Geoffrey Alan Lowe & Anor v Scott Pascoe & Ors [2012] NSWSC 151

Geoffrey Alan Lowe & Anor v Scott Pascoe & Ors [2012] NSWSC 151

As the trial judge was incapacitated prior to final determination of crucial issues, and with part-heard applications regarding admissibility of further evidence unresolved, a fresh trial is required under s 88 of the Civil Procedure Act 2005. Only a new trial before a nominated judge will allow outstanding factual and legal questions to be addressed and final relief properly determined.

Jurisdiction
Australia
Judgment Date
29 February 2012
Procedural Posture
Equity Division Proceedings / Application for Declarations/orders and Competing Motion for Fresh Trial Under S 88 Civil Procedure Act 2005
Outcome
Application for fresh trial granted; plaintiffs' applications for declarations/orders refused at this stage.
Legal Topics
['fresh Trial Procedure' 'partnership Dissolution' 'property Held on Trust' 'admission of Further Evidence' 'reconstitution of Court']
['equity' 'trusts and Trustees' 'partnership' 'civil Procedure'] ['fresh Trial Procedure' 'partnership Dissolution' 'property Held on Trust' 'admission of Further Evidence' 'reconstitution of Court']

Case Brief

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Procedural Posture

Equity Division Proceedings / Application for Declarations/orders and Competing Motion for Fresh Trial Under S 88 Civil Procedure Act 2005

Legal Issues

  1. 1 ["Whether fresh trial should be ordered under s 88 Civil Procedure Act 2005 due to trial judge's incapacity" 'Whether declarations/orders should be made based on previous findings with outstanding issues' 'Whether additional evidence should be admitted and findings revisited' 'Status of property as held on trust for partnership and breaches of trust']

Ratio Decidendi

As the trial judge was incapacitated prior to final determination of crucial issues, and with part-heard applications regarding admissibility of further evidence unresolved, a fresh trial is required under s 88 of the Civil Procedure Act 2005. Only a new trial before a nominated judge will allow outstanding factual and legal questions to be addressed and final relief properly determined.

Court Disposition

Application for fresh trial granted; plaintiffs' applications for declarations/orders refused at this stage.

Orders

  • ['Proceedings to be listed for fresh trial before a judge to be nominated by the Chief Justice under s 88 Civil Procedure Act 2005.' 'No declarations or orders made on the merits; part-heard application to be first matter before the new judge.' 'Directions on evidence and procedure to be made by the new trial...