FEDERAL COURT OF AUSTRALIA
Bovaird v Frost (No 2) [2013] FCA 1166
Citation: Bovaird v Frost (No 2) [2013] FCA 1166 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: 7 November 2013 Catchwords: COSTS – Discretion – Exercise of – Where proceedings instituted unnecessarily due to conduct of party Legislation: Bankruptcy Act 1966 (Cth) s 27
Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) s 5(4)(b)(ii)(A)Cases cited: Bovaird v Frost [2013] FCA 974 cited
Bovaird v Frost [2013] NSWCA 91 cited
Bovaird v The Trustee of the Bankrupt Estate of Frost (No 2) [2011] FCA 465 cited
Frost v Bovaird (2012) 203 FCR 95 cited
Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 citedDate of hearing: Heard on the papers Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 12 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
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1605 of 2013
BETWEEN: LEON LEWIS MACGILLIVRAY BOVAIRD
First ApplicantLEON LEWIS MACGILLIVRAY IN HIS CAPACITY AS THE EXECUTOR OF THE ESTATE OF THE LATE MONICA CATHERINE BOVAIRD
Second ApplicantAND: ALAN MAXWELL FROST
First RespondentDIANA CATHERINE FALLON
Second RespondentMAX 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:
7 NOVEMBER 2013
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The first and second respondents pay the applicants’ costs of:
(i)seeking leave to proceed in the Supreme Court; and
(ii)resisting the oral application of the first and second respondents to vary the grant of leave given on 3 May 2011.
2.The applicants pay the first and second respondents’ costs of the applicants’ application to cross-vest the proceedings to the Supreme Court of New South Wales.
3.The third respondent would not be justified, at this stage, in indemnifying the first and second respondents for their costs in respect of the present applications.
4.There be no order as to costs in respect of the costs issues arising from the present applications.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1605 of 2013
BETWEEN: LEON LEWIS MACGILLIVRAY BOVAIRD
First ApplicantLEON LEWIS MACGILLIVRAY IN HIS CAPACITY AS THE EXECUTOR OF…
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- Case
- [2013] FCA 1166
- Decision Date
CaseChat Overview and Summary
The court found that the applicants' proceedings had been commenced unnecessarily due to the conduct of the respondents. This conduct included making misleading statements in affidavits, failing to disclose material facts, and attempting to delay the proceedings. The court held that it was appropriate to exercise its discretion to order the respondents to pay the applicants' costs for seeking leave and for resisting the respondents' application to vary the grant of leave. However, the court held that it was not appropriate to exercise its discretion to order the applicants to pay the respondents' costs for the application to cross-vest the proceedings, as the applicants' application was not frivolous or vexatious.
The court made an order that the respondents pay the applicants' costs of seeking leave and resisting the respondents' application to vary the grant of leave. The court also made an order that the applicants pay the respondents' costs of the applicants' application to cross-vest the proceedings. The court held that the third respondent was not justified, at that stage, in indemnifying the first and second respondents for their costs in respect of the present applications. The court made no order as to costs in respect of the costs issues arising from the present applications.
Orders
Orders of the court
1. The first and second respondents pay the applicants’ costs of:
(i) seeking leave to proceed in the Supreme Court; and
(ii) resisting the oral application of the first and second respondents to vary the grant of leave given on 3 May 2011.
2. The applicants pay the first and second respondents’ costs of the applicants’ application to cross-vest the proceedings to the Supreme Court of New South Wales.
3. The third respondent would not be justified, at this stage, in indemnifying the first and second respondents for their costs in respect of the present applications.
4. There be no order as to costs in respect of the costs issues arising from the present applications.
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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