SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 7433 of 2004
| FIFTEENTH EESTIN NOMINEES PTY LTD (ACN 005 291 832) & ORS | Appellants |
| v | |
| BARRY ROSENBERG (as Executor to the Estate of Emanuel Rosenberg, deceased) & ANOR | Respondents |
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JUDGES: | Maxwell P, Neave and Redlich JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 22-23 January 2008 | |
DATE OF JUDGMENT: | 27 May 2009 | |
MEDIUM NEUTRAL CITATION: | [2009] VSCA 112 | |
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EQUITABLE OR PROMISSORY ESTOPPEL – Whether father estopped from removing trustee of discretionary trust and changing will because of alleged representations and promises to daughter and son-in-law – Whether judge erred in rejecting claims regarding representations – Whether judge erred in finding that no detriment was suffered in reliance on alleged representations or promises – Whether constructive trust of assets established – Whether judge erred in finding that appropriate order, if either claim was made out, would be for equitable compensation.
PRACTICE AND PROCEDURE – Father died shortly before appeal was heard – Son nominated as executor of will, but probate not yet granted – Application for order that son be made respondent to the appeal in substitution for father – Supreme Court (General Civil Procedure) Rules 2005 rr 9.09(2) and 16.03(1)(b).
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| APPEARANCES: | Counsel | Solicitors |
| For the appellants | Mr G R Ritter QC with Mr R Greenberger and Ms L M Powderly | Kalus Kenny |
| For the respondents | Mr P B Murdoch QC with Mr S H Parmenter | B2B Lawyers |
I Introduction
II Background to the proceedings
III Management of the Investment Trust
IV Summary of grounds of appeal
V Is Emanuel’s personal representative a party to the appeal?
VI Were the pleaded representations made?
A The pleadings
B Summary of alleged representations
C The evidence
D His Honour’s findings
E The significance of the credibility findings
F The attack on the credibility findings…………………………………………………….48
G Should his Honour have found that any of the pleaded representations were made out?
VII The issue of detriment
A Execution of the Dissolution Agreement
B Management of the Investment Trust and its assets.
C The taking over of the Delf Brass business
D Ian Berger’s loan to Project Hardware, the guarantee of its debts and the loan by Project Hardware to the Investment Trust
E Provision of a home for Emanuel
VIII Could any detriment be rectified by an award of equitable compensation?
IXRemoval of a trustee for breaches of trust
MAXWELL P
NEAVE JA
REDLICH JA:
I INTRODUCTION
This is an appeal from the decision of a trial division judge, holding that the second and third appellants, Sabrina and Ian Berger, are not entitled to various interests in property.[1] Those interests were claimed on the basis of what was said to have been their detrimental reliance on representations made to them by Emanuel Rosenberg, Sabrina Berger’s father. The appellants also appeal from his Honour’s decision that Emanuel Rosenberg was entitled to exercise his power of appointment to remove the first appellant, Fifteenth Eestin Nominees Pty Ltd (‘Fifteenth Eestin’), as the trustee of the E Rosenberg…
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- AGLC
- Fifteenth Eestin Nominees Pty Ltd v Rosenberg [2009] VSCA 112
- Case
- [2009] VSCA 112
- Decision Date
CaseChat Overview and Summary
The court examined the evidence and arguments presented by both parties. It considered whether the representations made by the deceased amounted to an estoppel and whether the daughter and son-in-law had indeed relied on those representations to their detriment. The court found that the judge had not erred in rejecting the claims regarding the representations, as they were not sufficiently clear or specific to create an estoppel. Additionally, the court agreed with the judge's finding that no detriment was suffered by the daughter and son-in-law in reliance on the alleged representations or promises. The court also upheld the judge's decision that a constructive trust of the assets was not established. Finally, the court concurred with the judge's conclusion that equitable compensation would be the appropriate remedy if either claim had been successful.
The final orders of the court included the dismissal of the appeal and the affirmance of the judge's decision. The court also denied the application for the son to be made a respondent to the appeal in substitution for his father, as probate of the will had not yet been granted. The court's decision was based on the findings that no estoppel was established, no detriment was suffered, no constructive trust was created, and that equitable compensation would be the appropriate remedy if any claim had been successful.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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