Cappello & Anor v Scrivener & Anor [2020] NSWSC 1748

Cappello & Anor v Scrivener & Anor [2020] NSWSC 1748

The court found that an oral partnership existed between the first plaintiff and first defendant with an agreement to share equally in the venture’s expenses and profits from the acquisition and potential sale or development of three Rouse Hill properties. The agreement was not subject to a condition requiring the plaintiff to secure a buyer by the 'Sunset Date'. The first defendant breached his obligations under that partnership; thus, the first plaintiff was entitled to a declaration of the partnership and to equitable compensation.

Parties
First Plaintiff: John Cappello; Second Plaintiff: Shaka Holdings Pty Ltd; First Defendant: John Sidney Scrivener; Second Defendant: Tuscany Corporation Pty Ltd
Jurisdiction
Australia
Judgment Date
07 December 2020
Procedural Posture
Equity Technology and Construction List / Principal Judgment
Outcome
First plaintiff entitled to declaration of partnership and to equitable compensation for breach of partnership.
Legal Topics
Oral Agreements, Joint Ventures, Partnerships, Equitable Compensation, Enforcement of Oral Contracts, Credibility of Witnesses
Equity Contracts Oral Agreements Joint Ventures Partnerships Equitable Compensation Enforcement of Oral Contracts Credibility of Witnesses

Case Brief

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Parties

John Cappello

First Plaintiff

Shaka Holdings Pty Ltd

Second Plaintiff

John Sidney Scrivener

First Defendant

Tuscany Corporation Pty Ltd

Second Defendant

Procedural Posture

Equity Technology and Construction List / Principal Judgment

Legal Issues

  1. 1 Whether an oral partnership agreement existed between the first plaintiff and first defendant concerning the Rouse Hill property development.
  2. 2 Whether the agreement was conditional upon the plaintiff finding a buyer prior to a specified 'Sunset Date'.
  3. 3 Entitlement to equitable compensation for breach of partnership.

Ratio Decidendi

The court found that an oral partnership existed between the first plaintiff and first defendant with an agreement to share equally in the venture’s expenses and profits from the acquisition and potential sale or development of three Rouse Hill properties. The agreement was not subject to a condition requiring the plaintiff to secure a buyer by the 'Sunset Date'. The first defendant breached his obligations under that partnership; thus, the first plaintiff was entitled to a declaration of the partnership and to equitable compensation.

Court Disposition

First plaintiff entitled to declaration of partnership and to equitable compensation for breach of partnership.

Orders

  • Declare that there was a partnership between the first plaintiff and first defendant (or their corporate nominees) which acquired rights to control and sell 88 Rouse Road, 104 Rouse Road, and 96 Cudgegong Road, Rouse Hill.
  • First plaintiff entitled to equitable compensation for breach of partnership.