<&>Wellington Corpus of Spoken New Zealand English Version One <&>Copyright 1998 School of Linguistics & Applied Language Studies <&>Victoria University of Wellington <&>side one <&>2:33 now they wanted to raise finance to make this purchase and they gave shepherd the job of raising the finance <,,><&>3 shepherd er went to his solicitor <,,><&>3 and the solicitor advised him to approach a um chris stansfield and son a <&>3:00 organisation called stansfields associates <,,><&>13 okay <,,><&>3 so <.>t in order to get hold of stansfields associates he went to see a person called hill um who was operating locally <,> he was an insurance agent and he <.>oper operated an office in hamilton <,> um through which he channeled the applications to stansville stansford <,> associates so it went this way in er to hill through to <,> through to <,,> stansfield like that <,,><&>3 okay well as i said life was <.>in hill was a life insurance salesman <&>4:00 and <,> in return for putting people who wanted finance on to stansfield <,,> he got a commission um he got the commission's benefit um because they <.>ar <,> they arrange that these people take out life insurance with them so in other words the people that he put on to stansfield for their loan um stansfield would then er talk them into getting a life insurance policy with hawk hill and then get the commission through that so it was a you scratch my back and i'll scratch yours situation <,,> okay well hill of course puts shepherd on to stansfield <,> and then between the two of them stansfield confirms this offer and they've got this er contract arrangement through themselves <,,><&>3 shepherd relies on this finance thinks that he's got a contract um and they purchase the <&>5:00 farm <,,><&>3 okay <,,> well nothing happens for a bit and hill starts to get a bit concerned about things because several applications that he put on to stansfield haven't been acted on <,,><&>3 and <,> in addition to that <,> stansfield's name um appears in the mercantile gazette as a slow payer <,,> so hill starts getting a bit concerned about the person the people he's been putting on to stansfield especially as they had to pay <,> er what they called an advance procuration <&>6:00 fee <,,><&>13 so a bit of money up front please and they'd all done that um even though of course stansfield hadn't proceeded any further um with these applications <,,> shepherd um at one stage got worried about this came back to hill and hill said well um it doesn't look like anything's happening you better get finance elsewhere and um that's precisely what the farm partnership did went elsewhere for their finance and sustained a loss <,,><&>3 well of course the guts of the the um case is they want to recover this loss <,,> obvious person to recover it with is the person they've got a contract with which is stansfield but of course stansfield goes bankrupt <,> so who do you look for next but hill and this is where the <&>7:00 word object is to pass trying to make hill responsible <,> for what stansfield's done <,> and as you know the way to do that is to make <.>a to argue that hill is a partner <,> of stansfield's so that is what the case is about trying to argue there's a partnership between these two people <,,><&>7 okay <,,> if if the courts go further with this and um i want to write up the three steps so that we've got them quite clearly exactly the steps they take in these situations <,,><&>10 the first thing as i said that they will <&>8:00 ask <,,> is is hill a partner <,,><&>11 in stansfields associates <,,> or just of stansfield doesn't matter which <,,><&>5 and we'll call that a partnership in fact <,,><&>9 and by that i mean a real partnership <,,><&>3 the second question if they can't show that then the court will move on and say <,,><&>3 has hill been held out or held himself out to be a partner so hang on we'll do <&>9:00 it this way has hill <,,> been held out to be a partner <,,><&>8 now that's in terms of section seventeen which we'll look at in a minute <,,><&>6 now if you could word it doesn't mean that hill is a partner it just means that he is liable as IF he was a partner okay? <,,><&>3 if you can't manage to catch them under that maybe cos it doesn't quite fit um usually you won't have the next option but maybe you will and that is <,,> can hill be voc stopped from denying the partnership <,,><&>17 again this isn't <&>10:00 um <,> doesn't mean that hill IS a partner it would just make him liable as IF he was a partner now this situation would only occur really where the technicalities of this section don't fit um well some of the particular <.>t technicalities don't fit um <,> because of there's some little technicalities in that section which really don't <.>r um relate necessarily to a stop but we'll see when we get to the section <,,> okay now that's the way they go through them start with question one breeze through that then er and so on <,> what we have with this case word first question is hill a partner <,> that is a partner in fact <,,><&>3 <&>11:00 and you'd ask the obvious question from the <.>ques from section four <,> can he be said to have carried on business in common <,> with stansfield <,,><&>3 he has business in common with word the way it's put in section four well let's have a look at some of the things they looked at <,,><&>3 there was a printed card which was given to persons dealing with hill <,,><&>3 and this just referred to stansfield and associates <,,><&>3 and had hill's name on it as a director obviously didn't seem to know anything about company partnership law or that's what they decided to call it <,> so that's the card that was given to <&>12:00 clients now the court thought there's nothing in particular there to suggest that hill was a partner just because they called him a director doesn't mean that he was necessarily a partner <,,><&>3 but the indication there is if there's if there's a letterhead or there's a card you'd look at that carefully and see just how have they um termed this person what sort of a um title they've given them <,,> then they ask is hill sufficiently involved in the activities <,> of stansfield and associates <,,><&>6 and once they're just what the relationship is <,,> well hill operated an office for them in hamilton <,> <&>13:00 he offered the er operated the stansfields associates office in hamilton that's obviously why he went to him in the first place <,,><&>5 they decided that this wasn't inconsistent with <.>a with partnership as such it could indicate that they were partners <,> but then it wasn't inconsistent with employment or agency either so you want to see the culprit <,,><&>5 we're looking at it in terms of <.>what how you're going to put it on the balance there was probably a neutral word <,,><&>3 then they looked at the important question was there a sharing of profits <,,><&>7 and in this case there wasn't <&>14:00 any indication that hill was entitled to receive profits <,,><&>7 so there wasn't any indication that his er the benefits that hill was receiving were the increased um commissions that he was getting from the um extra um life insurance that he was um negotiating <,,><&>3 and of course those payments didn't come from stansfield and associates er they were completely unrelated to them <,,><&>3 in addition they <,> said they had no intention of being partners the court didn't consider they had any intention of being partners at all <,> okay as you saw before that wasn't necessarily favourable to them um it's just something you would put in the <,> inside <&>15:00 which indicates well maybe it's not a partnership <,,><&>3 also there wasn't any documentary evidence <,,> um <,,> tax returns weren't prepared to a partnership <,,> accounts weren't kept for a partnership <,,> no partnership agreement <,> and no documentary evidence <,,><&>5 so the word then favoured that there wasn't a partnership there wasn't a partnership in fact and this is when the court moved on to question two <,,><&>3 if you've got voc your partnership er acts with you you can probably look at section seventeen now i'll briefly read it it to you the oh here i'll read <&>16:00 it to you word a copy <,,> everyone who by words spoken or written or by conduct represents himself or who knowingly suffers himself to be represented as a partner and a particular firm is liable as a partner to anyone who has on the basis of any such representation given credit to the firm whether or not the representation has or has not been made or communicated to the persons word okay that's covered the most important bits of it but we'll pick up those bits as we go through i'm going to return to section seventeen later on um in a different when i get on to a different area and you'll see how it fits in there as well <,,><&>3 okay the first question is did hill hold himself out to be a partner <,,><&>9 did did <&>17:00 hill hold himself out to be a partner so as to induce shepherd <,,><&>7 in reliance of this fact <,,> to advance credit for the partnership that is briefly the question that you would ask <,> did hill hold himself out to be a partner so as to induce shepherd <,,> in reliance of this <,> to advance credit to the partnership voc let's have a look at what happened in this case <,,> the court decided that credit was advanced to stansfield and associates that was this advance procuration fee <,,><&>10 now there was <&>18:00 insufficient evidence to show that hill had indicated to in this case shepherd or anybody else for that matter that he was a partner <,,><&>5 so the court really didn't think that hill held himself out to be a partner <,,> it might have been a little more difficult on the next bit but the court didn't do that far um had he knowingly suffered himself to be represented as a partner is the other part of that in other words had he let stansfield tell everybody he was a partner <,,><&>3 cos you've got to watch what the other person's doing as well if you know that they're they're holding you out to be <&>19:00 a partner it's just the same as YOU saying it you'll be caught just the same <,,><&>3 well the court wouldn't really look at that it um <,> it failed on because <,,> shepherd didn't give credit on his <.>own on his <.>repre on any representation at all that wasn't the reason that that that shepherd gave the money to stansfield it was it wasn't because they thought hill was a partner <,> they would've <.>given shepherd would've given the money to stansfield whether he thought hill was a partner or not <,,> so that <.>was that was the problem that's why it wouldn't fit <,,><&>8 and because really word they decided there was no hole in the word case um there wouldn't've been <&>20:00 a successful um action under three either because in order to fit under the word rules you have to be holding yourself out um and the person has to be something on reliance of this holding out and of course they couldn't fit this either so we'll look at a case where this fits and that doesn't after <,,> okay now just briefly the requirements of section seventeen if you've got them <,,><&>3 there must be a representation in the manner contemplated by this section <,,><&>3 by the person who is suing <,,><&>3 or by somebody else and that person knowingly suffers actual hurt <,,><&>3 so it's not you can make representations or somebody else can do it and you know about it <,> the <&>21:00 person who's claiming has to have acted on a faith of this representation that has to be the reason WHY well one of the reasons why <,> they that they wanted to be um the arrangement in the first place <,,><&>3 and that credit has been made available to the firm because of this representation so in the case it will be um section that specifically relates to credit to the firm and there's certain situations where someone might be in credit word <,,><&>3 the other thing i guess to er recognise is <.>the it talks about A firm <,> um a particular firm as if the firm exists if you've got a situation like this um our situation where there wasn't actually a firm there in the first place you you might say that <&>22:00 technically you can't argue section seventeen and you really should rely on the word <,> um as was seized um the court can't necessarily be fussed about that <&>22:12