Bovaird v Frost [2013] FCA 974

Bovaird v Frost [2013] FCA 974

Where general leave is granted by the bankruptcy court under s 249(3) Bankruptcy Act 1966 (Cth) to proceed with an action in another court, further leave is not required for an application to amend unless the original grant is expressly limited; procedural steps may proceed subject always to terms imposed and notification undertakings to the trustee.

Parties
First Applicant: Leon Lewis MacGillivray Bovaird; Second Applicant: Leon Lewis MacGillivray in his capacity as the Executor of the Estate of the Late Monica Catherine Bovaird; First Respondent: Alan Maxwell Frost; Second Respondent: Diana Catherine Fallon; Third Respondent: Max Donnelly in his capacity as Trustee of the Bankrupt Estate of the Late Maxwell Walter Allen Frost
Jurisdiction
Australia
Judgment Date
27 September 2013
Procedural Posture
Application to Vary/amend Leave Relating to Devastavit Proceedings and Cross Vesting / Interlocutory Application (amendment Application; Oral Application to Vary Earlier Leave; Application to Cross Vest)
Outcome
All applications dismissed
Legal Topics
Provable Debts Under Bankruptcy Act, Leave to Proceed in Other Courts, Amendments to Pleadings, Cross Vesting
Bankruptcy Civil Procedure Provable Debts Under Bankruptcy Act Leave to Proceed in Other Courts Amendments to Pleadings Cross Vesting

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 2 Authorities cited 9 Party arguments 2
Sign in to unlock

Parties

Leon Lewis MacGillivray Bovaird

First Applicant

Leon Lewis MacGillivray in his capacity as the Executor of the Estate of the Late Monica Catherine Bovaird

Second Applicant

Alan Maxwell Frost

First Respondent

Diana Catherine Fallon

Second Respondent

Max Donnelly in his capacity as Trustee of the Bankrupt Estate of the Late Maxwell Walter Allen Frost

Third Respondent

Procedural Posture

Application to Vary/amend Leave Relating to Devastavit Proceedings and Cross Vesting / Interlocutory Application (amendment Application; Oral Application to Vary Earlier Leave; Application to Cross Vest)

Legal Issues

  1. 1 Whether leave of the Federal Court is required to amend pleadings in devastation proceedings in Supreme Court where leave to proceed has previously been granted under s 249(3) Bankruptcy Act 1966 (Cth)
  2. 2 Whether a further grant of leave is required for a 'fresh step' (amendment) under s 249(3) in light of a prior general leave
  3. 3 Whether the Federal Court should vary the earlier grant of leave

Ratio Decidendi

Where general leave is granted by the bankruptcy court under s 249(3) Bankruptcy Act 1966 (Cth) to proceed with an action in another court, further leave is not required for an application to amend unless the original grant is expressly limited; procedural steps may proceed subject always to terms imposed and notification undertakings to the trustee.

Court Disposition

All applications dismissed

Orders

  • The applicants' application for leave to apply to the Supreme Court for leave to amend the statement of claim in the Supreme Court of New South Wales proceeding 2010/41888 is dismissed.
  • The respondents' oral application to vary the grant of leave by Justice Perram of 3 May 2011 is dismissed.