Frigger v Banning (No 11)

Case [2020] FCA 1257


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

Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 5] [2020] WASC 39

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:

  1. 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

The case of Frigger v Banning (No 11) involved an application by the respondents for an order dismissing the applicants' proceedings. The application had been adjourned previously to allow the outcome of related applications to challenge sequestration orders to be determined. The proceedings had been stayed due to the bankruptcy of the applicants. The central issue before the court was whether the existing statutory stay should continue pending the outcome of the related applications. Additionally, the applicants had not filed a viable statement of claim for several years. The court was also required to consider an application for indemnity costs by the respondents.

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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