Jack Marzec v Waclaw Marian (Willy) Lysiak [2015] NSWSC 647

Supreme Court New South Wales

Medium Neutral Citation: Jack Marzec v Waclaw Marian (Willy) Lysiak [2015] NSWSC 647 Hearing dates: 29-30 April, 29-30 September, 1 October 2014 (Further written submissions 15, 28 October 2014) Date of orders: 28 May 2015 Decision date: 28 May 2015 Jurisdiction: Equity Division Before: Kunc J Decision: Parties to undertake accounting of partnerships as found Catchwords: PARTNERSHIP – Existence, members, subject matter and terms of alleged partnership – No issue of principle – Partnership Act, 1892 (NSW) Legislation Cited: Civil Procedure Act 2005 (NSW) Evidence Act, 1995 (NSW) Partnership Act, 1892 (NSW) Cases Cited: Evans v Braddock [2015] NSWSC 249 Walters v Scarborough [2011] NSWSC 1380 Category: Principal judgment Parties: Jack Marzec (Plaintiff) Waclaw Marian (Willy) Lysiak (First Defendant) Julius Waclaw Lysiak (Second Defendant) Representation: Counsel: A.J. Macauley (Plaintiff) Waclaw Marian (Willy) Lysiak – In person P.A. Tiernan (Second Defendant)

Solicitors: Russell C Byrnes (Plaintiff) P.A. Tiernan (Second Defendant) File Number(s): 2013/140096 Publication restriction: No

Judgment

Summary 1. At 1.45am New York time on 15 September 2008, the famous American investment house Lehman Brothers filed for bankruptcy. Although what followed is now known as the Global Financial Crisis or GFC, its consequences were felt by individuals. These proceedings are one example of those consequences. Without disrespect, I will refer to the parties and others by their given names. References to "$" means Australian dollars unless otherwise stated. 2. As part of its response to the GFC, on 3 February 2009 the Australian Government announced a national economic stimulus package which included the Homeowner Insulation Program (the "HIP"). At that time the plaintiff (Jack), the first defendant (Waclaw known as Willy) and the second defendant, Willy's son Julius, were tradesmen of Polish origin working in Sydney. In August 2009 they became involved (to use a neutral word) in a business venture which sought to take advantage of the HIP. That venture operated from premises in Kurnell owned by Julius (the "Kurnell property"). Unfortunately for them, the Government terminated the HIP on 19 February 2010. Their involvement in the HIP was not a financial success. 3. Jack alleges that his involvement with Willy and Julius in the HIP was a partnership at will which involved three activities: 1. The supply and installation of residential roof insulation (the "insulation"); 2. The supply and installation of residential solar roof panels (the "solar panels"); and 3. The manufacture and sale of solar panel lifters (the "lifters"). 1. Jack seeks an accounting and other monetary relief from Willy and Julius because Jack says they are indebted to him for substantial sums of money arising from the alleged partnership and related financial transactions. 2. Willy admits there was a tripartite partnership in relation to the insulation and solar panels. However, he vehemently denies that Jack has any interest in the lifters. Julius denies being a partner at all. 3. It is not possible for these reasons to give a final monetary answer as to what Jack or the others may be entitled. At the Court's direction the parties went some way towards a common position as to what a final accounting might look like in a number of permutations depending upon the Court's findings on the critical issues. These reasons determine the fundamental question of the existence, membership and business of any partnership and then address several consequential issues to assist the parties in carrying out the accounting. How any residual disputes are to be resolved is considered at the end. 4. The Court's main conclusions are: 1. A partnership existed between Jack and Willy, but not Julius, in relation to the insulation; 2. A partnership existed between Jack, Willy and Julius in relation to the solar panels; 3. The lifters were not part of any partnership involving Jack; 4. Willy and Julius are indebted to Jack or his company for some expenses charged to certain debit and credit cards; 5. Unless the recipient admits receipt of cash or it is established by a bank statement or other third party record, the various allegations made by the parties against each other of unaccounted for cash receipts are not established. In particular, the Court is not satisfied on the balance of probabilities that each and every one of the $1,000 cash advances Jack alleged he had made to either Willy or Julius was in fact made.