Sims v Gawne

Conveyancing Act 1919 s 66G LEGISLATION CITED : Property, Stock and Business Agents Act 1941 ss 20, 56 Property, Stock and Business Agents Act 2002 ss 3, 8, 10, 11 and Schedule 1 par 14

Commercial Life Assurance Company of Canada v Drever [1948] SCR 306 Dungate v Lee [1969] 1 Ch 545 Ex parte Wilson [1898] 2 QB 547 Farrow Mortgage Services Pty Ltd (in liq) v Edgar (1993) 114 ALR 1 Fitzgerald v F J Leonhardt Pty Ltd (1997) 189 CLR 215 George Hudson Ltd v Australian Timber Workers' Union (1923) 32 CLR 413 Hayes v Cable [1962] SR(NSW) 1 Hoyt's Proprietary Limited v Spencer (1919) 27 CLR 133 CASES CITED : J C Scott Constructions v Mermaid Waters Tavern Pty Ltd [1984] 2 Qd R 413 Mathieson v Burton (1971) 124 CLR 1 Maxwell v Murphy (1957) 96 CLR 261 Millner v Raith (1942) 66 CLR 1 Nelson v Nelson (1995) 184 CLR 538 Pham v Doan [2005] NSWSC 201 The King v Kidman (1915) 20 CLR 425 Yango Pastoral Co Pty Ltd v First Chicago Australia Ltd (1978) 139 CLR 410 Pearce and Geddes, Statutory Interpretation in Australia (5th ed, 2001) [10.8], [10.9]

Stephen John Sims (P) PARTIES : Bradley Arthur Gawne (D1) Yrsa Margaretha Gawne (D2)

J J Young (P) J A Darvall (D1) COUNSEL : No appearance (D2)

Baldock, Stacy & Niven (P) SOLICITORS : Manfred Dougall & Company (D1 & 2)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

2121/04 STEPHEN JOHN SIMS v BRADLEY ARTHUR GAWNE & ANOR JUDGMENT 1 HIS HONOUR: The principal question in these proceedings is whether a partnership agreement between the plaintiff and the first defendant to conduct a real estate agency in Canowindra was rendered illegal by the provisions of either s 8 of the Property, Stock and Business Agents Act 2002 ("the new Act") or s 20 of its predecessor, the Property, Stock and Business Agents Act 1941 ("the old Act"). THE CONTENTIONS 2 There is no dispute that the plaintiff and the first defendant did enter into such an agreement. Nor is there any dispute that in October 2002 they executed a written partnership agreement, which was dated 1 July 2002, the day from which the partnership was stated to commence. The first defendant contends that the whole of the partnership agreement was contained in that document. The plaintiff contends that the partnership agreement was partly oral and partly in writing, the written part being that document and the oral part constituted by conversations which took place between the plaintiff and the first defendant. 3 Those conversations are said to have dealt with the fact that the plaintiff was not at the time licensed as a real estate agent, as he had not yet completed his diploma course, which he was due to complete later in 2002. He says that the conversations were to the effect that, although the partnership would commence to operate before he completed his qualification, the way in which it would be operated pending his obtaining that licence would be that he would obtain registration as a real estate salesperson under the supervision of the first defendant, who did have a real estate agent's licence. The business would be conducted under that licence, with the plaintiff acting as a salesperson under his registration as a real estate salesperson. 4 Alternatively, the plaintiff says that if these conversations did not actually form part of the contract of partnership, they operated between the parties as a collateral agreement as to how the business would be conducted pending the plaintiff obtaining his full licence. 5 The first defendant denies that these conversations took place and that their content had any contractual effect whatever. THE FACTS 6 In 2002 on the one hand the plaintiff and on the other the first defendant and his wife, who is the second defendant, bought in co ownership a property in Canowindra, in which the partnership business might be conducted. That property has now been sold as a result of an application under s 66G of the Conveyancing Act 1919, which was made in these proceedings. The property is no longer in contention. 7 The plaintiff says that the situation arising from his lack of a licence was discussed as indicated above. In paragraph 21 of his affidavit sworn 22 March 2004 he says: "As part of our discussions about forming a partnership I had talked with Brad about not having a license. I just had to finish the diploma course before I could obtain my license. We talked about the fact that I could do the Diploma course, register under Brad's license and by the time I finished the course Brad could sign me off with the additional time for my license. We even talked of the fact that I may be able to get my Business license as well under Brad's license (licensed Real Estate & Stock & Station Agent and Business Agent). We talked about the time frame and that I would have my license when the business was ready to open. Brad signed a letter to the Office of Fair Trading advising them that I was now registered under his license in May 2002."

In paragraph 3 of his affidavit of 21 April 2005 he elaborates as follows: "I crave leave to refer to paragraph 21 of my Affidavit sworn 22 March 2004. Brad knew from the time I first met him that I was not yet licensed as a real estate agent. In our discussions about going into business together I said to him words to the following effect:

'If we're going into partnership then I should get my licence as soon as possible so that we're equal partners. I'll do the Diploma course and I'll be ready to be signed off on my licence by the time we open or shortly thereafter.'

'That's fine; we only need one license to open the doors and as soon as you finish your Diploma course I'll sign the necessary documents for you to get your licence.'

'With the initial time under your licence while I finish the Diploma course, I should be eligible to get my business licence.'

The first defendant denies these conversations. 8 However, matters did proceed in the fashion said to have been discussed in those conversations. On 25 May 2002 the first defendant wrote to the Department of Fair Trading ("the Department") indicating that Steven Sims commenced work with the first defendant's then firm under the first defendant's supervision, quoting the first defendant's licence number. The new business actually started operation on 1 October 2002. On that day the first defendant again wrote to the Department advising that the plaintiff as the holder of Certificate 1039474 was no longer working for the first defendant's former business but was now employed by the new firm. The plaintiff's current certificate was returned and the issue of a new certificate was requested. This new certificate showed the plaintiff as registered under the supervision of the first defendant at the new firm. Even after the falling out between the plaintiff and the first defendant, the first defendant in January 2003 wrote to the Department stating that the plaintiff had been employed under his licence since October 2002. 9 The parties started to fall out quite quickly. They quarrelled on 30 December 2002. By 9 January 2003 the plaintiff was seeking legal advice. On 13 January 2003 the first defendant excluded the plaintiff from the premises and he has not since that time taken any further part in the business. THE LEGISLATIVE PROVISIONS 10 The new Act contains the following relevant provisions. In s 3 a real estate agent is defined as a person who for reward carries on business as an agent in relation to transactions for the sale or lease of land. A real estate salesperson is a person who as an employee of a real estate agent exercises any of the functions of a real estate agent. Section 8, which requires real estate agents to be licensed, is relevantly in the following terms: "8 Agents required to be licensed

(1) A natural person must not act as or carry on the business of (or advertise, notify or state that the person acts as or carries on the business of or is willing to act as or carry on the business of): (a) a real estate agent, unless the person is the holder of a real estate agent's licence … ……………. Maximum penalty: 100 penalty units.

(2) A natural person is not entitled to bring any proceeding in any court or tribunal to recover any commission, fee, gain or reward for any service performed by the person: (a) as a real estate agent, unless the person was the holder of a real estate agent's licence, or employed the holder of such a licence, at the time of performing the service … …………….

(3) This section applies to a natural person whether or not the person is a member of a partnership.

(5) For the purposes of this section, a person is not considered to carry on a business merely because the person is a member of a partnership that carries on that business.

Note. Subsection (5) makes it clear that 'silent' partners are not required to be licensed."

A real estate salesperson is prohibited from acting or representing that he is a real estate salesperson unless holding a certificate of registration (s 10) and unless the person does so as an employee of a licensed real estate agent (s 11). 11 The provisions of the old Act corresponding to s 8 were contained in s 20 and were virtually identical in substance, save that s 20 did not contain a provision corresponding to s 8(5). The old Act contained in s 56 provisions concerning salespersons corresponding to ss 10 and 11 of the new Act 12 The transitional arrangements in the new Act contain the following provision in Schedule 1 par 14: "Schedule 1 Savings and transitional provisions

14 Act extends to acts and omissions before commencement

Unless the context otherwise indicates or requires, a provision of this Act extends to any act or omission occurring before the commencement of the provision." THE LAW: RETROSPECTIVITY OF STATUTES 13 The first question is whether, by virtue of this transitional provision, the new Act has such retrospective operation that the transactions of the parties were governed by the provisions of the new Act, rather than those of the old Act. The new Act was assented to on 10 July 2002, although it did not come into force until 1 September 2003. The first defendant does not deny s 8 any retrospective operation, but puts the rather curious submission that it cannot have retrospective operation beyond the date of assent to the new Act. He cites no authority to support such a limited operation of retrospectivity. 14 Where a statute is expressed in terms fairly capable of having either a retrospective operation or a prospective operation only, there is a well known presumption which was stated as follows by Wright J in Ex parte Wilson [1898] 2 QB 547 at 551 - 552: "Perhaps no rule of construction is more firmly established than this - that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matter of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only."

Similarly, in Maxwell v Murphy (1957) 96 CLR 261 at 267 Dixon CJ said: "The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events. But, given rights and liabilities fixed by reference to past facts, matters or events, the law appointing or regulating the manner in which they are to be enforced or their enjoyment is to be secured by judicial remedy is not within the application of such a presumption."

These dicta were endorsed by Gibbs J (as his Honour then was) in Mathieson v Burton (1971) 124 CLR 1 at 22. 15 However, a number of observations need to be made:

(1) The presumption or rule of construction does not come into play unless on the words of the statute it may have either a retrospective or a prospective operation.

(2) The Parliament undoubtedly has power to legislate retrospectively. If the words of the statute are clear in that regard the statute has retrospective operation. This is so even in the extreme case where it renders criminal or imposes a penalty with regard to acts which when committed were permissible. See The King v Kidman (1915) 20 CLR 425; Millner v Raith (1942) 66 CLR 1; and see generally Pearce and Geddes, Statutory Interpretation in Australia (5th ed, 2001) [10.9].

(3) The rationale of the presumption is that the legislature does not intend what is unjust. In determining whether or not it applies regard needs to be paid to the situation with which the legislation is intended to deal and to the overall effects of the relevant provisions of the legislation. See George Hudson Ltd v Australian Timber Workers' Union (1923) 32 CLR 413 at 434; and see generally Pearce and Geddes op cit [10.8] 16 In the present case the new Act constitutes a complete replacement of the regime for the licensing of agents previously provided for in the old Act. Section 8 replaces s 20 in almost identical terms. The only relevant difference is the addition of s 8(5). In my view, so far as it matters, I do not think that that section changes the incidence of the legislation, that is, I do not think that mere membership of a partnership would constitute acting or holding oneself out as a real estate agent under the old Act. But, to any extent it did, the new Act, if it has retrospective operation, would change that. That change would be one that absolved persons from liability for past acts, rather than imposing liability in respect of past acts that did not previously attract liability. 17 In truth, in my view, the matter is simply concluded by the clarity of the words of Schedule 1 par 4 of the new Act. If it were necessary, reinforcement would be given to this approach by the philosophy that seems to me to lie behind this transitional provision. That philosophy is that, as the provisions are near identical, it will be much easier for those concerned to need to refer to only the one Act to assess events, whichever side of the legislative transition they lie on, rather than to have to work out which Act applies. 18 In my view, therefore, the argument as to illegality falls to be judged by reference to the provisions of the new Act. The argument that the new Act's provisions might be retrospective from its date of commencement, but only back to its date of assent, appears to me to be quite untenable. THE LAW: ILLEGALITY 19 The law as to the circumstances in which illegality renders a contract void or unenforceable is not devoid of difficulty. It has been the subject of discussion in the High Court in Yango Pastoral Co Pty Ltd v First Chicago Australia Ltd (1978) 139 CLR 410; Nelson v Nelson (1995) 184 CLR 538; and Fitzgerald v F J Leonhardt Pty Ltd (1997) 189 CLR 215. In Yango Pastoral Gibbs ACJ said at 413: "There are four main ways in which the enforceability of a contract may be affected by a statutory provision which renders particular conduct unlawful: (1) The contract may be to do something which the statute forbids; (2) The contract may be one which the statute expressly or impliedly prohibits; (3) The contract, although lawful on its face, may be made in order to effect a purpose which the statute renders unlawful; or (4) The contract, although lawful according to its own terms, may be performed in a manner which the statute prohibits." 20 In Farrow Mortgage Services Pty Ltd (in liq) v Edgar (1993) 114 ALR 1 the Full Court of the Federal Court (Lockhart, Gummow and Lee JJ) referred to the passage from Gibbs ACJ in Yango Pastoral cited above and to the decision of McPherson J in J C Scott Constructions v Mermaid Waters Tavern Pty Ltd [1984] 2 Qd R 413. Part of their Honours' analysis flowing from Gibbs ACJ's dictum for the purposes of the issues in the Farrow case (at 10 - 11) is also pertinent to the issues in this case: "(1) An express statutory prohibition against the making of a contract may fasten upon some act that is an essential element in that formation; the prohibition may be absolute or subject to some qualification, such as absence of a licence or other official consent.

(2) However, the subject of the express prohibition may not be the formation of a contract, but the doing of a particular act; an agreement that the prohibited act shall be done is then treated as being impliedly prohibited by the statute and as illegal. Whether there is an implied prohibition is to be determined upon a consideration, in its context, of the express prohibition. In that regard, in Mermaid Waters (at 423) McPherson J said: The unspoken reason underlying this implication almost certainly is that the prohibited act is invariably made an offence and, quite apart from expressions in the statute, an agreement to commit even a simple offence itself constitutes a criminal offence, both at common law and [under statute law of the States].

(3) A contract associated with or in the furtherance of illegal purposes may not itself be directly contrary to the provisions of the statute by reason of any express or implied prohibition. As will become apparent, in our view this is the proper characterisation of the transactions between Farrow and the respondents which gave rise to the instruments the subject of the declaration and orders of the primary judge. The present is, if anything, a 'third category' case. In such a case, the courts may not enforce the contract in two instances. The first is where the contract can only be performed in contravention of the statute; that is not the present case. The second is where the party seeking to enforce it (here, Farrow) intended to perform the contract illegally or for an illegal purpose (ie contravention of s 133(3) of the Building Societies Act). In our view, the present, if anything, is such a case. Here the courts act not in response to a legislative prohibition but from the policy of the law. In that regard, Jacobs J in Yango Pastoral (at CLR 432-3; ALR 603-4) referred to what was said by Lord Wright in Vita Food Products Inc v Unus Shipping Co Ltd [1939] AC 277 at 293 that 'public policy … may at times be better served by refusing to nullify a bargain save on serious and sufficient grounds'." 21 It should be added that, when a contract is not directly prohibited by a statute, a Court should not quickly or readily come to the conclusion that it is rendered illegal by the enactment in an indirect fashion. In Hayes v Cable [1962] SR(NSW) 1 the Full Court (Evatt CJ, Herron and Collins JJ) said at 5 - 6: "It is also well recognized that any contract will be held void although not in contravention of the specific directions of a statute if it be opposed to the general policy and interest thereof: Craies Statute Law, 5th ed (1952), p 235, and cases there cited. But courts will not be astute to construe an Act so as to avoid a contract, or a contract so as to bring it within the prohibition of a statute: per Devlin J (as he then was) in St John Shipping Corporation v Joseph Bank Ltd [1957] 1 QB 267. His Lordship said at p 288: 'a Court should not hold that any contract or class of contracts is prohibited by statute unless there is a clear implication or "necessary inference" as Parke B put it, Cope v Rowlands (1836) 2 M & W 149 at 159; 150 ER at 711, that the statute so intended. If a contract has as its whole object the doing of the very act which the statute prohibits, it can be argued that you can hardly make sense of a statute which forbids an Act and yet permits to be made a contract to do it; that is clear implication. But unless you get a clear implication of that sort, I think that a court ought to be very slow to hold that a statute intends to interfere with the rights and remedies given by the ordinary law of contract. Caution in this respect is, I think, especially necessary in these times when so much of commercial life is governed by regulations of one sort or another, which may easily be broken without wicked intent. Persons who deliberately set out to break the law cannot expect to be aided in a court of justice, but it is a different matter when the law is unwittingly broken. To nullify a bargain in such circumstances frequently means that in a case - perhaps of such triviality that no authority would have felt it worth while to prosecute - a seller, because he cannot enforce his civil rights, may forfeit a sum vastly in excess of any penalty that a criminal court would impose; and the sum forfeited will not go into the public purse but into the pockets of someone who is lucky enough to pick up the windfall or astute enough to have contrived to get it. It is questionable how far this contributes to public morality." FINDINGS OF FACT 22 As to the form of the agreement, the principal issue is as to whether the conversations referred to in [7] above took place. This in turn depends upon whether the evidence of the plaintiff or the first defendant is accepted as to conversations which took place between them alone and this turns on their respective credit as witnesses. Both were cross examined before me. The plaintiff appeared to be a witness who was doing his best to give the Court a truthful version of the facts. The first defendant was a very poor witness. He gave answers which were evasive, some to the point of untruthfulness. His demeanour was evasive. Furthermore, his evidence concerning the circumstances in which he took money from the trust account without informing the plaintiff was quite disingenuous. I prefer the evidence of the plaintiff to that of the first defendant. In general terms, where their accounts diverge, I accept the plaintiff's account of what occurred. This means that I accept the plaintiff's account of the conversations as to the regime that was to be adopted while the plaintiff did not have a full licence. Furthermore, this account is corroborated by what in fact occurred, as set out above. CONCLUSIONS 23 As a result of the findings of fact made in [22], I conclude that the contract of partnership was partly oral and partly written. The written partnership agreement was supplemented by terms, arising from the conversations which I have found took place, to the effect that, until the plaintiff obtained his licence as a real estate agent, the business should be conducted under the first defendant's licence, with the plaintiff holding registration as a real estate salesperson under the supervision of the first defendant and participating in the business in that guise. There is no inconsistency between the written and oral elements of the contract: Hoyt's Proprietary Limited v Spencer (1919) 27 CLR 133. 24 In applying the principles relating to illegality set out in [19] to [21] above, one must constantly bear in mind the precise provisions of the statute, the impact of which is being considered. I have already expressed the view that the relevant statute is the new Act. The prohibition in that Act which is said to render the contract illegal is the provision of s 8(1) prohibiting a natural person without a licence from acting as or carrying on the business of or advertising, notifying or stating that the person acts as or carries on the business of a real estate agent. That section contains in subsection (5) the qualification that a person is not considered to carry on a business merely because the person is a member of a partnership that carries on the business. 25 The prohibition which it is alleged the contract of partnership contravened is the prohibition in s 8(1), that is, the prohibition of an unlicensed person from acting as or holding himself out to be a real estate agent. The contract is a contract to conduct a real estate agency in partnership, but upon the basis that it will be conducted, until the plaintiff attains a full licence, by the plaintiff acting as a registered salesperson employed by and under the supervision of the first defendant. It does not seem to me that the contract could be said to be a contract the formation of which is expressly prohibited by the provision in question. 26 Nor does the contract seem to me to be an agreement that a prohibited act shall be done, which would require the contract to be treated as being impliedly prohibited by the statute. Equally, it does not seem to me to be a contract which can only be performed in contravention of the statute. It may be that in carrying out the contract there were some acts by the plaintiff which infringed the proscriptions of s 8(1). One of those acts may have been the use of business cards which described the plaintiff as a principal of the firm. It may be a nice question as to whether the card is in fact an infraction. The firm is named as "Central Tablelands Real Estate" and the plaintiff as "principal". He is not actually described as a real estate agent and he was a partner in the firm. The section provides that it is not infringed simply by carrying on a business in partnership. 27 But, assuming that the use of the card was a breach of the statute, although there is no doubt that the cards existed, there is little evidence of what use was made of them during the comparatively short period of time the partnership operated. There is evidence of only one letter being signed by the plaintiff as "principal" and no clear evidence that it was sent. It is clear that other letters were signed by the plaintiff as sales manager, which was not inappropriate. However, even if there were some infractions of the prohibition by the plaintiff using the cards, they were not necessary to the carrying out of the contract as formed. In my view, such infractions do not lead to the conclusion that the contract itself was illegal in the sense that it was rendered void or unenforceable by the statutory provision relied upon. 28 There are two cases relating to businesses conducted without licences where the contracts were struck down, but their differences from the present situation reinforce rather than counter my conclusion that the present contract is not illegal. In a case relating to a real estate agent, the Supreme Court of Canada in Commercial Life Assurance Company of Canada v Drever [1948] SCR 306 found a contract illegal, but that was a contract appointing an agent, under which the plaintiff claimed a commission, although the contract was entered into at a time when the plaintiff's licence as an agent had expired and not been renewed. That contract was squarely within a prohibition against acting as an agent without a licence. In Pham v Doan [2005] NSWSC 201, Barrett J found that a contract of partnership had been formed, but that its formation was illegal by statute. There the statute was the Pharmacy Act 1964. That statute by s 25(1) prohibits a body of persons unincorporated from carrying on the business of a pharmacist, unless it is a partnership consisting only of pharmacists. This is, of course, in sharp contract to the provisions of s 8(5) of the new Act. 29 A case that seems to me to be closely analogous to the present case is the decision of Buckley J in Dungate v Lee [1969] 1 Ch 545. There the statute prohibited a person from acting as a bookmaker on his own account without being the holder of a permit. The plaintiff did not hold, but the first defendant did hold, a bookmaker's permit. The plaintiff and the first defendant carried on together a bookmaking business. The plaintiff mostly carried out duties in the conduct of the business which did not amount to him acting as a bookmaker, although on some occasions he may have accepted credit bets in circumstances which amounted to infractions of the prohibition. His Lordship found that the relationship amounted to a partnership, but that the contract constituting it was not rendered illegal by the statute, despite some infractions by the plaintiff. His Lordship said at 548: "A contract of partnership is illegal if the purpose for which the partnership is intended to be formed is illegal or if, although that purpose is one which could be attained by legal means, it is the intention of the parties that it should be attained in an illegal way." 30 His Lordship subsequently analysed the incidence of the statute on the parties' contractual arrangement as follows at 550 - 551: "In my judgment, the Act does not require that every partner in a bookmaker's business must obtain a permit, although it appears to me that it does require that every partner in a bookmaker's business who acts as a bookmaker in the course of that business must have a permit. There would, I think, be nothing wrong in A holding a bookmaker's permit and B holding no such permit carrying on a bookmaking business in partnership, A alone being actively engaged in the conduct of the business and B contributing the capital but taking no active part in the business. Nor do I think there would be anything wrong if B, instead of taking no active part in the conduct of the business, confined his activities in the business to activities other than receiving or negotiating bets or conducting part betting operations; in other words, so long as B did not act as a bookmaker. He might, for instance, confine his participation in the business to keeping accounts and records.

If I am right in this view, the further question arises whether in this particular case the partnership agreement was one which required the plaintiff to act as a bookmaker in the conduct of the business or was entered into with a common intention on the part of - the plaintiff and the defendant that the plaintiff would act as a bookmaker in the conduct of the business without a permit.

I have already found as a fact that there was no agreement between the parties antecedent to the opening of the business as to precisely what either of them should do, and, accordingly, the partnership agreement was not one which specifically required the plaintiff to act as a bookmaker in the conduct of the business.

The greater part of the plaintiff's activities in the business did not constitute acting as a bookmaker within the meaning of the Act. In so far as the plaintiff handled credit betting placed by telephone it appears to me that he may have acted as a bookmaker and may have been in breach of the Act in so doing without a bookmaker's permit; but the evidence does not establish that the partnership agreement was entered into upon the basis - that is, with a common intention - that the plaintiff should perform this particular function. As I have indicated, the defendant was anxious that the arrangement between the plaintiff and himself should be such that, having regard to their intention that initially only the defendant should hold a permit, the business should be so conducted as to avoid conflict with the provisions of the Act. Had either of the parties appreciated that by handling the credit betting without a permit the plaintiff was or might be committing an offence under the Act, I have no doubt whatever that they would have rearranged their method of conducting their business so as to avoid this result."

This analysis appears to me correct and the decision reinforces my conclusion that the contract of partnership the subject of these proceedings is not rendered illegal by s 8 of the new Act. 31 The partnership having undoubtedly been brought to an end, it appears to me that the plaintiff is entitled to an account of its transactions. RENOVATION WORK 32 My preference of the plaintiff's evidence over the first defendant's leads me to find that there was an oral agreement whereby it was agreed that the plaintiff should do, in effect, labouring work in the renovation of the premises at the rate of $15 per hour chargeable to the business which was to be conducted between himself and the first defendant. He deposes that he kept a record in a diary, which is in evidence, of the relevant hours. His own calculation of what is due appears to be erroneous through an error in the addition of the number of hours. The correct calculation appears to be that he did 134.5 hours work at $15 per hour, entitling him to remuneration of $2,017.50. In my view the appropriate remedy in relation to this item is that it be taken into account in the plaintiff's favour upon the taking of the partnership accounts. REMEDY 33 The plaintiff is entitled to have a formal account taken before an Associate Judge. The amounts involved are small. On the evidence before me they may not go beyond $900 held in a partnership account and about $24,000 which was wrongly removed from a trust account by the first defendant and put to his own use, together with the $2,017.50 owing to the plaintiff for renovation work. It would be contrary to the spirit of the just, quick and cheap disposal of proceedings required under the modern procedural regime for a formal account to be taken in this matter and I do not propose to order one in the first instance. The parties should attempt to agree upon the amount owing under the partnership account now that the substantive dispute between them is resolved. If they cannot, consideration should be given to the appointment of an accountant to take the account in an informal way, or for a court appointed expert witness to produce a report as to the state of the account, or for the determination of the matter in some other informal and cheap way. 34 Further consideration may be given to this matter when short minutes are brought in to give effect to my decision.

03/08/2005 - Clerical - figure of $48,000 changed to $24,000 - Paragraph(s) 33

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.