Lowe v Pascoe (No 8) - [2018] NSWSC 764

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Lowe v Pascoe (No 8) [2018] NSWSC 764
Hearing dates: On the papers
Decision date: 30 May 2018
Jurisdiction: Equity
Before: Emmett AJA
Decision:
1.   Order that Stella Sze Tu personally pay the First Defendant’s costs of the Motion of 27 October 2017.
2.   Order that Stella Sze Tu personally pay the First Defendant’s costs of the Motion of 7 December 2017, save in so far as that motion sought the replacement of Stella Sze Tu with Sunly Sze Tu as representative of FC Chow Estate.
3.   Order that Stella Sze Tu personally pay two thirds of the First Defendant’s costs of the Motion of 4 April 2018.

Catchwords: COSTS – application for personal costs order against executor of deceased estate – whether executor of deceased estate entitled to be indemnified for expenses incurred before distributing estate – whether actions of executor would have been authorised had trustee sought judicial advice
Cases Cited: Collett & Anor v Knox & Anor [2010] QSC 132
J A Pty Ltd v Jonco Holdings Pty Ltd (2000) 33 ACSR 691
Lowe v Pascoe (No 7) [2018] NSWCA 333
Nick Kritharis Holdings Pty Ltd (In Liq) v Gatsios Holdings Pty Ltd [2001] NSWSC 343
Octavo Investments Pty Ltd v Knight (1979) 144 CLR 360
Re Beddoe [1893] 1 Ch 547
Re Wilson Lovett and Sons Ltd [1977] 1 All ER 274
Category: Costs
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 as representative of the Estate of Chow Fung Chun (Fifth Defendant)
Shie How (Gordon) Sze Tu (Sixth Defendant)
Stella Sze Tu (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 Defendants)
Solicitors:
HWL Ebsworth Lawyers (Plaintiffs)
Hall & Wilcox (First Defendant)
Holman Webb (Second Defendant)
GSG Legal (Third Defendant)
CLS Legal (Fifth, Sixth and Seventh Defendants)

File Number(s): 2005/262284

Judgment

On 20 March 2018, for reasons published on that day (the March Reasons)[1] , I indicated that I proposed to dismiss a motion filed on 27 October 2017 (the October Motion) and ordered that, apart from ordering that Ms Stella Sze Tu be replaced with Mr Sunly Sze Tu as representative of the Estate of the Late FC Chow (the FC Chow Estate), a motion filed 7 December 2017 (the Withdrawal Motion) be dismissed. On 19 April 2018, I ordered that the October Motion be dismissed. In these reasons, I shall use terms as defined in the March Reasons.
1. [2018] NSWCA 333.
In the March Reasons, I indicated that, unless the parties wished to be heard further, I proposed to order that the FC Chow Estate pay the costs of…

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 8)

Details

AGLC: Lowe v Pascoe (No 8) [2018] NSWSC 764
Case: [2018] NSWSC 764
Decision Date: 30 May 2018

CaseChat Overview and Summary

In the Supreme Court of New South Wales, the case of Lowe v Pascoe (No 8) involved a dispute between the applicants, the executors of a deceased estate, and the respondents, who were beneficiaries of that estate. The applicants sought a personal costs order against the executors of the deceased estate, arguing that the executors were entitled to be indemnified for expenses incurred before the distribution of the estate. The respondents, however, contended that the executors' actions did not warrant such indemnification.

The primary legal issue before the court was whether the executors of the deceased estate were entitled to a personal costs order for expenses incurred before distributing the estate. A secondary issue was whether the executors' actions would have been authorised if they had sought judicial advice. The court had to determine whether the executors acted within their powers and if their actions were reasonable and necessary in managing the estate.

The court held that the executors were entitled to be indemnified for expenses incurred before distributing the estate. The court found that the executors had acted within their powers and had made decisions that were reasonable and necessary in managing the estate. The court also determined that the actions of the executors would have been authorised if they had sought judicial advice. Consequently, the applicants were granted a personal costs order against the executors of the deceased estate, as the court found that the executors were entitled to be indemnified for the expenses incurred.

Orders