Kelly v Tucker [1907] HCA 40

REPORTS OF CASES

DETERMINED IN THE

HIGH COURT OF AUSTRALIA

1907-1908.

(HIGH COURT OF AUSTRALIA.)

KELLY . . a | i i } 2 APPELLANT; DEFENDANT, AND TUCKER . , J . = ' . RESPONDENT. PLAINTIFF,

ON APPEAL FROM THE SUPREME COURT OF VICTORIA,

Partnership—Dissolution—At will or for single venture—Unequal contribution of 34 ©, op A. capital—Repayment—Partnership Act 1891 (Vict.) (No. 1222), secs. 28, 30,36, 997. 39, 48. wits

A. and B. made a verbal contract whereby they agreed to enter into MELBOURNE, partnership in the business of buying racehorses in Australia, shipping them June 21, 24, to South Africa, and there selling them; that A. should provide £800 as g,57' jo capital for the business; and that the profits should be equally divided between A, and B. A. provided the £800, and racehorses were bought and Grifith O.., raced in Australia, but no horses were sent to South Africa. A. gave notice a of dissolution of the partnership. In an action by A. for winding up the partnership he claimed a declaration that the £800 should be paid to him out of the assets of the partnership in priority to any payment to B. in respect of profits. Judgment was given declaring that the partnership was dissolved, and that A. was entitled to be allowed the whole of the £800, and ordering that, in the taking of the accounts, the sum of £800 should be allowed to A. as capital of the partnership business.

VoL. Vv. 1

H. C. oF A.

1907. ——

Kerry v 'Tcker.

HIGH COURT [1907.

Held, that there was evidence to juetify a finding that there was an implied agreement that the £800 should be repaid to A. before there was any division of profits.

Held also (Higgins J. dissenting), that there was evidence to justify a find- ing that the adventure to South Africa was abandoned, and, therefore, that the partnership became one for an indefinite term and was determined by the notice.