Frigger v Banning (No 2)

[2016] FCA 749

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:

Austcorp Project No 20 Pty Ltd v The Trust Co (PTAL) Limited, in the matter of Bellpac Pty Limited (Receivers and Managers Appointed) (in liq) (No 4) [2015] FCA 850

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:

1. 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…