“WHEREAS The Parties have agreed to buy [the Properties] IT IS AGREED as follows: 1. The profits received from the proceeds in respect of the sale of the [Properties] will be split equally between the parties; 2. The receipt of the rental income of£11,500 per month will be credited into a bank account in the name of Drupad Chorera.”
“2 Where the facts stated in this witness statement are within my own knowledge, they are true… 3 The Trustees [i.e. the Second Defendants] make this application if, at the trial of this action, the Court finds that the [Settlement Amount] is held on trust by the Trustees for the Claimants… 7 If the Trustees had not … commenced the [Negligence Claim], and successfully recovered the Settlement [Amount], the Claimants would not have been able to recover any sums whatsoever. 8. The Trustees’ work has therefore been of substantial benefit to the trust property and to the persons interested in it, the Claimants. In those circumstances, the Trustees seek an order that their remuneration, costs and expenses of the Negligence Claim Proceedings, and the costs of this application be paid out of the Settlement.” (My emphasis). Amount] is held on trust by the Trustees for the Claimants… would not have been able to recover any sums whatsoever. In those circumstances, the Trustees seek an order that their remuneration, costs and expenses of the Negligence Claim Proceedings, and the costs of this application be paid out of the Settlement.”
“On22 February 2010 , Mr Gooch sent some client care letters out to Drupad alone in respect of 106 and 108 High Street. There was nothing particularly unusual about this because everyone had agreed that this would be Drupad’s responsibility, as he was obtaining the finance. However, days later on26 February 2010 , Mr Gooch also sent a copy of the client care letters to Nirmal [i.e. the Defendant] via email… Nirmal was therefore very much involved as a go between to make sure the transaction completed and Mr Gooch and Ian would often liaise with him.”
“On an application for relief from sanctions, all the circumstances have to be considered but the rule makes express reference to (a) the need for litigation to be conducted efficiently and at proportionate cost and (b) the need to enforce compliance with rules, practice directions and court orders. In Denton v TH White Ltd[2014] EWCA Civ 906 , [2014] 1 W.L.R.3296, the Court of Appeal decided by a majority (Lord Dyson MR and Vos LJ) that these two factors ‘are of particular importance and should be given particular weight at the third stage when all the circumstances of the case are considered… Decisions as to whether or not to grant relief from sanctions are always discretionary and are highly case-sensitive. Appeal courts will not interfere with a lower court’s decision on such matters unless satisfied that the lower court erred in law, erred in fact or reached a conclusion which falls outside the generous ambit within which reasonable disagreement is possible… The fact that “other circumstances” may influence the court’s decision even where the two specified factors militate in favour of refusing relief may be taken as an indication that the court’s new policy in respect of non-compliance with rules, practice directions and orders is one of low tolerance rather than no tolerance.’”
“2 This statement has been prepared to re-iterate the contents of my email dated16 March 2020 , which I produced myself, in the correct form. A copy is attached at Exhibit HTI. It states the following: 3 I Hasmukh Thakrar can confirm the below statement of facts in 2010. I entered into a joint venture agreement to purchase properties in SW19 Colliers Wood High street 43 plus 106 & 108. 4 I myself and Drupad Pravin and Nirmal were going to buy the Property with a view to sell on at a profit. 5 Pravin was going to put in the deposit Drupad was arranging the bridging loan and Nirmal was organising the sales. 6 Upon advice from my own solicitor regarding no 43 having issues with title and priority charges I decided not to get involved with the venture. 7 This is the truth and to the best of my recollection.”
“in determining whether a partnership does or does not exist, regard shall be had to the following rules: (1) Joint tenancy, tenancy in common, joint property, common property, or part ownership does not of itself create a partnership as to anything so held or owned, whether the tenants or owners do or do not share any profits made by the use thereof. (2) The sharing of gross returns does not of itself create a partnership, whether the persons sharing such returns have or have not a joint or common right or interest in any property from which or from the use of which the returns are derived. (3) The receipt by a person of a share of the profits of a business is prima facie evidence that he is a partner in the business, but receipt of such a share, or of a payment contingent on or varying with the profits of a business, does not of itself make him a partner in the business; and in particular: (a) [t]he receipt by a person of a debt or other liquidated amount by instalments or otherwise out of the accruing profits of a business does not of itself make him a partner in the business or liable as such… (d) [the] advance of money by way of loan to a person engaged or about to engage in any business on a contract with that person that the lender shall receive a rate of interest varying with the profits, or shall receive a share of the profits arising from carrying on the business, does not of itself make the lender a partner with the person or persons carrying on the business or liable as such. Provided that the contract is in writing, and signed by or on behalf of all the parties thereto…” (1) Joint tenancy, tenancy in common, joint property, common property, or part ownership does not of itself create a partnership as to anything so held or owned, whether the tenants or owners do or do not share any profits made by the use thereof. (2) The sharing of gross returns does not of itself create a partnership, whether the persons sharing such returns have or have not a joint or common right or interest in any property from which or from the use of which the returns are derived. (3) The receipt by a person of a share of the profits of a business is prima facie evidence that he is a partner in the business, but receipt of such a share, or of a payment contingent on or varying with the profits of a business, does not of itself make him a partner in the business; and in particular: (a) [t]he receipt by a person of a debt or other liquidated amount by instalments or otherwise out of the accruing profits of a business does not of itself make him a partner in the business or liable as such… (d) [the] advance of money by way of loan to a person engaged or about to engage in any business on a contract with that person that the lender shall receive a rate of interest varying with the profits, or shall receive a share of the profits arising from carrying on the business, does not of itself make the lender a partner with the person or persons carrying on the business or liable as such. Provided that the contract is in writing, and signed by or on behalf of all the parties thereto…”
“subject to any agreement between the partners, a partnership is dissolved ... if entered into for a single adventure or undertaking, by the termination of that adventure or undertaking ...”
“The Court looks at the transaction and says: ‘Is this, in point of law, really a partnership?’ It is not in the least conclusive that the parties have used a term or language intended to indicate that the transaction is not that which in law it is.”
“If the agreement is not in writing the intention of the parties must naturally be ascertained from their words and conduct…” “Needless to say, the fact that the parties have used the words ‘partners’ and/or ‘partnership’ will not be determinative…” “… it is not possible to avoid partnership merely by describing the participants as joint venturers; the label will be ignored and the court will look to the substance of the transaction rather than its outward form.”
“Joint Ventures The courts tend to adopt a strangely inconsistent attitude towards joint ventures. Although partnerships and joint ventures obviously have a number of common characteristics, in some instances the two expressions appear to be used interchangeably, whilst in others the joint venture is recognised as a relationship quite separate and distinct from partnership. In Ross River Ltd. v Waveley Commercial Ltd[[2014] 1 BCLC 545 at [34]], Lloyd LJ specifically referred to a joint venture as being analogous to a partnership but commented that ‘the phrase “joint venture” is not a term of art either in a business or in a legal context’. In the current editor’s view, whilst it can properly be said that all partnerships involve a joint venture, the converse proposition manifestly does not hold good. This is demonstrated by the unreported decision in Spree Engineering and Testing Ltd. v O’Rourke Civil and Structural Engineering Ltd [18 May 1999 , unreported] in which a distinction was drawn between a so-called nonintegrated joint venture, which would not involve a partnership, and an integrated joint venture, which would, in general, constitute the joint venturers as partners. However, the use of such terminology should not be allowed to obscure the need in every case to scrutinise the parties’ arrangementsin order to identify whether the requirements of section 1(1) of the Partnership Act 1890are satisfied and whether their relationship displays any of the normal indicia of partnership, as well as, in a borderline case, any “no partnership” declaration in the agreement…. It naturally follows that it is not possible to avoid partnership merely by describing the participants as joint venturers; the label will be ignored and the court will look to the substance of the transaction rather than its outward form. Equally, it cannot be assumed that the participants in a transaction described as a joint venture do not each intend to carry on their own separate businesses: such situations are by no means unknown, e.g. share farming and oil exploration ventures.”
“By section 45 of the [PA 1890], business includes ‘every trade, occupation, or profession’. It follows that virtually any activity or venture of a commercial nature, including a ‘one off’ trading venture, will be regarded as a business for this purpose. It obviously does not matter whether the business is a new or existing business, nor for how long it has been carried on nor, indeed, that it may contain two or more disparate elements. On the other hand, the mere fact that a particular activity is profitable will not of itself turn it into a business: an example of such an activity is to be found in the management of a particular property, which may or may not qualify as a business, depending on the circumstances. This is to an extent emphasised by section 2(1) of the Act which, embodying the effect of a number of earlier decisions, provides: ‘Joint tenancy, tenancy in common, joint property, common property, or part ownership does not of itself create a partnership as to anything so held or owned, whether the tenants or owners do or do not share any profits made by the use thereof.’ Equally, an activity which might not ordinarily be classed as a business, e.g. buying, selling and holding investments, may qualify if it is carried on as a commercial venture; a fortiori if a partnership is formed to carry on such an activity.”
“As I have described it earlier, in my judgment the word ‘business’ in the context of s162, TCGA should be afforded a broad meaning. Regard should be had to the factors referred to in Lord Fisher [i.e. Customs and Excise Comrs v Lord Fisher [19 81] STC 238,[1981] 2 All ER 14 7] which in my view (with the exception of the specific references to taxable supplies, which are relevant to VAT) are of general application to the question whether the circumstances describe a business. Thus, it falls to be considered whether Mrs Ramsay's activities were a 'serious undertaking earnestly pursued' or a 'serious occupation', whether the activity was an occupation or function actively pursued with reasonable or recognisable continuity, whether the activity had a certain amount of substance in terms of turnover, whether the activity was conducted in a regular manner and on sound and recognised business principles, and whether the activities were of a kind which, subject to differences of detail, are commonly made by those who seek to profit by them… In my judgment, taking the activities of Mrs Ramsay as a whole, I am satisfied that these tests are satisfied. Certain of the individual activities by themselves have little impact on the issue, but overall, taking account both the day-to-day activities, and the work undertaken by Mrs Ramsay in respect of the early refurbishment and redevelopment proposals, I conclude that the activities fall within the tests described in Lord Fisher…There remains, however, the question of degree. That is relevant to the equation because of the fact that in the context of property investment and letting the same activities are equally capable of describing a passive investment and a property investment or rental business. Although resolution of that issue will be assisted by consideration of the Lord Fisher factors, to those there must be added the degree of activity undertaken. There is nothing in the TCGAwhich can colour the extent of the activity which for the purpose of s 162 may be regarded as sufficient to constitute a business, and so this must be approached in the context of a broad meaning of that term…Applying these principles, in this case I am satisfied that the activity undertaken in respect of the Property, again taken overall, was sufficient in nature and extent to amount to a business for the purpose ofs 162, TCGA. Although each of the activities could equally well have been undertaken by someone who was a mere property investor, where the degree of activity outweighs what might normally be expected to be carried out by a mere passive investor, even a diligent and conscientious one, that will in my judgment amount to a business. I find that was the case here.”
“... the word ‘business’ has been described, by Lord Diplock in Town Investments v Department of the Environment[1978] AC 359 at [383], as "an etymological chameleon; it suits its meaning to the context in which it is found. ... The word must be construed according to its ordinary sense, having regard ... in this [context] to the purpose of the legislation.’”
“I agree with the Chief Master that a partnership alleged between 6 partners requires proof that all 6 have become partners. It was submitted in a skeleton argument prepared for Mr Dutia that if a partnership is alleged between 6 people, and the Court finds that only 5 of them were partners, there is no reason why it should not uphold the claim. As a matter of technical law I do not think this is right – an allegation that there was a partnership between A, B and C is clearly different from an allegation that there was a partnership between A and B alone, and it must follow that an allegation of a partnership between 6 parties is a different allegation from one of partnership between 5 parties.”
“The second point was that it was unfair to strike out Mr Dutia's Partnership Claim on the basis that he had not said that he had an alternative case that he was a partner with the first four Defendants alone. It is no doubt true as a general proposition that a Court will be slow to grant summary judgment against a claimant if a viable amendment can be made which would save the case, although in circumstances where Mr Dutia had been given a specific opportunity in the Further Information to address the question whether his case was still that CLSA was a partner and had failed to suggest that he had an alternative case as a fall-back, I can see that it might be different. As it is, the point does not arise as even without this point the claim stands no real prospect of success, and I therefore say no more about it.”
“7-13 It has already been explained that persons who are not in fact in partnership together may be held liable as if they were and, conversely, that those who are liable as if they were partners may not actually be partners. It follows that proof of such liability will amount to no more than prima facie evidence that a real partnership exists; if it is not even possible to prove such liability, there will necessarily be insufficient evidence to establish the existence of a partnership.” “17-02 Once a partner has brought in the asset and been credited with its agreed ‘capital’ value in the firm’s books, the asset as such will cease to be his property and will thereafter belong to the firm. Thus, in Bieber v Teathers Ltd it was sought to be argued that capital, once contributed, continued to be held in trust for the contributing partner pending its investment in a manner authorised by the partnership agreement. Predictably, this argument failed, Norris J citing the preceding sentence with approval. Earlier he had observed that the money in question ‘cannot be both partnership capital and trust money.’” were partners may not actually be partners. It follows that proof of such liability will amount to no more than prima facie evidence that a real partnership exists; if it is not even possible to prove such liability, there will necessarily be insufficient evidence to establish the existence of a partnership.”