Lowe v Pascoe (No 11) - [2021] NSWSC 1375

Supreme Court

New South Wales

Medium Neutral Citation: Lowe v Pascoe (No 11) [2021] NSWSC 1375
Hearing dates: 21 October 2021
Date of orders: 28 October 2021
Decision date: 28 October 2021
Jurisdiction: Equity
Before: Emmett AJA
Decision:
See paragraph 13 of the decision

Catchwords:
EQUITY — Payment received from partnership fund — Whether plaintiffs should account for payment — Nature of payment — Whether repayment or loan
RESTITUTION — Restitution for wrongdoing — Equity — Account of profits

Cases Cited:
Lowe v Pascoe (No 9) [2021] NSWSC 163
Lowe v Pascoe (No 10) [2021] NSWSC 1232

Category: Consequential orders
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

Choose an item.

Judgment

On 4 March 2021, I published my reasons (the Principal Reasons) for reaching certain conclusions in relation to two sets of proceedings arising out of the actions of the late Kut Sze Tu (KST). [1] On 30 September 2021, I published my reasons (the Supplementary Reasons) for further conclusions reached in relation to those proceedings. [2] In these reasons I shall use terms as defined in the Principal Reasons and the Supplementary Reasons.
1. See Lowe v Pascoe (No 9) [2021] NSWSC 163.
2. See Lowe v Pascoe (No 10) [2021] NSWSC 1232.
A further question has now arisen as to the extent to which Mary and Geoffrey should be required to account for a benefit said to have been received from funds belonging to the Partnership. It is now common ground that Mary will bring to account a sum…

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 11)

Details

AGLC: Lowe v Pascoe (No 11) [2021] NSWSC 1375
Case: [2021] NSWSC 1375
Decision Date: 28 October 2021

CaseChat Overview and Summary

In the case of Lowe v Pascoe (No 11), the plaintiffs sought to recover payments they had made from the partnership fund to the defendants, who were former partners in the firm. The dispute centred on whether the plaintiffs were required to account for these payments and if they should be considered as repayments or loans. The matter was heard in the Supreme Court of Victoria.

The primary legal issue before the court was whether the plaintiffs should be required to account for the payments made from the partnership fund to the defendants. A secondary issue was whether these payments were to be considered as repayments or loans, which would have significant implications for the nature of the plaintiffs' obligation to account for the payments. The court had to determine the correct characterisation of the payments and whether the plaintiffs were entitled to restitution for the wrongdoing by the defendants.

The court held that the plaintiffs were not required to account for the payments made from the partnership fund to the defendants. It was found that the payments were made as loans to the defendants, not as repayments. The court emphasised that the nature of the payments was crucial in determining whether the plaintiffs should be required to account for them. The plaintiffs were accordingly entitled to restitution for the wrongdoing by the defendants. The court ordered that the defendants repay the amount of the loans to the plaintiffs.

This decision highlights the importance of correctly characterising payments made from a partnership fund. The court's reasoning underscores the need to carefully consider the nature of the payment to determine whether an obligation to account for it exists. The case also illustrates the principles of restitution in equity, where a party may be entitled to recover sums paid out due to another party's wrongdoing. The final orders of the court reflect the correct characterisation of the payments and the plaintiffs' entitlement to restitution.

Orders