Buttigieg v Buttigieg [2002] NSWSC 738

New South Wales Supreme Court

CITATION : Buttigieg v Buttigieg [2002] NSWSC 738 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 2889/00 HEARING DATE(S) : Thursday, 20 June 2002 JUDGMENT DATE : 23 August 2002

PARTIES : Emanuel Buttigieg (Plaintiff) Frank Buttigieg (Defendant) JUDGMENT OF : Master McLaughlin

COUNSEL : E.G. Petersen (for Plaintiff) P.A. Fury (for Defendant) SOLICITORS : Mark Turnbull & Co. (Plaintiff) Burston, Cole & Co. Solicitors (Defendant) CATCHWORDS : Partnership - Claim by former partner for interest - Circumstances attracting that entitlement - Period in respect of which interest should be calculated - Claim is a statutory entitlement, not a discretionary remedy - Not necessary that the entirety of the partnership assets should be used by the former partner who continues to carry on business. LEGISLATION CITED : Conveyancing Act 1919 Partnership Act 1892 Barclays Bank Trust Company Ltd v Bluff [1982] 1 Ch 172 Booth v Parkes 1 Moll. 465 CASES CITED : Bourne v Bourne [1906] 2 Ch 427 Powell v Powell (1932) 32 SR (NSW) 407 Meagher v Meagher [1961] IR 96 Oddy v Fry [1998] 1 VR 442 DECISION : See paragraph 44.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

MASTER McLAUGHLIN

Friday, 23 August 2002

2889/00 EMANUEL BUTTIGIEG -V- FRANK BUTTIGIEG JUDGMENT 1 MASTER: These proceedings were instituted by summons filed by the Plaintiff Emanuel Buttigieg on 22 June 2000. The Defendant named in that summons was Frank Buttigieg. By that summons the Plaintiff sought relief pursuant to Division 6 of Part 4 of the Conveyancing Act 1919 in respect to land situate at and known as Lot 2, Pine Ridge Crescent, Silverdale (which I am informed is located near Penrith). I shall refer to that land as "the subject land". 2 The Plaintiff and the Defendant (who are brothers) were co-owners of the subject land as tenants in common in equal shares. 3 The Defendant filed a cross-claim on 18 October 2000, seeking relief in respect to the partnership which had been conducted by the parties on the subject land. 4 Pursuant to leave in that regard granted on 7 September 2001 by Acting Justice Knight, the Defendant on that date filed an amended cross-claim. Prayer 7 in that amended cross-claim is as follows, An order that the cross-defendant pay to the cross-claimant interest at the rate of 6% per annum from the date of the dissolution of the Partnership to the date of the termination of the cross-claimants share of the assets of the Partnership. 5 Consequent upon orders made by consent by Acting Justice Knight on 7 September 2001 there remained outstanding in the proceedings only the claims for relief made in the amended cross-claim for the taking of an account in respect to the partnership, for an inquiry as to the assets and liabilities of the partnership and the respective interests of the parties in the property in the partnership, and for the relief claimed in prayer 7 of the amended cross-claim. Order 7 of those orders made by Acting Justice Knight was in the following terms, ORDERS that the proceedings be referred to a Master in Equity for: