Lowe v Pascoe (No 2) [2012] NSWSC 885

Lowe v Pascoe (No 2) [2012] NSWSC 885

Because the present hearing is a fresh trial limited to three issues, and as the proceedings were not concluded by previous judgments, the cash payments journals and expert report are relevant and admissible evidence under the Evidence Act regardless of whether they were previously deliberately withheld or not tendered. In a fresh hearing, the primary consideration is the relevance of the evidence.

Parties
First Plaintiff: Geoffrey Alan Lowe; Second Plaintiff: Mary Lowe; First Defendant: Scott Pascoe; Second Defendant: Margaret Sze Tu; Third Defendant: Helen Sze Tu; Fourth Defendant: Janet McNamara; Fifth Defendant: Shiu Shing (Sunly) Sze Tu; Sixth Defendant: Shie How (Gordon) Sze Tu
Jurisdiction
Australia
Judgment Date
03 August 2012
Procedural Posture
Interlocutory Application / Determination of Evidence Admissibility for Fresh Trial
Outcome
Cash payments journals and expert report admitted as evidence in fresh trial.
Legal Topics
Admissibility of Evidence, Fresh Trial, Applications to Re Open, Relevance of Deliberately Withheld Documents
Civil Procedure Equity Admissibility of Evidence Fresh Trial Applications to Re Open Relevance of Deliberately Withheld Documents

Case Brief

Summary, issues, holding and outcome

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Parties

Geoffrey Alan Lowe

First Plaintiff

Mary Lowe

Second Plaintiff

Scott Pascoe

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

Procedural Posture

Interlocutory Application / Determination of Evidence Admissibility for Fresh Trial

Legal Issues

  1. 1 Whether cash payments journals and expert report should be admitted as evidence in the fresh trial
  2. 2 Principles applicable to admitting evidence not previously discovered or tendered at original trial
  3. 3 Whether previous deliberate withholding of documents precludes their admissibility in a fresh trial

Ratio Decidendi

Because the present hearing is a fresh trial limited to three issues, and as the proceedings were not concluded by previous judgments, the cash payments journals and expert report are relevant and admissible evidence under the Evidence Act regardless of whether they were previously deliberately withheld or not tendered. In a fresh hearing, the primary consideration is the relevance of the evidence.

Court Disposition

Cash payments journals and expert report admitted as evidence in fresh trial.

Orders

  • The five cash payments journals and the report of Jason J Murray of 18 January 2011 are admitted as evidence in the fresh hearing.