Bovaird v Frost [2015] NSWSC 267

Bovaird v Frost [2015] NSWSC 267

Leave to amend is granted in respect of most proposed amendments as they are sufficiently arguable, but refused in respect of the 'SEPP 53' claim as presently pleaded. Further and better discovery is ordered as sought. Leave to amend regarding the Barina motor car claim is granted as the statute-bar is not definitively established at this stage.

Parties
First Plaintiff: Leon Lewis MacGillivray Bovaird as executor of the estate of the late Monica Catherine Bovaird; Second Plaintiff: Leon Lewis MacGillivray Bovaird; First Defendant: Alan Maxwell Frost; Second Defendant: Diana Catherine Fallon
Jurisdiction
Australia
Judgment Date
20 March 2015
Procedural Posture
Procedural and Other Rulings / Interlocutory Application to Amend Statement of Claim and for Further Discovery
Outcome
Leave to amend granted in part; further discovery ordered; costs of the amendment to be paid by plaintiff.
Legal Topics
Leave to Amend Statement of Claim, Discovery, Duties of Executors, Devastavit, Bankruptcy and Estates, Cause of Action in Equity and Common Law
Practice and Procedure Equity Leave to Amend Statement of Claim Discovery Duties of Executors Devastavit Bankruptcy and Estates Cause of Action in Equity and Common Law

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Parties

Leon Lewis MacGillivray Bovaird as executor of the estate of the late Monica Catherine Bovaird

First Plaintiff

Leon Lewis MacGillivray Bovaird

Second Plaintiff

Alan Maxwell Frost

First Defendant

Diana Catherine Fallon

Second Defendant

Procedural Posture

Procedural and Other Rulings / Interlocutory Application to Amend Statement of Claim and for Further Discovery

Legal Issues

  1. 1 Whether leave to amend Statement of Claim should be granted
  2. 2 Whether proposed claims are futile or bound to fail
  3. 3 Whether further discovery should be ordered

Ratio Decidendi

Leave to amend is granted in respect of most proposed amendments as they are sufficiently arguable, but refused in respect of the 'SEPP 53' claim as presently pleaded. Further and better discovery is ordered as sought. Leave to amend regarding the Barina motor car claim is granted as the statute-bar is not definitively established at this stage.

Court Disposition

Leave to amend granted in part; further discovery ordered; costs of the amendment to be paid by plaintiff.

Orders

  • Leave granted to amend Statement of Claim in accordance with paragraphs 1 to 73 of the document called 'Amended Statement of Claim 13 March 2015'.
  • Plaintiff's application to amend otherwise dismissed.