HEARD & ANOR v. KELL & ORS [2001] NSWSC 455

HEARD & ANOR v. KELL & ORS [2001] NSWSC 455

On proper construction of the dissolution agreement, the advertising priority became an asset of the defendants alone. Clause 12.1, providing for split use of the advertising position, was conditional upon approval by the Yellow Pages publisher, which was not forthcoming. In these circumstances, the plaintiffs have no entitlement to share in the advertising priority, and the defendants did not breach any contractual or fiduciary obligation.

Parties
Plaintiff: Malcolm John Heard; Plaintiff: John Erin McEwan; Defendant: Peter George Kell; Defendant: Roger John Downs; Defendant: David Wilfrid Burrows; Defendant: Paul Alexander Kean; Defendant: David Laurence Potts; Defendant: Peter Chodat; Defendant: Paul Dante Magagnino
Jurisdiction
Australia
Judgment Date
05 June 2001
Procedural Posture
Equity / Final Judgment After Hearing
Outcome
Judgment for the defendants with costs
Legal Topics
Dissolution of Partnership, Contractual Construction, Advertising Rights, Fiduciary Duties
Partnership Law Equity Dissolution of Partnership Contractual Construction Advertising Rights Fiduciary Duties

Case Brief

Summary, issues, holding and outcome

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Parties

Malcolm John Heard

Plaintiff

John Erin McEwan

Plaintiff

Peter George Kell

Defendant

Roger John Downs

Defendant

David Wilfrid Burrows

Defendant

Paul Alexander Kean

Defendant

David Laurence Potts

Defendant

Peter Chodat

Defendant

Paul Dante Magagnino

Defendant

Procedural Posture

Equity / Final Judgment After Hearing

Legal Issues

  1. 1 Whether under the dissolution agreement the plaintiffs are entitled to share in the advertising priority position after Yellow Pages publisher withheld approval for split advertisement
  2. 2 Whether the defendants breached contractual or fiduciary obligations by securing the priority advertising position for themselves

Ratio Decidendi

On proper construction of the dissolution agreement, the advertising priority became an asset of the defendants alone. Clause 12.1, providing for split use of the advertising position, was conditional upon approval by the Yellow Pages publisher, which was not forthcoming. In these circumstances, the plaintiffs have no entitlement to share in the advertising priority, and the defendants did not breach any contractual or fiduciary obligation.

Court Disposition

Judgment for the defendants with costs

Orders

  • Judgment for the defendants with costs