: The originating motion which is marked encl 2, in a gist, is an application by the plaintiffs for an injunction whereby the defendant is to cease carrying on business in the style of TC Chong & Co from the date of the courts order, other than to assist in its final winding up. TC Chong & Co began as a sole proprietorship with Chong Tzu Chieh (the deceased) as the sole owner. For a short stint, Lim Pey Lin worked with the deceased as his assistant. On 1 January 1993 vide a partnership agreement, the defendant was brought in as a business partner thus converting the firm into a partnership. On 2 March 1995, the partnership ceased as the deceased passed away leaving the defendant as the surviving partner.

Pursuant to s 35 of the Partnership Act 1961 (the Act), subject to any agreement between the partners every partnership is dissolved upon the death of any partner. In Khoo Yoke Wah & Ors v Lee Choo Yam Holdings Sdn Bhd & Ors [1991] 1 MLJ 414, Gunn Chit Tuan SCJ qualified this provision by considering the agreement before he construed the partnership as having been dissolved. His Lordship approved the finding of the High Court judge that there was no evidence -- either written or oral or to be inferred from the conduct of the surviving partners and the heirs of the deceased partners -- to justify the conclusion that there was an agreement between the existing partners that the partnership should continue notwithstanding the death of the partner. On that finding of fact, his Lordship then concluded that the death of the partner in the absence of any agreement between them therefore dissolved that partnership. In the current case, not only is there no provision to continue the partnership, but the executors also refused to become partners. It was not a question of the executors wanting to become partners but were rebuffed, but a total rejection of the perpetuation of the firm by the executors when disagreeing to the defendant carrying on the firm with the same name of TC Chong & Co as an ongoing concern. For reasons best known to the estate of the deceased, the latter did not take too kindly to a Chongs firm being run by a Lim resulting in this originating motion.

The plaintiff canvassed that under common law, once a partnership has disintegrated, it will be unlawful for the surviving partner to carry on the business under the firms original name. By virtue of cl 9 of the agreement signed by both of them, the surviving partner was also not entitled to receive any form of compensation out of the goodwill of the company. Why cl 9 was strenuously canvassed is beyond me but as much effort had been put into this issue, I will endeavour to come to some finding. The defendant, on the other hand, disputed the observations of the plaintiff and ventilated that the plaintiff had misinterpreted the common law principle and also cl 9. Counsel went one step further and delighted the court with the argument that even if common law prevented the use of the name of the firm by the surviving partner, the antiquity of that common law principle was vitiated by the provision of s 44 of the Act which envisaged some form of compensation for the estate of the deceased partner, in the event the business is still in subsistence.

For the purposes of our case, the partnership agreement dated 30 December 1992 and the Act are highly relevant for my consideration before granting any particular order. Their relevancy were ably put by VC George J in Tan Eng Choong v Foo Kai Yuen & Anor [1988] 1 MLJ 531 at p 532 when he said:

A partnership is a contractual relationship which subsists between

persons carrying on business in common with a view of profit. The

mutual rights and duties of the partners may be set out in a

partnership agreement or deed and if not are as provided in Pt IV of

the Partnership Act 1961.

(See also Keith Spicer Ltd v Mansell [1970] 1 All ER 462). With that remark in mind, I hav