The Nature of Partnership Property and Fixed Trusts

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4 December 2020

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6 Minutes

In Commissioner of State Revenue v Rojoda Pty Ltd, the High Court of Australia engaged with the vexed issue of the nature of a partner’s interest in partnership property. Historically courts have adopted a bewildering range of characterisations of this interest, and Rojoda represents the most developed judicial discussion of the question, one which fully engages with partnership’s place in the pantheon of equitable interests and property rights. The decision required a direct comparison between the rights of a beneficiary under a standard fixed trust and the rights of a partner. The majority judgment is extremely clear and lucidly reasoned, but raises three thorny issues of principle.

The facts were as follows. The Scolaro family’s businesses were run through two partnerships, which dissolved in 2011 and 2012 respectively. Each partnership owned a number of freehold properties in Western Australia and was sufficiently solvent to be able to pay its debts without selling those freehold properties. In 2013, while the partnership debts were still outstanding, legal title to those freehold properties was transferred from the sole name of one of the partners to a third party, Rojoda, on fixed trust. The properties were to be held on trust for the former partners in proportion to the interests they had held in the dissolved partnerships. The principal issue for the High Court of Australia was whether the declarations of trust involved a dutiable transfer for the purpose of the Duties Act 2008 (WA)—on the basis that the former partners acquired ‘new’ rights under a fixed trust—or rather simply confirmed the equitable interests the former partners had always had in the partnership assets.

The High Court ultimately ruled that duty was payable. In a joint judgment, Bell J, Kean J, Nettle J, and Edelman J ruled that partnership property was held on trust for the partners. However, because each partner had the right to force the others to sell partnership property on dissolution to satisfy partnership debts, each partner only had a right to due administration of the whole partnership fund, and no partner had a ‘vested’ interest in any given partnership asset. They would only acquire such interests once the debts of the partnership had been paid. For that reason, the equitable interests of partners were said to be categorically distinct from those of beneficiaries of fixed trusts. At the time of the 2013 declaration of trust, the debts of the partnership were outstanding. The 2013 declaration of fixed trust therefore did involve the creation of new rights: each partner acquired for the first time a ‘vested’ interest in the freehold properties. As a result, duty was payable.

His book ‘Capitalism Before Corporations’ focuses on how the rules governing partnerships, trusts, and agency evolved before the advent of general incorporation, and acted as surrogates for corporate law.

The first of the three difficulties is the assertion that partners do not have ‘vested’ interests in partnership assets because, upon dissolution, each partner can force the others to sell partnership assets to meet partnership debts. Historically real property held by partnerships was treated as personal property under the doctrine of conversion because partners owed a duty to sell partnership assets to pay any outstanding debts upon a general dissolution. However, even before the abolition of the doctrine of conversion in relation to land in England, a beneficiary could have a vested interest in a trust for sale of freehold land. The duty to sell and the doctrine of conversion might mean the beneficiary was treated as having an interest in personalty, rather than realty—but it did not prevent the interest from being vested. Indeed, if B were the sole beneficiary, and his interest were not subject to a contingency such as the exercise of a power of appointment, it would be vested by definition. The difficulty in Rojoda is that the court confuses the question of ‘what do partners have an interest in?’ with ‘is a partner’s interest vested?’ The reasoning also overlooks the fact, known to every student of English land law through the famous case of William & Glyn’s Bank v Boland, that a beneficiary of a trust for sale could assert an interest in the land held on trust, regardless of the duty to sell. Why could the partners in Rojoda not have done the same?

The second issue relates to the distinction drawn by the majority between the rights of partners and of beneficiaries of fixed trusts. It was held that while beneficiaries of fixed trusts have interests in each trust asset, partners can only claim the residue of the partnership assets after the creditors have been paid upon dissolution. Until that time, no partner has a right in any particular asset of the partnership. With respect, the distinction is hard to sustain, because beneficiaries of fixed trusts are as much residual claimants as partners. Imagine that A holds property on fixed trust for B and C, and the terms of the trust allow A to contract debts on the trust’s behalf. A has access to the trust assets, by way of a right of indemnity and lien, to meet such authorised debts, in exactly the same way that partners have rights of indemnity and lien over partnership assets. The key point is that B and C could not collapse the trust under Saunders v Vautier, without first indemnifying A and making good any loss A had incurred with authority under the trust’s terms, (see CPT Custodian Ltd v Commissioner of State Revenue

For these reasons the categorical distinction drawn by the High Court between interests under fixed trusts and the equitable rights of partners is hard to sustain. This criticism lies at the heart of Gageler J’s dissenting judgment—partners do have equitable interests in each asset owned by the partnership. Those equitable interests are encumbered by the liens of the other partners in respect of partnership debts, and so an accounting is required to factually ascertain what each partner could claim were the firm dissolved at any given time. The requirement of an accounting to determine an issue of fact, however, has nothing to do with the legal characterisation of each partner’s beneficial interest in partnership assets. On that basis, the tax issue in Rojoda should have been framed differently. The real issue was whether the partners’ agreement in 2013 to release their liens over the partnership property involved a dutiable transfer. As Gageler J noted at [98], it’s hard to see how this could be the case.

The third issue relates to the Partnership Act 1895 (WA), s 53 equivalent to the Partnership Act 1890 (UK), s 43. That section provides that the share of a retired or deceased partner of a business is a debt accruing at the date of dissolution, and represents the statutory codification of the majority judgment in Knox v Gye (1871-72) LR 5 HL 656. The status of the section is perhaps thrown into question by Rojoda, which instead states that Lord Hatherley LC’s minority judgment in Knox v Gye that a former partner retains an interest under a trust in the assets of the firm—rather than a simple debt—has “prevailed” (Rojoda at [28] to [30]). It is unfortunate that the High Court did not address the conflict.

It is suggested that the best solution here is to treat the Western Australian Partnership Act 1895, s 53, and its equivalents, as simply relating to limitation periods. Knox v Gye itself concerned whether the estate of a deceased partner could claim his share of the assets of the firm more than six years after his death. The litigation only arose because the partners had failed to include the normal clause in the partnership agreement providing that upon retirement or death a former partner’s share would become a liquidated debt. The majority in Knox, in an era before general incorporation had become widespread, was clearly wary of allowing claims of retired and deceased partners indefinitely to haunt businesses which had failed to include such a clause in the partnership deed, but had continued trading after dissolution. The passage of Sir Frederick Pollock’s A Digest of the Law of Partnership which served as the template for English Partnership Act 1890 (UK), s 43 and its equivalents, treats Knox v Gye simply as relating to limitation periods ((1884) 3^rd edn, Stevens and Sons, pp. 103-104). If a former partner’s claim was simply a debt, it would be hard to justify his statutory entitlement to a share of any profits the business makes using his former share of the assets after his retirement (Partnership Act 1890 (UK), s 42; Partnership Act 1895 (WA), s 55). Construing the ‘debt’ provision as simply relating to limitation periods thereby reconciles the statute with the reasoning in Rojoda in a way sympathetic to the history of the provision.

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How to cite this blog post (Harvard style)

Televantos, A. (2020). The Nature of Partnership Property and Fixed Trusts. Available at: https://www.law.ox.ac.uk/research-and-subject-groups/property-law/blog/2020/12/nature-partnership-property-and-fixed-trusts (Accessed [date]).