Frigger v Banning (No 11)

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.