New South Wales Court of Appeal CITATION : McKensey v Hewitt [1999] NSWCA 426 FILE NUMBER(S) : CA 40845/97 HEARING DATE(S) : Thursday 26 August 1999 JUDGMENT DATE : 3 December 1999 Appellant: Hugh Stanley McKensey 2nd Appallant: Victor John Lewis PARTIES : 3rd Apellant: Peter Charles Hicks Respondent: Christopher Michael Hewitt 2nd Respondent:Phillip Anthony Nelson JUDGMENT OF : Meagher JA at 1; Giles JA at 14; Fitzgerald JA at 46 LOWER COURT JURISDICTION : Supreme Court - Equity Division LOWER COURT FILE NUMBER(S) : 1585/95 LOWER COURT JUDICIAL OFFICER : Einstein J COUNSEL : Appellant- Mr W H Nicholas QC & Mr T A Alexis Respondent- Mr M Ashurst SOLICITORS : Appellant- Harris Wheeler (Newcastle) Respondent- Hansens (Newcastle) CATCHWORDS : Partnerships; Duty of good faith and disclosure; Breach of fiduciary duty; Breach of duty not made out Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd (1968) 118 CLR 429 CASES CITED: Port Jackson Stevedoring Pty Ltd v Salmond and Spraggon (Aust) Pty Ltd(1978) 139 CLR231 Hide & Skin Trading Pty Ltd v Oceanic Meat Traders Ltd (1990) 20 NSWLR 310 Codelfa Construction Pty Ltd v Stae Rail Authority of New South Wales (1982)149 CLR337 at 352 DECISION : 1.Appeal allowed in part; 2.Set aside the declarations and orders in paras 5,6,7,8,9,10,11,and12 of the declarations and orders made by Einstein J on 11 November 1997.; 3.Set aside in para 15(b) of the declaration and orders made by Einstein J on November 1997 and in lieu thereof order that the cross-claiments pay the cross- defendants costs of the second cross-claim.; 4.Make no order as to the costs of the appeal. IN THE SUPREME COURT OF NEW SOUTH WALES SYDNEY REGISTRY COURT OF APPEAL CA No. 40845 of 1997 ED No.1585 of 01995 MEAGHER JA FITZGERALD JA GILES JA FRIDAY 3 DECEMBER 1999 Hugh Stanley McKENSEY & 2 ORS V Christopher Michael HEWITT & ANOR PARTNERSHIPS-DUTY OF GOOD FAITH AND DISCLOSURE-BREACH OF FIDUCIARY DUTY-EQUITABLE COMPENSATION-BREACH OF DUTY NOT MADE OUT Facts: The appellants were employees of Deloitte Haskins & Sells ("DH&S") in Newcastle, which in October 1987 decided to cease operations in the Newcastle area. The appellants agreed to take over the business of DH&S and formed a new partnership called Forsythes Chartered Accountants ("Forsythes"). A transition agreement called the "Deloitte's Retirement Agreement" was drawn up. The purpose of this document was to facilitate such things as the transfer of clientele, business equipment and technical material to the new partnership. Clause 14 detailed an annual payment of $30,000 for ten years to be made by all Forsythes partners to DH&S in consideration for clientele and referred work. The respondents became partners in the new business and made contributions to the DH&S payments during 1988, 1989 and 1990. In September 1994 the respondents endeavoured to retire from Forsythes and dissolve the partnership. The Deloitte's agreement provided mechanisms for doing so. The respondents argued they were unable to comply with these provisions as the appellants had failed to disclose to them the terms of the retirement agreement, and the true nature of the $30,000 per annum liability to DH&S. The appellants brought action against the respondents, alleging a breach of fiduciary duty against the other Forsythes partners in failing to settle the financial accounts. They also sought an order for specific performance to complete the retirement agreement, an order for an account of profits, an injunction restraining the respondents from further access to Forsythes' documents, damages, interest and costs. In their cross-claim the respondents argued the appellants' failure to disclose details of the Deloitte's agreement meant the firm was unable to organise all elements necessary to facilitate the retirement of certain partners. The trial judge, in allowing the cross-claim, held the appellants had acted unconscionably in failing to disclose the true nature of the Deloitte's agreement. He found the payments were not in consideration only for the acquisition of DH&S clients, but as a personal benefit to the appellants. This constituted a breach of fiduciary duty. He ordered the appellants pay equitable compensation to the respondents The appellants appeal against this decision. On appeal it was argued the trial judge erred in finding the payments to DH&S were for the appellants' personal benefit. The appellants also submitted that there was no requirement for them to disclose details of the agreement to incoming partners, and so there had been no breach of fiduciary duty. Held: per Meagher JA: The payment to Deloitte's was in consideration for work to be referred to Forsythes. The benefit of this payment flowed to all partners, hence the respondents should be required to pay their portion of the business liability. There was nothing to indicate that the appellants enjoyed exclusive benefits flowing from the payments to DH&S. Per Fitzgerald JA: The respondents failed to raise any legal basis for establishing any obligation of the appellants to disclose the Deloitte's Retirement Agreement prior to the respondents joining the partnership. Neither was there any evidence the benefit was for anything other than the acquisition of new clients. The payment was clearly a partnership liability and hence there had been no breach of fiduciary duty. Per Giles JA: The sole purpose of the agreement was to promote a "friendly firm" arrangement between the old partnership and the new. The new clients were a partnership assets and the $30,000 payment was a partnership liability. It was not in consideration for any personal benefit of the appellants, therefore all partners including the respondents were obliged to pay, but all then benefited from the new clientele. There was no breach of a fiduciary duty as the appellants were under no obligation to disclose the source of the partnership liability or show the respondent's contributions were going to meeting that liability. ORDERS 1. Appeal allowed in part; 2. Set aside the declarations and orders in paragraphs 5,6,7,8,9,10,11 and 12 of the declarations and orders made by Einstein J on 11 November 1997; 3. Set aside the order in paragraph 15(b) of the declarations and orders made by Einstein J on 11 November 1997 and in lieu thereof order that the cross-claimants pay the cross-defendants costs of the second cross-claim; 4. Make no order as to the costs of the appeal.- 21 - THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40845/97 MEAGHER JA FITZGERALD JA GILES JA 25 NOVEMBER 1999 McKENZIE & ORS v HEWITT & ANOR JUDGMENT 1 MEAGHER JA: This is an extraordinary case. It concerns a small partnership dispute, indeed, a dispute so small that if the persons complaining of breach, the respondents Hewitt and Nelson, won on every point they raised they would be entitled to a verdict of no more that $10,000 between them. And yet it occupied experienced counsel on both sides in argument which lasted over ten days, and generated about eight appeal books, eventually resulting in a ridiculus mus of a judgment from Einstein J. Other litigants who had serious litigation to be heard were no doubt kept waiting. 2 The facts could hardly be simpler. Messrs Deloitte Haskins & Sells, the accountancy firm, in early October 1987 decided to cease their practice in the Newcastle area. At this stage the appellants, Messrs McKensey and Lewis, were members of that partnership. They decided to form a new partnership between themselves ("Partnership I") called Forsyths Chartered Accountants. This they did in October 1987..In order to deal with the transitional arrangements, they executed on 6 November 1987 a document (which is central to this Case) called the "Deloittes Retirement Agreement." Then commenced a series of admissions to and retirements form this new partnership. On 30 November 1987 Nelson , (one of the respondents) and a man called Page were admitted as partners. On 1 July 1989 the respondent Hewitt was admitted as a partner, as was someone called Hicks on 1 July 1990. Page retired from the partnership on 30 June 1992. Messrs Nelson and Hewitt (the respondents) did likewise on 2 September 1994. 3 I shall now set out in full the "Deloittes Retirement Agreement": "1. The retiring partners will retire with effect from 30 September 1987. 2. The firm formed by the retiring partners (the new firm) will enter a "friendly firm" agreement with DH&S. This agreement will provide the terms on which they will be entitled to have access to DH&S education. The new firm will be given permission to print on their letterhead in small print that they are a correspondent firm of Deloitte Haskins & Sells. 3. The retiring partners will take over all the clients of the Newcastle office and will be entitled to purchase the net work in progress at 30 September 1987 relating to those clients at a valuation to be approved by D W Elliott. 4. Debtors at 30 September 1987 will be valued net of provisions agreed to be necessary between H S Mr Kensey and D W Elliott. The provisions will be created on the same basis as the provisions at 30 June 1987. The debtors will remain the property of DH&S but in a spirit of co-operation the retiring partners will assist DH&S to collect the debts outstanding. Any debts still unpaid at 28 February 1988 by clients that the new firm shall serve after 1 October 1987 and shall advise DH&S that it intends to continue to serve after 28 February 1988 will be paid for by the retiring partners. The retiring partners will pay to DH&S their proportionate share of any losses incurred on debts (net of agreed provisions) outstanding at 30 September 1987. Any recoveries of bad debts which were written off prior to 30 September 1987 will be to account of the DH&S firm. 5. Furniture and equipment will be purchased by the new firm for a value of $50,000. In the case of leased furniture and equipment, including nominated vehicles and all computers under the staff computer purchase plan, they will take over the leases. The new firm will take over the lease of the office premises at Hunter Mall Chambers, Keightley Street, Newcastle, but if the lessor will not agree to this, the new firm will take a sub-lease from DH&S on the same term as the lease held by DH&S. 6. The retiring partners will not be requested to pay any sum for goodwill. 7. All staff at the Newcastle office will terminate their employment with DH&S as at 30 September 1987 but shall be entitled to be employed by the new firm as from that date. DH&S will pay all entitlements to annual leave to the employees as of 30 September 1987. In addition , for all employees with in excess of 5 years service, DH&S will pay the new firm the calculated long service leave entitlement net of tax. Any balances remaining in the DH&S Staff Superannuation Funds in respect of staff transferring will be transferred to a superannuation fund nominated by the new firm. 8. The retiring partners will be entitled to be paid their fixed capital accounts and subordinated loan accounts as at 30 September 1987 and will be paid an estimate of their current account representing undrawn profits at that date by 31 December 1987 in monthly instalments. 9. The retiring partners will forego all pension entitlements of the DH&S firm but will have the balance in the DH&S Superannuation Fund transferred to fund of their choice or paid to them. 10. DH&S will settle all outstanding creditors as at 30 September 1987 other than lease liabilities in respect of premises and equipment, etc. being taken over by the new firm. Proper adjustments shall be made between DH&S and the new firm for accruals and prepayments. However, the retiring partners will pay to DH&S on 1 October 1987 an amount equal to the sum of their respective capital and subordinated loan accounts of the purchase price of the assets enumerated above and will pay the remaining balance by 30 November 1987 of borrowings external to DH&S by the new firm. 11. The new firm will be entitled to acquire from DH&S the business name Forsythe McKensey & Co. at no charge. 12. DH&S will process the work in progress and debtors records of the new firm for a period of 6 months from 1 October 1987 for a charge of $750.00 per month. The arrangement will be subject to a review at the end of that period but may be terminated by the new firm by the giving of one month's notice. 13. Although the new firm will take over the present clients of DH&S Newcastle office, no warranty or representation is made by DH&S that work which has in the past been referred to the Newcastle office will continue to be referred. This decision will be a decision of the client and of the engagement partner in the controlling office, however DH&S will use its best endeavours to refer audit work carried out in the Newcastle area to the new firm 14. In consideration of the foregoing, the new firm will pay an annual fee of $30,000 for a period of ten years." 4 His Honour found that the payments contemplated by clause 14 of the agreements were, or at least substantially were, in consideration for " benefits" personally obtained "by the appellants", whose existence was withheld from the respondents. The duty to disclose the nature of the payments was, according to his Honour, on the appellants, and their failure to do so constituted a breach of fiduciary duty. 5 This, with all respect to his Honour, vergers on the absurd. It might make some sense of the various benefits derived from the agreement were enjoyed only by the appellants and had been dissipated before either of the respondents had joined the partnership. But the respondents did not prove these facts, or even endeavour to make that case. In commercial terms, the bulk of the $30,000 payable by Partnership 1 was in consideration for taking over the Newcastle clientele of the old Deloitte's partnership. This clientele could hardly have vanished overnight. It, or the bulk of it, must have been there a month after the formation of Partnership 1 when Mr Nelson joined it, and , one imagines, still there eighteen months later, when Mr Hewitt joined. It would therefore seem that there were no "benefits" flowing from the agreement which was enjoyed exclusively by the appellants. In fact, it seems virtually certain that whatever "benefits" flowed from that agreement were enjoyed at all times by both the appellants and the respondents. 6 In truth, one of the assets of Partnership 1 was that clientele, and one its liabilities was the liability to pay for its purchase. It is no stranger that such a liability should exist than it would be, as Gills JA put in argument, that a liability existed in relation to a photocopier purchased on hire purchase by the partnership. 7 Although there was, apparently, no suggestion that any of the respondents had actually seen a copy of the agreement, neither is there any suggestion that they had asked to see it and been denied it. 8 For some years the agreement was performed, and the new partnership paid the annual tribute of $10,000 to the old partnership; this involved a payment by each of Messrs Hewitt and Nelson of the annual sum of $1,500 for the years 1988, 1989 and 1990. It is on this basis that I have calculated the maximum payable to the respondents to be $10,000, even if every single allegation made by them were correct. (Each side agreed with this calculation). 9 What his Honour's judgment in effect means is that the appellants are being crucified for daring to suggest that the respondents should pay their fair share of the partnership liabilities. 10 Two other points call for mention. The first is to note that counsel for the appellants submitted that the word "the foregoing" in clause 14 of the agreements referred only to clauses 2 and 3. No rational basis for this submission was advanced, and there is no reason for supposing the "the foregoing" has other than its usual English meaning and refers to every clause from 1 to 13. 11 The other is to note the principal order made by his Honour. His Honour expressed it thus: "The appropriate order will be to refer it to the Master to inquire into and certify the amounts which were charges to the accounts of Messrs Nelson and Hewitt over the lives of Partnerships 2 to 5 inclusive being referable to payments to Deloittes pursuant to the Deloittes' retirement agreement." 12 But why have an inquiry when everyone knows what amounts were charged? They were $4,500 in respect of each respondent. It should be noted that the respondents did not seek to sustain this order. 13 I agree with the orders proposed by Justice Giles. 14 GILES JA: There were a number of issues in the proceedings before Einstein J, all flowing from the breakdown of the last of the chartered accountancy partnerships known as Forsythes. This appeal was directly concerned with one only of the issues, although indirectly with other issues. 15 The succession of partnerships is described in the reasons of Meagher JA. They began with the retirement of the first partners from Deloitte Haskins & Sells ("Deloittes") and the Deloittes Retirement Agreement, the terms of which are set out in his Honour's reasons. I do not repeat those matters. 16 The issue directly the subject of the appeal was the claim by the respondents, Messrs Nelson and Hewitt, that the appellants, Messrs McKensey and Lewis, should pay equitable compensation for breach of fiduciary duty. The breach alleged was that the appellants failed to advise the respondents of "the true nature" of the obligation under cl 14 of the Deloittes Retirement Agreement to pay an annual fee of $30,000 for ten years. 17 Einstein J held - (a) that the annual fee of $30,000 was not consideration only for Deloittes allowing the appellants to take over Deloittes' Newcastle practice, and that "a very significant parameter of the agreement was Deloittes having allowed Messrs McKensey and Lewis to take over their existing Newcastle practice"; (b) that the payments made and to be made pursuant to cl 14 of the Deloittes Retirement Agreement "were, at least in part, consideration for benefits personally obtained by Messrs McKensey and Lewis, before Mr Nelson and later Mr Hewitt joined the partnership"; (c) that the appellants owed fiduciary duties to the incoming partners pursuant to which they were obliged to disclose to the respondents "the true nature" of the obligation under cl 14 of the Deloittes Retirement Agreement, that is, that the payments made and to be made were, at least in part, consideration for the benefits described in (b); (d) that the appellants were in breach of the fiduciary duties in that they failed to inform either of the respondents accordingly; 18 His Honour made declarations as to the fiduciary duties and their breach, ordered that the proceedings be referred to the Master to inquire into and certify the amounts charged to the later partnerships "referable to payments made to Deloittes pursuant to paragraph 14 of the Deloittes Retirement Agreement and representing the percentage of the partnership entitlement held by [the respective respondents] at the date those payments were made", and ordered that the appellants pay to the respondents the amounts so certified. 19 The appellants challenged the holding in relation to the consideration for which the annual fee of $30,000 was payable, the holdings as to "the true nature" of the obligation under cl 14 of the Deloittes Retirement Agreement and breach of fiduciary duty, and the orders so far as directed to payment of equitable compensation by the appellants to the respondents. 20 The appeal was indirectly concerned with other issues in that, having regard to all issues, his Honour made orders to the effect that the appellants and Mr Hicks pay 70 per cent of the costs of the respondents. The appellants challenged the orders on the ground that his Honour had exercised his discretion as to costs under a misapprehension as to the consent outcome, part way through the hearing, of one of the other issues. The holding as to consideration 21 The appellants submitted that "the foregoing" in cl 14 of the Deloittes Retirement Agreement related only to the matters in cll 2 and 13, the "friendly firm" arrangement and the best endeavours to refer audit work to the new partnership. So, it was submitted, the payment of the annual fee of $30,000 was not consideration for the taking over of the clients of the Newcastle office to which cl 3 referred, as was underlined by cl 6 in its provision that the retiring partners would not be requested to pay any sum for goodwill. 22 I do not think that the submission should be accepted. Clause 14 identified that for which the annual fee of $30,000 was payable in general terms, "the foregoing", and the expression on its natural reading encompassed all matters the subject of the preceding thirteen clauses. There is no reason to limit the consideration to the matters the subject of cll 2 and 13, and cl 6 meant only that a further sum specifically referable to goodwill would not be required. 23 There was nothing wrong, indeed it made good sense, for the parties to the Deloittes Retirement Agreement to stipulate for an annual sum payable by the retiring partners in addition to some specific payments ( for example in cl 12), in return for the package of benefits falling to those partners. I do not think that the appellants' reference to the principles by which a contract should be construed so as to make commercial sense and avoid commercial inconvenience (eg Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd (1968) 118 CLR 429; Port Jackson Stevedoring Pty Ltd v Salmond and Spraggon (Aust) Pty Ltd (1978) 139 CLR 231; Hide & Skin Trading Pty Ltd v Oceanic Meat Traders Ltd (1990) 20 NSWLR 310) provides any support for the submission. 24 The appellants sought to go to the evolution of the Deloittes Retirement Agreement in aid of the submission. I doubt that it was permissible to do so (see Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 at 352), but even if it was again I do not think that the submission is supported. Without setting out the evolution, I do not think that it demonstrated that the provision arguably the ancestor of cl 14 was related only to subsequently referred audit work the subject of cl 13, let alone that, as was argued, the later changes to the clauses left that sole relationship. Indeed, the sole relationship, and so the significance of the evolution of the Deloittes Retirement Agreement, was denied by the appellants' acknowledgment that the consideration for the annual fee of $30,000 included the benefit of the "friendly firm" agreement pursuant to cl 2. 25 Although I would prefer not to describe it as a parameter, in my opinion Einstein J was correct in holding that the payment of the annual fee of $30,000 was in part in consideration for the new partnership taking over Deloittes' Newcastle practice. Personal benefits and breach of fiduciary duty 26 The respondents knew that annual payments of $30,000 were being made to Deloittes. Neither of them was provided with a copy of the Deloittes Retirement Agreement. Nor was either told that the payments of $30,000, to which he contributed in that the payments were made from partnership funds prior to distribution of profits to the partners, were in consideration of a package which included that the appellants as the partners retiring from Deloittes would take over the clients of the Newcastle office. 27 Whatever may have been the case at the trial, on appeal the respondents' position was that the duties to disclose arose and the disclosure of "the true nature" of the Deloittes Retirement Agreement should have been made after the respondents became partners, as distinct from in the communications prior to their becoming partners. Accepting that the appellants owed fiduciary duties of good faith and disclosure to the respective respondents, I do not think that it was necessary that there be the disclosure for which the respondents contended. 28 It is evident that Einstein J considered that disclosure in relation to the Deloittes Retirement Agreement was called for because, in his Honour's view, the payments made and to be made pursuant to cl 14 were "in part consideration for benefits personally obtained by Messrs McKensey and Lewis, before Mr Nelson and later Mr Hewitt joined the partnership". Central to this was that the appellants obtained what were described as personal benefits, it seems from later parts of the judgment being contribution by the respective respondents towards discharge of what were described as their "personal obligations" to pay Deloittes for inter alia the Newcastle clients. The appellants then had to pay equitable compensation to the respondents to restore to them the amounts contributed. 29 When each of the respondents became a partner he became entitled to enjoy the use of and profits from the partnership assets, and became obliged to bear partnership liabilities, as between himself and the other partners in proportion to their agreed partnership interests. The Newcastle clients, at least in the case of Mr Hewitt no doubt excluding some who had ceased to be clients of the partnership since 1987, were in a practical sense a partnership asset, in just the same way as all other benefits from the Deloittes Retirement Agreement (including, for example, the "friendly firm" arrangement). The annual fee of $30,000 was in a practical sense a partnership liability, even though if Deloittes had sued for the fee it would have sued the appellants. As between themselves and the other partners the respondents became entitled to the benefit of the asset and became obliged to bear the burden of the liability, and there was no need for the appellants to explain to them, in discharge of fiduciary duties, either the source of the partnership liability or that they were contributing to meeting the partnership liability. 30 I do not think it correct to regard the payments made and to be made pursuant to cl 14 as in part in consideration for benefits personally obtained by the appellants before the respondents respectively joined the partnership. Payment of the annual fee after a new partner joined the partnership was payment for the partnership asset, the Newcastle clients or such body of them as remained, to the benefit of which the new partner became entitled. The annual fee was no different from a periodical payment for an item of office equipment purchased by the existing partners on time payment. There was no question of the appellants keeping an asset for themselves but having it paid for out of partnership funds. 31 It follows that in my view his Honour was incorrect to make the declaration as to the fiduciary duties and their breach, and the declarations and orders directed to payment of equitable compensation should be set aside. The orders 32 The challenge to the orders was independent of the challenge to the holdings as to "the true nature" of the obligation under cl 14 of the Deloittes Retirement Agreement and breach of fiduciary duty. The appellants submitted that, where the annual fee of $30,000 could not be meaningfully apportioned between acquisition of the Newcastle clients on the one hand and other benefits under the Deloittes Retirement Agreement on the other hand, it was not possible to quantify any loss suffered by the respondents or profit gained by the appellants from the breach of fiduciary duty, and that the order for reference in the terms earlier described was therefore inappropriate. The respondents replied that where an apportionment could not be made there should be a full allowance against the defaulting fiduciary. Other matters going to the appropriate relief were canvassed. 33 Since the orders should be set aside, these matters need not be considered. 34 As has been noted by Meagher JA, if the respondents' entitlements in consequence of the breach of fiduciary duty were to the amounts charged to their accounts over the lives of the partnerships referable to the annual payments of $30,000, the amounts could readily be calculated. The order for reference can now be seen to have been unnecessary. Further, it became plain in the course of the hearing of the appeal that the amounts would not be large, less than $10,000 in total. The orders as to costs 35 Separate orders stating the same costs percentage were made in relation to the costs of the statement of claim and the first cross-claim, on the one hand, and the costs of the second cross-claim, on the other hand. The issues concerning breach of fiduciary duty, which did not involve Mr Hicks, were amongst the issues raised by the second cross-claim, and it follows from what has already been said that the order for costs in relation to the second cross-claim should be set aside. The respondents did not maintain or failed on the other issues raised by the second cross-claim, principally to do with a sale of furniture and equipment, and they should be ordered to pay the costs of that cross-claim. 36 The challenge to the orders as to costs in the appeal involved the costs of the statement of claim and the first cross-claim. Mr Hicks was involved in the issues raised in those pleadings. 37 By the statement of claim the appellants and Mr Hicks claimed specific performance of an agreement ("the Settlement Agreement") made with the respondents by which the latter retired from the last of the partnerships in September 1994. The agreement called for steps to complete accounting matters for the partnership and for payment between the former partners, and there was an issue of construction as to the basis or bases on which valuations were to be made. There were other issues going to enforceability of this part of the Settlement Agreement. By the first cross-claim the respondents claimed specific performance and equitable damages in relation to another part of the Settlement Agreement by which the appellants and Mr Hicks were to purchase certain units in unit trusts, the issues coming to be whether the purchase of the units was to be completed irrespective of completion of the Settlement Agreement by the payment for which it called and, if it was, whether the appellants and Mr Hicks had otherwise been entitled to refuse to complete the purchase. 38 In the course of the hearing before Einstein J agreement was reached resulting in consent orders declaring a construction of the Settlement Agreement as to valuation and making an order for specific performance of that agreement. The issues as to the purchase of the units were determined by his Honour in favour of the respondents, and an order was made for an enquiry into the damages suffered by them; their claim to specific performance of the Settlement Agreement was said to be embraced by the order made on the statement of claim. 39 When dealing with costs his Honour referred to what he described as "an important concession … made by Mr McKensey in cross-examination", setting out a passage from the cross-examination. He then said - "It seems to me that the defendants by achieving order 1 of the consent orders made mid-hearing achieved the result which the plaintiffs had steadfastly from late November 1994, refused to accept. Insofar as the first cross-claim is concerned the cross-claimants Messrs Nelson and Hewitt sought and achieved declarations in relation to the transaction described in clause 23 of the settlement agreement. The cross-claimants did not succeed in obtaining an order that the transaction described in clause 23 of the Settlement Agreement 'be specifically performed forthwith'. This was because an order had already been made by consent that the whole of the Settlement Agreement be specifically performed and carried into execution and it did not seem to me that there was utility in, or that it was appropriate for, an independent order to be made for the specific performance of the transaction provided for in clause 23. The cross-claimants to the first cross-claim did, however, succeed in making good their claim to equitable damages in respect of the money which they would have received had the transaction provided for in clause 23 of the Settlement Agreement been completed on or before 31 December 1994. … Standing back from a minute examination of the way in which the proceedings had been first commenced, pleaded and repleaded, opened during the hearing, settled in part by the mid-hearing consent orders and then pursued to finality on the issues adjudicated upon in the principal judgment, it seems to me that quite probably the principal issue which had divided the parties for a number of years was fairly and squarely ultimately conceded by the plaintiffs and Mr McKensey in his cross-examination. It cannot, however, be suggested that the defendants/cross-claimants won on all remaining issues. They did not. The cross-claimants did, however, succeed and succeed to a substantial extent to those sections of the cross-claim pursued. It does not seem to me that the amount of time involved in the proceedings which related to the furniture and equipment issue was in any sense substantial and I do not consider that there should be some difference in the approach taken by the Court as to costs as between Mr Nelson and Mr Hewitt. In all of the circumstances it does appear to me that the appropriate order with respect to costs is an order that the plaintiffs pay 70% of the defendants' costs of the whole of the proceedings. That is to say of the statement of claim and of the two cross-claims and I propose to so order." 40 The appellants submitted that his Honour had misapprehended the significance of the cross-examination of Mr McKensey and the consent orders made during the hearing. In truth, it was said, the basis of valuation as declared in the consent orders was as Mr McKensey had instructed the valuer, a basis which he maintained in the cross-examination in question. So the consent orders did not reflect a victory for the respondents on what his Honour described as the principal issue which had divided the parties for a number of years, but rather a victory for the appellants, and in exercising his discretion as to costs under this misapprehension his Honour had erred. 41 The issue arose over the construction of cll 10 and 16 of the Settlement Agreement. By cl 10 there was to be a valuation of the goodwill of the accountancy practice and its associated entities. By cl 16 there was to be a valuation of the goodwill attributable to "the maintainable fees earned by Forsythes (Old) from clients taken over by the Retiring Partners jointly, based on fees applicable to the year ended 30 June 1994", made by the same valuer "in accordance with 10". The two valuation figures were used in arriving at the payment between the former partners. 42 His Honour initially described the issue as that the respondents contended that there was to be one valuation only carried out on "the same basis" for goodwill generally and goodwill attributable to the fees referred to in cl 16, but the appellants and Mr Hicks contended that the two valuations were to be on different bases. However, it seems clear enough that there was more, and that beneath these different positions was that the appellants and Mr Hicks instructed the valuer that the cl 10 valuation was to be 'based on the trading results of Forsythes for the year ended 30 June 1994", but did not say the same about the cl 16 valuation. Mr Kensey maintained this in the cross-examination to which his Honour referred. The appellants and Mr Hicks were wrong. The instruction to the valuer reversed the restriction to trading results for the year ended 30 June 1994, and the consent declaration made express that the cl 16 valuation was to be restricted in that way. The respondents won on the substance of the issue, and there is no reason to disturb his Honour's exercise of discretion in relation to the costs of the statement of claim and the first cross-claim. 43 Neither the appellants nor the respondents adverted to the fact that Mr Hicks was not a party to the appeal. Where the challenge to the costs order affecting him has failed, this can be overlooked. 44 The appellants have had partial success on the appeal, but have failed as to the consideration in the Deloittes Retirement Agreement and as to costs: the latter was of greater pecuniary significance between the parties. In my opinion the parties to the appeal should be left to bear their own costs. 45 I propose the following orders - (1) Appeal allowed in part. (2) Set aside the declarations and orders in paras 5, 6, 7, 8, 9, 10, 11 and 12 of the declarations and orders made by Einstein J on 11 November 1997. (3) Set aside the order in para 15(b) of the declarations and orders made by Einstein J on 11 November 1997 and in lieu thereof order that the cross-claimants pay the cross-defendants costs of the second cross-claim. (4) Make no order as to the costs of the appeal. 46 FITZGERALD JA: The circumstances giving rise to this appeal are summarised in the judgment of Meagher JA. 47 As I understood the argument ultimately presented to this Court on behalf of the respondents, it accepted that the appellants did not have any obligation to disclose the "Deloittes Retirement Agreement" in their discussions with each respondent before he joined the partnership. However, because of the fiduciary duties which partners owe one another, it was argued that the appellants were obliged to disclose to each respondent after he became a partner that the annual fee of $30,000 payable under clause 14 of the Deloittes Retirement Agreement was, wholly or partially, a payment for the clients "acquired" by the appellants under clause 3 of that agreement. According to the respondents' attempt to uphold the judgment of the trial judge, had that been disclosed they would have been able to avoid paying their contributions of $1500 per year (based on their respective proportions of the partnership) to the annual fee of $30,000. The legal basis of their entitlement to withhold those contributions did not emerge. 48 The respondents' case did not depend upon a premise that each paid an amount to join the partnership which was influenced by an understanding that one of its liabilities, the annual fee of $30,000, did not have any relationship to the acquisition of one of its assets, its clients, and, as I have already mentioned, it was not submitted in this Court that the non-disclosure complained of occurred in discussions prior to the respective entries of the respondents into the partnership. Nonetheless, the basic premise seemed to be that the annual fee of $30,000 was a personal liability of the appellants or, alternatively, related to the acquisition by the appellants of a personal asset, the clients. However, the clients were plainly a partnership asset, and the annual fee was plainly a partnership liability. Each respondent obtained the benefit of the former and the financial disadvantage of the latter upon his entry into the partnership. 49 The weakness of the respondents' position is highlighted by the position of one of them, Nelson. He joined the appellants as a partner within two months of the Deloittes Retirement Agreement. The only benefit the appellants obtained from the clients acquired under the Deloittes Retirement Agreement which Nelson did not obtain were any benefits which accrued within that period of two months. 50 I have found it impossible to identify a legal foundation for the respondents' claim for equitable compensation. In my opinion, the appeal should be allowed. 51 On the other issues, I agree with Giles JA. I also agree with the orders which his Honour proposes. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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