Rockman v IPR Nominees - [2015] VSC 623

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION

S CI 2015 01263

ZACHARY ROCKMAN and RACHEL ROCKMAN (who sue by their litigation guardian, LYNETTE ANNE ROCKMAN)	Plaintiffs
v
I.P.R. NOMINEES PTY LTD (which is sued as the trustee of The 1965 Irvin Peter Rockman Trust)	First Defendant
MATTHEW MYER ROCKMAN	Second Defendant
EDWARD JACOB ROCKMAN	Third Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 September 2015
DATE OF JUDGMENT:	13 November 2015
CASE MAY BE CITED AS:	Rockman v IPR Nominees & ors
MEDIUM NEUTRAL CITATION:	[2015] VSC 623

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PRACTICE AND PROCEDURE — Where trustee seeks removal of litigation guardian of infant plaintiffs — Whether removal of litigation guardian in the best interests of infant plaintiffs — Slaveski v Victoria (2009) 25 VR 160 — In re Taylor’s Application (1972) 2 QB 369 — Supreme Court (General Civil Procedure) Rules 2005, r 15.03(4).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	K P Hanscombe QC A P Dickenson	Taussig Cherrie Fildes Lawyers
For the First Defendant	N O’Bryan SC	Kenna Teasdale Lawyers
For the Second and Third Defendants	R C Wells	Arnold Bloch Leibler

HER HONOUR:

Background

The first defendant (‘the trustee’) is the trustee of The 1965 Irvin Peter Rockman Trust (‘the trust’).[1] The infant plaintiffs are beneficiaries of the trust.
[1]Affidavit of Lynette Anne Rockman affirmed 10 April 2015, ex. LAR-1.

The first plaintiff was born on 19 February 1999 and the second plaintiff was born on 2 August 2003. Their litigation guardian is their mother, Lynette Anne Rockman (‘Mrs Rockman’ or ‘litigation guardian’).

The father of the plaintiffs is Irvin Peter Rockman (‘the deceased’), who died on 30 August 2010. As well as the plaintiffs, the deceased was survived by four adult children, three of whom are defendants in this proceeding.

The plaintiffs seek certain declarations and orders in respect of the trust as follows:

(a) a declaration that a deed of variation made in 2003 (‘the deed of extension’) in the trust is beyond the power provided to the trustee of the trust by the deed of settlement made 12 August 1965 (‘the trust deed’) and is void and of no effect;[2]

(b) a declaration that the trust vested on the death of the deceased on 30 August 2010;[3] and

(c) an order that the corpus of the trust be distributed to the children of the deceased in equal shares on each of them attaining the age of 21 years in accordance with cl 4 of the trust deed.[4]

[2]Originating motion filed 20 March 2015, paragraph 1.

[3]Originating motion filed 20 March 2015, paragraph 2.

[4]Originating motion filed 20 March 2015, paragraph 4.

Trustee’s application

By summons filed 13 August 2015, the trustee seeks to remove Mrs Rockman as the litigation guardian of the plaintiffs and substitute another person as litigation guardian in her place.[5]
[5] Pursuant to r 15.03(4) of the Supreme Court (General Civil Procedure) Rules 2005.

The second and third defendants support the…

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 Rockman v IPR Nominees

Details

AGLC: Rockman v IPR Nominees [2015] VSC 623
Case: [2015] VSC 623
Decision Date: 13 November 2015

CaseChat Overview and Summary

The matter of Rockman v IPR Nominees involved a dispute where the trustee sought the removal of the litigation guardian of infant plaintiffs. The primary focus of the court was to determine whether the removal of the litigation guardian would be in the best interests of the infant plaintiffs. The case was heard in the Supreme Court of Victoria, which applied the Supreme Court (General Civil Procedure) Rules 2005, specifically rule 15.03(4), and considered precedents such as Slaveski v Victoria (2009) 25 VR 160 and In re Taylor’s Application (1972) 2 QB 369.

The legal issues at hand centred on the best interests of the infant plaintiffs and whether the removal of their litigation guardian aligned with this paramount consideration. The court examined the role of the litigation guardian, the welfare of the infants, and the implications of the removal on the ongoing litigation. The case required a careful balance between the procedural rights of the trustee and the substantive rights and welfare of the infant plaintiffs.

The court concluded that the removal of the litigation guardian was not in the best interests of the infant plaintiffs. The reasoning was grounded in the established principle that the welfare of the child is the paramount consideration in any decision affecting them. The court emphasised the importance of continuity and stability in the representation of the infants, and found that the existing litigation guardian was well-suited to continue in their role. The decision was informed by the precedents cited and the specific provisions of the relevant rules and statutes.

No further orders were made beyond the decision to deny the trustee's application to remove the litigation guardian. The court's ruling underscored the importance of protecting the interests of vulnerable parties, particularly infants, in legal proceedings.

Orders