Rayment v Bower

[2001] QSC 491

SUPREME COURT OF QUEENSLAND

[2001] QSC 491
File No 3260 of 2001

BETWEEN:

ANDREW JAMES RAYMENT

Applicant

AND:

ROBERT PAUL BOWER

Respondent

MOYNIHAN J – REASONS FOR JUDGMENT

DELIVERED ON:

6 December 2001

HEARING DATE:

26 April 2001

ORDER:

Awaiting submissions.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF CIVIL PROCEDURE - PLEADING – Form of originating process – where originating application filed – whether statement of claim should have been originating process.

COUNSEL:

C D Coulsen for the applicant.

F G Forde for the Respondent.

SOLICITORS:

Reardon & Associates Lawyers for the applicant.

Stephens & Tozer Solicitors for the respondent.

1. This is an originating application seeking:

1.          a declaration that on and from the 12^th day of January, 2000 the applicant and the respondent carried on business and traded as a partnership trading under the style or name of “B.R.S. Fleet Maintenance”;

2. a declaration pursuant to s 38(b) Partnership Act 1891 that the partnership trading under the style or name of “B.R.S. Fleet Maintenance” was determined on 1^st February, 2001;

3.          that the respondent account to the applicant with respect to the income expenditure assets and liabilities of the partnership;

4.          that Messrs Lachlan Stuart McIntosh and John Richard Park be appointed receivers to the assets of the partnership;

5.          that the receivers referred to in Order 4 hereof distribute the net assets of the partnership between the applicant and the respondent in accordance with s 28 Partnership Act 1891;

6.          that the respondent pay the applicant’s costs of and incidental to this application.

1. The defendant contends that the proceedings ought to have been commenced by claim, disputes there was a partnership, contends that the appointment of a receiver is not justified and that the matter is within the jurisdiction of the District Court.

1. Rule 9 of the Uniform Civil Procedure Rules 1999 provides that a proceeding must be started by claim unless the rules require or permit it to be started by application.

1. UCPR 10 relevantly provides that a proceedings must be started by application if an Act or rule require or permit a person to apply to a court for an order or other kind of relief and:

“(a)the Act or rules do not state the type of originating process to be used; …”

1. The applicant contends that this rule in conjunction with s 38 of the Partnership Act permits the proceedings to be commenced by originating application.

1. Section 38(b) of the Partnership Act 1891 provides that:

“38.On application by a partner the court may decree a dissolution of the partnership in any of the following cases—

(a)         …
(b)        when a partner, other than the partner suing, becomes in any

other way permanently incapable of performing his or her part of the partnership contract”

1. Section 38 is concerned to empower a partner to seek the relief which is stated and to confer on the court jurisdiction to grant it in the event that that is justified. It is not concerned with procedural matters such as the appropriate originating process – that is the province of the UCPR.  Section 28 therefore does not permit proceedings to be started by application or require or permit an application in terms of UCPR 10.  The proceeding therefore ought to have been commenced by claim.

1. UCPR 14 provides  to the effect that if  the court considers a proceeding started by application should have been started by claim, the court may order that the proceedings continue as if started by claim and give directions accordingly.  I will return to that consideration later.

1. A determination of whether or not there was a partnership requires the resolution of factual issues not appropriately undertaken on the return of an application such as this.  There are also factual issues relevant to the conduct of the partnership and financial dealings which would need to be resolved at trial or by a direction for enquiry and accounts.  The material raises rather than supports the necessity for the appointment of receivers prior to determination of the issue of whether or not there is a partnership.  It does support a conclusion that the business may be damaged by the appointment. 

1. The applicant, who on the material, does not have access to the books of account of the business, estimates the business to have a net worth of between $87,000 and $107,000.  The respondent estimates the net worth to be under $20,000.  As I have said there are disputed factual issues in respect to the conduct of the business but there is nothing to indicate that their resolution could have the consequence that the dispute is outside the jurisdiction of the District Court.

1. I will give the opportunity for submissions as to the future course of events.