Legal Research
Cases
Fast v Rockman

Fast v Rockman

Case [2015] VSCA 61 15 April 2015

Type to search within this case.

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

---

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)

---

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.

---

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…

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 Fast v Rockman

Details

AGLC: Fast v Rockman [2015] VSCA 61
Case: [2015] VSCA 61
Decision Date: 15 April 2015

CaseChat Overview and Summary

Fast v Rockman is a case involving the trustees of a trust fund, who sought judicial direction on certain matters concerning their administration of the trust. The trustees, who were also the beneficiaries, were directed by the court to answer specific questions regarding the trust's operation. The matter was heard in the Supreme Court of Victoria, where the primary judge provided the directions and ordered the trustees to pay costs of their own application. The trustees appealed the costs order, arguing that the questions posed were hypothetical and that the judge did not provide adequate reasons for his decision.

The key legal issues in the case were whether the questions posed by the trustees were hypothetical and whether the primary judge provided adequate reasons for his decision to order the trustees to pay costs. The trustees argued that the questions were hypothetical and that the judge did not provide adequate reasons for his decision, while the respondent argued that the questions were not hypothetical and that the judge provided sufficient reasons for his decision.

The court held that the questions posed by the trustees were not hypothetical and that the primary judge provided adequate reasons for his decision to order the trustees to pay costs. The court found that the questions were not hypothetical because they related to the actual administration of the trust and the trustees' duties as fiduciaries. The court also found that the primary judge provided adequate reasons for his decision because he clearly set out the reasons for his decision in his reasons for judgment. The court held that the primary judge's reasons were sufficient to enable the trustees to understand the basis of the decision and to enable any party to the appeal to challenge the decision.

The court dismissed the appeal and upheld the primary judge's order that the trustees pay costs of their own application. The court held that the primary judge had discretion to order costs under rule 54.02 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) and that he had exercised that discretion appropriately in this case. The court found that the trustees' application was vexatious and oppressive and that the primary judge had acted reasonably in ordering the trustees to pay costs. The court held that the appeal should be dismissed and that the primary judge's order for costs should be upheld.

Orders