Bovaird v Frost [2009] NSWSC 917

New South Wales Supreme Court

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