FEDERAL COURT OF AUSTRALIA
Frigger v Banning (No 12) [2022] FCA 347
File number: WAD 607 of 2015 Judgment of: COLVIN J Date of judgment: 6 April 2022 Catchwords: PRACTICE AND PROCEDURE - application to defer taxation of costs pending application for permanent stay of cost orders on grounds of alleged abuse of process - whether proper basis for a claim that party entitled to cost order does not exist - whether arguable basis for alleged abuse of process - whether risk of prejudice demonstrated - consideration of balance of convenience - application refused Legislation: Bankruptcy Act 1966 (Cth) s 60
Corporations Act 1989 (Cth) (the Corporations Law) ss 114, 117, 118, 119, 120, 121, 161, 162
Corporations Act 2001 (Cth) ss 124, 125
Federal Court Rules 2011 (Cth) r 40.20
Cases cited: Budimir v McMahon [2000] FCA 1312
Darvall v North Sydney Brick & Tile Co Ltd (No 4) (1988) 14 ACLR 474
Frigger v Banning (No 8) [2019] FCA 1319
Frigger v Banning (No 11) [2020] FCA 1257
Frigger v Trenfield [2019] FCA 1746
Marshall v DG Sundin & Co Pty Ltd (1989) 16 NSWLR 463
Re Australian Securities Commission v SIB Resources NL [1991] FCA 261; (1991) 30 FCR 221
Tetlow v Orela Ltd [1920] 2 Ch 24
United Service Insurance Co Ltd (in liq) v Lang (1935) 35 SR (NSW) 487
Division: General Division Registry: Western Australia National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Number of paragraphs: 46 Date of hearing: 5 April 2022 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:
6 APRIL 2022
THE COURT ORDERS THAT:
1.The application to further extend the date for objecting to the cost estimate given by Registrar Parkyn on 15 March 2022 is dismissed.
2.The costs of and incidental to the application are reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
COLVIN J:
In 2015, Mrs and Mr Frigger brought proceedings in this Court against four respondents seeking compensation calculated by reference to the amount of costs that Mrs and Mr Frigger had been ordered to pay in proceedings in the Supreme Court of Western Australia. In 2017, Barker J dismissed an application by Mrs and Mr Frigger to file a proposed substituted statement of claim in those proceedings. The pleading had been proposed to deal with various objections to the statement of claim as filed. Implicit in the application to file the proposed pleading was…
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- AGLC
- Frigger v Banning (No 12) [2022] FCA 347
- Case
- [2022] FCA 347
- Decision Date
CaseChat Overview and Summary
The court examined the circumstances surrounding the claim of abuse of process, assessing the evidence provided by the Friggers. The court was required to decide whether there was a sufficient basis for the Friggers' assertion that the party entitled to the cost order did not exist and whether there was an arguable case for abuse of process. The court also weighed the potential prejudice that could result from the taxation of costs against the balance of convenience to both parties. After careful consideration, the court concluded that there was no proper basis for the Friggers' claim and that they had not demonstrated an arguable basis for the alleged abuse of process.
The court ultimately rejected the application for further extension of the time to object to the taxation of costs. It held that there should be no further extension and that the application for the order extending the time for lodging an objection to the taxation estimate should be refused. The court reserved the costs of the application for determination at a subsequent case management hearing. The final orders included dismissing the application to further extend the date for objecting to the cost estimate and reserving the costs of and incidental to the application.
Orders
Orders of the court
1. The application to further extend the date for objecting to the cost estimate given by Registrar Parkyn on 15 March 2022 is dismissed.
2. The costs of and incidental to the application are reserved.
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
Ratio Decidendi
Legal Principle Established
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