LARBALESTIER v JACKSON [1988] NSWCA 81

LARBALESTIER v JACKSON

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KirBy P, HOPE and SAMUELS JJA 10 August 1988, 10 August 1988

[1988] NSWCA 81

PARTNERSHIP — termination of partnership at will — one partner writes to others claiming contributor by joint venturers — appellant's solicitor writes that he "disputes your claim entirely and has instructed us to defend any legal proceedings" — also asks that further correspondence be addressed to solicitors — agreed that this letter was shortly afterwards given to all partners — whether letter effective to terminate partnership — held (Hope JA; Kirby P and Samuels JA concurring) letter ineffective to terminate partnership because by the partnership Act 1892 s26, s32 notice must be given unequivocally and must be given to the other partners and in this case the letter was equivocal and was not so given but depended on others to distribute it. Syers v Syers (1876) 1 App Cas 174 (HL); Pearce v Lindsay (1860) 3 De G J & Sm 139; 46 ER 591 referred to. Partnership Act 1892, s26, s32(c). ORDER Appeal dismissed with costs.

Hope JA The issue in this appeal is whether a partnership which was held by Needham J to exist between the plaintiff and the three defendants was determined, as his Honour further held, by the filing and serving of an amended notice of defence on 2 June 1987 by the second defendant, or whether, as is submitted by the second defendant in his appeal, it was determined by a letter sent by him to the plaintiff on 17 March 1981 and later communicated by the plaintiff to the first and third defendants.

The partnership which his Honour found to exist was formed in respect of the operation of a tin mine in Cooktown between the parties as equal partners. The plaintiff is a stockbroker with some accountancy qualifications, the first defendant is a solicitor, the second defendant is a barrister and the third defendant is an accountant. In respect of the conduct of the partnership business Needham J found that the plaintiff was the source of funds, the second defendant was exercising some managerial control and the third defendant was attending to the paperwork. The second defendant (the present appellant) was held by him to have involved himself in some ways in respect of the activities of the partnership which it is not relevant to consider for present purposes. The partnership required to purchase the right to mine tin and it was the plaintiff who provided wholly or substantially the finance to make that purchase. His Honour also found the terms upon which that finance was provided.