Willie Pei Chiao Tsung v Ian Philip Cappe [2017] NSWSC 1053

Supreme Court New South Wales

Medium Neutral Citation: Willie Pei Chiao Tsung v Ian Philip Cappe [2017] NSWSC 1053 Hearing dates: 20 July 2017 Decision date: 11 August 2017 Jurisdiction: Equity - Commercial List Before: Hammerschlag J Decision: Declaration that the plaintiff is entitled to one-seventh of the surplus proceeds of realisation, or value of the proceeds of realisation, of the partnership assets and undertakings less the liabilities of the partnership. Catchwords: EQUITY – partnership – CONTRACTS – construction – where partnership agreement gives each full partner a right to share equally in profits and losses – where the partnership agreement provides for a specified majority to pass a motion binding on the partnership to accept an offer to acquire all or part of the partnership business – where the majority resolves to accept an offer which includes a condition that they but not the plaintiff enter into employment with the new owner and receive consideration significantly in excess of that to be received by the plaintiff – HELD: on its proper construction the provision of the partnership agreement authorising the majority to accept an offer of acquisition did not empower it to determine, vary or reduce as between the partners the plaintiff's one-seventh share in the partnership assets – the plaintiff is entitled to a one-seventh share of the surplus proceeds or value of the proceeds of the realisation. Legislation Cited: Partnership Act 1892 (NSW) Cases Cited: Canny Gabriel Castle Jackson Advertising Pty Ltd v Volume Sales (Finance) Pty Ltd (1974) 131 CLR 321 Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640 Federal Commissioner of Taxation v Everett (1980) 143 CLR 440 Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640 Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104 United Builders Pty Ltd v Mutual Acceptance Ltd (1980) 144 CLR 673 Wilkie v Gordian Runoff Ltd (2005) 221 CLR 522 Category: Principal judgment Parties: Willie Pei Chiao Tsung - Plaintiff Ian Philip Cappe - First Defendant Warren Shane Lun - Second Defendant Craig Matthew Dyer - Third Defendant Andrew Wallace Hooper - Fourth Defendant Rohit Singh - Fifth Defendant Joanna Sommerfeld - Sixth Defendant Lincoln Geoffrey Gillam - Seventh Defendant Representation: Counsel: C. R. C. Newlinds SC with D. Barnett – Plaintiff J. Giles SC with P. Silver – First to Seventh Defendants