NSW Caselaw
New South Wales Supreme Court
CITATION : Glandon v Tilmunda [2008] NSWSC 218
HEARING DATE(S) : 19, 20, 21, 22, 25 February 2008
JUDGMENT DATE : 25 March 2008
JUDGMENT OF : Gzell J
DECISION : Account of profits taken against corporate partner at $568,531. Damages for breach of contract in relation to income tax of $23,108. Further argument on adjustments (if any) and extent of account of profits against director.
CATCHWORDS : EQUITY - Fiduciary Obligations - Director of corporate partner painted grim picture of financial position to other partners - Offer to purchase their interests - Failure to inform partners of change in fortune - Misrepresentation of director's view as to value of partnership land - Whether corporate partner in breach of fiduciary duty - Election for account of profits - Whether entitled to an account - Whether interests should be added - Whether adjustments should be made for price paid to acquire other partners' interests - Whether adjustments should be made for balances in loan and capital accounts - Whether director, as accessory to breach of fiduciary duty, should only account for profits distributed to him by corporate partner - Provision in purchase deed that assignee pay income tax payable in respect of appropriation of share of net profit to assignor - Assignee with carry-forward tax losses - Whether payment of tax by assignor years later within the provision
Trade Practices Act 1974 (Cth) LEGISLATION CITED : Fair Trading Act 1987 Partnership Act 1892 Income Tax Assessment Act 1997 (Cth)
CATEGORY : Principal judgment
Hospital Products Ltd v United States Surgical Corp (1984) 156 CLR 41 Cassels v Stewart (1881) 6 App Cas 64 Birtchnell v Equity Trustees, Executors and Agency Co Ltd (1929) 42 CLR 384 Attorney-General v Blake [1998] Ch 439 Noranda Australia Ltd v Lachlan Resources NL (1988) 14 NSWLR 1 CASES CITED : Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22, (2007) 230 CLR 89 Regal (Hastings Ltd v Gulliver [1967] 2 AC 134 Warman International Ltd v Dwyer (1995) 182 CLR 544 Maguire v Makaronis (1996-1997) 188 CLR 449 Jacques v Cut Price Deli Pty Ltd (1993) ATPR (Digest) 46-102 Miba Pty Ltd v Nescor Industries Group Pty Ltd (1996) 141 ALR 525 In House of Spring Gardens Ltd v Point Blank Ltd [1985] FSR 327
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