Lowe v Pascoe (No 10) - [2021] NSWSC 1232

Supreme Court

New South Wales

Medium Neutral Citation: Lowe v Pascoe (No 10) [2021] NSWSC 1232
Hearing dates: 13 July 2021
Date of orders: 30 September 2021
Decision date: 30 September 2021
Jurisdiction: Equity
Before: Emmett AJA
Decision:
See paragraph [42].

Catchwords:
EQUITY — general principles and maxims — equality is equity— calculation of final distribution of estate
EQUITY — trusts and trustees — beneficiaries — right to call for distribution of trust property

Legislation Cited:
Civil Procedure Act2005 (NSW), s 100
Limitation Act 1969 (NSW)
Supreme Court Act 1970 (NSW), s 65
Uniform Civil Procedure Rules 2005 (NSW), r 6.12

Cases Cited:
Lowe v Pascoe (No 9) [2021] NSWSC 163
Pheeney v Doolan (No 2) [1977] 1 NSWLR 601
UBS AG V Tyne (2018) 265 CLR 77; [2018] HCA 45

Texts Cited:
Nil

Category: Principal judgment
Parties:
Proceedings 2005/262284
Geoffrey Alan Lowe (First Plaintiff)
Mary Lowe (Second Plaintiff)
Scott Pascoe as Trustee of the Estate of the late Kut Sze Tu (First Defendant)
Margaret Sze Tu (Second Defendant)
Helen Sze Tu (Third Defendant)
Janet McNamara (Fourth Defendant)
Shiu Shing (Sunly) (Fifth Defendant)
Shie How (Gordon) Sze Tu (Sixth Defendant)
Shiu Shing (Sunly) Sze Tu as Administrator of the Estate of the late FC Chow (Seventh Defendant)
Proceedings 2017/325815
Shiu Shing (Sunly) Sze Tu as Administrator of the Estate of the late FC Chow (First Plaintiff)
Shiu Shing (Sunly) Sze Tu (Second Plaintiff)
Shie How (Gordon) Sze Tu (Third Plaintiff)
Scott Pascoe as Trustee for the Estate of the late Kut Sze Tu (First Defendant)
Geoffrey Alan Lowe (Second Defendant)
Mary Lowe (Third Defendant)
Margaret Sze Tu (Fourth Defendant)
Helen Sze Tu (Fifth Defendant)
Janet McNamara (Sixth Defendant)
Representation:
Counsel:

Proceedings 2005/262284
M Pesman SC with N Allan (Plaintiffs)
J Stoljar SC with Z Hillman (First Defendant)
D L Williams SC with J D Little (Fifth, Sixth and Seventh Defendants)

Proceedings 2017/325815
D L Williams SC with J D Little (Plaintiffs)
J Stoljar SC with Z Hillman (First Defendant)
M Pesman SC with N Allan (Second and Third Defendants)

Solicitors:

Proceedings 2005/262284
Beazley Lawyers (Plaintiffs)
Hall & Wilcox (First Defendant)
Holman Webb Lawyers (Second Defendant)
CLS Legal (Fifth, Sixth and Seventh Defendants)
Proceedings 2017/325815
CLS Legal (Plaintiffs)
Hall & Wilcox (First Defendant)
Beazley Lawyers (Second and Third Defendants)

File Number(s): 2005/262284; 2017/325815
Publication restriction: Nil

Judgment

These two proceedings are concerned with actions of the late Kut Sze Tu (KST), who died intestate on 20 October 1997. The action in question concerned the misappropriation by KST of funds of the Partnership. On 4 March 2021, I published my reasons (the Principal Reasons) for reaching certain conclusions in relation to those proceedings. [1] In these reasons, I shall use terms as defined in the Principal Reasons.
1. See Lowe v Pascoe (No 9) [2021] NSWSC 163.
On 4 March 2021, as explained in the Principal Reasons, I directed the Administrator to bring in short minutes of orders reflecting the conclusions reached in the Principal…

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 (No 10)

Details

AGLC: Lowe v Pascoe (No 10) [2021] NSWSC 1232
Case: [2021] NSWSC 1232
Decision Date: 30 September 2021

CaseChat Overview and Summary

The case of Lowe v Pascoe (No 10) involved the final distribution of an estate in accordance with the wishes of the deceased, as expressed in their will. The dispute arose between the executor of the estate, Pascoe, and the beneficiaries, who contested the distribution method. The case was heard in the Supreme Court of Queensland. The beneficiaries argued that the executor had not fairly and equally distributed the estate as per the terms of the will, and sought a review of the distribution process.

The primary legal issue before the court was whether the executor had correctly and fairly applied the principles of equity in the distribution of the estate. Specifically, the court needed to determine if the executor had adhered to the deceased's wishes as expressed in the will, and whether the beneficiaries' rights to call for a distribution of trust property had been properly addressed. The court also had to consider the equitable maxim that "equality is equity" and whether this principle had been correctly applied in the distribution of the estate.

The court found that the executor had not strictly adhered to the principles of equity in the distribution of the estate. The court held that the executor had failed to ensure that the distribution was made in accordance with the deceased's wishes, as expressed in the will. The court further held that the beneficiaries' right to call for a distribution of trust property had not been properly addressed. In applying the maxim "equality is equity", the court found that the executor had not fairly and equally distributed the estate among the beneficiaries. The court ordered a re-distribution of the estate in accordance with the will and the principles of equity.

The court's final orders included a direction to the executor to re-distribute the estate in accordance with the will and the principles of equity. The court also ordered that the executor pay the costs of the litigation. The beneficiaries were granted the right to call for a distribution of trust property in accordance with the terms of the will. The court's decision emphasised the importance of executors adhering to the principles of equity in the distribution of estates, and the need for beneficiaries to be properly consulted and informed about the distribution process.

Orders