Tymouri v Walshe

[2010] NSWSC 1013

CITATION:	Tymouri v Walshe [2010] NSWSC 1013
HEARING DATE(S):	6 September 2010
JUDGMENT OF:	Ball J
EX TEMPORE JUDGMENT DATE:	6 September 2010
DECISION:	1. The defendant pay the plaintiff the sum of $20,000. 2. The defendant pay the plaintiff's costs on an indemnity basis.
CATCHWORDS:	PARTNERSHIP - winding up - taking accounts - not possible for account to be taken - limited participation in litigation by defendant - whether initial capital investment reasonable measure of plaintiff's interest
CATEGORY:	Procedural and other rulings
PARTIES:	Masoud Tymouri (Plaintiff) Jodie Adell Walshe (aka Jodie Okasheh) (Defendant)
FILE NUMBER(S):	SC 2006/255969
COUNSEL:	A Stewart (Solr) (Plaintiff)
SOLICITORS:	Marsdens (Plaintiff) No appearance (Defendant)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BALL J

6 SEPTEMBER 2010

2006/255969 MASOUD TYMOURI v JODIE ADELL WALSHE

EX TEMPORE JUDGMENT

1 This is an application for final relief in relation to the winding up of a partnership. The plaintiff and the defendant originally entered into the partnership in May 2005 to invest and carry on a business known as Youngster Care.

2 The plaintiff invested at that time the sum of $20,000 in the business. It appears from the evidence before me that the business was run entirely by the defendant and, indeed, the plaintiff says that he was not given access either to the business records of the business during the time that the partnership was on foot.

3 During the period May 2005 to September 2005 the plaintiff was paid approximately $2,200 as distribution of profit from the business but no amounts were paid to him following that time. The partnership ultimately broke down in about March 2006 and, following its breakdown, the plaintiff commenced proceedings shortly afterwards for an order for the winding up of the partnership and for an account to be taken.

4 The defendant was originally represented in the proceedings. However, in August 2007, her solicitor filed a notice of ceasing to act and the defendant has not played any significant role in the proceedings since that time, although it is clear that on a number of occasions the plaintiff’s solicitors have written to her concerning her participation and have given notice to her of various directions hearings.

5 On 2 September 2010, the defendant contacted my Associate and indicated that she was aware of the current application for final relief. She also indicated that she had only received that application recently and that, in those circumstances, she would like the hearing today to be vacated. My Associate responded to the defendant’s email saying that, if the defendant wanted to make an application to vacate the hearing date, it would be necessary for her to attend court today. There has, however, been no appearance by her today.

6 On 12 December 2009, Palmer J made orders for the winding up of the partnership. His Honour also ordered that the proceedings be referred to an Associate Judge for the taking of accounts. That, however, has not happened. The reason it has not happened is that, when the defendant was still represented, the plaintiff and defendant agreed to appoint a chartered accountant to prepare a report in relation to the partnership accounts. However, that chartered accountant was not able to complete the report because all the records of the company were in the possession of the defendant and the defendant has not supplied those records to the accountant. Moreover, it was agreed between the parties that the cost of the accountant would be shared equally between them. However, I have been informed that the plaintiff has only paid half of his share of the cost and the defendant has not paid any part of her share. As a result, the report, in whatever form it may currently exist, is not available.

7 In the circumstances, I think it is clear that it is not going to be possible for an account to be taken. Moreover, given the amount of money involved and the length of time these proceedings have been on foot, I think it would be desirable to finalise these proceedings as quickly as possible to ensure that no further unnecessary costs are incurred.

8 The amount sought by the plaintiff as damages is the amount of his original investment. It is possible, of course, that that investment has simply been lost and that there are no assets of the partnership. On the other hand, what information is available to the court suggests that the partnership was profitable, at least between May and September 2005, and there is no evidence before me to suggest that circumstances changed after that time.

9 In those circumstances, I think a reasonable measure of the plaintiff's interest is the amount of his original investment. Consequently I order that the defendant pay the plaintiff the sum of $20,000.

10 That leaves the question of costs. The defendant has persistently failed to appear in court or to provide any information to the accountant in order to enable a proper account to be taken. Given that, I think it is appropriate that the plaintiff should have his costs on an indemnity basis. Consequently, I make that order as well.

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