Sze Tu v Lowe [2014] NSWCA 462

Sze Tu v Lowe [2014] NSWCA 462

The appeals were allowed because the registered owners (the appellants) had the benefit of indefeasible title and the constructive trust/in personam claims failed due to absence of fraud or primary wrongdoing, the express and resulting trust theories failed for want of proof of actual intention or rebuttal of presumption of advancement, and statutory trust arguments were not pleaded or proved. Accounting and proprietary relief against the appellants was ordered to be set aside; however, relief against KST's estate for constructive trust/account of profits was maintained as time-bar for that claim had not started until discovery in 2001. The partnership was declared dissolved on 1 July...

Parties
Appellant: Shiu Shing Sze Tu (Sunly); Appellant: Shiu How Sze Tu (Gordon); Appellant: Margaret Sze Tu; Appellant: Helen Sze Tu; Respondent: Geoffrey Lowe; Respondent: Mary Lowe; Respondent: Scott Pascoe as Trustee of the Estate of the Late Kut Sze Tu; Respondent: Janet McNamara; Respondent: Stella Sze Tu as Trustee of the Estate of the Late Chow Fung Chun
Jurisdiction
Australia
Judgment Date
23 December 2014
Procedural Posture
Civil Appeal / Appeal From Supreme Court of New South Wales, Court of Appeal Judgment
Outcome
Appeals allowed. Orders below set aside in part. Proceedings dismissed against certain appellants. Declarations and limited inquiry maintained against KST's estate. Costs reserved.
Legal Topics
Indefeasibility of Title, Constructive Trust, Express Trust, Resulting Trust, Limitation Periods, Laches, Partnership Dissolution, Tracing, Fiduciary Duties, Accounting and Inquiry, Conventional Estoppel
Equity Trusts and Trustees Property Law Partnership Law Civil Procedure Indefeasibility of Title Constructive Trust Express Trust +8 more

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Parties

Shiu Shing Sze Tu (Sunly)

Appellant

Shiu How Sze Tu (Gordon)

Appellant

Margaret Sze Tu

Appellant

Helen Sze Tu

Appellant

Geoffrey Lowe

Respondent

Mary Lowe

Respondent

Scott Pascoe as Trustee of the Estate of the Late Kut Sze Tu

Respondent

Janet McNamara

Respondent

Stella Sze Tu as Trustee of the Estate of the Late Chow Fung Chun

Respondent

Procedural Posture

Civil Appeal / Appeal From Supreme Court of New South Wales, Court of Appeal Judgment

Legal Issues

  1. 1 Whether the three properties in question were held on trust (statutory, express, resulting, or constructive) for the partnership; whether relief was barred by defences including indefeasibility of title, limitation of actions, laches, or estoppel; whether the partnership was dissolved in 1989; whether claims for inquiry and account were time barred; whether KST breached his fiduciary duties by using partnership funds to acquire the properties; who bore the onus of proof in tracing the partnership moneys; whether the fresh trial before Gzell J miscarried.

Ratio Decidendi

The appeals were allowed because the registered owners (the appellants) had the benefit of indefeasible title and the constructive trust/in personam claims failed due to absence of fraud or primary wrongdoing, the express and resulting trust theories failed for want of proof of actual intention or rebuttal of presumption of advancement, and statutory trust arguments were not pleaded or proved. Accounting and proprietary relief against the appellants was ordered to be set aside; however, relief against KST's estate for constructive trust/account of profits was maintained as time-bar for that claim had not started until discovery in 2001. The partnership was declared dissolved on 1 July...

Court Disposition

Appeals allowed. Orders below set aside in part. Proceedings dismissed against certain appellants. Declarations and limited inquiry maintained against KST's estate. Costs reserved.

Orders

  • Appeal allowed.
  • Set aside orders 3, 4(a)(ii) and (iii), (c)(iv) and (v), 5, 6, 7, 8, 9 and 11 (for Sunly and Gordon), or equivalent orders for Margaret and Helen.