Parker v Muir Family Investments [2001] NSWSC 673

New South Wales Supreme Court

CITATION : Parker v Muir Family Investments [2001] NSWSC 673 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 3293/00 HEARING DATE(S) : 18, 19, 20, 23 and 24 July 2001 JUDGMENT DATE : 9 August 2001

Morgan Ross Parker (First Plaintiff) SSOR Pty Ltd (Second Plaintiff) Muir Family Investments Pty Ltd (First Defendant) Thomas Robert Holden Muir (Second Defendant) PARTIES : Atalya Pty Limited (Third Defendant) Carl Oscar Peterson (Fourth Defendant) Piaster Pty Limited (as Trustee for the Bensan Discretionary Trust) (Fifth Defendant) Jonathan Alfred Grey Trollip (Sixth Defendant) Meridian International Capital Ltd (Seventh Defendant) Kingston Factors Pty Limited (Eighth Defendant) JUDGMENT OF : Windeyer J at 1

COUNSEL : R. McDougall QC with him Mr R V Gray (Plaintiffs) S G Finch SC with him Mr S Burley (Defendants) SOLICITORS : Frank G Kalyk (Plaintiffs) Kemp Strang (Defendants) CATCHWORDS : PARTNERSHIP - retirement of partner - partnership agreement provided for dissolution if partner gave three months' notice and for division of assets on dissolution - construction of "assets" - whether referred to "book assets" or included value of goodwill and net present value of contractual rights - PARTNERSHIP - partnership agreement - whether agreement should be rectified to exclude goodwill and net present value of contractual rights from assets to be distributed on retirement of partner and dissolution - PARTNERSHIP - whether partner estopped from relying on partnership agreement because partnership was not conduct on that basis - ESTOPPEL - estoppel by convention - whether conduct of partnership and conversations between partners estopped a retiring partner from relying on the partnership agreement LEGISLATION CITED : Partnership Act 1892 s20(1), s39, s42(1) Coghlan v S H Lock (Aust) Ltd (1985) 6 NSWLR 158 CASES CITED : Elsea Holdings Ltd v Butts (1986) 4 NSWLR 175 Grundt & Ors v Great Boulder Pty Gold Mines Limited (1937) 59 CLR 641 Lindley & Banks on Partnership 17th edition p745 DECISION : Paragraphs 36 and 37