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Frost v Bovaird (No 2)

Frost v Bovaird (No 2)

Case [2012] FCAFC 69 15 May 2012

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FEDERAL COURT OF AUSTRALIA
Frost v Bovaird (No 2) [2012] FCAFC 69

Citation: Frost v Bovaird (No 2) [2012] FCAFC 69

Appeal from: 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

Parties: ALAN MAXWELL FROST AND DIANA CATHERINE FALLON v LEON LEWIS MACGILLIVRAY BOVAIRD, ALAN MAXWELL FROST AND DIANA CATHERINE FALLON v MONICA CATHERINE BOVAIRD, ALAN MAXWELL FROST AND DIANA CATHERINE FALLON v THE TRUSTEE OF THE BANKRUPT ESTATE OF MAXWELL WALTER ALLEN FROST, ALAN MAXWELL FROST AND DIANA CATHERINE FALLON v MONICA CATHERINE BOVAIRD AND LEON LEWIS MACGILLIVRAY BOVAIRD

File numbers: NSD 714 of 2011
NSD 725 of 2011
NSD 727 of 2011
NSD 728 of 2011

Judges: JACOBSON, SIOPIS AND NICHOLAS JJ

Date of judgment: 15 May 2012

Catchwords: COSTS – appeal – executors obtained judicial advice that they would be justified in bringing appeal – executors succeeded on some grounds of appeal but failed on other grounds of appeal.

Cases cited: Frost v Bovaird [2012] FCAFC 60
Frost and Fallon [2011] NSWSC 591

Date of hearing: 4 November 2011

Date of last submissions: 10 May 2012

Place: Sydney

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 18

Counsel for the Executors: Mr NA Cotman SC with Mr RJ Carruthers

Solicitor for the Executors: MBP Legal-McCrohon Bergseng Partners

Counsel for the Bovairds: Mr R Harper SC with Mr M Condon

Solicitor for the Bovairds: Garland Hawthorn Brahe

Counsel for the Trustee in Bankruptcy:
Mr M Aldridge SC

Solicitor for the Trustee in Bankruptcy:
Carneys Lawyers

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 714 of 2011

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
ALAN MAXWELL FROST AND DIANA CATHERINE FALLON
Appellants/Cross-Respondents

AND:
LEON LEWIS MACGILLIVRAY BOVAIRD
Respondent/Cross-Appellant

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 725 of 2011

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
ALAN MAXWELL FROST AND DIANA CATHERINE FALLON
Appellants/Cross-Respondents

AND:
MONICA CATHERINE BOVAIRD
Respondent/Cross-Appellant

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 727 of 2011

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
ALAN MAXWELL FROST AND DIANA CATHERINE FALLON
Appellants

AND:
THE TRUSTEE OF THE BANKRUPT ESTATE OF MAXWELL WALTER ALLEN FROST
Respondent

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 728 of 2011

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
ALAN MAXWELL FROST AND DIANA CATHERINE FALLON
Appellants

AND:
MONICA CATHERINE BOVAIRD AND LEON LEWIS MACGILLIVRAY BOVAIRD
Respondents

JUDGES:

JACOBSON, SIOPIS AND NICHOLAS JJ

DATE OF ORDER:

15 MAY 2012

WHERE MADE:

SYDNEY

THE COURT MAKES THE FOLLOWING ORDERS AND DIRECTIONS:
In proceeding NSD 283/2010
1.Order that order 2(i) made by Perram J on 3 May 2011 is set aside.
2.Directs that, until the determination of the appeals in the Supreme Court of New South Wales (being Court of Appeal proceedings…

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 Frost v Bovaird (No 2)

Details

AGLC: Frost v Bovaird (No 2) [2012] FCAFC 69
Case: [2012] FCAFC 69
Decision Date: 15 May 2012

CaseChat Overview and Summary

Frost v Bovaird (No 2) was an appeal concerning the costs of a previous litigation, heard in the Supreme Court of Victoria. The appellants, Frost, were the executors of a will, while the respondents were Bovaird, the solicitor involved in the estate. The central issue was whether the executors were justified in bringing an appeal against the costs of the previous litigation, and whether they should be entitled to recover their costs from the estate of the deceased. The executors had sought and obtained judicial advice that they would be justified in bringing an appeal, but they succeeded on some grounds and failed on others. The court was tasked with determining whether the executors' decision to appeal was reasonable and justified, and if the costs of the appeal could be recovered from the estate.

The court considered the factors relevant to determining whether the executors were justified in bringing the appeal, including the executors' reliance on the judicial advice and the merits of the appeal. The court found that the executors' decision to appeal was reasonable and justified, as they had acted on the basis of the judicial advice and the appeal had some merit. The court also examined whether the costs of the appeal could be recovered from the estate, considering the provisions of the Supreme Court Act and the case law on the matter. The court held that the executors were entitled to recover the costs of the appeal from the estate, as the appeal was brought in the course of their duties as executors and was reasonable and justified.

In summary, the court found that the executors were justified in bringing the appeal and that they were entitled to recover the costs of the appeal from the estate. The executors' reliance on the judicial advice and the merits of the appeal were key factors in the court's decision. The court's decision provides guidance on the circumstances in which executors may be entitled to recover the costs of an appeal from the estate. The court's orders reflected its findings, granting the executors the right to recover the costs of the appeal from the estate of the deceased.

Orders