Rahman v Ahmed - [2009] NSWSC 1028

CITATION: Rahman v Ahmed [2009] NSWSC 1028

HEARING DATE(S): 31 August 2009

JUDGMENT DATE :
31 August 2009

JURISDICTION: Equity

JUDGMENT OF: Slattery J at 1

EX TEMPORE JUDGMENT DATE: 31 August 2009

DECISION: A declaration that the plaintiff and the defendant carried on the business known as "Bexley Petroleum" as a partnership; a declaration that the partnership was terminated on 7 February 2006; defendant ordered to pay the plaintiff's costs of the proceedings; taking of partnership accounts; and other consequential orders made related to the taking of accounts - submissions ordered about precise form of costs assessment under s 98 (4) Civil Procedure Act 2005.

CATCHWORDS: PARTNERSHIP - dissolution and winding up - declaration partnership terminated - taking of accounts - COSTS - defendant to pay plaintiff's costs - unreasonable conduct by defendant - plaintiff likely to succeed at trial

LEGISLATION CITED: Civil Procedure Act 2005

CATEGORY: Principal judgment

CASES CITED: Australian Securities Commission v Aust-Home Investments Limited (1993) 44 FCR 194 at 201
Curac v Morey-Hype [2006] NSWSC 1171
Craft v Kupferwasser (1991) 23 NSWLR 236
Hamer v Giles [1879] 11 Ch D 942
Kardos v Sarbutt No 2 [2006] NSWCA 206
Re: The Minister for Immigration and Ethnic Affairs and the Commonwealth of Australia ex parte Lia Qin (1997) 186 CLR 622
Slim v Kabra [2006] NSWSC 837
Wayne Terry Kerr v JP & M Kerr (Billabidgee) Pty Ltd [2006] NSWSC 1044

PARTIES: Plaintiff: Mojibor Rahman
Defendant: Fuad Ahmed

FILE NUMBER(S): SC 2695/08

COUNSEL: Plaintiff: Mr A Paterson
Defendant: Mr S M Briggs (Solicitor)

SOLICITORS: Plaintiff: Jack Rigg Solicitors
Defendant: Kemp Strang

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

SLATTERY J

MONDAY 31 AUGUST 2009

2695/08 MOJIBOR RAHMAN v FUAD AHMED

JUDGMENT

1 HIS HONOUR:

Introduction

2 These proceedings concern the existence and dissolution of a partnership between the plaintiff and the defendant in a service station business. They conducted the business under the name "Bexley Petroleum" between August 2002 and February 2006. The service station was located in an address in Bexley, New South Wales, the details of which are available on the court file. Due to the Court's policy of reducing the risk of identity theft these details will not be published in this judgment.

3 The defendant is married to the niece of the plaintiff. Until the present dispute the two parties had a good relationship dating from the time the defendant first migrated to Australia from Bangladesh in the mid 1990s.

4 The plaintiff invested $60,000 in the partnership. He deposited this sum on 12 August 2003 in a business account of Bexley Petroleum. The account details for this account are also available on the court file.

5 From the time of investment of those funds the partnership operated with the defendant as the active partner and the plaintiff the less active partner.

6 Distrust and disputes arose between the plaintiff and the defendant from late 2005, culminating in events on the evening of Monday 6 February 2006 and…

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 Rahman v Ahmed

Details

AGLC: Rahman v Ahmed [2009] NSWSC 1028
Case: [2009] NSWSC 1028
Decision Date: 31 August 2009

CaseChat Overview and Summary

In the case of Rahman v Ahmed, the plaintiff, Rahman, sought a declaration that a partnership between himself and the defendant, Ahmed, had been dissolved and wound up. The dispute arose from allegations of mismanagement and breaches of the partnership agreement by Ahmed. The matter was heard in the Supreme Court of New South Wales. The primary issue for the court was to determine whether the partnership had indeed been dissolved and, if so, to address the subsequent steps required to wind up the partnership.

The court needed to consider whether the partnership had been terminated and, if so, what the consequences were for both parties. The court examined the evidence provided by Rahman regarding the alleged mismanagement and breaches by Ahmed, as well as the conduct of both parties during the proceedings. The court also had to decide whether the defendant's conduct during the litigation was unreasonable, which would impact the costs awarded.

The court found that the partnership had indeed been dissolved due to the actions of Ahmed, which constituted a material breach of the partnership agreement. The court also determined that Ahmed's conduct during the proceedings was unreasonable, leading to the decision that he should pay the plaintiff's costs. Given the clear evidence of mismanagement and the likelihood of the plaintiff's success at trial, the court made a declaration that the partnership was terminated and ordered that accounts be taken to wind up the partnership. Additionally, the defendant was directed to pay the plaintiff's costs due to his unreasonable conduct throughout the litigation.

Orders