Lewis v Martinez and the persons named in the Schedule (No 5) [2024] NSWSC 359

Supreme Court New South Wales

Medium Neutral Citation: Lewis v Martinez and the persons named in the Schedule (No 5) [2024] NSWSC 359 Hearing dates: 25-27 March 2024 Date of orders: 8 April 2024 Decision date: 08 April 2024 Jurisdiction: Equity Before: Elkaim AJ Decision: 1. A declaration that the expulsion of the plaintiff by the resolution put to the defendants on 7 November 2020 was invalid by reason of breaches of the Partnership Deed. 2. A declaration that as between the plaintiff and the defendants the partnership was dissolved with effect from 10 February 2021, being the date of the filing of the statement of claim. 3. An order that the plaintiff's damages arising from the breaches of the Partnership Deed, if any, are to be assessed. 4. An order that the defendants are to pay the plaintiff's costs of the hearing in respect of liability, such costs, subject to any consent agreement between the parties, are not to be payable until the conclusion of the proceedings. 5. All other costs are reserved. 6. A direction that all parties provide a representative of the first defendant with a copy of this decision and the decision made on 26 March 2024 (Lewis v Martinez and the persons named in the Schedule (No 4) [2024] NSWSC 308). Catchwords: PARTNERSHIP AND JOINT VENTURES – rights and duties between parties – expulsion – interpretation of agreement – whether resolution for expulsion was valid – where partnership deed required seven days written notice and 80% of whole partnership votes – where variation resolution came after expulsion resolution – held that expulsion was not valid by reason of breaches of partnership deed PARTNERSHIP AND JOINT VENTURES – rights and duties between parties – fiduciary relationship – good faith obligations – whether expulsion power was exercised for an improper purpose – held that this purpose was not established PARTNERSHIP AND JOINT VENTURES – dissolution – dissolution by court of partnership between plaintiff and defendants – dissolution for just and equitable reasons Legislation Cited: Evidence Act 1995 (NSW), ss 63, 67 Partnership Act 1890 (UK), s 35(f) Partnership Act 1958 (Vic), ss 23, 39(f) Cases Cited: Battle v Bundagen Co-operative Ltd (No 2) [2011] NSWCA 38 Blisset v Daniel (1853) 10 Hare 493; 68 ER 1022 Cappe v Tsung [2018] NSWCA 86 Green v Howell [1910] 1 Ch 495 Hanlon v Brookes (1997) 15 ACLC 1626 Jones v Dunkel (1959) 101 CLR 298 Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 Mullins v Laughton [2003] Ch 250 Noranda Australia Ltd v Lachlan Resources NL (1988) 14 NSWLR 1 Russell v Russell (1880) 14 Ch D 471 Ryder & 1 Ors v Frohlich & 1 Ors [2004] NSWCA 472 Variety Video v Jones [2001] NSWSC 5 Texts Cited: R I'Anson Banks, Lindley & Banks on Partnership (21st ed, 2022, Thomson Reuters) Category: Principal judgment Parties: Gregory William Francis Lewis (Plaintiff) Juan Martinez and the persons named in the Schedule (Defendants) Representation: Counsel: Mr F Douglas KC (Plaintiff) Mr J Carter (Plaintiff) Mr J Douglas (Plaintiff) Mr D Williams SC (Defendant) Mr A Barnett (Defendant)