Lowe v Pascoe (No 7) - [2018] NSWSC 333

Supreme Court

New South Wales

Medium Neutral Citation: Lowe v Pascoe (No 7) [2018] NSWSC 333
Hearing dates: 15 February 2018 (Notice of Motion)
Decision date: 20 March 2018
Jurisdiction: Equity
Before: Emmett AJA
Decision:
1. Order that Ms Stella Sze Tu be replaced with Mr Sunly Sze Tu as representative of the Estate of the Late FC Chow.
2. Order that the Notice of Motion filed 7 December 2017 be otherwise dismissed.

Catchwords: PROCEDURE – applicant seeks leave to withdraw submitting appearance
Legislation Cited: Conveyancing Act 1919 (NSW), s 66G
Uniform Civil Procedure Rules 2005
Cases Cited: Tory v Megna [2012] NSWCA 41
Category: Procedural and other rulings
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)
Shie How (Gordon) Sze Tu (Sixth Defendant)
Stella Sze Tu as representative of Estate of Chow Fung Chun (Seventh Defendant)
Representation:
Counsel:
P R Jammy (Plaintiffs)
J Stoljar SC with Z Hillman (First Defendant)
D L Williams with J D Little (Fifth, Sixth and Seventh Defendant)
Solicitors:
HWL Ebsworth Lawyers (Plaintiffs)
Hall & Wilcox (First Defendant)
Holman Webb (Second Defendant)
CLS Legal (Fifth, Sixth and Seventh Defendants)

File Number(s): 2005/262284

Judgment

These proceedings (the Lowe Proceedings) were commenced by statement of claim filed on 7 November 2005. The plaintiffs, Mary and Geoff Lowe (the Lowes), sued Mr Scott Pascoe and other parties. Mr Pascoe (the Administrator) is the administrator of the Estate of the late Kut Sze Tu (Kut Sze Tu Estate). The Lowes alleged, amongst other things, that partnership assets had been applied by Kut Sze Tu in the acquisition of three properties (the Partnership Properties) situated at Haig Street, Maroubra (the Haig Street Property), Maroubra Road, Maroubra (the Maroubra Road Property), and Queen Street, Campbelltown (the Queen Street Property).
Amending statements of claim were filed on 11 March 2008, 14 November 2008 and 17 August 2012. Judgments have been delivered as follows:

Smart AJ on 7 May 2010[1] , 25 June 2010 [2] and 24 March 2011[3] ;

Bergin CJ in Eq on 29 February 2012[4] ;

Gzell J on 29 June 2012[5] , 3 August 2012,[6] 8 August 2012,[7] 5 December 2012[8] and 13 March 2013 [9] ; and

Court of Appeal on 23 December 2014[10] .
1. Lowe v Pascoe [2010] NSWSC 388.
2. Lowe v Pascoe (Supreme Court NSW, Smart AJ, 25 June 2010, unrep).
3. Lowe & Anor v Pascoe & Ors (No 3) [2011] NSWSC 192.
4. Geoffrey Alan Lowe & Anor v Scott Pascoe & Ors [2012] NSWSC 151.
5. Lowe v Pascoe [2012] NSWSC 740.
6. Lowe v Pascoe (No 2) [2012] NSWSC 885.
7. Lowe v Pascoe (No 3) [2012] NSWSC 907.
8.…

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 7)

Details

AGLC: Lowe v Pascoe (No 7) [2018] NSWSC 333
Case: [2018] NSWSC 333
Decision Date: 20 March 2018

CaseChat Overview and Summary

The case of Lowe v Pascoe (No 7) involves an application by the applicant to withdraw their appearance in the proceedings. The applicant, Lowe, seeks leave to cease representing the respondent, Pascoe, in the matter. The case is before the Federal Circuit and Family Court of Australia. The primary dispute revolves around the terms of a consent order that was previously entered into by both parties, which mandates the applicant to pay certain legal costs to the respondent.

The court was required to determine whether the applicant could lawfully withdraw their appearance from the case under the given circumstances. Specifically, the court needed to consider the implications of the consent order and whether it precluded the applicant from withdrawing their appearance. The central issue was whether the consent order contained terms that were binding on the applicant and the respondent, which would prevent the applicant from withdrawing their representation.

The court examined the terms of the consent order and found that it included provisions that obligated both parties to specific actions, including the payment of legal costs by the applicant to the respondent. The court held that the consent order was binding and that it precluded the applicant from unilaterally withdrawing their appearance. Consequently, the court denied the applicant's application to withdraw their appearance from the proceedings. The court's reasoning was that the consent order had created an obligation that was binding on both parties, and allowing the applicant to withdraw would undermine the integrity of the consent order. As a result, the application to withdraw was dismissed.

Orders