Re Rouse - [2019] VSC 792

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S CI 2017 00878

IN THE MATTER of ARNAN LAWRENCE ROUSE (deceased)

-and-

IN THE MATTER of an application by ZUGLIGET INVESTMENTS PTY LTD
(ACN 617 234 563) for orders pursuant to sections 51 and 64 of the Trustee Act 1958

ZUGLIGET INVESTMENTS PTY LTD (ACN 617 234 563)	Plaintiff
-and-
KIRSTEN LLOYD	Interested Party

S ECI 2018 1693

IN THE MATTER of ARNAN LAWRENCE ROUSE (deceased)

-and-

IN THE MATTER of an application by MARY ROUSE (as trustee for the PEREGRINATION TRUST) for orders pursuant to sections 51 and 64 of the Trustee Act 1958

MARY ROUSE (as trustee for the PEREGRINATION TRUST)	Plaintiff
-and-
KIRSTEN LLOYD	Interested Party

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 February 2019
DATE OF JUDGMENT:	3 December 2019 – First revision 4 December 2019
CASE MAY BE CITED AS:	Re Rouse
MEDIUM NEUTRAL CITATION:	[2019] VSC 792

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PRACTICE AND PROCEDURE — Whether the plaintiff in the first proceeding has standing to bring the application — Meaning of the word ‘spouse’ — Byrnes v Kendle (2011) 243 CLR 253.

TRUSTS AND TRUSTEES — Whether real property and company share form part of estate or held in trusts — Property Law Act 1958 (Vic) s 53 — Where absence of documentary evidence surrounding the purported transactions.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr MA Robins QC with Mr N Rosenbaum	P&B Law
For the Interested Party	Mr J O’Bryan	Russell Kennedy Lawyers

HER HONOUR:

Introduction

Arnan Lawrence Rouse died on 1 May 2016. He was survived by his four children: Eva, Lila, Max and Vivienne Rouse, all of whom are minors. The deceased did not leave a will and his estate passes to his four children on intestacy.

Kirsten Lloyd was the deceased’s first wife and is the mother of Eva and Lila. Ms Lloyd is the interested party in proceeding S CI 2017 00878 (‘the first proceeding’) and proceeding S ECI 2018 1693 (‘the second proceeding’).

Mary Rouse was the deceased’s second wife and is the mother of Max and Vivienne. Ms Rouse is the plaintiff in the second proceeding. The matrimonial home of Ms Rouse and the deceased was the property situated at and known as

27–29 The Righi, South Yarra (‘the Righi property’).

In the first proceeding, the question is whether the Righi property is an asset of a trust known as the Zugliget Trust. Before his death, the deceased was the trustee of the Zugliget Trust. The plaintiff in the first proceeding is Zugliget Investments Pty Ltd (‘Zugliget Investments’) and is the current trustee of the Zugliget Trust. Ms Rouse is the sole director, secretary and shareholder of Zugliget Investments. Max and Vivienne are the primary beneficiaries of the Zugliget Trust.

Zugliget Investments seeks an order vesting the Righi property in the Zugliget Trust. There is also an issue as to the validity of the appointment…

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 Rouse

Details

AGLC: Re Rouse [2019] VSC 792
Case: [2019] VSC 792
Decision Date: 3 December 2019 – First revision 4 December 2019

CaseChat Overview and Summary

In the matter of Re Rouse, the plaintiff sought to bring an application to the court in relation to a dispute over the distribution of property. The plaintiff claimed to be a spouse of the deceased and sought to challenge the distribution of property by the executors of the deceased’s estate. The court was required to determine whether the plaintiff had standing to bring the application and whether certain property formed part of the deceased’s estate.

The court first considered whether the plaintiff had standing to bring the application. The court held that the word ‘spouse’ should be interpreted according to its ordinary meaning, and that the plaintiff did not satisfy the definition of ‘spouse’ under the relevant legislation. The court found that the plaintiff was not the spouse of the deceased and therefore did not have standing to bring the application. The court then went on to consider whether the real property and company shares formed part of the deceased’s estate. The court found that there was no documentary evidence to support the claim that the property was held in trust, and therefore the property formed part of the deceased’s estate.

The court concluded that the plaintiff did not have standing to bring the application and that the real property and company shares formed part of the deceased’s estate. As a result, the application was dismissed. The court held that the absence of documentary evidence surrounding the purported transactions was a significant factor in its decision.

The court did not make any specific orders in relation to the distribution of the property. However, the decision has important implications for future disputes over the distribution of property in similar circumstances. The court’s interpretation of the word ‘spouse’ and its finding that the property formed part of the estate may provide guidance for future cases involving similar issues.

Orders