Angela Cecilia Theresa Frigger Hartmut Hubert Josef Frigger v Mervyn Jonathan Kitay in his capacity as liquidator of Computer Accounting and Tax Pty Ltd (In Liq) and Computer Accounting and Tax Pty Ltd (In Liq) [No 10] - [2025] WASC 214

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   ANGELA CECILIA THERESA FRIGGER HARTMUT HUBERT JOSEF FRIGGER -v- MERVYN JONATHAN KITAY in his capacity as liquidator of COMPUTER ACCOUNTING AND TAX PTY LTD (In Liq) and COMPUTER ACCOUNTING AND TAX PTY LTD (In Liq) [No 10] [2025] WASC 214
CORAM:   MUSIKANTH J
HEARD:   15 MAY 2025
DELIVERED          :   30 MAY 2025
FILE NO/S:   COR 2 of 2010
BETWEEN:   ANGELA CECILIA THERESA FRIGGER HARTMUT HUBERT JOSEF FRIGGER
Applicants
AND
MERVYN JONATHAN KITAY in his capacity as liquidator of COMPUTER ACCOUNTING AND TAX PTY LTD (In Liq) and COMPUTER ACCOUNTING AND TAX PTY LTD (In Liq)
Respondents

Catchwords:

Practice and procedure - Application to amend costs order made in 2014 - Order 2 r 1 - Order 21 r 10 (slip rule) - Order 43 r 15 - Inherent jurisdiction - Inordinate delay in bringing application - Proper administration of justice - Finality of litigation - Turns on own facts

Legislation:

Rules of Supreme Court 1971 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicants	:	In person
Respondents	:	Mr B W Ashdown

Solicitors:

Applicants	:	In person
Respondents	:	Herbert Smith Freehills

Case(s) referred to in decision(s):

Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529
Commissioner of the Australian Federal Police v Goldfinger Bullion Reserve Corporation [No 2] [2013] WASC 16
Frigger v Kitay [2017] FCA 1278
Frigger v Kitay [2019] FCA 624
Kitay v Frigger [No 2] [2024] WASC 113
Kitay v Frigger [No 2] [2024] WASC 113 (S)
Kitay, in the matter of Frigger [No 2] [2018] FCA 1032
L Shaddock & Associates Pty Ltd v Council of the City of Paramatta [No 2] [1992] HCA 59
Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2008] WASCA 211
McCloud v Australlian Securities Commission [1999] WASCA 35
Monaco v Uneedo Pty Ltd (1994) 13 WAR 522
Mustafa v The Queen [2002] WASCA 357; (2002) 27 WAR 73
Norman v Norman (1992) 6 WAR 372
Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 4] [2015] WASCA 253
Re Computer Accounting & Tax Pty Ltd ex parte Mervyn Jonathan Kitay in his capacity as liquidator of Computer Accounting & Tax Pty Ltd in liquidation [No 4] [2014] WASC 169
Re Harrison's Share Under a Settlement [1955] Ch 260

MUSIKANTH J:

This is an application by Mrs Angela Cecilia Theresa Frigger and Mr Hartmut Hubert Josef Frigger (Friggers) for an order that an indemnity costs order made against them by Master Sanderson in June 2014 (indemnity costs order) be varied to substitute certain words for others.

The indemnity costs order was extracted on 17 June 2014.
It reads as follows:
UPON THE APPLICATION of the Applicants by Interlocutory Process date 25 November 2013, IT IS ORDERED THAT:
1.Angela Cecilia Theresa Frigger (Mrs Frigger) and Hartmut Frigger (Mr Frigger) should pay the costs, including the reserved costs of the Applicants on a full indemnity basis, save insofar as those costs have been properly[1] incurred.
[1] On 9 April 2015, Registrar S Boyle amended the word 'properly' to read 'improperly'.
The Friggers apply for the words 'the Applicants' to instead read 'Mervyn Jonathan Kitay in his capacity as liquidator of Computer Accounting and Tax Pty Ltd (in liquidation)'.
The indemnity costs order was made just over a month after Master Sanderson had, on 15 May 2014, ordered the Friggers to, among other things, deliver up all hard copies of a confidential affidavit which had been filed in the proceedings together with hard copies of any annexures thereto (May 2014 orders).[2]
[2] Master Sanderson's reasons for making the May 2014 orders are published as Re Computer Accounting & Tax Pty Ltd ex parte Mervyn Jonathan Kitay in his capacity as liquidator of Computer Accounting & Tax Pty Ltd in liquidation [No 4] [2014] WASC 169.
The May 2014 orders required the Friggers to deliver those materials to 'the Applicants'.
The interlocutory application which preceded those orders had been filed by Herbert Smith Freehills (HSF) on 25 November 2013 (interlocutory application).
By its terms, the interlocutory application was filed on behalf of 'the Applicants'.[3]
[3] Further details relating to the application which resulted in the orders of 15 May 2024 are summarised by Colvin J in Kitay, in the matter of Frigger [No 2] [2018] FCA 1032 [59] - [82] (Bankruptcy judgment).
According to the heading of the interlocutory application, the 'Applicants' were:
(a)Mervyn Jonathan Kitay (Mr Kitay) in his capacity as liquidator of Computer Accounting & Tax Pty Ltd (in liquidation); and
(b)Computer Accounting & Tax Pty Ltd (in liquidation) (CAT).
The expression 'the Applicants' is also deployed in both the May 2014 orders and the indemnity costs order.

However, in his published reasons for making the May 2014 orders Master Sanderson did not use that expression.
Instead, the learned master used the expression 'applicant' or 'liquidator' throughout. He also expressly recorded, in his reasons, that the 'applicant' for the orders in the interlocutory application was 'the liquidator of [CAT]'.[4]
[4] Re Computer Accounting & Tax Pty Ltd ex parte Mervyn Jonathan Kitay in his capacity as liquidator of Computer Accounting & Tax Pty Ltd in liquidation [No 4] [2014] WASC 169 [2].
It is also relevant to observe that:
(a)in the interlocutory application itself, under the heading 'details of the application', it was stated that Mr Kitay applied for the orders sought as the first named applicant in his capacity as the liquidator of the second named applicant [CAT]; and
(b)in the opening paragraph of its written submissions dated 13 March 2014 in support of the interlocutory application, HSF submitted that '[t]he applicant, Mr Mervyn Kitay … is the liquidator of [CAT]'. (emphasis added)
In addition, on 4 June 2014, a few hours after Master Sanderson had delivered his reasons for the May 2014 orders, HSF sent an email to the master's associate (copied to the Friggers) which read:
I refer to 'Mr & Mrs Frigger's Submissions in Relation to Costs of Mr Kitay's Application dated 25 November 2013', dated 31 May 2024 which were apparently filed with the Court and provided to us by Mrs Frigger on 3 June 2014.
I confirm that our client seeks an order for indemnity costs against Mr and Mrs Frigger.
Please advise as to whether the Master considers that it is necessary or appropriate for us to provide a responsive Outline of Submissions, setting out the basis upon which our client considers he should be entitled to indemnity costs. If so, we can provide an Outline within seven days of today's date.
(emphasis added)[5]
[5] The Friggers' submissions on costs dated 31 May 2014, on their face, also appear to be premised on the assumption that the interlocutory application had been brought by Mr Kitay alone, referring in various places to 'his' or 'Mr Kitay's' application, and incorporating a submission that 'no order for costs in favour of Mr Kitay should be made'. (emphasis added)
Moreover, the transcript of Master Sanderson's reasons, delivered a few days before the indemnity costs order was extracted (June 2014 transcript), records that the master uttered the following words:
The outstanding issue in this matter is the question of costs. I've called for submissions after delivering reasons in which I found that without any just cause, the applicants had failed to deliver up an affidavit to which they should never have had access. The parties, whom I might call the Frigger interests have filed submissions. With respect, those submissions don't take the matter any further.
I won't repeat what I said in the judgment, but I can say this: there was no justification for the Frigger interests resisting the application to deliver up copies of the affidavit. There was an order of the court that it was confidential. Once that was clarified for the Frigger interests, they should have cooperated with the liquidator and delivered the copies of the affidavit forthwith. They should also have given undertakings that the liquidator sought in relation to the use of that affidavit.
In my view, the circumstances of this case are such that an indemnity costs order is warranted against the Frigger interests. I've taken into account what's said in the submissions, but they really don't address the central issue. In my view, there is no question but that in this case the Frigger interests should pay the costs, including the reserved costs of the liquidator on a full indemnity basis, save insofar as those costs have been properly[6] incurred. That will be the costs order.[7]
(emphasis added)
[6] See fn. 1 above.
[7] ts 12 June 2014. See also Bankruptcy judgment [89].
Noting Master Sanderson had said 'liquidator' not 'Applicants' in his reasons, the Friggers now apply to the court for an order varying the indemnity costs order in the manner identified in paragraph 4 above.
The only issue I am required to decide is whether the indemnity costs order should be so varied.
The Friggers' application was filed on 26 February 2025, being more than a decade after the indemnity costs order was made.
The Friggers rely on three affidavits, all deposed by Mrs Frigger, in support of their application.
They suggest the court's power to effect the proposed variation is engaged by:
(a)Order 2 r 1 and O 2 r 2 of the Rules of the Supreme Court 1971 (WA) (Rules);
(b)Order 21 r 10 of the Rules;
(c)Order 43 r 15 of the Rules; and/or
(d)the court's inherent jurisdiction.
Before addressing each potential source of power, it is convenient to say a little more about the background to this application.

Background

On 12 June 2014, less than three hours after Master Sanderson delivered the reasons later recorded in the June 2014 transcript, his associate sent an email to HSF copied to the Friggers (June 2014 email).
The June 2014 email read in the following terms:
In relation to the above matter, and upon receiving submissions from Mrs Frigger, Master Sanderson read reasons into the transcript this morning. No appearances were required. These are the orders:
1.The Frigger interests should pay the costs, including the reserved costs, of the liquidator on a full indemnity basis, save insofar as those costs have been improperly[8] incurred.
A copy of the transcript will be emailed to both parties as soon as I receive it.
Kind regards
[etc]
(emphasis added)
[8] As noted above, the words 'properly incurred' rather than 'improperly incurred' appear on the transcript.
Mrs Frigger accepts she received the June 2014 email.[9]
[9] Affidavit of Angela Frigger deposed 5 May 2025 (Third Frigger affidavit) [11] and Annexure 'AF15'.
According to the respondents, the master's associate sent a further email to HSF, copied to the Friggers, on 16 June 2014 attaching a copy of the June 2014 transcript.[10]
[10] Affidavit of David William John sworn 7 May 2025 (Second John affidavit) [8] and Annexure 'DWJ-11'.
That fact is borne out by the court's own electronic records which also indicate the attached transcript was a Word file.[11]
[11] A hardcopy of this record was provided to the parties at the hearing before me.
However, Mrs Frigger says she was never provided with the June 2014 transcript 'as noted in the [June 2014] email'[12] and first became aware of it 'in early 2024'.[13]
[12] Third Frigger affidavit, [12].
[13] Third Frigger affidavit, [4].
On 19 January 2015, a bill of costs was filed by HSF.[14]
[14] Affidavit of David William John sworn 3 May 2025 (First John affidavit) [10] and Annexure 'DWJ-3'.
The bill of costs was headed 'APPLICANTS' BILL OF COSTS FOR TAXATION ON AN INDEMNITY BASIS PURSUANT TO THE ORDER OF MASTER SANDERSON MADE ON 12 JUNE 2014'. (emphasis added)
On 27 February 2015, the court allocated a date for the taxation of the bill of costs, and on about 4 March 2015 HSF sent a copy of the bill of costs to the Friggers together with the court's letter containing the relevant listing details.[15]
[15] First John Affidavit Annexure 'DWJ-4'.
On 9 April 2015, the taxation was listed before Registrar S Boyle. On the same day, the registrar made a handwritten amendment to the indemnity costs by changing the word 'properly' to read 'improperly'.[16]
[16] A copy of the indemnity costs order, as amended by the learned registrar, was provided to the parties at the hearing before me.
The taxation was adjourned and relisted for 18 June 2015.
On 6 July 2015, the registrar issued a certificate of assessment of costs in the amount of $61,000.42.
The certificate of assessment:
(a)was headed 'CERTIFICATE OF ASSESSMENT APPLICANT'S BILL OF COSTS FOR (sic) FILED 19 JANUARY 2015 PURSUANT TO ORDER OF MASTER SANDERSON MADE ON 12 JUNE 2014'; and
(b)contained the words 'I hereby certify that I assessed the applicant's Bill of Costs and allowed the bill in the sum of $61,000.42'
(emphasis added)
On 23 June 2016, the registrar sent a letter to Mrs Frigger copied to HSF in which the registrar noted she had received undated objections on 26 May 2016. The registrar also advised that she had, the previous year, taxed the bill to which Mrs Frigger had referred, had completed the process, had discharged her functions, and had no right to interfere with the bill as taxed.
On 29 August 2016, Mr Kitay and CAT caused a bankruptcy notice to issue to the Friggers founded upon the indemnity costs order.[17]
[17] Frigger v Kitay [2017] FCA 1278 [1] - [4]; unpublished reasons for decision of Registrar Trott dated 28 February 2017 [1] (First John affidavit Annexure 'DWJ5').
In December 2017, Mr Kitay and CAT presented a petition for the Friggers' bankruptcy in the Federal Court of Australia (bankruptcy proceedings).[18]
[18] Bankruptcy judgment [3].
The petition was presented following an unsuccessful application, before Deputy District Registrar Trott (as he then was) in the Federal Court, to have the bankruptcy notices set aside,[19] and following a subsequent unsuccessful application, before Siopis J, to review that decision.[20]
[19] Frigger v Kitay [2017] FCA 1278 [5] - [6].
[20] Frigger v Kitay [2017] FCA 1278 [91].
For the purposes of their petition, Mr Kitay and CAT relied upon an alleged debt in the sum of $61,000.42 being the amount of costs as assessed pursuant to the indemnity costs order.[21]
[21] Bankruptcy judgment [2].
The petition was heard by Colvin J. It was opposed by the Friggers who raised a number of grounds in opposition.[22]
[22] Bankruptcy judgment [5], [11].
One of those grounds was that the indemnity costs order did not properly reflect the fact that the order was made against Mrs Frigger alone and that Mr Frigger was therefore not liable under it.[23]
[23] Bankruptcy judgment [5], [11(11)], [192].
Ultimately, Colvin J dismissed this argument.[24] However, before his Honour did so the Friggers applied to Master Sanderson to vary the indemnity costs order such that only Mrs Frigger would be reflected as the party bound by it (2018 variation application).
[24] Bankruptcy judgment [192].
The Friggers made the 2018 variation application on 14 May 2018 by email sent to the master's associate.
The email read as follows:
I refer to costs orders extracted on 17 June 2014 in the above matter. It has come to the attention of the writers (sic) that costs orders were extracted against both Mr & Mrs Frigger, whereas the original judgment contained a judgment that only Mrs Frigger should pay the costs of the proceeding.
Accordingly, we wish to re-open the matter and have the costs orders correctly reflect the original judgment [2014] WASC 169 @ [22], because the Supreme Court Registry provided the Confidential Affidavit to Mrs Frigger only and Mr Frigger did not read the affidavit nor took part in the proceeding.
Thereafter, also on 14 May 2018, Mr David John of HSF sent an email to the master's associate copied to the Friggers.[25]
[25] First John affidavit Annexure DWJ-7.
There were several attachments to this email.[26] Mr John says one of the attachments was the June 2014 transcript.[27] Mrs Frigger denies this, saying Mr John 'did not attach' the June 2014 transcript to his email.[28]
[26] First John affidavit Annexure DWJ-7 (covering email showing five attachment icons, four PDF one Word).
[27] Second John affidavit [9] and First John affidavit Annexure DWJ-7.
[28] Affidavit of Angela Cecilia Theresa Frigger affirmed 5 May 2025 (Second Frigger affidavit) [13].
Nonetheless, the court's own electronic records confirm that the June 2014 transcript had indeed been one of the attachments (a Word document).[29]
[29] A hardcopy of this record was provided to the parties at the hearing before me.
On 29 May 2018, HSF filed an affidavit sworn by Mr Matthew Di Marco, then a solicitor with HSF, in the bankruptcy proceedings (Di Marco affidavit).[30]
[30] Second John affidavit [11] and Annexure DWJ-12.
Attached to the Di Marco affidavit was a copy of Mr John's email to Master Sanderson's associate of 14 May 2018 with attachments including the June 2014 transcript.[31]
[31] Second John affidavit [11] and Annexure DWJ-12.
Before evidence of the Di Marco affidavit was filed in the application before me,[32] Mrs Frigger had deposed that '[t]he Costs Reasons were not adduced by any party before Registrar Trott, Justice [Siopis] or Justice Colvin'.[33]
[32] Second John affidavit.
[33] Second Frigger affidavit [6].
However, after evidence of the Di Marco affidavit was filed in the application before me, Mrs Frigger deposed that she:
(a)had been unable to find any copy of the Di Marco affidavit in a folder on her computer titled 'Kitay Bankruptcy' (which according to Mrs Frigger contained all emails in her possession relating to the interlocutory application);[34]
(b)was 'unable to recall' whether, in 2018, she was aware of or registered as a user of the Federal Court 'ComCourts' online file inspection service,[35] and
(c)'did not view [the Di Marco affidavit] at any time prior to receiving [an affidavit sworn by Mr John in these proceedings on 7 May 2025]'.[36]
[34] Affidavit of Angela Cecilia Theresa Frigger affirmed 12 May 2025 (Third Frigger affidavit) [8] read with [5].
[35] Third Frigger affidavit [10].
[36] Third Frigger affidavit [10], the latter reference being to the Second John affidavit.
More will be said about this evidence later in these reasons.
On 17 July 2018, Master Sanderson heard and dismissed the 2018 variation application.
In doing so, Master Sanderson said the following:
… I am not prepared to amend the order under the slip rule. It seems to me that the conduct of the proceedings was the conduct of the defendants, and that being the case, while I did in the judgment, I accept, refer to just Ms Frigger, I am satisfied, insofar as I can recall the terms of the – or the situation beyond what is in the judgment, that the order should have been made against the defendants, and I am not satisfied that it was a slip which after all this time should be rectified. So I would dismiss the application for costs. …[37]
(emphasis added)
[37] ts 17 July 2018, page 655.
On 20 July 2018, Colvin J determined the bankruptcy proceedings and ordered there be a sequestration order under the Bankruptcy Act 1966 (Cth) against the estates of both Mrs Frigger and Mr Frigger.
Within his published reasons for making that order (Bankruptcy judgment),[38] and relevantly for present purposes, Colvin J set out the entirety of the June 2014 transcript and also the terms of the indemnity costs order.[39]
[38] Bankruptcy judgment.
[39] Cf Bankruptcy judgment, [89] and [90] with paragraphs 15 and 3 above, respectively.
Colvin J, among other things, also observed as follows in the Bankruptcy judgment:
(1)There was 'some uncertainty' on the face of the interlocutory application heard by Master Sanderson in 2014 as to whether that application has been brought by Mr Kitay (as liquidator of CAT) or by both Mr Kitay and CAT.[40]
[40] Bankruptcy judgment [59].
(2)Mrs Frigger had filed an affidavit dated 11 February 2014 in those proceedings:
(a)the heading of which had, like the interlocutory application itself, described Mr Kitay (as liquidator of CAT) and CAT as 'Applicants';[41] and
(b)which began by stating 'I am one of the parties against whom orders are sought as detailed in the applicants' interlocutory process dated 25 November 2013' (emphasis added), and the same language appeared in a supplementary affidavit dated 12 March 2014.[42]
(3)The May 2014 orders stated they were made on the application of 'the Applicants by Interlocutory Process dated 25 November 2013', those orders were expressly directed to both of the Friggers, each of the Friggers had signed a minute of consent orders on 17 June 2014 inserting some additional words into one of the May 2014 orders, and the orders were not appealed.[43]
(4)The indemnity costs order had been made in favour of 'the Applicants',[44] being both Mr Kitay and CAT.[45]
(5)The bill of costs was presented by both Mr Kitay and CAT as the applicants. However, the only costs claimed in the bill were those that had been incurred by Mr Kitay. The claim to the costs in the bill did not depend upon a claim that costs had been incurred by CAT.[46]
(6)The indemnity costs order did not apply only to costs jointly incurred by Mr Kitay and CAT. It is an order in favour of each of them.[47]
(7)Although the petition for sequestration orders was presented by both Mr Kitay and CAT, it was sufficient that Mr Kitay demonstrated he was a judgment creditor in respect of the costs the subject of the assessment.[48]
(8)For reasons expressed elsewhere, Mr Kitay had done so.[49]
[41] Bankruptcy judgment [63].
[42] Bankruptcy judgment [64].
[43] Bankruptcy judgment [83] - [84].
[44] Bankruptcy judgment [91].
[45] Bankruptcy judgment [180].
[46] Bankruptcy judgment [181].
[47] Bankruptcy judgment [181].
[48] Bankruptcy judgment [182].
[49] Bankruptcy judgment [182].

The Friggers have appealed the decision of Colvin J.
According to Mrs Frigger, the Friggers have suffered (and continue to suffer) prejudice because the indemnity costs order prevents them from setting off 'substantial claims' against Mr Kitay in other proceedings before this Court (matter CIV 2765/2010) 'and under a registered charge'.[50]
[50] Affidavit of Angela Cecilia Theresa Frigger affirmed 22 April 2025 [14] (First Frigger affidavit).
At the hearing, Mrs Frigger explained that:
(1)The indemnity costs order (as extracted) gave a benefit to CAT of its 'alleged costs' despite the master having pronounced a costs order in favour of Mr Kitay (as liquidator) alone.[51]
(2)The Friggers did not owe any money to CAT, so CAT 'couldn't' issue a bankruptcy notice because it was not a judgment creditor.[52]
(3)The Friggers have been unable to exercise any right of 'set off' against either Mr Kitay or CAT (i.e. individually).
(4)This is because the order (as extracted) operates in favour of both Mr Kitay and CAT, and the Friggers have no 'joint claim' against them.[53]
(5)The Friggers have 'a massive claim' against Mr Kitay in matter number CIV 2765 of 2010 before this court, and had only Mr Kitay been named in the bankruptcy notice the Friggers 'would have been able to do a set-off and the bankruptcy could not have gone ahead…'.[54]
[51] ts 15 May 2025, page 1194.
[52] ts15 May 2025, page 1211.
[53] ts 15 May 2025, page 1211.
[54] ts 15 May 2025, page 1211.
More will be said about these matters later.
In the meantime, I turn to consider each potential source of power for the grant of the relief sought as identified by the Friggers.

Order 2

Order 2 r 1(1) of the Rules applies where there has been a failure to comply with the 'requirements of [the] Rules' because of 'anything done or left undone … whether in respect of time, place, manner, form or content or in any other respect'.
By O 2 r 1(2), the court may on the basis of such a failure set aside, either wholly or in part, 'the proceedings in which the failure occurred, any step taken in those proceedings, or any document, judgment or order therein or exercise its powers under these rules to allow such amendments (if any) to be made and to make such order (if any) dealing with the proceedings generally as it thinks fit'.
In my view, O 2 of the Rules, properly understood, is of no assistance to the Friggers.
This is at least because the Friggers have not identified any particular requirement of the Rules which resulted in 'anything done or left undone'.
Rather, the Friggers' ultimate complaint, as I understand it, is that some 'error' was made which resulted in the words 'the Applicants' appearing in the indemnity costs order (as extracted) rather than the name of Mr Kitay alone.

Order 21 r 10

Order 21 r 10, commonly known as the 'slip rule', appears to be founded on the inherent jurisdiction of the court to prevent an injustice.[55]
[55] Mustafa v The Queen [2002] WASCA 357, [25]. See also Kitay v Frigger [No 2] [2024] WASC 113 (S), [11] (Hill J).
The rule reads as follows:
Clerical mistakes in judgments or orders, or errors arising therein, from any accidental slip or omission, may at any time be corrected by the court on motion or summons without an appeal.
As the Court of Appeal observed in Professional Services of Australia Pty Ltd v Computer Accounting & Tax Pty Ltd [No 4]:[56]
(1)The cases in this and other comparable jurisdictions where similar rules of court exist establish a number of general principles which govern the application of the slip rule.
(2)First, the slip or omission which is said to have given rise to the error must be properly characterised as inadvertent or accidental - the product of oversight rather than afterthought.
(3)Second, the 'error' said to arise from the accidental slip or omission must be such that its correction does not require the exercise of an independent discretion nor is it a matter upon which a real difference of opinion might exist.[57]
[56] Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 4] [2015] WASCA 253.
[57] Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 4] [2015] WASCA 253 [28].
Put another way, the error should be of a kind that had the matter been drawn to the court's attention at the time, the correction would have been made 'at once'.[58]
[58] Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2008] WASCA 211 (S), [8]; Mustafa v The Queen [2002] WASCA 357; (2002) 27 WAR 73, [25]; Commissioner of the Australian Federal Police v Goldfinger Bullion Reserve Corporation [No 2] [2013] WASC 16 [14].
Further:
(1)It is well established that the power to amend orders pursuant to the slip rule is discretionary.
(2)The public interest in the finality of litigation and the inevitable consequences of delay in making an application under the slip rule are matters that will be given 'considerable weight' in the exercise of the discretion conferred by it.[59]
[59]Professional Services of Australia Pty Ltd v Computer Accounting & Tax Pty Ltd [No 4] [2015] WASCA 253 [34] - [35].
As observed earlier, Colvin J had in the Bankruptcy judgment noted there was 'some uncertainty' as to whether the interlocutory application before Master Sanderson had been brought by Mr Kitay (as liquidator of CAT) or by both Mr Kitay and CAT.[60]
[60] Bankruptcy judgment [59].
Noting what is said in paragraphs 11 to 15 above, I accept it is reasonably possible that Master Sanderson may have erroneously used the expression 'the Applicants' when making the indemnity costs order (as extracted).
However, the mere possibility of error is insufficient to enliven the discretion under the slip rule.
Rather, the asserted 'error' must be properly characterised as 'inadvertent or accidental'.
I cannot be satisfied that this high threshold has been reached. That is at least so given the matters referred to in paragraphs 8, 9, 57(1) and 57(2) above.
Certainly, I cannot be satisfied that the asserted 'error' is such that its correction does not require the exercise of an independent discretion or is not a matter upon which a real difference of opinion might exist.
Let alone that the learned master would have 'at once' made the proposed 'correction' had the matter been drawn to his attention in June 2014.
In coming to this view, I have not overlooked the Friggers' submission that the costs assessment certificate, signed by Registrar S Boyle just over a year later, referred in two places to the 'applicant's' bill of costs (i.e with the apostrophe between the 't' and the 's').
However, noting the bill had been filed on behalf of both applicants[61] (unsurprising given the terms of the indemnity costs order itself)[62] it seems likely to me that this was an error.
[61] See paragraph 29 above.
[62] As Colvin J noted in the Bankruptcy decision (and as was common ground in the proceedings before me).
It follows that the Friggers have failed to establish that the slip rule is engaged.
However, even if I am wrong in having reached any of the above conclusions, I would in any event have declined have exercised my discretion in favour of making the proposed variation given the Friggers' inordinate delay in bringing their application and the public interest in the finality of litigation.
In this connection the Friggers, whilst properly accepting their application was 'very late'[63] and that there had been a 'substantial delay',[64] sought to explain their delay on the basis that Mrs Frigger first saw the June 2014 transcript in 'early 2024'[65] (i.e. nearly 10 years after it was generated).
[63] ts 15 May 2025, pages 1194, 1198, 1213.
[64] ts 15 May 2025, page 1194.
[65] Friggers' supplementary reply submissions dated 13 May 2025 [3]. See also Second Frigger affidavit [4].
I am unable to accept this explanation for at least the following reasons.
First, it was common ground that within hours of Master Sanderson having delivered his costs reasons in June 2014, his associate sent the June 2014 email to the parties; an email which Mrs Frigger says she received.
The June 2014 email effectively summarised the orders orally pronounced by the Master a short time earlier. Critically, for present purposes, those words included 'liquidator' as distinct from 'Applicants'.
Thus, even if the associate's email attaching the transcript, which was sent to the Friggers and HSF a few days later, never reached the Friggers, the Friggers had effectively already been told what the master had actually said about costs on the very day he said it.
Secondly, I do not accept the Friggers received an email from HSF on or about 14 May 2018 without the June 2014 transcript attached in circumstances where the court had itself received the same email from HSF, copied to the Friggers, with the transcript attached.
Thirdly, and relatedly, there is the matter of the 2018 variation application itself. The premise underpinning that application was identical to that which underpins the Friggers' current application; namely, that the indemnity costs order did not correctly reflect the court's decision as to costs.
The only material difference between the two applications was that the asserted 'error' relied upon for the 2018 variation application was that the indemnity costs order should have mentioned Mrs Frigger as the only party burdened by the order, whilst the 'error' relied upon for the current application is that the order should have mentioned the liquidator as the only party benefitting from it.
In my view it was wholly unreasonable for the Friggers not to have drawn both asserted 'errors' to the attention of the person best placed to deal with them i.e. Master Sanderson at the same time.
More so given the 2018 variation application was brought nearly four years after the indemnity costs order was made.
It is now some seven years later.
Fourthly, I also do not accept Mrs Frigger would not have seen the Di Marco affidavit, to which a copy of the June 2014 transcript was attached, before 7 May 2025.
In this regard I note the following:
(1)Mrs Frigger says she first became aware of the June 2014 transcript in the following circumstances:
(a)In about early 2024, she received a list of documents from Hill J's associate in the context of another interlocutory application before her Honour in this matter. [66]
[66] ts 15 May 2025, page 1217.
(b)Mrs Frigger could see from that list that 'something had happened and there was a document that I was not aware of'.[67]
(c)Mrs Frigger then asked her Honour's associate for specific documents on the list 'and that's how I got it'.[68]
(d)Mrs Frigger believes her Honour's associate simply sent the 2014 transcript to her as an attachment to an email.[69]
(e)The associate also provided Mrs Frigger with other documents which Mrs Frigger thought relevant (there having been several applications before Hill J at the time in both this matter and in matter COR 131 of 2021).[70]
(2)The Di Marco affidavit is a document which purports to have been filed not in this court but in the Federal Court of Australia.
(3)The Di Marco affidavit spans 23 pages, with pages 2 to 23 consecutively numbered by hand in the top right-hand corner, and the June 2014 transcript appears as consecutively numbered pages 13 to 16 to that affidavit.
(4)In April 2024 Mrs Frigger deposed to two affidavits attaching a version of the June 2014 transcript; one in the Federal Court,[71] the other in this court.[72]
(5)Each of those two versions of the June 2014 transcript reflects the identical handwritten numbers appearing in the top right-hand corner of the corresponding pages in the Di Marco affidavit (i.e. pages 13 to 16).
(6)Mrs Frigger was, at the hearing before me, unable to provide an explanation for how it was that the version of the transcript attached to her two affidavits deposed in April 2024 had come to bear those identical handwritten numbers.[73]
[67] ts 15 May 2025. page 1217.
[68] ts 15 May 2025, page 1217.
[69] ts 15 May 2025, page 1218.
[70] ts 15 May 2025, page 1218.
[71] Second Frigger affidavit annexure 'AF10' (affidavit dated 10 April 2024, Federal Court matter WAD 66/2021).
[72] Second Frigger affidavit annexure 'AF11' (affidavit dated 13 April 2024, Supreme Court matter COR 131/2021).
[73] ts 15 May 2025, pages 1220 - 1223.
Fifthly, even if I am wrong in having reached all the above conclusions, the entirety of the June 2014 transcript had in any event been set out in the Bankruptcy judgment (as had the terms of the indemnity costs order).[74]
[74] Cf Bankruptcy judgment, [89] and [90] with paragraphs 12 and 2 above, respectively.
The Bankruptcy judgment was delivered by Colvin J (and published) in July 2018.
Noting the significant personal adverse consequences of the Bankruptcy judgment for the Friggers, I consider the inference inescapable that they would have both seen and read it at around the time it was published.
Yet, the Friggers' application presently before me was only brought in February 2025.
Sixthly, even if I am incorrect in reaching the conclusion recorded in paragraph 99 above, there was no suggestion the Friggers only recently became aware of the terms of the indemnity costs order itself.
To the contrary, Mrs Frigger informed me she had received that order 'with the bankruptcy notice' (i.e. in 2016) and that she 'might have even seen [the indemnity costs order] when the taxation was being done'[75] (i.e. in 2015).
[75] ts 15 May 2025, page 1207.
The indemnity costs order is one page long. By its express terms it operates in favour of 'the Applicants'. Both are identified, unambiguously in the heading of the orders, as Mr Kitay and CAT.
Meaning no disrespect, the Friggers are well-experienced litigators before this and other courts.[76]
[76] Cf. Frigger v Kitay [2019] FCA 624 [22] (McKerracher J).
For at least this reason, I consider it unlikely they would not have taken issue with the indemnity costs order, long before now, had they indeed considered the order to have been infected by an 'error' of a kind which would expose them to liability in favour of two applicants in circumstances where they should only have been liable to one.
The fact that no such point was taken until very recently, in my view, supports an inference that the Friggers did not themselves consider there to have been any such error.
I do not in any event consider any of the grounds upon which the Friggers assert they suffer prejudice (even if correct) to be a sufficient reason for an exercise of discretion in their favour in circumstances where there has been such an extraordinarily long delay.
Indeed, it would also seem to me that the difficulty which the Friggers might encounter in attempting to advance a set-off claim against Mr Kitay or CAT, separately, ought to have been sufficiently apparent to the Friggers a very long time ago.
In this connection, I note that both Deputy District Registrar Trott and Siopis J, in their reasons for decision handed down in 2016 and 2017 respectively, reached conclusions to the effect that the bankruptcy notice against the Friggers could not be set aside on the grounds of set-off unless they were able to show that Mr Kitay and CAT jointly owed them the relevant asserted monetary liability.[77]
[77] Cf. First John affidavit, annexure 'DWJ-5' p 41 [25] and [28] (Deputy District Registrar Trott) and Frigger v Kitay [2017] FCA 1278 [77] - [78] (Siopis J).
Indeed, in oral submissions Mrs Frigger herself informed the court that she and her husband had 'tried to do a set-off to have the bankruptcy notices set aside by asserting set-offs against each of the judgment creditors named in the bankruptcy notice [i.e. Mr Kitay and CAT] and that was denied'.[78]
[78] ts 15 May 2025, page 1233.

Order 43 r 15

Unlike the slip rule, which has formed part of the rules of this court in substantially the same form since at least the late 19^th century,[79] the earliest iteration of O 43 r 15 appears to have been first introduced in the mid-1960s.[80]
[79] Rules of the Supreme Court of Western Australia, 1888 and 1909 Order XXVIII r 11.
[80] Rules of the Supreme Court of Western Australia, 1909, Order LXII r 15 (Government Gazette No 111, 6 December 1965).
Order 43 r 15 forms part of O 43 which is headed 'Drawing up judgments and orders'.
Order 43 r 15 reads as follows:
15. Application to vary
A party may, within 7 days after a draft judgment or order has been settled, apply to the Court to add to or alter it for the purpose of making it correspond with the judgment or order as pronounced.
(emphasis added)
As Hill J observed in Kitay vs Frigger [No 2]:[81]
Order 43 of the Rules sets out the requirements for the drawing up of judgments and orders. Relevantly, every order of the court is required to be drawn up by, at first option, the party having the carriage of the judgment or order,[82] and marked to show by whom it was made.[83] Until an order is drawn up, passed and entered in accordance with O 43 of the Rules, it is not perfected. Once an order of the court has been perfected, there is no jurisdiction to alter the order if it does not fall within one of the limited exceptions (such as the slip rule), except on appeal.[84]
(emphasis added)
[81] Kitay v Frigger [No 2] [2024] WASC 113 (S) [17].
[82] Rules of Supreme Court 1971 (WA) O 43 r 1(2).
[83] Rules of Supreme Court 1971 (WA) O 43 r 3(1).
[84] Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529, 530 (Barwick CJ), 539 (Gibbs J).
Further, as Jenkins LJ delivering the judgment of the Court of Appeal explained in Re Harrison's Share Under a Settlement [1955] Ch 260:
…an order pronounced by [a] judge can always be withdrawn, or altered, or modified by [the judge] until it is drawn up, passed and entered. In the meantime it is provisionally effective …[85]
and
When a judge has pronounced judgment [the judge] retains control over the case until the order giving effect to [the] judgment is formally completed. This control must be used in accordance with [the judge's] discretion exercised judicially and not capriciously.[86]
[85] Re Harrison's Share Under a Settlement [1955] Ch 260, 276.
[86] Re Harrison's Share Under a Settlement [1955] Ch 260, 284. See also Norman v Norman (1992) 6 WAR 372, 375; Macleod v Australlian Securities Commission [1999] WASCA 35, [118] (Commissioner Kenneth Martin QC as he then was).
The court was not taken to any earlier decision which may have specifically considered the operation of O 43 r 15, and the court's own research has not revealed any such authority.
Noting its text, and immediate and historical context, it would seem sufficient for present purposes to make the following observations about O 43 r 15.
First, unlike O 21 r 10 which permits correction of an 'accidental slip or omission' at 'any time', O 43 r 15 affords a considerably more limited opportunity for varying a judgment or order; i.e. seven days.
The provision of such a limited period in my view accords both with the notion of 'finality in litigation' and with the principle that a party against whom judgment in a money sum is entered is entitled to regard that judgment as finally determining the extent of the party's liability.[87]
[87] Compare albeit in a different context L Shaddock & Associates Pty Ltd v Council of the City of Paramatta [No 2] [1992] HCA 59; (1982) 151 CLR 590.
Secondly, whereas O 21 r 10 only applies to the correction of an 'accidental slip or omission', O 43 r 15 only applies to variations for the 'purpose' of making the judgment or order conform with the judgment or order 'as pronounced'.
Thirdly, O 43 r 15 does not, whether expressly or by necessary implication, mandate an outcome that every judgment or order must conform, precisely, with the words uttered at an earlier hearing.
Not only would such a construction be an affront to common sense, but the considerations referred to in paragraph 115 alone would militate against it.

Fourthly, read as a whole, O 43 contemplates a procedure by which entry of orders may occur, from time to time, without the involvement of every (or indeed any) party.
The need to afford procedural fairness in such circumstances would seem obvious. Particularly to a party who has had no input into the process but who may be aggrieved after receiving an extracted order containing words having a potentially different effect to those pronounced at an earlier hearing.
It would seem to me that it is principally this purpose which likely underpins O 43 r 15.
According to Mrs Frigger, she first became aware of O 43 r 15 in February 2025 when reviewing the Rules for an unrelated matter,[88] and none of the many practitioners and law firms whom the Friggers had retained between 2013 and 2024 had told them about the rule.[89]
[88] First Frigger affidavit [18].
[89] First Frigger affidavit [16] - [17].
However, neither of these explanations assists the Friggers given the principal purpose which I have concluded likely underpins the rule and my conclusions recorded in paragraphs 105 and 106 above.
It follows that I do not consider there to be any realistic scope for O 43 r 15 to operate.
Whatever the case, the Friggers are well beyond the seven-day period contemplated by O 43 r 15 and have in my view failed to provide an adequate explanation for their delay.
Accordingly, I would in any event decline to exercise my discretion to grant the Friggers an extension of time under O 3 r 5. That is so substantially for the reasons identified in paragraphs 86 to 110 above.

Inherent jurisdiction

It may be accepted there is an inherent jurisdiction to rectify any order to 'avoid injustice'.[90]
[90] Monaco v Uneedo Pty Ltd (1994) 13 WAR 522.
However, at the end of the day, it cannot in my view be said that justice or fairness would not permit the indemnity costs order to remain in its current form.
Even if there had been a proper basis to conclude the order reflected an inadvertent or accidental error, or that it would otherwise have been appropriate to vary it, the Friggers have had ample opportunity to seek the relief which they now do.
To grant that relief after more than a decade, in circumstances where the Friggers have had ample opportunity to seek it but have failed to do so until now, would be inimical to the proper administration of justice and the principle of finality in litigation.

Issue estoppel, Anshun estoppel

The respondents contend the principle of issue estoppel, alternatively Anshun estoppel, is engaged in circumstances where the Friggers brought the 2018 variation application to correct 'perceived errors' in the indemnity costs order and now seek, in effect, to have other 'errors' of the same character corrected some seven years later.
Given the conclusions I have reached concerning the fate of the Friggers' application, it is unnecessary to consider these questions.

Conclusion and orders

For the foregoing reasons, the application will be dismissed.
I will hear from the parties on the question of costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
IL
Associate to the Hon Justice Musikanth
30 MAY 2025