Shun Sheng Pty Ltd v Lei - [2023] NSWSC 1176

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Shun Sheng Pty Ltd v Lei [2023] NSWSC 1176
Hearing dates: 14, 15, 16 and 18 August 2023
Date of orders: 29 September 2023
Decision date: 29 September 2023
Jurisdiction: Equity - Expedition List
Before: Parker J
Decision:
See [296]

Catchwords:
PARTNERSHIPS AND JOINT VENTURES – dissolution – date of termination – parties agree that partnership terminated but disagree on date – insufficient evidence to establish terminated at earlier date – partnership taken to have been dissolved at later date
PARTNERSHIPS AND JOINT VENTURES – winding up – taking of partnership accounts

Legislation Cited:
Evidence Act 1995, s 136
Partnership Act 1892, ss 39, 44

Cases Cited:
Shazbot Pty Ltd v Warner Capital Pty Ltd [2018] NSWSC 1645
Shazbot Pty Ltd v Warner Capital Pty Ltd (No 2) [2019] NSWSC 1114
Warner Capital Pty Ltd v Shazbot Pty Ltd [2020] NSWCA 121
Watson v Foxman (1995) 49 NSWLR 315

Texts Cited:
JD Heydon, Heydon on Contract (2019, Lawbook Co)

Category: Principal judgment
Parties:
Shun Sheng Pty Limited (First Plaintiff)
Sunshine Island (Aust) Pty Limited (Second Plaintiff)
Xue Feng Wei (Third Plaintiff)
Jun Lei (First Defendant)
Theo Kitsos (Second Defendant)
Cross-Claim:
Jun Lei (First Cross-Claimant)
Theo Kitsos (Second Cross-Claimant)
Shun Sheng Pty Limited (First Cross-Defendant)
Xue Feng Wei (Second Cross-Defendant)
Representation:
Counsel:
D Allen (Plaintiffs/Cross-Defendants)
M S White SC/ B Adam (Defendants/Cross-Claimants)
Solicitors:
Du & Associates Lawyers (Plaintiffs/Cross-Defendants)
Lloyd & Lloyd Solicitors (Defendants/Cross-Claimants)

File Number(s): 2021/365823
Publication restriction: Nil

Equity Division Supreme Court

New South Wales

JUDGMENT

These proceedings arise out of a partnership dispute. The relationship between the parties has broken down and they seek orders for winding up and terminating the partnership’s affairs. The main area of dispute is when the partnership was terminated, and which party is, or parties are, liable to account.
The partnership business involved the operation of a brothel at Guilford in Western Sydney. The brothel operated (and apparently continues to operate) lawfully, and subject to development approval granted by the local council. Neither party suggested that the nature of the partnership business had any effect on the legal principles which the Court is required to apply.
The main protagonists to the dispute are two Chinese-Australian women. The business appears to have been founded by Wei Xue Feng. In English, Ms Wei uses the first name Wendy or Nancy. In 2008, Ms Wei went into business with Lei Jun. In English, Ms Lei uses the first name “Coco” as well as “Jun”.
Ms Lei is married to Theo (also referred to as “Leo”) Kitsos. Mr Kitsos has at times been involved in the operation of the brothel business, and has been drawn into the dispute, as I will describe.
The clientele of the brothel is largely Asian, and, it seems, predominantly Chinese. The brothel operated (and operates) at premises owned by a company named Sunshine Island Pty Limited (“Sunshine Island”). That company is owned and controlled by Ms Wei.
The brothel is…

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.

Keep reading for free

Create a free CaseChat account to read Shun Sheng Pty Ltd v Lei and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] NSWSC 1176
Decision Date: 29 September 2023

CaseChat Overview and Summary

The dispute between Shun Sheng Pty Ltd and Lei centred on the dissolution of their partnership and the appropriate date of termination. The matter was heard in the Supreme Court of Western Australia. The primary contention was whether the partnership had been dissolved at an earlier date than the one claimed by Shun Sheng, and the subsequent issue of the winding up of the partnership accounts.

The court was tasked with determining the precise date of dissolution of the partnership. Both parties agreed that the partnership had terminated, but they could not agree on the date. The evidence presented by Shun Sheng was deemed insufficient to establish that the partnership had terminated at an earlier date than claimed. Consequently, the court had to ascertain the date of dissolution based on the evidence provided.

In reaching its decision, the court meticulously reviewed the evidence provided by both parties. The court concluded that there was no concrete evidence to support Shun Sheng's claim of an earlier dissolution date. Consequently, the partnership was taken to have been dissolved at the later date claimed by Lei. The court also addressed the issue of winding up the partnership accounts, directing that the accounts be settled in accordance with the established dissolution date.

The court ordered that the partnership be considered dissolved as of the later date claimed by Lei and directed the winding up of the partnership accounts in accordance with this determination.

Orders