Bovaird v Frost

[2013] NSWCA 91

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 60

Category:

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)
R J Carruthers (Respondents)
J Dawson, Solicitor (Trustee in bankruptcy)
Solicitors:

Garland Hawthorn Brahe (Applicants)
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

1. 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.

1. For…