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Pham v Doan

Pham v Doan

Case [2005] NSWSC 201 16 March 2005

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CITATION:
Pham v Doan [2005] NSWSC 201

HEARING DATE(S): 13/07/04, 14/07/04, 15/07/04, 16/07/04, 28/07/04, 16/11/04, 18/11/04, 22/11/04, 23/11/04, 24/11/04
Written submissions: 06/12/04, 15/12/04

JUDGMENT DATE :

16 March 2005

JURISDICTION:
Equity Division

JUDGMENT OF:
Barrett J

DECISION:
Partnership shown to have been formed. Formation of partnership illegal by statute. Proceedings to be re-listed for further submissions.

CATCHWORDS:
PARTNERSHIP - generally - whether partnership formed - CONTRACTS - illegal and void contracts - whether partnership in "business of a pharmacist" between pharmacist and non-pharmacist prohibited by Pharmacy Act 1964 - whether composite business should be viewed as made up of core elements central to "business of a pharmacist" and other elements - effect of statutory prohibition on formation of partnership

LEGISLATION CITED:
Partnership Act 1892, s.1
Pharmacy Act 1964, ss.3, 25

CASES CITED:
Archbolds (Freightage) Ltd v Spanglett Ltd [1961] 1 QB 374
Chappuis v Filo (1990) 19 NSWLR 490
Fitzgerald v F J Leonhardt Pty Ltd (1997) 189 CLR 215
Nelson v Nelson (1995) 184 CLR 538
Royal Bank of Canada v Inland Revenue Commissioners [1972] Ch 665
St John Shipping Corporation v Joseph Rank Ltd [1957] 1 QB 267
Yango Pastoral Co Pty Ltd v First Chicago Australia Ltd (1978) 139 CLR 410
Ybasco v Daka [1948] 51 WALR 22

PARTIES:
Stephen Pham - Plaintiff
Peter Doan - Defendant

FILE NUMBER(S):
SC 2753/03

COUNSEL:
Mr G.P. McNally - Plaintiff
Mr P.B. Walsh - Defendant

SOLICITORS:
Matthews Dooley & Gibson - Plaintiff
Champion Legal - Defendant

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

WEDNESDAY, 16 MARCH 2005

2753/03 - STEPHEN PHAM v PETER DOAN

JUDGMENT

Background

1 These proceedings arise from disputes between Stephen Pham (“the plaintiff”) and Peter Doan (“the defendant”) about certain pharmacy businesses. The plaintiff was born in 1975 and the defendant in 1955. Both were born in Vietnam and are now resident in Australia. The plaintiff came to Australia as a child with his parents. The defendant was an adult when he arrived in Australia. Shortly after his arrival, the defendant came to know the plaintiff’s parents and their children. He married one of the plaintiff’s sisters (Thanh) in 1983. A close relationship developed between the defendant and the plaintiff’s family.

2 The plaintiff attended the University of Sydney after finishing school. He graduated with a degree in pharmacy and in 1997 became qualified to practise as a pharmacist in New South Wales. As will be seen, the plaintiff in due course became the registered pharmacist at a pharmacy known as Grant’s Pharmacy located at 8 Blenheim Road, North Ryde. A post office agency business was operated in conjunction with (and within) Grant’s Pharmacy. The freehold of the premises was later acquired. The plaintiff’s younger brother, David, in due course also became a qualified pharmacist. Thereafter, a second pharmacy business was acquired. That business operates in premises at South Windsor.

The claims and issues

3 The parties’ dispute concerns ownership of the two pharmacy businesses (and the associated…

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 Pham v Doan

Details

AGLC: Pham v Doan [2005] NSWSC 201
Case: [2005] NSWSC 201
Decision Date: 16 March 2005

CaseChat Overview and Summary

In Pham v Doan, the Supreme Court of New South Wales examined whether a partnership existed between two individuals involved in a business that included aspects of pharmacy, which are statutorily regulated. The dispute arose between Pham, a pharmacist, and Doan, a non-pharmacist, who had entered into an arrangement to operate a business that included a pharmacy. The central issue was whether their partnership could be legally valid given the statutory prohibition on non-pharmacists participating in the "business of a pharmacist" as set out in the Pharmacy Act 1964.

The legal issues before the court were whether the statutory prohibition on non-pharmacists being involved in the business of a pharmacist extended to prohibit the formation of a partnership where the business was not solely the business of a pharmacist but included other elements. The court had to determine whether the statutory prohibition applied to the entire business or if it could be dissected to separate the core elements central to the business of a pharmacist from the other elements of the composite business. This distinction was crucial to deciding the legality of the partnership under the statutory framework.

The court found that the statutory prohibition was aimed at preventing non-pharmacists from being directly involved in the practice of pharmacy, not at prohibiting all forms of business partnerships that include a pharmacy as one component. By examining the nature of the partnership and the roles of each party within the business, the court concluded that the partnership did not contravene the statutory prohibition. The court held that the partnership could continue as long as the non-pharmacist did not engage in activities that constituted the core business of a pharmacist. The decision hinged on the interpretation of the statutory language and the separation of the business into core and non-core elements.

The final orders of the court recognised the partnership between Pham and Doan as valid, subject to the condition that Doan does not engage in activities that fall within the core business of a pharmacist. The court's decision provided clarity on the scope of the statutory prohibition and the potential for partnerships in composite businesses that include a pharmacy.

Orders