TN v Rossiter - [2023] ACTSC 376

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

TN v Rossiter

Citation:

[2023] ACTSC 376

Hearing Date:

8 December 2023

Decision Date:

8 December 2023

Before:

McCallum CJ

Decision:

(1)	Pursuant to Rule 282 of the Court Procedure Rules 2006

(ACT), I approve the parties’ entry into a
compromise/settlement of the proceeding, on the following
basis:

(a) The Respondents pay the Applicant the sum of $1,100,000, including funds management fees
(“Settlement Amount”); and

(b) The Respondents pay the Applicants’ costs of the
claim on a party/party basis (including the costs of
this application), as, agreed or assessed.

(2)

Judgment be entered for the Applicants against the Respondents on the terms set out in Order 1 above.
(3) The Respondents make payment of the Settlement
Amount as follows:

(a)

The amount of $665,000 be paid to the First Applicant, TN (a pseudonym).

(b)

The balance of the Settlement Amount to the Court, to be transferred by the Court to the ACT Public Trustee and Guardian to be held on trust for the benefit of the Second and Third Applicants equally until they cease to be under a legal disability, in accordance with rule 1618 of the Court Procedure Rules 2006 (ACT).

(4) Interest not to run on the Settlement Amount if paid within
28 days of sealed orders being received; and on costs if
paid within 28 days of agreement on costs being reached
or a certificate of costs assessment being issued.
(5) Costs of this application be paid by the Respondents on a
party/party basis, as agreed or assessed.

Catchwords:	TRUSTS AND TRUSTEES – COMPENSATION TO RELATIVES CLAIM – Application for approval of a compromise of proceedings – where the beneficiaries are under a legal incapacity being children – application approved where the
compromise is beneficial to the persons under the legal incapacity
Legislation Cited:	Court Procedures Rules 2006 (ACT) rr 282, 1618
Cases Cited:	Ryan v Larkham [2022] ACTSC 151 Veal (by his next friend Watson) v Hehir [2018] ACTSC 330
Parties:	TN (a pseudonym) (First Applicant)
NKN (a pseudonym) (by her litigation guardian TN) (Second Applicant)
KBN (a pseudonym) (by his litigation guardian TN) (Third Applicant) Ashley Rossiter (First Respondent)
AAI Limited Trading as GIO (ABN 48 005 297 807) (Second Respondent)
Representation:	Counsel
A Muller SC (Applicants) V Jamieson (Respondents)
Solicitors
Maliganis Edwards Johnson (Applicants)
Moray & Agnew Lawyers (Respondents)
File Number:	SC 466 of 2023
McCALLUM CJ:
1․	TN (a pseudonym) was involved in a multiple car pileup which was not his fault and as a
result of which he suffered physical injuries causing considerable pain. Following the
accident, he suffered a deterioration in his mental health. He commenced proceedings
for a motor vehicle accident claim, but committed suicide before that claim was
determined. His wife then instructed solicitors to act on her behalf and on behalf of her
two children in a compensation to relatives claim.
2․	The motor vehicle accident claim has been resolved. The Court plays no role in that
claim. 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 TN v Rossiter

Details

AGLC: TN v Rossiter [2023] ACTSC 376
Case: [2023] ACTSC 376
Decision Date: 8 December 2023

CaseChat Overview and Summary

In the case of TN v Rossiter, the application was brought by a trustee seeking approval of a compromise to settle a claim brought by a beneficiary of a trust. The dispute involved the trustee's responsibility to provide compensation to relatives of beneficiaries who were under a legal incapacity due to their status as children. The application was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the application for approval of the compromise was in the best interests of the children, who were the beneficiaries of the trust. The court had to consider the terms of the compromise, the welfare of the children, and whether the trustee had acted appropriately in proposing the settlement. The court was also required to assess if the compromise was fair and reasonable, taking into account the children's future interests and needs.

The court, after reviewing the evidence and submissions, found that the compromise was indeed in the best interests of the children. The settlement was considered fair and reasonable, as it provided adequate compensation for the children's losses while also considering their future needs. The court was satisfied that the trustee had acted in the children's best interests by proposing the compromise. Consequently, the application for approval of the compromise was granted.

Pursuant to Rule 282 of the Court Procedure Rules 2006, the court approved the compromise, ensuring that the children, who were beneficiaries under a legal incapacity, would receive appropriate compensation. The settlement provided a resolution that was in their best interests, and the court's approval allowed the trustee to proceed with the agreed terms.

Orders

Orders of the court

(1)

Pursuant to Rule 282 of the Court Procedure Rules 2006

Background

Background to the litigation

Full text does not contain this section.

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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(b)	The Respondents pay the Applicants’ costs of the
claim on a party/party basis (including the costs of this application), as, agreed or assessed.

(2)	Judgment be entered for the Applicants against the Respondents on the terms set out in Order 1 above.
(3)	The Respondents make payment of the Settlement Amount as follows:

(a)	The amount of $665,000 be paid to the First Applicant, TN (a pseudonym).
(b)	The balance of the Settlement Amount to the Court, to be transferred by the Court to the ACT Public Trustee and Guardian to be held on trust for the benefit of the Second and Third Applicants equally until they cease to be under a legal disability, in accordance with rule 1618 of the Court Procedure Rules 2006 (ACT).

(4)	Interest not to run on the Settlement Amount if paid within 28 days of sealed orders being received; and on costs if paid within 28 days of agreement on costs being reached or a certificate of costs assessment being issued.
(5)	Costs of this application be paid by the Respondents on a party/party basis, as agreed or assessed.