Lowe v Pascoe [2010] NSWSC 388

New South Wales Supreme Court

CITATION : Lowe v Pascoe [2010] NSWSC 388

30 October 2008, 6 November 2008 4 & 6 February 2009 3 April 2009 15 – 19 June 2009 HEARING DATE(S) : 22 – 26 June 2009 29 – 30 June 2009 2 - 3, 8 - 9, 15, 29 July 2009 24 August 2009 7 – 9 October 2009 Written submissions closed 23 December 2009

JUDGMENT DATE : 7 May 2010

JUDGMENT OF : Smart AJ

Declarations as to the existence of partnership between plaintiffs, the late KST, his deceased second wife, Margaret, Helen and Janet and that the five-sixths share of KST in the Maroubra Road property and the whole of the Queen Street property, held on trust for partnership. DECISION : Position as to individual portion of Haig Street property reserved for further argument. Matter referred to ATO for resolution of payment of taxation issues. Consequential relief to be determined.

CATCHWORDS : Existence of partnership - Unusual signed partnership agreement - Family patriarch conducting partnership business (or businesses) as if it (they) was (were) his own and controlling all aspects - Numerous disputed questions of fact and law and subsidiary issues - Substantial cash businesses (grocery and butchery) - Non-disclosure of full partnership income to ATO - Evasion of tax - Patriarch determining what should be disclosed to tax agents and ATO and paying tax of all parties except first plaintiff - Non-distribution of partnership profits to partners although distributions shown in tax returns of partnership businesses and returns of partners - Splitting of income amongst partners - Partnership funds used to acquire properties in patriarch's name - Patriarch putting Queen Street property purchased in 1988 in his name and names of his children - Children not contributing to cost - Children (all adults) holding property as to their shares upon a bare trust - Not established that Haig Street property purchased wholly out of partnership funds but use of income from rental properties at Wiley Park and Fairfield and possible use of patriarch's cash resources - Whether bare trust created as to one-third shares of Sunly and Gordon in Haig Street property - Both sons being minors when trust created, not contributing any funds to purchase and would transfer their interests in that property to their father upon his request - Whether partnership agreement created an express trust - Whether personal equities created in favour of plaintiffs - Whether Margaret (daughter) had a one-fifth (or a one-sixth) share in Maroubra Road property - Ownership of property (cash) in commercial bill - Whether it belonged to KST or Margaret - Sale by KST of YS butchery prior to 30 June 1986 and no adequate accounting for proceeds of sale - Defences of Indefeasibility of Title under the Real Property Act 1900 (NSW) fail - Defences under Limitation Act 1969, defences of laches, gross laches, acquiescence and estoppel fail - Plaintiffs not aware of full facts until size of KST's estate and the property assets standing in his name revealed in about November 2001 - Proceedings instituted in November 2005