Frigger v Banning (No 12) - [2022] FCA 347

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Frigger v Banning (No 12)

Details

AGLC: Frigger v Banning (No 12) [2022] FCA 347
Case: [2022] FCA 347
Decision Date: 6 April 2022

CaseChat Overview and Summary

The case of Frigger v Banning (No 12) involved Mrs and Mr Frigger who sought to defer the taxation of costs pending their application for a permanent stay of cost orders. They based their application on the grounds of alleged abuse of process. The Federal Court was tasked with determining whether there was a proper basis for the claim that the party entitled to the cost order did not exist, whether there was an arguable basis for the alleged abuse of process, and if the risk of prejudice had been demonstrated. Additionally, the court considered the balance of convenience in making its decision.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I have made orders for a case management hearing and have indicated to Mrs and Mr Frigger that they should file any further affidavit material in support of their claim that there is an abuse of process before that hearing. Those steps will enable any claim they may have to be articulated and progressed without delay.Conclusion The application for an extension of time to lodge an objection to the taxation estimate was heard on the last day for lodging such an objection. At the conclusion of the hearing of the application by Mrs and Mr Frigger, I granted a short extension of time. I indicated that I would publish my reasons as to whether I would order any further extension. For the reasons I have given there should be no further extension and the application for the order extending the time for lodging an objection to the taxation estimate should be refused. I will hear from the parties as to costs of the application at the case management hearing.

Ratio Decidendi

Legal Principle Established

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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

ORDER MADE BY:	COLVIN J
DATE OF ORDER:	6 APRIL 2022