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Uren v Uren

Uren v Uren

Case [2018] VSCA 141 1 June 2018

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2017 0104

BRUCE NORMAN UREN	Applicant
v
NOEL MURRAY UREN	Respondent

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JUDGES:	SANTAMARIA, KYROU and ASHLEY JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 April 2018
DATE OF JUDGMENT:	1 June 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 141
JUDGMENT APPEALED FROM:	Uren v Uren [2017] VSC 265 (Judd J)

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CONTRACT – Partnership – Undocumented partnership agreement between brothers to conduct cattle farm – Respondent worked full-time on farm while applicant worked in finance industry – Respondent contributed all his capital to partnership – Whether partnership agreement included terms for payment to respondent of remuneration and interest on capital – Principles for inferring and implying contractual terms – Quantum of remuneration – Whether interest compound or simple – Appeal dismissed – Partnership Act 1958 ss 28, 48 – Grocon Constructors (Victoria) Pty Ltd v APN DF2 Project 2 Pty Ltd [2015] VSCA 190 applied.

STATUTE OF LIMITATIONS – Respondent claimed remuneration from commencement of partnership – Parties agreed to taking of accounts and making of adjustments to entitlements from 1991 – Applicant subsequently pleaded limitation defence for period preceding 6 years before respondent’s claim for remuneration – Whether limitation defence waived – Appeal dismissed – Limitation of Actions Act 1958 s 5(1).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P Bick QC	HWL Ebsworth
For the Respondent	Mr P Solomon QC with Mr J Fetter	DST Legal

SANTAMARIA JA
KYROU JA
ASHLEY JA:

Introduction and summary

This application for leave to appeal concerns the entitlement of the respondent (‘Noel’) to be remunerated for the labour he contributed to a partnership between him and the applicant (‘Bruce’) and to be paid interest on the capital he advanced to the partnership.

Noel and Bruce are brothers. Noel is a farmer and Bruce is a finance broker. They established the partnership in 1974 to conduct a cattle farm known as ‘Walkerville’ at Tarwin Lower, Gippsland (‘Walkerville partnership’ or ‘Partnership’). Walkerville was comprised of three lots and a Crown allotment. Noel lived on the farm from 1994 and was responsible for its day-to-day operation. Bruce lived and worked in various Victorian cities and was responsible for the finances and accounts of the Partnership.

Following a falling out between the parties in 2013, on 10 June 2015 Bruce commenced a proceeding in the Trial Division in which he sought a declaration as to the dissolution of the Partnership with effect from 30 June 2015. He also sought orders for the sale of partnership assets, the application of proceeds of sale and the adjustment of entitlements.

The proceeding was settled on 10 August 2015. By terms of settlement signed on that day, the parties agreed to the dissolution of the Partnership and the sale of partnership assets, including Walkerville. The parties also agreed that an accountant, Russell Munday of Munday Wilkinson, be appointed to enquire into and report on their respective entitlements in the Partnership from 1 July 1991. An order made by Cameron J…

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 Uren v Uren

Details

AGLC: Bruce Norman Uren v Noel Murray Uren [2018] VSCA 141
Case: [2018] VSCA 141
Decision Date: 1 June 2018

CaseChat Overview and Summary

In the matter of Uren v Uren, the dispute centred around an undocumented partnership agreement between two brothers, wherein they agreed to conduct a cattle farm. The respondent devoted his full-time efforts to the farm, while the applicant worked in the finance sector. The respondent contributed all his capital to the partnership, and the central issue was whether the partnership agreement included terms for the respondent's remuneration and interest on his capital contribution. The court also had to determine the quantum of the respondent's remuneration and whether the interest on the capital should be compounded or simple.

The court considered the principles for inferring and implying contractual terms, and applied the provisions of the Partnership Act 1958. It found that the respondent was entitled to remuneration and interest on his capital contribution. The court further held that the limitation defence raised by the applicant for the period preceding six years before the respondent's claim for remuneration was waived, as the parties had agreed to taking of accounts and making of adjustments to entitlements from 1991. The appeal was dismissed, and the matter was referred back to the primary court for the determination of the quantum of remuneration and interest.

The court ordered that the appeal be dismissed, and the matter be remitted to the primary court for further proceedings to determine the quantum of remuneration and interest. The court also directed that the limitation defence was waived and could not be relied upon by the applicant. The court applied the principles of the Partnership Act 1958 and the Limitation of Actions Act 1958 to reach its decision.

Orders