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Lowe v Pascoe (No 3)

Lowe v Pascoe (No 3)

Case [2011] NSWSC 192 24 March 2011

Jurisdiction

Limitation Periods

Compensatory Damages

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Lowe & Anor v Pascoe & Ors (No 3) [2011] NSWSC 192
Hearing dates: 20 December 2010, 31 January 2011, 1 February 2011, 15 - 17 March 2011
Decision date: 24 March 2011
Jurisdiction: Equity Division
Before: Smart AJ
Decision:
Objection to jurisdiction over-ruled

Catchwords: JURISDICTION - Supreme Court has power to re-open matter and evidence after two reasons for judgment (entitled "Judgment") delivered - Operation and effect of UCPR 36.11 and 36.16 - Court had not concluded consideration of controversy - Extended hearing of partnership dispute - Tracing type relief sought - First "Judgment" resolves many disputed questions of fact and partnership declaration made on delivery of second judgment - On delivery of neither were orders made giving effect to tracing type relief - Court considering what relief should be granted to give effect to judgments when application to re-open made
Dispensing power under s 14 of the Civil Procedure Act, even if available, which was doubtful, should not be exercised.
Legislation Cited: Civil Procedure Act 2005
District Court Act 1973
Federal Court Act 1976
Uniform Civil Procedure Rules 2005
Cases Cited: Arrowcrest Group Pty Ltd v Gill (1993) 46 FCR 90
AT v Commissioner of Police, NSW (No 2) [2010] NSWCA 337
Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300
Burrell v The Queen (2008) 238 CLR 218
Deputy Commissioner of Taxation v Meredith (No 2) (2008) 75 NSWLR 462
DJL v Central Authority (2000) 201 CLR 226
Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45
Fidelitas Shipping Co Ltd v V/O Exportchleb [1966] 1 QB 630
French Caledonia Travel Services Pty Ltd v Elatri unreported, Federal Court, Full Court, 22 May 1992
Johnston v Nationwide News Pty Ltd (2005) 62 NSWLR 309
Landsal Pty Ltd (in Liq) v REI Building Society (1993) 41 FCR 421
Legal Practitioner Complaints Committee v A Practitioner (1987) 46 SASR 126
MK and JA Roche Pty Ltd v Metro Edgley Pty Ltd [2004] NSWSC 780
O'Toole v Charles David Pty Ltd (No 2) (1991) 171 CLR 232
R v Burrell [2007] NSWCCA 79
Smith v NSW Bar Association (1992) 176 CLR 256
Texts Cited: Australian Oxford Law Dictionary
Category: Separate question
Parties: 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)
Shiu How (Gordon) Sze Tu (Sixth Defendant)
Stella Sze Tu (as representative of the Estate of the late Chow Fung Chun) (Seventh Defendant)
Representation: Counsel:
AA Henskens/ HR Zahra (Plaintiffs)
D Williams SC/ J Little
Solicitors:
Colin Biggers & Paisley (Plaintiffs)
Argyle Lawyers (First Defendant)
Second and Third Defendants in person
Fourth Defendant filed submitting appearance on 28 November 2008
CLS Legal (Fifth & Sixth Defendants)
Seventh Defendant filed submitting appearance on 17 April 2008

File Number(s): 2005/262284

Judgment

Introduction

This…

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 3)

Details

AGLC: Lowe v Pascoe (No 3) [2011] NSWSC 192
Case: [2011] NSWSC 192
Decision Date: 24 March 2011

CaseChat Overview and Summary

In the case of Lowe v Pascoe, the dispute involved a partnership matter that was brought before the Supreme Court. The central issue was whether the Court had the authority to reopen the matter and its evidence after two judgments had been delivered. The court was required to consider the operation and effect of the relevant rules under the Uniform Civil Procedure Rules 1999 (UCPR) and whether the court had the power to re-open the matter under section 14 of the Civil Procedure Act 2005 (Vic). The court needed to determine if it could grant tracing type relief and whether it should have made orders giving effect to tracing relief when the application to reopen was made.

The court considered that although it had the power to re-open a matter and its evidence under UCPR 36.11 and 36.16, it had not concluded its consideration of the controversy at the time the second judgment was delivered. The court had made a declaration regarding the partnership, but no orders were made giving effect to tracing type relief. The court concluded that the dispensing power under s 14 of the Civil Procedure Act, even if available, should not be exercised in this case. Therefore, the court did not grant the relief sought by the applicant.

The court ultimately determined that it would not exercise its dispensing power under s 14 of the Civil Procedure Act to grant the relief sought by the applicant. The court found that it had not concluded its consideration of the controversy when the second judgment was delivered, and no orders were made giving effect to tracing type relief. The court found that the relief sought by the applicant should be considered in the context of the overall dispute and the judgments already made. The court did not make any further orders in relation to the matter.

Orders