NIXON AND ORS V CAMPBELL AND ORS CIV 2007-404-001372

NIXON AND ORS V CAMPBELL AND ORS CIV 2007-404-001372

The Court upheld the arbitrator: clause 10(b) requires an 'existing partner' both to have been a partner at entry and to be a partner when the goodwill instalment is due/received; clause 11(f)(iii) requires the retiring partner to remain beyond 1 April 2004 (i.e. until 2 April 2004) to be immune from refund; no binding consultancy contract arose because essential terms were unresolved and no authority was vested to bind the partnership; appeal confined to pure questions of law on unchallenged facts, so arbitrator's factual findings stand.

Citation
openlaw-30103f89_3c48_4e7c_a5f0_8d6dd6d9c2ac.pdf
Parties
Withdrawing Partner/appellant: Shaun Roger Nixon; Appellants (trustees): Nixon Trustees (Martin Victor Richardson & Shaun Roger Nixon); Respondent (continuing Partner): Geoffrey Donald Campbell Walker; Respondent (continuing Partner): Rowan John Chapman; Respondent (continuing Partner): Timothy Joseph Goldfinch; Respondent (continuing Partner): Martin Victor Richardson; Respondent (continuing Partner): Dianne Maree Ludwig; Respondent (continuing Partner): Kurt Sherlock; Respondent (company): Gosling Chapman Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
12 December 2008
Procedural Posture
Appeal From Arbitral Award / Judgment on Appeal (high Court)
Outcome
Appeal dismissed; judgment for the continuing partners; arbitrator's award upheld
Legal Topics
Goodwill Payment, Withdrawal/retirement of Partner, Consultancy Agreement by Conduct, Refund of Goodwill, Interpretation of Partnership Deed, Scope of Appeal on Questions of Law, Costs
Arbitration Partnership Law Contract Law Equity (estoppel) Civil Procedure Goodwill Payment Withdrawal/retirement of Partner Consultancy Agreement by Conduct +4 more

Case Brief

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Parties

Shaun Roger Nixon

Withdrawing Partner/appellant

Nixon Trustees (Martin Victor Richardson & Shaun Roger Nixon)

Appellants (trustees)

Geoffrey Donald Campbell Walker

Respondent (continuing Partner)

Rowan John Chapman

Respondent (continuing Partner)

Timothy Joseph Goldfinch

Respondent (continuing Partner)

Martin Victor Richardson

Respondent (continuing Partner)

Dianne Maree Ludwig

Respondent (continuing Partner)

Kurt Sherlock

Respondent (continuing Partner)

Gosling Chapman Limited

Respondent (company)

Procedural Posture

Appeal From Arbitral Award / Judgment on Appeal (high Court)

Legal Issues

  1. 1 Whether clause 10(b) requires a partner to be an 'existing partner' when the goodwill payment is due/received or only when the liability arose
  2. 2 Whether clause 11(f)(iii) required Mr Nixon to remain until 2 April 2004 to avoid refund liability
  3. 3 Whether a binding consultancy agreement was formed by conduct and whether the respondents are estopped from denying it

Ratio Decidendi

The Court upheld the arbitrator: clause 10(b) requires an 'existing partner' both to have been a partner at entry and to be a partner when the goodwill instalment is due/received; clause 11(f)(iii) requires the retiring partner to remain beyond 1 April 2004 (i.e. until 2 April 2004) to be immune from refund; no binding consultancy contract arose because essential terms were unresolved and no authority was vested to bind the partnership; appeal confined to pure questions of law on unchallenged facts, so arbitrator's factual findings stand.

Court Disposition

Appeal dismissed; judgment for the continuing partners; arbitrator's award upheld

Orders

  • Arbitrator's award confirmed
  • Continuing partners entitled to costs; if not agreed respondents to file memorandum within 10 working days and appellants to file a responding memorandum within a further 10 working days