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Salib v Gakas

Salib v Gakas

Case [2010] NSWSC 505 21 May 2010

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CITATION: Salib v Gakas; Newport Pacific Pty Ltd v Salib [2010] NSWSC 505
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 22-26 February, 8 & 9 March 2010

JUDGMENT DATE :
21 May 2010

JURISDICTION: Equity

JUDGMENT OF: Ward J

DECISION: Dismiss plaintiff's claim in proceeding 2007/00256633
Judgment for plaintiff in proceedings 2008/00278795

CATCHWORDS: PARTNERSHIP - principles concerning existence of partnership - whether business relationship constituted a partnership entitling Ms Salib to share of capital of business - HELD - no partnership but arrangement whereby Ms Salib provided administrative services in return for commission on profits earnt - RESTITUTION - whether Ms Salib had been overpaid commission by mistake - whether final payment made by Mr Gakas was due to a mistaken belief as to accuracy of calculations concerning Ms Salib’s entitlement or was to determine business relationship between them on a final basis - HELD - final payment was not made under a mistake although earlier payments were made under a mistake

LEGISLATION CITED: Limitation Act 1969 (NSW)
Partnership Act 1892 (NSW)

CASES CITED: Adam v Newbigging (1888) 13 App Cas 308
Australia & New Zealand Banking Group Ltd v Westpac Banking Corporation [1988] HCA 17; (1988) 164 CLR 662
Badeley v Consolidated Bank (1888) 38 Ch D 238
BSP Technical Services Pty Limited v AMEV-UDC Finance Limited (unreported, Hodgson J, 25 March 1985
Canny Gabriel Castle Jackson Advertising Pty Limited v Volume Sales (Finance) (1974) 131 CLR 321; (1974) 3 ALR 409
Cartwright v Rowley (1799) 2 Esp 723; 170 ER 509
Commercial Bank of Australia v Younis [1979] 1 NSWLR 444
Cribb v Korn (1911) 12 CLR 205; [1911] HCA 9
David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353; (1992) 109 ALR 57
Elkin & Co v Specialised TV Installations [1961] SR (NSW) 165; (1959) 77 WN (NSW) 844)
Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89; (2007) 236 ALR 209
Gould v Vaggelas (1985) 157 CLR 215
Henville v Walker (2001) 206 CLR 459
Hybernia Management & Development Co v Newfoundland Steel Inc (1996) NFLD & PEIR 90
In re Young: Ex parte Jones [1896] 2 QB 484
Industrial Equity Limited v Lyons (NSWSC unreported, Cohen J, 15 October 1991)
Kelly v Solari (1841) 9 M & W 53; 152 ER 24
Lumbers v W Cook Builders Pty Limited [2008] HCA 27; (2008) 232 CLR 635; (2008) 247 ALR 412
Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705
Malco Engineering Pty Limited v Ferreira & ors (1994) 10 NSWCCR 117
Mollwo, March & Co v Court of Wards (1872) LR 4 P.C. 419; 17 ER 495
Momentum Productions Pty Limited v Lewarne [2009] FCAFC 30; (2009) 268 FCR; (2009) 254 ALR 471
Pavey & Matthews Pty Ltd v Paul [1987] HCA 5; (1987) 162 CLR 221; (1987) 69 ALR…

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 Salib v Gakas

Details

AGLC: Salib v Gakas [2010] NSWSC 505
Case: [2010] NSWSC 505
Decision Date: 21 May 2010

CaseChat Overview and Summary

Salib v Gakas involved a dispute between Ms Salib and Mr Gakas, the former seeking a share of the capital of a business, claiming she was a partner in the enterprise. The case was heard in the Supreme Court of Victoria. The primary issue before the court was whether the business relationship between the parties constituted a partnership, which would entitle Ms Salib to a share of the business’s capital. Additionally, the court needed to determine whether Ms Salib had been overpaid commission by mistake and if the final payment made by Mr Gakas was due to an error in calculations or to finalise their business relationship.

The court examined the nature of the relationship between Ms Salib and Mr Gakas, focusing on whether there was a partnership agreement, shared control, or mutual intention to share profits. It found that while Ms Salib provided administrative services to the business, she did so in exchange for a commission on profits earned, not as a partner. The court ruled that no partnership existed between the parties. Regarding the issue of restitution, the court held that earlier payments to Ms Salib were indeed made under a mistaken belief concerning her entitlement to commission. However, the final payment was made not due to a mistake but as a final settlement of their business relationship.

In conclusion, the court found that Ms Salib was not entitled to a share of the business’s capital as she was not a partner. The final payment made by Mr Gakas was not a result of a mistake but rather an agreement to conclude their business relationship. As such, Ms Salib was not entitled to any further payments from Mr Gakas.

Orders