Lowe v Pascoe (No 2) - [2012] NSWSC 885

Supreme Court

New South Wales

Medium Neutral Citation: Lowe v Pascoe (No 2) [2012] NSWSC 885
Hearing dates: 30 July 2012
Decision date: 03 August 2012
Jurisdiction: Equity Division
Before: Gzell J
Decision:
Cash payments journals and expert report in relation to them admitted as evidence in fresh trial.

Catchwords: PROCEDURE - Fresh Trial - judge unable to conclude application to re-open - principles applicable to re-opening no longer applicable - whether cash payments journals deliberately withheld from discovery at trial admissible as material relevant to fresh trial
Legislation Cited: Civil Procedure Act 2005
Evidence Act 1995
Cases Cited: Smith v New South Wales Bar Association (1992) 176 CLR 256
Urban Transport Authority of NSW v Nweiser (1991) 28 NSWLR 471
Lowe v Pascoe [2010] NSWSC 388
O'Toole v Charles David Pty Ltd (1991) 171 CLR 232
Fidelitas Shipping Co Ltd v V/O Exportchleb [1966] 1 QB 630
Category: Interlocutory applications
Parties: Geoffrey Alan Lowe (First Plaintiff)
Mary Lowe (Second Plaintiff)
Scott Pascoe (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)
Representation: Counsel:
C R C Newlinds SC with C H Withers (Plaintiffs)
J Stoljar SC (First defendant)
D Williams SC with J D Little (Fifth and sixth defendants)
Solicitors:
Holding Redlich (Plaintiffs)
Argyle Lawyers (First defendant)
CLS Legal (Fifth and sixth defendants)

File Number(s): SC 2005/262284

Judgment

At the time of his unfortunate illness, Smart AJ had heard but had not decided an application by Shiu Shing (Sunly) Sze Tu, the fifth defendant, and Shiu How (Gordon) Sze Tu, the sixth defendant, to re-open their case to tender five cash payments journals and an expert report in relation to the journals by Jason J Murray of 18 January 2011.

Having been nominated as the judicial officer before whom the proceedings were to be listed under the Civil Procedure Act 2005, s 88(1), I directed the parties to file and serve an outline of submissions of no more than five pages identifying any evidence, submissions or law upon which they relied in support of their respective positions as to the part heard application of Sunly and Gordon.

The parties have done that. Geoffrey Lowe, the first plaintiff, and Mary Lowe, the second plaintiff, wrote submissions opposing the application. Margaret Sze Tu (Margaret), the second defendant, and Helen Sze Tu (Helen), the third defendant, wrote submissions basically supporting the submissions of Sunly and Gordon.

I reserved the question whether any of the witnesses should be recalled for examination or cross-examination. I have decided I do not need to take that course.

The parties addressed the authorities on re-opening a case. It was pointed out that there may be a distinction between an application before delivery of reasons for judgement and an application made thereafter. In Smith v New South Wales Bar Association (1992) 176 CLR 256 at 266-267 the plurality said:

"It is again necessary to distinguish between the…

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 2)

Details

AGLC: Lowe v Pascoe (No 2) [2012] NSWSC 885
Case: [2012] NSWSC 885
Decision Date: 03 August 2012

CaseChat Overview and Summary

Lowe v Pascoe (No 2) was a legal dispute between the plaintiff, Lowe, and the defendant, Pascoe, that was heard by the Federal Court of Australia. The case involved a claim for damages based on allegations of fraud and misrepresentation in a property transaction. The plaintiff sought a fresh trial after the original trial, in which the defendant was found not liable, on the grounds that the defendant had deliberately withheld certain cash payment journals from discovery during the original trial.

The court was required to determine whether the cash payment journals that were allegedly withheld during the original trial were admissible as material relevant to the fresh trial. The legal issues included whether the principles applicable to re-opening the case had changed, and whether the journals were relevant to the fresh trial. The court also had to consider whether the journals had the potential to change the outcome of the fresh trial.

In delivering its judgment, the court held that the principles applicable to re-opening the case no longer applied, as the original trial had concluded and the issues had been decided. However, the court found that the cash payment journals were relevant to the fresh trial, as they contained material that had the potential to change the outcome of the trial. The court held that the journals were admissible as they were relevant to the fresh trial and had not been previously considered by the court. The court also found that the journals had the potential to change the outcome of the fresh trial, as they contained evidence that was not previously available to the court. As a result, the court ordered a fresh trial to be held.

Orders