Frigger v Banning (No 2)
[2017] FCA 1639
•21 December 2017
FEDERAL COURT OF AUSTRALIA
Frigger v Banning (No 2) [2017] FCA 1639
File number(s): WAD 178 of 2017 Judge(s): SIOPIS J Date of judgment: 21 December 2017 Date of hearing: 21 December 2017 Registry: Western Australia Division: General Division National Practice Area: Commercial and Corporations Sub-area: General and Personal Insolvency Category: No Catchwords Number of paragraphs: 9 Counsel for the Applicants: The Applicants appeared in person. Counsel for the First, Second, Third and Fourth Respondents: Mr TR Stephenson Solicitor for the First, Second, Third and Fourth Respondents: Eastwood Law ORDERS
WAD 178 of 2017 BETWEEN: ANGELA CECILIA THERESA FRIGGER
First Applicant
HARTMUT HUBERT JOSEF FRIGGER
Second Applicant
AND: SANDRA MAY BANNING
First Respondent
DONALD CAMPBELL-SMITH
Second Respondent
PROFESSIONAL SERVICES OF AUSTRALIA PTY LTD (ACN 082 879 641) (and another named in the Schedule)
Third Respondent
JUDGE:
SIOPIS J
DATE OF ORDER:
21 DECEMBER 2017
THE COURT ORDERS THAT:
1.The applicants’ application for leave to appeal from orders 1, 2 and 3 of the orders of Barker J made on 8 March 2017 is dismissed.
2.The applicants’ interlocutory application dated 18 December 2017 is dismissed.
3.The applicants are to pay all of the costs and expenses of the respondents of and incidental to the applications referred to in order 1 and order 2 above, including any reserved costs, except insofar as they are of an unreasonable amount or have been unreasonably incurred, so that subject to the above exception, the respondents are completely indemnified by the applicants in respect of their costs of opposing the applications, to be taxed if not agreed.
4.For the avoidance of doubt, the time for the filing of the respondents’ responsive submissions is extended to 17 August 2017.
5.Federal Court of Australia proceeding no WAD 607 of 2015 is listed for a directions hearing on Tuesday, 27 February 2018 at 10.15 am.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
SIOPIS J:
This is an interlocutory application which was filed yesterday by Mr and Mrs Frigger (the Friggers).
On 8 March 2017, Barker J refused to permit the Friggers to file their proposed amended originating process and amended statement of claim dated 4 May 2016 in WAD 607 of 2015. The Friggers brought an application for leave to appeal against the orders of Barker J of 8 March 2017 (the Friggers’ leave to appeal application). The respondents to that application include Banning Holdings Pty Ltd (Banning Holdings) and Professional Services of Australia Pty Ltd (PSA). The judgment in that application is listed to be delivered later today.
By this interlocutory application, the Friggers seek an order staying the delivery of that judgment.
The Friggers seek to stay the delivery of the judgment pending the resolution of further claims which the Friggers make in this interlocutory application. In summary, the relief which the Friggers seek in this interlocutory application, pursuant to those claims, is as follows.
(a)Pursuant to a judgment of Smith AJ in Lean v Banning Holdings Pty Ltd [2017] WASC 353, a declaration that any resolution by Banning Holdings to defend the Friggers’ leave to appeal application is void, as a quorum for the transaction of the business of Banning Holdings cannot be fixed by less than two directors.
(b)By analogy with that judgment, a declaration that any resolution by PSA to defend the Friggers’ leave to appeal application is void, as a quorum for the transaction of the business of PSA cannot be fixed by less than two directors.
(c)The Friggers have leave to appeal against the orders of Barker J made on 8 March 2017; that the appeal be allowed; and that the Friggers have leave to file the proposed amended originating process and amended statement of claim dated 4 May 2016.
The difficulty with the Friggers’ interlocutory application is that Mr and Mrs Frigger have misconstrued the judgment of Smith AJ. This is because the order which Smith AJ made was to dismiss an application brought by Mr Lean against Banning Holdings. So, far from finding that Banning Holdings did not have the right to defend that application, Smith AJ actually found in favour of Banning Holdings and dismissed the application which was being defended by Banning Holdings. There was nothing in the judgment of Smith AJ to support the Friggers’ contention that Banning Holdings was disqualified from having the benefit of the judgment because it had only one director.
However, Smith AJ did say at [48] of the judgment that she would hear from the parties as to costs; in particular, as to whether Banning Holdings was entitled to indemnity costs, or costs at all, on the grounds that the resolution to defend the proceeding was void, as a quorum for the transaction of business by Banning Holdings could not be fixed by less than two directors.
By making those observations Smith AJ was doing no more than referring to a submission which had been made to her that an invalid resolution to defend the proceeding, if established, may deprive Banning Holdings, as the successful party, of its costs. The observations of Smith AJ cannot possibly be characterised as comprising the holding contended for by the Friggers.
In any event, the Friggers leave to appeal application was an application for the granting of leave by the Court. Accordingly, even if that application had not been opposed by Banning Holdings and PSA, the Court would still have had to determine for itself whether there was a basis upon which the leave should be given.
In those circumstances, I will dismiss the Friggers’ application to stay the delivery of the judgment.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis. Associate:
Dated: 13 February 2018
SCHEDULE OF PARTIES
WAD 178 of 2017 Respondents
Fourth Respondent:
BANNING HOLDINGS PTY LTD (ACN 009 006 437)
0