Frigger v Banning (No 6)

[2018] FCA 787

FEDERAL COURT OF AUSTRALIA

Frigger v Banning (No 6) [2018] FCA 787

File number:

WAD 607 of 2015

Judge:

COLVIN J

Date of judgment:

28 May 2018

Cases cited:

Frigger v Banning [2016] FCA 359

Frigger v Banning (No 3) [2017] FCA 221

Knight v Beyond Properties Pty Ltd [2005] FCA 764

Date of hearing:

28 May 2018

Registry:

Western Australia

Division:

General Division

National Practice Area:

Commercial and Corporations

Sub-area:

Corporations and Corporate Insolvency

Category:

No Catchwords

Number of paragraphs:

17

Counsel for the Applicants:

The Applicants appeared in person

Counsel for the Respondents:

Mr TR Stephenson

Solicitor for the Respondents:

Eastwood 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:	COLVIN J
DATE OF ORDER:	28 MAY 2018

THE COURT ORDERS THAT:

1.The application for further security for costs be dismissed.

2.There be liberty to apply for further security for costs in the event of a change in circumstances or upon the determination of the applicants' application for an interlocutory injunction and the application for leave to amend the statement of claim.

3.There be no order as to costs on the application for further security.

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

REASONS FOR JUDGMENT

COLVIN J:

1. These proceedings were commenced by Mr and Mrs Frigger in October 2015.  In February 2016 the respondents sought orders for the summary dismissal of the proceedings by reason of a lack of standing and for orders striking out the statement of claim and, in the alternative, that Mr and Mrs Frigger give security for costs in an amount of over $350,000 by payment into Court.  Mr and Mrs Frigger brought an interlocutory application for orders that certain lawyers be restrained from acting for the respondents.  The interlocutory applications were listed for hearing on 5 April 2016.

2. Shortly prior to the hearing, Mr and Mrs Frigger gave notice that they wished to proceed by reference to a proposed amended application and statement of claim.  In the result, only the application for security for costs was heard on 5 April 2016, and on 13 April 2016 Barker J ordered that Mr and Mrs Frigger provide security up to and including the hearing of any application by the respondents for summary dismissal and any application by Mr and Mrs Frigger to restrain certain lawyers from acting in the proceeding:  Frigger v Banning [2016] FCA 359.

3. The amount of security required was $75,000, later reduced to $60,000.  The security was provided.  Thereafter, applications by Mr and Mrs Frigger to file a substituted originating process and statement of claim, and for orders restraining certain lawyers from acting were heard.  Those applications encompassed the issues as to standing that were raised by the respondents on their application…