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Lowe v Pascoe (No 14)

Lowe v Pascoe (No 14)

Case [2022] NSWSC 1591 22 November 2022

Costs

Breach of Contract

Unconscionable Conduct

Civil Litigation & Procedure

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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…

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 14)

Details

AGLC: Lowe v Pascoe (No 14) [2022] NSWSC 1591
Case: [2022] NSWSC 1591
Decision Date: 22 November 2022

CaseChat Overview and Summary

In the case of Lowe v Pascoe (No 14), the respondents, acting as receivers of the partnership, sought an order that the costs of an Inquiry should be paid by the appellants. The Inquiry was conducted to determine the entitlement of the partners to certain misappropriated partnership funds. The partnership involved in this dispute was formed between the parties, with the partnership funds being misappropriated by certain partners. The respondents, acting as receivers, had brought proceedings to establish the entitlement of the partners to the misappropriated funds. The central legal issue in this case was whether the usual rule that costs follow the event should be departed from in both the Inquiry proceedings and the related proceedings brought by certain partners to establish their entitlement to the misappropriated funds.

The court determined that in the Inquiry proceedings, it was appropriate to depart from the usual rule of costs following the event because no party achieved "success" in the proceedings. The purpose of the Inquiry was to determine the entitlement of the partners to the misappropriated funds, and it was not intended to resolve any disputes between the parties. Therefore, the court found that it would be unjust to impose costs on any party based on the outcome of the Inquiry. In the related proceedings, the court also departed from the usual rule, acknowledging that the respondents achieved limited success in establishing the entitlement of the partners to the misappropriated funds. The court considered it appropriate to allocate costs in a manner that reflected the limited success achieved by the respondents.

The court's reasoning was based on the unique circumstances of the case, where the proceedings were not intended to determine the overall success or failure of any party. Instead, the proceedings focused on establishing the entitlement of the partners to the misappropriated funds. The court found that departing from the usual rule of costs following the event was necessary to ensure fairness and justice in the allocation of costs. The final orders of the court were that the costs of the Inquiry should be borne by the partnership as a whole, and the costs of the related proceedings should be allocated between the parties in a manner that reflected their limited success in establishing entitlement to the misappropriated funds.

Orders