FEDERAL COURT OF AUSTRALIA
Frigger v Banning (No 2) [2016] FCA 749
File number: WAD 607 of 2015 Judge: BARKER J Date of judgment: 24 June 2016 Catchwords: PRACTICE AND PROCEDURE – security for costs – applicants in default of security for costs order – application to dismiss proceedings – application to vary security for costs order – whether material change of circumstances – whether discovery of new material that could not reasonably have been before the Court at security for costs hearing Legislation: Federal Court of Australia Act 1976 (Cth) s 56(3)
Federal Court Rules 2011 (Cth) RR 1.32, 5.23, 39.05, Sch 2, Sch 3 cl 11.1
Cases cited: Frigger v Banning [2016] FCA 359
Kitay, in the matter of Computer Accounting & Tax Pty Ltd (in liq) [2016] FCA 720
Date of hearing: 3 June 2016 Date of last submissions: 22 June 2016 Registry: Western Australia Division: General Division National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Category: Catchwords Number of paragraphs: 31 Counsel for the Applicants: The Applicants appeared in person Counsel for the Respondents: Mr TR Stephenson Solicitor for the Respondents: Eastwood Sweeney 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
DONALD CAMPBELL-SMITH
Second Respondent
PROFESSIONAL SERVICES OF AUSTRALIA PTY LTD ACN 082 879 641 (and another named in the Schedule)
Third Respondent
JUDGE:
BARKER J
DATE OF ORDER:
24 JUNE 2016
THE COURT ORDERS THAT:
1.The order for security for costs against the applicants made 13 April 2016 is varied in respect of quantum so that instead of security being ordered in the sum $75,000, it is now ordered in the sum of $60,000.
2.If the order for security for costs against the applicants in the varied sum of $60,000 is not complied with on or before 4pm on 1 July 2016, the originating application and proceeding will stand dismissed and the applicants shall pay to the respondents the costs of the proceeding, to be taxed.
3.The costs of the respondents' interlocutory application filed 2 May 2016 be costs in the cause.
4.The costs of the applicants' interlocutory application filed 31 May 2016 be costs in the cause.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BARKER J:
On 13 April 2016, the Court made the following order for security for costs in this proceeding against the applicants, Mrs and Mr Frigger (who may also be referred to as the Friggers):
1.The applicants do pay into Court within seven (7) days of the date of this order the sum of $75,000 by way of security for costs in relation to the first stage of this proceeding up to and including a hearing…
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- AGLC
- Frigger v Banning (No 2) [2016] FCA 749
- Case
- [2016] FCA 749
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether there had been a material change in circumstances since the initial security for costs order was made and whether the discovery of new material, which could not reasonably have been before the court at the time of the original order, warranted a variation in the order. The court had to balance the applicants' right to a fair hearing against the respondents' need for protection against the financial risk posed by the applicants.
The court found that while the applicants had indeed experienced a material change in circumstances since the initial security for costs order, the new evidence they sought to rely upon did not constitute such a change. The court emphasised the importance of the applicants' responsibility to disclose all relevant information at the time of the original hearing. Consequently, the court varied the quantum of the security for costs order from $75,000 to $60,000 but declined to consider the new evidence. If the applicants failed to provide the varied security by the specified deadline, the proceedings would be dismissed, and they would be liable for the respondents' costs.
The final orders of the court included a reduction in the security for costs to $60,000, a dismissal of the proceedings if the applicants did not comply with the new security order by 1 July 2016, and the allocation of costs for the interlocutory applications to the respective parties.
Orders
Orders of the court
1. The order for security for costs against the applicants made 13 April 2016 is varied in respect of quantum so that instead of security being ordered in the sum $75,000, it is now ordered in the sum of $60,000.
2. If the order for security for costs against the applicants in the varied sum of $60,000 is not complied with on or before 4pm on 1 July 2016, the originating application and proceeding will stand dismissed and the applicants shall pay to the respondents the costs of the proceeding, to be taxed.
3. The costs of the respondents' interlocutory application filed 2 May 2016 be costs in the cause.
4. The costs of the applicants' interlocutory application filed 31 May 2016 be costs in the cause.
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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