Say-Dee Pty Ltd v Farah Constructions Pty Ltd (No.2) [2005] NSWCA 469

Say-Dee Pty Ltd v Farah Constructions Pty Ltd (No.2) [2005] NSWCA 469

The Court confirmed that Say-Dee Pty Ltd and Farah Constructions Pty Ltd entered a partnership for the acquisition, development, and resale of 11 Deane Street from 2 April 1998, that the second to sixth respondents held the adjoining properties on constructive trust for the partnership due to the first and second respondents' breach of fiduciary duty, and that appropriate receiver powers and directions should be made to realise and distribute partnership assets and profits/losses, pending the taking of accounts. Immediate dissolution of the partnership was denied pending winding up. The appellant was entitled to its costs, with detailed directions for the management and sale of the...

Jurisdiction
Australia
Judgment Date
21 December 2005
Procedural Posture
Civil Appeal / Post Appeal Orders / Judgment on Orders
Outcome
Appeal allowed. Orders of Palmer J on 19 August 2004 and 22 November 2004 set aside. Comprehensive orders and declarations made governing trust, receivership, sale, costs, and dissolution.
Legal Topics
['constructive Trust' 'breach of Fiduciary Duty' 'the Taking of Partnership Accounts' 'dissolution of Partnership' 'appointment of Receivers' 'costs' 'remedies in Equity']
['equity' 'partnerships' 'trusts' 'commercial Law'] ['constructive Trust' 'breach of Fiduciary Duty' 'the Taking of Partnership Accounts' 'dissolution of Partnership' 'appointment of Receivers' 'costs' 'remedies in Equity']

Case Brief

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Procedural Posture

Civil Appeal / Post Appeal Orders / Judgment on Orders

Legal Issues

  1. 1 ['Whether the appellant and first respondent entered into a partnership for acquisition, development and resale of 11 Deane Street, Burwood.' 'Whether the second to sixth respondents hold their interests in the adjoining properties upon constructive trust for the partnership.' 'How to structure powers and directions for receivers over the properties.' 'Entitlement to allowance for entrepreneurial skills of the second respondent.' 'Apportionment of profit/loss and costs following receivership and sale of properties.']

Ratio Decidendi

The Court confirmed that Say-Dee Pty Ltd and Farah Constructions Pty Ltd entered a partnership for the acquisition, development, and resale of 11 Deane Street from 2 April 1998, that the second to sixth respondents held the adjoining properties on constructive trust for the partnership due to the first and second respondents' breach of fiduciary duty, and that appropriate receiver powers and directions should be made to realise and distribute partnership assets and profits/losses, pending the taking of accounts. Immediate dissolution of the partnership was denied pending winding up. The appellant was entitled to its costs, with detailed directions for the management and sale of the...

Court Disposition

Appeal allowed. Orders of Palmer J on 19 August 2004 and 22 November 2004 set aside. Comprehensive orders and declarations made governing trust, receivership, sale, costs, and dissolution.

Orders

  • ['Appeal allowed.' 'Orders of Palmer J dated 19 August 2004 and 22 November 2004 set aside.' 'Declaration of partnership between appellant and first respondent for 11 Deane St, Burwood as from 2 April 1998.' 'Declaration that the second to sixth respondents hold 13 and 15 Deane St, Burwood on constructive trust for...