YUEN v. YUEN

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JUDGMENT

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Fuad, J.A.:

1. This is an appeal from a decision given by Deputy Judge Barnett on the 1st March this year when he ordered the Respondent in matrimonial proceedings to produce to the Petitioner, within 30 days, copies of the audited partnership accounts of the solicitors' firm of which he is a partner, covering the last five years.

2. The Notice of Appeal asks for the order to be set aside on the grounds:

"That the learned Deputy Judge erred in that he was not entitled to find affirmatively that the Respondent has a personal copy of the said accounts simply because he disbelieved the Respondent in the face of positive evidence to the contrary."

3. The background to this matter was fully reviewed in the judgments that we gave on the 8th October 1984 when the Respondent appealed against an order made by Power, J. that the Respondent should be permitted to be cross-examined on an affirmation that he had made.

4. Mr. Kotewall has urged upon us that on the evidence the Deputy Judge was not justified in finding that the Respondent had his personal copies of the partnership accounts in view of his evidence about an alleged agreement in 1973 made between the then existing partners to the effect that the accounts should be regarded as the joint property of the partnership.

5. Despite the matter being raised by the court at the outset, no attempt was made to seek to amend the Notice of Appeal and I find nothing in the grounds that would permit the point about the agreement to be taken. The learned Judge said this on the material issue before us:

"It is my finding that for many years the Respondent has received a copy of the accounts, each of which was and has remained his personal copy. That these copies may be lodged with the firm's accountant is irrelevant. The accountant, as agent or employee of the Respondent, can be compelled by him to produce them to the Respondent at any time."

6. As I understand this part of his judgment, coupled with the order that he made, he was saying that he did not believe the Respondent when he said that he had not received copies of the accounts and that in any event the accountant could be compelled by him to produce them to the Respondent and that he in turn could produce them under the court's order.

7. There is no suggestion in the Notice of Appeal that the Judge had no jurisdiction to make the order in the light of any agreement that might have been proved nor was there an averment that if the Judge did have jurisdiction to make such an order he wrongly exercised his discretion in making it.

8. As I see it, on the facts that the Judge was entitled to and did find, there is no impediment whatever to the Respondent obtaining copies of the accounts and producing them, whether he himself had retained copies or not. If there are other grounds that would militate against making an order for production, then these should have been raised in the appeal. Therefore, on the narrow issue that is before us, I find no merit in the appeal whatever, and would dismiss it.

Cons, J.A.:

9. I agree with my Lord. It was an unusual kind of agreement that the husband sought to rely on to avoid production and one that would need to be established by evidence. Otherwise the natural and reasonable assumption would be that as a partner he was entitled to a copy of the accounts.

10. The Judge found as a fact that at one time there had been that agreement. As I read his judgment, and I accept it is not worded perhaps as fully as it might be, it seems to me quite clear that he was not satisfied that that agreement had been brought into operation within the subsequent partnerships that arose in this particular firm. In my view he was perfectly entitled to make that finding on the evidence that was before him.

11. I, too, therefore would dismiss the appeal.

Kempster, J.A.:

12. The decision of the Deputy Judge was made on the footing that as a partner the husband was entitled to a copy of the accounts whether or not he had already received one. He found on the evidence that he heard that the husband had not satisfied him that there was any material agreement between the partners inhibiting his access to or use of a copy of those accounts. That finding was not the subject of the appeal. Nonetheless, Mr. Kotewall has patiently and graciously sought to argue the point in the face of possibly mildly hostile comment from the court.

13. Despite his great efforts the appeal was from the outset and on any footing destined to fail for the reasons which have been given by my Lords and to which I have myself alluded.