Defining a partnership : the traditional approach versus an innovative departure - do Queensland Appeal Court decisions point to the need for a review of the traditional approach to interpretation adopted by Australian courts?

Egert, Geoffrey (2007) Defining a partnership : the traditional approach versus an innovative departure - do Queensland Appeal Court decisions point to the need for a review of the traditional approach to interpretation adopted by Australian courts? Bond Law Review, 19(1), pp. 99-139.

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Abstract

Australian partnership legislation when it was first enacted adopted legislative provisions that were a ‘substantial transcript’1 of the Partnership Act 1890 (UK). All of this legislation, since its inception, has contained a general definition of a partnership. Prior to the passing of the Partnership Act 1890 (UK), a partnership was defined in a variety of ways but there was no authoritative definition of the word.2 Indeed, Lord Lindley in his seminal text on partnership law provided 18 definitions of partnership drawn from various sources.3 It is the purpose of this article to examine the definition of a partnership under the Partnership Act 1891(Qld) against the background of three Queensland appeal court decisions that have previously received little or no comment. There are four parts to this article. The first part discusses some general principles relevant to the existence of a partnership. The second part discusses the focal provisions of the Partnership Act 1891(Qld) that deal with the definition and existence of a partnership relationship. In particular, it focuses on the pivotal provision of s 5 (1) that deals with the general definition of a partnership. As each Australian jurisdiction has an equivalent provision in its partnership legislation, particular emphasis is placed on the traditional approach of Australian courts to the interpretation of this provision. The third part examines the three relevant Queensland appeal court decisions of Mackie Pty Ltd v Dalziell Medical Practice Pty Ltd4, Whywait Pty Ltd v Davison5 and Marshall v Marshall 6. The fourth part critically analyses these decisions in the light of the principles outlined in the earlier parts of the article. In both the third and fourth parts of this article, particular emphasis is placed on the innovative approach adopted by McPherson JA in each of the decisions. A conclusion is then reached as to whether these Queensland appeal court decisions point to the need for a review of the traditional approach to the interpretation of the definition of a partnership adopted by Australian courts.

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ID Code: 19324
Item Type: Journal Article
Refereed: Yes
ISSN: 1033-4505
Divisions: Current > QUT Faculties and Divisions > Faculty of Law
Deposited On: 31 Mar 2009 04:18
Last Modified: 10 Apr 2012 03:21

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