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新西兰assignment:Master of Professional Accounting代写

浏览: 日期:2019-12-20

  Master of Professional Accounting

  Law of Business Organisations

  LAWS861

  Assignment Part 1

  评估一:20分(课程分数的20%)

  到期日:作业第1部分–将纸质副本提交到WF一级分配框,然后将纸质副本提交给AUT Blackboard上的Turnitin。 印刷本应在2019年8月16日(星期五)中午12点之前提交。

  说明作业答案应为900个单词,正负10%。 可以将其视为800到900个字。

  进一步的说明遵循下一页上的问题。

作业第1部分以下问题与新西兰高等法院的判决:Wood v Fresher Foods Ltd-[2008] 2 NZLR 248(Woods v Fresher Foods)张贴在黑板上。进一步的说明遵循以下问题。1. Woods v Fresher Foods是关于合伙的判决。概述合伙企业的法律性质,尤其是与Woods v Fresher Foods问题最相关的方面。                                                                                                                    (5分)2. Woods v Fresher Foods与1908年《合伙企业法》第39条的含义有关。Woods v Fresher Foods确立了哪些法律原则?作为您回答的一部分,请解释为什么法官在判决中提到Elders Pastoral Limited诉Rutherfurd案?                                                                                                                     (5分)3. Woods v Fresher Foods是了解1908年《合伙企业法》第39条含义的宝贵先例。使用Woods v Fresher Foods(您在上面的问题2中已经讨论过)中列出的法律原则来回答提出的问题。下面。瑞安·威廉姆斯(Rian Williams)与吉姆·麦克埃尔沃(Jim McElvoy)和简·唐尼(Jane Downey)这两个人合作了20年。自从Rian成为合伙人以来,公司的所有名片,信笺和行销材料都贴有Rian的名字。瑞安(Rian)希望在今年年底退休,环游世界。他有一个主要客户,与他有多年的广泛合作,并且已经在一次会议上告诉她,他期待着离开工作并在夏天前往法国。他有第二个大客户,根据该客户的律师草拟的合同与他合作。瑞安(Rian)在签订合同之前就读了这份合同,但很久以来就忘记了合同的内容。合伙关系还使客户不断来往,Rian在每周的报纸专栏上介绍其专业领域时,在公众中享有很高的知名度。他的名字出现在报纸专栏的底部,名为“唐尼·威廉·唐纳·威廉斯和麦克尔沃伊”。Rian担心自己在退休前后对公司的债务承担个人责任。该公司计划从该公司的所有营销材料中删除Rian的名字,但Rian想知道这单靠自己是否足够。就退休前后他对公司债务的责任,以及他在退休时应采取的措施以尽可能减少人身伤害的风险,向Rian提供有关法律的建议。                                                                                                                                  (10分)总分20页面上有更多说明。作业说明第一部分作业的第一部分由与《 1908年合伙企业法》第39条和新西兰高等法院关于伍德v Fresher Foods Ltd [2008] 2 NZLR 248的判例有关的问题组成,该案已在黑板上发布。

 

您将在课堂上的第二周和第三周的入门工作中回答问题一和问题三的部分内容。相关的课程材料在黑板下的第2周发布,而Walker的相关章节是第4和5章。但是,要回答问题2和问题3的某些部分,您必须了解Woods v Fresher Foods。如果不阅读此先例,您将无法完全回答作业问题。您对问题1和2的回答将帮助您回答问题3。如果您不想这样做,则不必重述问题1或2中已经给出的问题3中的法律。您不必为此作业第1部分使用法律样式参考(脚注)。但是请注意,对于下一个作业(即作业第2部分),您必须使用法律样式参考。对于参考,您可以参考文本(类似于考试答案)。您可以将Walker文本称为“ Walker”。您可以将给定的先例称为“伍兹”,如果您指的是特定页面,则请添加页码。首次使用时,可以使用完整引文(遵循Walker或Woods v Fresher Foods的引文)在文本中引用其他先例(例如Elders Pastoral Limited)。如果您再次引用该先例,则可以仅使用一个名称(例如“长辈”)。合伙法可在文本中称为“ 1908年合伙法”或“该法”,因为在此转让中只有一项法。引号或接近的复述应用引号引起来。如果您引用某人的话,则表示您正在引用,并在答案中表明您已理解引用的含义。您不应在本作业的第1部分中找到其他来源。如果您决定使用Walker和1908年《合伙企业法》(以及课程材料)以外的其他来源,则请在您的参考书目中标识这些其他来源,并在作者的书本中引用这些其他来源。名称。您可以与其他学生口头讨论这项作业,但您必须写下自己的答案。不要分享答案草稿。从另一位学生的作业中抄袭是窃和对所涉及的两名学生均属违纪行为。字数限制为900个字,正负10%。这将被视为总共800到1000个字。

1 of 1 DOCUMENT: New Zealand Law Reports/2008 Volume 2/Wood v Fresher Foods Ltd - [2008] 2 NZLR 248 - 13 December 2007

 

Pages: 9

 

Wood v Fresher Foods Ltd - [2008] 2 NZLR 248

 

 

High Court Auckland

CIV 2007-404-1313

 

15 November; 13 December 2007

Venning J

 

Access Linxplus and NZ Unreported Judgments

 

Partnership -- Dissolution -- Liability of partners for partnership debts -- Whether statement of intent to retire amounts to formal notice of retirement -- Partnership Act 1908, s 39.

 

Mr and Mrs Wood carried on business with two other members of their family in partnership. Fresher Foods Ltd regularly provided the firm with edible produce on credit terms. Mr and Mrs Wood decided to retire from the business, leaving it to be continued by the two remaining partners. The partnership itself, however, was not formally dissolved and reconstituted by the continuing partners until approximately two years later. In the meantime, Fresher Foods Ltd continued to supply the firm with goods on credit until it ceased doing so owing to a backlog of unpaid invoices.

Fresher Foods Ltd then sued all the partners of the firm for the debts, including the Woods - who resisted the claim on the grounds that they were not partners in the firm at the time the debts had been incurred.

The District Court held that, although Fresher Foods Ltd had been aware that Mr and Mrs Wood had intended to retire and cease working in the business, they did not have formal notice of their retirement from the partnership which would have absolved them from incurring joint liability for the firm's debts.

 

Held:

A statement made by a partner of intention to retire from a partnership might amount to confirmation that the partner intended to cease working in the partnership business, but this was insufficient evidence of a partner's intention to give notice of a change in the constitution amounting to formal retirement from the partnership as required under s 39(1) of the Partnership Act 1908. Furthermore, there was no requirement on the part of a creditor of the firm to prove that the partner was still an apparent member of the partnership in order to establish liability of that partner for a debt. Persons known to the creditor to be partners in a firm remained liable as apparent members until the creditor had notice of retirement (see paras [12], [25], [29], [32]).

Elders Pastoral Ltd v Rutherfurd (1990) 3 NZBLC 101,899 (CA) considered.

 

Tower Cabinet Co Ltd v Ingram [1949] 2 KB 397; [1949] 1 All ER 1033 considered.

 

Hamerhaven Pty Ltd v Ogge [1996] 2 VR 488 considered.

 

Appeal dismissed.

[2008] 2 NZLR 248 page  249

 

Observation:

There is a distinction between creditors who have had dealings with the firm before the change in its constitution and those who did not have any such dealings. An advertisement in the Gazette is notice to creditors who had no dealings with the firm before the date of dissolution (see para [22]).

 

Other cases mentioned in judgment

Farrar v Delfinne (1843) 1 Car & Kir 580; 174 ER 946.

Hammond v Hamlin (High Court, Wellington, CP 66/92, 3 April 1992, Master Williams QC); (1993) ANZ ConvR 1n.

Huffman v Ross [1926] SCR 5; (1926) 1 DLR 603.

Pont v Wilkins (1992) 4 NZBLC 102,894.

Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190 (CA).

 

Appeal

This was an appeal by Desmond Charles Wood and Audrey Lillian Wood from a decision of Judge Hole in the District Court ruling that awareness on the part of Fresher Foods Ltd that Mr and Mrs Wood were to cease working in a partnership did not amount to notice of their retirement from the partnership for the purposes of negating their liability for partnership debts.

 

G Hall for Mr and Mrs Wood.

 

I Williams for Fresher Foods Ltd.

 

Cur adv vult

 

VENNING J.

 

[1] This appeal raises a very short but important point concerning the liability of former partners of a firm to creditors. Mr and Mrs Wood, together with their daughter and son-in-law, Mr and Mrs Williams, were in partnership in the firm of Chipman Enterprises. Fresher Foods Ltd supplied Chipman Enterprises with french fries and other produce on credit for resale.

[2] The Woods ceased working in the partnership of Chipman Enterprises towards the end of March 1999, but the partnership was not dissolved until 1 April 2001. From 1 April 2001 the Williamses carried on the business for themselves. Fresher Foods continued to supply Chipman Enterprises with product on credit. By December 2003 the debt had risen to $83,500.18. Fresher Foods sued the members of the partnership (including the appellants) for that sum. Ultimately the Williamses did not oppose entry of judgment. The Woods opposed Fresher Foods' claim on the basis they had retired from the partnership on 31 March 2001 and should not be liable for the partnership debt which had been incurred after that date.

[3] Judge Hole identified the sole issue as whether Fresher Foods had received notice that the Woods had retired from the partnership when the debt was incurred. He found that although Fresher Foods knew the Woods (particularly Mr Wood) intended to cease day-to-day work, Fresher Foods did not have notice of their retirement from the partnership so that the Woods remained liable. The Woods appeal from that decision.

 

The issues

[4] The two issues raised on the appeal are:

 

o                Did the Judge err in finding the Woods did not give sufficient notice of retirement from the partnership?

[2008] 2 NZLR 248 page  250

o                Was the Judge wrong to identify the sole issue as whether Fresher Foods received notice that the Woods had retired from the partnership?

 

Procedural matter

[5] The hearing before Judge Hole proceeded on the basis of affidavit evidence, written witness statements and oral evidence, both in-chief and in cross-examination. Prior to the hearing counsel agreed that there was no need for the transcript of the oral evidence to be prepared for the purposes of this appeal. The appeal proceeded on the basis of the affidavits, written statements, and the Judge's record of the oral evidence as noted in his judgment. No issue was taken with that by counsel.

 

Did the Judge err in finding the appellants did not give sufficient notice of retirement from the partnership?

[6] Section 39(1) of the Partnership Act 1908 applies:

 

 

39.            Rights of persons dealing with firm against apparent members -- (1) Where a person deals with a firm after a change in its constitution, he is entitled to treat all apparent members of the old firm as still being members of the firm until he has notice of the change.

 

[7] If Fresher Foods had notice of the Woods' retirement from the partnership then the Woods could not be held liable for the debt incurred after that retirement.

[8] The relationship between Fresher Foods and the partnership was based on a distributorship agreement executed by all parties on 13 February 1991. Under that agreement, Fresher Foods would supply Chipman Enterprises with stock on credit for on-sale to retailers.

[9] The partnership initially operated two trucks. Mr Williams drove one and Mr Wood the other. Each day they would go to the offices of Fresher Foods, give an order to either Mrs Wong (the wife of the sole shareholder and director of Fresher Foods) or Ms Ng, and then take the docket to the Fresher Foods factory to have the order filled. Initially Mr Williams worked six days a week and Mr Wood five days. Mr Williams said that a couple of months before March 1999, the truck Mr Wood drove was written off in an accident. The partnership was then down to using only Mr Williams' truck. Mr Williams' truck was later sold and with the proceeds of sale and the insurance proceeds from the written-off truck, a new truck was bought.

[10] Mr Wood said in his statement that he told Mrs Wong and Ms Ng that he and Mrs Wood were retiring. He said he also said the same thing to Mr Hun Wong, the director's brother who worked as a dispatcher at the factory. Neither Mrs Wong nor Ms Ng could recall the conversation. Mr Hun Wong did not give evidence. His command of English is limited. He did not hold any position of authority within Fresher Foods. Mr Williams said in his affidavit that he told Mrs Wong and Ms Ng that Mr and Mrs Wood had retired from the business and that he and his wife were taking over. He said that was in late March or April 1999. He said that Mr Wood told Mrs Wong and Ms Ng in his presence that he was retiring. Mr Williams also said that some time later Mrs Wong asked him how Mr Wood was getting on in his retirement.

[11] Mr Hall characterised the Woods and the Williamses' partnership as a "working partnership". He submitted that when the change in the way they worked (when Mr Wood ceased coming to Fresher Foods) was taken together

[2008] 2 NZLR 248 page  251

with the evidence that Mr Wood had told Mrs Wong and Ms Ng that he and Mrs Wood were retiring, Fresher Foods had sufficient notice of his and Mrs Wood's retirement from the partnership.

[12] I am not able to accept that submission for the following reasons:

 

o                While Mr Hall referred to the evidence contained in the affidavits and witness statements, the parties also gave oral evidence. The Judge made his finding that Fresher Foods did not have notice of the Woods' retirement from the partnership based on that oral evidence. The Judge concluded at paras [19] - [22]:

 

"[19]  I prefer the oral evidence as the affidavits were prepared by a lawyer and contain obvious legal language. The prepared briefs of evidence read by each witness have similar defects; but they were prepared for this hearing in the knowledge of what the issues would be. Further, they were amplified by oral unprepared evidence.

[20]  Mr Wood said he told Mrs Wong and Ms Ng that 'Audrey and I were retiring'. Mr Williams said that Mr Wood told Mrs Wong and Ms Ng in his presence 'that he was retiring'. Significantly, Mr Wood in the preceding paragraph of his prepared brief of evidence talked about telling the customers that he was 'ceasing work' and that he told the customers that Barry was the person who 'would be delivering to them and dealing with them in the future'. This was confirmed by the customer, Mr Chang, who told how Mr Wood had told him he was retiring. Both Mr Wood and Mr Williams recalled Ms Ng asking Mr Wood about his retirement plans.

[21]  Having listened carefully to this evidence, and having observed the two witnesses, I am very clear that all the talk of retirement was about Mr Wood ceasing work. He did not say he was retiring from the partnership. Indeed, it was apparent from his testimony that he did not consider the partnership implications of his retirement.

[22]  Mr Wood's evidence of the discussion with Mr Hun Wong is of the same tenor: it was about his ceasing work."

 

o                Mr Hall's submission as to the significance of the "working partnership", taken with what Mr Wood said to Mrs Wong and Ms Ng, overlooks that some time prior to the March 1999 conversation Mr Wood's truck had been written off. The precise timing is not clear, but Mr Williams said it was a "couple of months" before. The partnership was down to using one truck at that stage and some time before Mr Wood's retirement. The partnership later replaced Mr Williams' truck. It is reading too much into the change from two trucks to one, particularly when that did not exactly coincide with the March conversation, to say that amounted to notice of a change in the partnership and specifically of Mr and Mrs Wood's withdrawal. Further, the "working partnership" argument does not address the fact Mrs Wood's role in the partnership was very limited throughout.

o                The Judge accepted that neither Mrs Wong nor Ms Ng understood they were being given notice of a partnership change or that the Woods were to retire from the partnership. Mrs Wong said that given the

[2008] 2 NZLR 248 page  252

 level of debt at the time (March 1999) she would have insisted that the parties make a firm and acceptable arrangement for payment of the hard-core debt which had built up if she thought the Woods were retiring from the partnership. Ms Ng confirmed that Fresher Foods had required that from another partnership they dealt with when alerted to a change.

o                The Woods and the Williamses did not give formal effect to the retirement themselves for two years after 1999. The financial accounts prepared for the partnership recorded that the appellants remained as partners for the years ended 31 March 2000 and 2001. The Woods admit in their statement of defence that they ceased to be partners on 1 April 2001. The partnership was not dissolved and reconstituted until that date. That is consistent with the Judge's finding that Mr Wood's retirement in 1999 was from the work of driving the truck, but not from the partnership.

o                The Judge found as a matter of fact that the discussion on 31 March 1999 was not effective notice of the change of constitution in the partnership. The distributorship agreement remained in place and effective. It was never altered. Significantly, cl 4 provided that "Any Sale of the Distributors business and/or assignment or transfer of the Distributors rights under this Agreement shall be subject to the [Fresher Foods'] consent and reasonable requirements for approval". Upon the retirement of Mr and Mrs Wood in March 2001, the Chipman Enterprises partnership was reconstituted. The Woods and Williamses should have sought Fresher Food's consent to the change. If they had done so, on the evidence Fresher Foods would have required assurance the existing debt would be paid.

[13] This first ground of appeal is in essence a challenge to the Judge's findings on the evidence. A court on appeal will be reluctant to reverse a factual finding that was open to the judge unless compelling grounds are shown for doing so (Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190). There is nothing in the appellants' submissions that persuade me there are such compelling grounds to reverse the Judge's factual findings that Fresher Foods was not given notice of a change in the partnership's constitution in March 1999. The Judge's conclusion that the conversation of March 1999 was not about a change in the partnership's constitution was open to him on the evidence.

[14] Where, as here, Fresher Foods knew that the Woods were partners in Chipman Enterprises with the Williamses, then the onus was on the Woods to prove that they had given notice of the change, either by direct notice or at least by facts and circumstances from which that could be inferred (Huffman v Ross [1926] 1 DLR 603 (SCC)). The Woods have failed to establish that. It was open to the Judge to conclude that Fresher Foods did not have notice of the Woods' retirement from the Chipman Enterprises partnership.

 

Was the Judge wrong to identify the sole issue as whether Fresher Foods received notice that the Woods had retired from the partnership?

[15] Mr Hall next submitted that in identifying the sole issue in the case as whether Fresher Foods received notice that Mr and Mrs Wood had retired from the partnership, the Judge was in error and had failed to apply the reasoning of the Court of Appeal in Elders Pastoral Ltd v Rutherfurd (1990)

[2008] 2 NZLR 248 page  253

3 NZBLC 101,899. He submitted that even if a retired partner has not given notice of the retirement, he or she will not be liable for debts incurred by the partnership following his or her retirement unless, at the time the debts were incurred, the retired partner was still an apparent partner. He submitted that in light of the Elders Pastoral case the onus was on Fresher Foods to prove that the appellants were apparent partners at the time the debt was incurred.

[16] In Elders Pastoral Ltd, Elders had supplied horticultural chemicals and other goods to a partnership. Mrs Rutherfurd was formerly a partner in the firm but had retired from the partnership on 10 July 1987. Elders sued to recover a debt for stock supplied after 10 July 1987. Elders had not been given notice of Mrs Rutherfurd's retirement from the partnership. However, Elders did not know that Mrs Rutherfurd had been a partner. They first learnt of the fact that she had been a member of the earlier partnership after the date on which she had retired from it. The Court of Appeal identified the case at p 101,900 as:

 

". . . a simple one in which Elders claim to recover from Mrs Rutherfurd, a retired partner of whose existence as such they did not know, a debt incurred by the new or continuing partnership after her retirement."

 

[17] Section 39(3) of the Partnership Act covered the position:

 

 

(3)             The estate of a partner who dies or who becomes bankrupt, or of a partner who, not having been known to the person dealing with the firm to be a partner, retires from the firm, is not liable for partnership debts contracted after the date of the death, bankruptcy, or retirement respectively.

 

[18] Referring to the wording of s 39(3), the Court held that a partner who retires from the firm and was not known to the creditor before the retirement to have been a member is not liable for post-retirement debts. That finding was sufficient to determine the case. However, the Court went on to refer to s 39(1) and at p 101,901 Somers J said two points must concur for liability to arise under s 39(1):

 

"The first is that . . . the person sought to be made liable was 'known' to the creditor before actual retirement to have been a partner . . .

The second is that the former partner must still be an 'apparent' member . . ."

 

[19] Mr Hall submitted that while the Woods may have been "known" as partners before retirement, the second point required that they still be "apparent" members if they are to be liable. This can be contrasted with the Judge's approach in the present case, where he held that once the Woods were known to be partners, they were liable until Fresher Foods had notice they were no longer partners.

[20] On Mr Hall's interpretation, Elders Pastoral would be authority for the proposition that a creditor who has dealt with a partnership can only hold a former partner liable for the debt of the partnership incurred after his retirement if that creditor did not have notice of the retirement and the creditor could establish that the former partner was still an apparent member of the partnership. For there to be such an "apparent membership" some form of representation would be required. But the liability of persons for partnership debts based on apparent membership of the partnership by representation is provided for by s 17 of the Partnership Act. The effect of s 17(1) is that where

[2008] 2 NZLR 248 page  254

 the person allows themselves to be represented as a partner they are liable to a creditor even if the representation was made to the creditor without the knowledge of the apparent partner.

[21] Section 39 is directed at a different end. It is to confirm that former partners of a firm remain liable to creditors dealing with that firm unless the creditor has notice of a change in partnership (s 39(1) and (2)). Section 39(1) provides for the situation of existing creditors of the firm. Section 39(2) provides for the situation of creditors who had not dealt with the partnership before.

[22] There is thus a distinction between creditors who have had dealings with the firm before the change in its constitution and those who did not have any such dealings with it at all. An advertisement in the Gazette is notice as to creditors who had no dealings with the firm before the date of dissolution.

[23] Section 39(3) provides an exception to the requirement for notice in the case of death or bankruptcy or, as in the case of Elders Pastoral, where the creditor had no knowledge that the partner was formerly a member of the firm.

[24] Section 39(1) applies to the present case. The Woods were known to Fresher Foods as partners in Chipman Enterprises. Applying the wording of the section Fresher Foods was entitled to treat all apparent members of Chipman Enterprises as still being members of the firm until it had notice of the change. The Judge found that Fresher Foods did not have notice of the change in partnership after 31 March 2001. The issue is the meaning to be given to "apparent members" in this context.

[25] With respect to the Court of Appeal in Elders Pastoral, I am not able to accept that the former partner must "still be an apparent member". The word "still" as it appears in s 39 relates to the liability as a member of the firm rather than to their apparent membership of the firm. The plain wording of the section is that persons who are known to the creditor as partners of the firm remain liable as apparent members until the creditor has notice of the retirement.

[26] That approach is consistent with the English and Australian authority on the point. In Tower Cabinet Co Ltd v Ingram [1949] 2 KB 397 at p 403 Lynskey J considered the equivalent section in the United Kingdom legislation and stated:

 

"In my reading of that subsection, 'apparent members' means members who are apparently members to the person who is dealing with the firm, and they may be apparent either by the fact that the customer has had dealings with them before, or because of the use of their names on the notepaper, or from a sign outside the door, or because the customer has had some indirect information about them."

 

[27] Lynksey J also referred to the earlier decision of Farrar v Delfinne (1843) 1 Car & Kir 580, where Cresswell J set out the matter as follows at pp 580 - 581:

 

"Todd and the defendant were once in partnership, but they had not been so since the year 1837. The plaintiff dealt with the firm during the partnership, and he continued to do so afterwards; and the question is, whether the defendant is liable in respect of such subsequent dealings now that the partnership is dissolved. The law stands thus: if there had been a notorious partnership, but no notice had been given of the dissolution thereof, the defendant would have been liable. If there had been a general notice, that would have been sufficient for all but actual customers; these,

[2008] 2 NZLR 248 page  255

 however, must have had some kind of actual notice . . . The question for you, therefore, is, was this partnership actually known to the plaintiffs, either by the general report, or by direction communication? Because, if it were, and he did not know, either from notice of the fact, or from surmise, that the dissolution had taken place, you must infer that he still dealt on the faith of the partnership, and the defendant will therefore be liable."

 

[28] In Hamerhaven Pty Ltd v Ogge [1996] 2 VR 488 the Victorian Court of Appeal considered the application of the Australian equivalent of the same section. Callaway JA referred to the Elders decision as follows:

 

"In Elders Pastoral Ltd v Rutherfurd it was said of the corresponding New Zealand provision that a former partner must still be an apparent member after he or she retires. With respect, I do not think that is the true construction of the section. In my opinion it means that a person who was an apparent member of the old firm, ie the firm as it existed before the change in its constitution, may for that reason alone continue to be treated as a member of the firm after the change in its constitution until the plaintiff has notice of the change. 'Apparent' is used only in relation to membership of the old firm and 'still' relates to continuing membership not the appearance thereof. Accordingly the respondent's allegation that he ceased to be a partner on 30 June 1987, even if it were true, would avail him nothing unless the appellant had notice of the change." (Emphasis added.)

 

[29] In my judgment that statement accurately reflects the effect and plain meaning of the words of s 39(1) of the Act. The section does not require the former partner to "still be" an apparent member. The Woods are apparent members of Chipman Enterprises, because Fresher Foods knew that they were initially and did not have notice that the position had changed. The focus must be on whether the creditor dealing with the firm, knowing that the person was formerly a partner, has notice that they are no longer a partner. If not, then in the absence of any other evidence they remain apparent members of the firm and the creditor is entitled to treat them as still being members of it.

[30] The notice need not be by express words. It may be inferred from the circumstances known to the creditor. As Callaway JA said in Hamerhaven at p 492, the onus was on the partner to:

 

". . . prove either 'direct notice' thereof or, at least, 'facts and circumstances from which knowledge of such retirement might fairly be inferred'."

 

[31] This approach is consistent with Hammond v Hamlin (High Court, Wellington, CP 66/92, 3 April 1992, Master Williams QC) and Pont v Wilkins (1992) 4 NZBLC 102,894. In Hammond a salaried partner was held liable in respect of a post-retirement breach of undertaking given by his partner to another firm of solicitors which knew the former to have been a partner by virtue of the appearance of his name on the firm's letterhead both before and after his retirement, notice of which was given too late to prevent liability. Also in Pont v Wilkins, the retired partner who had given no formal notice at all of retirement had taken no step to have his name taken out of the firm name. His name and qualifications continued to appear on the firm's letterhead. He was held liable as a partner.

[32] Having regard to the wording of s 39(1) I do not consider the Court of Appeal in Elders Pastoral can be taken to have meant that s 39(1) requires a

[2008] 2 NZLR 248 page  256

 creditor to establish that the former partner was still apparently a member of the partnership (in addition to having knowledge of initial membership of the partnership and no notice of a change) for liability to ensue. But if the Court of Appeal decision in Elders Pastoral is to be interpreted in that way then, with respect, I consider that it is wrong and as the comments in relation to the application of s 39(1) were obiter in that case I would decline to follow it.

[33] If I am wrong in coming to the view that s 39(1) does not require Fresher Foods to establish that the Woods were still apparent members of the partnership, then I would nevertheless have found the Woods were still apparent members of the partnership in this case. I would have come to that conclusion for the following reasons:

 

o                The trading relationship which led to the credit account between Fresher Foods and Chipman Enterprises was established by the distributorship agreement signed by all four partners. The agreement contemplated that if there was to be a change in the trading arrangement by a change in the membership of the partnership that would also be done formally and in writing. That was not done.

o                At its highest, the Woods' case is that they were no longer apparent members of the partnership after March 1999. But the Woods remained liable as partners even on their own case until March 2001. It was only at that time that the Woods formally retired from partnership. There is no evidence of any change in the dealings between Fresher Foods and Chipman Enterprises between 2001 and 2003.

 

Conclusion

[34] The discussion that Mr Wood had in March 1999 with the staff at Fresher Foods was not notice under s 39(1) of the Act of a change in the partnership. The business carried on under the distributorship agreement. The Woods remained apparent members of the partnership. As they did not give notice to Fresher Foods of their retirement they remained liable.

 

Result

[35] The appeal is dismissed.

 

Costs

[36] Costs to the respondent on a 2B basis.Appeal dismissed.

 

Solicitors for Mr and Mrs Woods: Kemps Lawyers (Auckland).

 

Solicitors for Fresher Foods Ltd: Buddle Findlay (Auckland).

 

Reported by: Christopher Spells, Barrister


 

 

---- End of Request ----

Download Request: Current Document: 1

Time Of Request: Monday, July 04, 2016  18:30:00

 

 

 

 

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