Victorian Numbered Regulations

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Representation of unascertained persons

    (1)     This Rule applies to a proceeding relating to—

        (a)     the administration of the estate of a deceased person;

        (b)     property subject to a trust; or

        (c)     the construction of an instrument, including an Act.

    (2)     The Court may appoint one or more persons to represent any person (including an unborn person) who or class which is or may be interested (whether presently or for any future, contingent or unascertained interest) in or affected by the proceeding where—

        (a)     the person, the class or some members of the class cannot be ascertained or cannot readily be ascertained;

        (b)     the person, class or some member of the class, though ascertained, cannot be found; or

        (c)     though the person or the class and the members of the class can be ascertained and found, it appears to the Court expedient, regard being had to all the circumstances, including the amount at stake and the degree of difficulty of the point to be determined, to make the order for the purpose of saving expense.

    (3)     Where the Court makes an order under paragraph (2), a judgment or an order in the proceeding shall bind the person or class represented as if the person or class were parties.

    (4)     Where a compromise of a proceeding is proposed and some of the persons who are interested in, or who may be affected by, the compromise are not parties (including unborn or unascertained persons) but—

        (a)     there is a party in the same interest—

              (i)     who assents to the compromise; or

              (ii)     on whose behalf the Court sanctions the compromise; or

        (b)     the absent persons are represented by a person appointed under paragraph (2) and the appointed person so assents—

the Court, if satisfied that the compromise is for the benefit of the absent persons, may approve the compromise and order that it shall be binding on the absent persons, and they shall be bound accordingly except where the order is obtained by fraud or non-disclosure of material facts.

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