Lowe v Pascoe - [2012] NSWSC 740

Supreme Court

New South Wales

Medium Neutral Citation: Lowe v Pascoe [2012] NSWSC 740
Hearing dates: 29 June 2012
Decision date: 29 June 2012
Jurisdiction: Equity Division
Before: Gzell J
Decision:
Evidence before original judge to be evidence in fresh trial without need to recall witnesses. Additional evidence, examination and cross-examination limited to unresolved questions if allowed by new judge

Catchwords: PROCEDURE - Fresh Trial - judge unable to conclude part heard trial - Civil Procedure Act 2005, s 89 - whether any additional evidence should be limited to questions unresolved or whether parties have right to tender evidence and cross-examine generally witnesses called before original judge
Legislation Cited: Civil Procedure Act 2005
Supreme Court Act 1995 (Qld)
Cases Cited: Lowe v Pascoe [2012] NSWSC 151
Brennan v Brennan (1953) 89 CLR 129
Wentworth v Rogers (No 3) (1986) 6 NSWLR 642
Chua Chee Chor v Chua Kim Yong [1962] 1 WLR 1464
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27
Travelex Ltd v Commissioner of Taxation of the Commonwealth of Australia [2010] HCA 33; (2010) 241 CLR 510
Category: Procedural and other rulings
Parties: Geoffrey Alan Lowe (First Plaintiff)
Mary Lowe (Second Plaintiff)
Scott Pascoe (First Defendant)
Margaret Sze Tu (Second Defendant)
Helen Sze Tu (Third Defendant)
Janet McNamara (Fourth Defendant)
Shiu Shing (Sunly) Sze Tu (Fifth Defendant)
Shie How (Gordon) Sze Tu (Sixth Defendant)
Representation: Counsel:
C R C Newlinds SC with C H Withers (First and second plaintiffs)
J Stoljar SC (First defendant)
D Williams SC with J D Little (Fifth and sixth defendants)
Solicitors:
Hamilton, James Angus (Plaintiffs)
Argyle Lawyers (First defendant)
CLS Legal (Fifth and sixth defendants)

File Number(s): SC 2005/262284

EX TeMPORE Judgment

These proceedings were heard by Smart AJ. His Honour gave a number of reasons for judgment before he, unfortunately, fell ill and was unable to complete the hearing.

His Honour separated his determination of liability from his determination of quantum. He ordered the separate hearing of eight questions on liability. The only question finally determined was as to the existence of a partnership. His Honour declared the existence of a partnership between the parties and their respective interests therein

In Lowe v Pascoe [2012] NSWSC 151, Bergin CJ in Eq analysed his Honour's various reasons for judgment and concluded that five of the eight questions had been determined by his Honour. The questions that had not been determined were:

"(a) The dissolution of the partnership;

(b) the fiduciary duties, if any, owed by the late Kut Sze Tu to the plaintiffs and the breaches of any of those duties; and

(c) whether three properties identified by his Honour in his order were held on trusts alleged in the statement of claim."

The Chief Justice has nominated me as the person before whom these proceedings should be listed for trial. The Civil Procedure Act 2005, s 88 is as follows:

"(1) If a trial of proceedings has commenced…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lowe v Pascoe

Details

AGLC: Lowe v Pascoe [2012] NSWSC 740
Case: [2012] NSWSC 740
Decision Date: 29 June 2012

CaseChat Overview and Summary

The parties involved in the matter of Lowe v Pascoe were the appellant, Lowe, and the respondent, Pascoe. The dispute arose from an original trial that was unable to be concluded by the presiding judge, who was incapacitated. Lowe sought a fresh trial, while Pascoe argued that any additional evidence should be limited to questions that remained unresolved from the previous trial. The case was heard in the Supreme Court of New South Wales, which had to decide whether the parties had the right to tender evidence and cross-examine witnesses generally in the fresh trial, or whether the evidence should be restricted to unresolved issues.

The legal issues before the court included the interpretation of section 89 of the Civil Procedure Act 2005, which governs fresh trials, and whether it allowed for a full rehearing of the case or if it was limited to unresolved questions. The court had to consider the principles of fairness and efficiency in the administration of justice when deciding whether the parties should be allowed to tender new evidence and cross-examine witnesses generally or if it should be restricted to unresolved issues.

The Supreme Court of New South Wales held that the fresh trial should not be limited to unresolved questions, and the parties had the right to tender evidence and cross-examine witnesses generally. The court found that the plain language of section 89 of the Civil Procedure Act 2005 allowed for a full rehearing of the case, and that the principles of fairness and efficiency in the administration of justice supported this approach. The court held that limiting the fresh trial to unresolved questions would not provide a fair opportunity for the parties to present their cases, and would be inefficient as it would require the court to make findings on the unresolved questions, which might be challenged in a subsequent appeal.

The final orders of the court were that Lowe was entitled to a fresh trial in which the parties could tender evidence and cross-examine witnesses generally, and that the trial should proceed without any restrictions on the scope of the evidence or examination of witnesses.

Orders