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

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

The executors are justified in pursuing an appeal from Perram J's judgment to the Full Federal Court, as there are reasonable prospects of success and the appeal may prevent costly expansion of the devastavit proceedings, subject to the qualification that if amendments are not allowed in advance and the appeal becomes futile, they should not continue. Executors are also justified in incurring costs for the appeal, to be recouped from estate funds subject to directions from the bankruptcy court.

Parties
First Plaintiff, Executor: Alan Maxwell Frost; Second Plaintiff, Executor: Diana Catherine Fallon
Jurisdiction
Australia
Judgment Date
06 November 2013
Procedural Posture
Judicial Advice Application Under Trustee Act / Final Judgment
Outcome
Judicial advice granted
Legal Topics
Judicial Advice to Executors, Insolvent Deceased Estate, Leave to Pursue Appeal, Executors' Right of Indemnity, Costs to Be Recouped From Estate
Equity Trusts and Trustees Bankruptcy Judicial Advice to Executors Insolvent Deceased Estate Leave to Pursue Appeal Executors' Right of Indemnity Costs to Be Recouped From Estate

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Parties

Alan Maxwell Frost

First Plaintiff, Executor

Diana Catherine Fallon

Second Plaintiff, Executor

Procedural Posture

Judicial Advice Application Under Trustee Act / Final Judgment

Legal Issues

  1. 1 Whether executors are justified in pursuing an appeal from Perram J's judgment in Bovaird v Frost [2013] FCA 974 to the Full Federal Court
  2. 2 Whether executors are justified in incurring costs in pursuing that appeal and recouping them from the estate

Ratio Decidendi

The executors are justified in pursuing an appeal from Perram J's judgment to the Full Federal Court, as there are reasonable prospects of success and the appeal may prevent costly expansion of the devastavit proceedings, subject to the qualification that if amendments are not allowed in advance and the appeal becomes futile, they should not continue. Executors are also justified in incurring costs for the appeal, to be recouped from estate funds subject to directions from the bankruptcy court.

Court Disposition

Judicial advice granted

Orders

  • Pursuant to s 63 of the Trustee Act 1925: (a) the plaintiffs (executors) are justified in pursuing an appeal from Perram J's judgment to the Full Court of the Federal Court on specified grounds, subject to the qualification regarding futility if amendments are not allowed in advance; (b) the plaintiffs are justified...