FORD v MLLLER and ORS [1996] NSWCA 189

FORD v MLLLER SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, MEAGHER and BEAZLEY JJA 28 August 1996, 11 October 1996

[1996] NSWCA 189

Partnership — contract — agent for partnership — whether bankruptcy of partner is change in proprietorship of partnership — indemnity or contribution — s17, Partnership Act — liability partner in cases of fraud, culpable negligence or wilful default.

CONTRACT — partnership — agent for partnership — variation of contract — repudiation of contract — when repudiation of contract accepted for purposes of Statute of Limitations.

Evidence — admission of fresh evidence on appeal — failure to explain why such evidence was not available at trial admission of fresh evidence dealing with matter not relied on by trial judge.

FACTS:

The respondent entered into a contract to sell a printing business, including plant and equipment to a partnership of four people, Mr Ford, Mrs Ford, Mr Barrett and Mrs Barrett. Payment for the business was to be by monthly instalments. The terms of the contract provided that: (a) the plant and equipment were to remain the respondent's until the contract was fully performed; (b) the partnership would take over leasehold payments relating to particular equipment; and (c) the respondent would be employed by the partnership until the contract had been fully performed. The appeal proceeded on several points:

1) Throughout the course of the sale period, several variations to the contract were alleged by the respondent, Mr Miller. First, it was alleged that by way of variation, the appellant, Mrs Ford, and her husband, Mr Ford, had granted the respondent a mortgage over the house for security. A letter from the appellant's husband was tendered as evidence of this variation although this letter was apparently sent from Sydney at a time when the appellant's husband was in Queensland. Without finding forgery, the trial judge held that the respondent/plaintiff had not proved this term of the contract. On appeal, the respondent sought to lead the fresh evidence of a handwriting expert relating to this letter.