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

Judgment 1These proceedings relate to property that forms part of the estate of the late Kut Sze Tu (referred to in the proceedings as "KST"). The plaintiffs are Geoffrey Lowe and his wife Mary Lowe. Mrs Lowe is the daughter of KST. The first defendant, Scott Pascoe, is the trustee of KST's estate. The other defendants are Mrs Lowe's siblings. Margaret Sze Tu and Helen Sze Tu are the second and third defendants, respectively. Janet McNamara is the fourth defendant and filed a submitting appearance on 28 November 2008. Shiu Shing Sze Tu (known as Sunly) and Shiu How Sze Tu (known as Gordon) are respectively the fifth and sixth defendants and are the sons of KST and his second wife, the late Fung Chun Chow (referred to in the proceedings as "FC Chow"). Stella Sze Tu as representative of the estate of the late FC Chow is the seventh defendant and filed a submitting appearance on 17 April 2008. Without any disrespect, I will refer to most of the parties by their first names. 2By Further Amended Statement of Claim filed on 15 November 2008 the plaintiffs sought a declaration that they, KST, FC Chow, Margaret, Helen and Janet operated two family businesses in the 1970s and 1980s pursuant to a partnership (the Partnership). The businesses were a grocery shop known as Wing Yuen Tai (referred to in the proceedings as "WYT") and the Yee Sing Butchery (referred to in the proceedings as "YS") and were located in Haymarket in Sydney, New South Wales. The plaintiffs sought an order that the Partnership be wound up. The plaintiffs also sought a declaration that the interests of each of the defendants in the three properties are held on trust for the Partnership. Two properties are in Maroubra and are referred to in the proceedings as "Maroubra Road" and "Haig Street". The other property is in Campbelltown and is referred to in the proceedings as "Queen Street" (referred to together as "the three Properties"). The plaintiffs also sought consequential relief including the taking of accounts or equitable compensation. 3There were 25 days of hearing before Acting Justice Smart on various dates in 2009, 2010 and 2011. His Honour delivered judgments on 7 May 2010, 25 June 2010, 1 February 2011 and 24 March 2011. Unfortunately, in mid 2011 whilst part-heard in applications, inter alia, to call further evidence, his Honour suffered an illness that rendered him incapable of finalising the proceedings. An order was made on 25 August 2011 terminating the proceedings before his Honour. 4On 30 September 2011 and 28 October 2011 I heard competing applications on the way forward in these proceedings. The plaintiffs made applications for final declarations and orders as reflected in Smart AJ's judgments. The defendants made application for an order pursuant to s 88 of the Civil Procedure Act 2005 for a fresh trial before a new Judge on the conditions that all the evidence adduced to date would be before the new Judge and the parties would have liberty to adduce further evidence and cross-examine witnesses including witnesses who have already given evidence. These reasons are in respect of those applications. 5On 30 September 2011 Mr AA Henskens, of counsel, leading Mr AR Zahra, of counsel, appeared for the plaintiffs, Mr J Stoljar SC appeared for the first defendant. Mr D Williams SC, leading Ms J Little, of counsel, appeared for Sunly and Gordon. Margaret appeared unrepresented. The only changes to the appearances on 28 October 2011 were that Mr FM Douglas QC led for the plaintiffs (and by that time Mr Henskens, who remained retained, had taken silk). Helen also appeared unrepresented. The proceedings before Smart AJ 6On 6 November 2008, Smart AJ ordered a separate hearing on liability in respect of the following issues: (a) the existence of a partnership between the plaintiffs and the defendants or any predecessors; (b) the dissolution of the partnership; (c) the fiduciary duties, if any, owed by KST to the plaintiffs and the breaches of any of those duties; (d) whether the three Properties are held on trust; (e) the defences of laches, including gross laches and acquiescence; (f) the defences based on the Limitation Act 1969 (sections 15, 47, 48 and 68A); (g) the defences based on estoppel; and (h) the defences based on indefeasibility of title. The May Judgment 7Smart AJ delivered judgment on 7 May 2010: Lowe v Pascoe [2010] NSWSC 388 (the May Judgment). The relevant events with which his Honour was dealing dated back to the 1970s. There was a paucity of contemporaneous documents coupled with allegations of receipts of large amounts of cash allegedly undisclosed to the taxation authorities. His Honour referred to the impact of the "lapse of time" on the parties' recollections and the difficulty in determining "the truth and what happened" [1]. 8His Honour described the issues in the litigation as follows: 8 These proceedings arise out of allegations that KST and Geoffrey entered into an agreement to purchase two businesses conducted by the late KST, namely WYT, a general store and mixed business, often referred to as a grocery business, in "Chinatown", Sydney and YS Butchery located around the corner from WYT; the conduct of those businesses and allegations that there was a partnership involving the plaintiffs, KST, his second wife and Margaret, Helen and Janet; allegations that KST used partnership funds to purchase a property in Haig Street in December 1978 for $129,000 in his name, Sunly's name and Gordon's name each as tenants in common as to a one third share (both Sunly and Gordon still being infants aged respectively about 12 and 13), a property in Maroubra Road in February 1983 for $585,000 in the name of KST as to four one-fifth shares and Margaret as to one one-fifth share as tenants in common, and a property in Queen Street in July 1988 for $1.58 million in KST's name as to six one-tenth parts with Margaret, Gordon, Helen and Sunly as to the remaining one-tenth parts each and as tenants in common. 9 It is alleged that these three last-mentioned properties were impressed with trusts and held on behalf of the alleged partnership. 9His Honour found that the assets of the estate of the late KST relevantly included: a 4/5 th share in Maroubra Road as tenants in common with Margaret; a 1/3 rd share in Haig Street; and a 6/10 th share in the Queen Street property [37]. Maroubra Road was sold to a third party in 2005 and the proceeds of sale are held in trust, pending the outcome of the proceedings. Haig Street was transferred to Sunly and Gordon in 2004 for $367,000. KST's interest in Queen Street was sold to Margaret and Helen with the consequence that Margaret has a 5/10 th share, Helen has a 3/10 th share and Gordon and Sunly each have a 1/10 th share. 10Smart AJ referred in detail to the history of the family, the purchasing of the businesses (including moneys allegedly contributed by Geoffrey), the manner in which the businesses were operated (including extensive involvement of family members), formation of the partnership agreement, the finances of the business and the purchasing of the three properties by KST ([57]-[307]). Smart AJ dealt in detail with the different versions of events given by the parties in respect of the operation of the businesses. 11His Honour found that the Partnership Agreement was entered into on 1 October 1975 by KST, Geoffrey, Mary, Margaret, Helen, Janet and FC Chow. His Honour said: 96 Under clause 3, which specified the shares held by each person in the alleged partnership, it is stated "and the capital of such shares shall be contributed by the partners in accordance with the share or shares taken up by them". That did not occur. 97 Clause 7 provides: "The profits of the partnership shall be divided between the partners in accordance with the share or shares of the capital taken up by the partners respectively and the losses of the partnership shall be borne by them in the same shares and proportions." While, according to the tax returns, there were distributions of profits, these did not occur in fact. ... 102 Clause 20 provides: "All property and assets purchased and acquired or contracts or leases entered into by a partner in his own name as agent for the partnership shall become partnership property and all such property and assets so purchased and acquired shall be held in trust by such partner or partners in trust for the partnership." The plaintiffs contended that KST did acquire property out of the partnership assets and was acting as agent for the partnership. This clause reflects the general law. It also creates an express trust of the property and assets purchased and acquired. 12After consideration of all the circumstances, Smart AJ found that there probably was a partnership substantially as alleged by the plaintiffs in the Further Amended Statement of Claim [325]. His Honour said he was "inclined to consider at this stage" a declaration that the plaintiffs, the late KST and FC Chow, Margaret, Helen and Janet were partners as from 1 August 1975 and operated the WYT and YS businesses pursuant to a partnership in the following shares: KST as to 20%; Geoffrey Lowe as to 10%; Mary Lowe as to 10%; Margaret as to 10%; Helen as to 10%; Janet as to 10 %; and FC Chow as to a 30 per cent share [573]. 13A major issue in the proceedings was the amount of cash received by the businesses. Smart AJ said, "There was no dispute that retail customers of WYT and YS paid in cash. The cash payments by the retail customers of WYT were not included in the WYT notebooks in which Mary and Margaret made entries" [287]. However, his Honour noted that there was a dispute as to the number of retail customers of WYT and YS (at [288]) and therefore the amount of cash that was received. His Honour said (at [289]): The [recorded] wholesale sales of WYT probably accounted for a substantial portion of its business and income, but I would not dismiss the income received in cash from the retail customer sales and other cash customers. That income was substantial over the years and probably greater over the period August 1975 - January 1981 than in later years. It is probable that KST did not disclose to [his accountant] Mr Wong the total amounts received in cash by WYT. 14His Honour was satisfied that "substantial" amounts of cash were received in the operation of WYT and YS, but concluded that it was not possible to determine accurately how much was received [294]. His Honour was not satisfied that the YS accounts for the financial years 1984, 1985 and 1986 were accurate or that the income tax returns included the receipt of the cash [297; 305]. The WYT business was closed and the YS business was sold but the evidence was such that his Honour was unable to determine the sale price or what had happened to the proceeds of sale [306; 463]. 15His Honour said (at [306]): Two difficult questions remain, that is, what was the sale price of YS and what happened to the proceeds of sale? The evidence does not enable me to answer those questions. There is no evidence from any of the defendants of the amount or amounts received by KST from Mr Tony Lam on the sale of the YS business. Mr Wong was not told. Gordon was probably told, but does not remember the amount. I did not regard this as untruthful evidence. It was many years ago and Gordon has other interests. I do not know if the sale price was paid in a lump sum about the time the sale was completed or over a period of time. Nor do I know if the sale price was paid in cash in whole or in part. 16His Honour observed at [312]-[313]: ... Whatever legal forms may have been created, KST regarded the two businesses as his and his complete control as a very important factor. He did not favour the interposition of companies and trusts. KST was an astute businessman who knew how to make and save money. He was interested in Chinese-style businesses which, at least in part, dealt in cash. Stock processes, costs, sales and purchases may be adjusted. Splitting business incomes amongst family members is not unusual. It was not a cause of surprise that Johnson Wong, his firm or company was not told by KST or any of his four daughters that no distributions of profits ever took place. KST probably only told Mr Wong and his daughters what KST believed they needed to know. 17The plaintiffs relied upon a report of Mr Michael Hill, a chartered accountant. Smart AJ noted that Mr Hill's "report depended, in large measure, upon the assumption he was asked to make that KST had access to no other assets of consequence than the Wiley Park and Fairfield flat properties and the Coogee Bay Road unit" (at [332]). Mr Hill outlined his instructions as follows (at [332]): I have been instructed to consider the following matters in relation to the Wing Yuen Tai partnership (the partnership) and Mr Sze Tu for the period from 1 August 1975 to 30 June 1988 (the relevant period): a) Estimate the annual and total profit and cash flows generated by the businesses operated by the partnership, Wing Yuen Tai (WYT) and Yee Sing Butchery (Yee Sing); b) Estimate the annual and total profit and cash flows of the rental properties acquired by Mr Sze Tu; c) Estimate the annual and total profit and cash flows of the partnership; d) Estimate the total funds which were likely available to Mr Sze Tu; and e) If possible, determine the source of funds used to purchase the rental properties acquired by Mr Sze Tu during the relevant period. 18His Honour said of Mr Hill's report (at [355]): From Mr Hill's report, it is possible to consider the position on the basis of whether KST, apart from the rental income, had access to funds other than the funds generated by WYT and YS to purchase the Haig Street property in late 1978, the Maroubra Road property in February 1983 and the Queen Street property in 1988. That involves considering the financial position at each of those times of KST and whether Margaret made the contribution she claims in February 1983 to about one-fifth of the purchase price of the Maroubra Road property. The financial position of WYT and YS, so far as known, also has to be considered. 19At [357] his Honour observed: Mr Hill concluded that, after deductions were made from the total cash flow of $1,757,627.00 for income tax and living expenses and interest was added, the total net cash flow available was $1,088,162.00. Mr Hill wrote that the shortfall between the net cash flow available to KST of $1,088,162.00 and the costs of the properties acquired was $1,294,146.00 (rounded to $1.3 million). Mr Hill was not provided with any information on the affairs of KST, the partnership and family affairs, other than in relation to the "partnership" businesses. He was not provided with any information on any other activities, businesses, assets or related matters so he could not form a view on any of these matters. Mr Hill noted that it may be possible that the net income generated by the two businesses was understated in the "partnership" tax returns to minimise the tax that its "partners" would have had to pay. Mr Hill said that this was one possibility. He had no knowledge that, specifically, there was an understatement of the net income of the "partnerships". I appreciate the force of Mr Hill's overall approach. ... 20However, Smart AJ then made the following remarks (at [372]): While I value the evidence of Mr Hill, I have taken a different approach. I have not accepted all the assumptions which Mr Hill was asked to make, nor his use of the ABS figures as to living expenses. Whichever approach is taken, there was a significant unexplained shortfall. I have taken the view, on the balance of probabilities, that KST made up the shortfall out of partnership funds including cash receipts received by WYT and YS which were not disclosed. 21His Honour was satisfied that KST could not have purchased his 4/5 th share in the Maroubra property "using the moneys legitimately available to him" [362]. His Honour said he was "prepared to assume" that KST "must have had assets and money or resources of which his family were not aware" [369]. However, his Honour was not prepared to assume that such assets, money or resources were in the sums required to fund the purchase of the Maroubra Road and Queen Street properties. His Honour referred to the size of the amounts and the absence of any mortgages and concluded that KST probably "used partnership funds" to make the purchase [369]. 22At [445 e)], Smart AJ said: The plaintiffs have established that KST, in order to purchase his shares in the Maroubra Road property and the Queen street property, utilized a sum of about $1 million or a little less which did not come from the disclosed income of WYT and YS. The rental incomes from the Wiley Park and Fairfield properties were not sufficient to make up the balance. Some of the moneys used to purchase "his" share in the Maroubra Road property and the Queen Street property probably came from the cash received by WYT and YS and controlled by KST but not disclosed. Some of such moneys may have come from stock manipulation but I am unable to make a finding on this point. KST was not entitled to appropriate the proceeds of sale of YS to his own use. 23His Honour said that he was "inclined to consider" making an order winding up the partnership and declaring that five-sixths of Maroubra Road and the whole of Queen Street were acquired by KST using partnership moneys, and that the legal interests of the defendants in those properties were held on trust for the partnership [573]. 24His Honour also said that he did not propose to make a declaration as to the portion of the Haig Street property because the portion had not been defined. However, his Honour said that "provisionally, and subject to argument" he had in mind "on a broad assessment about $60,000.00 or about 45 per cent of the cost of purchasing the Haig Street property probably came from partnership funds" [574]. 25His Honour said he was concerned that there may need to be a taxation review of WYT and YS for the financial years 1975-1989 and ordered that his reasons be forwarded to the Commissioner of Taxation (the Commissioner). 26His Honour referred to the difficulties of making an order for the taking of accounts in respect of the partnership. Those difficulties included the fact that both KST and FC Chow were deceased and that the first to seventh defendants may not be in a position to account, as they would not have the requisite knowledge as to the operation of WYT and YS. His Honour also referred to the fact that the events in question occurred many years ago and there had been much delay with the consequence that the availability and reliability of evidence had been affected. His Honour also referred to the differing positions of the interests of the children in the Haig Street property because Sunly and Gordon were minors at the time of the purchase. 27His Honour said that he envisaged that various matters required attention once the taxation issues were resolved. They included the net rental receipts of the properties, estimates or assessments of the value of the occupation of the Haig Street property, estimates or assessment of the sale value of YS as at June 1986, directions as to the disposition of the moneys held by the administrator, determination of where the burden of any additional tax penalties and interests should lie and the provision for the costs and expenses of the administrator and any receiver and manager of the partnership business [583]. His Honour said that he did not propose to make any consequential orders "at this stage" and that the question of what relief should be ordered "remains to be decided". His Honour also observed that in view of the lack of evidentiary materials and the length of time that had elapsed it may become necessary to make a number of broad assessments and concluded "I doubt if the conventional orders would be appropriate" [584]. 28His Honour adjourned the matter for further hearing as to declarations and orders "to be made at this stage". He also said that he was considering fixing a date in September to enable directions to be given as to the future course of the proceedings noting that it may not be practicable to appoint a receiver and manager of the partnership businesses on the next occasion. His Honour said that he was contemplating "giving all parties liberty to apply on seven days' notice because of the matter being stood over to 9 September 2010 to allow the ATO to consider the position". His Honour also said that rather than referring the matter to an Associate Justice, consideration should be given to whether it may be preferable to refer the matter to a Referee. The June Judgment 29Smart AJ heard submissions on 8 June 2010 and delivered a second judgment on 25 June 2010 (the June Judgment). At [7], his Honour discussed his findings in relation to the Maroubra Road property in the May Judgment in the following terms: (a) I dealt with the issue of the source of funds for the purchase of the Maroubra Road property in paragraphs 369, 425 - 428 and 573(3) of the earlier Judgment. In paragraph 425 I noted that there was no explanation of how the late Kut Sze Tu ("KST") could have acquired between 30 June 1980 and 14 February 1983 about $400,000.00 to $500,000.00 in savings. In paragraph 426 I wrote that Mr Hill's analysis of the available cash had satisfied me that the money provided by KST for the purchase of five-sixths interest in the Maroubra Road property probably came from receipts from the businesses of Wing Yuen Tai ("WYT") and the Yee Sing butchery ("YS"). I next referred to the substituted Appendix N (part of Exhibit Y) to Mr Hill's report. That Appendix includes both available cash from WYT and YS and the Wiley Park units and the Fairfield units. For the years ended 30 June 1979, 1980, 1981 and 1982 the income from the businesses of WYT and YS greatly exceeded the income from the Wiley Park and Fairfield units, that is, by several times. The available cash figures referred to in the substituted Appendix N included both sources of income. The figures for the year ended 30 June 1979 were affected by the purchase of the Haig Street property and Mr Hill calculated that the surplus of funds after purchase of the Haig Street property was $82,727.00. (b) It was a mistake to treat the substituted Appendix N as only containing the moneys received from WYT and YS. To reach his conclusion in paragraph 6.3.3 of his report, that the partnership would have had sufficient funds to purchase the Maroubra Road property, Mr Hill appears in substituted Appendix N to have combined the moneys received from WYT and YS with those received from the Wiley Park units and the Fairfield units. I did not pick this up in the Judgment of 7 May 2010. This means that there will have to be an enquiry as to the amount of partnership moneys used in the purchase of the Maroubra Road property. From the figures set out in the substituted Appendix N, it would seem that the majority of the moneys used to purchase the five-sixths interest held by the late KST in the Maroubra Road property probably came from WYT and YS. I did not draw this matter to the attention of counsel on 8 June 2010 and will hear them before finalising the terms of the declaration. (c) My provisional view is that the declaration should read: "2. A declaration as at 20 October 1997 that five-sixths of the Maroubra Road property was acquired by the late Kut Sze Tu (in his name and that of the second defendant) substantially using moneys of the partnership." (d) On my calculations, based on substituted Appendix N, moneys received from the Wiley Park and Fairfield units for the years ended 30 June 1979, 1980, 1981 and 1982 totalled $162,075.00. Further adjustments would reduce the moneys received and available in the year ended 30 June 1979 to allow for the purchase of the Haig Street property in late 1978. 30His Honour then said of the Maroubra Road and Queen Street properties (at [8]): Ms Helen Sze Tu submitted that, while the Court had found that a partnership existed, it had made no assessment whether some of the moneys used by the late KST to buy the five-sixths share of the Maroubra Road property and the entire Queen Street property had been, on the balance of probabilities, that of the late KST, as distinct from partnership moneys. That submission is correct. I had no intention of making such an assessment. It was not an issue which I resolved. I anticipated that the enquiry which was to follow would determine, inter alia, how much of KST's money and how much partnership money was used to purchase the five-sixths share of the Maroubra Road property and the Queen Street property respectively. I was satisfied on the balance of probabilities that partnership moneys had been used in the purchase of the Maroubra Road and Queen Street properties. I regret that any words I used have misled the parties. 31In relation to findings regarding the Queen Street property made in the May Judgment, his Honour commented as follows (at [9]): (a) The plaintiffs sought a declaration that the whole of the Queen Street property was acquired by the late Kut Sze Tu in his name and that of the second, third, fifth and sixth defendant using moneys of the partnership. (b) The fifth and sixth defendants submitted that the declaration should read " A declaration that the late Kut Sze Tu acquired the Queen Street property using moneys some of which were partnership property." (c) A study of substituted Appendix N reveals that, in the years ended 30 June 1984, 1985, 1986, 1987 and 1988, substantial moneys were received from the Wiley Park and Fairfield units. An enquiry will need to be held to determine the amount of partnership moneys used in the purchase of the Queen Street property. This will be complicated by endeavouring to calculate the moneys received from the Maroubra Road property. Two adjustments will be needed. First, the starting figure will be five-sixths of the money received. Secondly, it will have to be ascertained what proportion of the moneys to purchase the five-sixths interest came from WYT and YS and what proportion came from the money received from the Wiley Park and Fairfield units. Some broad assessments may have to be made. (d) I invite the parties to check my figures and my understanding of substituted Appendix N, both as to the Maroubra Road and Queen Street properties. 32His Honour also made the following comments about his findings in relation to the Queen Street and Maroubra Road properties: 14 It was submitted that it was not possible for the Court on the evidence, on the balance of probabilities, to reach concluded decisions on the amounts of partnership moneys used in the purchase of the Maroubra Road and Queen Street properties. There was some inter-relation between these properties. It was suggested that some of the moneys received from the Maroubra Road property had been used in the purchase of the Queen Street property. I was satisfied that partnership moneys had been used in the purchase of each of these properties but I was not able, on the balance of probabilities, to determine the amounts of partnership funds so used. The late KST had other sources of income, especially from the Wiley Park and Fairfield properties (subject to any outstanding issues as to the entitlement to the rents of these properties). 15 I did not accept Mr Hill's assessment that there was a shortfall of about $1.3 million when the Queen Street property was purchased and that a sum of this order came from partnership funds. However, I was satisfied that a substantial sum came from partnership funds. Some of the moneys may have come from the proceeds of sale of the YS butchery business. In my Judgment of 7 May 2010 I dealt with the broader issues in accordance with my Judgment of 6 November 2008 (as later supplemented). I was, in general, not concerned with ascertaining particular financial details. The taking of an account or the assessment of equitable compensation was to follow. 16 My statement in paragraph 569 of the Judgment of 7 May 2010 holding that there was a breach of an express breach of trust created under the partnership agreement of the Maroubra Road property (excluding Margaret's share) and the whole of the Campbell town property was intended to indicate that there were breaches of trust in both instances in that partnership moneys had been used by KST in both purchases. The quantification of the partnership moneys so used should be determined by the enquiry which follows. 33With regard to the Haig Street property, his Honour said as follows (at [13]): The plaintiffs sought a declaration that 45 per cent of the Haig Street property was acquired by the late Kut Sze Tu (in his own name and that of the fifth and sixth defendants) using moneys of the partnership. See paragraph 574 of my Judgment of 7 May 2010. Reference was also made to paragraphs 358 - 360. Counsel for the fifth and sixth defendants submitted that, as the Court was not able to determine on the evidence, on the balance of probabilities, the exact amount of partnership moneys contributed to the purchase of the Haig Street property, it was properly the matter of further enquiry and that I should not pre-empt such an enquiry by making a broad assessment. It is possible that some further evidence may become available if there is a taxation review. I did not accept the submission that if the exact amount of partnership moneys employed by KST in the purchase of the Haig Street property could not be quantified on the balance of probabilities, no allowance should be made. On the current materials the percentage and amount provisionally mentioned in paragraph 574 of the Judgment is a cautious assessment of the amount of partnership moneys used in the purchase of the Haig Street property. I thought, on the balance of probabilities, that some partnership moneys had been used by KST in the purchase of the Haig Street property and that an assessment should be made of the moneys likely to have been so used. The Court has to do the best it can on the available material. I have not overlooked the loan account of KST to which counsel made reference. I am prepared to receive further evidence and to hear further argument on this issue. It is an issue that should probably be resolved after the conclusion of any taxation review and prior to any enquiry. 34His Honour remained of the view that no final orders should be made pending the Commissioner of Taxation's response to the May Judgment. He said at [12]: The Commissioner of Taxation has extensive powers of investigation and may seize relevant documents. While the findings of the Commissioner may have limited relevance, the material uncovered and available from any taxation review may be relevant. The administration of the estate and resolution of these proceedings probably cannot satisfactorily progress until the taxation review, if any, has occurred and any amended assessments have been issued. 35A declaration was made as to existence of the partnership, as foreshadowed in the May Judgment (at [573]), at [27] of the June Judgment as follows:

Geoffrey Alan Lowe & Anor v Scott Pascoe & Ors

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