Giltej Applications Pty Ltd v Rosaria Grace Moschella [2005] NSWSC 599

Giltej Applications Pty Ltd v Rosaria Grace Moschella [2005] NSWSC 599

Clause 17 was properly construed as allowing a partner to retire by giving at least 13 weeks' written notice of intention to do so, with retirement taking effect on expiry of the notice period. No further act by the defendant was required, and the notice was irrevocable absent agreement. Clause 18 applied notwithstanding there were only two partners because the deed contemplated continuation for the limited purposes of clause 18, including valuation and purchase of the outgoing partner's share. The defendant's share of the Business meant what was due to her after accounting for partnership assets, liabilities, contributions and drawings, so any accounting otherwise required under clause...

Jurisdiction
Australia
Judgment Date
14 June 2005
Procedural Posture
Equity Division Proceedings Concerning Construction and Specific Performance of a Partnership Agreement, With Cross Claim / Final Judgment After Hearing
Outcome
Plaintiff succeeded; defendant's cross-claim dismissed; indemnity costs refused; defendant ordered to pay the plaintiff's costs including the cross-claim.
Legal Topics
['construction of Partnership Agreement' 'retirement From Partnership' 'revocability of Notice of Intention to Retire' 'dissolution of Partnership at Will' 'specific Performance' 'partnership Accounts' 'indemnity Costs After Calderbank Offer']
['contracts' 'partnership Law' 'equity'] ['construction of Partnership Agreement' 'retirement From Partnership' 'revocability of Notice of Intention to Retire' 'dissolution of Partnership at Will' 'specific Performance' 'partnership Accounts' 'indemnity Costs After Calderbank Offer']

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Procedural Posture

Equity Division Proceedings Concerning Construction and Specific Performance of a Partnership Agreement, With Cross Claim / Final Judgment After Hearing

Legal Issues

  1. 1 ["Whether the defendant's notice of intention to retire under clause 17 of the partnership deed was revocable before the retirement date." 'Whether any further act was required by the defendant after giving notice for her retirement to become effective.' 'Whether clause 18 applied where there were only two partners and the retiring partner retired during the continuation of the partnership.' "Whether the plaintiff was entitled to purchase the defendant's share of the Business at a fair value certified under clause 18.2." 'Whether accounts or winding up relief under clause 20 should be ordered on the cross-claim.' 'Whether the plaintiff should receive indemnity costs based on the 1 June 2005 Calderbank offer.']

Ratio Decidendi

Clause 17 was properly construed as allowing a partner to retire by giving at least 13 weeks' written notice of intention to do so, with retirement taking effect on expiry of the notice period. No further act by the defendant was required, and the notice was irrevocable absent agreement. Clause 18 applied notwithstanding there were only two partners because the deed contemplated continuation for the limited purposes of clause 18, including valuation and purchase of the outgoing partner's share. The defendant's share of the Business meant what was due to her after accounting for partnership assets, liabilities, contributions and drawings, so any accounting otherwise required under clause...

Court Disposition

Plaintiff succeeded; defendant's cross-claim dismissed; indemnity costs refused; defendant ordered to pay the plaintiff's costs including the cross-claim.

Orders

  • ['Make orders in accordance with paragraphs 1 and 2 of the amended summons.' 'Order that the cross-claim be dismissed.' 'Refuse the application for indemnity costs.' "Order that the defendant pay the plaintiff's costs of the proceedings, including the cross-claim." 'Exhibits may be returned after 28 days.' 'Reserve...