Frigger v Banning (No 2) - [2025] FCA 955

FEDERAL COURT OF AUSTRALIA
Frigger v Banning (No 2) [2025] FCA 955

Appeal from: Application for leave to appeal: Frigger v Banning [2024] FCA 1207

File number: WAD 326 of 2024

Judgment of: MCDONALD J

Date of judgment: 14 August 2025

Catchwords: COSTS – applicants ordered to provide security for costs for respondents’ costs of application for leave to appeal – applicants failed to provide security for costs – respondents seek order dismissing application for leave to appeal with costs pursuant to s 56(4) of Federal Court of Australia Act 1976 (Cth) – applicants seek leave to withdraw application with no order as to costs – whether Court should depart from usual position that applicant who withdraws application for leave to appeal must pay respondents’ costs – application for leave to appeal dismissed with costs

Legislation:
Federal Court of Australia Act 1976 (Cth) s 56

Federal Court Rules 2011 (Cth) r 35.31

Cases cited:
Frigger v Banning [2024] FCA 1207

Frigger v Banning [2025] FCA 535

Division: General Division

Registry: Western Australia

National Practice Area: Commercial and Corporations

Sub-area: Corporations and Corporate Insolvency

Number of paragraphs: 24

Date of last submission: 6 August 2025

Date of hearing: Determined on the papers

Counsel for the Applicants: The Applicants appeared in person

Counsel for the First, Second and Fourth Respondents: Mr T R Stephenson

Solicitor for the First, Second and Fourth Respondents: Eastwood Law

Counsel for the Third Respondent: The Third Respondent did not appear

ORDERS

WAD 326 of 2024

BETWEEN:
ANGELA CECILIA THERESA FRIGGER

First Applicant

HARTMUT HUBERT JOSEF FRIGGER

Second Applicant

AND:
SANDRA MAY BANNING

First Respondent

BANNING HOLDINGS PTY LTD ACN 009 006 437

Second Respondent

ANN MARION CAMPBELL-SMITH IN HER CAPACITY AS EXECUTOR OF THE ESTATE OF DONALD CAMPBELL-SMITH (and another named in the Schedule)

Third Respondent

ORDER MADE BY:

MCDONALD J

DATE OF ORDER:

14 AUGUST 2025

THE COURT ORDERS THAT:
1.The application for leave to appeal against the judgment of Colvin J dated 18 October 2024 be dismissed.
2.The applicants pay the costs of the first, second and fourth respondents, save for the costs of preparing the written submissions filed on 8 August 2025, to be taxed or agreed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
MCDONALD J:
Introduction

By these proceedings, the applicants, Angela Frigger and Hartmut Frigger, applied for leave to appeal against an interlocutory judgment of Colvin J in which his Honour made an order requiring the Friggers to provide security for the costs of their application for review of a taxation of costs, Frigger v Banning [2024] FCA 1207. The first, second and fourth respondents (respondents) sought an order that the Friggers give security for the respondents’ costs of the Friggers’ application for leave to appeal.
On 23 May 2025, I made the following orders:
1.By 20 June 2025, the applicants provide security for the first, second and fourth respondents’ costs of the application for leave…

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 2)

Details

AGLC: Frigger v Banning (No 2) [2025] FCA 955
Case: [2025] FCA 955
Decision Date: 14 August 2025

CaseChat Overview and Summary

The case of Frigger v Banning (No 2) involved the Friggers, the applicants, and the respondents, in a dispute before the court. The applicants had filed an application for leave to appeal, which was subsequently dismissed. The primary issue before the court was whether the applicants should be permitted to withdraw their application for leave to appeal without incurring the costs of the respondents. The respondents argued that the applicants should be ordered to pay their costs, in line with the usual rule that a party who withdraws or is unsuccessful in an application for leave to appeal must pay the costs of the opposing parties. The applicants, on the other hand, sought leave to withdraw their application with no order as to costs.

The court considered the matter and concluded that it was appropriate for the applicants to be ordered to pay the respondents’ costs of the proceedings. The court found that there was no reason why the applicants should not pay the costs on a party-party basis, as per the usual position. The only exception was that the respondents should bear their own costs of preparing the written submissions filed on 8 August 2025. The court also noted that the applicants had made it clear that they did not intend to prosecute their application for leave to appeal.

The court dismissed the application for leave to appeal and ordered the applicants to pay the costs of the respondents, except for the costs of preparing the written submissions filed on 8 August 2025. The costs were to be taxed or agreed, as per Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The application for leave to appeal against the judgment of Colvin J dated 18 October 2024 be dismissed.

2. The applicants pay the costs of the first, second and fourth respondents, save for the costs of preparing the written submissions filed on 8 August 2025, to be taxed or agreed.

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

The most significant steps that have occurred in the present proceedings are the filing of evidence and submissions in relation to, and the determination of, the respondents’ application for security for costs. An order that the Friggers pay the costs of the application for security for costs was made on 23 May 2025. It is evident that the respondents will have incurred other costs in connection with the proceedings, but those costs are relatively confined. There were two case management hearings. The first was adjourned to enable the Friggers to serve on the respondents the draft notice of appeal identifying the grounds of appeal on which they sought to rely. The second case management hearing was principally concerned with setting a timetable for evidence and submissions in relation to the respondents’ interlocutory application for security for costs. Since the determination of that application, the parties have engaged in further correspondence and filed written submissions as described above. There is no reason why the Friggers should not pay the respondents’ costs of the proceedings generally on a party‑party basis, in accordance with the usual position that a party who withdraws, or who is otherwise unsuccessful on, an application for leave to appeal should pay the costs of the opposing parties.Conclusion The Friggers have made it clear that they do not intend to prosecute their application for leave to appeal. The only issue is whether they should be allowed to withdraw their application for leave to appeal with no order as to costs. For the reasons explained above, it is appropriate that the Friggers be ordered to pay the respondents’ costs of the proceedings, except that the respondents should bear their own costs of preparing the written submissions filed by them on 8 August 2025.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Appeal from:	Application for leave to appeal: Frigger v Banning [2024] FCA 1207
File number:	WAD 326 of 2024
Judgment of:	MCDONALD J
Date of judgment:	14 August 2025
Catchwords:	COSTS – applicants ordered to provide security for costs for respondents’ costs of application for leave to appeal – applicants failed to provide security for costs – respondents seek order dismissing application for leave to appeal with costs pursuant to s 56(4) of Federal Court of Australia Act 1976 (Cth) – applicants seek leave to withdraw application with no order as to costs – whether Court should depart from usual position that applicant who withdraws application for leave to appeal must pay respondents’ costs – application for leave to appeal dismissed with costs
Legislation:	Federal Court of Australia Act 1976 (Cth) s 56 Federal Court Rules 2011 (Cth) r 35.31
Cases cited:	Frigger v Banning [2024] FCA 1207 Frigger v Banning [2025] FCA 535
Division:	General Division
Registry:	Western Australia
National Practice Area:	Commercial and Corporations
Sub-area:	Corporations and Corporate Insolvency
Number of paragraphs:	24
Date of last submission:	6 August 2025
Date of hearing:	Determined on the papers
Counsel for the Applicants:	The Applicants appeared in person
Counsel for the First, Second and Fourth Respondents:	Mr T R Stephenson
Solicitor for the First, Second and Fourth Respondents:	Eastwood Law
Counsel for the Third Respondent:	The Third Respondent did not appear

ORDER MADE BY:	MCDONALD J
DATE OF ORDER:	14 AUGUST 2025