Seiwa Australia Pty Ltd v Beard [2009] NSWCA 240

Seiwa Australia Pty Ltd v Beard [2009] NSWCA 240

The appeal failed because the trial judge's findings that Mr Seeto resigned in October 1998, and that neither the partnership nor the respondents were bound by contracts entered by Mr Seeto, were not shown to be palpably incorrect or inconsistent with incontrovertible evidence. The purported contracts fell outside the usual business of a chartered accountancy partnership, and the 'custodian account' scheme was not within the usual way of carrying on such business. There was no operative contract with the partnership, and section 11 of the Partnership Act did not apply. The Jones v Dunkel inference was discretionary and not improperly omitted.

Parties
Appellant: Seiwa Australia Pty Ltd; Appellant: Australia Seiwa Pty Ltd; Appellant: Shojiro Azuma; Respondent: Malcolm James Beard; Respondent: Gregory Charles Ralph
Jurisdiction
Australia
Judgment Date
11 August 2009
Procedural Posture
Appeal / Judgment
Outcome
Appeal dismissed with costs
Legal Topics
Authority of Partners, Ostensible Authority, Business Names Act, Contract Formation, Appellate Review of Factual Findings, Jones V Dunkel Inference, Misapplication of Money, Objective Approach to Contract Identification
Partnership Contract Evidence Appeals Authority of Partners Ostensible Authority Business Names Act Contract Formation +4 more

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Parties

Seiwa Australia Pty Ltd

Appellant

Australia Seiwa Pty Ltd

Appellant

Shojiro Azuma

Appellant

Malcolm James Beard

Respondent

Gregory Charles Ralph

Respondent

Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 When did Mr Seeto cease being a partner in Gould Ralph & Company?
  2. 2 Did Mr Seeto have authority (actual or ostensible) to bind the partnership in the investment contracts?
  3. 3 Was any contract formed with the partnership and if so did it become operative?

Ratio Decidendi

The appeal failed because the trial judge's findings that Mr Seeto resigned in October 1998, and that neither the partnership nor the respondents were bound by contracts entered by Mr Seeto, were not shown to be palpably incorrect or inconsistent with incontrovertible evidence. The purported contracts fell outside the usual business of a chartered accountancy partnership, and the 'custodian account' scheme was not within the usual way of carrying on such business. There was no operative contract with the partnership, and section 11 of the Partnership Act did not apply. The Jones v Dunkel inference was discretionary and not improperly omitted.

Court Disposition

Appeal dismissed with costs

Orders

  • Appeal dismissed.
  • Appellants to pay respondents' costs.