KUENZLI V. WILTSHIRE

ORIGINAL *

IN THE HIGH COURT OF AUSTRALIA.

REASONS FOR JUDGMENT.

Delivered at... SAY hady

40358 A. H. Pertiven, Acrixa Govr. Prism,

' KUENZLI_V. WILTSHIRE '| 12th DECEMBER, 1945.

JUDGMENT.

LATHAM C.d.: This is an appeal from a decree of the Yupreme Court of New South Wales in its Equitable Jurisdiction whereby it was declared that the plaintiff and the defendant were in partnership in the business of manufacturing and selling certain electrical meter com- ponents, that the partnership was dissolved on the 22nd February 1944 and that on the winding up of the partnership business there was due from the defendant to the plaintiff a sum of £1035/10/4. An order was made for the payment of this amount by the defendant to the plaintiff. The defendant pleaded a counterclaim alleging an agreement i of service between the plaintiff and the defendant, it being one of the terms of that agreement that the plaintiff should not compete with the ' defendant in the business in which they had been in some manner i associated. By the counter claim the defendant sought an injunction and damages. His Honour Mr. Justice Roper held that the plaintiff had | established a partnership, that the parties had agreed to share profits equally but that the plaintiff had no right to share in the assets of

agreement the partnership. There was oral evidence as to the alleged mmsmnt and i

evidence of accounts which were exchenged between the parties and

accepted by them showing that the parties had agreed to be associated in

the business upon the basis of sharing equally in the profits.

The dispute was whether the agreement between the parties amounted to a partnership or to some other form of agreement.

The Partnership Act provides in section 2 that the receipt by a person of a share of the profits of a business is prima facie evidence that he is a partner in the business. There was that prima facie evidence in this case, but if there are other elements thah that element the conclusion as to whether there is a partnership or not mist be founded upon all the circumstances of the case. If the only circumstance which is proved is an agreement to share profits, then the conclusion is that there is a partnership, but other circumstances may prevent that conclusion from being drawn. In the present case the