on 1 April 1996 and seeks an order that the proceedings be referred to a Master in Equity for the taking of accounts of the partnership assets and then for an order that the defendants pay to the plaintiff whatever amount is found to be due to the plaintiff on the taking of accounts.

2    It is accepted that there will be a substantial sum due to the plaintiff as Trustee of the Deed of Assignment. It is accepted that the declaration as to dissolution ought to be made and that there should be a reference to the Master for the taking of accounts, though it seems that it is more likely than not the requirement for this will be avoided and there will be a figure agreed to between the partners or in this case the defendant partners and the plaintiff.

3    On that basis the only question that arises on the summons would be the question of costs.

4    In view of the time since the dissolution and the efforts to obtain payment which have been made by the plaintiff, I consider that defendants should pay the plaintiff's costs of the proceedings up-to-date but that any further costs should be dealt with by the Master as the costs of taking accounts are normally paid out of the partnership assets.

5    There is a cross-claim by the defendants against Mr Fleming who has not appeared today and against Mr Strong, the former partner whose assets are subject to the assignment, and also against Mr Pantzer as trustee under the Deed of Assignment.

6    Under that cross-claim, the partners who have continued to run the firm of Messrs Coleman & Grieg seek a declaration that they are not indebted to the plaintiff and, in the alternative, an order that Mr Strong account to the cross-claimants for sums which he has received "wrongfully" from Mr Fleming and an order that the Master take accounts which would determine any indebtedness between the parties.

7    What was really intended to be achieved by the cross-claim was that there would be brought about a set-off between the amounts which the current partners owed to their former partner and his trustee and amounts which they may be liable to pay to Mr Fleming as a result of the dealings of Mr Strong with the funds of Mr Fleming.

8    Counsel for the defendants has asked that I should make a series of factual findings, the purpose of which would be to bring about some estoppel between them and Mr Fleming. It is, I think, accepted that this Court would not make a declaration as sought by the cross-claimants as to non-indebtedness.

9    No proceedings are on foot between Mr Fleming and the cross-claimants. The intention of the cross-claim is to establish that funds which Mr Strong admittedly took under his control as attorney for Mr Fleming were not controlled moneys within the terms of the Legal Profession Act 1987 and the regulations made under that Act, and perhaps that if there has been a breach of trust by Mr Strong in respect of those funds, and I am not in any way saying that there was, then his former partners would not be liable for that breach.

10    I should say that there is no evidence which would go to establish satisfactorily the fact that the moneys in question were not controlled moneys, although it seems unlikely that they were and there is no evidence on the trust matter. In those circumstances, this is not a case where it would be proper for the Court to make the declaration sought.

11    The other orders sought are in the alternative to it and for the reasons I have just given it is not possible to make those orders. They are not pressed.

12    If counsel for the cross-claimants considers that there may be some estoppel against them if I just dismiss the cross-claim then I will give him leave to discontinue it. Otherwise, I propose to make the orders sought on the summons and to dismiss the cross-claim.

13    Counsel for the defendants/cross-claimant has now sought leave to discontinue the cross-claim and I propose to give that leave. I add that the only purpose in this is to stop some suggestion at a later date that some estoppel might result from dismissal of the cross-claim, although I would consider it is unlikely that it would.

14    Had the cross-claim been dismissed then costs would have followed the matter as a matter of course. The cross-claim having been discontinued, the same result would ordinarily follow and there is no reason why it should do so.

Last Modified: 09/27/2000