Supreme Court New South Wales Medium Neutral Citation: Lowe v Pascoe (No 7) [2018] NSWSC 333 Hearing dates: 15 February 2018 (Notice of Motion) Decision date: 20 March 2018 Jurisdiction: Equity Before: Emmett AJA Decision: 1. Order that Ms Stella Sze Tu be replaced with Mr Sunly Sze Tu as representative of the Estate of the Late FC Chow. 2. Order that the Notice of Motion filed 7 December 2017 be otherwise dismissed. Catchwords: PROCEDURE – applicant seeks leave to withdraw submitting appearance Legislation Cited: Conveyancing Act 1919 (NSW), s 66G Uniform Civil Procedure Rules 2005 Cases Cited: Tory v Megna [2012] NSWCA 41 Category: Procedural and other rulings 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) Shie How (Gordon) Sze Tu (Sixth Defendant) Stella Sze Tu as representative of Estate of Chow Fung Chun (Seventh Defendant) Representation: Counsel: P R Jammy (Plaintiffs) J Stoljar SC with Z Hillman (First Defendant) D L Williams with J D Little (Fifth, Sixth and Seventh Defendant) Solicitors: HWL Ebsworth Lawyers (Plaintiffs) Hall & Wilcox (First Defendant) Holman Webb (Second Defendant) CLS Legal (Fifth, Sixth and Seventh Defendants) File Number(s): 2005/262284 Judgment 1. These proceedings (the Lowe Proceedings) were commenced by statement of claim filed on 7 November 2005. The plaintiffs, Mary and Geoff Lowe (the Lowes), sued Mr Scott Pascoe and other parties. Mr Pascoe (the Administrator) is the administrator of the Estate of the late Kut Sze Tu (Kut Sze Tu Estate). The Lowes alleged, amongst other things, that partnership assets had been applied by Kut Sze Tu in the acquisition of three properties (the Partnership Properties) situated at Haig Street, Maroubra (the Haig Street Property), Maroubra Road, Maroubra (the Maroubra Road Property), and Queen Street, Campbelltown (the Queen Street Property). 2. Amending statements of claim were filed on 11 March 2008, 14 November 2008 and 17 August 2012. Judgments have been delivered as follows: * Smart AJ on 7 May 2010 [1] , 25 June 2010 [2] and 24 March 2011 [3] ; * Bergin CJ in Eq on 29 February 2012 [4] ; * Gzell J on 29 June 2012 [5] , 3 August 2012, [6] 8 August 2012, [7] 5 December 2012 [8] and 13 March 2013 [9] ; and * Court of Appeal on 23 December 2014 [10] . 1. The substance of the orders still standing, following the decision of the Court of Appeal, can be restated as set out in the Schedule to these reasons. The essence is that a partnership existed (the Partnership) and was dissolved on 1 July 1989. The parties to the Partnership and their shares were as follows: * Kut Sze Tu 20%; * Fung Chun Chow (FC Chow) 30%; * the Lowes 10% each; * Margaret Sze Tu 10%; * Helen Sze Tu 10%; and * Janet McNamara 10%. 1. Kut Sze Tu was first married to Tang Fung and their children are: * Mary Lowe; * Janet McNamara; * Margaret Sze Tu (Margaret); * Helen Sze Tu (Helen); and * John Sze Tu. 1. Kut Sze Tu's second wife was FC Chow. The children of their marriage are: * Stella Sze Tu (Stella); * Gordon Sze Tu (Gordon); and * Sunly Sze Tu (Sunly). 1. Kut Sze Tu and FC Chow lived together with their children in the Haig Street Property from about December 1978. FC Chow died on 11 January 1994. Kut Sze Tu died on 20 October 1997. For the purposes of the Lowe Proceedings, Stella was appointed as representative of the estate of the late FC Chow (FC Chow Estate). The Administrator was appointed in circumstances briefly described below. 2. The effect of the orders made by the Court of Appeal in the Lowe Proceedings is that 90% of Kut Sze Tu's interest in the Partnership Properties was held on trust for the Partnership, and that 90% of any profits derived by Kut Sze Tu from the Partnership Properties after just allowances were held on constructive trust for the Partnership. The Court directed an Inquiry to identify what monies the Lowes were entitled to from Kut Sze Tu Estate, after taking into account any just allowances, in respect of the benefits obtained by Kut Sze Tu through his ownership, possession or use of his interest in the Partnership Properties. The Court ordered that Kut Sze Tu Estate pay to the Lowes 20% of the amount found to be due pursuant to the Inquiry. In granting that relief, the Court determined the matter on the basis of the constructive trust claim brought by the Lowes. 3. FC Chow Estate was a defendant in the Lowe Proceedings. However, no substantive claim was made on behalf of the FC Chow Estate against Kut Sze Tu Estate similar to that made on behalf of the Lowes. Further, on 18 April 2008, Stella (as representative of FC Chow Estate) filed a submitting appearance in the Lowe Proceedings on behalf of FC Chow Estate. Accordingly, there no determination has been made in the Lowe Proceedings that Kut Sze Tu Estate has any liability to FC Chow Estate. 4. Based on the determination made by the Court that FC Chow was a member of the Partnership and that Kut Sze Tu misappropriated funds of the Partnership, FC Chow Estate claims to be entitled to be paid by Kut Sze Tu Estate 30% of the amount determined in accordance with the taking of accounts. FC Chow Estate has commenced separate proceedings against Kut Sze Tu Estate, being proceedings 325815 of 2017 (the FC Chow Proceedings), seeking that relief. However, the Administrator has stated his intention that, upon the finalisation of the accounts and determination of the amount payable to the Lowes, pursuant to the orders made by the Court, he will pay that amount and then distribute the balance of Kut Sze Tu Estate in accordance with the last will of Kut Sze Tu. 5. In the FC Chow Proceedings, the Administrator has foreshadowed several answers to the claim on behalf of FC Chow Estate. First, it is said that, in the taking of accounts, allowance would need to be made by FC Chow Estate for the benefits received by FC Chow from residing in the Haig Street Property. In addition a limitation defence will be relied on in answer to the claims made in the FC Chow Proceedings. FC Chow Estate seeks to avoid those answers by seeking to raise the same claims in the Lowe Proceedings. 6. By notice of motion filed on 27 October 2017 (the October Motion), FC Chow Estate sought an order that Kut Sze Tu Estate pay FC Chow Estate 30% of the amount found to be payable on the taking of accounts of the Partnership. The October Motion is opposed by Kut Sze Tu Estate and the Lowes on the basis of the submitting appearance filed on behalf of FC Chow Estate. Accordingly, by notice of motion filed on 7 December 2017 (the Withdrawal Motion), FC Chow Estate seeks leave to withdraw the submitting appearance to the extent necessary to enable it to move on the October Motion. The Withdrawal Motion is also opposed by Kut Sze Tu Estate and the Lowes. The Limitation Defence 1. The Court of Appeal found that the claim by the Lowes for trust property and accounting relief was subject to a 12 year limitation period that ran from the date on which they first discovered the facts from which the misappropriation of funds by Kut Sze Tu could have been identified by them. The Administrator asserts that the same limitation period must apply to any equivalent claim on behalf of FC Chow Estate. The date when FC Chow first discovered the facts from which the misappropriation of funds by Kut Sze Tu could have been identified cannot be determined with certainty. The Administrator asserts that there must be a real likelihood that Kut Sze Tu discussed major family acquisitions with FC Chow and that she would have known how monies the subject of the family businesses were being used. That possibility has not been examined. However, if it were, it may be established that the time at which FC Chow knew of the matters that could give rise to the claims that are now made on behalf of FC Chow Estate could be as early as the 1970s. 2. In any event, the Administrator asserts, it is clear that, at the latest, the limitation period must run from June 2002, when FC Chow Estate's representatives were given a copy of a report (the Report) prepared by him in response to an order made by the Court in earlier proceedings (the False Will Proceedings). The False Will Proceedings were commenced in 2000 by Mary Lowe against Helen and Sunly, who were the executors of a will of Kut Sze Tu Estate. The False Will Proceedings arose out of an allegation that Kut Sze Tu Estate was being administered under a false will. On 26 March 2001, the Court ordered in the False Will Proceedings that the Administrator be appointed as receiver of the real property of Kut Sze Tu Estate and as administrator of Kut Sze Tu Estate for limited purposes. 3. The Administrator was also ordered to obtain an account and verify the distributions made from Kut Sze Tu Estate and the identity of the persons to whom distributions had been made. The Report included analyses of the income and expenses in relation to Maroubra Road Property and the Queen Street Property, and noted the use that had been made of the Haig Street Property. The Report was served on the legal representatives of each of the defendants in the False Will Proceedings, including Sunly, on 24 June 2002. Thus, the Administrator says, the Estate of FC Chow had 12 years from 24 June 2002 in which to bring the claims now sought to be advanced in the FC Chow Proceedings and the claims were indisputably out of time, at the very latest, from 24 June 2014. 4. On 24 June 2002, letters of administration of Kut Sze Tu Estate were granted to the Administrator. On 14 May 2004, he sold Kut Sze Tu's interest in the Haig Street property. On 19 October 2005, he received the proceeds of the sale of Kut Sze Tu's interest in the Maroubra Road Property, which was sold by a trustee appointed under s 66G of the Conveyancing Act 1919 (NSW). On 15 November 2005, he sold the interest of Kut Sze Tu in the Queen Street Property. Withdrawal of Submitting Appearance 1. Rule 6.11(1) of the Uniform Civil Procedure Rules 2005 (UCPR) relevantly provides that a defendant who intends to take no active part in proceedings may include in the defendant's notice of appearance a statement to the effect that the defendant submits to the making of all orders sought and the giving of entry of judgment in respect of all claims made. Under Rule 6.11(2) of the UCPR, a defendant who has filed a notice of appearance containing such a statement may not, except by leave of the Court, file a defence or affidavit or take any other step in the proceedings. 2. It is uncontroversial that the discretion to grant such leave is unfettered. Its operation is confined only by the requirement that it be exercised judicially. As a general principle, the interests of justice require that a defendant with an arguable case should not be shut out from presenting a case unless there are substantial countervailing considerations. There are several considerations that may influence the Court's decision, including whether the applicant has an arguable case, whether there is real prejudice to the other parties and whether there has been any material change in the case [11] . 3. The amended statement of claim filed on 11 March 2008 was current when Stella filed the submitting appearance on behalf FC Chow Estate on 18 April 2008. However, a further amended statement of claim was filed on 14 November 2008. By that pleading, the claim was amended: * to plead, in the alternative, an express trust, resulting trust or constructive trust over the Partnership Properties and the proceeds of sale; and * to seek an order that FC Chow Estate and Kut Sze Tu Estate account to the Partnership on a wilful default or a common fraud basis. 1. Prior to the filing of the second further amended statement of claim on 17 August 2012, prayer 9 sought an order that an Inquiry be held to ascertain the assets of the Partnership and in particular as to the application of Partnership money towards the purchase of the Partnership Properties and the profits derived from the use of the Partnership Properties, and to determine the respective interests of the members of the Partnership in the same, or in the proceeds of sale. FC Chow Estate emphasises that prayer 9 sought to determine the respective interest of the members of the Partnership in the Partnership Properties or in their proceeds of sale. 2. By the second further amended statement of claim, prayer 9 was amended to seek orders providing for: * An Inquiry to be held in order to identify: (a) the current assets of the Partnership including the proceeds of sale of any of the Partnership Properties; (b) the proceeds of the sale of Partnership businesses; and (c) the benefits obtained by the defendants through their ownership of the Partnership Properties in the period since their acquisition. * The defendants to account for the benefits they have obtained through the breaches by Kut Sze Tu of the terms of the Partnership agreement and breaches of fiduciary duty, including, but not limited to, their possession and use of the Partnership Properties since their acquisition. 1. FC Chow Estate contends that, following that amendment, the claim for relief made by the Lowes was not made to the exclusion of the other members of the Partnership. Rather, it says, the claim was always for relief on behalf of the Partnership for an inquiry and account in respect of the Partnership and, inherent in such a claim for an inquiry and account was a claim for a distribution to the other members of the Partnership. It is asserted that that was expressly stated until 17 August 2012, when the second further amended statement of claim was filed, and remained the character of the relief sought beyond the filing of that pleading. 2. FC Chow Estate now asserts that Stella, as its representative, was entitled to think that, while she had not, herself, propounded a claim on behalf of FC Chow Estate, the claim of the Lowes was being brought on behalf of the Partnership and that an inherent part of the Inquiry would be the ascertainment of the Partnership property that was the subject of a constructive trust. At the time of filing the submitting appearance, she was entitled, it is asserted, to believe that an express part of the Inquiry was to determine the interest of FC Chow in the Partnership. It is asserted that Stella was not disabused of that belief until receipt of a letter dated 21 March 2017 written on behalf of the Lowes, in which the solicitor for the Lowes asserted that no other parties had any Partnership entitlement and any distribution would be opposed by them. Stella says that it was not until 22 November 2017, at a directions hearing, that she realised that the Administrator would also deny any Partnership claim on behalf of FC Chow Estate. 3. No explanation has been offered for Stella's failure to take any earlier step to seek to withdraw the submitting appearance since it was filed in April 2008. Even when it was apparent from the orders made by the Court of Appeal in 2014 that the only Inquiry to be had was as to the entitlement of the Lowes to any monies from Kut Sze Tu Estate, neither Stella nor Sunly, nor anyone else on behalf of FC Chow Estate, took any step to seek leave to withdraw the submitting appearance. 4. Stella asserted in her affidavit filed in support of the Withdrawal Motion that she appointed a solicitor to act as her legal representative and the solicitor filed the submitting appearance on her behalf. It has not been suggested that the submitting appearance was filed by reason of mistake or without instructions, or that Stella received no advice in relation to the filing of the submitting appearance. She says that she has instructed her current solicitors to conduct inquiries as to the nature of the appearance but has been advised that her solicitors have been unable to access the Court's file. She said that she did not take any further active role in the Lowe Proceedings. It is not clear why access to the Court file would have any bearing on that matter. 5. Stella says in her affidavit that she had meagre knowledge regarding the matters alleged by the Lowes, that she did not believe that a partnership existed as alleged by them and that she did not believe that her father, Kut Sze Tu, had done anything improper in his management of the family's business. Somewhat curiously, she also said that, up until unspecified "recent events" in the Lowe Proceedings, she believed that it would follow from the orders made by the Court of Appeal in December 2014 that FC Chow Estate would receive a distribution in accordance with its interest in the Partnership. In the meantime, of course, FC Chow Estate had not participated or taken any role in the Lowe Proceedings. 6. In his reasons for Judgment, Smart AJ found that, even at the time of delivering his reasons on 7 May 2010, the account of events given by family members did not provide a complete picture as to the relevant events, the lapse of time having resulted in recollections and the reliability of evidence being seriously affected. Smart AJ also found that, on purchasing the Haig Street property in 1978, Kut Sze Tu moved into it with FC Chow, Stella, Gordon and Sunly. In his reasons for Judgment, Gzell J ordered a general inquiry to determine what monies Mr and Mrs Lowe were entitled to by way of an account of profits and from whom they were entitled. Following the delivery of reasons for judgment by Gzell J on 5 December 2012, Gordon, Sunly, Margaret and Helen appealed to the Court of Appeal. 7. The Court of Appeal noted that Stella, as representative of FC Chow Estate, had filed a submitting appearance at the trial and appeared in person in the Court of Appeal but did not advance any written or oral submissions. It appears that her joinder to the appeal proceedings arose solely from her interest as a member of the Partnership. 8. The Court of Appeal gave reasons for Judgment on 23 December 2014 and directed that an Inquiry be held to identify what, if any, monies Mr and Mrs Lowe [my emphasis] are entitled to from Kut Sze Tu Estate. In its reasons for judgment, the Court of Appeal made a number of findings relevantly as follows: * The Haig Street Property was purchased to provide a home for Kut Sze Tu's second wife, FC Chow, and their children, Stella, Gordon and Sunly. * The Maroubra Road Property was purchased by Kut Sze Tu and Margaret together as an investment. * The Queen Street Property was intended to be purchased as an investment property for Kut Sze Tu, Margaret, Sunly, Gordon and Helen. * An institutional constructive trust arose because Partnership monies were used by Kut Sze Tu to purchase the Partnership Properties. * The claim by the Lowes is properly characterised as an action to recover trust property and the applicable limitation period for such a claim is 12 years running from the date on which the Lowes first discovered the facts from which the misappropriation of funds by Kut Sze Tu could have been identified, being 29 November 2001, when they were served with a draft of the Report. * Likewise, the claim for accounting relief in respect of the profits derived from the use of the Partnership Properties was subject to a limitation period of 12 years running from the date when the fact of misappropriation could have been discovered by the Lowes. * The assessment as to when the fact of Kut Sze Tu's misappropriation could have been discovered by the Lowes turned on a careful analysis of the evidence as to what was known by them, having regard, in particular, to, amongst other things, their interactions with Kut Sze Tu, advice obtained by them from professional advisors, their lack of knowledge as to the proceeds obtained through sale of the Partnership businesses and the lack of consultation with them as to the purchase of the Partnership Properties. * The Lowes' claim for equitable relief by way of inquiry was not defeated by laches having regard to their degree of knowledge of Kut Sze Tu's wrongdoing, the transactions involved and an assessment of any resulting prejudice. 1. The terms of the Inquiry ordered against Kut Sze Tu Estate by Gzell J were varied by the Court of Appeal to limit the scope of the Inquiry to an account of profits derived by Kut Sze Tu from the Partnership Properties. That is to say, the Inquiry was more limited than that ordered by Gzell J who had erred in allowing for a general account between partners, which, the Court of Appeal held, was time barred within six years of dissolution of the Partnership. Disposition of the Withdrawal Application 1. FC Chow Estate, through its representative, Stella, who had been appointed for the very purpose of making decisions on behalf of FC Chow estate in connection with the Lowe Proceedings, made a deliberate decision to submit to the outcome of the litigation. At that time, she was legally represented. The decision to file a submitting appearance was made three years after FC Chow Estate had been provided with the Report revealing the facts that are said to underpin the present claim on behalf of FC Chow Estate. The decision was made after the Lowes had articulated the very basis upon which FC Chow Estate now seeks to assert a right against Kut Sze Tu Estate. 2. The Administrator asserts that the basis upon which FC Chow Estate propounds a claim for 30% of the profits of the Partnership Properties is unclear. Since the claim is addressed to the funds presently held by the Administrator, who is the legal owner, the claim of FC Chow Estate must therefore be equitable. It is not clear whether the remedy sought is an account as between partners or an account for breach of fiduciary duty. 3. The Administrator asserts that, if it is an account as between partners, it is time barred for the reasons given by the Court of Appeal. If it is an account for breach of fiduciary duty, it involves FC Chow Estate ventilating a claim by a beneficiary of a constructive trust, parallel or related to that already advanced by the Lowes in the Lowe Proceedings. However, the remedy of an account proceeds upon the assumption that the party calling for it is entitled to the sum found to be due. FC Chow Estate appears to be contending that, because the Lowes have demonstrated their right to an inquiry to determine the amounts, if any, of profit, if any, to which they are entitled in respect of Kut Sze Tu's use of the Partnership Properties, it must follow that FC Chow Estate is entitled to an order in the same Inquiry that a pro rata amount ordered to be paid to it. 4. The Administrator contends, however, that the facts, matters and circumstances analysed by Smart AJ, Gzell J and the Court of Appeal with respect to the Lowes' right to their remedy are matters peculiar to their position. Thus, FC Chow was not in a position analogous to that of the Lowes: rather, her position was notably different because, amongst other things, the Haig Street Property, which is now a subject of the Inquiry, was used as a family home for FC Chow and her children. The Administrator asserts that benefitting FC Chow was an object of Kut Sze Tu's defalcation. Therefore, FC Chow could not, as the Lowes could, demonstrate that she was out of the family fold into which the Partnership assets were impermissibly drawn. The Lowes established that they knew none of the facts that gave rise to the claims made by the Lowes in the Lowe Proceedings until such time as the draft of the Report was received by them. The Administrator asserts that there is no basis for assuming that FC Chow did not know those facts unless evidence is adduced as to such matters. 5. Because a submitting appearance was filed in the Lowe Proceedings, the position of FC Chow in relation to her knowledge of Kut Sze Tu's breaches of duty was not tested. The Administrator asserts that FC Chow Estate should not now be permitted to make use of that lack of evidence in order to assert an arguable case for a remedy equivalent to that afforded to the Lowes. Evidence may well have revealed, he asserts, that FC Chow, as Kut Sze Tu's wife, knew where the funds used to purchase the Partnership Properties came from and that she acquiesced in such use of those funds. 6. The only question left to be ventilated in the Lowe Proceedings is the question of what monies, if any, the Lowes are entitled to by way of an account of profits from Kut Sze Tu Estate. That does not entail an inquiry as to what monies, if any, FC Chow Estate is entitled to. The question of whether or not FC Chow Estate is entitled to anything has never been litigated. On the other hand, it is now sought to be litigated in the FC Chow Proceedings. It will be open to the defendants, in particular Kut Sze Tu Estate through the Administrator, to raise limitation defences and the other defences arising out of the matters asserted on behalf of the Administrator as summarised above. 7. There is no reason to doubt that FC Chow Estate now wishes to make a bona fide claim against Kut Sze Tu Estate. But for the filing of the submitting appearance, such a claim could have been advanced in the Lowe Proceedings. Since FC Chow Estate has always been a party to the Lowe Proceedings, it may be that the orders made in the Lowe Proceedings give rise to issue estoppel as between Kut Sze Tu Estate and FC Chow Estate. Such estoppel will no doubt be raised by way of reply in the FC Chow Proceedings. However, even that question remains to be investigated. 8. In the circumstances, I consider that leave for FC Chow Estate to withdraw the submitting appearance should only be given on terms that FC Chow Estate will not oppose Kut Sze Tu Estate and the other parties in the Lowe Proceedings raising by way of answer to the claims made in the October Motion any of the matters that could be raised by way of answer to the claims made in the FC Chow Proceedings. That being so, I do not consider there is any utility in the matters being ventilated in the Lowe Proceedings on the taking of accounts. I invited FC Chow Estate to make any submissions that it desired on the utility of the withdrawal of the submitting appearance if such terms were to be imposed. No submissions have been made to suggest that, if those terms were to be imposed, there would be any utility in having the matters ventilated in the Lowe Proceedings rather than in the FC Chow Proceedings. 9. In the Withdrawal Motion, Stella also seeks an order that Sunly be appointed to represent FC Chow Estate. Stella was originally appointed as representative because of a perceived conflict on the part of Sunly. Following the orders of the Court of Appeal, that conflict does not arise. The order substituting Sunly is not opposed, and should be made. The Withdrawal Motion should be otherwise dismissed. The October Motion should also be dismissed. Unless the parties wish to be heard further, I propose to order that FC Chow Estate pay the costs of both motions. 10. It may be that it would be appropriate to restrain the distribution of the funds presently held by the Administrator until the final resolution of the FC Chow Proceedings. No such application has been made at this stage and, at this stage, I have formed no view as to the prospects of success of the FC Chow Proceedings. 11. There are substantial issues to be resolved on the taking of accounts as between the Lowes, on the one hand, and Kut Sze Tu Estate, on the other. In that regard, the interests of Kut Sze Tu Estate and FC Chow Estate are not divergent. Accordingly, there is no need for FC Chow Estate to be represented in relation to those matters. On the other hand, if the interests of FC Chow Estate diverge from the interests of Kut Sze Tu Estate on the taking of accounts, it would be appropriate that leave to withdraw the submitted appearance be given to that limited extent. However, that question has not yet arisen. 12. Directions have been given for the FC Chow Proceedings to be heard at the same time as the final taking of accounts. It may be appropriate for directions to be given that the question of the limitation defence raised in the FC Chow Proceedings be determined separately from and prior to all other questions in those proceedings. If the limitation defence succeeds, that will be the end of those proceedings. In the meantime, the proceedings for the taking of accounts should proceed with such expedition as is appropriate. ********** The Schedule 1. A declaration that Geoffrey Lowe, Mary Lowe, Margaret Sze Tu, Helen Sze Tu, Janet McNamara, Kut Sze Tu and FC Chow were partners as from 1 August 1975 and operated the businesses of Wing Yuen Tai and Yee Sing Butchery pursuant to a partnership (the Partnership) in the following shares: 1. Geoffrey Lowe as to a 10 per cent share; 2. Mary Lowe as to a 10 per cent share; 3. Margaret Sze Tu as to a 10 per cent share; 4. Helen Sze Tu as to a 10 per cent share; 5. Janet McNamara as to a 10 per cent share; 6. Kut Sze Tu as to a 20 per cent share; 7. FC Chow as to a 30 per cent share. 2. A declaration that each of the Partnership Properties was acquired by Kut Sze Tu using his own funds as to 10% and funds of the Partnership as to 90%. 3. A declaration that by utilising partnership funds to purchase each of the Partnership Properties, Kut Sze Tu breached the fiduciary duties he owed to the partners of the Partnership, including the Lowes. 4. A declaration that the following is held on trust for the Partnership: a. In respect of the Haig Street Property, 90% of the net proceeds of the sale of a one-third interest in that property held by Kut Sze Tu Estate is held on constructive trust for the Partnership. b. In respect of the Maroubra Road Property, 90% of the net proceeds of the sale of a four-fifth interest in that property held by Kut Sze Tu Estate is held on constructive trust for the Partnership. c. In respect of the Queen Street Property, 90% of the net proceeds of the sale of a sixth-tenth interest in that property held by Kut Sze Tu Estate is held on constructive trust for the Partnership. 5. Declare that 90% of any profits (if any) derived by the Kut Sze Tu from the Partnership Properties after just allowances (if any) since the date of their acquisition were and are held on constructive trust for the Partnership. 6. Declare that the Partnership was dissolved on 1 July 1989. 7. Direct that an inquiry be held to identify what (if any) moneys the Lowes are entitled to from the Kut Sze Tu Estate by way of an account of profits after taking into account any just allowances, in respect of the benefits (if any) obtained by the Kut Sze Tu through his ownership, possession and/or use of his respective interests in the Partnership Properties since their acquisition. 8. Order that Kut Sze Tu Estate pay to the Lowes 20% of the amount of the benefits the Kut Sze Tu obtained through his ownership, possession and/or use of the Partnership Properties since their acquisition as may be found to be due pursuant to the inquiry referred to in order 7 above. ******* Endnotes 1. Lowe v Pascoe [2010] NSWSC 388. 2. Lowe v Pascoe (Supreme Court NSW, Smart AJ, 25 June 2010, unrep). 3. Lowe & Anor v Pascoe & Ors (No 3) [2011] NSWSC 192. 4. Geoffrey Alan Lowe & Anor v Scott Pascoe & Ors [2012] NSWSC 151. 5. Lowe v Pascoe [2012] NSWSC 740. 6. Lowe v Pascoe (No 2) [2012] NSWSC 885. 7. Lowe v Pascoe (No 3) [2012] NSWSC 907. 8. Lowe v Pascoe (No 4) [2012] NSWSC 1493. 9. Lowe v Pascoe (No 6) (Supreme Court NSW, Gzell J, 13 March 2013, unrep). 10. Sze Tu v Lowe [2014] NSWCA 462. 11. See Tory v Megna [2012] NSWCA 41 at [10] and [12]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 March 2018