Calacoci v Calacoci [2020] NSWSC 476

Calacoci v Calacoci [2020] NSWSC 476

Objectively ascertainable agreement of the parties, as evidenced by consistent partnership financial statements, conduct and adopted settled accounts, established that capital and income were to be shared as per initial partnership shares (three plaintiffs 25% each, defendants 12.5% each), not according to the variable legal title of assets. No binding right of pre-emption survived conversion of title or was agreed for current purposes. Sale of the principal asset (Manly shops) should proceed by public auction, with all parties at liberty to bid, absent consensual agreement to the contrary.

Parties
First Plaintiff: Antonio Isidoro ("Anthony") Calacoci; Second Plaintiff: Rossano Vincenzo ("Ross") Calacoci; Third Plaintiff: Ivana Rosita Calacoci; First Defendant: Guiseppe ("John Joseph") Calacoci; Second Defendant: Vincenzina ("Winnie") Calacoci
Jurisdiction
Australia
Judgment Date
08 May 2020
Procedural Posture
Principal Judgment / Post Trial: Reasons for Judgment & Orders Pending Submissions on Form and Costs
Outcome
Declarations and preliminary orders made as to partnership shares and sale mode, final orders and costs reserved for further submissions.
Legal Topics
Dissolution of Partnership, Winding Up Partnership, Distribution of Partnership Property, Entitlements to Capital and Profits, Mode of Sale of Partnership Assets
Equity Partnerships Dissolution of Partnership Winding Up Partnership Distribution of Partnership Property Entitlements to Capital and Profits Mode of Sale of Partnership Assets

Case Brief

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Parties

Antonio Isidoro ("Anthony") Calacoci

First Plaintiff

Rossano Vincenzo ("Ross") Calacoci

Second Plaintiff

Ivana Rosita Calacoci

Third Plaintiff

Guiseppe ("John Joseph") Calacoci

First Defendant

Vincenzina ("Winnie") Calacoci

Second Defendant

Procedural Posture

Principal Judgment / Post Trial: Reasons for Judgment & Orders Pending Submissions on Form and Costs

Legal Issues

  1. 1 Whether shares to capital and income from partnership assets (including the Manly units and Mosman units) should follow legal title or established partnership entitlements
  2. 2 Whether a right of pre-emption exists for the sale of the Manly shops or whether sale should be by public auction
  3. 3 How to effect winding up and sale of principal asset in a dissolved informal family partnership

Ratio Decidendi

Objectively ascertainable agreement of the parties, as evidenced by consistent partnership financial statements, conduct and adopted settled accounts, established that capital and income were to be shared as per initial partnership shares (three plaintiffs 25% each, defendants 12.5% each), not according to the variable legal title of assets. No binding right of pre-emption survived conversion of title or was agreed for current purposes. Sale of the principal asset (Manly shops) should proceed by public auction, with all parties at liberty to bid, absent consensual agreement to the contrary.

Court Disposition

Declarations and preliminary orders made as to partnership shares and sale mode, final orders and costs reserved for further submissions.

Orders

  • Declare the partnership dissolved on 26 April 2019
  • Order the partnership be wound up under direction of the Court