FEDERAL COURT OF AUSTRALIA Frost v Bovaird [2012] FCA 831 Citation: Frost v Bovaird [2012] FCA 831 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 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 1582 of 2010 NSD 1583 of 2010 NSD 1584 of 2010 NSD 1585 of 2010 Judge: EMMETT J Date of judgment: 10 August 2012 Legislation: Bankruptcy Act 1966 (Cth) s 249 Date of hearing: 18 July 2012 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 8 Counsel for the applicants: T Bates Solicitor for the applicants: MBP Legal Solicitor for the respondents: BJ Miller of Garland Hawthorn Brahe IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1582 of 2010 BETWEEN: ALAN MAXWELL FROST First Applicant DIANA CATHERINE FALLON Second Applicant AND: LEON LEWIS MACGILLIVRAY BOVAIRD Respondent JUDGE: EMMETT J DATE OF ORDER: 10 August 2012 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The proceeding be dismissed as incompetent. 2. The applicants pay the respondent's costs of the proceeding. 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 1583 of 2010 BETWEEN: ALAN MAXWELL FROST First Applicant DIANA CATHERINE FALLON Second Applicant AND: MONICA CATHERINE BOVAIRD Respondent JUDGE: EMMETT J DATE OF ORDER: 10 August 2012 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The proceeding be dismissed as incompetent. 2. The applicants pay the respondent's costs of the proceeding. 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 1584 of 2010 BETWEEN: ALAN MAXWELL FROST First Applicant DIANA CATHERINE FALLON Second Applicant AND: TRUSTEE OF THE BANKRUPT ESTATE OF MAXWELL WALTER ALLEN FROST Respondent JUDGE: EMMETT J DATE OF ORDER: 10 August 2012 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The proceeding be dismissed as incompetent. 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 1585 of 2010 BETWEEN: ALAN MAXWELL FROST First Applicant DIANA CATHERINE FALLON Second Applicant AND: MONICA CATHERINE BOVAIRD First Respondent LEON LEWIS MACGILLIVRAY BOVAIRD Second Respondent JUDGE: EMMETT J DATE OF ORDER: 10 aUGUST 2012 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The proceeding be dismissed as incompetent. 2. The applicants pay the respondents' costs of the proceeding. 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 1582 of 2010 BETWEEN: ALAN MAXWELL FROST First Applicant DIANA CATHERINE FALLON Second Applicant AND: LEON LEWIS MACGILLIVRAY BOVAIRD Respondent IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1583 of 2010 BETWEEN: ALAN MAXWELL FROST First Applicant DIANA CATHERINE FALLON Second Applicant AND: MONICA CATHERINE BOVAIRD Respondent IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1584 of 2010 BETWEEN: ALAN MAXWELL FROST First Applicant DIANA CATHERINE FALLON Second Applicant AND: 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 1585 of 2010 BETWEEN: ALAN MAXWELL FROST First Applicant DIANA CATHERINE FALLON Second Applicant AND: MONICA CATHERINE BOVAIRD AND LEON LEWIS MACGILLIVRAY BOVAIRD Respondent JUDGE: EMMETT J DATE: 10 August 2012 PLACE: SYDNEY REASONS FOR JUDGMENT 1 On 17 November 2010, a notice of motion was filed on behalf of Mr Alan Frost and Ms Diana Fallon (the Applicants). The notice of motion purported to seek leave to file a notice of appeal from orders said to have been made by Perram J on 27 October 2010 in four different proceedings. The four proceedings are NSD 1394 of 2009, NSD 1395 of 2009, NSD 283 of 2010 and NSD 470 of 2010 (the First Instance Proceedings). Separate files were allocated on the basis that, in substance, there were four notices of motion. The new proceedings are NSD 1582 of 2010, NSD 1583 of 2010, NSD 1584 of 2010 and NSD 1585 of 2010 (the Leave Proceedings). 2 The Applicants are the executors of the estate of the late Maxwell Walter Allen Frost (the Deceased). On 23 October 2009, an order was made by the Federal Magistrates Court that the estate of the Deceased be administered in bankruptcy. As at 27 October 2010, Mr Max Donnelly was the trustee of the estate of the Deceased. By virtue of a determination made in proceedings 3159 of 2004, 2211 of 2004 and 1923 of 2006, in the Supreme Court of New South Wales, Mr Leon Bovaird and Ms Monica Bovaird are creditors of the estate of the Deceased. 3 The First Instance Proceedings arise out of the administration of the estate of the Deceased. They may be summarised as follows: NSD 1394 of 2009 relates to an application by Leon Bovaird for leave under s 249(3) of the Bankruptcy Act 1966 (Cth) to pursue appeals in Supreme Court proceeding 3159 of 2004. NSD 1395 of 2009 relates to an application by Monica Bovaird for leave under s 249(3) of the Bankruptcy Act 1966 (Cth) to pursue appeals in Supreme Court proceedings 2211 of 2004 and 1923 of 2006. NSD 283 of 2010 is an application by the Applicants for orders and declarations in relation to their right of indemnity by payment from the assets of the estate of the Deceased and prior equitable rights in the vesting of certain property of the Deceased. NSD 470 of 2010 is an application by the Applicants that proceeding 4811 of 2010, commenced in the Supreme Court against the Applicants by Leon and Monica Bovaird, be stayed on the basis that it should be maintained only by the trustee in bankruptcy for the benefit of the estate of the Deceased. 4 In reasons for judgment published on 27 October 2010, Perram J dealt with all of the First Instance Proceedings. His Honour indicated that he proposed to grant leave to pursue the appeals insofar as they concern certain issues and rejected the application for the stay of the proceedings brought by Leon and Monica Bovaird against the Applicants. His Honour also indicated that the trustee in bankruptcy would not be justified in participating in the appeal proceedings and should not at that stage meet the legal expenses of the Applicants in any of the proceedings in the Supreme Court. Finally, his Honour indicated that an interim dividend should be paid in the administration of the estate of the Deceased. 5 His Honour directed the parties to bring in short minutes of orders reflecting the conclusions set out in the reasons for judgment and indicated that he would hear the parties on costs if they wished. No other orders were made at that time. Thus, the purported applications for leave to appeal filed on 17 November 2010 were incompetent, insofar as they purported to seek leave to appeal from orders foreshadowed on 27 October 2010, rather than orders that were actually made on that day. Ultimately, orders were made as foreshadowed by Perram J and notices of appeal from those orders were subsequently filed. Those appeals have now been dealt with. However, the Leave Proceedings were left to fester in the Registry. 6 In order to achieve finality in relation to the Leave Proceedings, they were listed for callover on 18 July 2012. At the callover, the solicitor for the Applicants indicated, unsurprisingly, that the Applicants did not wish to prosecute any of the Leave Proceedings. He sought to file a notice of discontinuance in the Leave Proceedings. However, Mr B J Miller, the solicitor for Leon and Monica Bovaird, appeared at the callover and sought an order for the costs of the Leave Proceedings to which they were respondents. The parties have agreed that that question should be dealt with on the papers. 7 Relevantly, for present purposes, a notice of appearance was filed on behalf of Leon and Monica Bovaird in three of those proceedings by Mr Miller. The trustee in bankruptcy was the respondent in proceeding NSD 1584 of 2010. While a notice of appearance was filed on behalf of the trustee in bankruptcy in proceeding NSD 1582 of 2010, he does not appear to have filed a notice of appearance in proceeding NSD 1584 of 2010. In any event, there has been no application by the trustee in bankruptcy for an order for costs. 8 In the circumstances, in the absence of consent, I consider that the appropriate course is to reject the notice of discontinuance but order that the four applications be dismissed as incompetent. I will make orders accordingly. It is apparent that the Leave Proceedings should not have been commenced. No doubt those responsible for their commencement were concerned to ensure that time did not run against them. Nevertheless, in the absence of orders, other than a direction to bring in short minutes, which was clearly not the subject of an appeal, there was nothing from which to appeal. Accordingly, the respondents are entitled to their costs of the proceedings. I will make orders accordingly in proceedings NSD 1582 of 2010, NSD 1583 of 2010 and NSD 1585 of 2010. I will not make any order as to costs in proceeding NSD 1584 of 2010. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate: Dated: 10 August 2012