These two proceedings are concerned with actions of the late Kut Sze Tu (KST), who died intestate on 20 October 1997. The action in question concerned the misappropriation by KST of funds of the Partnership. On 4 March 2021, I published my reasons (the Principal Reasons) for reaching certain conclusions in relation to those proceedings. [1] In these reasons, I shall use terms as defined in the Principal Reasons.
On 4 March 2021, as explained in the Principal Reasons, I directed the Administrator to bring in short minutes of orders reflecting the conclusions reached in the Principal Reasons. I afforded the other parties in both proceedings to specify any objection to the orders proposed by the Administrator. I also indicated that I would afford the parties the opportunity of a further hearing to resolve any dispute as to the orders and to make final orders. I also reserved liberty to the parties to apply if there were difficulties in working out notional reimbursements and distributions in accordance with the Principal Reasons.
On 18 March 2021, the Administrator served short minutes of proposed orders in both the Lowe Proceedings and the FC Chow Proceedings. On 1 April 2021, objections to the proposed orders were served on behalf of the estate of FC Chow by the plaintiffs in the FC Chow Proceedings who are also the fifth to seventh defendants in the Lowe Proceedings (the FC Chow Plaintiffs). The FC Chow Plaintiffs also served proposed amended orders in relation to both proceedings.
At a directions hearing on 15 April 2021, it was indicated on behalf of the parties that the Principal Reasons may be subject to some ambiguity and may indicate some misapprehension on the part of the Court as to the relevant facts. Accordingly, the parties were directed to serve a written outline of any questions as to ambiguity in the Principal Reasons or as to misapprehension of the questions being resolved.
On 29 April 2021, submissions were served on behalf of Mary and Geoffrey in response to the Principal Reasons and the orders proposed by the Administrator and on behalf of the FC Chow Plaintiffs. On the same day, the Administrator served an outline as to questions of ambiguity or misapprehension of questions being resolved. Finally, on the same day, submissions were served on behalf of the FC Chow Plaintiffs as to ambiguity or misapprehension of questions in the Principal Reasons.
On 4 June 2021, the FC Chow Plaintiffs served a response to the submissions of 29 April 2021 by Mary and Geoffrey. That response also addressed questions of costs.
On 8 June 2021, the Administrator served a further outline of submissions on proposed orders together with a third iteration of proposed orders in both proceedings. That outline also attached a further copy of the Administrator's submissions on questions as to ambiguity or potential misapprehension. The third iteration of orders took account of matters raised by the other parties in the earlier documents.
On 13 July 2021, the FC Chow Plaintiffs served alternate calculations of entitlements of each partner of the Partnership. That document was responsive to the Administrator's submissions and calculations of 8 June 2021.
Finally, on 13 July 2021, Mary and Geoffrey served a proposed distribution schedule. That schedule was based on the proposition that all members of the Partnership would be entitled to share in a distribution of the funds available but only on the basis that each member brought to account the benefit received by that partner from any distribution of funds of the Partnership.
Both proceedings were listed for further hearing on 13 July 2021 for the purpose of considering the material summarised above. The Administrator, in consultation with the other parties, prepared an agenda for the hearing. It was proposed that the parties address those matters that require resolution before finalising proposed orders giving effect to the Principal Reasons. It is proposed that, once I have delivered further reasons in the light of the material summarised above and the oral submissions made on 13 July 2021, the parties will confer and endeavour to agree on orders that give effect to the final conclusions of the Court. The parties agree that, once orders have been made, it will be necessary to conduct a further hearing to address the question of costs, including whether the Administrator is entitled to indemnity in respect of his costs.
The Administrator's agenda summarised the questions that the parties wished to ventilate at the hearing as follows:
The Administrator:
accounting for benefits received by the FC Chow Plaintiffs;
whether members of the Partnership other than FC Chow, Mary and Geoffrey, namely, Helen, Margaret and Janet, should receive a distribution from the funds held by the Administrator;
whether Partners who have received unauthorised distributions from the estate of KST ought to account to the estate of KST if they are to receive a distribution from the funds held by the Administrator;
whether Sunly received the Administrator's Final Report and, if so, the consequences in relation to the defences under the Limitation Act 1969 (NSW) (the Limitation Act) pleaded by the Administrator;
whether it was an abuse of process, within the meaning of s 56 of the Civil Procedure Act 2005 (NSW) (the Civil Procedure Act) and in light of UBS AG V Tyne (2018) 265 CLR 77; [2018] HCA 45 for the FC Chow Plaintiffs to bring claims at this stage having regard to the history of the litigation between the parties; and
whether there was any misapprehension on the part of the Court as to whether the Administrator had received all of the proceeds of the sale of the Partnership Properties.
FC Chow Estate:
the notional accounting by the late FC Chow in respect of notional distributions to Sunly and Gordon;
the effect of the Family Arrangement Deed; and
the interests of Sunly and Gordon in the Haig Street Property and the Campbelltown Property.
Mary and Geoffrey:
whether Mary and Geoffrey are entitled to pre-judgment interest; and
whether, if any other Partner is to receive a distribution from the funds held by the Administrator, such Partner should, as a condition of the receipt of such a distribution, contribute to Mary and Geoffrey's costs of the proceedings to date.
A considerable part of the oral argument on 13 July 2021 concerned the detail of the Administrator's calculations of the respective entitlements of various parties. It now appears to be common ground that, although there are not insignificant differences in the approaches adopted by the parties, the net result is not significant, except as to one matter, namely, the extent to which Gordon and Sunly should be required to account for the value of the interests received by them in Partnership Properties that they still own and the proceeds of sale of which have not been received by the Administrator. I shall address separately each of the questions on which I have heard further argument.
[2]
Accounting by Sunly and Gordon
Perhaps the most controversial question concerns the terms upon which the FC Chow estate would receive a distribution from the funds held by the Administrator. In the Principal Reasons I indicated that the balance of the Net Proceeds Trust and the Profits Trust would be distributed pro rata to the members of the Partnership according to their respective interests and that the FC Chow estate would be treated notionally as having received distributions in the amounts notionally added to the Net Proceeds Trust and the Profits Trust in respect of the monies received by Gordon and Sunly from the estate of KST and the interests in the Haig Street Property and the Campbelltown Property that they acquired by gift. Those benefits would then be treated as amounts distributed to Sunly and Gordon in the administration of the estate of FC Chow.
The course that I suggested in the Principal Reasons (see [206] to [209]) was prompted by submissions made on behalf of Geoffrey and Mary, although what I have proposed may go beyond the precise contentions advanced by them. The FC Chow Plaintiffs complain that that result went beyond the case pleaded by Geoffrey and Mary in the Lowe Proceedings.
In their defence filed in the FC Chow Proceedings, Geoffrey and Mary, relevantly, alleged as follows:
The FC Chow Plaintiffs are not entitled to a further share of the assets of the Partnership and Sunly and Gordon have received the benefit of in excess of the entitlement of the FC Chow Plaintiffs to assets of the Partnership from KST;
before there can be any accounting to the estate of FC Chow for its interest in the Partnership, the FC Chow Plaintiffs must account to the Partnership for:
1. two thirds of the Haig Street Property;
2. 20% interest in the Campbelltown Property;
3. the benefit received from the assets of the Partnership; and
4. such of the assets of the estate of FC Chow as are derived from income of the Partnership;
the benefit received by the FC Chow Plaintiffs from the Partnership exceeded the 30% interest in the assets of the Partnership to which the FC Chow estate is entitled.
The FC Chow Plaintiffs contend that the proposal suggested in the Principal Reasons is not based upon any appropriate principle of equity. In any event, the FC Chow Plaintiffs contend, even if it is based on equitable principle, the claim made by the FC Chow Plaintiffs in the FC Chow Proceedings is based on s 65 of the Supreme Court Act 1970 (NSW) and is not a claim for equitable relief.
The FC Chow Plaintiffs complain that they have been denied the opportunity to be heard as to those issues including:
any limitation period in respect of such a claim;
the extent that an account by way of notional distribution of assets of the Partnership was a function of the Family Arrangement Deed; and
whether to do "justice as between the parties", all Partners should be compelled to account given that, all Partners have received distributions, all Partners are now entitled to their pro rata Partnership entitlement and all Partners are parties to the FC Chow Proceedings.
The FC Chow Plaintiffs contend that there is no principle of "justice between the parties" nor equitable maxim that would properly compel the FC Chow estate to account for distributions that were never actually received by FC Chow, in circumstances where that obligation does not exist with respect to any other Partner and where FC Chow has been guilty of no wrongdoing.
The relief sought in the further amended statement of claim filed on 11 March 2019 in the FC Chow Proceedings included:
an order that the Administrator pay to the estate of FC Chow 30% of the amount of the benefits that the late KST obtained through his ownership, possession and/or use of the Partnership Properties; and
an order that such amount be comprised of FC Chow estate's 30% interest in the Net Proceeds Trust and the Profits Trust.
In the alternative, the FC Chow Plaintiffs sought a declaration that they are entitled to an inquiry in similar terms to that made in favour of Mary and Geoffrey in the Lowe Proceedings in respect of the FC Chow estate's 30% share in the Partnership and an order that their entitlements be determined in the Inquiry ordered by the Court of Appeal without the need for a separate inquiry. Alternatively, they sought an order for a separate inquiry.
It is clear enough that the FC Chow Plaintiffs seek equitable relief. In those circumstances, I consider that it is appropriate to formulate relief on the basis that the FC Chow Plaintiffs, in seeking equitable relief, must also be seen to be "doing equity".
I accept that the funds received by Sunly and Gordon both from the estate of KST and by way of gifts consisting of interests in the Haig Street Property and the Campbelltown Property, in one sense, have nothing to do with FC Chow or FC Chow's estate. However, it is clear that, in the present circumstances, where Sunly and Gordon are beneficiaries in the estate of FC Chow, it would be inequitable for them to receive a share of the funds to be distributed by the Administrator, through their beneficial interest in the estate of FC Chow in circumstances where all Partners have been detrimentally affected by the distribution to Sunly and Gordon of funds of the estate of KST and the gifts to Sunly and Gordon of indefeasible interests in the Haig Street Property and the Campbelltown Property. The estate of FC Chow should be treated, as a condition of receiving a distribution from the funds held by the Administrator, as having already received, by way of notional distribution, the benefit conferred on Sunly and Gordon. To ensure that the other beneficiaries under the estate of FC Chow are not detrimentally affected, the notional distribution to the estate of FC Chow will be no greater than the value of the benefit received by Sunly and Gordon from Partnership assets or the estate of KST. Further, the amount of the notional distribution to the estate of FC Chow would not be greater than the entitlement of Sunly and Gordon to a distribution from the FC Chow estate.
[3]
Effect of the Family Arrangement Deed
The FC Chow Plaintiffs contend that no allegation was pleaded in the FC Chow Proceedings that the Family Arrangement Deed created a right of the Administrator to compel the estate of FC Chow to account to the Partnership for assets that FC Chow did not receive and no action for enforcement of the Family Arrangement Deed was initiated by the Administrator or any other party by way of claim or cross-claim in the FC Chow Proceedings. The FC Chow Plaintiffs pose the following questions:
1. Is the effect of the Family Arrangement Deed to create an obligation on the FC Chow estate to account, by way of the notional distribution in respect of assets of the Partnership notionally received from the Partnership in circumstances where:
The FC Chow estate is not a party to the Family Arrangement Deed and is not a beneficiary of the estate of the late KST;
The Family Arrangement Deed relates to the distribution of the assets of the estate of the late KST and not the Partnership;
the indefeasible proprietary interests of Sunly and Gordon and the notional conversion of those proprietary interests are neither assets of the Partnership nor assets of the estate of the late KST or assets of the estate of the late FC Chow;
1. whether the assets that are the subject of the "notional distribution" are assets of the estate of KST or assets of the Partnership: if they are assets of the estate of KST, whether FC Chow must account for them as assets of the Partnership and if they are assets of the Partnership how the Family Arrangement Deed can empower their collection;
2. whether the indefeasible interests of Sunly and Gordon, or the notional conversion of those indefeasible interests into notional proceeds, can be either assets of the Partnership or assets of the estate of KST or assets of the FC Chow estate;
3. whether any such obligation arising under the Family Arrangement Deed to account should apply to all parties to the Family Arrangement Deed.
In the Principal Reasons, I said that the effect of the Family Arrangement Deed was relevant only to the extent to which there are funds in the estate of KST to meet any claim by any of the members of the Partnership who might be found to be successful. I said that the effect of the Family Arrangement Deed may have some bearing on the outcome of the FC Chow Proceedings. [2]
In dealing with the depletion of the assets of KST's estate in the Principal Reasons, I indicated that the amounts received by Gordon and Sunly from the proceeds of sale of the Partnership Properties should be added notionally to the Net Proceeds Trust and that the sums received by Gordon and Sunly from the estate of KST should notionally be added to the Profits Trust. In fact, of course, Gordon and Sunly have not received proceeds from the sale of the Partnership Properties but have received an indefeasible proprietary interest in the Partnership Properties. It is the value of that interest that should be added notionally to the Net Proceeds Trust and that value should be treated as having been received by Sunly and Gordon. Thus, the estate of FC Chow would be treated notionally as having received distributions in the amounts thus notionally added to the Net Proceeds Trust and the Profits Trust. I then observed that that was the effect of the Family Arrangement Deed. By making that last observation, I was not intending to indicate that the notional distributions were based upon the effect of the Family Arrangement Deed. In fact, the Family Arrangement Deed had no bearing. Rather, the proposal that I outlined was an attempt to ensure a just and equitable result. That is to say, as a condition of FC Chow's estate receiving a distribution from the Partnership, there would be a notional accounting by Sunly and Gordon in the manner explained above. The net effect would be neutral so far as the estate of FC Chow was concerned. However, Sunly and Gordon would, in effect, account for the benefit they have received from KST both during his lifetime and from his estate after his death. [3]
[4]
The Interests of Gordon and Sunly in the Haig Street Property and the Campbelltown Property
I observed that, in June 2004, the Administrator sold KST's interest in the Haig Street Property to Sunly and Gordon for full consideration, that, in September 2005, he sold KST's interest in the Maroubra Road Property to an unrelated party and that, in November 2005, he sold KST's interest in the Campbelltown Property to Margaret and Helen for full consideration. In the Principal Reasons I said that the Administrator received all the proceeds of those sales.
The Administrator sold KST's interest in the Haig Street Property to Sunly and Gordon on 14 May 2004 and received the proceeds of the sale of KST's interest in the Maroubra Road Property on or around 20 October 2005. The total purchase price for the Haig Street Property was $360,000. That sum was paid by means of a bank cheque in the sum of $129,250 given by Sunly and Gordon to the Administrator on 14 May 2004 and an interim distribution from the estate of KST to each of Sunly and Gordon in the amount of $115,375 each. The effect was that the Administrator received only $129,250 from the sale of KST's interest in the Haig Street Property. The amount received by the Administrator for KST's interest in the Campbelltown Property was equal to the sale proceeds less legal fees of $9,579.
It is clear that Sunly and Gordon continued to hold indefeasible interests in the Haig Street Property and the Campbelltown Property, which they received by way of gift from KST. My intention is that there be notionally brought to account the value of the interests acquired by Sunly and Gordon.
[5]
Distributions to and Contribution by Other Partners
If FC Chow's estate is entitled to a distribution, as I have concluded, the other members of the Partnership are also entitled to participate. However, they would be permitted to do so only upon the basis that they bring to account any benefits they have received from KST in the same fashion as is proposed for Sunly and Gordon.
Following the hearing on 13 July 2021, Helen, Janet and Margaret were invited to indicate whether they claimed to be entitled, as Partners, to share in any distribution by the Administrator. Only one response was received, from Janet.
Janet did not file a submitting appearance in either the Partnership Proceedings or the FC Chow Proceedings and has not actively participated in any of the proceedings and her conduct may be regarded as being consistent with having filed a submitting appearance in both proceedings. By her written submission dated 3 August 2021, Janet informed the Court that, while she believes that she may be eligible to receive a distribution due to the misappropriation of partnership funds by KST, she understood that the Administrator will not have sufficient funds to make a distribution to her. Furthermore, she said, she does not wish to contribute to the legal costs incurred by the parties, should that be a precondition of any further distribution to her.
Janet asserts that her position is significantly different from the other members of the Partnership in that she received substantially less than all other members. So much was acknowledged by counsel for Geoffrey and Mary in the course of the oral argument on 13 July 2021 when he observed that everyone except Janet, Geoffrey and Mary received very substantial amounts of the misappropriated funds in the years from 1998 to 2001. Counsel indicated that all Partners, with the exception of Janet, Geoffrey and Mary, have received what is likely to be in excess of the entitlements that they would have in relation to any distribution.
Janet accepts that, some 23 years ago she received a distribution of $80,000 from KST's estate. There has been no claim for recovery of that sum from her. In the circumstances, I propose to treat her written submission as indicating that she would only press a claim to distribution if the amount of that distribution, after bringing to account the sum of $80,000, was a positive amount.
Clearly enough neither Margaret nor Helen has any interest in the estate of FC Chow and neither has indicated any wish to participate in any further distribution on the terms contemplated, namely, that each would be required to bring to account the value of any funds received from KST during his lifetime or from the estate of KST that can be shown to represent funds of the Partnership.
[6]
Pre-judgment Interest for Mary and Geoffrey
Mary and Geoffrey contend that they are entitled, under s 100 of the Civil Procedure Act 2005 (NSW) (the Civil Procedure Act) to pre-judgment interest in respect of amounts that are ultimately held to be payable to them. Section 100 relevantly provides that, where proceedings are for the recovery of money, the Court may include interest in the amount for which judgment is given. Geoffrey and Mary assert that their claim can fairly be said to have been brought for the recovery of money and culminated in the Court of Appeal's making of an order on 23 December 2014 for them to be paid a sum of money. They assert that, accordingly, the Inquiry is intended to work out the amount of that judgment and should culminate in findings or declarations as to the amount that they are entitled to be paid.
Geoffrey and Mary complain that while the money that would be payable to them has been earning interest in the hands of the Administrator, the rate of interest reflects the conservative investment of a trustee. They claim to be entitled to an award of interest out of what remains in the hands of the Administrator so as to compensate them properly for being kept out of the reasonable use of their money. In effect, they complain that the use by the Administrator of term deposits for the funds held by him was a conservative form of investment attracting only a conservative rate and that, because their money has not been deposited at mercantile rates, their money has lost value over the time during which it has been held by the Administrator. They assert that, to achieve "an appropriate rate of interest" beyond that conservatively obtained by the Administrator, an annual rate of 2.5% should be applied, giving rise to pre-judgment interest of a sum in excess of $200,000, which, they contend, should be paid from the balance of the funds after they have been paid their equitable interest and the value of the costs order made by the Court of Appeal.
I appears that, under the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 6.12(6) and r 6.12(7), interest under s 100 must be claimed specifically. [4] Geoffrey and Mary did not claim interest under s 100. Further in the Principal Reasons, I rejected the claim by Geoffrey and Mary to be entitled to compound interest. To the extent that there is a record of the interest derived by KST and the Administrator on rent received from the Partnership Properties, that is the extent of the benefit received by KST. Where there is no record of the rent received, and therefore interest derived from the rent, an estimate can be made by reference to the periods during which there are records. [5]
In any event, the Inquiry is not a claim for recovery of money but is an inquiry ordered by the Court of Appeal involving an exercise in quantification. Thus, Geoffrey and Mary accept, in their written submissions, that the exercise in which I am presently engaged in the Inquiry is quantifying the pre-existing proprietary interest of Geoffrey and Mary in the funds held by the Administrator, on the terms laid down by the Court of Appeal. The claims made by way of the second further amended statement of claim, including the claim for pre-judgment interest, have been determined and no order has been made. There is no basis upon which, in the conduct of the Inquiry, that question should be reopened.
Thus, as is clear, the Partnership Proceedings ultimately resulted in an order for the Inquiry, the taking of an account. To the extent that KST received a benefit from funds that were misappropriated from the Partnership or that the estate of KST has received benefits from those funds, those benefits will be brought into the account. I do not consider that there is a basis upon which Mary and Geoffrey are entitled to interest before judgment that has not in fact been received by the Administrator or by KST prior to his death. There is no claim for damages against the Administrator and no claim for damages against the estate of KST in respect of wrongdoing by KST during his lifetime. Had there been a judgment for damages or equitable compensation the position might have been different. However, it is no more than a claim for an account and Geoffrey and Mary are therefore not entitled to interest on any amount which might be found to be owing to them pursuant to the Inquiry directed by the Court of Appeal.
[7]
Receipt by Sunly of the Final Report
In the Principal Reasons, I indicated that the Administrator's pleaded defence under s 47 of the Limitation Act is based on the knowledge of Sunly, as the representative of the estate of FC Chow, as at 24 June 2002. I observed that the pleaded defence alleged that the requisite knowledge was acquired, at the latest, on 24 June 2002. [6] I observed that the only evidence of service of the Interim Report on the legal personal representative of FC Chow was a letter from the Administrator's solicitor to the Administrator dated 24 June 2002 written by Mr Petrucco but that Mr Petrucco gave no direct evidence of service notwithstanding that he swore an affidavit. [7] Ultimately, I was not persuaded, on the balance of probabilities, that the Final Report was received by Sunly on that date. Ultimately, I was not persuaded that the Administrator was entitled to rely upon the Limitation Act.
[8]
Abuse of Process
I outlined in the Principal Reasons most of the circumstances that led to the commencement of the FC Chow Proceedings. I consider that it was not unreasonable for the legal personal representatives of FC Chow to have failed to commence the FC Chow Proceedings before they were commenced. It was not unreasonable to proceed on the basis that the claim being brought in the Partnership Proceedings by Geoffrey and Mary was for the benefit of all members of the Partnership. Certainly, Sunly and Gordon, who were not Partners, had a specific interest in resisting the claims brought in the Partnership Proceedings in so far as it was sought to divest them of their interest in the Partnership Properties. In the manner outlined above, I have endeavoured to ensure what appears to me to be a fair and just result of success on behalf of FC Chow estate in asserting the same claims as have been made by Mary and Geoffrey. I do not consider that the conduct of the various legal personal representatives of FC Chow's estate amounts to an abuse of the Court's process.
[9]
Further Conduct of Proceedings
As I apprehend the position, I have dealt with each of the matters raised by the parties following the further hearing on 13 July 2021. As I have indicated, I will direct the Administrator, after conferring with the other parties, to bring in short minutes of orders that give effect to the final conclusions that I have reached. Any of the other parties who wishes to object the orders proposed by the Administrator should notify the Court, the Administrator and the other parties in writing within 7 days setting out particulars of the objections. I will reserve leave to the parties to apply to resolve any dispute. It will then be necessary to hear the parties further on the question of costs, including whether the Administrator is entitled to indemnity in respect of his costs.
[10]
Endnotes
See Lowe v Pascoe (No 9) [2021] NSWSC 163.
See [106] of the Principal Reasons.
See [208] of the Principal Reasons.
See Pheeney v Doolan (No 2) [1977] 1 NSWLR 601 at 605-606.
See [87] of the Principal Reasons.
See [172] and [175] of the Principal Reasons.
See [177] of Principal Reasons.
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: 30 September 2021