Lowe v Sze Tu as Administrator of the Estate of the late Fung Chun Chow; Lowe v Pascoe as Administrator of the Estate of the late Kut Sze Tu [2023] NSWCA 282

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Lowe v Sze Tu as Administrator of the Estate of the late Fung Chun Chow; Lowe v Pascoe as Administrator of the Estate of the late Kut Sze Tu [2023] NSWCA 282 Hearing dates: 29 May 2023 Date of orders: 27 November 2023 Decision date: 27 November 2023 Before: Bell CJ at [1] Mitchelmore JA at [2] Griffiths AJA at [134] Decision: (1) Appeal allowed in part. (2) Vary Order 6 of the orders made on 21 April 2022 in proceedings numbers 2005/262284 and 2017/325815 (21 April 2022 Orders) to insert, at the beginning of the Order, the words "Subject to Orders 7A to 7C inclusive and". (3) Set aside Order 7 of the 21 April 2022 Orders, and in lieu thereof make the following orders: (a) 7A. The Court declares that the sum of $486,623 is payable from the Net Proceeds Trust to the first and second plaintiffs in proceedings number 2005/262284 in respect of the costs order made in New South Wales Court of Appeal proceedings numbers 2013/107940, 2013/108447 and 2013/107472 (Costs Order) in priority to all other distributions. (b) 7B. The Court declares that interest be payable on the amount of the Costs Order from 4 December 2018. (c) 7C. For the avoidance of doubt, any payment of the Costs Order pursuant to Order 7A above is not intended to have priority over any entitlement of the Administrator pursuant to any right of indemnity for costs reasonably and properly incurred that may otherwise be available to the Administrator. (4) The FC Chow respondents are to pay 50% of the Lowes' costs of this appeal. Catchwords: JUDGMENTS AND ORDERS – Inconsistency – where funds misappropriated from partnership – where proceedings commenced by appellants claiming existence of partnership and entitlement to amounts from estate of partner who misappropriated the funds – where proceedings commenced by others seeking distributions from constructive trusts declared over estate funds – where inquiry ordered into what monies appellants entitled to from estate – whether costs order made by primary judge inconsistent with earlier Court of Appeal costs orders – whether Court of Appeal orders insulated costs order in favour of appellants from subsequent diminution or alteration through inquiry PARTNERSHIPS AND JOINT VENTURES — Rights and duties between partners — Contribution and indemnity – whether substantive contribution claim raised – whether issue of contribution determinable by primary judge as part of consideration of costs – whether primary judge erred in failing to determine, or constructively denying, appellants' contention that other members of partnership were liable to contribute to their costs of proceedings – whether costs incurred in the ordinary and proper conduct of the business of partnership within meaning of Partnership Act 1892 (NSW), s 24(1)(2)(a) – whether costs incurred in manner giving rise to relevant equity grounding right of contribution Legislation Cited: Limitation Act 1969 (NSW) Partnership Act 1892 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Albion Insurance Co Ltd v Government Insurance Office (NSW) (1969) 121 CLR 342; [1969] HCA 55 Burke v LFOT Pty Ltd (2002) 209 CLR 282; [2002] HCA 17 Cummings v Lewis (1993) 41 FCR 559; [1993] FCA 190 Lowe v Pascoe (No 4) [2012] NSWSC 1493 Lowe v Pascoe (No 7) [2018] NSWSC 333 Lowe v Pascoe (No 9) [2021] NSWSC 163 Lowe v Pascoe (No 10) [2021] NSWSC 1232 Lowe v Pascoe (No 11) [2021] NSWSC 1375 Lowe v Pascoe (No 13) [2022] NSWSC 320 Lowe v Pascoe (No 14) [2022] NSWSC 1591 Scholefield Goodman & Sons Ltd v Zyngier [1986] AC 562 Sze Tu v Lowe (2014) 89 NSWLR 317; [2014] NSWCA 462 Sze Tu v Lowe (No 2) [2015] NSWCA 91 Category: Principal judgment Parties: In proceedings no. 2022/144952: