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RELATION OF PARTNERS WITH ONE ANOTHER
Rights & Duties of PartnersDuty of Good FaithPartnership Property
Rights & Duties of Partners Sec 26 -‘subject to any agreement’ - secondary in natureTan Eng Choon v Foo Kai Yuen Mutual duties & rights maybe set up in
the partnership agreement. If there is nothing in the partnership agreement,then only it will be referred to the provisions of the Act
Sec 21- varied or changed with consent
Sec 26 (a) Partners share equally in
CAPITAL,PROFIT & LOSSES Un equal if stated in the agreementBinney v MutrieHeld:In the absence of the agreement to
the contrary the partner must divide the profit and shared the losses equally.
If there is insolvent partner, other partners have no duty to bear his losses
Garney v MurrayHeld: Each partner shall only be liable to
contribute 1/3 of the deficiency to the business because this was the proportion which the profits were divided
Sec 26(b) Firm will indemnify any
payment/liabilities incurred: - In the ordinary conduct of the
firm’s biz or - Is necessary to preserve the
business or property of the firm
Cases Matthew v Ruggles Kok Hong Leong v Seow Kah
Cheng Ong Keng Huat v Hong Kong United
Co Ltd
Ong Keng HuatRigby J:“ in order to make one partner liable
for any loss arising out of the partnership it was necessary to prove that he had committed fraud or culpable negligence”
Sec 26(c) Partners can contribute to the firm
by way of advancement and are entitled for an interest (8%).
Lord Lindley: Such an advance is not treated as an increase of capital but rather as a loan on which interest ought to be paid.
Sec 26 (d)
Interest on capital can only be given after the ascertainment of
profit
Sec 26(e)
Every partner may take part in
the management
Sec 26(f) Partners are not entitle to a
remunaration unless otherwise provided If a partner is appointed as a
receiver (dissolution) –entitled for a remuneration
Case: Re Aldrige
If a partner has to do all the work due to death,sickness,retirement etc – entitle to a remuneration
Case: Airey v Bonham Upon death of another partner, he
becomes an executor – NOT entitle for a remuneration
Case: Burden v Burden
Sec 26(g) Introducing new partner- consent of
ALL partners. Consent must not be unreasonably
withheld
Case: Byrne v Reid
Sec 26(h)Decision making: Differences as to ordinary matters; -by majority Changing the nature of the business; -consent by allCases: Highley v Walker Tham Kok Cheong v Low Pui Heng
Sec 26(i)Partnership books;- kept at the place of the business- every partner has access/copyCase: Krishinchand Bahjawi & Anor“partnership books should not be
constrained to accounting records but other records kept by the partnership for example minutes of partners meeting.”
- agent of a partner can also have access/copy
- Cases: Bevan v Webb Gan Khuan v Tan Jin Luan
Expulsion of a partnerSec 27
By majority , partners cannot expel any other partner unless authorised expressly, either in writing or by oral.
Case: Re A Solicitors Arbitration
Expulsion of a partner must be exercised
in good faith and for good reason.Blisset v Daniel‘power of expulsion should be exercised in
good faith’H:Notice of expulsion was invalid – not in
good faith.
The duty of Good Faith
Important element in a relationship between partners
Being honest in all partnership dealings
Cover by Secs 30,31 & 32
R v Lee Kiong KiatTerrel J:One has to remember what a
partnership is. It is an association requiring the utmost good faith between the partners – each partner owes a duty to his co-partner and each partner is entitled to have confidence in his co-partner and good faith towards him.
Vasu Devan & OrsMohamed Azmi J:..the utmost good faith is due from every
member of a partnership towards every other member…Good faith requires that a partner shall not obtain a private advantage at the expense of the firm…He is bound in all transactions to do his best…to share with his co-partners any benefit…
Sec 30 Every partner should render true account
and give full information Example: Sale of shares from a partner to
another. A partner must reveal all material facts relating to it, otherwise the sale will be voidable and maybe set aside.
Cases: Maddeford v Austwick Law v Law
Maddeford v AustwickHeld: Purchase of a share in the firm
without disclosure of material facts with reference to the partnership assets would render the transaction voidable.
Law v LawF: A partner sold his share to another
partner. Later he found out that the shares worth more that it should. He would have known about it if the existence of certain securities of the partnership had been revealed to him.
H: In principle, the transaction could be set aside.
Sec 31 Accountability for private profits
obtained from : - partnership transaction or
- use of partnership property, - use of partnership name, - business connection.without the consent of other partners
CasesBentley v CravenHeld: The partner was accountable to the
firm for the profits made.
Clegg v FishwickHeld: Though the other p’ners cannot
restrain the landlord frm granting the lease to only one p’ner, as btwn p’ners that p’ner was a trustee for the firm.
Pathirana v PathiranaHeld: The other partners are entitled
for the profits made by a partner.
ExceptionA partner may keep the profits:1)When there is full disclosure of
interest2)Consent from other partners3)Profit is derived from the use of
information which is wholly outside the scope of partnership business
CasesRe Coffey’s Registered DesignH:The firm involved in buying & selling
products manufactured by ors and not in manufacturing the products itself. Therefore the partners are not accountable
Sec 32 A partner must not compete with the
firm in the business of the same nature.
If he did so, must account any profits made to the firm.
Aas V Benham
Case:Trimble v GoldbergHeld: Action for the share of profit
failed. The purchase of the property was not within the scope of partnership nor was it in rivalry with the partnership.