Fast v Rockman
[2015] VSCA 61
•15 April 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2013 0123
| JOHN FAST & ORS (according to the attached Schedule) (The First, Second and Third Appellants sue as executors of the estate of Irvin Peter Rockman, deceased, and as the trustees of The Irvin Rockman Trust, The Zachary Rockman Trust and The Rachel Rockman Trust, and the fourth to eighteenth Appellants sue as the trustees of the Trusts described in the Schedule attached) | Appellants |
| v | |
| ZACHARY ROCKMAN and RACHEL ROCKMAN (infants by Lynette Ann Rockman, their Litigation Guardian) | Respondents |
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| JUDGES: | WARREN CJ, SANTAMARIA JA and GINNANE AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 29 October 2014 |
| DATE OF JUDGMENT: | 15 April 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 61 |
| ORDER APPEALED FROM: | 12 August 2013 (McMillan J) |
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TRUSTS – Trustees – Judicial directions – Whether questions hypothetical – Costs of trustees’ application – Whether primary judge gave adequate reasons – Supreme Court (General Civil Procedure) Rules 2005 (Vic) r 54.02.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellants | Mr N J O’Bryan SC | Kenna Teasdale Lawyers |
| For the Respondents | Dr K P Hanscombe QC with Mr A P Dickenson | Taussig Cherrie Fildes |
WARREN CJ
SANTAMARIA JA
GINNANE AJA:
This appeal is against the dismissal of the appellants’ originating motion, which sought directions from the Court about their duties as trustees or as directors of companies which are trustees.
The first, second and third appellants are the executors of the estate of the late Irvin Peter Rockman (‘the deceased’), and directors of the companies which are the trustees of trusts of which the respondents are beneficiaries.
The respondents are the infant children of the deceased. Zachary Rockman was born on 19 February 1999 and Rachel Rockman was born on 2 August 2003. Their mother is their litigation guardian.
The respondents together have a fixed 59% interest as tenants in common in twelve of the trusts pursuant to Deeds of Appointment dated 28 July 2009 in relation to each of the twelve trusts, which became irrevocable upon the death of the deceased. The other beneficiaries of those twelve trusts are Matthew and Edward Rockman, adult children of the deceased, who each hold a fixed 20.5% interest in the twelve trusts.
The amended originating motion sought the following relief:
(1)Directions from the Court concerning the nature and extent of their [the appellants’] obligations to furnish copies of unaudited and/or incomplete financial and accounting records and information and to answer accounting questions raised by the Defendants and representatives of the Defendants and, in particular:
(a)Whether it is sufficient compliance with their obligations for the Plaintiffs to provide to the Defendants within 14 days of completion, the annual audited accounts of the estate and of each of the Trusts for each financial year;
(b)Whether the Defendants are entitled to what, if any and under what circumstances, further information concerning the financial records, dealings and accounts of the estate and Trusts;
(c)Whether the Plaintiffs are entitled to require the Defendants to pay the reasonable costs incurred by the estate and the Trusts in responding to the various requests for information, accounts and other matters raised by the Defendants from time to time.
(2)An order that provision be made for the costs of this application.
(3)Such further or other orders or directions as the Court thinks appropriate.
We refer to the matters contained in the questions in paragraphs 1(a) to (c) respectively as the first, second and third questions.
Proceeding before the primary judge
Before the primary judge, the appellants relied on three affidavits in support of the application, being two affidavits of Michael David Schoenfeld (one of the appellants) and Brendan James Kelly, the solicitor for the appellants.
The appellants argued that there were a number of outstanding requests for documentation, coupled with a history of threats of litigation if the information sought was not provided, and that, accordingly, there was a live dispute between the parties in respect of which it was proper for the appellants to seek directions from the Court in its equitable jurisdiction, consistent with the principles recently discussed in Re Steiner [No 2].[1] The outstanding requests were for information contained in QuickBooks, details of petty cash transactions and bank statements.
[1][2013] VSC 357.
The respondents submitted that the application should be dismissed on the basis that the appellants were asking the Court, under the guise of seeking judicial advice, to give answers to hypothetical questions of an ill-defined nature.
The primary judge dismissed the originating motion. She held that the questions in the originating motion were hypothetical questions about future events. She ordered that: (i) the first, second and third appellants pay the respondents’ costs of the proceeding, including reserved costs, personally and not be indemnified out of any of the trust funds, and; (ii) pay the appellants’ costs of the proceeding personally and not be indemnified out of the trust funds of the other plaintiffs.
Grounds of appeal
The appellants rely on three grounds of appeal. They are that the primary judge erred in law:
(1)in requiring that, for the purposes of hearing and determining an application under r 54.02 of the Supreme Court (General Civil Procedure) Rules 2005 (‘RSC’), there must be a disputed issue inter partes between the appellants and the respondents, in the absence of which such an application must be dismissed as hypothetical and incapable of invoking the Court’s jurisdiction under RSC 54.02.
(2)in ordering that the costs of the RSC 54.02 application (both of all appellants and the respondents) be paid by the natural person appellants personally and that they be denied any right of indemnity out of the assets of the trusts.
(3)in giving no reasons, alternatively no adequate reasons, for making the orders described in paragraphs (1) and (2) above.
The appellants contended that, having regard to the evidence before the primary judge, they were entitled to have their application seeking directions from the Court under RSC 54.02 determined and that she erred in dismissing the application and making the costs orders described above.[2]
[2]During the hearing of the appeal, the question arose whether the appeal was competent or whether leave to appeal was required. The parties were given leave to file submissions addressed to the question whether the appeal was competent and, if not, whether leave should be granted. The parties filed written submissions. The appellants contended that they were not bringing an appeal against the advice which had been given; rather, they contended that the appeal was brought against an ‘erroneous refusal by the trial judge to exercise the jurisdiction’ under RSC 54.02 and 54.03. They said ‘this jurisdictional error lies at the heart of’ their appeal. They submitted that where a judge simply refuses to exercise the jurisdiction conferred on the Court, an appeal lies as of right to the Court of Appeal under s 10 of the Supreme Court Act 1986. The respondents did not contend ‘that there is any bar in principle to an appeal by a trustee from a decision’ under RSC 54.02; they referred to Ansett Australia Ground Staff Superannuation Fund Pty Ltd v Ansett Australia Ltd (2003) 176 FLR 393. However, they contended that the order made by the judge in the present case was interlocutory, in that it did not finally determine the rights of any party. Accordingly, the respondents said that the appellants required leave to appeal under s 17A(4)(b) of the Supreme Court Act 1986 as it stood when the notice of appeal was served on 14 August 2013. It is preferable not to rule on the question of competence as the parties have not joined issue on whether there is a right of appeal.
The respondents contended that the decision of the primary judge was correct.
Legislation and rules
The jurisdiction of the Court to give directions to a trustee is contained in RSC 54.02, which states:
54.02 Relief without general administration
(1)A proceeding may be brought for any relief which could be granted in an administration proceeding and a claim need not be made for the administration or execution under the direction of the Court of the estate or trust in respect of which the relief is sought.
(2)Without limiting paragraph (1), a proceeding may be brought for—
(a)the determination of any question which could be determined in an administration proceeding, including any question—
(i)arising in the administration of an estate or in the execution of a trust;
(ii)as to the composition of any class of persons having a claim against an estate or a beneficial interest in an estate or in property subject to a trust; or
(iii)as to the rights or interests of a person claiming to be a creditor of an estate or to be entitled under the will or on the intestacy of a deceased person or to be beneficially entitled under a trust;
(b)an order directing an executor, administrator or trustee to—
(i) furnish and, if necessary, verify accounts;
(ii) pay funds of the estate or trust into court; or
(iii) do or abstain from doing any act;
(c) an order—
(i)approving any sale, purchase, compromise or other transaction by an executor, administrator or trustee; or
(ii)directing any act to be done in the administration of an estate or in the execution of a trust which the Court could order to be done if the estate or trust were being administered or executed under the direction of the Court.
Background[3]
[3]The following summary of the facts is taken from the parties’ Statement of Facts and Issues.
During the period between 7 December 2011 and 21 May 2013, there was correspondence between the solicitors for the appellants and their accountants and the solicitors for the respondents, in relation to financial information about the estate of the deceased and in relation to financial information about the trusts in the Rockman group of companies referred to in the Schedule.
On 7 December 2011, Langley McKimmie, accountants, sent a letter to the appellants seeking information concerning movements in trust assets since 16 July 2011 and the current balance of assets then in the Rockman group of companies and trusts.
On 21 December 2011, the appellants’ solicitors requested that Langley McKimmie provide confirmation that they were retained by the respondents. On 16 February 2013, the appellants received a copy of the authority held by Langley McKimmie on behalf of the respondents.
On 13 April 2012, the respondents’ solicitors sent a letter to the appellants requiring full disclosure of all of the estate financial records for the last two financial years by close of business on 27 April 2012, failing which an application would be made to obtain such an order.
On 26 April 2012, the appellants’ accountant sent copies of the 2011 tax returns and financial statements for all of the trusts, and letters containing 2011 tax return information, to the respondents.
On 30 April 2012, draft balance sheets of the estate for the two dates, being the anniversary of the death of the deceased (30 August 2010) and 31 March 2012, were provided to the respondents’ solicitors.
In May 2012, in response to a further request for current information relating to the assets, draft unaudited financial statements were sent to the respondents’ accountants.
On 1 June 2012, the respondents’ solicitors sent a letter requesting explanations and source documents relating to various matters, and full disclosure and proper particulars within 14 days, failing which an application would be made to the Court forthwith and without further notice.
On 26 June 2012, the appellants’ solicitors sent a letter to the respondents’ solicitors enclosing further financial information regarding the estate, including the general ledger of the estate as at 31 March 2012.
On 28 June 2012, the first, second and third appellants, in their capacity as executors of the estate of the deceased, and the fourth executor, were served with a summons issued by the respondents in proceeding S PRB 2010 14109, which was a proceeding to determine the validity of an informal will. The summons sought orders that the present appellants provide information and documents in relation to the estate of the deceased and, in addition, sought orders requiring detailed information to be provided to the respondents as to the 1965 Irvin Peter Rockman Trust, the 380 St Kilda Road Unit Trust and the Rockman Home Loan Trust, to obtain information about the estate of the deceased in relation to an issue of abatement that had been raised by those appellants after trial in that proceeding but before judgment. On 24 July 2012, senior counsel and solicitors for the first, second and third appellants (in their capacity as executors of the estate) and the fourth executor of the estate, and senior counsel and solicitors for the respondents’ litigation guardian, subsequently met and reached an agreement in relation to the summons. In accordance with that agreement, the respondents’ summons was withdrawn.
On 15 August 2012, the respondents’ accountants requested a detailed explanation of the accounting information sent to them in April and May 2012.
By letter dated 3 September 2012, the appellants’ solicitors responded to the request and informed the respondents that the trustees were in the process of finalising the draft 2012 accounts, that they anticipated that that task would be completed by the external accountants by the end of November 2012, and requested the payment of $2,200 to cover the anticipated fee of the appellants’ accountants for answering the queries in relation to the 2011 accounts.
On 23 November 2012, the respondents’ solicitors sent a letter to the appellants’ solicitors stating that the information provided was ‘inadequate and unsatisfactory’ and that they had received instructions from the respondents to issue proceedings under RSC 54.02 if there was not ‘appropriate provision of information and details’ by 30 November 2012.
On 11 December 2012, the appellants’ solicitors wrote to the respondents’ solicitors providing further information and stating that the appellants’ accountants expected to finalise the unaudited 2012 accounts by the end of January 2013, that the 2012 accounts and all subsequent final year accounts of the estate and the trusts would be externally audited, that a copy of the auditors’ certificate would be provided to the beneficiaries in future as soon as it was available, and that the appellants considered that the financial statements prepared by the appellants’ accountants should be sufficient to let the respondents know what the trust property was and how it was being administered.
On 13 December 2012, the appellants’ solicitors wrote to the respondents’ solicitors providing further information and bank statements in respect of the estate and two of the trusts.
On 14 December 2012, the appellants’ solicitors sent further documents to the respondents’ solicitors regarding assets of some of the trusts and stated, in effect, that further information sought by the respondents would be included in the 2012 final accounts.
On 12 February 2013, draft accounts for the trusts and the estate were provided to the respondents. The appellants’ solicitors’ letter enclosing the draft accounts stated that the draft accounts had not yet been approved by the directors and that they would be subject to an audit.
On 1 March 2013, the respondents’ solicitors sent a letter to the appellants’ solicitors stating that the respondents’ accountants required further information to be able to advise the respondents’ mother and requesting a copy of the QuickBooks back-up electronic files of the trusts for 2011, 2012 and the current financial year, and minutes of the trustees’ meetings and resolutions for those years, within seven days.
On 18 March 2013, the appellants’ solicitors sent a letter to the respondents’ solicitors stating that, having regard to the matters referred to in the letter, the trustees considered it advisable to apply to the Court for directions on the furnishing of information of the sorts now demanded, and stating that they would make that application shortly.
On 16 May 2013, the respondents’ solicitors sent a letter to the appellants’ solicitors which alleged that their client had ‘serious concerns’ about certain expenses incurred in the administration of the trusts and sought explanations of expenses incurred, including consulting fees, superannuation contributions, management fees and wages.
On 21 May 2013, the appellants’ solicitors sent a letter to the respondents’ solicitors confirming that the trustees had applied to the Court for directions under RSC 54.02.
On 6 June 2013, the appellants’ solicitors sent a letter to the respondents’ solicitors enclosing draft tax returns for each of the trusts and corporate entities which comprised the Rockman group.
On 2 August 2013, the audited accounts for the 2012 financial year for the trusts and the estate were provided to the respondents’ accountants.
On 6 August 2013, the respondents’ accountants were provided with copies of Director Remuneration Reports in relation to the first, second and third appellants, Myer Family Office Investment Policies for each of the respondents and Myer Family Office Investment Portfolios as at 30 June 2012 for each of the respondents. Trust Distribution minutes for the trusts and a KPMG Remuneration Report in relation to the directors’ and associates’ salaries were also made available to the respondents’ accountants.
What was not provided
The appellants did not provide petty cash receipts to the respondents, as requested by the respondents, as they took the view that the total petty cash expenditure was of minor value and disproportionate staff costs would be involved. The respondents did not file any evidence disputing the appellants’ assertions in relation to these matters.
The appellants did not provide a copy of the QuickBooks electronic back-up files for each of the trusts as requested by the respondents. The appellants explained that the reason for not providing those files was that an amount of work would be required to segregate the transactions posted into QuickBooks that related only to the respondents, and because the appellants considered that: (a) inspection would disclose private information of beneficiaries other than the respondents, and; (b) the accounts had been independently audited by Nexia, chartered accountants. The respondents did not file any evidence disputing the appellants’ evidence in relation to these matters.
The appellants did not provide the bank statements of the various trusts requested by the respondents because the appellants considered that the bank statements were also the subject of the audit conducted by Nexia and that not all entries related to the respondents. The respondents did not file any evidence disputing the appellants’ evidence in relation to these matters.
Relevant legal principles
There are two principles governing the role of trustees which are applicable to this proceeding.
The first matter on which the appellants relied is the Court’s jurisdiction to hear an application by a trustee for the advice and directions of the Court concerning the performance of the trustee’s duties. This jurisdiction is conferred by RSC 54.02. Those provisions confer extensive power on the Court. In Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand,[4] Gummow ACJ, Kirby, Hayne and Heydon JJ in considering s63 of the Trustee Act 1925 (NSW), which provides a statutory avenue for a trustee to seek an opinion, advice or directions from the Court stated:
No implied limitations on power to give advice. Secondly, although at least Ipp JA and Hodgson JA were not prepared to hold that in the circumstances of this case s 63 gave no power to give judicial advice and although the plaintiffs did not argue to the contrary, it is desirable to confirm, with respect, that their Honours were correct. There are no express words in s 63, and no implications from the express words which are used in s 63, that automatically preclude the court from giving the advice which the Association sought. There is nothing in s 63 which limits its application to ‘non-adversarial’ proceedings, or proceedings other than those in which the trustee is being sued for breach of trust, or proceedings other than those in which one remedy sought is the removal of a trustee from office.[5]
[4](2008) 237 CLR 66.
[5]Ibid 89 [56] (citation omitted).
The other principle of relevance in this appeal is the right of beneficiaries of a trust to seek from the trustee accurate information as to the state of the trust. That principle has been stated in the following terms:
[I]f a beneficiary requests it, a trustee is in general obliged to provide documents and information to the beneficiary, at his cost, in relation to the trust property and to provide an accounting in respect of the administration of it.[6]
[6]Hartigan Nominees Pty Ltd v Rydge (1992) 29 NSWLR 405, 431 (Mahoney JA), cf Re Fairbairn [1967] VR 633, 638.
It is unnecessary for the purposes of this appeal to consider the debate over whether the beneficiaries’ right to copies of documents is a proprietary right or follows the trustees’ duty to carry out their obligations under the trust.[7]
[7]See Schmidt v Rosewood Trust Ltd [2003] 2 AC 709, McDonald v Ellis (2007) 72 NSWLR 605 and J C Campbell, ‘Access by trust beneficiaries to trustees’ documents information and reasons’ (2009) 3 Journal of Equity 97.
The grounds of appeal
The appellants relied on three grounds of appeal which we will consider in turn.
Ground 1: Alleged error by requiring that there be disputed issues inter partes
The parties’ submissions
The appellants submitted that the Court had wrongly imposed a limitation on its power to give judicial advice to a trustee, whereas there are no limitations. RSC 54.02 provides a wide power. The judge erred in considering the application to be hypothetical, as there was a dispute between the parties in relation to the management and administration of the trusts.
The respondents submitted that the judge did not dismiss the proceeding on the ground that it was not a contested matter inter partes. Rather, she considered that any attempt to answer the appellants’ hypothetical questions would do no more than provide a dissertation on the law that could not affect the rights and obligations of the parties in the future and, thus, the application was futile. Where a trustee seeks advice from the Court, the question must be framed with sufficient precision to enable the Court to answer it. There are very limited exceptions to the proposition that a Court should not answer hypothetical questions.
The first question asked by the appellants sought advice as to their obligations in future years. There was no evidence, nor could there be, as to what events might occur in relation to the estate and each of the trusts in future years. As a general principle, beneficiaries are entitled to call upon trustees for accurate information as to the state of the trust. Equally, a trustee has an obligation to provide access to documents in its possession to the beneficiaries. This obligation is founded upon the trustee’s fiduciary duty to keep the beneficiaries informed and to render accounts.
The primary judge made clear that, as a general proposition, the beneficiaries were entitled to more than just audited accounts.[8]
[8]Transcript of Proceedings, Fast v Rockman (Supreme Court of Victoria, S CI 2013 02554, McMillan J, 9 August 2013) 16, cf 29.
The judge made her reasons, in respect of the first question, clear during the course of the appellants’ submissions. At various stages, she said:
[O]ne of the concerns I have is the orders that you seek are very general and to a certain extent almost completely hypothetical. So I don’t actually have a problem in front of me, I’ve just got a tell me what to do sort of question. …
Which I don’t think I can do under the order because it is going to end up hypothetical. … [T]here’d be a myriad of different situations which might arise and this is so general as to almost be not helpful.[9] …
That’s the problem that I see with the motion. Mr Dickenson has said in the past that the problems that he has seen with the motion and it’s been raised in the directions hearings before in terms of whether this hearing was appropriate at all, but I did list it because I wanted to get the matter finalised so that it’s not hanging over everyone’s heads, but there’s always been that ongoing problem that the orders that you seek in your motion are academic.[10]
[9]Transcript of Proceedings, Fast v Rockman (Supreme Court of Victoria, S CI 2013 02554, McMillan J, 9 August 2013) 2–3.
[10]Transcript of Proceedings, Fast v Rockman (Supreme Court of Victoria, S CI 2013 02554, McMillan J, 9 August 2013) 15.
The judge also described the application as ‘hypothetical and seeking very general directions for matters in the future’.[11]
[11]Transcript of Proceedings, Fast v Rockman (Supreme Court of Victoria, S CI 2013 02554, McMillan J, 9 August 2013) 35.
In response to the appellants’ submissions, she said :
I have a strong view that this is a hypothetical advisory application and the court doesn’t have the power to hear those sorts of applications.[12]
[12]Transcript of Proceedings, Fast v Rockman (Supreme Court of Victoria, S CI 2013 02554, McMillan J, 9 August 2013) 36.
The judge considered that the second question sought judicial advice about events that had not occurred and asked the Court to describe potentially infinite circumstances in which unidentified documents may or may not be required to be provided to the respondents.
The judge considered that the third question sought judicial advice regarding undefined future events. That question could only be answered with respect to unknown future events.
Consideration of ground 1
We are not persuaded that the primary judge erred in dismissing the application. She placed considerable weight on the proposition that the questions were hypothetical. By that, she meant that they were not appropriate questions to be answered. The power contained in RSC 54.02 confers a discretion on the Court; it does not have to answer every question asked of it.
The primary judge also correctly considered that the first question could not be answered because of the breadth of a beneficiary’s right to seek information as to the administration of a trust.
What is sufficient compliance with a trustee’s obligation to provide information to beneficiaries will depend upon the details and breadth of the information requested and the justification for its provision viewed objectively. The provision of audited accounts of the trust may not satisfy a trustee’s duty to provide sufficient information to beneficiaries.
The same process of reasoning made it inappropriate for the judge to answer the second question. It was not for the Court to attempt to envisage all the circumstances that might entitle beneficiaries to seek further information concerning the financial records, dealings and accounts of the estate of the trust. We accept that the advisory power may extend to hypothetical situations.[13] But the question, by its indeterminate ambit inherent in the words ‘what circumstances’, reverses the appropriate order and asks the Court to identify or to predict the circumstances about which its advice is sought. The judge appropriately referred to the ‘myriad of different situations which might arise’.[14]
[13]Re Syme [1980] VR 109, 116–17 (Lush J).
[14]Transcript of Proceedings, Fast v Rockman (Supreme Court of Victoria, S CI 2013 02554, McMillan J, 9 August 2013) 3.
The third question again was too vague to enable the Court to provide any meaningful answer. The principles governing a trustee’s right to indemnity in respect of costs incurred in the performance of duties are well established. We refer to them below, in dealing with the second ground of appeal.
The appellants’ entitlement to costs in responding to requests for information will depend upon the nature of the request and how it is responded to.
Ground 2: Alleged error in ordering costs to be paid by the natural person appellants personally and denying them any right of indemnity out of the trust funds
The parties’ submissions
The appellants argued that the primary judge erred in the exercise of her discretion because the trustees were entitled to their costs that had been properly incurred, reasonably and bona fide in the administration of the trust.
The appellants submitted that, on the history of the dealings between the appellants and the respondents, there was no basis upon which the judge could properly find that the application under RSC 54.02 was unnecessary or unreasonable.
The respondents submitted that the proceeding was issued by the first, second and third appellants as directors of the corporate trustees and executors of the estate. The corporate trustees were added as plaintiffs after the first directions hearing. The first, second and third appellants had continued with the application despite the Court telling them that it was hypothetical. The costs were not properly incurred because the proceeding was of no utility as it did nothing more than subject the estate, the trusts and the infant beneficiaries to unnecessary costs.
Consideration of ground 2
Generally, a trustee has the right to be paid, out of the trust fund, costs properly incurred in the execution of the trust.[15] The costs of a trustee’s application for directions are generally awarded on an indemnity basis out of the estate.[16] RSC 63.26 provides:
[15]Trustee Act 1958 (Vic) s 36(2).
[16]H A J Ford and W A Lee, Lawbook Co, Principles of the Law of Trusts, vol 2 [17.280]; Trustee Act 1958 (Vic) s 36(2).
63.26 Trustee or mortgagee
Unless the Court otherwise orders, a party who sues or is sued as trustee or mortgagee shall be entitled to the costs of the proceeding out of the fund held by the trustee or out of the mortgaged property in so far as the costs are not paid by any other person.
The appellants’ summons had been before the Court previously and the difficulty with the terms of the questions had been raised by the respondents. To repeat the judge’s comments which we have previously set out:
That’s the problem that I see with the motion. Mr Dickenson has said in the past that the problems that he has seen with the motion and it’s been raised in the directions hearings before in terms of whether this hearing was appropriate at all, but I did list it because I wanted to get the matter finalised so that it’s not hanging over everyone’s heads, but there’s always been that ongoing problem that the orders that you seek in your motion are academic.[17]
[17]Transcript of Proceedings, Fast v Rockman (Supreme Court of Victoria, S CI 2013 02554, McMillan J, 9 August 2013) 15.
Counsel for the appellants stated that his clients would be ‘happy to list what we understand to be the outstanding things’,[18] that is, the outstanding requests made by the respondents.
[18]Transcript of Proceedings, Fast v Rockman (Supreme Court of Victoria, S CI 2013 02554, McMillan J, 9 August 2013) 19.
The judge said that, because the application was hypothetical and there was no ‘actual situation’ that the Court was required to deal with, she could not see why costs should be borne by the estate.[19]
[19]Transcript of Proceedings, Fast v Rockman (Supreme Court of Victoria, S CI 2013 02554, McMillan J, 9 August 2013) 38.
The judge’s order for costs was an unusual order. However, the difficulties with the appellants’ application had been raised at previous hearings of the application; nevertheless the application had been pursued. In those circumstances, we do not consider that there was any error in the exercise of discretion as to costs.
Ground 3: Alleged error that the judge did not provide adequate reasons
The parties’ submissions
The appellants referred to the fact that the judge did not deliver a written judgment. They also submitted that the oral reasons that she gave at the hearing did not disclose any process of reasoning which justified either the decision or the orders which she made. This rendered the decision bad in law.
The respondents submitted that the judge’s reasons were clear from the transcript and the argument. In any event, lack of reasons did not amount to an error of law in this case.
Consideration of ground 3
We do not consider that this ground of appeal has been established. The judge’s reasons were clearly stated in exchanges with counsel for the appellants. We have set out extracts from them earlier in these reasons. The judge’s path of reasoning was clear. She considered that the questions could not be answered because they were hypothetical, in the sense that they asked about matters which had not arisen and might not arise.
Conclusion
None of the grounds of appeal succeed.
We would dismiss the appeal, and, had leave been required, we would not have granted it.
SCHEDULE OF APPELLANTS
JOHN CLAUDE FAST as executor of the Estate of Irvin Peter Rockman and Trustee of The Irvin Rockman Trust, the Zachary Rockman Trust and The Rachel Rockman Trust.
MICHAEL DAVID SCHOENFELD as executor of the Estate of Irvin Peter Rockman and Trustee of The Irvin Rockman Trust, the Zachary Rockman Trust and The Rachel Rockman Trust.
PHILIP CAREY BROWN as executor of the Estate of Irvin Peter Rockman and Trustee of The Irvin Rockman Trust, the Zachary Rockman Trust and The Rachel Rockman Trust.
IPR NOMINEES PTY LIMITED as Trustee of The 1965 Irvin Peter Rockman Trust, The 1965 Lionel Rockman Trust, The 1965 Marion Borderie Trust, The 1965 Russell Rockman Trust and The IP Rockman Family Investment Trust No.1.
CHEAP HOME LOANS (IPR) PTY LIMITED as Trustee of The 1993 IPR Trust.
DRESMONT AUSTRALIA PTY LIMITED as Trustee of The Rockman Home Loan Trust.
QUARRYMORE PTY LIMITED as Trustee of The Quarrymore Trust.
WILLOWSBEND PTY LIMITED as Trustee of The Willowsbend Trust.
IRVIN PETER HOLDINGS PTY LIMITED as Trustee of The Irvin Peter Holdings Trust.
CUFFLYNKS PTY LIMITED as Trustee of The Cufflynks Trust.
IPR GEMBROOK PTY LIMITED as Trustee of The IPR Gembrook Trust, The Irvin Bulleen Trust and The Second Portsea Unit Trust.
CRAYFISH PROPERTY PTY LIMITED as Trustee of The Crayfish Properties Trust.
NORTHROCK PROPERTIES PTY LIMITED as Trustee of The Northrock Properties Trust.
SILVER VALLEY PTY LIMITED as Trustee of The Silver Valley Trust.
NORTHROCK GROUP PTY LIMITED as Trustee of The 380 St. Kilda Road Unit Trust.
BAPCHILD PTY LIMITED as Trustee of The Dolphin Unit Trust.
I & L SUPERANNUATION PTY LIMITED as Trustee of The I & L Superannuation Fund.
IPR SUPERANNUATION FUND NO.2 PTY LIMITED as Trustee of The IPR Superannuation Fund No. 2.
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