<I>

  <&>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</&>
  

  <WSC#MUL005:0005:YR>
      now they wanted to raise finance to make this purchase and they
      gave shepherd the job of raising the finance <,,><&>3</&>

  <WSC#MUL005:0010:YR>
      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</&>

  <WSC#MUL005:0015:YR>
      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 <,>

  <WSC#MUL005:0020:YR>
      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</&>

  <WSC#MUL005:0025:YR>
      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

  <WSC#MUL005:0030:YR>
      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 <,,>

  <WSC#MUL005:0035:YR>
      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</&>

  <WSC#MUL005:0040:YR>
      shepherd relies on this finance thinks that he's got a contract
      um and they purchase the <&>5:00</&> farm <,,><&>3</&>

  <WSC#MUL005:0045:YR>
      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 <,,>

  <WSC#MUL005:0050:YR>
      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</&>

  <WSC#MUL005:0055:YR>
      well of course the guts of the the um case is they want to
      recover this loss <,,>

  <WSC#MUL005:0060:YR>
      obvious person to recover it with is the person they've got a
      contract with which is stansfield but of course stansfield goes
      bankrupt <,>

  <WSC#MUL005:0065:YR>
      so who do you look for next but <quietly><?>hill and this is
      where the <&>7:00</&></?> <unclear>word</unclear> <?>object is
      to pass</?></quietly> 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</&>

  <WSC#MUL005:0070:YR>
      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</&>

  <WSC#MUL005:0075:YR>
      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</&>

  <WSC#MUL005:0080:YR>
      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</&>

  <WSC#MUL005:0085:YR>
      now that's in terms of section seventeen which we'll look at in
      a minute <,,><&>6</&>

  <WSC#MUL005:0090:YR>
      now if <?>you could</?> <unclear>word</unclear> it doesn't mean
      that hill is a partner it just means that he is liable as IF he
      was a partner okay? <,,><&>3</&>

  <WSC#MUL005:0095:YR>
      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 <O>voc</O> <?>stopped</?>
      from denying the partnership <,,><&>17</&>

  <WSC#MUL005:0100:YR>
      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

  <WSC#MUL005:0105:YR>
      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 <,,>

  <WSC#MUL005:0110:YR>
      okay now that's the way they go through them start with question
      one <?>breeze</?> through that then er and so on <,>

  <WSC#MUL005:0115:YR>
      what we have with this case <unclear>word</unclear>

  <WSC#MUL005:0120:YR>
      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 <,>

  <WSC#MUL005:0125:YR>
      can he be said to have carried on business in common <,> with
      stansfield <,,><&>3</&>

  <WSC#MUL005:0130:YR>
      he has business in common with <unclear>word</unclear> the way
      it's put in section four

  <WSC#MUL005:0135:YR>
      well let's have a look at some of the things they looked at
      <,,><&>3</&>

  <WSC#MUL005:0140:YR>
      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 <,>

  <WSC#MUL005:0145:YR>
      so that's the card that was given to <&>12:00</&> clients

  <WSC#MUL005:0150:YR>
      now the court thought there's nothing in particular there to
      suggest that hill was a partner

  <WSC#MUL005:0155:YR>
      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 <,,>

  <WSC#MUL005:0160:YR>
      then they ask is hill sufficiently involved in the activities
      <,> of stansfield and associates <,,><&>6</&> and <?>once
      they're just</?> what the relationship is <,,>

  <WSC#MUL005:0165:YR>
      well hill operated an office for them in hamilton <,>
      <&>13:00</&>

  <WSC#MUL005:0170:YR>
      he offered the er operated the stansfields associates office in
      hamilton that's obviously why he went to him in the first place
      <,,><&>5</&>

  <WSC#MUL005:0175:YR>
      they decided that this wasn't inconsistent with <.>a</.> with
      partnership as such

  <WSC#MUL005:0180:YR>
      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</&>

  <WSC#MUL005:0185:YR>
      <?>we're</?> looking at it in terms of <.>what</.> how you're
      going to put it on the <?>balance</?> there was probably a
      neutral <unclear>word</unclear> <,,><&>3</&>

  <WSC#MUL005:0190:YR>
      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

  <WSC#MUL005:0195:YR>
      they were completely unrelated to them <,,><&>3</&>

  <WSC#MUL005:0200:YR>
      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 <,>

  <WSC#MUL005:0205:YR>
      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</&>

  <WSC#MUL005:0210:YR>
      also there wasn't any documentary evidence <,,> um <,,>

  <WSC#MUL005:0215:YR>
      tax returns weren't prepared to a partnership <,,>

  <WSC#MUL005:0220:YR>
      accounts weren't kept for a partnership <,,>

  <WSC#MUL005:0225:YR>
      no partnership agreement <,> and no documentary evidence
      <,,><&>5</&>

  <WSC#MUL005:0230:YR>
      so the <unclear>word</unclear> 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</&>

  <WSC#MUL005:0235:YR>
      if you've got <O>voc</O> your partnership er acts with you you
      can probably look at section seventeen

  <WSC#MUL005:0240:YR>
      now i'll briefly read it it to you the oh here i'll read
      <&>16:00</&> it to you <unclear>word</unclear> a copy <,,>
      <reads>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 <unclear>word</unclear></reads>

  <WSC#MUL005:0245:YR>
      okay that's covered the most important bits of it but we'll pick
      up those bits as we go through

  <WSC#MUL005:0250:YR>
      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</&>

  <WSC#MUL005:0255:YR>
      okay the first question is did hill hold himself out to be a
      partner <,,><&>9</&>

  <WSC#MUL005:0260:YR>
      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

  <WSC#MUL005:0265:YR>
      that is briefly the question that you would ask <,>

  <WSC#MUL005:0270:YR>
      did hill hold himself out to be a partner so as to induce
      shepherd <,,> in reliance of this <,> to advance credit to the
      partnership <O>voc</O>

  <WSC#MUL005:0275:YR>
      let's have a look at what happened in this case <,,>

  <WSC#MUL005:0280:YR>
      the court decided that credit was advanced to stansfield and
      associates that was this advance procuration fee <,,><&>10</&>

  <WSC#MUL005:0285:YR>
      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
      <,,>

  <WSC#MUL005:0290:YR>
      it might have been a little more difficult on the next bit but
      the court didn't do that far

  <WSC#MUL005:0295:YR>
      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

  <WSC#MUL005:0300:YR>
      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</&>

  <WSC#MUL005:0305:YR>
      well the court wouldn't really look at that

  <WSC#MUL005:0310:YR>
      it um <,> it failed on because <,,> shepherd didn't give credit
      on his <.>own</.> on his <.>repre</.> on any representation at
      all

  <WSC#MUL005:0315:YR>
      that wasn't the reason that that that shepherd gave the money to
      stansfield

  <WSC#MUL005:0320:YR>
      it was it wasn't because they thought hill was a partner <,>

  <WSC#MUL005:0325:YR>
      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</?> <unclear>word</unclear>
      they decided there was no hole in the <unclear>word</unclear>
      case um there wouldn't've been <&>20:00</&> a successful um
      action under three either because in order to fit under the
      <unclear>word</unclear> 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 <,,>

  <WSC#MUL005:0330:YR>
      okay now just briefly the requirements of section seventeen if
      you've got them <,,><&>3</&>

  <WSC#MUL005:0335:YR>
      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</&>

  <WSC#MUL005:0340:YR>
      so it's not you can make representations or somebody else can do
      it and you know about it <,>

  <WSC#MUL005:0345:YR>
      the <&>21:00</&> person who's claiming has to have acted on a
      faith <?>of</?> this representation

  <WSC#MUL005:0350:YR>
      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</&> <drawls>and</drawls> 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 <unclear>word</unclear> <,,><&>3</&>

  <WSC#MUL005:0355:YR>
      the other thing i guess to er recognise is <.>the</.> it talks
      about A firm <,> um a particular firm as if the firm exists

  <WSC#MUL005:0360:YR>
      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 <unclear>word</unclear>
      <,>

  <WSC#MUL005:0365:YR>
      um as was seized um the court can't necessarily be fussed about
      that <&>22:12</&>
</I>
