PARTNERSHIP QUESTION

Evening Star, Issue 20255, 16 August 1929, Page 12

PARTNERSHIP QUESTION

SUPREME COURT CASE Throughout; yesterday His Honour Mr Justice Kennedy was engaged in the Supreme Court in hearing the case In which the Public Trustee, as administrator of the estate of the late William Duthie Laing, asked the court to decide certain matters regarding the estate of the deceased and his brother, Arthur A. Laing. Mr W. G. Hay appeared for the Public Trustee, and Mr J. S. Sinclair lor the defendant, Arthur A. Laing. The statement of claim set out that the deceased carried on business in copartnership in equal shares with the defendant, they being dairymen at Wakari, and that the partnership was dissolved on the death of William D. Laing; that the affairs of the partnership had not been paid up nor had its assets been distributed to those entitled to them; that among the assets were certain pieces of land neld by the partners in joint tenancy as part of the partnership assets; that the plaintiff had requested the defendant to join in realising the properties and winding up the affairs of the partnership, but that the defendant had refused to do so, and claimed that the lands were not part of the partnership assets. Plaintiif therefore asked the court for an order declaring that the partnership was dissolved; that the lands were part of the partnership assets, and lor an order that the business and affairs of the partnership be wound up by the court.

]u his statement of del cnee, the defendant denied that the partnership had not been wound up and the assets distributed. It was admitted that certain lands were partnership assets, but it was denied that two pieces of land held on joint tenancy were partnership assets. Evidence was given by the widow (Mrs William D. Laing), Thomas James Glen (of the Dunedin Post Office Savings Bank), Frank M. Gundrey (of the Public Trust Office), David R. White (solicitor of the Public Trust Office). Yesterday afternoon Mr Sinclair presented the case for the defence. He said he felt ho was entitled to ask for a nonsuit in that the Public Trustee had not proved what the law' required him to do. The Public Trustee must prove that the properties held in joint tenancy were partnership assets, or failing that that there was a definite agreement that they were to bo partnership ■assets. Counsel submitted that the Public Trustee had proved neither. His Honour said that in view of the declaration sworn by the defendant he could not grant a nonsuit. The defence was, continued Mr Sinclair, that there was a specific agreement between the parties, apart from the fact that the title of the two properties in dispute showed a joint tenancy. Secondly, that there was no pro sumption in law that the two partners in the working of these properties were parties in the fee simple. As far as the Whare Flat farm was concerned the defence claimed that they were partners in the working of the farm, but in law wore co-owners in the laud. With respect to the Wakari property the defence held that there was no partnership in its working. It was never worked in connection with the partnership as it was leased to their brother Philip, but they were co-owners of the land, which was to go to the survivor as specified in the title. There, was a suggestion that the defendant was'endeavouring to rob his deceased brother’s estate, but the evidence would show that the two of them were always on the best of terms. The two brothers started in partnership in 1903 in the working of Overhillis, and they continued to work this property right up to the time ot the death of William. During that long period three properties had been purchased—Whare Flat, Zephyr Hills, and Wakari. the purchase money being paid as the brothers gob money in. Counsel referred to the manner in which tie purchase money for the Zephyr Hills and Wakari properties was provided, and said that from the system adopted l>v the partners in providing moneys for the land purchases the Public Trustee could not arrive with meticulous accuracy as to how much each brother contributed. It would Ire shown that these properties were pui’chased not out of a common partnership fund, because there was none, but out of moneys falling to cadi partner privately, One property—Zephyr Hills—they'must admit was a partnership asset, and they would also admit that there was a partnership in the working of Ovsrhillis, the Zephyr, and the Whare Flat properties, hub they denied, that there was any partnership interest on the death of one of the partners in the Whare Flat or Wakari farms. They would prove that under a verbal agreement —a specific arrangement—the survivor of tbe two partners was to get the Wakari'and Whare Flat farms. Counsel then referred to the declaration made by tbe defendant at the Public Trustee’s office. This declaration, he said, contained the extraordinary admission that the two properties which the defence was claiming were partnership assets, but they would bring evidence to prove that the defendant never intended such a thing. Had he realised that the declaration contained such terms he would never have dreamt of signing it. The Public Trustee official had admitted that the defendant had throughout asserted that he was entitled to the two properties. It was obvious that a mutual mistake had been made in the signing of the declaration. Counsel said that the defendant desired to clear his character regarding the dispute, and ho said that if his brother were alive he must confirm the arrangement.

This morning the case was continued further evidence being given by Arthur A. Laing, the r defendant. Philip Laing, another brother, stated in evidence that his late brother William told him the Whare Flat and Wakari farms would go on his death to his brother Arthur. Evidence was also given by Charles Russell Smith, of Messrs John Reid and Sons, and by Noman Douglas Anderson, managing clerk for Messrs Aspiuall and Sim.

Mr Sinclair commenced bis address to tbo court, and the case was adjourned till jtliis afternoon.