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Lowe v Pascoe

Lowe v Pascoe

Case [2012] NSWSC 151 29 February 2012

Appeal

Re-opening of Cases

Evidence at Fresh Trial

Overriding Purpose of Civil Procedure Act

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Geoffrey Alan Lowe & Anor v Scott Pascoe & Ors [2012] NSWSC 151
Hearing dates: 30 September 2011; 28 October 2011
Decision date: 29 February 2012
Jurisdiction: Equity Division
Before: Bergin CJ in Eq
Decision:
Fresh trial before a judge to be nominated by the Chief Justice pursuant to s 88 of the Civil Procedure Act 2005

Catchwords:
[JUDGES] - where trial judge is unable to complete hearing of proceedings - where numerous judgments - incomplete part-heard application to re-open findings in judgments and to allow re-opening of cases to call additional evidence previously allegedly unavailable to the parties - where parties do not consent to procedure to be adopted in the circumstances - application for declarations and orders to be made by another judge pursuant to process adopted in Smartec Capital Pty Ltd v Centro Properties Ltd & Anor (2011) ACSR 461 and Smartec Capital Pty Ltd v Centro (CPL) Limited & Anor [2011] NSWSC 644.

[FRESH TRIAL] - whether there should be a fresh trial under s 88 of the Civil Procedure Act 2005 - nomination by "senior judicial officer" that the proceedings be listed for trial before "some other judicial officer" of the Court.
[PROCEDURE ON FRESH TRIAL] - nature of directions in relation to evidence at fresh trial - consideration of procedure in context of history of the proceedings and the overriding purpose of the Civil Procedure Act 2005 and the Uniform Civil Procedure Rules 2005.
Legislation Cited: Civil Procedure Act 2005
Courts of Judicature Act 1964 (Malaysia)
Federal Court of Australia Act 1976 (Cth)
Supreme Court Act 1970
Supreme Court Act 1995 (Qld)
Uniform Civil Procedure Rules 2005
Cases Cited: Bagshaw v Scott [2005] FCA 104
Bolton v Bolton (1949) 2 All ER 908
Brennan v Brennan (1953) 89 CLR 129
Chua Chee Chor v Chua Kim Yong [1962] 1 WLR 1464
Coleshill v Manchester Corporation (1928) 1 KB 776
In re Application of British Reinforced Concrete Engineering Co Ltd (1929) 45 TLR 186
Lowe v Pascoe [2010] NSWSC 388
Lowe & Anor v Pascoe & Ors (Unreported, Supreme Court of New South Wales, Smart AJ, 25 June 2010)
Lowe & Anor v Pascoe & Ors (Unreported, Supreme Court of New South Wales, Smart AJ, 11 February 2011)
Lowe & Anor v Pascoe & Ors (No. 3) [2011] NSWSC 192
Mermaids Cafe and Bar Pty Ltd v Elsafty Enterprises Pty Ltd [2010] QSC 80
Smartec Capital Pty Ltd v Centro Properties Ltd & Anor (2011) ACSR 461
Smartec Capital Pty Ltd v Centro (CPL) Limited & Anor [2011] NSWSC 644
Wentworth v Rogers & Anor (No. 3) (1986) 6 NSWLR 642
Category: Principal judgment
Parties: Geoffrey Lowe and Mary Lowe (Plaintiffs)
Scott Pascoe (Administrator of the Estate of the late Kut Sze Tu) (1st Defendant)
Margaret Sze Tu (2nd Defendant)
Helen Sze Tu (3rd Defendant)
Janet McNamara (4th Defendant)
Shiu Shing Sze Tu (5th Defendant)
Shiu How Sze Tu (6th Defendant)
Stella Sze Tu (as representative…

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 151
Case: [2012] NSWSC 151
Decision Date: 29 February 2012

CaseChat Overview and Summary

The case of Lowe v Pascoe involved a complex dispute before the Supreme Court of New South Wales. The case was initially heard over multiple judgments by a trial judge who, unfortunately, was unable to complete the proceedings. Following this, an incomplete application was made to reopen findings from these judgments and to allow the cases to be reopened to call additional evidence that had previously been allegedly unavailable to the parties. Both parties did not consent to the procedure to be adopted in these circumstances. The applicants sought declarations and orders to be made by another judge, following the process set out in Smartec Capital Pty Ltd v Centro Properties Ltd & Anor and Smartec Capital Pty Ltd v Centro (CPL) Limited & Anor.

The court was required to decide whether a fresh trial should be ordered under section 88 of the Civil Procedure Act 2005, which allows for the nomination of a senior judicial officer to list the proceedings for trial before another judicial officer of the court. The court also had to consider the nature of the directions in relation to the evidence at any fresh trial, taking into account the history of the proceedings and the overriding purpose of the Civil Procedure Act 2005 and the Uniform Civil Procedure Rules 2005.

The court found that the circumstances warranted a fresh trial, given the incomplete nature of the previous judgments and the alleged unavailability of additional evidence. The court also considered that the directions for evidence at a fresh trial should be tailored to ensure fairness and efficiency, in line with the overriding purpose of the relevant legislation. By adopting the procedure as outlined in the referenced Smartec cases, the court was able to provide clarity and ensure that the case was heard fairly and justly.

The final orders of the court included the granting of the application for a fresh trial, with specific directions for the evidence to be presented, and a nomination of a senior judicial officer to oversee the proceedings. This decision provided a clear pathway for the resolution of the dispute, ensuring that the parties had an opportunity to present their cases fully and fairly.

Orders