Hope V Barthrust City Council Summary

1. Does a partnership exist?
a. Is there a business?
i. Yes. S1(b), Hope v Barthrust City Council (1980) 144 CLR 1, implied that a business is a commercial activity which has repetition & continuity. The judge held that “a business is a commercial enterprise which is a going concern engaged for the purpose of profit on a continuous & repetitive basis”.
b. The business must be carried on
i. This again involves continuity and repetition. The case had mentioned that the restaurant would run from a leased premise (para 2), which suggest a proprietary act (i.e. things you do before a business officially opens). ii. In addition, (para 3) also mentioned that all five parties would register and jointly own the business name of the restaurant. iii. Therefore
Oliver provides a loan to joint venture similar to CANNY GABRIEL CASTLE JACKSON ADVERTISING PTY. LTD. v. VOLUME SALES (FINANCE) PTY. LTD. [1974] HCA 22; 131 CLR 321; 3 ALR 409, s 2(1) (c) (4), an advance of money where the lender paid a share of profit by itself doesn’t make Oliver a partner but Oliver also does more, he takes part in decision making and has the right to inspect the books and receive copies of the accounts s24(1)(i) RE MEGAVAND; EX PARTE DELHASSE (1878) 7 CH D 511, where the person was a lender and got a share of the profits but also had a right to inspect the books, get copies of the business accounts and has the authority to dissolve the business (similar to the facts of the case), therefore Oliver is most likely a
No mention of sharing losses (CANNY GABRIEL CASTLE JACKSON ADVERTISING PTY. LTD. v. VOLUME SALES (FINANCE) PTY. LTD. [1974] HCA 22; 131 CLR 321; 3 ALR 409, a failure to make an agreement about losses by itself does not stop it being a partnership. In C.G. The court implied a term that losses are shared in the same proportion as the profits s24. No mention of losses will not stop it being a partnership in C.G. case. It was called a ‘joint venture which was still held to be a partnership even though it didn’t mention of loss sharing, the court will imply a term that you will contribute to the losses in the same proportion you receive the profits. Finally there is no mention of partnership (Re Ruddock (1879) 5 VLR (IP & M) 51.) & C.G. In RR, labels are not decisive, it doesn’t matter what you call it, the court will look for itself as to what the true nature of structure is. In C.G., it was held to be a partnership even though there was a mention of loan to the joint venture, it was still held to be a partnership. Here very strong evidence that Anna, Sam, Maia, Jamie are in a partnership. Oliver is a partner as wll because he doesn’t just give a loan, he is also involved in all decision making (which suggest a