FEDERAL COURT OF AUSTRALIA
Frigger v Banning (No 11) [2020] FCA 1257
File number: WAD 607 of 2015 Judgment of: COLVIN J Date of judgment: 2 September 2020 Catchwords: PRACTICE AND PROCEDURE - application for order dismissing proceedings - where application for dismissal previously adjourned pending outcome of related applications to challenge sequestration orders - where proceedings stayed by reason of bankruptcy of applicants - whether existing statutory stay should continue pending outcome of related applications - where proceedings ongoing for years with no viable statement of claim - application allowed - direction that notice of discontinuance filed without leave not be accepted for filing
COSTS - application for indemnity costs - application refused
Legislation: Federal Court Rules 2011 (Cth) r 26.12 Cases cited: Clifton (Liquidator) v Kerry J Investment Pty Ltd trading as Clenergy (No 2) [2020] FCAFC 112
Colgate‑Palmolive Co v Cussons Pty Ltd [1993] FCA 801; (1993) 46 FCR 225
Frigger v Banning (No 8) [2019] FCA 1319
Frigger v Banning (No 9) [2019] FCA 1611
Frigger v Kitay (No 2) [2020] FCA 497
Kitay, in the matter of Frigger (No 2) [2018] FCA 1032
Division: General Division Registry: Western Australia National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Number of paragraphs: 34 Date of hearing: 26 August 2020 Counsel for the Applicants: The Applicants appeared in person Counsel for the Respondents: Mr TR Stephenson Solicitor for the Respondents: Eastwood Law ORDERS
WAD 607 of 2015 BETWEEN: ANGELA CECILIA THERESA FRIGGER
First Applicant
HARTMUT HUBERT JOSEF FRIGGER
Second Applicant
AND: SANDRA MAY BANNING
First Respondent
ANN MARION CAMPBELL-SMITH IN HER CAPACITY AS EXECUTOR OF THE ESTATE OF DONALD CAMPBELL‑SMITH
Second Respondent
PROFESSIONAL SERVICES OF AUSTRALIA LTD (ACN 082 879 641)
Third Respondent
BANNING HOLDINGS PTY LTD (ACN 009 006 437)
Fourth Respondent
ORDER MADE BY:
COLVIN J
DATE OF ORDER:
2 SEPTEMBER 2020
THE COURT ORDERS THAT:
1.The proceedings be dismissed.
2.The applicants do pay the costs of the proceedings including reserved costs to be assessed if not agreed.
3.If it is necessary to assess costs then:
(a)the respondents may file and serve an affidavit constituting a Costs Summary in accordance with the Court's Cost Practice Note (GPN-COSTS);
(b)within 14 days of service of the Costs Summary the applicants do file and serve any costs proposal in accordance with GPN-COSTS; and
(c)the quantum be assessed on a lump sum basis by a Registrar and the time for payment of the costs as assessed be determined by a Registrar.
THE COURT DIRECTS THAT:
4.The applicants' notice of discontinuance dated 27 August 2020 not be accepted for filing.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
COLVIN J:
These proceedings have their origin in a claim brought by Computer Accounting & Tax Pty Ltd (CAT) in the Supreme Court of Western…
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- AGLC
- Frigger v Banning (No 11) [2020] FCA 1257
- Case
- [2020] FCA 1257
- Decision Date
CaseChat Overview and Summary
In addressing the first issue, the court allowed the application for dismissal of the proceedings. The court reasoned that the proceedings had been ongoing for years without any viable statement of claim, and the existing statutory stay should continue. Furthermore, the court directed that the applicants' notice of discontinuance, dated 27 August 2020, not be accepted for filing. Regarding the application for indemnity costs, the court refused the application. The court found that the respondents were not entitled to indemnity costs in these circumstances.
The court's final orders were that the proceedings be dismissed, and the applicants were to pay the costs of the proceedings, including any reserved costs to be assessed if not agreed. If costs needed to be assessed, the respondents could file and serve an affidavit constituting a Costs Summary in accordance with the Court's Cost Practice Note. The applicants had 14 days from the service of the Costs Summary to file and serve any costs proposal, and the quantum of the costs would be assessed on a lump sum basis by a Registrar. The time for payment of the assessed costs would also be determined by a Registrar.
Orders
Orders of the court
1. The proceedings be dismissed.
2. The applicants do pay the costs of the proceedings including reserved costs to be assessed if not agreed.
3. If it is necessary to assess costs then:
(a) the respondents may file and serve an affidavit constituting a Costs Summary in accordance with the Court's Cost Practice Note (GPN-COSTS);
(b) within 14 days of service of the Costs Summary the applicants do file and serve any costs proposal in accordance with GPN-COSTS; and
(c) the quantum be assessed on a lump sum basis by a Registrar and the time for payment of the costs as assessed be determined by a Registrar.
THE COURT DIRECTS THAT:
4. The applicants' notice of discontinuance dated 27 August 2020 not be accepted for filing.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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