Fry & Ors v Oddy

[1998] VSCA 26

Victorian Court of Appeal

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For Australian Law.

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Interrogate

Catchwords

1. Partnership
2. › Dissolution
3. › Continuing partners carrying on business without final settlement
4. › Retiring partner's entitlement to share of profits
5. › Profits attributable to use of share of partnership assets
6. › Ascertainment of share
7. › Whether process of judicial estimation
8. › Just allowance for exertions of continuing partners
9. › Partnership Act 1958 (Vic), s 46
1. Partnership
2. › Dissolution
3. › Profits attributable to partnership assets
4. › Prima facie rule
5. › Whether profits of partnership prima facie attributable to use of its assets
6. › Onus on continuing partners to show otherwise
7. › Firm of solicitors
8. › General transformation in practice of solicitors
1. Appeal
2. › New points on appeal
3. › Whether appellants entitled to raise new argument not taken at trial
4. › Whether point could have been met by evidence below
5. › Whether interests of justice permit new point

Quick Take

Profits of a partnership are prima facie attributable to the use of its assets, and the onus lies on continuing partners to show otherwise. The ascertainment of a retiring partner's share of profits under s.46 of the Partnership Act 1958 is a process of judicial estimation, and a just allowance for the exertions of continuing partners is merely a means of arriving at the true profit attributable to assets. The modern transformation of legal practice, including technology, support staff, and business infrastructure, means that older authorities suggesting solicitors' profits are attributable solely to personal skill may no longer apply.