Depofo Pty Ltd v Allan Charles Barnes & Ors [2019] NSWSC 949

Depofo Pty Ltd v Allan Charles Barnes & Ors [2019] NSWSC 949

The Court adopted the referee’s findings regarding the Subsequent Advances as capital contributions, based on account entries, tax records and partner signatures rather than the Shareholders' Agreement or alternate competing evidence. The referee’s findings were reasoned and rational, and there was no procedural unfairness warranting a different outcome. However, with respect to the rent, the referee's conclusions and the PKF calculation could not be accepted as they departed from the only contemporaneous evidence (the Minutes), which fixed rent at $2,200 (GST inc) per month with no CPI or other increases and no completed condition to trigger a higher rent. Therefore, the Court...

Parties
Plaintiff: Depofo Pty Ltd; First Defendant: Allan Charles Barnes; Second Defendant: Pamine Consultants Pty Limited; Third Defendant: Penelope Elizabeth Saba; Fourth Defendant: Robert James Webb; Fifth Defendant: Suzanne Alexia Webb; Sixth Defendant: Hugh Richard Webb; Seventh Defendant: Susan Patricia Webb
Jurisdiction
Australia
Judgment Date
26 July 2019
Procedural Posture
Equity Proceedings for Partnership Dissolution and Winding Up (adoption of Referee's Report) / Judgment After Referee's Report and Hearing of Challenges to the Report
Outcome
Referee’s report adopted except for the section on rent; Court substituted its own findings as to rent owed by Mr Barnes.
Legal Topics
Dissolution and Winding Up of Partnership, Referee Reports—adoption, Variation, Rejection, Characterisation of Partner Advances (capital Vs Loan), Calculation of Partnership Rent and Outgoings
Equity Partnerships Dissolution and Winding Up of Partnership Referee Reports—adoption, Variation, Rejection Characterisation of Partner Advances (capital Vs Loan) Calculation of Partnership Rent and Outgoings

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 4 Authorities cited 8 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Depofo Pty Ltd

Plaintiff

Allan Charles Barnes

First Defendant

Pamine Consultants Pty Limited

Second Defendant

Penelope Elizabeth Saba

Third Defendant

Robert James Webb

Fourth Defendant

Suzanne Alexia Webb

Fifth Defendant

Hugh Richard Webb

Sixth Defendant

Susan Patricia Webb

Seventh Defendant

Procedural Posture

Equity Proceedings for Partnership Dissolution and Winding Up (adoption of Referee's Report) / Judgment After Referee's Report and Hearing of Challenges to the Report

Legal Issues

  1. 1 Whether the referee's findings regarding classification of 'Subsequent Advances' as capital contributions should be adopted
  2. 2 Whether the calculation and amount of partnership rent outstanding by Mr Barnes should be adopted or determined by the Court
  3. 3 Whether there was procedural fairness in the reference process

Ratio Decidendi

The Court adopted the referee’s findings regarding the Subsequent Advances as capital contributions, based on account entries, tax records and partner signatures rather than the Shareholders' Agreement or alternate competing evidence. The referee’s findings were reasoned and rational, and there was no procedural unfairness warranting a different outcome. However, with respect to the rent, the referee's conclusions and the PKF calculation could not be accepted as they departed from the only contemporaneous evidence (the Minutes), which fixed rent at $2,200 (GST inc) per month with no CPI or other increases and no completed condition to trigger a higher rent. Therefore, the Court...

Court Disposition

Referee’s report adopted except for the section on rent; Court substituted its own findings as to rent owed by Mr Barnes.

Orders

  • Referee's Final Report adopted with the exception of conclusions on outstanding rent.
  • For rent, the Court finds Mr Barnes is liable for unpaid rent at $2,200 (GST inc) per month during the relevant period, with interest at Supreme Court pre-judgment rates.