Bovaird v Guardianship Tribunal and Ors [2009] NSWSC 452

Bovaird v Guardianship Tribunal and Ors [2009] NSWSC 452

The Tribunal did not err in law or miscarry its discretion in refusing indemnity costs. Although there was strong ground for believing Mrs Fallon's application was motivated by a desire to frustrate Supreme Court proceedings, the application concerned an incapacitated person and had some substance regarding Mr Bovaird's use of his mother's property. The Tribunal was entitled to refrain from finding the application vexatious or an abuse of process, to apportion post-1 March 2007 costs broadly because both applications were then on foot and Mr Bovaird failed in his own application, and to exclude Senior Counsel's costs as not justified by the proceedings.

Jurisdiction
Australia
Judgment Date
26 May 2009
Procedural Posture
Appeal From Costs Order of Guardianship Tribunal / Supreme Court Appeal Under S 67 of the Guardianship Act 1987 (nsw) From Costs Orders Made by the Guardianship Tribunal
Outcome
Appeal dismissed.
Legal Topics
['appeal From Guardianship Tribunal' 'indemnity Costs' 'discretionary Costs Orders' 'financial Management Orders' 'genuine Concern for Welfare' 'abuse of Process']
['costs' 'guardianship' 'administrative Law'] ['appeal From Guardianship Tribunal' 'indemnity Costs' 'discretionary Costs Orders' 'financial Management Orders' 'genuine Concern for Welfare' 'abuse of Process']

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Procedural Posture

Appeal From Costs Order of Guardianship Tribunal / Supreme Court Appeal Under S 67 of the Guardianship Act 1987 (nsw) From Costs Orders Made by the Guardianship Tribunal

Legal Issues

  1. 1 ["Whether time to appeal from the Tribunal's costs order should be extended under s 67(2)(c) of the Guardianship Act 1987 (NSW)." "Whether the Tribunal erred in failing to characterise Mrs Fallon's application as frivolous, vexatious or an abuse of process after not being satisfied that she had a genuine concern for Mrs Bovaird's welfare." "Whether the Tribunal's discretion miscarried in refusing indemnity costs, awarding only half of Mr Bovaird's costs from 1 March 2007, and excluding Senior Counsel's costs."]

Ratio Decidendi

The Tribunal did not err in law or miscarry its discretion in refusing indemnity costs. Although there was strong ground for believing Mrs Fallon's application was motivated by a desire to frustrate Supreme Court proceedings, the application concerned an incapacitated person and had some substance regarding Mr Bovaird's use of his mother's property. The Tribunal was entitled to refrain from finding the application vexatious or an abuse of process, to apportion post-1 March 2007 costs broadly because both applications were then on foot and Mr Bovaird failed in his own application, and to exclude Senior Counsel's costs as not justified by the proceedings.

Court Disposition

Appeal dismissed.

Orders

  • ['Time for filing the Summons in these proceedings under s 67(2)(c) be extended up to and including the date of filing.' "The Plaintiff's appeal from the Tribunal's costs order is dismissed."]