FEDERAL COURT OF AUSTRALIA
Frigger v Banning (No 14) [2024] FCA 66
File number: WAD 607 of 2015 Judgment of: COLVIN J Date of judgment: 8 February 2024 Catchwords: PRACTICE AND PROCEDURE - interlocutory application for orders of registrar to be set aside and for taxation of costs to be permanently stayed - where registrar granted leave allowing respondents to file amended bill of costs and for taxation process to be reset - alleged the leave obtained by fraud of the parties seeking taxation of the bill of costs - consideration of powers of registrar when conducting taxation - held registrar had authority to supervise conduct of taxation including by allowing a party to amend a bill of costs - application refused Legislation: Federal Court of Australia Act 1976 (Cth) s 35A
Federal Court Rules 2011 (Cth) rr 39.05, 40.02, 40.12, 40.27, 40.34, Division 40.2
Cases cited: Caratti v Commissioner of the Australian Federal Police [2021] FCA 1067
Clone Pty Ltd v Players Pty Ltd (In Liquidation) (Receivers & Managers Appointed) [2018] HCA 12; (2018) 264 CLR 165
Frigger v Banning (No 8) [2019] FCA 1319
Frigger v Banning (No 11) [2020] FCA 1257
Frigger v Banning (No 13) [2023] FCA 923
Harvard Nominees Pty Ltd v Dimension Agriculture Pty Ltd (in liq) [2023] FCAFC 140
Division: General Division Registry: Western Australia National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Number of paragraphs: 29 Date of hearing: 6 February 2024 Counsel for the Applicants: The applicants are self-represented 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 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The applicants' application for interlocutory orders dated 3 November 2023 is refused.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
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:
8 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The applicants do pay the respondents' costs of and incidental to the application for interlocutory orders dated 3 November 2023, such costs to be assessed on a lump sum basis by a Registrar and to be paid forthwith in accordance with these orders.
2.The respondents do…
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- AGLC
- Frigger v Banning (No 14) [2024] FCA 66
- Case
- [2024] FCA 66
- Decision Date
CaseChat Overview and Summary
The court examined the powers of the registrar in conducting the taxation of costs, noting that the registrar has significant authority to supervise the process, including the power to allow a party to amend a bill of costs. The court held that the registrar’s decision to grant leave for the amendment and reset the taxation process was well within the scope of their authority. The court further found that there was no evidence of fraud as alleged by the applicants, and thus the registrar's decision was valid and should not be set aside. The court rejected the applicants' application and ordered the applicants to pay the respondents' costs associated with the interlocutory application.
In addition to dismissing the application, the court provided detailed orders to facilitate the assessment and payment of costs. These orders required the respondents to file an affidavit stating the amount of costs sought and the matters supporting the assessment. The applicants were then required to file their own affidavit addressing the quantum of the costs. Finally, a registrar was instructed to assess the costs on a lump sum basis and deliver notice of the assessment to the parties, with the applicants required to pay the assessed amount within ten days of receiving the notice. These orders were to be entered in accordance with Rule 39.32 of the Federal Court Rules 2011.
Orders
Orders of the court
1. The applicants do pay the respondents' costs of and incidental to the application for interlocutory orders dated 3 November 2023, such costs to be assessed on a lump sum basis by a Registrar and to be paid forthwith in accordance with these orders.
2. The respondents do file and serve an affidavit stating the amount of costs sought pursuant to these orders and the matters relied upon by them to support the lump sum assessment pursuant to these orders.
3. Within 10 days of being served with the affidavit pursuant to order 2, the applicants do file and serve any affidavit as to matters relied upon by them as to the quantum of the costs to be assessed pursuant to these orders.
4. Once the time provided for in order 3 has passed, a Registrar of the Court do make the lump sum assessment pursuant to these orders on the papers and deliver notice of the assessment to the parties.
5. Within 10 days of delivery of the notice of assessment, the applicants do pay the amount of the assessment to the solicitor for the respondents.
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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