Barr v Rockman - [2017] VSC 581

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S CI 2017 02320

JAMES ERIC BARR (as an executor of the estate of Susie Rockman, deceased)	First Plaintiff
-and-
DELMONT CREST PTY LTD (ACN 053 633 971) (as trustee of the Rockman Family Trust)	Second Plaintiff
v
LIONEL ROCKMAN	First Defendant
-and-
RONALD MERKEL (as an executor of the estate of Susie Rockman, deceased)	Second Defendant

---

JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	28 July 2017
DATE OF JUDGMENT:	28 September 2017
CASE MAY BE CITED AS:	Barr & Anor v Rockman & Anor
MEDIUM NEUTRAL CITATION:	[2017] VSC 581

---

WILLS AND ESTATES — Executors seeking to finalise administration of estate — Risk of contingent liability to estate — Where risk is remote — Whether executors justified in making final distribution of estate — Supreme Court (General Civil Procedure) Rules 2015, r 54.02.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Ms K A O’Gorman	Keith R Cameron
For the First Defendant	Mr R E Cook	Salinger & Co
For the Second Defendant	Mr E M Nekvapil	Kenna Teasdale

HER HONOUR:

Introduction

Susie Rockman died on 2 October 2007. Probate of her will was granted to her three named executors on 16 November 2007. One of her executors has since died. The first plaintiff (‘Mr Barr’) and the second defendant are the remaining executors and trustees of her estate.

The second plaintiff (‘Delmont Crest’) is the trustee of the Rockman Family Trust (‘the Trust’).

The first defendant is a specified and general beneficiary of the Trust and a beneficiary of the estate. The first defendant did not oppose the directions sought by the plaintiffs.

Although a trustee of the estate, the second defendant did not consent to being joined as a plaintiff to the proceeding and, pursuant to r 54.03(b) of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’), he has been named as a defendant in the proceeding. The second defendant will abide the decision of the Court on the directions sought and, if the directions as sought by Mr Barr in the estate of the deceased are made by the Court, he wishes to be included in those directions as an executor of the estate. Mr Barr agreed with the second defendant’s position.

Plaintiffs’ application

Pursuant to r 54.02(2) of the Rules, the plaintiffs seek the Court’s directions concerning the liability of the trustees of the estate and Delmont Crest as trustee of the Trust to creditors and beneficiaries upon the distribution of the estate and the Trust. In support of their applications, the plaintiffs relied on an affidavit of Mr Barr sworn 16 June 2017 in his capacity as an executor of the estate and a director of Delmont Crest (‘the Barr affidavit’). Mr Barr seeks directions as an executor of the estate and a director of Delmont Crest to ensure that the estate is properly administered and the Trust is properly…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Barr v Rockman

Details

AGLC: Barr v Rockman [2017] VSC 581
Case: [2017] VSC 581
Decision Date: 28 September 2017

CaseChat Overview and Summary

The case of Barr v Rockman involved the executors of the estate of a deceased person, who were seeking to finalise the administration of the estate. The executors faced a potential contingent liability that posed a remote risk to the estate. This matter was heard in the Supreme Court, where the executors sought guidance on whether they could proceed with making the final distribution of the estate given the remoteness of the risk.

The primary legal issue before the court was whether the executors were justified in making the final distribution of the estate considering the risk of a contingent liability. The executors argued that the risk was so remote that it should not prevent them from concluding the administration. The court needed to determine whether the risk was indeed remote enough to allow the executors to proceed with their intended distribution of the estate.

The court examined the relevant provisions of the Supreme Court (General Civil Procedure) Rules 2015, particularly rule 54.02, which provides a framework for the final distribution of an estate. The court considered the nature and likelihood of the contingent liability, finding that the risk was indeed remote. Given the remoteness of the risk, the court concluded that the executors were justified in proceeding with the final distribution of the estate. The court emphasised that while executors must act prudently, they should not be unduly burdened by speculative or unlikely risks.

The final orders of the court were that the executors were justified in making the final distribution of the estate. The court granted the executors permission to distribute the remaining assets to the beneficiaries as per the terms of the will, finding that the risk of the contingent liability was not sufficient to prevent them from concluding the administration of the estate.

Orders