But the section does not appear to me to take the appellant very far.
90 It is true that property used for partnership purposes does not necessarily become partnership property. It may remain the separate property of one or more of the partners. But that is a question to be determined on the basis of any express agreement as to how the property should be regarded and, in the absence of an express agreement, as a matter of inference to be drawn from the manner in which the partners have dealt with the property during the life of the partnership. So, for example, if a partnership pays or credits the owner of the property with rent for use of the property, it may be inferred that it was not intended to become partnership property. On the other hand, if the partnership credits the capital account of the owner of the property with the value of the property, it may be inferred that the property has become partnership property.[19]
91 In this case the judge found that Paladin was purchased with partnership money and registered in the names of the partners. On that basis, the logical inference was that the property was intended to be partnership property. It is true that that the appellant gave evidence in chief that he paid part of the purchase price. But he contradicted that evidence when cross-examined and the judge preferred the evidence which he gave in cross-examination.
92 There was no dispute that Szader's Block was purchased with partnership funds. The source of the funds was three cheques from an AGC partnership account totalling $21,188. The property was registered in the names of Trevor and Lorraine Yard alone, but the judge inferred that it was the intention of the parties that it be a partnership asset.
93 Brian's Block is in a similar position. As already noted, it was purchased in the name of Lorraine Yard, but the preponderance of the evidence was that it was purchased with partnership funds and in any event Lorraine Yard accepted that it was intended to be a partnership asset. Hence the judge so found.
94 Finally, on this aspect of the matter, the judge's conclusion that the three properties were partnership properties is also supported by s 25 of the Partnership Act 1958, which provides that, unless the contrary intention appears, property bought with money belonging to the firm is deemed to have been bought on account of the firm. As interpreted by the High Court in Carter Bros v Renouf,[20] the section means that in order to rebut the presumption it is necessary that the contrary intention be common to all partners. In this case that was not established.
95 Consequently, I see no error in his Honour's conclusion that each of Paladin, Szader's Block and Brian's Block were Yard Partnership assets.
(f) Order to wind up Yardoo Pty Ltd
96 Counsel for the appellant submitted, albeit faintly, that the judge was in error in holding that the affairs of Yardoo Pty Ltd had been conducted in a manner that was oppressive to Lorraine Yard. The evidence of oppression was, however, overwhelming. Following the separation of Trevor and Lorraine Yard on 15 December 1997, the appellant and Trevor Yard consistently conducted the affairs of Yardoo Pty Ltd with the intention of destroying the value of Lorraine Yard's share in the company. Their actions in that regard included procuring the assignment of the business of the Renown Garage from Yardoo Pty Ltd to a new partnership of which they and Gladys Yard were the only members, so as to deprive Yardoo Pty Ltd of any income; passing resolutions in 1999 purporting to remove Lorraine Yard as a shareholder of the company; and procuring the sale of Tully's Block to Vic Grain in 2001 without any consultation with Lorraine Yard. The appellant admitted in cross-examination that he had acted without any consultation with Lorraine Yard so as to directly defeat any claim she may have had. He also admitted that after 15 December 1997 he had consistently apposed all applications by Lorraine Yard to be given financial documents relating to Yardoo Pty Ltd. The fact was that she was consistently denied access to any financial information. The appellant's attitude was that Lorraine Yard was not entitled to any information concerning the company's affairs or to part of the company's assets. And Trevor Yard gave similar evidence that it was his intention to remove Lorraine Yard from the company after separation and that he was a prime mover in the purported attempt to remove Lorraine as a director and shareholder from Yardoo.
97 Counsel for the appellant argued in the alternative that, if oppression were established, the judge erred in ordering that Yardoo Pty Ltd be wound up rather than that it purchase Lorraine Yard's share in the company. Counsel stressed that the company was a family company of which substantially the only purpose was to hold family properties, and given that Lorraine Yard sought no more than to realise the value of her interest in those properties, the clearly appropriate remedy was an order for compulsory purchase. It was he submitted pointless and wasteful to incur the costs which a winding up would entail and it was unnecessary and unduly burdensome on the respondents to require that all the properties be sold.
98 I accept that submission. Where a member of a company seeks to have the company wound up on the just and equitable ground, the court will generally refuse to intervene if the member can extricate himself or herself by selling shares at a fair price.[21] Similarly under the oppression provisions of the Corporations Act 2001, where the applicant seeks to leave the company, the most usual order is for the purchase of the applicant's shares at fair value.[22] The logic in each case is the same. There is no point in imposing the cost and disruption of a winding up when it is possible to provide the applicant with a just remedy by means of the purchase of shares.
99 The date and method of valuation vary according to the circumstances of each case. What needs to be assessed is the value which will put the applicant in the position as if there had been no oppression.[23] Since Yardoo Pty Ltd is a landholding company which no longer carries on business, logic suggests that the basis of valuation should be net tangible assets without discount for minority holding[24] and that the appropriate date for valuation should be the date of commencement of the oppression or, failing a clear guide as to that, the date of commencement of the oppression proceedings.[25] If that date were chosen, however, it would be necessary to add something by way of damages in the nature of interest to compensate Lorraine Yard for being kept out of the increase in the value of the company's assets since that time and it would be difficult without evidence to determine what that rate should be.[26] All parties were thus agreed that if there were to be a compulsory purchase the shares, the shares should be valued as at the date of the trial in accordance with valuation evidence tendered below.
100 Counsel for the appellant submitted that the calculation of the value of shares on that basis should be referred to the trial judge or a Master. But I do not think that is necessary. The evidence tendered below included valuations of the shares prepared by the two expert valuers to whom I have already referred, Mr Ellery and Mr Lipson, and they were agreed in all respects except as to the value of land. Mr Ellery worked on land valuations prepared by a land valuer retained by the appellant, Mr Wapper, whereas Mr Lipson worked on land valuations prepared by a land valuer retained by Lorraine Yard, Mr Wakeham. The differences between Mr Ellery's valuation of the shares and Mr Lipson's valuation were thus only as follows:
Item Mr Ellery Mr Lipson
Cash at bank $10,706 $10,706
Land & buildings $2.511,500[27] $2,803,500[28]
Plant & Equipment $1,507 $1,507
Total assets $2,523,713 $2,815,713
Loans -$710,722 -$710,722
Total liabilities -$710,722 -$710,722
Net assets $1,812,991 $2,104,991
Lorraine Yard's one share (1/4) $453,248 $526, 248
101 The judge found that Mr Wakeham's valuations were to be preferred with respect to all of the land bearing on the valuation of the shares in Yardoo Pty Ltd. I would therefore set the price at which Yardoo Pty Ltd should be required to purchase Lorraine Yard's shares at $526,248.