United Builders Pty Ltd v Mutual Acceptance Ltd [1980] HCA 43

High Court of Australia Barwick C.J. Gibbs, Stephen, Mason and Wilson JJ. United Builders Pty Ltd v Mutual Acceptance Ltd [1980] HCA 43

ORDER Appeal dismissed with costs. Cross appeal allowed in part. No order as to the costs of the cross appeal. Judgment of the Full Court of the Supreme Court of Queensland varied to provide as follows:—Appeal to that Court allowed with costs.Judgment of D. M. Campbell J. set aside, and in lieu thereto order—

1. That it be declared—

(i) that a partnership subsisting between the plaintiff United Builders Pty. Ltd. and the defendant Mutual Acceptance Limited in terms of the deed of partnership dated 31st July 1972 was determined by notice from the defendant dated 25th September 1974;

(ii) that the value at the date of dissolution of the said partnership of the one-half share of the plaintiff United Builders Pty. Ltd. in the said partnership unencumbered by any charge was $500,000; and

(iii) that the charge created by the deed of charge given by the plaintiff United Builders Pty. Ltd. to the defendant on the 8th March 1973 is a valid charge upon the share of the plaintiff United Builders Pty. Ltd. in the said partnership and entitled to priority over the charge upon the said share in favour of the plaintiff TKM Finance (Aust.) Ltd. constituted by the mortgage debenture deed dated 1st March 1974 given by the plaintiff United Builders Pty. Ltd. to the plaintiff TKM Finance (Aust.) Ltd.

2. That it be ordered—

(iv) that the defendant Mutual Acceptance Limited have leave to withdraw its counter claim for $951,263.93; and

(v) the plaintiffs United Builders Pty. Ltd. and TKM Finance (Aust.) Ltd. pay to the defendant its costs to be taxed.

Cur. adv. vult.

The following written judgments were delivered:—

Nov. 7 Barwick C.J.

In this appeal from a judgment of a Full Court of the Supreme Court of Queensland, I have had the advantage of reading the reasons for judgment prepared by my brother Mason. I am in complete agreement with what he has written and find no occasion to add anything on my own behalf.