Geoffrey Alan Lowe & Anor v Scott Pascoe & Ors [2012] NSWSC 151

Supreme Court New South Wales

Medium Neutral Citation: Geoffrey Alan Lowe & Anor v Scott Pascoe & Ors [2012] NSWSC 151 Hearing dates: 30 September 2011; 28 October 2011 Decision date: 29 February 2012 Jurisdiction: Equity Division Before: Bergin CJ in Eq Decision: Fresh trial before a judge to be nominated by the Chief Justice pursuant to s 88 of the Civil Procedure Act 2005 Catchwords: [JUDGES] - where trial judge is unable to complete hearing of proceedings - where numerous judgments - incomplete part-heard application to re-open findings in judgments and to allow re-opening of cases to call additional evidence previously allegedly unavailable to the parties - where parties do not consent to procedure to be adopted in the circumstances - application for declarations and orders to be made by another judge pursuant to process adopted in Smartec Capital Pty Ltd v Centro Properties Ltd & Anor (2011) ACSR 461 and Smartec Capital Pty Ltd v Centro (CPL) Limited & Anor [2011] NSWSC 644.

[FRESH TRIAL] - whether there should be a fresh trial under s 88 of the Civil Procedure Act 2005 - nomination by "senior judicial officer" that the proceedings be listed for trial before "some other judicial officer" of the Court.

[PROCEDURE ON FRESH TRIAL] - nature of directions in relation to evidence at fresh trial - consideration of procedure in context of history of the proceedings and the overriding purpose of the Civil Procedure Act 2005 and the Uniform Civil Procedure Rules 2005. Legislation Cited: Civil Procedure Act 2005 Courts of Judicature Act 1964 (Malaysia) Federal Court of Australia Act 1976 (Cth) Supreme Court Act 1970 Supreme Court Act 1995 (Qld) Uniform Civil Procedure Rules 2005 Cases Cited: Bagshaw v Scott [2005] FCA 104 Bolton v Bolton (1949) 2 All ER 908 Brennan v Brennan (1953) 89 CLR 129 Chua Chee Chor v Chua Kim Yong [1962] 1 WLR 1464 Coleshill v Manchester Corporation (1928) 1 KB 776 In re Application of British Reinforced Concrete Engineering Co Ltd (1929) 45 TLR 186 Lowe v Pascoe [2010] NSWSC 388 Lowe & Anor v Pascoe & Ors (Unreported, Supreme Court of New South Wales, Smart AJ, 25 June 2010) Lowe & Anor v Pascoe & Ors (Unreported, Supreme Court of New South Wales, Smart AJ, 11 February 2011) Lowe & Anor v Pascoe & Ors (No. 3) [2011] NSWSC 192 Mermaids Cafe and Bar Pty Ltd v Elsafty Enterprises Pty Ltd [2010] QSC 80 Smartec Capital Pty Ltd v Centro Properties Ltd & Anor (2011) ACSR 461 Smartec Capital Pty Ltd v Centro (CPL) Limited & Anor [2011] NSWSC 644 Wentworth v Rogers & Anor (No. 3) (1986) 6 NSWLR 642 Category: Principal judgment Parties: Geoffrey Lowe and Mary Lowe (Plaintiffs) Scott Pascoe (Administrator of the Estate of the late Kut Sze Tu) (1st Defendant) Margaret Sze Tu (2nd Defendant) Helen Sze Tu (3rd Defendant) Janet McNamara (4th Defendant) Shiu Shing Sze Tu (5th Defendant) Shiu How Sze Tu (6th Defendant) Stella Sze Tu (as representative of the Estate of the late FC Chow) (7th Defendant) Representation: FM Douglas QC (28 October 2011 only) AA Henskens SC/AR Zahra (Plaintiffs) J Stoljar SC (1st Defendant) D Williams SC/Ms J Little (5th and 6th Defendants) Colin Biggers & Paisley (Plaintiffs) Argyle Lawyers (1st Defendant) 2nd Defendant -unrepresented 3rd Defendant - unrepresented 4th Defendant- submitting appearance CLS Legal (5th and 6th Defendants) 7th Defendant - submitting appearance File Number(s): 2005/00262284