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Bovaird v Frost

Bovaird v Frost

Case [2013] FCA 974 27 September 2013

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FEDERAL COURT OF AUSTRALIA
Bovaird v Frost [2013] FCA 974

Citation: Bovaird v Frost [2013] FCA 974

Parties: LEON LEWIS MACGILLIVRAY BOVAIRD and LEON LEWIS MACGILLIVRAY IN HIS CAPACITY AS THE EXECUTOR OF THE ESTATE OF THE LATE MONICA CATHERINE BOVAIRD v ALAN MAXWELL FROST, DIANA CATHERINE FALLON and MAX DONNELLY IN HIS CAPACITY AS TRUSTEE OF THE BANKRUPT ESTATE OF THE LATE MAXWELL WALTER ALLEN FROST

File number: NSD 1605 of 2013

Judge: PERRAM J

Date of judgment: 27 September 2013

Catchwords:
BANKRUPTCY – Whether proceedings in respect of a provable debt within s 249(3) Bankruptcy Act 1966 (Cth) competent to proceed within antecedent grant of leave

PRACTICE AND PROCEDURE – Pleadings – Statement of Claim – Application to amend – Whether secondary grant of leave by Federal Court of Australia required to amend pleadings in Supreme Court of New South Wales

WORDS AND PHRASES – “Fresh step” – Bankruptcy Act 1966 (Cth) s 249(3)

Legislation: Bankruptcy Act 1966 (Cth) Pt XI, s 249(3)

Cases cited: Bovaird v Frost [2009] NSWSC 337cited
Bovaird v Frost (2010) 118 ALD 263 cited
Bovaird v The Trustee of the Bankrupt Estate of Frost (No 2) [2011] FCA 465 cited
Bovaird v Frost [2013] NSWCA 91 considered
Fraser Property Developments Pty Ltd v Sommerfeld (No.2) (2005) 2 QdR 404 cited
Fraser v Deputy Commissioner of Taxation (1996) 69 FCR 99 cited
Frost v Bovaird (2012) 203 FCR 95 cited
Gertig v Davies (2003) 85 SASR 226 cited

Date of hearing: 11 September 2013

Place: Sydney

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 36

Counsel for the Applicants: Mr M K Condon SC, Mr P D Doyle Gray

Solicitor for the Applicants: Garland Hawthorn Brahe

Counsel for the First & Second Respondents: Mr N A Cotman SC, Mr R J Carruthers

Solicitor for the First & Second Respondents: MBP Legal

Counsel for the Third Respondent: The third respondent did not appear

Solicitor for the Third Respondent: Carneys Lawyers

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1605 of 2013

BETWEEN:
LEON LEWIS MACGILLIVRAY BOVAIRD
First Applicant

LEON LEWIS MACGILLIVRAY IN HIS CAPACITY AS THE EXECUTOR OF THE ESTATE OF THE LATE MONICA CATHERINE BOVAIRD
Second Applicant

AND:
ALAN MAXWELL FROST
First Respondent

DIANA CATHERINE FALLON
Second Respondent

MAX DONNELLY IN HIS CAPACITY AS TRUSTEE OF THE BANKRUPT ESTATE OF THE LATE MAXWELL WALTER ALLEN FROST
Third Respondent

JUDGE:

PERRAM J

DATE OF ORDER:

27 SEPTEMBER 2013

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The applicants’ application for leave to apply to the Supreme Court for leave to amend the Statement of Claim in the Supreme Court of New South Wales proceeding 2010/41888 be dismissed.
2.The respondents’ oral application to vary the grant of leave by Justice Perram of 3 May 2011 be dismissed.
3.The applicant’s application to cross-vest these proceedings to the New South Wales Supreme Court be dismissed.
4.Any party be granted leave to approach Justice Perram’s associate for a date to debate costs of…

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 [2013] FCA 974
Case: [2013] FCA 974
Decision Date: 27 September 2013

CaseChat Overview and Summary

The applicants, Bovaird and Frost, sought leave to amend their statement of claim in proceedings against the respondent, a bankrupt. The dispute involves the interpretation of section 249(3) of the Bankruptcy Act 1966 (Cth) in relation to the timing of proceedings for a provable debt and whether secondary leave from the Federal Court of Australia was required to amend pleadings in the Supreme Court of New South Wales. The case was heard by the Federal Court of Australia, where the applicants sought various forms of leave and the respondents made an application to vary the grant of leave.

The primary legal issues addressed by the court included whether proceedings in respect of a provable debt under section 249(3) of the Bankruptcy Act could proceed without an antecedent grant of leave and whether the Federal Court needed to grant secondary leave for the applicants to amend their pleadings in the Supreme Court of New South Wales. The applicants argued that the term "fresh step" in the Bankruptcy Act encompassed the act of filing proceedings, while the respondents contended that such a step could only occur after the grant of leave. The court also had to consider the procedural implications of amending pleadings in the Supreme Court.

The court found that the term "fresh step" did not include the act of filing proceedings, thereby allowing the proceedings to continue without an antecedent grant of leave. The court dismissed the applicants’ application for leave to amend their statement of claim in the Supreme Court of New South Wales, holding that such amendment did not constitute a "fresh step" under the Act. Furthermore, the court denied the respondents’ application to vary the grant of leave and the applicants’ application to cross-vest the proceedings to the New South Wales Supreme Court. The court allowed any party to approach Justice Perram’s associate to arrange a debate on the costs of the applications, to be exercised within 14 days. The parties were also directed to notify Justice Perram’s associate of the resolution of the further discovery application in the devastavit proceedings within 7 days for the purpose of scheduling mediation.

The final orders included dismissing the applicants' applications for leave to amend the statement of claim and to cross-vest the proceedings, as well as the respondents’ application to vary the grant of leave. The parties were granted leave to arrange a debate on costs and to notify the court of the resolution of the discovery application for scheduling mediation.

Orders

Orders of the court

1. The applicants’ application for leave to apply to the Supreme Court for leave to amend the Statement of Claim in the Supreme Court of New South Wales proceeding 2010/41888 be dismissed.

2. The respondents’ oral application to vary the grant of leave by Justice Perram of 3 May 2011 be dismissed.

3. The applicant’s application to cross-vest these proceedings to the New South Wales Supreme Court be dismissed.

4. Any party be granted leave to approach Justice Perram’s associate for a date to debate costs of the applications such leave to be exercised within 14 days.

5. The parties notify Justice Perram’s associate of the resolution of the further discovery application in the devastavit proceedings within 7 days for the purpose of scheduling mediation.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

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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Citations

AGLC Citation

Bovaird v Frost [2013] FCA 974

Most Recent Citation

Bovaird v Frost (No 2) [2013] FCA 1166

Cases citing this decision · 5 of 5 shown

De Costi Seafoods (Franchises) Pty Limited v Wachtenheim (No 4)
[2014] NSWDC 70 Para 1

…Bovaird v Frost [2013] FCA 974 at [4] referred to both Gertig and also Fraser Property Developments Pty Ltd v Sommerfeld (No 2) (2005) 2 Qd R 404; [2005] QCA 242, without needing to decide what constituted a fresh step.…
Application by Alan Maxwell Frost
[2014] NSWSC 597 Para 1

…On 27 September 2013 Perram J delivered judgement in Bovaird v Frost [2013] FCA 974, concluding that leave was not required for the creditors to amend their statement of claim in the devastavit proceedings and dismissed the executors' application.…
Frost v Bovaird
[2014] FCAFC 20 Para 4

…ranted leave to bring the Waste Proceedings, the Bovairds did not need leave to amend their statement of claim in those proceedings ( Bovaird v Frost [2013] FCA 974). They maintain that his Honour should have found that another grant of leave was required ‑ either by reason of s 249(3) of the Bankruptcy Act 1966…
Bovaird v Frost (No 2)
[2013] FCA 1166 Para 1

…w South Wales for leave to amend their statement of claim in proceedings pending in that Court entitled Bovaird v Frost 2010/41888: Bovaird v Frost [2013] FCA 974. I did so because I had previously granted leave to pursue those proceedings (see Bovaird v The Trustee of the Bankrupt Estate of Frost (No 2) [2011] F…
Alan Maxwell Frost and Diana Catherine Fallon
[2013] NSWSC 1619 Para 1

…of Claim in the devastavit proceedings. The application was heard by Perram J who gave reasons for judgment on 27 September 2013 (see Bovaird v Frost [2013] FCA 974).…

View all 5 citing cases →

Cases cited in this decision · 9 of 9 shown

Frost v Bovaird
[2014] FCAFC 20 Para 24

…ir costs of defending the devastavit proceedings. My conclusion that he would not (at [36]-[37]) was not disturbed by the Full Court: Frost v Bovaird (2012) 203 FCR 95 at 109-110 [84]-[85]. Accordingly, the cost of the devastavit litigation does not at this stage fall upon the estate. I say ‘at this stage’ because w…
Bovaird v Frost
[2013] NSWCA 91 Para 13

…ome remarks of Basten JA given in the course of dismissing the judgment creditors’ appeal to the New South Wales Court of Appeal in Bovaird v Frost [2013] NSWCA 91 at [15]. His Honour said: The solicitor for the appellants claimed in his affidavit that he had instructions to “amend the devastavit proceedings” to a…
Frost v Bovaird (No 2)
[2012] FCAFC 69 Para 24

…e estate for their costs of defending the devastavit proceedings. My conclusion that he would not (at [36]-[37]) was not disturbed by the Full Court: Frost v Bovaird (2012) 203 FCR 95 at 109-110 [84]-[85]. Accordingly, the cost of the devastavit litigation does not at this stage fall upon the estate. I say ‘at this stage…
Bovaird v The Trustee of the Bankrupt Estate of Frost (No 2)
[2011] FCA 465 Para 1

…nt creditors leave to pursue the devastavit proceedings against the executors: Bovaird v The Trustee of the Bankrupt Estate of Frost (No 2) [2011] FCA 465. This was done for the reasons given in Bovaird v Frost (2010) 118 ALD 263 at [18]-[27].…
Bovaird v The Trustee of The Bankrupt Estate of Frost
[2010] FCA 1159 Para 1

…wed by the estate because the measure of loss suffered by them is necessarily a function of their debt: Bovaird v Frost (2010) 118 ALD 263; [2010] FCA 1159 at [21]. On 3 May 2011 this Court granted the judgment creditors leave to pursue the devastavit proceedings against the executors: Bovaird v The Trustee of the…
Bovaird v Frost
[2009] NSWSC 337 Para 23

…a legal perspective. It is said that certain parts of the pleading are a collateral attack on the costs orders made by Brereton J in Bovaird v Frost [2009] NSWSC 337; are a collateral attempt to deny the executors their costs of the proceeding originally before me; that the proposed claim for an account and inquir…
Fraser Property Developments Pty Ltd v Sommerfeld
[2004] QSC 363 Para 4

…What constitutes a ‘fresh step’ in provisions such as s 249(3) has often enough been considered. See, for example: Gertig v Davies (2003) 85 SASR 226 at 237, 238, 239; Fraser Property Developments Pty Ltd v Sommerfeld (No.2) (2005) 2 QdR 404 at 406, 409. However, that question does not arise in this…
Gertig v Davies
[2003] SASC 86 Para 4

…What constitutes a ‘fresh step’ in provisions such as s 249(3) has often enough been considered. See, for example: Gertig v Davies (2003) 85 SASR 226 at 237, 238, 239; Fraser Property Developments Pty Ltd v Sommerfeld (No.2) (2005) 2 QdR 404 at 406, 409. However, that question does not arise in this case because ther…
Having referred to the earlier decision of the Full Federal Court in Fraser v Commissioner of Taxation
[1996] FCA 1701 Para 22

…positioned to assess the effect on the estate of the suit. It was for that reasons that the leave granted in Fraser v Deputy Commissioner of Taxation (1996) 69 FCR 99 at 115 included, as it does in this case too, a requirement that the plaintiff keep the trustee informed about the nature of the relief sought.…

Legislation cited in this decision · 2

Bankruptcy Act 1966 (Cth)
249(3) 2 mentions
Federal Court Rules 2011 (Cth)
1 mention

Citation:	Bovaird v Frost [2013] FCA 974
Parties:	LEON LEWIS MACGILLIVRAY BOVAIRD and LEON LEWIS MACGILLIVRAY IN HIS CAPACITY AS THE EXECUTOR OF THE ESTATE OF THE LATE MONICA CATHERINE BOVAIRD v ALAN MAXWELL FROST, DIANA CATHERINE FALLON and MAX DONNELLY IN HIS CAPACITY AS TRUSTEE OF THE BANKRUPT ESTATE OF THE LATE MAXWELL WALTER ALLEN FROST
File number:	NSD 1605 of 2013
Judge:	PERRAM J
Date of judgment:	27 September 2013
Catchwords:	BANKRUPTCY – Whether proceedings in respect of a provable debt within s 249(3) Bankruptcy Act 1966 (Cth) competent to proceed within antecedent grant of leave PRACTICE AND PROCEDURE – Pleadings – Statement of Claim – Application to amend – Whether secondary grant of leave by Federal Court of Australia required to amend pleadings in Supreme Court of New South Wales WORDS AND PHRASES – “Fresh step” – Bankruptcy Act 1966 (Cth) s 249(3)
Legislation:	Bankruptcy Act 1966 (Cth) Pt XI, s 249(3)
Cases cited:	Bovaird v Frost [2009] NSWSC 337cited Bovaird v Frost (2010) 118 ALD 263 cited Bovaird v The Trustee of the Bankrupt Estate of Frost (No 2) [2011] FCA 465 cited Bovaird v Frost [2013] NSWCA 91 considered Fraser Property Developments Pty Ltd v Sommerfeld (No.2) (2005) 2 QdR 404 cited Fraser v Deputy Commissioner of Taxation (1996) 69 FCR 99 cited Frost v Bovaird (2012) 203 FCR 95 cited Gertig v Davies (2003) 85 SASR 226 cited
Date of hearing:	11 September 2013
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	36
Counsel for the Applicants:	Mr M K Condon SC, Mr P D Doyle Gray
Solicitor for the Applicants:	Garland Hawthorn Brahe
Counsel for the First & Second Respondents:	Mr N A Cotman SC, Mr R J Carruthers
Solicitor for the First & Second Respondents:	MBP Legal
Counsel for the Third Respondent:	The third respondent did not appear
Solicitor for the Third Respondent:	Carneys Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1605 of 2013

JUDGE:	PERRAM J
DATE OF ORDER:	27 SEPTEMBER 2013
WHERE MADE:	SYDNEY