Recent Cases

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 (27 November 2023) (Bell CJ, Mitchelmore JA and Griffiths AJA)


Catchwords:


JUDGMENTS AND ORDERS – Inconsistency – where funds misappropriated from partnership – where proceedings commenced by appellants claiming existence of partnership and entitlement to amounts from estate of partner who misappropriated the funds – where proceedings commenced by others seeking distributions from constructive trusts declared over estate funds – where inquiry ordered into what monies appellants entitled to from estate – whether costs order made by primary judge inconsistent with earlier Court of Appeal costs orders – whether Court of Appeal orders insulated costs order in favour of appellants from subsequent diminution or alteration through inquiry

PARTNERSHIPS AND JOINT VENTURES — Rights and duties between partners — Contribution and indemnity – whether substantive contribution claim raised – whether issue of contribution determinable by primary judge as part of consideration of costs – whether primary judge erred in failing to determine, or constructively denying, appellants’ contention that other members of partnership were liable to contribute to their costs of proceedings – whether costs incurred in the ordinary and proper conduct of the business of partnership within meaning of Partnership Act 1892 (NSW), s 24(1)(2)(a) – whether costs incurred in manner giving rise to relevant equity grounding right of contribution