Application by Alan Maxwell Frost [2014] NSWSC 597

Application by Alan Maxwell Frost [2014] NSWSC 597

Judicial advice was refused because the executors were defending a devastavit claim against themselves personally, the estate was bankrupt and controlled by a trustee in bankruptcy, the Federal Court had prohibited payment of the executors' costs from the estate without further order, and the executors could not and did not intend to use estate assets to fund the special leave application. In those circumstances there was no present need for s 63 advice to protect the executors from having spent trust money, any later recoupment would be a matter for a court with bankruptcy jurisdiction, and the devastavit proceeding was analogous to a beneficiaries dispute with no public interest...

Jurisdiction
Australia
Judgment Date
16 May 2014
Procedural Posture
Application for Judicial Advice Pursuant to S 63(1) of the Trustee Act 1925 (nsw) / Principal Judgment on Whether Executors Would Be Justified in Pursuing a High Court Special Leave Application From Frost V Bovaird [2014] FCAFC 20
Outcome
Application for judicial advice refused; summons dismissed
Legal Topics
['judicial Advice to Trustees' 'insolvent Deceased Estate' 'executor Indemnity and Costs' 'devastavit Proceedings' 'special Leave to Appeal' 'administration Under Part XI of the Bankruptcy Act 1966 (cth)']
['equity' 'trusts and Trustees' 'bankruptcy and Insolvency' 'deceased Estates'] ['judicial Advice to Trustees' 'insolvent Deceased Estate' 'executor Indemnity and Costs' 'devastavit Proceedings' 'special Leave to Appeal' 'administration Under Part XI of the Bankruptcy Act 1966 (cth)']

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Procedural Posture

Application for Judicial Advice Pursuant to S 63(1) of the Trustee Act 1925 (nsw) / Principal Judgment on Whether Executors Would Be Justified in Pursuing a High Court Special Leave Application From Frost V Bovaird [2014] FCAFC 20

Legal Issues

  1. 1 ['Whether the plaintiff executors would be justified in prosecuting an application in the High Court for special leave to appeal from the judgment of the Full Court of the Federal Court and an appeal if special leave were granted.' 'Whether the plaintiff executors would be justified in incurring or potentially incurring costs of the estate in pursuing the special leave application and any appeal, subject to any direction by a court with bankruptcy jurisdiction to the trustee in bankruptcy.' 'Whether the circumstances were appropriate for judicial advice under s 63 of the Trustee Act 1925 (NSW), given that the estate was insolvent, controlled by a trustee in bankruptcy, and the relevant proceedings were devastavit proceedings against the executors personally.']

Ratio Decidendi

Judicial advice was refused because the executors were defending a devastavit claim against themselves personally, the estate was bankrupt and controlled by a trustee in bankruptcy, the Federal Court had prohibited payment of the executors' costs from the estate without further order, and the executors could not and did not intend to use estate assets to fund the special leave application. In those circumstances there was no present need for s 63 advice to protect the executors from having spent trust money, any later recoupment would be a matter for a court with bankruptcy jurisdiction, and the devastavit proceeding was analogous to a beneficiaries dispute with no public interest...

Court Disposition

Application for judicial advice refused; summons dismissed

Orders

  • ['Application for judicial advice refused' 'Summons dismissed']