Fazio v Fazio

[2012] WASCA 72

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Partnership
2. › Retirement from partnership
3. › Inferred agreement to retire
4. › Retrospectant circumstantial evidence
5. › Subsequent conduct as evidence of prior agreement
6. › Whether agreement inferred from conduct over 20 years
7. › Partnership Act 1895 (WA), ss 37, 42, 55
1. Contract
2. › Formation
3. › Inference from conduct
4. › Retrospectant circumstantial evidence
5. › Subsequent conduct admissible to prove existence of prior agreement
6. › Whether overwhelming circumstantial evidence supported inference of agreement
1. Appeal
2. › Standard of appellate review
3. › Findings of fact
4. › Inferences from circumstantial evidence
5. › Whether appellate court may substitute its own inferences
6. › Correctness standard for inferences from undisputed facts
1. Evidence
2. › Circumstantial evidence
3. › Inferences
4. › Jones v Dunkel
5. › Whether failure to call witnesses or adduce evidence supports adverse inference
6. › Whether rule may be used to fill gaps in party's own case

Quick Take

An agreement to retire from a partnership may be inferred from overwhelming retrospectant circumstantial evidence, including the retiring partner's conduct over a prolonged period in not participating in the partnership, not declaring partnership income, not being treated as a partner, and not asserting partnership rights. The transfer of property around the time of the alleged retirement may constitute sufficient consideration for the relinquishment of a partnership interest. The rule in Jones v Dunkel cannot be used to fill gaps in a party's own evidence.