Bovaird v Frost [2009] NSWSC 917

Bovaird v Frost [2009] NSWSC 917

Monica is entitled to damages for breach of contract regarding accommodation and redevelopment loan; interest awarded on past payments out of pocket; executors' conduct was not unreasonable and they are entitled to indemnity out of estate; costs to be paid by estate except costs attributable to misconceived damages claim, with Monica and Leon to pay AFM's costs; judgment for third defendant; family provision claim disposed of as damages award makes further order unnecessary.

Parties
Plaintiff: Monica Catherine Bovaird; Plaintiff: Leon Lewis MacGillivray Bovaird; First Defendant: Alan Maxwell Frost; Second Defendant: Diana Catherine Fallon; Third Defendant: AFM Developments Pty Ltd
Jurisdiction
Australia
Judgment Date
04 September 2009
Procedural Posture
Equity Proceedings (including Contractual and Family Provision Claims) / Post Trial; Ruling on Damages, Interest, and Costs (consequential Orders)
Outcome
Judgment for Monica on contract claims; judgment for Leon (nominal damages); judgment for AFM Developments Pty Ltd; Family Provision claim dismissed; orders for payment of damages and costs as detailed.
Legal Topics
Damages Assessment, Contract Enforcement, Family Provision (estate Claims), Interest on Judgments, Costs in Estate Litigation, Executor Indemnity
Succession Law Equity Civil Procedure Damages Assessment Contract Enforcement Family Provision (estate Claims) Interest on Judgments Costs in Estate Litigation +1 more

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Parties

Monica Catherine Bovaird

Plaintiff

Leon Lewis MacGillivray Bovaird

Plaintiff

Alan Maxwell Frost

First Defendant

Diana Catherine Fallon

Second Defendant

AFM Developments Pty Ltd

Third Defendant

Procedural Posture

Equity Proceedings (including Contractual and Family Provision Claims) / Post Trial; Ruling on Damages, Interest, and Costs (consequential Orders)

Legal Issues

  1. 1 Assessment of damages for breach of contract regarding accommodation care and redevelopment loan
  2. 2 Interest entitlement for aged care costs
  3. 3 Proper party for costs and indemnity in estate proceedings

Ratio Decidendi

Monica is entitled to damages for breach of contract regarding accommodation and redevelopment loan; interest awarded on past payments out of pocket; executors' conduct was not unreasonable and they are entitled to indemnity out of estate; costs to be paid by estate except costs attributable to misconceived damages claim, with Monica and Leon to pay AFM's costs; judgment for third defendant; family provision claim disposed of as damages award makes further order unnecessary.

Court Disposition

Judgment for Monica on contract claims; judgment for Leon (nominal damages); judgment for AFM Developments Pty Ltd; Family Provision claim dismissed; orders for payment of damages and costs as detailed.

Orders

  • In proceedings 2211/04: Proceedings dismissed; first and second defendants (as executors) to pay plaintiffs' costs.
  • In 3159/04: First and second defendants (as executors) to pay plaintiff $1; judgment for third defendant; first and second defendants (as executors) to pay plaintiffs' costs; plaintiffs to pay third defendant's costs.