Lowe v Pascoe (No 14) - [2022] NSWSC 1591

Supreme Court

New South Wales

Medium Neutral Citation: Lowe v Pascoe (No 14) [2022] NSWSC 1591
Hearing dates: On the papers (Written submissions received 14, 27, 28 April 2022; 5, 10 May 2022; 19 September 2022; 10, 11, 18 October 2022)
Date of orders: 22 November 2022
Decision date: 22 November 2022
Jurisdiction: Equity
Before: Emmett AJA
Decision:
Order that there be no order as to costs in proceedings number 2005/266284 and proceedings number 2017/325815

Catchwords:
COSTS — partnership proceedings – departure from usual rule that costs follow the event – costs of Inquiry commissioned to determine partners’ entitlement to misappropriated partnership funds – costs of related proceedings brought by certain partners to establish entitlement to misappropriated partnership funds – departure from usual rule in Inquiry proceedings on the basis that no party enjoyed “success” therein – departure from usual rule in related proceedings given limited success on establishing entitlement to misappropriated partnership funds – no general issue of principle

Legislation Cited:
Civil Procedure Act2005 (NSW)
Partnership Act1892 (NSW)
Supreme Court Act1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304
Brinsmead v Harrison (1872) LR 7 CP 547
Cummings v Lewis (1993) 41 FCR 559
Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219
Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373
Gulic v O’Neill [2011] NSWCA 361
Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748
In the Matter of the Transfer of Land Act 1890; Ex parte the Equity Trustees Executors and Agency Co Ltd and O’Halloran [1911] VLR 197
Jackson v Goldsmith (1950) 81 CLR 446
Lowe v Pascoe(No 9) [2021] NSWSC 163
Lowe v Pascoe(No 10) [2021] NSWSC 1232
Lowe v Pascoe(No 11) [2021] NSWSC 1375
Lowe v Pascoe (No 12) [2021] NSWSC 1576
Lowe v Pascoe(No 13) [2022] NSWSC 320
Maxwell v Maxwell [2022] NSWSC 1146
Nau v Kemp & Associates (2010) 77 NSWLR 687; [2010] NSWCA 164
New South Wales v Stanley [2007] NSWCA 330
Northern Territory v Sangare (2019) 265 CLR 164
Oshlack v Richmond River Council (1998) 193 CLR 72
Rogers v The Queen (1994) 181 CLR 251
Spottiswoode’s Case (1855) 6 De GM & G 345; 43 ER 1271
Sze Tu v Lowe (2014) 89 NSWLR 317; [2014] NSWCA 462

Texts Cited:
GE Dal Pont, Law of Succession (LexisNexis Butterworths, 3^rd ed, 2021)

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) Sze Tu (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 March 2022 (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 March 2022 (Second and Third Defendants)

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

Judgment

Introduction

These two proceedings, 262284 of 2005 and 325815 of 2017, concern certain conduct of the late Kut Sze Tu (“KST”), who died intestate on 20 October 1997. The conduct in question consisted of the misappropriation by KST of funds belonging to a partnership that commenced on 1 August 1975 and terminated on 1 July 1989 (“the Partnership”). The members of the Partnership were members of the family of KST. KST was married twice. The plaintiffs in the first proceedings, instituted on 7 November 2005, (“the Lowe Proceedings”) are Mary and Geoffrey Lowe, a daughter and son-in-law of KST. The plaintiffs in the second proceedings (“the FC Chow Proceedings”) are the legal personal representatives of the late FC Chow, KST’s second wife. Mary, Geoffrey, and FC Chow were, among others, members of the Partnership.
I became involved for the purpose of conducting an Inquiry to identify what (if any) moneys Mary and Geoffrey Lowe are entitled to from the estate of KST by way of an account of profits (after taking into account any just allowances), in respect of the benefits (if any) obtained by KST through his ownership, possession and/or use of his respective interests in certain Partnership Properties. [1] The Inquiry was ordered by the Court of Appeal on 23 December 2014.^[2] In the FC Chow Proceedings, the legal personal representatives of FC Chow sought similar relief on behalf of the estate of FC Chow.
1. See generally Lowe v Pascoe (No 9) [2021] NSWSC 163, [8]-[12].
2. Sze Tu v Lowe (2014) 89 NSWLR 317; [2014] NSWCA 462, [525] (Gleeson JA, Meagher and Barrett JJA agreeing).
I have previously published reasons in relation to both proceedings. Some detailed background is set out in my reasons in Lowe v Pascoe(No 9) [3] (“the Principal Reasons”), in which I set out the remaining issues in the two proceedings and indicated certain conclusions. In these reasons, I shall use terms as defined in the Principal Reasons.
3. See Lowe v Pascoe (No 9) [2021] NSWSC 163.
Under section 37(4) of the Supreme Court Act1970 (NSW), a retired judge of the Supreme Court may be appointed as an acting judge even though the retired judge has retired upon reaching the mandatory judicial retirement age. However, a retired judge may not be so appointed for any period that extends beyond the day on which the retired judge reaches the age of 78 years. My final commission as an acting judge of the Supreme Court expired at the end of 30 September 2021, when I reached the age of 78 years. Hence, my commission could not be renewed. Nevertheless, under section 37(3A) of the Supreme Court Act, a person so appointed may, despite the expiration of the period of the person’s appointment, complete or otherwise continue to deal with any matters relating to proceedings that have been heard, or partly heard, by the person before the expiration of that period. I have continued to deal with both proceedings pursuant to that provision.

Procedural Background

On 4 March 2021, following a hearing on 10, 11, 12, 13, 14, 18, and 19 August 2020, I directed the administrator of the estate of KST, Mr Pascoe, to bring in Short Minutes of Order to reflect the conclusions that I had reached, both in relation to the Lowe Proceedings and in relation to the FC Chow Proceedings. I directed that the proposed short minutes be made available to the other parties in each proceeding and that any party who objected to the orders proposed by the Administrator specify in writing the nature of the objection and the reasons for the objection. I indicated that the proceedings would be listed again in order to resolve any dispute as to the Short Minutes of Order and to make final orders. I reserved liberty to the parties to apply if there were difficulties in working out certain aspects of the conclusions that I reached. [4]
4. See Lowe v Pascoe (No 9) [2021] NSWSC 163
On 18 March 2021, the Administrator served Short Minutes of Proposed Orders in both proceedings and, on 1 April 2021, objections to the proposed orders were served on behalf of the estate of FC Chow. On 15 April 2021, the parties indicated that there might be some ambiguity in the Principal Reasons and that there might have been some misapprehension on the part of the Court as to the relevant facts. After an exchange of submissions, both proceedings were listed for further hearing on 13 July 2021 for the purpose of considering the material contained in the further submissions. In consultation with the other parties, the Administrator prepared an agenda for the hearing. It was proposed that the parties address those matters that required resolution before finalising proposed orders giving effect to the Principal Reasons. The intention was that, once I had delivered further reasons in the light of the material contained in the additional submissions and oral submissions made on 13 July 2021, the parties would confer and endeavour to agree on orders that would give effect to the final conclusions of the Court. The parties accepted that, once final orders were made, it would be necessary to conduct a further hearing to address the question of costs, including whether the Administrator was entitled to indemnity in respect of his costs of the FC Chow Proceedings. In my reasons of 30 September 2001 (“Lowe v Pascoe (No 10)”), I summarised the questions that the parties wished to ventilate at the further hearing. [5]
5. See Lowe v Pascoe (No 10) [2021] NSWSC 1232, [11].
In Lowe v Pascoe(No 10), I said that, as I apprehended the position, I had dealt with each of the matters raised by the parties following the further hearing on 13 July 2021. Accordingly, I directed that the Administrator, after conferring with the other parties, bring in Short Minutes to give effect to the conclusions that I had reached. I directed that any of the parties who wished to object to the orders proposed by the Administrator should notify the Court; the Administrator; and the other parties. I further directed that any party so objecting set out particulars of his or her objection(s). Again, I reserved liberty to the parties to apply to resolve any dispute. [6]
6. See Lowe v Pascoe (No 10) [2021] NSWSC 1232, [42].
On 28 October 2021, after a further hearing on 21 October 2021, I published reasons for a further conclusion concerning a dispute as to whether Geoffrey was indebted to the partnership (Lowe v Pascoe(No 11)). [7]
7. See Lowe v Pascoe (No 11) [2021] NSWSC 1375.
On 8 December 2021, following another hearing on 28 October 2021, I published reasons (Lowe v Pascoe(No 12)) for concluding that the Administrator has a right to indemnification from the Net Proceeds Trust and the Profits Trust in respect of his costs and expenses incurred in relation to the FC Chow Proceedings, and a right to remuneration, from the Net Profits Trust and the Profits Trust, in relation to his conduct of those proceedings. [8] I directed the Administrator to bring in Short Minutes for the further conduct and finalisation of both the Lowe Proceedings and the FC Chow Proceedings. [9]
8. See Lowe v Pascoe (No 12) [2021] NSWSC 1576, [60].
9. See Lowe v Pascoe (No 12) [2021] NSWSC 1576, [61].
On 23 March 2022, I gave further directions that the Administrator bring in Short Minutes of Orders giving effect to all conclusions reached in each set of proceedings (Lowe v Pascoe(No 13)). [10] I directed: that, within 14 days thereafter the plaintiffs in each proceeding file and serve submissions as to costs; that, within 14 days thereafter, the defendants file submissions in response; and that the plaintiffs file any submissions in reply within a further period of seven days. [11] On 30 March 2022, the Administrator brought in Short Minutes of Proposed Orders in both proceedings, in accordance with the direction that I had given on 23 March 2022 (“the Draft Orders”).
10. See Lowe v Pascoe (No 13) [2022] NSWSC 320.
11. See Lowe v Pascoe (No 13) [2022] NSWSC 320, [15].
However, on 7 April 2022, my associate received an email communication from Marque Lawyers, acting on behalf of Geoffrey and Mary, indicating that a notice of a change of solicitors had been filed on 10 March 2022. Marque Lawyers indicated that they were “reviewing the materials relevant to this matter” and that their clients requested that orders in the form of the Draft Orders not be entered for a further four weeks in order to permit them time to consider their position. No explanation was provided in the email as to the reason for the change of solicitors or why it was necessary for there to be a further four-week delay.
On 8 April 2022, my associate informed the parties that, in the absence of affidavit evidence explaining fully the circumstances surrounding the change of solicitors, there would be no variation of, or stay on, the orders made on 23 March 2022. That email seems to have been treated by Marque Lawyers as an invitation to file an affidavit, and, on 11 April 2022, an affidavit sworn on that day by Mr Geoffrey Lowe was filed without leave.
In his affidavit, Geoffrey asserted that, in July 2018, he and Mary had instructed Mr Phillip Beazley of Beazley Lawyers to act on their behalf in both proceedings, and that, in early February 2022, Mr Beazley sent draft submissions prepared by senior and junior counsel who had been representing the Lowes in respect of the Inquiry. Mr Lowe said that the submissions concerned costs issues only, but that it was his position that the parties “have not yet dealt [with] an issue in respect of the proposed distribution, namely that the manner in which the Administrator has proposed to distribute the funds improperly dilutes the interests of the partnership”.
Mr Lowe recounted a conversation he said that he had had with Mr Beazley concerning payment of a sum of $550,000 for costs (to which I shall return below) and that he gave instructions to Mr Beazley regarding the content of submissions that he wished to make on that question. Mr Lowe asserted that, in mid-February 2022, “updated copies of the submissions” were provided to him, which were not prepared in accordance with his instructions. He said that he informed Mr Beazley and counsel of his position and was subsequently informed by Mr Beazley that counsel considered that Mr Lowe had terminated their retainer as he had rejected their advice.
Mr Lowe deposed that, following that conversation with Mr Beazley, he sought new representation, and that, to that end, he spoke to Mr Nathan Maddock of Marque Lawyers on 24 February 2022. He deposed that, “due to Mr Maddock’s schedule”, their first meeting was on 9 March 2022 and Mr Maddock was subsequently appointed to act on 10 March 2022. Mr Lowe deposed that Mr Maddock had endeavoured to obtain the relevant files from Mr Beazley, but that Mr Beazley had not responded to emails sent by Marque Lawyers. Mr Lowe said that he had given instructions to Mr Maddock to commence proceedings seeking access to the files held by Mr Beazley.
In their submissions of 14 April 2022, the FC Chow Plaintiffs opposed the Lowes’ application for a delay in the entry of the Draft Orders. They contended that no cogent reason had been provided to justify prejudice that might be caused by the delay. More significantly, they contended that there was implicit in the request an expectation of an entitlement on the part of the Lowes to raise further issues for determination in circumstances where both the Court and all other parties understood that all issues, other than costs, had been decided. By submissions of 14 April 2022, the Administrator contended that the Draft Orders should be entered forthwith consistently with the overriding purpose set out in section 56(1) of the Civil Procedure Act2005 (NSW), recognising the desirability of finality in litigation. The Administrator pointed out that, throughout both proceedings, the Lowes had been represented by senior and junior counsel and experienced solicitors, and that the hearings had been lengthy and the submissions exhaustive. The Administrator said that “no stone has been left unturned by the Lowes’ legal representatives”.
On 21 April 2022, the parties were informed that the Draft Orders, as proposed by the Administrator, would be entered forthwith and those orders were then entered. The orders as entered are set out in the Appendix to these reasons. I gave the direction for the entry of those orders in circumstances where I considered that it was clear that the Lowes had had ample opportunity to raise for determination any issue outstanding in either of the proceedings. Public policy requires that there must at some point be an end to litigation. As the brocard goes, interest reipublicae ut sit finis litium. [12]
12. See, for example, Rogers v The Queen (1994) 181 CLR 251, 273 (Deane and Gaudron JJ), discussing Jackson v Goldsmith (1950) 81 CLR 446, 466 (Fullagar J); Nau v Kemp & Associates (2010) 77 NSWLR 687; [2010] NSWCA 164, [136]-[139] (Campbell JA, McColl JA and Sackville AJA agreeing), discussing Brinsmead v Harrison (1872) LR 7 CP 547, 553 (Blackburn J, Mellor, Lush JJ and Cleasby B agreeing).

Submissions as to Costs

That then left the question of the costs of both proceedings to be resolved. On 14 April 2022, the FC Chow Plaintiffs filed submissions on costs; on 27 April 2022, the Lowes filed submissions on costs; and, on 28 April 2022, the Administrator filed submissions on costs. On 4 May 2022, the FC Chow Plaintiffs filed submissions in response to the Lowes’ submissions; and, on 10 May 2022, the Lowes filed further submissions in reply.
Nevertheless, the Lowes sought the indulgence of filing further written submissions after they had obtained access to files held by Mr Beazley. It appears proceedings commenced by the Lowes against Mr Beazley came before Lindsay J for directions. Ultimately, those proceedings were settled, and, on 19 September 2022, further submissions on costs were filed on behalf of the Lowes. Not satisfied with that, the Lowes filed amended submissions on 10 October 2022. On 11 October 2022, the FC Chow Plaintiffs filed submissions in response to the Lowes’ amended submissions, and, on 18 October 2022, the Administrator filed submissions in response to the Lowes’ amended submissions.
Having considered the additional submissions filed on behalf of the Lowes, I am not at all satisfied that the great indulgence of permitting further submissions was justified. Indeed, the FC Chow Plaintiffs seek indemnity costs in relation to the submissions filed after the making of final orders on 21 April 2022. On balance, however, I do not consider that I should make any special order in relation to the further submissions.
Against that background, I shall deal separately with the questions of the costs of the Inquiry in the Lowe Proceedings and the costs of the FC Chow Proceedings. Those proceedings were dealt with together at all times, although more time was taken with the issues in the FC Chow Proceedings. In considering costs, it is desirable to distinguish between the two proceedings to some extent.

The FC Chow Proceedings

It appears that the estate of FC Chow will receive a distribution from the estate of KST of no more than approximately $279,000. It is possible that it will in fact receive less than that sum. The FC Chow Plaintiffs assert that the distribution would have been much greater but for the resistance of the Administrator and the Lowes by their failed defences in the FC Chow Proceedings. From the initiation of the FC Chow Proceedings on 27 October 2017, until, approximately, June 2021, the costs incurred by the Administrator were approximately $1,300,000. More costs have been incurred since June 2021.

The FC Chow Plaintiffs seek an order that the Lowes and the Administrator jointly and severally pay their costs of the FC Chow Proceedings. They assert that they acted reasonably in instituting the proceedings and that their success has vindicated that institution. They say that the final conclusions reached acknowledge the entitlement of the estate of FC Chow to share in the Partnership assets and that all of the defences relied upon by the Administrator and the Lowes to avoid that outcome have failed. Those conclusions, they contend, were reached despite the many defences proffered by the Administrator and the Lowes that sought to establish the contrary (viz, that the FC Chow Plaintiffs had no right to share in the assets of the Partnership).
The FC Chow Plaintiffs contend that it is appropriate, fair, and equitable that their costs be shared amongst all interested parties by being met from the funds held by the Administrator in circumstances where:

the relief granted to all Partners affirms the right of all Partners to participate in a distribution of property derived from Partnership assets;

other Partners who have not undertaken the expenses incurred in prosecuting the FC Chow Proceedings will receive the benefit of orders in their favour; and

the Court has given directions to the Administrator as to the proper administration of the trust funds contrary to views adopted priorly by the Administrator.

The Lowes, on the other hand, contend that, since the effect of the finding that there be an accounting for the benefits already received from the misappropriated funds is that the FC Chow Plaintiffs will receive “a nominal amount in comparison to the Lowes”, the Court should make an order that the FC Chow Plaintiffs pay the Lowes’ costs of the FC Chow Proceedings. The Administrator contends that, while the FC Chow Plaintiffs achieved a degree of success in establishing that each Partner is entitled to a distribution from the estate of KST, the practical outcome is that the FC Chow Plaintiffs have put themselves and the Administrator to significant cost and expense, the result of which is that the funds held in the estate of KST have been depleted and the FC Chow Plaintiffs “will receive a de minimis amount from the estate of KST”. The Administrator points to the fact that the majority of the members of the Partnership have not sought to take the benefit of the “success” of the FC Chow Plaintiffs in establishing a right for all members to seek a distribution from the estate of KST subject to their accounting for past gains. The Administrator rejects the suggestion made by the FC Chow Plaintiffs that he intended that no Partner other than Mary Lowe should receive a distribution from the estate of KST. Thus, he says, the Lowes’ claims were defended and he obtained some success in defending those claims.
The Administrator asserts that it was always his intention to try to settle the disputes in relation to the estate of KST by agreement between the parties. He submits that he made multiple settlement offers that were reasonable at a relatively early stage of the Inquiry in respect of the Lowes’ claims, which, if any were accepted, would have resulted in a larger pool of funds for distribution to the beneficiaries of KST’s estate, including the estate of FC Chow. That outcome, the Administrator asserts, would have seen the FC Chow Plaintiffs substantially better off than they will be under the outcome they have achieved through litigation.
The FC Chow Plaintiffs contend that responsibility for the depletion of the funds of KST’s estate should be seen as resting with the Administrator because of his conduct in unsuccessfully defending the FC Chow Proceedings. However, that contention ignores the obligation of the Administrator to seek to protect the estate of KST and to distribute the funds that he holds according to law. [13] Moreover, there were issues in respect of which the FC Chow Plaintiffs were not successful, including, for example, in seeking to withdraw the submitting appearance filed on behalf of the estate of FC Chow in the Lowe Proceedings, together with contesting the Administrator’s right to indemnity and asserting a right to a distribution as a partner in the absence of accounting for the benefits received by Sunly and Gordon from the estate of KST.
13. Each of these duties is undoubtedly owed by an executor, and, by parity of reasoning, also by an administrator. For the general equivalency between the duties owed by an executor and the duties owed by an administrator see generally In the Matter of the Transfer of Land Act 1890; Ex parte the Equity Trustees Executors and Agency Co Ltd and O’Halloran [1911] VLR 197, 203 (Madden CJ); GE Dal Pont, Law of Succession (LexisNexis Butterworths, 3rd ed, 2021) 425, 433-40.
Accordingly, the Administrator asserts, there is a real doubt as to whether the FC Chow Plaintiffs have been “vindicated” in any appreciable sense, since the exhaustive litigation that ensued has not put the FC Chow Plaintiffs in a better position than they would have been in, absent the litigation. The Administrator contends, therefore, that, having regard to the desirability of avoiding any further depletion of the funds held by him, the appropriate course is that each party bear his or her own costs in respect of the FC Chow Proceedings. Such an order has the benefit of ensuring that the funds remaining will not be further depleted, and recognises that, although each party has had some wins and some losses on contested points, the true position is that no party has gained through the pursuit of the protracted litigation.
The FC Chow Plaintiffs assert that the position of the Lowes and the Administrator in the FC Chow Proceedings was that no member of the Partnership other than the Lowes was entitled to a distribution from the estate of KST. They dispute the Lowes’ claim to credit for the conclusion reached in the proceedings that any Partner who seeks a distribution must account for benefits previously received by that Partner. Indeed, there was no pleading or assertion by them in the terms of the conclusion that was ultimately reached by the Court. Rather, the FC Chow Plaintiffs say, the aim of the Lowes was to take everything left in the estate of KST, an aim that bears no resemblance to the ultimate conclusions reached in both proceedings.
Further, the conclusion by the Court reached was consistent with the submissions of the FC Chow Plaintiffs that, to the extent that the estate of FC Chow must bring benefits to account, so must all Partners who wish to enforce their entitlement to a distribution from the assets held by the Administrator, including the estate of the late KST. That conclusion was not, as a matter of substance, a success for the Lowes. Instead, it seems detrimental to the Lowes, because Mary Lowe must account for the prior distribution received by her, consistent with the contentions of the FC Chow Plaintiffs. In circumstances where KST received in excess of his interest during his lifetime, his estate has no interest in the Net Proceeds Trust nor the Profits Trust. Further, the effect of that conclusion is that there are no funds available to meet the order made by the Court of Appeal that the costs in favour of the Lowes be satisfied from the estate of KST’s 20% share of the Net Proceeds Trust since, in the result, the estate of KST is entitled to no part of the Net Proceeds Trust.
The Lowes assert that the Administrator’s costs of the hearing that resulted in Lowe v Pascoe(No 12), which concerned the Administrator’s entitlement to indemnity from the funds held by him in respect of his costs of the FC Chow Proceedings, should be borne by the FC Chow Plaintiffs[14] . The FC Chow Plaintiffs resist the contention that they should pay the Administrator’s costs in relation to the dispute concerning his entitlement to indemnity.
14. Lowe v Pascoe (No 12) [2021] NSWSC 1576.
Although the Court decided various issues in separate reasons, the question of the Administrator’s indemnity did not involve a separate application, but was rather part of the substantive proceedings, and was pleaded in the FC Chow Plaintiffs’ reply to the Administrator’s defence. Accordingly, as the FC Chow Plaintiffs contend, the Court’s conclusion in respect of the question of the Administrator’s indemnity should be assessed alongside the success of the FC Chow Plaintiffs in respect of the other issues before the Court. The FC Chow Plaintiffs also point out that their challenge to the Administrator’s right of indemnification can hardly be criticised by the Lowes, who maintained a similar position from September 2015.
The FC Chow Plaintiffs reject the Administrator’s contention that the entitlement of the estate of the late FC Chow is a “de minimis amount”. They say that the drain on the funds was a product of the legal costs incurred by the Administrator and his own remuneration in respect of what they characterise as the Administrator’s “spurious defence in the FC Chow Proceedings which has been entirely unsuccessful”. The costs incurred by the Administrator from the time of the commencement of the FC Chow Proceedings until June 2021 were, again, approximately $1,300,000. They say that it would be unfair to allow a party who has spent such an amount in a failed defence to rely upon that spending to deny the success of the victor. They say that, had the Administrator accepted the FC Chow Plaintiffs’ fundamental proposition (i.e., that the estate of FC Chow had an entitlement to share in the funds held by the Administrator) as the Court has concluded, the funds available for distribution would have been far greater.
However, while the defences raised by the Administrator were ultimately unsuccessful, it is certainly not appropriate to characterise them as “spurious”. I am satisfied that they raised genuine issues. It was by no means straightforward to reach the conclusion that they should ultimately be rejected. It is quite possible that reasonable minds could differ as to the availability of the defences.
The FC Chow Plaintiffs reject any contention that the commencement of the FC Chow Proceedings resulted in unnecessary delay. They characterise their claim in the FC Chow Proceedings as “a simple one”, whereby they relied upon the orders and declarations that had been made in respect of the Partnership in the Lowe Proceedings. They say that the complexity and the time taken by the FC Chow Proceedings were the product of dealing with the positive defences of the Administrator and the Lowes, which ultimately failed.

The Lowe Proceedings and the Inquiry

The FC Chow Plaintiffs contend that the Inquiry should fairly be characterised as a quantification exercise in respect of which they were passive recipients, although that position altered marginally when the Court concluded that the estate of the late FC Chow must bring to account notional distributions to members of the family of KST. That was an issue in which the estate of FC Chow had a clear interest. In any event, they say, as the Inquiry was a quantification exercise, there was no question of “success” by either party for the purposes of a costs order. They say, therefore, that, with one exception, the parties should pay their own costs of the Inquiry, in so far as it was carried out in the Lowe Proceedings. The exception is in relation to the costs of the Administrator’s contention that the estate of KST should receive its full Partnership entitlement without accounting for the benefits received, or taken, by KST. The shortfall created by the conduct of KST is almost $6,000,000, which is far in excess of any entitlement that KST would have had as a member of the Partnership.
The FC Chow Plaintiffs complain that the Administrator did not raise the question of the entitlement of the estate of KST to participate in any distribution until November 2021, when it appeared that the only outstanding issue was costs. They say that the question came to their attention only as a result of analysing the calculations embedded in the Short Minutes of Orders proposed by the Administrator, and complain that the Administrator failed to take any earlier opportunity to raise the matter as a question that required resolution either by way of pleading or formal application. The FC Chow Plaintiffs contend that the Administrator should therefore be ordered to pay the costs of, and incidental to, the argument that resulted in Lowe v Pascoe(No 13) and that those costs should be paid by the Administrator personally without recourse to any of the funds held by the Administrator.
The Administrator contends that, having regard to the desirability of avoiding any further depletion of the funds held by him, the appropriate course is that each party bear his or her own costs in respect of the Inquiry. He contends that such an order has the benefit of ensuring that the funds remaining in the estate of KST are not further depleted by adverse costs orders and appropriately recognises that, although each party has had some measure of success and failure on contested points, the true position is that no party has ultimately gained through the pursuit of this very protracted litigation.

Settlement Discussions

The Administrator relies on a confidential affidavit of Mr Mark Petrucco, solicitor for the Administrator, sworn on 9 June 2021, in which attempts made by the Administrator to reach a settlement amongst the parties are described. The Administrator asserts that, throughout the history of both proceedings, he consistently endeavoured to engage the parties in mediated discussions to resolve all of their respective claims.
Thus, in 2013, the Administrator wrote to the Lowes to exhort a settlement of the Lowe Proceedings, and offering assistance to the Lowes and all beneficiaries to resolve the disputes amicably. In 2016, the Administrator reiterated his willingness to attend a conference of all parties to see whether any aspect of the Lowe Proceedings could be compromised. In May 2017, the Administrator’s solicitors urged that all parties pursue mediation rather than litigation. It was said that the Administrator was of the view that all of the beneficiaries and creditors of the estate of KST stood to benefit from participating in good faith in a mediation, a course that would in turn have the potential of saving significant time, cost, and stress for all involved. The Administrator wrote to the parties again in June 2017, once more urging mediation and foreshadowing an application for orders for mediation if necessary. A motion was filed and orders for mediation were made by the Court on 20 June 2017. Failing settlement at mediation on 3 August 2017, the Administrator wrote to all parties asking them to consider the parameters of a settlement that would be acceptable to them. Mr Petrucco’s affidavit outlined more detail proposals advanced by the Administrator on 17 October 2017.
On 31 January 2020, the Administrator offered to settle by paying a sum of $1,273,000 to the Lowes, which would have enabled the Administrator to distribute the remainder of the estate of KST to all beneficiaries in accordance with the Deed of Family Arrangement. In May 2020, the Administrator again proposed that the parties participate in a mediation.
On 13 April 2021, following the publication of the reasons in Lowe v Pascoe(No 9),[15] the Administrator again urged the parties to attempt to resolve such issues as could then be resolved, noting that the costs that would be associated with attempting to formulate final orders in light of the complexity of the facts and findings made in the Inquiry and FC Chow Proceedings would be immense. The suggestions of the Administrator were not taken up. Rather, the parties continued to litigate numerous matters resulting in four further reasons, namely, Lowe v Pascoe(No 10), Lowe v Pascoe(No 11), Lowe v Pascoe(No 12), and Lowe v Pascoe(No 13).
15. See Lowe v Pascoe (No 9) [2021] NSWSC 163.
The Administrator asserts that he made the point to all parties at an early stage that there was a real benefit in agreeing to a compromise rather than litigating. It was inevitable, the Administrator says, that the funds of the estate of KST would be depleted if he were required to respond to complex litigation of the sort that would be entailed by the taking of accounts. The Administrator asserts that both the Lowes and the FC Chow Plaintiffs will receive substantially less than they would have done had his attempts at settlement been successful.
The FC Chow Plaintiffs, on the other hand, assert that, while the Lowes may well have been better off, there is no basis for concluding that the same could be said of the estate of FC Chow, because none of the offers made by the Administrator acknowledged or provided for a distribution to any member of the Partnership other than the Lowes. The offers contemplated only a distribution to the Lowes, and, otherwise, distribution according to the Family Arrangement Deed, to which the estate of FC Chow was not a party, since the late FC Chow had predeceased the late KST.
In those circumstances, the FC Chow Plaintiffs contend that the acceptance of any of the offers made by the Administrator would have resulted in the estate of FC Chow receiving nothing. Therefore, they say, it is wrong for the Administrator to suggest that the offers would have put the estate of FC Chow in a better position had they been accepted. At all times, the Administrator has denied any entitlement of the estate of FC Chow to share in the funds held by him in the estate of KST.
Further, the FC Chow Plaintiffs say, even if one were to consider the interests of Sunly and Gordon, being the sons of FC Chow, as distinct from the estate of FC Chow, no attempt has been made by the Administrator to demonstrate that any of the offers would have resulted in a significant payment to either of them. The only attempt made by the Administrator was in respect of Sunly, when the Administrator’s submissions referred to alleged “significant payments” being made to Sunly if a particular offer had been accepted. No mention was made of Gordon.
This is not a case where the Administrator made an offer to the FC Chow Plaintiffs which was unreasonably rejected by them. Further, none of the Administrator’s proposals was satisfactory to the Lowes. I do not consider that the offers made by the Administrator would be a reason for declining to award costs to a successful litigant.

Additional Contentions by the Lowes

The Lowes now contend that each member of the Partnership is liable to them in respect of the legal costs of each set of proceedings, regardless of whether the member is entitled to a distribution. They assert that:

as a matter of principle, costs incurred by one partner on behalf of a partnership are payable by all partners; [16]

they acted in the interests of the Partnership and were ultimately successful in establishing that KST misappropriated funds of the Partnership to purchase the Partnership Properties and that the Partnership had an interest in the Partnership Properties; and

they agitated issues with the Administrator’s report of 8 February 2018 that ultimately increased the value of the funds available to the Partnership.

The Lowes contend that, in the light of their substantial contribution to the interests of the Partnership (as a result of the Lowe Proceedings and the subsequent Inquiry) and in the light of general partnership principles,[17] the Court should declare that all Partners are required to contribute to the legal costs that they have incurred according to their respective interests in the Partnership. They assert that it was reasonable for them to be legally represented in the Inquiry and that their contribution to the interests of the Partnership has been substantial and for the benefit of all of the Partners.

16. See Partnership Act 1892 (NSW), s 24(1)(2).

17. See generally Spottiswoode’s Case (1855) 6 De GM & G 345; 43 ER 1271, 1278-9 (Turner LJ, Knight-Bruce LJ agreeing); Cummings v Lewis (1993) 41 FCR 559, 594-5 (Cooper J, Sheppard and Neaves JJ agreeing).

In the alternative, the Lowes contend that any member of the Partnership seeking distribution from the Net Proceeds Trust or the Profits Trust should be required, as a condition of receiving any distribution, to agree to contribute, according to the respective Partnership interest of that member, to any legal costs incurred by the Lowes in respect of the Lowe Proceedings, the FC Chow Proceedings and/or the Inquiry. They also assert that their costs of the Lowe Proceedings and the FC Chow Proceedings should be paid out of the funds held by the Administrator in priority to the distribution to any other person other than in respect of the Administrator’s costs, save for the costs relating to the hearing that resulted in Lowe v Pascoe(No 11). They say that the FC Chow Plaintiffs should pay those costs to them. They also say that the FC Chow Plaintiffs should pay their costs of the FC Chow Proceedings.
In response, the FC Chow Plaintiffs maintain that the Inquiry should be characterised as a quantification exercise and that each party should therefore bear its own costs, except in relation to Lowe v Pascoe(No 13). They say that, in the circumstances, there was no success or victor for the purpose of a costs order. Even if it were appropriate to consider the Inquiry in terms of success, they contend, it could not be said that the Lowes were successful. While the Court accepted their submissions in respect of tax, the Court did not accept their submissions with respect to compound interest, just allowances, or occupation fee and their attempt to have the Court find that the Administrator’s report was flawed was rejected.
In relation to the contention by the Lowes that all members of the Partnership, or at least those who claimed an interest in the distribution, should contribute to their costs, the FC Chow Plaintiffs point to what they characterised as “a fundamental and oft repeated contention of the Lowes” that the Lowe Proceedings in general and as well as the Inquiry, in particular, were conducted solely on behalf of the Lowes and not the Partnership. They assert that that allegation formed part of the equitable defences of estoppel, laches, and also the point taken under the Limitation Act1969 (NSW) raised by the Administrator and the Lowes. They assert that that proposition was rejected by the Court, consistently with the position taken by them. They assert that they were successful in respect of their central and fundamental proposition that the declarations and orders made by the Court of Appeal created an entitlement for all members of the Partnership, not just the Lowes.
Throughout the Inquiry and the FC Chow Proceedings, the Lowes maintained the position that the Lowe Proceedings had not been brought on behalf of all members of the Partnership. Accordingly, there is no merit in their claim to be entitled to be indemnified by other members of the Partnership. No such claim was ever made in the Lowe Proceedings, and no member of the Partnership, other than the estate of FC Chow, has been afforded any opportunity to deal with such a claim.
The FC Chow Plaintiffs assert that, in contending that no other member of the Partnership was entitled to receive anything from the funds held by the Administrator, the Lowes were motivated by self-gain at the expense of the other members. Accordingly, their conduct could not fairly be characterised as asserting an interest in the proper administration of the Partnership assets. Indeed, as the FC Chow Plaintiffs assert, it was that conduct on the part of the Lowes that forced the FC Chow Plaintiffs to commence the FC Chow Proceedings. If the Lowes were acting in the interests of the Partnership, as they now assert, there would have been no need to commence the FC Chow Proceedings at all. There is no basis to find that the Lowes are entitled to be indemnified by any other member of the Partnership.
The Lowes assert that they were successful in relation to the issue that was the subject of Lowe v Pascoe(No 11), which concerned a claim by the FC Chow Plaintiffs that Geoffrey Lowe was liable to account to the Partnership for a sum of $25,000 of Partnership funds used by the Lowes to purchase their Vaucluse house. They say that Geoffrey Lowe was ultimately successful in rebutting that claim, which was a discrete issue, and that they should have their costs of that issue.
However, Lowe v Pascoe(No 11) involved two questions regarding the obligation of the Lowes to account for the benefits they have received. The first question related to whether Mary Lowe was required to account for prior distributions received by her from bank accounts holding rent received from the Partnership Properties. Whether Geoffrey Lowe had to account for the sum of $25,000 was the second question. The findings in relation to the second question were consistent with the position adopted by the Lowes. However, in relation to the first question, the Court’s findings were consistent with the contentions of the FC Chow Plaintiffs. Indeed, the Lowes conceded the point following service of written submissions by the FC Chow Plaintiffs. A fair analysis of the reasons serves to illustrate the merit of the submission that each party should bear his or her own costs of the hearing that resulted in Lowe v Pascoe(No 11).
The Lowes also seek to agitate a question concerning an order made by the Court of Appeal. On 8 December 2018, the Administrator and the Lowes agreed to settle an order for costs made by the Court of Appeal in the sum of $550,000. The order of the Court of Appeal was that the Lowes’ costs be paid from KST’s share in the distribution of the funds held by the Administrator. The Lowes maintain that, under the order made by the Court of Appeal, the costs were payable to them forthwith. However, the sum of $550,000 has not been paid, and, in the events that have occurred, there is nothing payable. The Lowes contend that, had the sum been paid immediately it was agreed, they would have been entitled to retain it.
The problem with that contention, of course, is that the final determination of the Court does not change the position but declares the position as it has always been. On that basis, the effect of the Court of Appeal’s order was that, always, if there were nothing to which KST was entitled, there would be nothing from which the costs could be met. Any variation of that order would require an application to the Court of Appeal. It is not within my power to vary the effect of the order of the Court of Appeal.

Determination

It is convenient to commence with some fundamental propositions. Pursuant to section 98(1) of the Civil Procedure Act, the Court has a broad discretion to award or withhold costs. That discretion, while ex facie untrammelled, is to be exercised judicially, including by reference to the ordinary principle that the successful party ought to receive its costs from the unsuccessful party. [18] Ordinarily, where, as here, a matter presents multiple issues for determination, the Court “does not attempt to differentiate between the issues” on which the successful party won or lost respectively. [19] However, the circumstances of any particular case, including whether the issues presented thereby are severable from one another,[20] might lead the Court to depart from this ordinary position. [21]
18. See, eg, Uniform Civil Procedure Rules 2005 (NSW) r 42.1; Oshlack v Richmond River Council (1998) 193 CLR 72, 96 (McHugh J); Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25, [25] (Kiefel CJ, Bell, Gageler, Keane and Nettle JJ).
19. See, eg, Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748, 48,136 (Toohey J); Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373, [6] (Beazley, McColl and Basten JJA).
20. See, eg, Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304, [38] (Beazley, Ipp and Basten JJA); Gulic v O’Neill [2011] NSWCA 361, [81] (Whealy JA, Campbell JA and James J agreeing).
21. See, eg, New South Wales v Stanley [2007] NSWCA 330, [18] (Hislop J, Beazley and Tobias JJA agreeing); Maxwell v Maxwell (No 2) [2022] NSWSC 1146, [9] (Ward P).
Dealing first with the costs of the Inquiry, I am of the opinion that there should be no order as to costs. The Administrator, consistent with his position throughout these proceedings, does not seek his costs of the Inquiry (nor, indeed, of the FC Chow Proceedings). In respect of the Inquiry, nor do the FC Chow Plaintiffs seek their costs, other than those arising from the discrete issues outlined above at [50]. The FC Chow Plaintiffs submit, in this regard, that the Inquiry was merely a “quantification exercise” which does not sit comfortably with the idea of one party achieving “success” in the way that usually follows the determination of an event. [22] The Lowes, contrarily, submitted that they enjoyed success in, among other things, resisting the imposition of deductions for income tax and capital gains tax on KST’s ill-gotten profits, and compelling those who wished to receive benefits from the estate of KST first to account for those already received from the estate. I am unable to accept the Lowes’ submissions in this regard.
22. See generally Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219, [15] (Ward, Emmett and Gleeson JJA).
It seems to me that, properly understood, the Inquiry is not a proceeding which naturally admits of success or failure on the part of any participant. The Inquiry itself was commissioned in order to clarify the quantum of the parties’ respective entitlements to assets held by the estate of KST following a determination by the Court of Appeal as to what those entitlements were. It is beside the point that, in the Inquiry, the Lowes “succeeded” in resisting the contention of the administrator concerning the imposition of various taxes on the amount determined to be KST’s profits. It is also not to the point that the Court imposed, as a condition on relief for Sunly and Gordon in so far as they are beneficiaries in the estate of the late FC Chow, that they account first to the estate of KST for any benefits already received before seeking a distribution of the estate’s funds to them through the estate of FC Chow. Those matters are in nature no more than a quantification exercise of the sort suggested by the Administrator. Accordingly, I decline to order any costs in relation to the Inquiry (including the costs incurred by the FC Chow Plaintiffs in respect of Lowe v Pascoe (No 13), which ought fairly to be characterised as being part of the Inquiry, notwithstanding that they may have been incurred at discrete times).
The position as regards the costs of the FC Chow Proceedings is more difficult. On the one hand, it cannot be denied that the FC Chow Plaintiffs did have some degree of success as against the Lowes and the Administrator. That success consisted in the recognition that the FC Chow Plaintiffs, along with members of the Partnership other than the Lowes, were also entitled to a distribution of the proceeds held, notionally or otherwise, by the estate of KST. On the other hand, however, the FC Chow Plaintiffs ultimately failed in their contention that the estate of FC Chow is entitled to its full Partnership share of the distribution. I find it difficult, in those circumstances, to conclude that the FC Chow Plaintiffs enjoyed overall success in the proceedings, much less that their success is such as to entitle them to an award of costs in their favour (either in general or in respect of the limited issues on which they succeeded).
It must also be said that the FC Chow Proceedings are inextricably connected with the Inquiry, in so far as each related to the misappropriations by KST of the Partnership’s funds, and to the entitlement of members of the Partnership to share in the funds remaining in the estate of KST. To my mind, the proper exercise of the Court’s discretion as to costs, notwithstanding the partial success enjoyed by the FC Chow Plaintiffs in the FC Chow Proceedings, is that there be no order as to costs in this regard.

Conclusion

Accordingly, I propose to make the following orders:

That there be no order as to costs in respect of the Inquiry commissioned in proceedings number 2005/262284; and

That there be no order as to costs in proceedings number 2017/325815.

**********

The Appendix

Lowe Proceedings 262284 of 2005

The Court notes that:
1.   The notional value of the:
(a)   Net Proceeds Trust (as that term is defined in the Court’s reasons for judgment delivered on 4 March 2021); and
(b)   distributions to be made from the Net Proceeds Trust,
is determined in accordance with the Court’s findings as set out in the Schedule to these orders.
2.   The notional value of the:
(a)   Profits Trust (as that term is defined in the Court’s reasons for judgment delivered on 4 March 2021); and
(b)   distributions to be made from the Profits Trust,
is determined in accordance with the Court’s findings as set out in the Schedule to these orders.
The Court orders that:
1.   The first defendant’s (the Administrator’s) costs of the proceeding, and the Administrator’s costs of proceedings number 325815/2017 (the FC Chow Proceedings), are to be paid out of the fund held by the Administrator.
2.   The Plaintiffs to file and serve any submissions in relation to party/party costs by 13 April 2022.
3.   The Defendants to file and serve any submissions in relation to party/party costs by 27 April 2022.
4.   The Plaintiffs to file and serve any submissions in reply in relation to party/party costs on which the Plaintiffs wish to rely by 4 May 2022.
5.   The question of party/party costs of the proceedings be determined on the papers.
6.   Subject to any further costs orders and no earlier than 28 days after the entry of these orders, the Administrator is to distribute the fund held by him to those Partners (as that term is defined in the Court’s reasons for judgment delivered on 4 March 2021) who have accounted for the value of any funds that represent funds of the Partnership, in accordance with paragraphs 5.1 and 5.2 in Part 5 of the Schedule to these orders.
7.   To the extent that there is a distribution to the Estate of the late Kut Sze Tu from the Net Proceeds Trust, the Administrator is to pay the plaintiffs (the Lowes) from or out of such distribution the amount payable to the Lowes in respect of the costs order made in New South Wales Court of Appeal proceedings numbers 2013/107940, 2013/107447 and 2013/107472 up to a maximum of $550,000.

SCHEDULE TO ORDERS

This Schedule gives effect to the Court reasons for judgment of 30 September 2021 (Lowe v Pascoe (No. 10), in particular the requirement for any participating Partner to account for the value of any benefits they have received which can be shown to represent funds of the Partnership (Lowe v Pascoe (No. 10) at [34]).
Further, the Schedule is informed by the Court’s reasons for judgment of 4 March 2021 (Lowe v Pascoe (No. 9)) the further reasons for judgment delivered on 28 October 2021 (Lowe v Pascoe (No. 11)) and the further reasons for judgment delivered on 23 March 2022 (Lowe v Pascoe (No. 13)).
In this Schedule:

references to paragraphs in Lowe v Pascoe (No. 9) are given by the letters and number “RJ 9” followed by a paragraph number in square brackets;

references to paragraphs in Lowe v Pascoe (No. 10) are given by the letters and number “RJ 10” followed by a paragraph number in square brackets;

references to paragraphs in Lowe v Pascoe (No. 11) are given by the letters and number “RJ 11”;

references to paragraphs in Lowe v Pascoe (No. 13) are given by the letters and number “RJ 13”; and

“net Fund” means the actual funds in the hands of the Administrator following payment of any further expenses and costs (including by reason of any orders for costs).

This Schedule is arranged as follows:
Part 1 – deals with the Net Proceeds Trust
Part 2 – deals with the Profits Trust
Part 3 –deals with the calculation of the notional distribution to the late FC Chow
Part 4 - deals with the calculation of the notional distribution of the late KST
Part 5 - deals with the order and quantum of distributions that should in due course be made from the net Fund to the extent that it is possible to do so (that is, to the extent that sufficient funds are available to enable the distribution).

Part 1 – NET PROCEEDS TRUST

Net Proceeds Trust – Notional value
Starting Pool (being 90% of the net proceeds of the sale of the late Kut Sze Tu’s (KST’s) interests in the Partnership Properties) (RJ 9 [55])	$2,803,137
Add
Amounts received by Gordon and Sunly Sze Tu from the proceeds of sale of the Partnership Properties (RJ 9 [206]) (See Note 1 below)	Campbelltown 10% = $166,667 each – November 2005 (60% sold for $1,000,000) Haig Street 1/3 = $360,000 each - May 2004 (1/3% sold for $360,000). Plus $115,375 each being the amount received by Administrator for KST’s 1/3 share, which was treated as a notional distribution to Gordon and Sunly. Total $1,284,084
Interest as recorded in bank statements and, where no record exists, estimated interest by reference to the periods during which there are records (RJ 9 [87])	$1,359,394 (Being a share of the actual interest earned in proportion to fund size without interest)
Subtract
Expenses as allocated by the Administrator to the Profits Trust (RJ 9 [88] and [90])	($192,903)
TOTAL	$5,253,712
Value of the fund as a percentage of the total of the Net Proceeds Trust plus the Profits Trust (See Note 2 below)	66.1%

Notes

Sunly Sze Tu and Gordon Sze Tu have already received distributions in the amount of $1,284,041 (RJ [208]). This represents 81.5% of the theoretical 30% entitlement of the Estate of the late FC Chow to the notional value of the Net Proceeds Trust (RJ 9 [208]).

The Administrator does not have and has never had sufficient funds to distribute the notional amounts of the Net Proceeds Trust and the Profits Trust.

It was held in RJ 13 (at [10] – [11]) that the Net Proceeds Trust (plus the Profits Trust) represent monies that should have been available to the Partnership but for KST’s misappropriations.

Any distributions should be notionally brought to account by the estate of KST in the same way as the benefits received by Sunly and Gordon are brought to account as notional distributions (RJ 13 [11]).

In making proportional or pro-rata distributions to the partners of so much of the net Fund as remains available, an adjustment needs to be made to reflect the fact that the Estate of the late FC Chow has already received 81.5% of the 30% entitlement of the Estate of the late FC Chow to the notional proceeds of the Net Proceeds Trust, and that the Fund is not large enough to pay 81.5% of the other partners’ entitlements to the proceeds of the Net Proceeds Trust. This adjustment is made in Part 5 of this Schedule below.

KST was ordered to pay 35% of the Lowes costs (up to an agreed maximum of $550,000) from his 20% share of the Net Proceeds Trust. However KST’s shares of the Net Proceeds Trust is zero given his obligation to account as set out in paragraph 3 above.

Part 2 – PROFITS TRUST

Notional value of Profits Trust
Starting Pool (being 90% the profits, if any, derived by the late Kut Sze Tu (KST) from the Partnership Properties after just allowances, if any, since the date of their acquisition) (RJ 9 [55])	$2,300,849
Add
Interest as recorded in bank statements and, where no record exists, estimated interest by reference to the periods during which there are records (RJ 9 [87])	$100,171
One third of 90% of the occupation fee payable in respect of Haig Street (RJ 9 [99])	$56,376
Interest as recorded in bank statements and, where no record exists, estimated interest by reference to the periods during which there are records (RJ 9 [87])	$696,783 (Being a share of the actual interest earned in proportion to fund size without interest)
Subtract
Expenses as allocated by the Administrator to the Profits Trust (RJ 9 [88] and [90])	($275,760)
Just allowances for maintaining the Partnership Properties and seeking out investment opportunities in the amount of $178,731 (RJ 9 [111] and [112])	($185,528)
TOTAL	$2,692,891
Value of the fund as a percentage of the total of the Net Proceeds Trust plus the Profits Trust (See Note 4 below)	33.9%

Notes

Sunly Sze Tu and Gordon Sze Tu have received distributions in the amount of $644,611 (RJ 9 [208]). This represents 79.8% of the theoretical 30% entitlement of the Estate of the late FC Chow to the notional value of the Profits Trust (RJ 9 [208]).

Janet McNamara has received distributions in the amount of $80,000 (RJ 10 [33]). This represents 30% of the theoretical 10% entitlement of Ms McNamara to the notional value of the Profits Trust.

Mary Lowe has received a distribution in the amount of $80,000 (RJ 11 [2]). This represents 30% of the theoretical 10% entitlement of Ms McNamara to the notional value of the Profits Trust.

It was held in RJ 13 (at [10] – [11]) that the Net Proceeds Trust (plus the Profits Trust) represent monies that should have been available to the Partnership but for KST’s misappropriations.

In making proportional or pro-rata distributions to the partners of so much of the net Fund as remains available, adjustments need to be made to reflect the fact that the Estate of the late FC Chow, Janet McNamara and Mary Lowe have received part of their entitlement to the notional proceeds of the Profits Trust, and that the Fund may not be large enough to pay the same proportion to the other partners’ entitlements to the proceeds of the Profits Trust. These adjustments are made in Part 5 of this Schedule below.

PART 3: CALCULATION OF NOTIONAL DISTRIBUTION TO THE LATE FC CHOW

Sums notionally received by the late FC Chow from the Profits Trust (RJ [207])	Gordon $507,019 + Sunly $137,592 = $644,611 Source: RJ 10 [207]
Add
Amounts notionally received by Gordon and Sunly Sze Tu from the Net Proceeds Trust (RJ [206])	Campbelltown 10% = $166,667 each – November 2005 (60% sold for $1,000,000) Haig Street 1/3 = $360,000 each - May 2004 (1/3% sold for $360,000). Plus $115,375 each being the amount received by Administrator for KST’s 1/3 share, which was treated as a notional distribution to Gordon and Sunly. Notional Proceeds of Sale = $1,284,084
TOTAL	$1,928,695 ($644,611 + $1,284,084)

PART 4: Amount to be notionally accounted for by KST

Notionally, the total value of the Net Proceeds Trust and the Profits Trust, is $5,253,712 + $2,692,891 = $7,946,603

Monies available to the Partnership as at 30 March 2022 = $2,059,462

The amount to be notionally accounted for by KST in accordance with RJ 13 at [10] – [11] is therefore: $7,946,603 – $2,059,462 = $5,887,141

Part 5 – THE FLOW OF DISTRIBUTIONS TO BE PAID OUT OF SUCH FUNDS AS ARE AVAILABLE AS AT 30 MARCH 2022

There are insufficient funds available to pay each Partner an amount equivalent to the notional distribution they would have received if the whole of the funds the subject of the notional Profits Trust and Net Proceeds Trust were available. Accordingly, such funds as are available are to be distributed in the following order up until the point that the available funds are exhausted.

5.1 Order of payments out (if available) from the Net Proceeds Trust (comprising 66.1% of funds available for distribution)

The first available $1,284,084 out of the fund is to be distributed as to 1/3^rd each to Geoff Lowe, Mary Lowe and Janet McNamara to equalise with FC Chow estate who has received 81.5% of her entitlement.

If any funds are available thereafter, those funds, up to an amount of $584,059, is to be distributed as to 1/6th Janet McNamara, Mary Lowe and Geoff Lowe, and ½ to FC Chow estate.

If there are any funds remaining, the residual is to be retained by KST Estate.

5.2 Order of payments out (if available) from the Profits Trust (comprising 33.9% of funds available for distribution)

The first available $80,000 out of the fund is to be distributed to Geoff Lowe, to equalise with Mary Lowe and Janet McNamara.

If any funds are available thereafter, those funds, up to an amount of $404,611, is to be distributed as to 1/3rd each to Geoff Lowe, Mary Lowe and Janet McNamara. At that point the % return to all claiming partners would equal 79.8%.

If any funds are available thereafter, those funds, up to an amount of $326,513, is to be distributed as to 1/6th to Janet McNamara, Mary Lowe and Geoff Lowe, and 1/2 to FC Chow Estate.

If there are any funds remaining, the residual is to be retained by KST Estate.

FC Chow Proceedings 325815 of 2017

The Court notes that:
1.   The notional value of the:
(a)   Net Proceeds Trust (as that term is defined in the Court’s reasons for judgment delivered on 4 March 2021); and
(b)   distributions to be made from the Net Proceeds Trust,
is determined in accordance with the Court’s findings as set out in the Schedule to these orders.
2.   The notional value of the:
(a)   Profits Trust (as that term is defined in the Court’s reasons for judgment delivered on 4 March 2021); and
(b)   distributions to be made from the Profits Trust,
is determined in accordance with the Court’s findings as set out in the Schedule to these orders.
The Court orders that:
1.   The first defendant’s (the Administrator’s) costs of the proceeding, and the Administrator’s costs of proceedings number 2005/262284, are to be paid out of the fund held by the Administrator.
2.   The Plaintiffs to file and serve any submissions in relation to party/party costs by 13 April 2022.
3.   The Defendants to file and serve any submissions in relation to party/party costs by 27 April 2022.
4.   The Plaintiffs to file and serve any submissions in reply in relation to party/party costs on which the Plaintiffs wish to rely by 4 May 2022.
5.   The question of party/party costs of the proceedings be determined on the papers.
6.   Subject to any further costs orders and no earlier than 28 days after the entry of these orders, the Administrator is to distribute the fund held by him to those Partners (as that term is defined in the Court’s reasons for judgment delivered on 4 March 2021) who have accounted for the value of any funds that represent funds of the Partnership, in accordance with paragraphs 5.1 and 5.2 in Part 5 of the Schedule to these orders.
7.   To the extent that there is a distribution to the Estate of the late Kut Sze Tu from the Net Proceeds Trust, the Administrator is to pay the plaintiffs in proceedings 2005/262284 (the Lowes) from or out of such distribution the amount payable to the Lowes in respect of the costs order made in New South Wales Court of Appeal proceedings numbers 2013/107940, 2013/107447 and 2013/107472 up to a maximum of $550,000.

SCHEDULE TO ORDERS

This Schedule gives effect to the Court reasons for judgment of 30 September 2021 (Lowe v Pascoe (No. 10), in particular the requirement for any participating Partner to account for the value of any benefits they have received which can be shown to represent funds of the Partnership (Lowe v Pascoe (No. 10) at [34]).

Further, the Schedule is informed by the Court’s reasons for judgment of 4 March 2021 (Lowe v Pascoe (No. 9)) the further reasons for judgment delivered on 28 October 2021 (Lowe v Pascoe (No. 11)) and the further reasons for judgment delivered on 23 March 2022 (Lowe v Pascoe (No. 13)).

In this Schedule:

references to paragraphs in Lowe v Pascoe (No. 9) are given by the letters and number “RJ 9” followed by a paragraph number in square brackets;

references to paragraphs in Lowe v Pascoe (No. 10) are given by the letters and number “RJ 10” followed by a paragraph number in square brackets;

references to paragraphs in Lowe v Pascoe (No. 11) are given by the letters and number “RJ 11”;

references to paragraphs in Lowe v Pascoe (No. 13) are given by the letters and number “RJ 13”; and

“net Fund” means the actual funds in the hands of the Administrator following payment of any further expenses and costs (including by reason of any orders for costs).

This Schedule is arranged as follows:

Part 1 – deals with the Net Proceeds Trust

Part 2 – deals with the Profits Trust

Part 3 –deals with the calculation of the notional distribution to the late FC Chow

Part 4 - deals with the calculation of the notional distribution of the late KST

Part 5 - deals with the order and quantum of distributions that should in due course be made from the net Fund to the extent that it is possible to do so (that is, to the extent that sufficient funds are available to enable the distribution).

Part 1 – NET PROCEEDS TRUST

Net Proceeds Trust – Notional value
Starting Pool (being 90% of the net proceeds of the sale of the late Kut Sze Tu’s (KST’s) interests in the Partnership Properties) (RJ 9 [55])	$2,803,137
Add
Amounts received by Gordon and Sunly Sze Tu from the proceeds of sale of the Partnership Properties (RJ 9 [206]) (See Note 1 below)	Campbelltown 10% = $166,667 each – November 2005 (60% sold for $1,000,000) Haig Street 1/3 = $360,000 each - May 2004 (1/3% sold for $360,000). Plus $115,375 each being the amount received by Administrator for KST’s 1/3 share, which was treated as a notional distribution to Gordon and Sunly. Total $1,284,084
Interest as recorded in bank statements and, where no record exists, estimated interest by reference to the periods during which there are records (RJ 9 [87])	$1,359,394 (Being a share of the actual interest earned in proportion to fund size without interest)
Subtract
Expenses as allocated by the Administrator to the Profits Trust (RJ 9 [88] and [90])	($192,903)
TOTAL	$5,253,712
Value of the fund as a percentage of the total of the Net Proceeds Trust plus the Profits Trust (See Note 2 below)	66.1%

Notes

The Administrator does not have and has never had sufficient funds to distribute the notional amounts of the Net Proceeds Trust and the Profits Trust.

It was held in RJ 13 (at [10] – [11]) that the Net Proceeds Trust (plus the Profits Trust) represent monies that should have been available to the Partnership but for KST’s misappropriations.

Part 2 – PROFITS TRUST

Notional value of Profits Trust
Starting Pool (being 90% the profits, if any, derived by the late Kut Sze Tu (KST) from the Partnership Properties after just allowances, if any, since the date of their acquisition) (RJ 9 [55])	$2,300,849
Add
Interest as recorded in bank statements and, where no record exists, estimated interest by reference to the periods during which there are records (RJ 9 [87])	$100,171
One third of 90% of the occupation fee payable in respect of Haig Street (RJ 9 [99])	$56,376
Interest as recorded in bank statements and, where no record exists, estimated interest by reference to the periods during which there are records (RJ 9 [87])	$696,783 (Being a share of the actual interest earned in proportion to fund size without interest)
Subtract
Expenses as allocated by the Administrator to the Profits Trust (RJ 9 [88] and [90])	($275,760)
Just allowances for maintaining the Partnership Properties and seeking out investment opportunities in the amount of $178,731 (RJ 9 [111] and [112])	($185,528)
TOTAL	$2,692,891
Value of the fund as a percentage of the total of the Net Proceeds Trust plus the Profits Trust (See Note 4 below)	33.9%

Notes

Janet McNamara has received distributions in the amount of $80,000 (RJ 10 [33]). This represents 30% of the theoretical 10% entitlement of Ms McNamara to the notional value of the Profits Trust.

Mary Lowe has received a distribution in the amount of $80,000 (RJ 11 [2]). This represents 30% of the theoretical 10% entitlement of Ms McNamara to the notional value of the Profits Trust.

It was held in RJ 13 (at [10] – [11]) that the Net Proceeds Trust (plus the Profits Trust) represent monies that should have been available to the Partnership but for KST’s misappropriations.

PART 3: CALCULATION OF NOTIONAL DISTRIBUTION TO THE LATE FC CHOW

Sums notionally received by the late FC Chow from the Profits Trust (RJ [207])	Gordon $507,019 + Sunly $137,592 = $644,611 Source: RJ 10 [207]
Add
Amounts notionally received by Gordon and Sunly Sze Tu from the Net Proceeds Trust (RJ [206])	Campbelltown 10% = $166,667 each – November 2005 (60% sold for $1,000,000) Haig Street 1/3 = $360,000 each - May 2004 (1/3% sold for $360,000). Plus $115,375 each being the amount received by Administrator for KST’s 1/3 share, which was treated as a notional distribution to Gordon and Sunly. Notional Proceeds of Sale = $1,284,084
TOTAL	$1,928,695 ($644,611 + $1,284,084)