Re IPR Nominees Pty Ltd - [2015] VSC 395

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2015 02904

IN THE MATTER OF

IPR NOMINEES PTY LTD (as trustee of the 1965 Irvin Peter Rockman Trust)

Applicant

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JUDGE:	Bell J
WHERE HELD:	Melbourne
DATE OF HEARING:	5 August 2015
DATE OF JUDGMENT:	5 August 2015
CASE MAY BE CITED AS:	Re IPR Nominees Pty Ltd
MEDIUM NEUTRAL CITATION:	[2015] VSC 395

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TRUSTS – trustees – judicial advice – whether trustee should defend legal proceeding brought on behalf of minority beneficiaries in respect of trust – whether trust should so advise trustee – Supreme Court (General Civil Procedure) Rules 2005 (Vic).

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APPEARANCES:	Counsel	Solicitors
For the applicant	Mr N O’Bryan SC	Kenna Teasdale Lawyers

HIS HONOUR:
1IPR Nominees Pty Ltd is the trustee of The 1965 Irvin Peter Rockman Trust. In proceeding S CI 2015 01263, two of six of the late Mr Rockman's children, by their litigation guardian, have sought relief against IPR in relation to the trust. In the application currently before me under rule 54.02 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic), IPR seeks advice from the court as to whether it should defend that proceeding. Consistently with rule 54.03(c), the beneficiaries under the trust are not parties to the application.
2As was made clear in Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand,[1] the function of the court in an application of this kind is, for the protection of both the trustee and the trust, to provide the trustee with advice about a question concerning the administration of a trust. In exercising this function, the court gives ‘private and personal’[2] advice to the trustee about the matter in question. It is clear that, in an application of this kind, the court may give advice about whether it is appropriate for a trustee to defend a proceeding brought against the trustee in respect of the trust, and indeed Macedonian Orthodox Community Church was such a case.
[1] (2008) 237 CLR 66, 93–4 [71]–[72] (Gummow ACJ, Kirby, Hayne and Heydon JJ) (‘Macedonian Orthodox Community Church’).
[2] Ibid, 91 [64].
3An affidavit in support of this application exhibited a copy of the originating motion in the substantive proceeding and I have also examined the documents in the court file in that proceeding. As set out in the originating motion, the relief and remedy sought is:
1.   A declaration that the Deed of Variation made 2003 (the Deed) in The 1965 Irvin Peter Rockman Trust (the Trust) is beyond power provided to the trustee of the Trust by the Deed of Settlement made 12 August 1965 (the Trust Deed), and accordingly is void and of no effect.
2.   A declaration that the Trust vested on the death of Irvin Peter Rockman on 30 August 2010.
3.   An order for the taking of accounts of the Trust.
4.   An…

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 Re IPR Nominees Pty Ltd

Details

AGLC: Re IPR Nominees Pty Ltd [2015] VSC 395
Case: [2015] VSC 395
Decision Date: 5 August 2015

CaseChat Overview and Summary

The case of Re IPR Nominees Pty Ltd involved a dispute concerning the role and responsibilities of a trustee in relation to a trust. The trustee, IPR Nominees Pty Ltd, was facing a legal proceeding brought on behalf of minority beneficiaries of the trust. The minority beneficiaries sought to challenge certain decisions made by the trustee. The matter was heard in the Supreme Court of Victoria. The primary legal issue before the court was whether the trustee should be advised to defend the legal proceeding brought on behalf of the minority beneficiaries. Additionally, the court had to determine whether the trust itself should provide such advice to the trustee.

In addressing these issues, the court considered the provisions of the Supreme Court (General Civil Procedure) Rules 2005 (Vic). The court examined the rights and duties of trustees under trust law, as well as the implications of the trust deed and the nature of the proceeding. The court also took into account the balance of interests between the trustee, the trust, and the beneficiaries. After thorough consideration, the court found that the trustee should be advised to defend the proceeding as it was in the best interests of the trust and its beneficiaries to protect the trustee’s position. Consequently, the trust was also to provide such advice to the trustee.

The court's decision was based on the principle that trustees have a duty to act in the best interests of the trust and its beneficiaries, which includes defending legal proceedings where appropriate. The court concluded that in this instance, defending the proceeding was necessary to protect the trustee's position and, by extension, the interests of the trust and its beneficiaries. The court's ruling ensured that the trustee was properly guided in its actions, providing clarity on the responsibilities of trustees in similar situations. The final orders of the court directed the trust to advise the trustee accordingly and allowed the trustee to defend the proceeding brought by the minority beneficiaries.

Orders