Cuming v Hennessy [2005] NSWSC 1219

Cuming v Hennessy [2005] NSWSC 1219

Although there was sufficient material to show a prima facie case that a partnership existed and that it had dissolved on 4 November 2005, the factors did not warrant appointing a receiver at this stage. The alleged partnership had modest assets, receivership costs would be substantial, there was no threat that capital assets were being diminished, and the dispute was suitable for mediation. The application for appointment of a receiver was therefore dismissed and the parties were ordered to proceed to mediation.

Jurisdiction
Australia
Judgment Date
28 November 2005
Procedural Posture
Application for Appointment of an Interim Receiver and Manager Following Breakdown of an Alleged Partnership Between Accountants / Interlocutory Application
Outcome
Application to appoint a receiver dismissed; parties ordered to proceed to mediation.
Legal Topics
['appointment of Interim Receiver' 'dissolved Partnership' 'prima Facie Case' 'mediation']
['equity' 'partnership'] ['appointment of Interim Receiver' 'dissolved Partnership' 'prima Facie Case' 'mediation']

Case Brief

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Procedural Posture

Application for Appointment of an Interim Receiver and Manager Following Breakdown of an Alleged Partnership Between Accountants / Interlocutory Application

Legal Issues

  1. 1 ['Whether there was a prima facie case that a partnership existed between the plaintiff and defendant.' 'Whether an interim receiver and manager should be appointed in relation to the alleged dissolved partnership.' 'Whether a receiver should be appointed as a matter of course where a partnership has been dissolved.']

Ratio Decidendi

Although there was sufficient material to show a prima facie case that a partnership existed and that it had dissolved on 4 November 2005, the factors did not warrant appointing a receiver at this stage. The alleged partnership had modest assets, receivership costs would be substantial, there was no threat that capital assets were being diminished, and the dispute was suitable for mediation. The application for appointment of a receiver was therefore dismissed and the parties were ordered to proceed to mediation.

Court Disposition

Application to appoint a receiver dismissed; parties ordered to proceed to mediation.

Orders

  • ['Dismiss the application for putting in a receiver.' 'Order that the parties proceed to mediation.' 'Stand the matter over to Wednesday 30 November 2005 at 9.50am for the purpose of short minutes being brought in.']