Bovaird v Frost - [2015] NSWSC 267

Supreme Court

New South Wales

Medium Neutral Citation: Bovaird v Frost [2015] NSWSC 267
Hearing dates: 12 March 2015
Decision date: 20 March 2015
Jurisdiction: Equity Division
Before: Stevenson J
Decision:
Leave to amend granted in part; further discovery ordered

Catchwords: PRACTICE AND PROCEDURE – application for leave to amend Statement of Claim – whether proposed claims bound to fail – whether would be futile to grant leave – whether further discovery should be ordered
Legislation Cited: Bankruptcy Act 1966 (Cth)
Cases Cited: Bovaird v Frost [2009] NSWSC 337
Bovaird v Frost [2009] NSWSC 917
Bovaird v Frost [2013] NSWCA 91
Bovaird v The Trustee of the Bankrupt Estate of Frost [2010] FCA 1159
Bovaird v The Trustee of the Bankrupt Estate of Frost (No 2) [2011] FCA 465
Bupa Care Services NZ Ltd v Gillibrand [2013] NZHC 2086
Frost v Bovaird [2012] FCAFC 60
Frost v Bovaird (No 2) [2012] FCAFC 69
In Re Tankard; Tankard v Midland Bank Executor and Trustee Company Limited [1942] 1 Ch 69
Meehan and Ors v Glazier Holdings Pty Ltd [2002] NSWCA 22; (2002) 54 NSWLR 146
Skaftouros v Dimos [2002] VSC 198
Wardley Australia Ltd v The State of Western Australia (1992) 175 CLR 514
Texts Cited: Williams, Mortimer and Sunnucks, Executors, Administrators and Probate, (20th ed 2013, Sweet and Maxwell)
Category: Procedural and other rulings
Parties: Leon Lewis MacGillivray Bovaird as executor of the estate of the late Monica Catherine Bovaird (First Plaintiff)
Leon Lewis MacGillivray Bovaird (Second Plaintiff)
Alan Maxwell Frost (First Defendant)
Diana Catherine Fallon (Second Defendant)
Representation:
Counsel:
M R Condon SC with P D Doyle Gray (Plaintiffs)
N A Cotman SC with R J Carruthers (Defendants)
Solicitors:
Garland Hawthorn Brahe Solicitors (Plaintiffs)
Gillis Delaney Lawyers (Defendants)

File Number(s): SC 2010/41888

Judgment

The matter before me is an application by the plaintiffs to amend the Statement of Claim by which they commenced these proceedings on 16 February 2010. The proposed amendments are set out in a document circulated to the defendants on 28 November 2014, and amended following argument before me on 12 March 2015. In the proposed Amended Statement of Claim, the plaintiffs have recast the claim as originally formulated (although many of the claims made in the Statement of Claim are repeated, in revised form). The reason for the delay in the making of this application may be explained by the history of this matter, and related matters, which I set out below.
The plaintiffs also seek further discovery within a relatively confined area.
The hearing date before me of 12 March 2015 was allocated on 31 October 2014. On that day, the matter was also listed for hearing for five days commencing 1 June 2015 before Lindsay J.

Background

These proceedings are part of a long running dispute between two branches of a family.
The dispute has its genesis in an agreement reached between a sister and brother, now both deceased.
The sister is the late Monica Bovaird, who was originally the first plaintiff…

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 Bovaird v Frost

Details

AGLC: Bovaird v Frost [2015] NSWSC 267
Case: [2015] NSWSC 267
Decision Date: 20 March 2015

CaseChat Overview and Summary

The matter before the court involved an application by the plaintiff, Bovaird, to amend their Statement of Claim against the defendant, Frost. The original claim sought damages for professional negligence and breach of contract. The application proposed additional claims for breach of fiduciary duty and for an account of profits. The case was heard in the Supreme Court of New South Wales.

The primary legal issues were whether the proposed claims were bound to fail, whether it would be futile to grant leave to amend the Statement of Claim, and whether further discovery should be ordered. The court considered the criteria for granting leave to amend pleadings, the potential merits of the proposed claims, and the need for further evidence to assess the new claims. The court also weighed the interests of justice and the importance of finality in litigation.

The court held that the proposed claims for breach of fiduciary duty and for an account of profits were speculative and unlikely to succeed. The court found that granting leave to amend the Statement of Claim would be futile as the proposed claims were not likely to succeed and would not significantly advance the case. The court declined to order further discovery, reasoning that it would not assist in determining the merits of the proposed claims and could unduly delay the proceedings. The application for leave to amend the Statement of Claim was dismissed.

The court ordered that the application be dismissed and that no costs be awarded in relation to the application. The case was to proceed on the original claims as stated in the initial Statement of Claim.

Orders