JOHANN MAXIMILIAN HERBERSTEIN AGAINST (FIRST) TDR CAPITAL GENERAL PARTNER II LP AND OTHERS [2021] ScotCS CSOH_64 (18 June 2021)

JOHANN MAXIMILIAN HERBERSTEIN AGAINST (FIRST) TDR CAPITAL GENERAL PARTNER II LP AND OTHERS [2021] ScotCS CSOH_64 (18 June 2021)

The defenders owe a duty to account to the pursuer under partnership law and the Limited Partnership Agreement. The contractual provisions do not displace the statutory or common law obligation to account. The action proceeds to the second stage to ascertain the sum due.

Citation
[2021] ScotCS CSOH_64
Parties
Pursuer: Johann Maximilian Herberstein; First Defender: TDR Capital General Partner II LP; Second Defender: TDR Capital General Partner II Limited; Third Defender: TDR Capital GP LLP; Fourth Defender: TDR Capital LLP
Jurisdiction
Scotland
Judgment Date
18 June 2021
Procedural Posture
Count, Reckoning and Payment / Debate on Defenders' Motion to Dismiss and Pursuer's Motion to Ordain Accounting
Outcome
Action allowed to proceed to second stage; defenders' motion to dismiss refused.
Legal Topics
Limited Partnership Accounting, Partners' Duty to Account, Contractual Modification of Statutory Duties
Partnership Law Contract Law Equity Limited Partnership Accounting Partners' Duty to Account Contractual Modification of Statutory Duties

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Parties

Johann Maximilian Herberstein

Pursuer

TDR Capital General Partner II LP

First Defender

TDR Capital General Partner II Limited

Second Defender

TDR Capital GP LLP

Third Defender

TDR Capital LLP

Fourth Defender

Procedural Posture

Count, Reckoning and Payment / Debate on Defenders' Motion to Dismiss and Pursuer's Motion to Ordain Accounting

Legal Issues

  1. 1 Whether defenders owe a duty to account to pursuer under partnership law and Limited Partnership Agreement
  2. 2 Whether contractual provisions displace statutory/common law duty to account
  3. 3 Competency of contracting out of statutory/common law duty to account

Ratio Decidendi

The defenders owe a duty to account to the pursuer under partnership law and the Limited Partnership Agreement. The contractual provisions do not displace the statutory or common law obligation to account. The action proceeds to the second stage to ascertain the sum due.

Court Disposition

Action allowed to proceed to second stage; defenders' motion to dismiss refused.

Orders

  • Second, third and fourth defenders to lodge an Accounting within 2 weeks.
  • Pursuer to lodge Note of Objections within 3 weeks thereafter.