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

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

Leave to withdraw the submitting appearance by FC Chow Estate should only be given on terms that any defences available to Kut Sze Tu Estate and the other parties, which could have been raised in the FC Chow Proceedings, may be raised in answer to any claim by FC Chow Estate in the present proceedings. As no utility is shown for ventilating these matters in the current proceedings under such terms, leave to withdraw is otherwise refused. It is appropriate to substitute Sunly Sze Tu as representative of the FC Chow Estate.

Jurisdiction
Australia
Judgment Date
20 March 2018
Procedural Posture
Notice of Motion in Equity Proceedings / Application for Leave to Withdraw Submitting Appearance and Related Orders
Outcome
Orders made. Application to withdraw submitting appearance dismissed save for substitution of estate representative.
Legal Topics
['submitting Appearance' 'withdrawal of Appearance' 'constructive Trust' 'limitation Period' 'account of Profits' 'partnership Disputes']
['equity' 'civil Procedure'] ['submitting Appearance' 'withdrawal of Appearance' 'constructive Trust' 'limitation Period' 'account of Profits' 'partnership Disputes']

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Procedural Posture

Notice of Motion in Equity Proceedings / Application for Leave to Withdraw Submitting Appearance and Related Orders

Legal Issues

  1. 1 ['Whether leave should be granted to FC Chow Estate to withdraw the submitting appearance' 'Whether FC Chow Estate is entitled to relief in the proceedings despite previous submitting appearance' "Whether limitation defences preclude FC Chow Estate's claims" 'Who is entitled to account of profits from Partnership Properties']

Ratio Decidendi

Leave to withdraw the submitting appearance by FC Chow Estate should only be given on terms that any defences available to Kut Sze Tu Estate and the other parties, which could have been raised in the FC Chow Proceedings, may be raised in answer to any claim by FC Chow Estate in the present proceedings. As no utility is shown for ventilating these matters in the current proceedings under such terms, leave to withdraw is otherwise refused. It is appropriate to substitute Sunly Sze Tu as representative of the FC Chow Estate.

Court Disposition

Orders made. Application to withdraw submitting appearance dismissed save for substitution of estate representative.

Orders

  • ['Order that Ms Stella Sze Tu be replaced with Mr Sunly Sze Tu as representative of the Estate of the Late FC Chow.' 'Order that the Notice of Motion filed 7 December 2017 be otherwise dismissed.']