Lowe v Pascoe [2024] NSWSC 1685

Supreme Court New South Wales

Medium Neutral Citation: Lowe v Pascoe [2024] NSWSC 1685 Hearing dates: 20 December 2024 Date of orders: 20 December 2024 Decision date: 20 December 2024 Jurisdiction: Equity - Applications List Before: Kunc J Decision: Proceedings dismissed Catchwords: CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Want of due despatch Legislation Cited: Civil Procedure Act 2005 (NSW) s 61(3) Uniform Civil Procedure Rules 2005 (NSW) r 12.7(1) Cases Cited: 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 Category: Principal judgment Parties: Geoff Lowe (First Plaintiff) Mary Lowe (Second Plaintiff) Scott Darren Pascoe (Defendant) Representation: Counsel: J Burnett (Plaintiffs) J Stoljar SC/A Emmerson (Defendant)

Solicitors: Marque Lawyers (Plaintiffs) Hall and Wilcox (Defendant) File Number(s): 2023/261930

EX TEMPORE JUDGMENT (Revised)

Summary 1. These proceedings are a further iteration of a dispute that has been on foot for in excess of 20 years and has produced numerous judgments in this Court both at first instance and in the Court of Appeal. I do not propose to recite that complete history. It is sufficient for present purposes to identify the plaintiffs as beneficiaries of certain trusts of which the defendant is the administrator or trustee. 2. The Court has before it today, the last day of term, two motions. The first is a motion filed by the defendant, Mr Pascoe, seeking these orders: 1. The proceedings be dismissed pursuant to rule 12.7(1) of the Uniform Civil Procedure Rules New South Wales 2005 (NSW) and ss 56, 57 and 61(3) of the Civil Procedure Act 2005 (NSW) or alternatively the Court's inherent jurisdiction. 2. Costs. 1. There is also a motion filed pursuant to orders which I made on an earlier occasion by the plaintiffs, the Lowes, seeking: 1. Time for the plaintiffs to file and serve all lay and expert evidence on which they rely be extended to 21 February 2025. 2. The plaintiff be granted leave to rely on evidence served on or before 21 February 2025. 1. For the reasons which follow the Court proposes to dismiss the Lowes' motion and to accede to the relief sought in Mr Pascoe's motion that the proceedings be dismissed for want of prosecution. There will also be orders that the Lowes pay Mr Pascoe's costs of the proceedings on the indemnity basis, with terms impeding the reinstitution of proceedings raising similar issues. 2. The Court has been assisted by extensive written submissions prepared on behalf of the Lowes by Mr J Burnett of Counsel and those prepared on behalf of Mr Pascoe by Mr J Stoljar of Senior Counsel with Mr AB Emmerson of Counsel. Those submissions have been supplemented by oral submissions this morning.