Frigger v Banning (No 4)

[2017] FCA 900

FEDERAL COURT OF AUSTRALIA

Frigger v Banning (No 4) [2017] FCA 900

File number:

WAD 607 of 2015

Judge:

BARKER J

Date of judgment:

4 August 2017

Catchwords:

PRACTICE AND PROCEDURE – security for costs – application for variation of costs order – whether costs should be payable forthwith – where quantum of security varied previously – application dismissed

Cases cited:

Frigger v Banning [2016] FCA 359

Frigger v Banning (No 2) [2016] FCA 749

Date of hearing:

Determined on the papers

Registry:

Western Australia

Division:

General Division

National Practice Area:

Commercial and Corporations

Sub-area:

Corporations and Corporate Insolvency

Category:

Catchwords

Number of paragraphs:

17

Counsel for the Applicants:

The Applicants were self-represented

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:	4 AUGUST 2017

THE COURT ORDERS THAT:

1.The respondents’ application dated 17 February 2017 for variation of the costs order made 13 April 2016 be refused.

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, I handed down a reserved decision on the respondents’ application for security for costs.  I allowed that application and made an order that the applicants pay $75,000 into Court by way of security.  I also ordered that the applicants do pay the respondents’ costs of the application to be taxed, if not agreed. 

2. In relation to the order for costs, I did not expressly order that the costs should be payable “forthwith”. 

3. See the reasons for decision at Frigger v Banning [2016] FCA 359.

4. These reasons were handed down in open court on 13 April 2016.

5. Subsequently, the applicants applied to vary the amount of the security.  On 24 June 2016, I made an order varying the quantum so that it was then required to be paid in the sum of $60,000.

6. So far as the costs of the applicants’ interlocutory application for such relief was concerned, which they filed 31 May 2016, I ordered that the costs be costs in the cause.

7. See the reasons for decision in Frigger v Banning (No 2) [2016] FCA 749

8. The respondents subsequently, on 17 February 2017, requested the Court to amend the order for costs made 13 April 2016 so that those costs would be payable forthwith.

9. In their letter dated 17 February 2017, the solicitors for the respondents advanced the following submissions in support of the request for variation of the costs order:

   It is our understanding that counsel understood that the orders made by Justice Barker could be taxed prior to the conclusion of the matter and accordingly, no order was sought that those costs be payable forthwith.