"Those lobster licences are partnership property!" | Clifford v Clifford [2025] TASSC 29

Описание: An enterprise was co-owned between two parents and their child, C. The enterprise including boat repair and sub-licensing of fishing and lobster licences: [2]

The licences granted a licence-holder rights to catch a certain weight of lobster. A limited number were granted, making each licence valuable: [10] - [12]

In 1995 one parent died, leaving the surviving parent, D, and C as co-owners.

In 2017 C died leaving a will appointing C’s spouse, P, executor and bequeathing the residue of C’s estate to P. Probate of the will was granted to P.

P came to Court seeking orders that: (i) the enterprise was a partnership that dissolved on C’s death, the licences being partnership property to be dealt with on dissolution; (ii) if not, the assets were owned 50/50 tenants in common by C and D; and / or (iii) D was estopped from denying the licences are so held: [4]

D resisted saying the assets were owned jointly, so passing to D on C’s death: [5]

The Court approved of P’s evidence while finding D’s evidence included fabrications: [14]

Over time, C and D had changed the name of their co-held bank account from having C’s and D’s names, to having C’s and P’s name. P said this was for D to continue to receive the pension: [21], [23]

D gave evidence that D had shown willingness to “look after” P following C’s death but, on D’s version, this fell short of the licences passing to P: [32], [33]

P’s rights to reside on family-owned property were also in dispute: [35] - [37]

After prodding from the D, P made a stat dec that P was not going to seek further provision from C’s estate: [39], [40]

After C’s death, D stopped the licence fees being paid into the joint account and caused it to be paid to another account: [42]

In 2018 and 2019, D’s lawyer represented D accepted the licences were held as 50/50 tenants in common: [52], [55]

Later, this changed.

The Court found D’s evidence in favour of a joint tenancy was “confused and disingenuous”, showing D’s willingness to reconstruct facts based on what D learned after the dispute arose: [54]

The Court found C and D agreed that their respective entitlement to the licences would pass to their surviving spouse on death: [57]

The Court found the relationship between D and C was a partnership; a successor partnership to the one previously comprised of those two plus the other parent (before being dissolved on that other parent’s death): [61]

Each of D and C consented to the other acting as agent. Profits were shared: [62], [63]

The licences were partnership property: [72], [76]

If the licences were not partnership property, they were held as tenants in common in equal parts: [77] - [82]

If necessary (noting P did not bring and FP claim) the Court would have upheld a claim in estoppel: [83] - [85]

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