Anderson Group v Davies [2001] NSWSC 356

Anderson Group v Davies [2001] NSWSC 356

The word bankruptcy in Partnership Act 1892, s.33(1) does not include the winding up of a company. Winding up leaves ownership of the company's assets, including any partnership interest, intact, and the statutory reference to bankruptcy is confined to partners capable of suffering bankruptcy, namely natural persons. The plaintiff's winding up on 3 March 2000 therefore did not dissolve the North Wollongong Hotel Partnership; dissolution occurred on 5 February 2001 pursuant to notice under s.32. Given the dissolved partnership and the intermingling of the financial affairs of the partnership and the third defendant, sufficient grounds existed to appoint an impartial receiver, although...

Jurisdiction
Australia
Judgment Date
07 May 2001
Procedural Posture
Equity Proceeding Concerning Dissolution and Winding Up of a Partnership and Appointment of a Receiver and Manager / Judgment on Summons
Outcome
Declaration and orders made for the plaintiff; execution of receiver and ancillary orders stayed pending determination of proceedings 2210/01 or further order; defendants ordered to pay the plaintiff's costs.
Legal Topics
['dissolution of Partnership' 'winding Up of Corporate Partner' 'bankruptcy Under Partnership Act 1892, S.33(1)' 'appointment of Receiver and Manager' 'stay of Execution']
['partnership' 'equity' 'corporations'] ['dissolution of Partnership' 'winding Up of Corporate Partner' 'bankruptcy Under Partnership Act 1892, S.33(1)' 'appointment of Receiver and Manager' 'stay of Execution']

Case Brief

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Procedural Posture

Equity Proceeding Concerning Dissolution and Winding Up of a Partnership and Appointment of a Receiver and Manager / Judgment on Summons

Legal Issues

  1. 1 ['Whether the winding up of a corporate partner constituted bankruptcy for the purposes of Partnership Act 1892, s.33(1), thereby dissolving the partnership.' "Whether the North Wollongong Hotel Partnership was dissolved on 3 March 2000 by the plaintiff's winding up or on 5 February 2001 by notice under Partnership Act 1892, s.32." 'Whether a receiver and manager should be appointed to wind up the partnership business.' 'Whether execution of the receiver and ancillary orders should be stayed pending determination of other proceedings.']

Ratio Decidendi

The word bankruptcy in Partnership Act 1892, s.33(1) does not include the winding up of a company. Winding up leaves ownership of the company's assets, including any partnership interest, intact, and the statutory reference to bankruptcy is confined to partners capable of suffering bankruptcy, namely natural persons. The plaintiff's winding up on 3 March 2000 therefore did not dissolve the North Wollongong Hotel Partnership; dissolution occurred on 5 February 2001 pursuant to notice under s.32. Given the dissolved partnership and the intermingling of the financial affairs of the partnership and the third defendant, sufficient grounds existed to appoint an impartial receiver, although...

Court Disposition

Declaration and orders made for the plaintiff; execution of receiver and ancillary orders stayed pending determination of proceedings 2210/01 or further order; defendants ordered to pay the plaintiff's costs.

Orders

  • ['A declaration that the partnership between the plaintiff, the first defendant and the second defendant styled North Wollongong Hotel Partnership was dissolved on 5 February 2001.' 'Orders in the terms of paragraphs 2, 3, 4, 5, 6, 7, 8 and 9 of the Summons.' 'An order that execution of the orders in item 2 above be...