Lowe v Pascoe (No 10) [2021] NSWSC 1232

Lowe v Pascoe (No 10) [2021] NSWSC 1232

Because the FC Chow Plaintiffs sought equitable relief, any distribution to the FC Chow estate could be conditioned on doing equity by notionally bringing to account benefits received by Sunly and Gordon from Partnership assets or the estate of KST, limited to the value of those benefits and their entitlement from the FC Chow estate. The Family Arrangement Deed did not found that obligation. Other partners could participate only on the basis that they brought comparable benefits to account. Mary and Geoffrey were not entitled to pre-judgment interest because interest under s 100 had not been specifically claimed and the Court of Appeal inquiry was an account, not a money recovery or...

Jurisdiction
Australia
Judgment Date
30 September 2021
Procedural Posture
Equity Proceedings Concerning Calculation of Final Distribution of Estate and Trust Property After Misappropriation of Partnership Funds / Further Hearing After Principal Reasons to Resolve Objections and Issues Before Final Orders
Outcome
The Court resolved the outstanding issues and directed that short minutes of orders be brought in to give effect to the final conclusions, with costs to be addressed later.
Legal Topics
['equality Is Equity' 'distribution of Trust Property' "beneficiaries' Right to Call for Distribution" 'notional Accounting for Benefits Received' 'pre Judgment Interest' 'abuse of Process' 'limitation Act Defence']
['equity' 'trusts' 'partnership' 'civil Procedure' 'limitation of Actions'] ['equality Is Equity' 'distribution of Trust Property' "beneficiaries' Right to Call for Distribution" 'notional Accounting for Benefits Received' 'pre Judgment Interest' 'abuse of Process' 'limitation Act Defence']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Equity Proceedings Concerning Calculation of Final Distribution of Estate and Trust Property After Misappropriation of Partnership Funds / Further Hearing After Principal Reasons to Resolve Objections and Issues Before Final Orders

Legal Issues

  1. 1 ['Whether the FC Chow estate should account notionally for benefits received by Sunly and Gordon as a condition of receiving a distribution from funds held by the Administrator' 'Whether the Family Arrangement Deed created or affected an obligation on the FC Chow estate to account for assets not received by FC Chow' "Whether the value of Sunly and Gordon's interests in the Haig Street Property and the Campbelltown Property should be notionally brought to account" 'Whether partners other than FC Chow, Mary and Geoffrey should receive a distribution from funds held by the Administrator and on what terms' 'Whether Mary and Geoffrey were entitled to pre-judgment interest under s 100 of the Civil Procedure Act 2005 (NSW)' 'Whether the Administrator established a Limitation Act 1969 (NSW) defence based on receipt by Sunly of the Final Report' "Whether the FC Chow Plaintiffs' claims were an abuse of process"]

Ratio Decidendi

Because the FC Chow Plaintiffs sought equitable relief, any distribution to the FC Chow estate could be conditioned on doing equity by notionally bringing to account benefits received by Sunly and Gordon from Partnership assets or the estate of KST, limited to the value of those benefits and their entitlement from the FC Chow estate. The Family Arrangement Deed did not found that obligation. Other partners could participate only on the basis that they brought comparable benefits to account. Mary and Geoffrey were not entitled to pre-judgment interest because interest under s 100 had not been specifically claimed and the Court of Appeal inquiry was an account, not a money recovery or...

Court Disposition

The Court resolved the outstanding issues and directed that short minutes of orders be brought in to give effect to the final conclusions, with costs to be addressed later.

Orders

  • ['The Administrator, after conferring with the other parties, is to bring in short minutes of orders that give effect to the final conclusions reached.' 'Any party wishing to object to the orders proposed by the Administrator should notify the Court, the Administrator and the other parties in writing within 7 days,...