In the matter of the Estate of Irvin Peter Rockman, Deceased

[2010] VSC 551

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
PROBATE DIVISION

PRACTICE COURT

No. 14109 of 2010

IN THE MATTER of the Estate of Irvin Peter Rockman, Deceased

JOHN CLAUDE FAST,
MICHAEL DAVID SCHOENFELD and
PHILIP CAREY BROWN	Plaintiffs

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JUDGE:	OSBORN J
WHERE HELD:	Melbourne
DATE OF HEARING:	25 November 2010
DATE OF RULING:	25 November 2010
CASE MAY BE CITED AS:	In the matter of the Estate of Irvin Peter Rockman, Deceased
MEDIUM NEUTRAL CITATION:	[2010] VSC 551

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PROBATE – Administrators’ powers to sell wasting asset – Whether administrators’ power to make distributions from testamentary trusts impinges upon pool of assets available for consideration by Family Court proceedings – Application on behalf of administrators to extend powers

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr S G O'Bryan with Mr R R Boaden	Kenna Teasdale
For Lynette Rockman	Dr K P Hanscombe SC with Ms A. Bartfield	Arnold Bloch Liebler
For Edward Rockman and Matthew Rockman	Mr R C Wells of Counsel	Arnold Bloch Liebler

HIS HONOUR:

1. The application before me relates to the estate of the late Irvin Peter Rockman and concerns the question of what powers should be extended to the plaintiffs at this point in time for the purpose of the administration of his estate.

1. The application falls to be decided in circumstances where Mr Rockman left a will executed in April 2010 and at the time of his death in August 2010, two further unexecuted wills had been prepared for him.  There is therefore a question which will ultimately have to be decided by this Court as to the effect of the testamentary dispositions made by him.

1. In addition, at the date of his death a claim had been made under the Family Law Act1975 on behalf of Lynette Ann Rockman, his divorced wife, for a property settlement under that Act.  Property proceedings are currently fixed for hearing before the Family Court in February 2011. 

1. Previous orders of Williams J have given administrators of the estate a series of powers but application is made today with respect to other matters which the administrators regard as pressing. 

1. Agreement has been reached between the parties as to some aspects of that application but a dispute continues as to others.

1. The first matter in dispute is an order granting to the plaintiffs the power as articulated in sub-paragraph 1(e) of the originating motion, of selling in their discretion the deceased's car, boat, marina berth and such of his other personal property as may be reasonably necessary to be sold at such times and upon such terms as they shall think fit.  There is no dispute that an order should be made with respect to the deceased's car and boat.  There is also, as I understand it, no dispute that an order should not be made in general terms relating to the deceased's personal property. 

1. The matter which is in dispute is the marina berth.  Affidavit evidence from Michael David Schoenfeld refers to the fact that the marina berth licence at the Blairgowrie Yacht Club is for a fixed term and is due to expire on 12 February 2022.  The deceased paid $90,000 for the berth in the 2005.  It was worth $70,000 as at 19 October 2009 and it continues to fall in value.  The administrators regard this berth as a wasting asset and seek to realise its capital value as soon as possible.

1. The power sought with respect to the marina berth is opposed on the basis that insofar as the asset is wasting, it is not wasting at a dramatic rate and the fate of the asset should not be determined prior to the hearing of the Family Court proceedings.  There is no claim to the marina berth specifically made in the Family Court and it seems to me that the proper course is for the administrators to maximise the value of the asset.  Accordingly, I propose to make an order with respect to the marina berth.

1. The next group of powers which is in issue relates to general powers in the following terms: sub-paragraph (1)(f) of the originating motion provides for signing all documents necessary to be signed in the said administration of the estate, including contracts of sale and any instruments of transfer.  Sub-paragraph 1(h) provides for exercising all of the powers vested in the deceased in his capacity as the holder of shares in private and public companies including, without limiting the foregoing, the power to vote at meetings of shareholders of such companies.  It is submitted that these are usual powers and are necessary if the commercial value of the estate is to be preserved.  It is said against this that the exercise of those powers may somehow affect the pool of assets which is available in the Family Court proceedings for consideration by that court in order to make proper provision on behalf of Ms Rockman and her children.

1. I shall return to this consideration after referring to the other matters which are in dispute.

1. Sub‑paragraph (1)(k) of the originating motion provides for the administrators acting as the trustee of the Irvin Rockman trust being a testamentary trust established pursuant to paragraph 11.1.1 of the will dated 4 April 2007 of Susie Rockman deceased, and pursuant to the provisions of paragraph 11.3.1.2 of the said will. 

1. Sub‑paragraph 1(i) provides for the administrators acting as directors of IPR No. 2 Superannuation Fund Pty Ltd in its capacity as the trustee of the IPR No. 2 Superannuation Fund. 

1. Sub‑paragraph 1(m) provides for the administrators acting as the trustee of the Zachary Rockman Trust, being a testamentary trust established pursuant to paragraph 11.1.4 of the will dated 4 April 2007 of Susie Rockman deceased, and pursuant to the provisions of paragraph 11.3.4.2 of the said will.

1. Sub‑paragraph 1(n) provides for the administrators acting as the trustee of the Rachel Rockman Trust, being a testamentary trust established pursuant to paragraph 11.1.5 of the will dated 4 April 2007 of Susie Rockman deceased, and pursuant to the provisions of paragraph 11.3.5.2 of the said will. 

1. In relation to each of these trusts, particular objection is made to the granting of any power to make distributions because it is said that such distributions may impinge upon the pool of assets available for consideration by the Family Court.

1. Mr O'Bryan and Mr Boaden emphasise that insofar as the Zachary Rockman trust and Rachel Rockman trust are concerned, those are trusts established by the children's grandmother and as such logically may affect ongoing provision for their maintenance but do not, on the face of it, have any other connection with the Family Court proceedings. 

1. More significantly, however, there is no evidence before this Court which in fact justifies the conclusion that the claim postulated on behalf of Ms Rockman in the Family Court is in any way likely to be prejudiced by the exercise of any of the powers in issue.  As counsel for the administrators submit, on the face of it, the estate comprises a huge asset pool and I am simply not satisfied, on the evidence before me, that there is any likelihood that the ability to make proper provision for Ms Rockman and the children will be affected by the grant of the powers sought.  Conversely, it is apparent that it is extremely undesirable for the trusts to be left without anyone in a position to administer them and it is also, in my view, extremely undesirable that the share portfolio otherwise comprised in the estate, is unable to be dealt with.

1. As Mr Wells has emphasised, no attack has been made upon the plaintiffs in terms of their integrity or capacity to manage the estate in a proper manner and, in my view, the applications made on behalf of the administrators should be granted, noting, as I have said, that the power sought under sub-paragraph 1(e) is to be constrained by the deletion of the reference to other personal property.

1. I will add to the order that I will reserve liberty to apply so that in what I regard the unlikely event that if there were some basis, Dr Hanscombe, for particular concern on your client's part, then of course the Court would allow this question to be reagitated.