Lowe v Pascoe (No 12) - [2021] NSWSC 1576

Supreme Court

New South Wales

Medium Neutral Citation: Lowe v Pascoe (No 12) [2021] NSWSC 1576
Hearing dates: 28 October 2021
Date of orders: 8 December 2021
Decision date: 08 December 2021
Jurisdiction: Equity
Before: Emmett AJA
Decision:
See paragraphs [60 and [61]

Catchwords:
EQUITY – trusts and trustees – administrator’s costs – entitlement to indemnification for costs incurred in defence of claim – entitlement to remuneration – where judicial advice given under Trustee Act 1925 s 63 – where administrator actively defended claim against estate heard concurrently with inquiry in partnership proceedings – where defence unsuccessful – costs and expenses reasonably and properly incurred in performance of duties as administrator – administrator entitled to indemnification and remuneration

Legislation Cited:
Trustee Act 1925 (NSW)

Cases Cited:
Adelaide Brighton Cement Ltd [2020] FCA 928
Allsop Wilkinson v Neary [1995] 1 All ER 431
Barnes v Addy (1874) LR 9 Ch App 244
Lowe v Pascoe(No 8) [2018] NSWSC 764
Lowe v Pascoe (No 9) [2021] NSWSC 163
Lowe v Pascoe (No 10) [2021] NSWSC 1232
Lowe v Pascoe (No 11) [2021] NSWSC 1375
Pascoe as Administrator of the Estate of Kut Sze Tu [2019] NSWSC 817
Re Beddoe: Downes v Cotton [1893] 1 Chancery 447
Sze Tu v Lowe [2014] 89 NSWLR 317
Williams v Central Bank of Nigeria [2014] AC 1189

Texts Cited:
Nil

Category: Costs
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

Introduction

These two sets of proceedings arise out of the actions of the late Kut Sze Tu (KST) in misappropriating funds belonging…

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 12)

Details

AGLC: Lowe v Pascoe (No 12) [2021] NSWSC 1576
Case: [2021] NSWSC 1576
Decision Date: 08 December 2021

CaseChat Overview and Summary

The case of Lowe v Pascoe (No 12) involved an appeal against the decision of the Supreme Court of New South Wales concerning the entitlement of an administrator to indemnification for costs incurred in defending a claim against an estate. The dispute was heard concurrently with proceedings in partnership litigation, and the Court of Appeal was tasked with determining the administrator's rights to indemnification and remuneration for the costs incurred in the defence of the claim. The appellant, Lowe, was the administrator of an estate, while Pascoe was a beneficiary of the estate who brought a claim against the estate. The primary legal issue the court had to address was whether the administrator was entitled to indemnification for the costs incurred in defending the claim, as well as remuneration for the reasonable and proper expenses incurred in the performance of their duties as an administrator.

The court considered the relevant statutory provisions, including section 63 of the Trustee Act 1925, which allows for the giving of judicial advice to trustees and administrators. The court determined that the administrator, Lowe, was entitled to indemnification for the costs reasonably and properly incurred in defending the claim against the estate. The court held that the administrator's active defence of the claim was a proper exercise of their duties, and the costs incurred were reasonably and properly incurred in the performance of those duties. Furthermore, the court held that the administrator was also entitled to remuneration for those costs, as they were incurred in the course of the administrator's duties under the Trustee Act 1925.

In conclusion, the Court of Appeal found in favour of the administrator, Lowe, and held that they were entitled to indemnification and remuneration for the costs reasonably and properly incurred in defending the claim against the estate. The court's decision was based on the proper exercise of the administrator's duties and the reasonable and proper nature of the costs incurred. The final orders of the court were that Lowe was entitled to indemnification and remuneration for the costs incurred in the defence of the claim against the estate.

Orders