Key Facts
- •Appeal concerning a pre-2009 limited partnership governed by the Limited Partnership Act 1907.
- •Partnership (FCILP) dissolved and wound up in 2010, with capital returned to limited partners.
- •General partner (FCGP) reinstated in 2021 and initiated proceedings against Mr. Flohr for alleged breaches of contract and fiduciary duty (2002-2005).
- •Mr. Flohr challenged FCGP's standing to sue, arguing the partnership was dissolved and wound up.
- •Master Brightwell held that FCGP had authority to sue under section 38 of the Partnership Act 1890.
Legal Principles
Section 38 Partnership Act 1890 (PA 1890) allows partners to continue actions necessary to wind up partnership affairs post-dissolution.
Partnership Act 1890, section 38
The Limited Partnership Act 1907 incorporates the Partnership Act 1890 into Limited Partnerships.
Limited Partnership Act 1907, section 7
A pre-2009 limited partnership doesn't have a separate legal personality from its partners.
Common law and statutory interpretation of 1907 Act
The general partner has power to bind the firm as its agent, this authority ending upon dissolution of the partnership.
Partnership Act 1890, section 5
The test for 'necessity' in section 38 PA 1890 is what is reasonably required to wind up the partnership affairs.
Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2015] WASCA 143 (Murphy JA's obiter comments)
Outcomes
Appeal dismissed.
FCGP has standing to sue Mr. Flohr. The court interpreted section 38 PA 1890 to allow the general partner to pursue a cause of action that remained an outstanding partnership asset even after the partnership's apparent winding-up. The court rejected arguments that the partnership ceased to exist for all purposes once capital was repaid and the partnership wound-up.