Gazzana v Santamaria [2015] NSWSC 916

Gazzana v Santamaria [2015] NSWSC 916

The second defendant conducted and operated the partnership business as agent for the plaintiff and first defendant; partnership income was paid to the second defendant, there was no evidence of agreed hire charges or independent income of the second defendant, and equipment acquired during the partnership was therefore generally partnership property or represented partnership income. The court accepted that on 14 December 2012 the plaintiff and first defendant agreed to dissolve the partnership and divide certain listed equipment, but not to make a complete final settlement of all partnership assets and liabilities, so the value of divided equipment must be brought to account. The Local...

Jurisdiction
Australia
Judgment Date
13 July 2015
Procedural Posture
Equity Division Proceedings Concerning Dissolution and Winding Up of a Partnership / Determination of Separate Questions Before Final Accounting and Further Directions
Outcome
Separate questions answered; matter stood over for further directions and costs.
Legal Topics
['dissolution and Winding Up of Partnership' 'partnership Property' 'accounting Between Partners' 'separate Questions' 'use of Partnership Assets After Dissolution' 'partnership Act 1892 (nsw) S 42']
['partnership Law' 'equity' 'civil Procedure'] ['dissolution and Winding Up of Partnership' 'partnership Property' 'accounting Between Partners' 'separate Questions' 'use of Partnership Assets After Dissolution' 'partnership Act 1892 (nsw) S 42']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Equity Division Proceedings Concerning Dissolution and Winding Up of a Partnership / Determination of Separate Questions Before Final Accounting and Further Directions

Legal Issues

  1. 1 ['Whether there was an agreement on or about 14 December 2012 between the plaintiff and first defendant as to division of partnership property and its effect on final accounts.' 'What assets were assets of the partnership, including whether equipment in Schedules A and C was partnership property.' 'Whether the Local Court judgment in favour of SBC Holdings Pty Ltd was a liability of the partnership.' 'Whether any jobs in the Russo & Partners spreadsheet fell outside the terms of the partnership.' 'Whether a party in possession of equipment after dissolution was liable to account for profits under s 42 of the Partnership Act 1892 (NSW), an undertaking as to damages, or otherwise.']

Ratio Decidendi

The second defendant conducted and operated the partnership business as agent for the plaintiff and first defendant; partnership income was paid to the second defendant, there was no evidence of agreed hire charges or independent income of the second defendant, and equipment acquired during the partnership was therefore generally partnership property or represented partnership income. The court accepted that on 14 December 2012 the plaintiff and first defendant agreed to dissolve the partnership and divide certain listed equipment, but not to make a complete final settlement of all partnership assets and liabilities, so the value of divided equipment must be brought to account. The Local...

Court Disposition

Separate questions answered; matter stood over for further directions and costs.

Orders

  • ["Question 1: Yes. By the agreement, the plaintiff is entitled to the equipment listed in a to e of Schedule A together with item l referred to in paragraph 12 of the plaintiff's affidavit sworn on 11 December 2014. The first defendant is entitled to the balance of the equipment acquired by the second defendant...