Giltej Applications Pty Ltd v Rosaria Grace Moschella [2005] NSWSC 599

New South Wales Supreme Court

Giltej Applications Pty Ltd v Rosaria Grace Moschella [2005] NSWSC 599 CITATION : This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 14/06/05

JUDGMENT DATE : 14 June 2005

JUDGMENT OF : White J

DECISION : 1. Make orders in accordance with paras 1 and 2 of the amended summons; 2. Order that the cross-claim be dismissed; 3. Refuse the application for indemnity costs; 4. Order that the defendant pay the plaintiff's costs of the proceedings, including the cross-claim; 5. Exhibits may be returned after 28 days; 6. Reserve the matter for further consideration; 7. Grant liberty to either party to apply on 14 days' notice.

CATCHWORDS : CONTRACTS - Construction of clause in partnership agreement - Whether a notice of intention to retire effective at a future specified date is revocable - Whether further act needed to consummate retirement - Whether notice to retire amounts to waiver of right to dissolve a partnership at will under s 26 of the Partnership Act - Whether partner retired "during the continuation of the partnership" where there are only two partners - Meaning of "share of business" - Held that valuing "share of business" subsumes the taking of a general account - Held that notice to retire is irrevocable notwithstanding the future date at which retirement takes effect.

LEGISLATION CITED : Partnership Act (1892) NSW

Taupo Totara Timber Co v Rowe [1978] AC 537 Jones v Lloyd (1874) LR18Eq 265 Warder v Stillwell (1857) 26 LJR (NS) Eq 373 Toogood v Farrell [1988] 2 EGLR 233 CASES CITED : Birrell v Australian National Airlines Commission (1984) 5 FCR 447 State of New South Wales v Paige (2002) 60 NSWLR 371 Verwayen v The Commonwealth (1990) 170 CLR 394 Lindley & Banks on Partnership, 18 ed Calderbank v Calderbank [1975] 3 All ER 333