Lowe & Anor v Pascoe & Ors (No 3) [2011] NSWSC 192

Supreme Court New South Wales

Medium Neutral Citation: Lowe & Anor v Pascoe & Ors (No 3) [2011] NSWSC 192 Hearing dates: 20 December 2010, 31 January 2011, 1 February 2011, 15 - 17 March 2011 Decision date: 24 March 2011 Jurisdiction: Equity Division Before: Smart AJ Decision: Objection to jurisdiction over-ruled Catchwords: JURISDICTION - Supreme Court has power to re-open matter and evidence after two reasons for judgment (entitled "Judgment") delivered - Operation and effect of UCPR 36.11 and 36.16 - Court had not concluded consideration of controversy - Extended hearing of partnership dispute - Tracing type relief sought - First "Judgment" resolves many disputed questions of fact and partnership declaration made on delivery of second judgment - On delivery of neither were orders made giving effect to tracing type relief - Court considering what relief should be granted to give effect to judgments when application to re-open made Dispensing power under s 14 of the Civil Procedure Act, even if available, which was doubtful, should not be exercised. Legislation Cited: Civil Procedure Act 2005 District Court Act 1973 Federal Court Act 1976 Uniform Civil Procedure Rules 2005 Cases Cited: Arrowcrest Group Pty Ltd v Gill (1993) 46 FCR 90 AT v Commissioner of Police, NSW (No 2) [2010] NSWCA 337 Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 Burrell v The Queen (2008) 238 CLR 218 Deputy Commissioner of Taxation v Meredith (No 2) (2008) 75 NSWLR 462 DJL v Central Authority (2000) 201 CLR 226 Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45 Fidelitas Shipping Co Ltd v V/O Exportchleb [1966] 1 QB 630 French Caledonia Travel Services Pty Ltd v Elatri unreported, Federal Court, Full Court, 22 May 1992 Johnston v Nationwide News Pty Ltd (2005) 62 NSWLR 309 Landsal Pty Ltd (in Liq) v REI Building Society (1993) 41 FCR 421 Legal Practitioner Complaints Committee v A Practitioner (1987) 46 SASR 126 MK and JA Roche Pty Ltd v Metro Edgley Pty Ltd [2004] NSWSC 780 O'Toole v Charles David Pty Ltd (No 2) (1991) 171 CLR 232 R v Burrell [2007] NSWCCA 79 Smith v NSW Bar Association (1992) 176 CLR 256 Texts Cited: Australian Oxford Law Dictionary Category: Separate question Parties: Geoffrey Alan Lowe (First Plaintiff) Mary Lowe (Second Plaintiff) Scott Pascoe (as trustee of the Estate of the late Kut Sze Tu) (First Defendant) Margaret Sze Tu (Second Defendant) Helen Sze Tu (Third Defendant) Janet McNamara (Fourth Defendant) Shiu Shing (Sunly) Sze Tu (Fifth Defendant) Shiu How (Gordon) Sze Tu (Sixth Defendant) Stella Sze Tu (as representative of the Estate of the late Chow Fung Chun) (Seventh Defendant) Representation: Counsel: AA Henskens/ HR Zahra (Plaintiffs) D Williams SC/ J Little Solicitors: Colin Biggers & Paisley (Plaintiffs) Argyle Lawyers (First Defendant) Second and Third Defendants in person Fourth Defendant filed submitting appearance on 28 November 2008 CLS Legal (Fifth & Sixth Defendants) Seventh Defendant filed submitting appearance on 17 April 2008 File Number(s): 2005/262284