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 9]
[2024] WASC 375
•11 OCTOBER 2024
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 9] [2024] WASC 375
CORAM: LUNDBERG J
HEARD: ON THE PAPERS
DELIVERED : 11 OCTOBER 2024
PUBLISHED : 11 OCTOBER 2024
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)
Defendants
Catchwords:
Practice and procedure - Application for springing orders - Failure to comply with previous security orders made by the Court - History of non-compliance with orders - Principles applicable to such orders - Springing order made - Turns on own facts
Legislation:
Nil
Result:
Springing order granted
Category: C
Representation:
Counsel:
| Applicants | : | No appearance |
| Defendants | : | No appearance |
| Interested Party | : | No appearance |
Solicitors:
| Applicants | : | No appearance |
| Defendants | : | Herbert Smith Freehills |
| Interested Party | : | In Person |
Cases referred to in decision:
In the matter of Computer Accounting and Tax Pty Ltd (in liq) [No 8] [2024] WASC 258
Kitay v Frigger [No 2] [2024] WASC 113
Kitay v Frigger [No 2] [2024] WASC 113 (S)
LUNDBERG J:
These reasons concern an application which was filed by one of the defendants dated 2 July 2024 seeking springing orders against Mrs Frigger, who is the applicant to an interlocutory process which was filed on 19 October 2020. The particular defendant is Mr Mervyn Jonathan Kitay in his capacity as liquidator of Computer Accounting and Tax Pty Ltd (in liquidation) (who I will refer to as the Liquidator).
The Liquidator seeks a springing order in largely identical circumstances to an earlier springing order quite recently sought (and granted) by the Court in this very proceeding: see In the matter of Computer Accounting and Tax Pty Ltd (in liq) [No 8].[1]
[1] In the matter of Computer Accounting and Tax Pty Ltd (in liq) [No 8] [2024] WASC 258 [26].
The Liquidator seeks the following substantive order:
Unless the plaintiff complies with order 1 of the orders of Allanson J made on 25 October 2022, within 14 days of the date of this order, the plaintiff's interlocutory process dated 19 October 2020 (Interlocutory Process) be dismissed and the plaintiff must pay the costs of the defendant of the Interlocutory Process, to be taxed if not agreed.
The springing order is sought as a result of the non-compliance with the order made by Allanson J on 25 October 2022, by which his Honour made a security for costs order against Mrs Frigger in this proceeding. The order which was made required that Mrs Frigger give security for the Liquidator's costs of defending the interlocutory process which Mrs Frigger had filed on 19 October 2020, in the sum of $15,000. The order required the sum be paid into court within 14 days of the date of delivery of judgement by Hill J in COR 131 of 2021, to be deposited by the Registrar into an interest bearing account. The process was stayed in the meantime.
The interlocutory process filed by Mrs Frigger sought orders to set aside the earlier confidentiality orders made by the Court, among other things.
Hill J delivered judgment in COR 131 of 2021 on 10 April 2024.[2] Her Honour's supplementary reasons as to costs were delivered on 23 May 2024.[3] Far more than 14 days has now elapsed since then. I am satisfied that Mrs Frigger has failed to pay the amount required by Allanson J's security for costs order.
[2] Kitay v Frigger [No 2] [2024] WASC 113.
[3] Kitay v Frigger [No 2] [2024] WASC 113 (S).
The earlier springing order to which I have referred above was made in relation to a security for costs order issued by Smith J on 24 March 2023. The orders of Allanson J and Smith J, to which the present and the earlier application relate, arise from a similar pattern of conduct on the part of Mrs Frigger, by which interlocutory processes have been filed in this proceeding seeking forms of relief which lack merit and which would expose the Liquidator to costs burdens in defending those processes. The imposition of security for costs orders has been intended to achieve the result of staying the processes in question until such time as Mrs Frigger has satisfied the order and provided the Liquidator with appropriate security for his costs.
In response to the earlier springing order application, I observed there had been a history on the part of Mrs Frigger in failing to comply with costs orders (at [26] and [34]).
On the basis of the affidavit of David William John sworn 2 July 2024 which has been filed by the Liquidator in support of the present springing order application, and having regard to the written submissions filed on behalf of the Liquidator dated 14 August 2024, I am persuaded this further springing order should be made.
The following matters in particular support the order which is sought, which recognise the need for proceedings before the Court to be undertaken efficiently and without unnecessary delay, and for the proper utilisation of the Court's limited resources:
(a)There is no other available sanction which is appropriate and sufficient.
(b)It is clear on the evidence there has been a failure to comply with the Court's earlier order.
(c)The circumstances point to contumacy and a persistent dilatory behaviour on the part of Mrs Frigger, and the making of the springing order will support the integrity of the Court's processes where otherwise the administration of justice might be brought into disrepute.
(d)Mrs Frigger has not sought to explain the failure to comply with the orders in question, despite being on notice of the application.
(e)Mrs Frigger is not unable to meet the order for security for costs if she chose to make payment.
(f)There is likely to be prejudice to the Liquidator if the process remains on foot without finality.
In making the order, I have had regard to the principles I recently set out in In the matter of Computer Accounting and Tax Pty Ltd (in liq) [No 8], which do not repeat here.
As noted at point (d) in [10] above, I am satisfied Mrs Frigger has been on notice of this application. Although Mrs Frigger has not filed any material in opposition to the application, and I understand from her communications that she has been in custody, I note that, on 2 August 2024, the Court received a communication from Mrs Frigger requesting the proposed special appointment to hear this application be delayed to a later date, so that she might attend. No further communication was received from Mrs Frigger in relation to the matter. I am satisfied Mrs Frigger has had adequate opportunity to respond to the application and, having failed to file any papers in response, arrangements were made by the Court to have the application dealt with on the papers without the need for a hearing.
In these circumstances I am satisfied that the springing order which is sought by the Liquidator should be granted. I propose to extend the period for compliance to 21 days, rather than 14 days. The final form of the orders which will issue is set out at Attachment A to these reasons.
ATTACHMENT A
Orders made on 11 October 2024
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TL
Associate to the Honourable Justice Lundberg
11 OCTOBER 2024