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Bovaird v Frost

Bovaird v Frost

Case [2009] NSWSC 917 4 September 2009

Civil Litigation & Procedure

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CITATION: Bovaird v Frost [2009] NSWSC 917

HEARING DATE(S): 6 July 2009; submissions 13 August 2009

JUDGMENT DATE :
4 September 2009

JURISDICTION: Equity Division
Expedition List

JUDGMENT OF: Brereton J

DECISION: In proceedings 2211/04: order that the proceedings be dismissed and order that the first and second defendants in their capacity as executors of the estate of Maxwell Walter Allen Frost pay the plaintiffs’ costs – In proceedings 3159/04: give judgment that the first and second defendants in their capacity as executors of the estate of Maxwell Walter Allen Frost pay the plaintiff the sum of $1; give judgment for the third defendant; order that the first and second defendants in their capacity as executors of the estate of Maxwell Walter Allen Frost pay the plaintiffs’ costs and order that the plaintiffs pay the third defendant’s costs – In proceedings 1923/06: give judgment that the first and second defendants in their capacity as executors of the estate of Maxwell Walter Allen Frost pay the plaintiff the sum of $1,239,110; give judgment for the third defendant; order that the first and second defendants in their capacity as executors of the estate of Maxwell Walter Allen Frost pay the plaintiffs’ costs and order that the plaintiffs pay the third defendant’s costs.

CATCHWORDS: PROCEDURE – matters arising out of principal judgment – determination of amounts to be paid arising out of principal judgment – life expectancy of plaintiff – whether plaintiff should be permitted to reopen to tender most recent Australian Bureau of Statistics data – where court relied on evidence at hearing – held: court should adhere to position adopted at hearing – INTEREST – held: interest awarded in respect of part losses – interest not awarded in respect of ongoing loss about half of which was still in future – EXECUTORS – whether executor should be denied indemnity out of estate – where proceedings not unreasonable – where executor not acting in personal interest – held: executor entitled to have costs paid out of estate

LEGISLATION CITED: (NSW) Uniform Civil Procedure Rules 2005 r 42.8, r 42.9, r 42.25

CATEGORY: Consequential orders

CASES CITED: Alsop Wilkinson (a firm) v Neary [1996] 1 WLR 1220
Application of Macedonian Orthodox Community Church St Petka Inc (No 3) [2006] NSWSC 1247
Drummond v Drummond [1999] NSWSC 923
Evans v Evans [1985] 3 All ER 289
Gray v Guardian Trust Australia Ltd [2003] NSWSC 704
His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand v The Macedonian Orthodox Community Church St Petka Incorporated [2006] NSWCA 277
In The Will of Lanfear (1940) 57 WN (NSW) 181
Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The
Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42, (2008) 237 CLR 66, (2008) 82 ALJR 1425, (2008) 249 ALR 250
Mead v Watson (as liquidator for Hypec Electronics) [2005] NSWCA 133, (2005) 23 ACLC 718
Metropolitan Petar v Mitreski…

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 [2009] NSWSC 917
Case: [2009] NSWSC 917
Decision Date: 4 September 2009

CaseChat Overview and Summary

In the matter of Bovaird v Frost, the plaintiff sought a determination of the amounts payable to him following a principal judgment. The dispute centred on the calculation of these amounts, particularly in light of the plaintiff's life expectancy and the appropriate interest rates to apply to the losses incurred. The case was heard in the Supreme Court of Queensland.

The legal issues that the court needed to resolve included whether the plaintiff should be permitted to reopen and tender the most recent Australian Bureau of Statistics data on life expectancy, despite the court having relied on the evidence presented at the hearing. Additionally, the court had to decide on the appropriate interest rates to apply to the losses, particularly in relation to ongoing losses that were not yet fully realised. Lastly, the court had to determine whether the executor of the defendant's estate should be denied indemnity for costs from the estate, given that the proceedings were not unreasonable and the executor was not acting in a personal interest.

The court held that it should adhere to the position it adopted at the hearing, declining to allow the plaintiff to reopen and tender the most recent life expectancy data. The court reasoned that the evidence presented at the hearing was sufficient to make the necessary determinations. Regarding interest, the court awarded interest in respect of part losses but did not award interest for the ongoing loss, approximately half of which was still in the future. Finally, the court ruled that the executor was entitled to have the costs paid out of the estate, as the proceedings were not unreasonable and the executor was not acting in a personal interest.

The final orders of the court provided for the plaintiff to be paid the determined amounts, with interest applied to part losses, and confirmed that the executor of the defendant's estate was entitled to have the costs paid out of the estate.

Orders