WILLIAMS -v- NICOSKI & ANOR [2003] WASC 131 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WASC 131 (S)
Case No:	CIV:1404/1999	Heard:	1, 4-8 NOVEMBER 2002 & 8 JULY 2003
Coram:	BARKER J	Delivered:	8/07/03
Supplementary Delivered:	10/07/03
No of pages:	14	Judgment Part:	1 of 1
Result:	Final orders for winding up and taking of accounts of partnership and in respect of limited agency agreement
Category:	A
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Parties:	TROY WILLIAMS GEORGETTE NICOSKI NUTRIMETICS INTERNATIONAL (AUSTRALIA) PTY LTD
Catchwords:	Partnership Final orders in partnership and contract actions Whether s 34(5) of The Partnership Act 1895 (WA) prevents the award of an allowance for work and skill
Legislation:	The Partnership Act 1895 (WA), s 34(5)
Case References:	Airey v Borham (1861) 29 Beav 620; 54 ER 768 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : WILLIAMS -v- NICOSKI & ANOR [2003] WASC 131 (S) CORAM : BARKER J HEARD : 1, 4-8 NOVEMBER 2002 & 8 JULY 2003 DELIVERED : 8 JULY 2003 SUPPLEMENTARY
DECISION : 10 JULY 2003 FILE NO/S : CIV 1404 of 1999 BETWEEN : TROY WILLIAMS

Plaintiff

AND

GEORGETTE NICOSKI

First Defendant

NUTRIMETICS INTERNATIONAL (AUSTRALIA) PTY LTD

Second Defendant

Catchwords:

Partnership - Final orders in partnership and contract actions - Whether s 34(5) of The Partnership Act 1895 (WA) prevents the award of an allowance for work and skill

Legislation:

The Partnership Act 1895 (WA), s 34(5)

(Page 2)

Result:

Final orders for winding up and taking of accounts of partnership and in respect of limited agency agreement

Category: A

Representation:

Counsel:

Plaintiff : Mr T B Lyons (8 July 2002)

First Defendant : Mr C L Zelestis QC & Mr P C Blackman

(8 July 2003)

Second Defendant : Mr C L Zelestis QC & Mr P C Blackman

(8 July 2003)

Solicitors:

Plaintiff : Gibson Lyons

First Defendant : Tottle Partners

Second Defendant : Tottle Partners

Case(s) referred to in judgment(s):

Airey v Borham (1861) 29 Beav 620; 54 ER 768

Case(s) also cited:

Nil

(Page 3)

BARKER J

Introduction

1 On 8 July 2003, I published my reasons for decision in these proceedings.

2 I then indicated that for the reasons which I had published, I would find for the plaintiff in the partnership action against the first defendant, but would dismiss the plaintiff's action for damages or equitable compensation against the second defendant, save in respect of the making of a declaration that on 2 April 1997, the plaintiff and the second defendant concluded a limited agency agreement in the form of the 1997 limited agency agreement attached to the reasons.

3 I further indicated that I would hear from the parties as to why declarations and orders should not be made in accordance with the draft orders attached to the reasons for decision.

4 I then received written submissions from the parties, as well as supplementary oral submissions, concerning the terms of the final orders that should be made.

Draft Order 6

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 WILLIAMS v Nicoski

Details

AGLC: WILLIAMS v Nicoski [2003] WASC 131 (S)
Case: [2003] WASC 131 (S)
Decision Date

CaseChat Overview and Summary

The Supreme Court of Western Australia heard the case of Williams v. Nicoski and Another [2003] WASC 131 (S) involving Troy Williams as the plaintiff against Georgette Nicoski, the first defendant, and Nutrimetics International (Australia) Pty Ltd, the second defendant. The case revolved around the winding up and taking of accounts of a partnership, as well as a limited agency agreement. The legal issues the court was required to decide included whether Section 34(5) of the Partnership Act 1895 (WA) prevented the award of an allowance for work and skill.

The court held that the first defendant was entitled to an allowance for work and skill after the breakdown of her personal relationship with the plaintiff, as she was effectively required to operate the business of the partnership as a sole proprietor. The award of such an allowance was considered open at equity and in conformity with Section 6 of the Act. The court also ordered that the costs of the action between the plaintiff and the first defendant be reserved until the winding-up and taking of accounts in the partnership action had been completed, while the plaintiff was responsible for the costs of the second defendant.

The final orders made by the court included declarations regarding the partnership, the limited agency agreement, and the partnership property, as well as orders for taking accounts, inquiries, and the sale of the partnership business. The court also made orders regarding the distribution of the proceeds from the sale of the partnership assets and liabilities, as well as the dismissal of the plaintiff's actions against the first and second defendants.

Orders