Lowe v Pascoe (No 9)

In Lowe v Pascoe (No 9), the case involved an application by the administrator of the estate of KST, seeking various declarations and orders in relation to the property and business dealings of the deceased. The legal issues that arose from this application included the application of Anshun estoppel, res judicata and issue estoppel, as well as the defences of laches, acquiescence, and limitation periods in equity. The court also needed to determine the appropriate calculation of accounts of profits where exactitude was impossible, and the nature of the benefit obtained by the occupation of premises acquired with misappropriated funds.

The court considered that the principles of Anshun estoppel applied, as the submitting appearance in the earlier proceeding was effectively invited by the beneficiaries of that proceeding. The court held that the failure to object to the administrator's appearance in the earlier proceeding rendered the subsequent proceedings an abuse of process. Regarding res judicata and issue estoppel, the court found that the earlier proceeding concerning the errant fiduciary did not result in a grant of relief to the claimant in the new proceeding. However, the findings about the fiduciary's knowledge and misappropriations were relevant, and the ambit of matters estopped from being denied in the new proceedings was established. The court also held that laches and acquiescence did not apply in the circumstances, and the application of limitation periods by analogy was unconscionable.

The final orders included declarations regarding the partnership, the acquisition of properties, the fiduciary breach by KST, and the holding of net proceeds on constructive trust for the partnership. The court further ordered that the administrator be indemnified for administration and trust costs, and that Sunly, as the administrator of the estate of FC Chow, was estopped from making any claim to an entitlement to any part of the funds held by the administrator that had been deployed to meet the payments referred to above.