Degiorgio v Dunn [2004] NSWSC 767

New South Wales Supreme Court

CITATION : Degiorgio v Dunn [2004] NSWSC 767 HEARING DATE(S) : 28/06/04, 29/06/04 Reserved 20/07/04 after written submissions received JUDGMENT DATE : 26 August 2004 JURISDICTION: Equity Division JUDGMENT OF : Barrett J DECISION : Application for declarations as to existence of partnership and consequential orders dismissed

CATCHWORDS : PARTNERSHIP - generally - whether partnership exists - whether business carried on in common - no question of principle LEGISLATION CITED : Partnership Act 1892, ss.1, 2 CASES CITED : The Duke Group Ltd v Pilmer (1999) 73 SASR 64 PARTIES : John Degiorgio - Plaintiff Greg Dunn - Defendant FILE NUMBER(S) : SC 5916/02 COUNSEL : Mr A R Jungwirth - Plaintiff Mr S W Cairns - Defendant SOLICITORS : Stephen Teece- Plaintiff Peter Merity - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BARRETT J

THURSDAY, 26 AUGUST 2004

5916/02 – JOHN DEGIORGIO v GREG DUNN JUDGMENT

Introduction 1 AC/DC was a rock music band enjoying significant popularity in Australia in the 1970's and 1980's. The fact that AC/DC and the music it played developed and retained a substantial following meant that, after AC/DC had ceased performing, there were opportunities for others to provide entertainment by presenting the same musical items in the way in which AC/DC had presented them. A group thus emulating another band is known as a "tribute band". 2 The plaintiff and the defendant are musicians. The plaintiff is a guitarist. The defendant plays drums. In the period 1995 to 1999, they were both members of a band known as "Dirty Deeds The Band" which was a tribute band emulating AC/DC. The plaintiff portrayed Angus Young, one of the AC/DC band members. Dirty Deeds The Band (which I shall call "the first band") performed at venues in various parts of Sydney, principally hotels and clubs in the western parts of the metropolitan area. It is accepted by the parties that the four members of the first band – the plaintiff, the defendant, Jeff Ervin and Curtis Bryant – were members of a partnership the business of which consisted of staging band performances in which the four of them participated. Some frictions developed among certain members and it is accepted that the performing group was disbanded in or about December 1999. There remains a question whether there was a dissolution of the partnership as between the plaintiff and the defendant. This question forms the basis of the secondary case the plaintiff seeks to make. I shall return to it in due course. 3 Shortly after the first band disbanded, the defendant took steps to put together another group to perform AC/DC music. The plaintiff was approached by the defendant for this purpose and became one member of a new band. At about this time, the defendant alone registered the name "Dirty Deeds AC/DC Tribute Show" under the Business Names Act. He was the only person described as "person carrying on the business". All activities of this "second band", as I shall call it, were conducted under this name. The primary case the plaintiff advances is that, upon the formation of the second band, the plaintiff and the defendant entered into a new partnership of which they were the only members and that, as partners, they carried on the business of the second band. The primary case 4 By his amended statement of claim, the plaintiff claims, as principal relief, a declaration that he and the defendant commenced trading as a partnership in or about January 2000, a declaration that the plaintiff and the defendant traded in partnership in the business known as "Dirty Deeds AC DC Tribute Show" from about January 2000 and a declaration that the registered business name "Dirty Deeds AC DC Tribute Show" is an asset of the partnership. 5 To succeed in these claims, the plaintiff must discharge the onus of showing that there has been, since about January 2000, a relationship between himself and the defendant within the description in s.1(1) of the Partnership Act 1892: "Partnership is the relation which exists between persons carrying on a business in common with a view of profit";