Beale v Trinkler [2010] NSWSC 246

New South Wales Supreme Court

CITATION : Beale v Trinkler [2010] NSWSC 246

HEARING DATE(S) : 22/03/2010

JUDGMENT DATE : 1 April 2010

JURISDICTION : Equity Division

JUDGMENT OF : Macready AsJ at 1

DECISION : I direct the parties to bring in short minutes to reflect my judgment.

CATCHWORDS : Partnership. Further matters concerning accounting. Costs of the whole accounting. No matter of principle.

PARTIES : Aileen Ann Beale and Philip Beale v George Trinkler and Bura Investments Pty Ltd

FILE NUMBER(S) : SC 5235/2005

COUNSEL : Mr B DeBuse for plaintiffs Mr JE Thomson for 1st defendant

SOLICITORS : MacElbing Mednis & Associates for plaintiffs Sparke Helmore Building for 1st defendant

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

ASSOCIATE JUSTICE MACREADY

Thursday 1 April 2010

5235/05 AILEEN ANN BEALE v GEORGE TRINKLER

JUDGMENT

1 HIS HONOUR: In this matter I gave judgment on the taking of accounts of the partnership on 13 October 2009. At the time I gave judgment the parties asked me not to give a decision on certain late claims which were raised just before the hearing on the basis that the parties would endeavour to resolve these matters. The parties have not resolved these additional claims and they have asked me to determine the contentious additional claims. At the commencement of the hearing before me on 23 March 2010 there were three outstanding disputes. They were as follows:

(a) Rent payable for the period 1 July 2004 to 1 May 2005. (b) Proceeds of cattle sale $19,681 in respect of Bowe & Lidbury invoice dated 22 April 2006 (c) Accounting fees claimed by Mr Roger Huntington, the plaintiffs' accountant. 2 In respect of (b) above during the course of the hearing it became apparent from the terms of Exhibit 10 before me that the item had in fact been disbursed equally between the two parties. Accordingly, there is now no dispute on this matter. Rent payable for the period 1 July 2004 to 1 May 2005. 3 I will not set out the background concerning the partnership as that is conveniently dealt with in my earlier judgment now reported as Beale v Trinkler [2009] NSWSC 1093 and the judgment of Justice Gzell Beale v Trinkler [2008] NSWSC 347. 4 In my judgment of 13 October 2009 I dealt with the matter under the heading, "An allowance for occupation of the property" at paragraphs 16 to 25. In recent exchanges between the accountants, Mr Huntington applied an annual rent of $115,000 for the period 1 July 2004 to 30 April 2005. The rent was based on the finance charges the subject of the decision in my earlier judgment. In contrast Mr Anthony Croese, accountant for the defendant, has applied rent over the same period based on the agistment rates which I said should apply in paragraph 31 of my judgment. 5 This squarely raises the question of whether I had decided that the arrangement which I described in paragraphs 19 and 20 in my judgment continued to apply during the year ended 30 June 2005. It is apparent from the material before me that there was no agreement for the year ended 30 June 2005 accounts because of the dissolution of the partnership on 1 May 2005. 6 In support of plaintiff's contention reference was made to the purpose set out in paragraph 58 of the Court of Appeal judgment referred to in paragraph 22 of my judgment and the factual circumstance that there was an agreed excessive rental at the time when the properties were jointly owned. It was submitted that this situation should continue until the deed severed the ownership on 1 May 2005. 7 Reference was made to the cross-examination of the parties before Gzell J on 18 April 2008 (see Exhibit 3) but that was before me on the last occasion. 8 On the first hearing before me the submissions addressed in general terms the matter by reference to the period of May 2005 onwards: see paragraph 14 of my earlier judgment, paragraph 8 of the defendant's submissions dated 30 August 2009 and paragraph 2 of the defendant's submissions dated 10 September 2009. It is also clear that the defendant's submissions were predicated on there being no agreement for lease. In the recent hearing it was put that the accounts for 2004 and earlier were binding on the parties as they evidenced an agreement for those particular years. The parties did not challenge the rental in those earlier years. Presumably each party went into the new financial year on 1 July 2004 in the expectation that the same situation would apply. 9 Although there is no agreement for lease I think there would be an estoppel arising from the past conduct which could only be resiled from on some reasonable basis. The reasonable basis is provided by the parties' actions in signing the agreement on 1 May 2005 which separated ownership and responsibility for the financing. 10 In these circumstances and in deciding what is a reasonable allowance in the taking of accounts, I think that the period up to 1 May 2005 should be based upon the $115,000 per annum rate and thereafter on the agistment basis.