MAKHRAS v SLEIMAN [1989] NSWCA 135

MAKHRAS vy SLEIMAN

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, PRIESTLEY and MEAGHER JJA 3 February 1989, 23 February 1989

[1989] NSWCA 135

CONTRACT — dissolution of partnership — sale of partnership property — shops and flats at Granville — agreement to sell by tender — each partner to lodge a tender price to purchase property — object to "sort out now once and for all who is going to buy the property" — specific time and place of deposit of tender provided — held: (1) Upon the agreement of counsel that the issue on the appeal should be reduced to the above point which, although different to that litigated at first instance, could be determined on appeal without any prejudice or disadvantage to either party — the agreement of the solicitors, understood against the background of past difficulties of settling the affairs of the partnership, was tO the effect that the highest tender provided at the time and place specified was to be accepted as final. Spencer v Harding (1870) LR 5 CP 561 considered and applied — Orders of Young J varied but appeal otherwise dismissed with costs. PARTNERSHIP — dissolution — sale of partnership property agreement as to procedure for tender — agreement between solicitors specifying precise time and place for tender to sort out purchaser — whether amounts to agreement that highest bid would be accepted — held: In the circumstances it did. ORDERS 1. Leave to appeal granted; 2. Appeal dismissed; 3. Orders of Young J stand except that, by consent of the parties, order 5 is varied by changing the date "26th March" presently appearing to "16 March"; 4. The appellant to pay the costs of the first and second respondents of the appeal; and 5. The third respondent's costs of the appeal to be paid out of the assets of the partnership.

Priestley JA In 1985 Mr Makhras commenced proceedings for a declaration that the partnership between him and Mr and Mrs Sleiman was dissolved. A declaration of dissolution as at 10 October 1985 was made on 4 November 1985. Mr Star was appointed receiver and manager of the partnership business.