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BTF week 10 CASES PARTNERSHIPS - Coggle Diagram
BTF week 10 CASES
PARTNERSHIPS
Nature and Formation
Personal Liability of Partners - Possible to establish limited partnership under Partnership act
Is there a partnership?
s.5 of Partnership Act 1958
"carrying on a business"
CASE: Khan v Miah [p.369].
Contrast with Goudberg v Herniman [p.369].
"in common"
Degiorgio v Dunn [p.370]
Evidence of a Partnership - s.6 - Statutory Rules
s6(2) - Sharing of gross Returns
Cribb v Kron (p.371)
s6(3)(b) - Remuneration paid to an employee on basis of share of profits.
Plummer v Thomas (p.371)
s6(3)(a) A debt repaid in statements out of profits.
CASE: Cox v Hickman (p.371)
Relationship of Partners with each other
Agency relationship
Continues after dissolution until partnership wound up
CASE: Chan v Zacharia (p.377).
Fiduiary relationship
Contractual relationship
s.28
Rights and duties under common law and statute (Partnership Act 1958 (Vic))
Partners must render true accounts and full information of all things affecting the partnership: s.32.
Duty to account for benefits derived without consent from dealings concerning the partnership or from use of the partnership property, name or business connection: s.33.
Duty not to compete with partnership (without consent) – if do, must account for all profits: s. 34.
Relationship of Partners with Third Party
Debts and obligations (i.e. contracts)
ss9 and 13
What kind of business of the partnership?
Mercantile v Garrod (p.384).
Was it done in a usual way?
Goldberg v Jenkins (p.385)
If the third party is unaware the person they are dealing with is a partner, then the partnership is not bound – there is no apparent authority.
Construction Engineering v Hexyl (p.385).
Joint liability: s13
Each partner is jointly liable up to the full amount (all debts of the firm).
Wrongful acts and omissions
ss.14 and 16
Test: was the act done in the ordinary course of the business of the firm?
CASE: Walker v European Electronics (p.388).
Wrongful Acts
CASE: Polkinghorne v Holland (p.389).
CASE: National Commercial Bank v Batty (p.389).