Alan Maxwell Frost and Diana Catherine Fallon [2013] NSWSC 1619

Supreme Court New South Wales

Medium Neutral Citation: Alan Maxwell Frost and Diana Catherine Fallon [2013] NSWSC 1619 Hearing dates: 25 October 2013 Decision date: 06 November 2013 Jurisdiction: Equity Division Before: Darke J Decision: (1)Pursuant to s 63 of the Trustee Act 1925 the Court advises: (a)That the plaintiffs would be justified in pursuing an appeal from the judgment of Perram J in Bovaird v Frost [2013] FCA 974 to the Full Court of the Federal Court on the grounds set out in annexure "A" to the Summons and in accordance with the advice of counsel dated 4 October 2013, subject to the qualification that if for any reason the application in this Court to amend the Statement of Claim in proceedings number 2010/41888 proceeds in advance of the said appeal and the contentious amendments are not allowed, thereby rendering the appeal futile, the executors would not be justified in continuing to pursue the appeal; and (b)That the plaintiffs would be justified in incurring costs in pursuing the said appeal in accordance with paragraph (a) above, with such costs to be recouped from the funds of the estate, subject to the qualification that such recoupment only occur in accordance with a direction given by a court with bankruptcy jurisdiction to the trustee in bankruptcy of the estate. Catchwords: EQUITY - trusts and trustees - applications to the court for advice - insolvent deceased estate - whether executor justified in pursuing appeal - where success on appeal might prevent expansion of scope of other litigation involving estate - judicial advice given that executors would be justified in pursuing appeal Legislation Cited: Bankruptcy Act 1966 (Cth) Family Provision Act 1982 Trustee Act 1925 Cases Cited: Bovaird v Frost [2009] NSWSC 337 Bovaird v Frost [2009] NSWSC 917 Bovaird v Frost [2013] FCA 974 Bovaird v Frost [2013] NSWCA 91 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 Frost and Fallon [2011] NSWSC 591 Frost v Bovaird [2012] FCACFC 60; (2012) 203 FCR 95 Frost v Bovaird (No 2) [2012] FCAFC 69 Macedonian Orthodox Community Church St Petka Incorporated v Bishop Petar (2008) 237 CLR 66; [2008] HCA 42 Category: Principal judgment Parties: Alan Maxwell Frost (First plaintiff) Diana Catherine Fallon (Second plaintiff) Representation: Counsel: N A Cotman SC with R J Carruthers (Plaintiffs) Solicitors: MBP Legal (Plaintiffs) File Number(s): 2013/310399 Publication restriction: Nil