Category Archives: Case by Case

Partnership Obligations Surviving Retirement

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Partnerships are an odd form of association. All of your debts and fortunes are your partners and vice versa. It should certainly be enough to give anyone pause before accepting to enter into a partnership with someone.

But partners retire, relationships go sour and people hit hard times. So what obligations, duties and also entitlements survive termination? Taking a leaf out of Buzzfeed’s books, let me tell you that the answer may surprise you.

A situation recently arose where a retiring partner refused to sign documents that would have put the partnerships affairs in order. The retiring partner was claiming an entitlement but refused to acknowledge any surviving duties. Putting aside the operation of any partnership deed, which will usually include some sort of duty of good faith (even though this is implied in law), it may be instructive to assess the law as abstract from any specific circumstances.

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Partner’s Duties

Partners are required to act in a manner just and faithful towards one another, including a duty to produce due and fair accounts, more on this later. (Lindley & Banks on Partnership 19th Ed. (2010) pp 234-5.) Further to this, they must act in a manner that is in the utmost good faith and in accordance with their fiduciary duty. (Lindley & Banks, pp552-561; Bean Fiduciary Obligations & Joint Ventures (1995) p 143 and pp185- 196)

Upon retirement, the Partnership Act 1963 (ACT) provides in statute with section 21(3):

“A partner who retires from a firm other than an incorporated limited partnership does not by that retirement alone stop being liable for the firm’s debts and obligations incurred before the partner’s retirement.”

Also at section 44 that:

(1) After the dissolution of a partnership, the authority of each partner to bind the firm and the other rights and obligations of the partners continue, despite the dissolution, so far as necessary to wind up the affairs of the firm or to complete transactions started but unfinished at the time the partnership is dissolved, but not otherwise.

Turnbull & Abbott

Case Law

The answer to the titular question is essentially twofold: the obligations survive as far as is necessary to give a full accounting and wind up the partnership, and (linked to the first branch) a partner is restricted from taking advantage of a benefit that arose under the partnership and therefore should have been included in the accounting.

Chan v Zacharia 154 CLR 178 is the seminal case and concerns a partner who refused to sign a lease renewal on behalf of the partnerships so that he could take personal advantage of it.

  1. “… After the dissolution, the obligations of the partners continued so far as was necessary to wind up the affairs of the partnership…In those circumstances the obligation of “perfect fairness and good faith” which is owed by one partner to another continued: see Lindley on Partnership 14th ed. (1979), at p 430. 

…each of the former partners owes the same obligation to the other former partner in respect of that interest as he did while the leasehold interest remained the partnership property …”. That statement is, in my respectful opinion, correct if it is understood to be limited to the case of a partnership which has not been completely wound up…”

This was further approved in John Nelson Developments Pty Ltd v Focus National Developments Pty Ltd [2010] NSWSC 150 in which a partner was determined to not only not take benefit (sorry for the double negative) but actively take positive steps to  “to finalise their obligations by working out ‘who owed what to whom’” [313]

Chan further at [21]:

“The relationship between the partners was curtailed and altered by the dissolution of the partnership. It did not however cease. In particular, and with the exception of the “goodwill” of the practice, each doctor, by reason of his position as a former partner, remained under fiduciary obligations in respect of the partnership property which was to be realized [sic] and applied in paying or discharging partnership debts and liabilities and the expenses of and incidental to the winding up of the partnership affairs…Notwithstanding the dissolution of the partnership, “the good faith and honourable conduct due” from each partner to the other persisted for the purposes of winding up the affairs of the partnership and each partner remained under a fiduciary obligation to co-operate in and act consistently with the agreed procedure for the realization [sic], application and distribution of partnership property”

This position has been affirmed in the Territory primarily in Re Ravinder Rohini Pty Ltd and Janak Raj Sharma v Ivan Krizaic [1991] FCA 318 and also notably in another High Court decision United Dominions Corporation Ltd v Brian Pty Ltd (1986) 157 CLR 1. 

It should also be noted that the same duties can be inferred into joint ventures and other situations where fiduciary obligations can be implied.

So what does that mean?

Well, it means that once a partner retires, he must still act as though he is in the partnership until such a time as a full accounting is taken and distributed of all aspects of the partnership.

This duty extends to taking proactive steps to avoid losses caused to the partnerships through your actions or omissions and alternatively your partners owe you the same duty; to effectively and efficiently do everything they can to secure the release of the retiring partner.

Death?

The same. Section 38 of the Partnership Act, provides that the death of a partner will be treated the same as any other form of dissolution. The same rights of the partner to be paid for their share accrue to their estate.

Debts are a little more complicated, but essentially they operate in the same way except that the debts of the dead partner owing to the partnership must take second priority to any other personal debts directly owing from the dead partner’s estate. [section 13]

Erectile Dysfunction Merchant Guilty of Contempt of Court

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I don’t want to be premature but a well planned blog is a lot like erecting a tent; annoying as hell but better than having a dysfunctional tent that collapses too early leaving everyone disappointed. As such I have considered the values imposed by the Canberra Commercial Law editorial team and have agreed not to make any lewd puns when reporting this case. Disclaimer fulfilled.

Australian Competition and Consumer Commission -v- ACN 117 372 915 Pty Ltd (in liq) (formerly Advanced Medical Institute Pty Ltd) [2015] FCA 1441 dealt with an application by the ACCC asking the Federal Court to make findings of contempt against the Advanced Medical Institute over its continued advertising despite court orders.

I think deep down we all knew it was coming. Erectile dysfunction ads have always skirted that fine line between paying $8 for popped salt-air at the cinemas and literally selling snake-oil…you choose which one of those is less ethical. Preying on male insecurity seems to have paid the bills for a number of years, but the guardians of consumer justice have finally caught up AMI.

In April 2015, North J made orders restraining the Australian Medical Institute and a number of associated individuals and entities (AMI) from advertising their erectile dysfunction and premature ejaculation products as effective. At hearing the ACCC accused the AMI of unconscionable conduct in it’s marketing and that this constituted a breach of (as then) s51AB of the Trade Practices Act 1974 (Cth). As part of the orders, the AMI was still allowed to advertise but was not allowed to make claims as to the efficacy of their products to any prospective patients.

Civil Contempt

The ACCC brought proceedings seeking a finding of civil contempt following a number of advertisements from the AMI on radio, television and publications on their website despite the orders.

To satisfy the test of civil contempt ACCC was required to show that the orders were clear enough not to be ambiguous and that AMI was capable of complying with them. In terms of an injunction this test is somewhat lightened by the circumstances alone as the test now becomes essentially the question of: were the orders clear and could the AMI have stopped itself from publishing the ads? This test has developed over a number of cases and is articulated clearly in Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [31]. The test seems simpler when put in terms of a negative and the Court barely hesitated on the point even noting that Senior Counsel did not contend the point that the advertisements were deliberate. [54]

AMI based its argument primarily on the definition of “prospective patients” contending that the term “prospective patient” is not clear and unambiguous and alternatively that a “prospective patient” is only someone that expresses an interest rather then the public at large therefore rendering the ads not in breach.

In the views of Moshinsky J, a “prospective patient” extended beyond people who contacted AMI and included those members of the general public suffering from sexual dysfunction. Therefore the advertisements being broadcast to the general public were capable of reaching “prospective patients”.

Given the Court’s findings that the previous orders were clear, unambiguous and capable of compliance, Mohinsky J accordingly made declarations of contempt and listed the matter for a hearing on costs and damages.

BONUS: schedule 1 of the judgment contains transcripts from 20 premature ejaculation ads…it’s grim stuff but still better than watching any of the Star Wars prequels…shots fired.

Builder Not Entitled to Payment for $400k Work

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If you haven’t followed the building contract then you won’t get paid, regardless of how much work you have performed.

R Developments Pty Ltd -v- Forth & Anor saw a big shift towards stricter operation of the contract as the stating point when determining how a builder should be compensated for a claim for unpaid work.

R Developments (the builder) quoted and agreed to build a property in Yarralumla for $972,000. After the initial $72,900 deposit, the builder was entitled to be paid $100,000 once the property reached the slab stage, with payments set up for the other stages in the usual manner.

The builder no doubt realised his folly when he had completed $380,000 in work without reaching the slab stage. There were also a number of deposits for materials and the builders profit margin which had been incurred but not paid. The builder claimed a number of variation notices for additional work had been submitted to the owner and accepted by virtue of getting no reply.

The builder then alleged that the owner had not shown a capacity to pay for the extra works and purported to terminate on this basis, claiming short of $600,000 in damages.

Strict contract – no right to estoppel

Estoppel can be broadly defined as a group of rules of equity by which the Courts can prevent injustice, including in cases where they would not otherwise be able to, ie. even if a contract doesn’t provide for it.

Part of the builders claim was that the contract was validly terminated under the requirement to prove finance, or in the alternative, as they had performed $380,000 worth of work, they were entitled to be reimbursed for that work to prevent injustice.

David Robens of Kamy Saeedi Law, successfully argued that the owners had fulfilled their requirements under the contract and that the bank had previously shown that finance was guaranteed even in light of the variations.

Under the contract, the builder was entitled to insist on finance but not once works had been commenced as this was enough to show the builder’s acceptance of meeting this requirement. This acceptance included losing the right to terminate for non-compliance of it. Therefore the termination was invalid and the builder was entitled to no compensation for the work performed.

Normally the builder may then experience some relief through equity, but the court was not particularly receptive on this occasion.

As the owner had already received a benefit resulting from the breach of contract ($300k free work) they were only awarded nominal damages and costs in defending the action.

Implications

The implications of such a decision are wide-ranging for construction law in the ACT. The Courts had previously been somewhat reticent to punish builders too harshly for under-quoting. Sure they were required to take a hit, but usually nothing like this.

The fact that the builder walked away from a claim for almost $600,000 worth of work and materials and got nothing with costs awarded against them should serve as a stark warning to builders or indeed any tradesman in the Territory.

Further to this, and excuse the brag, but the Kamy Saeedi Team poked some pretty big holes in the arguments of a well used construction law firm relying on the pro forma contract prepared by another prominent construction law firm and used by builders as a matter of practice. More than a brag, this certainly raises issues about how construction litigation will result in the future given the hard right turn this case indicates.

After a lengthy dispute, the owner now has the benefit of a lot of free work and is able to recommence building their dream home.

If you would like to discuss this matter further, please contact either Tom Barrington-Smith or David Robens from the Kamy Saeedi Law Commercial Team.