Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Bovaird v Frost [2013] NSWCA 91 Hearing dates: 12 April 2013 Decision date: 24 April 2013 Before: Basten JA Decision: In each of matters 2009/298569, 2009/298580 and 2009/298581, order that:
(1) The appeal be dismissed.
(2) The appellants pay the respondents' costs in this Court.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: APPEAL - civil - whether appeal against quantum of damages should be dismissed - whether appeal would be an exercise in futility - where applicants awarded damages for breach of contract against estate - where estate bankrupt - where amount awarded exceeded remaining assets in the estate - where applicants had brought devastavit proceeding against executors of estate Legislation Cited: Family Provision Act 1982 (NSW) Cases Cited: Bovaird v The Trustee of the Bankrupt Estate of Maxwell Walter Allen Frost [2010] FCA 1159
Frost v Bovaird [2012] FCAFC 60Category: Principal judgment Parties: In matter 2009/298569:
Monica Catherine Bovaird (Applicant)
Alan Maxwell Frost (First Respondent)
Diana Catherine Fallon (Second Respondent)
Max Donnelly as trustee of the bankrupt estate of the late Maxwell Walter Allen Frost (Third Respondent)In matter 2009/298580:
Monica Catherine Bovaird (Applicant)
Alan Maxwell Frost (First Respondent)
Diana Catherine Fallon (Second Respondent)
AFM Developments Pty Ltd (Third Respondent)
Max Donnelly as trustee of the bankrupt estate of the late Maxwell Walter Allen Frost (Fourth Respondent)In matter 2009/298581:
Leon Lewis MacGillivray Bovaird (Applicant)
Alan Maxwell Frost (First Respondent)
Diana Catherine Fallon (Second Respondent)
AFM Developments Pty Ltd (Third Respondent)
Max Donnelly as trustee of the bankrupt estate of the late Maxwell Walter Allen Frost (Fourth Respondent)Representation: Counsel:
M Condon SC (Applicants)
Garland Hawthorn Brahe (Applicants)
R J Carruthers (Respondents)
J Dawson, Solicitor (Trustee in bankruptcy)
Solicitors:
MBP Legal (Respondents)
Carneys Lawyers (Trustee in bankruptcy)
File Number(s): 2009/298569; 2009/298580; 2009/298581 Decision under appeal
- Jurisdiction:
- 9111
- Citation:
- [2009] NSWSC 337; [2009] NSWSC 917
- Date of Decision:
- 2009-04-30 00:00:00
- Before:
- Brereton J
- File Number(s):
- 2004/2211; 2004/3159; 2006/1923
Judgment
BASTEN JA: On 12 April 2013 the Court heard motions seeking to vacate the hearings in each of three related appeals, which had been listed together for hearing on 6 May 2013. The Court does not readily accede to such applications unless the proceedings have been settled or abandoned. In the present case, the appellants consented to the dismissal of some claims made in the appeals, but sought to have others remain on foot until after separate proceedings presently before the Equity Division are resolved. The respondents seek to have the appeals finalised at this stage, asking that each should be dismissed with costs.
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- AGLC
- Bovaird v Frost [2013] NSWCA 91
- Case
- [2013] NSWCA 91
- Decision Date
CaseChat Overview and Summary
The central legal issue before the Court of Appeal was whether the appeal against the quantum of damages should be dismissed on the basis that it would be an exercise in futility, given the insolvency of the estate and the applicants' existing claim for devastavit.
Basten JA dismissed the appeal. His Honour reasoned that the appeal against the quantum of damages would be futile because the estate's bankruptcy meant that any increased award would not be recoverable. The applicants' existing devastavit proceeding provided a mechanism to pursue the executors personally for any shortfall, rendering the appeal on quantum unnecessary and unproductive.
Consequently, the Court of Appeal ordered that the appeal be dismissed and that the appellants pay the respondents' costs in the Court.
Orders
Orders of the court
In each of matters 2009/298569, 2009/298580 and 2009/298581, order that:
(1) The appeal be dismissed.
(2) The appellants pay the respondents' costs in this Court.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Background
Background to the litigation
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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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