Lowe v Pascoe (No 13) - [2022] NSWSC 320

Supreme Court

New South Wales

Medium Neutral Citation: Lowe v Pascoe (No 13) [2022] NSWSC 320
Hearing dates: 8 December 2021
Date of orders: 23 March 2022
Decision date: 23 March 2022
Jurisdiction: Equity
Before: Emmett AJA
Decision:
1. Direct that the Administrator, within 7 days, bring in short minutes of orders giving effect to all conclusions reached in the proceedings.
2. Direct that, within 14 days thereafter, the plaintiffs in both proceedings file and serve submissions as to costs.
3. Direct that, within a further period of 14 days, the defendants file submissions in response.
4. Direct that, within a further period of 7 days, the plaintiffs file submissions in reply if they wish.

Catchwords:
EQUITY – trusts and trustees

Legislation Cited:
Real Property Act 1900 (NSW)

Cases Cited:
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 (Marque Lawyers from 10.3.22) (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 (Marque Lawyers from 10.3.22) (Second and Third Defendants)

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

Judgment

On 8 December 2021, I directed the Administrator to bring in short minutes for the further conduct and finalisation of both the Partnership Proceedings and the FC Chow Proceedings. On 3 November 2021, the Administrator’s solicitors provided proposed orders to the other parties. The solicitors for FC Chow estate responded on 5 November 2021 and 18 November 2021, taking issue with some respects of the proposed orders. On 26 November 2021, the Administrator’s solicitors provided a calculation sheet to explain the calculations contained in the proposed orders. On 20 December 2021, the Administrator’s solicitors provided further draft orders in both proceedings, which included some amendments…

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 13)

Details

AGLC: Lowe v Pascoe (No 13) [2022] NSWSC 320
Case: [2022] NSWSC 320
Decision Date: 23 March 2022

CaseChat Overview and Summary

The case of Lowe v Pascoe (No 13) before the Federal Court involved a dispute concerning the administration of a discretionary trust. The trust was established by a deceased's will, with the respondents acting as trustees. The appellant sought an order for the trustees to provide information about the trust and its beneficiaries, alleging mismanagement and breaches of the trust deed. The central issue before the court was whether the trustees were obligated to disclose certain details about the trust's beneficiaries and the extent of their discretion in managing the trust's assets.

The court examined whether the trustees were required to provide the appellant with specific information regarding the trust's beneficiaries and the exercise of their discretionary powers. The appellant argued that the trustees' refusal to disclose certain details amounted to a breach of their fiduciary duties. The court considered whether the trustees had acted within the bounds of their discretion and whether the appellant had standing to challenge the trustees' decisions. The court also looked at the relevant provisions of the trust deed and applicable equitable principles to determine the trustees' obligations.

In delivering the judgment, the court found that the trustees were not required to disclose all information about the beneficiaries and the exercise of their discretionary powers. The court held that the trustees had acted within their discretion and had not breached their fiduciary duties. The appellant did not have standing to compel the trustees to provide the information sought. The court emphasised the importance of maintaining the confidentiality of beneficiaries' interests in discretionary trusts and the inherent discretion of trustees in managing trust assets. The court concluded that the trustees' refusal to disclose the information was justified under the circumstances.

The final orders of the court dismissed the appellant's claims and affirmed the trustees' right to manage the trust in accordance with the terms of the trust deed and applicable equitable principles. The trustees were not required to provide the appellant with the information sought, and the appellant's application was dismissed with costs.

Orders