Daniels & Anor v Smith [2006] NSWSC 1424

Daniels & Anor v Smith [2006] NSWSC 1424

Appointment of receiver is appropriate where dissolution is not in dispute and there is no practical alternative, especially when co-operation between partners is problematic and partnership accounts must be taken. Despite modest net assets, the ordinary course applies. Costs to be paid out of partnership assets as there is no misconduct justifying a departure from the rule.

Parties
First Plaintiff: Michelle Daniels; Second Plaintiff: David Duarte; Defendant: Lynette Smith
Jurisdiction
Australia
Judgment Date
13 September 2006
Procedural Posture
Equity Partnership Dissolution / Ex Tempore Judgment After Interlocutory Hearing
Outcome
Order that receiver be appointed and partnership accounts taken. Reserve further consideration of whether taking of accounts should be referred to receiver. Costs of both parties to be paid out of partnership assets.
Legal Topics
Dissolution of Partnership, Appointment of Receiver, Winding Up Partnership, Taking of Partnership Accounts, Costs (partnership)
Equity Partnerships Dissolution of Partnership Appointment of Receiver Winding Up Partnership Taking of Partnership Accounts Costs (partnership)

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Parties

Michelle Daniels

First Plaintiff

David Duarte

Second Plaintiff

Lynette Smith

Defendant

Procedural Posture

Equity Partnership Dissolution / Ex Tempore Judgment After Interlocutory Hearing

Legal Issues

  1. 1 Whether receiver should be appointed for winding up partnership and taking accounts
  2. 2 Whether taking of accounts should be referred to receiver or Court
  3. 3 Who should bear the costs of the proceeding

Ratio Decidendi

Appointment of receiver is appropriate where dissolution is not in dispute and there is no practical alternative, especially when co-operation between partners is problematic and partnership accounts must be taken. Despite modest net assets, the ordinary course applies. Costs to be paid out of partnership assets as there is no misconduct justifying a departure from the rule.

Court Disposition

Order that receiver be appointed and partnership accounts taken. Reserve further consideration of whether taking of accounts should be referred to receiver. Costs of both parties to be paid out of partnership assets.

Orders

  • Declaration of dissolution of partnership on 11 June 2005.
  • Order for winding up partnership business under court direction.