Bovaird v Frost [2013] NSWCA 91

Bovaird v Frost [2013] NSWCA 91

The appeals were dismissed because the appellants failed to raise any doubt about the Full Court of the Federal Court's conclusion that the quantum appeal would be futile. Even if the devastavit proceeding succeeded, the material before the Court did not show that the estate would have sufficient assets to make an increased judgment useful, and the appellants' delayed and speculative approach further supported dismissal with costs.

Jurisdiction
Australia
Judgment Date
24 April 2013
Procedural Posture
Civil Appeals / Motions to Vacate Appeal Hearings and Determination Whether the Appeals Should Be Dismissed
Outcome
Appeals dismissed with costs in each of matters 2009/298569, 2009/298580 and 2009/298581.
Legal Topics
['futility of Appeal' 'quantum of Damages' 'breach of Contract Against Estate' 'family Provision Claim' 'devastavit Proceeding' 'bankrupt Estate' 'vacation of Hearing Date']
['appeals' 'civil Procedure' 'contract Law' 'succession' 'bankruptcy and Insolvency' 'costs'] ['futility of Appeal' 'quantum of Damages' 'breach of Contract Against Estate' 'family Provision Claim' 'devastavit Proceeding' 'bankrupt Estate' 'vacation of Hearing Date']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Civil Appeals / Motions to Vacate Appeal Hearings and Determination Whether the Appeals Should Be Dismissed

Legal Issues

  1. 1 ['Whether the remaining appeals concerning the amounts of monetary judgments should be left for determination at a future time.' 'Whether an appeal against quantum of damages would be an exercise in futility because the estate was insolvent and the judgment debt already exceeded available assets.' 'Whether the pending devastavit proceeding against the executors justified keeping the appeals on foot.' "Whether the appellants should pay the respondents' costs in this Court."]

Ratio Decidendi

The appeals were dismissed because the appellants failed to raise any doubt about the Full Court of the Federal Court's conclusion that the quantum appeal would be futile. Even if the devastavit proceeding succeeded, the material before the Court did not show that the estate would have sufficient assets to make an increased judgment useful, and the appellants' delayed and speculative approach further supported dismissal with costs.

Court Disposition

Appeals dismissed with costs in each of matters 2009/298569, 2009/298580 and 2009/298581.

Orders

  • ['In each of matters 2009/298569, 2009/298580 and 2009/298581, the appeal be dismissed.' "In each of matters 2009/298569, 2009/298580 and 2009/298581, the appellants pay the respondents' costs in this Court."]