Kang-Kem v Paine [2004] NSWSC 3 (Australia)

The case here is referred to as whether the business carries on by Kem Weichoreak Kang-Kem, plaintiff, and Marilyn Jean Paine, defendant, was carried on in common and whether the partnership exists. Judge Barrett J compared the evidence coming out of this case to s.1(1) of the Partnership Act 1892 that defines partnership as the relation which exists between persons carrying on a business in common with a view of profit and also compares to s.2 of the Act that determines the rules for the existence of partnership. Barrett J found that it was the plaintiff who wished to open the restaurant and expressed it to the defendant in November 1991. He also told the defendant he had no money because of the failed business venture that had caused him to become a bankrupt. She kept him, paying his personal expenses and when the plaintiff expressed an interest in opening a restaurant, she was prepared to help him with the venture as it would be in the interests of both of them if he could find something at which he could prosper financially. Having reviewed the evidence concerning both the Junction restaurant and the Lake restaurant, Barrett J also found that the plaintiff represented the Junction restaurant to have been owned solely by the defendant until about 1997 and the proprietorship, in terms of enjoyment of "operating rights" passed to him thereafter under an arrangement which included a sublease of the premises, the defendant remaining the lessee at all times. After that change, he represented himself as sole owner of the Junction restaurant. Also the defendant alone was the lessee of the premises at the Lake and was the licensee under the Liquor Act. The funds used to establish the Junction restaurant were, to the extent of $100,000, provided by the defendant by way of loan to the plaintiff. The funds used to establish the Lake restaurant were borrowed, to the extent of some $115,000, by the plaintiff and the defendant as joint borrowers. Barrett J stated that the