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
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:
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.
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.
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…
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- AGLC
- Frigger v Banning (No 6) [2018] FCA 787
- Case
- [2018] FCA 787
- Decision Date
CaseChat Overview and Summary
The court had to determine whether the circumstances warranted an increase in the security for costs already provided by the applicant. The legal issues revolved around the applicant's financial position, the complexity of the case, and the potential costs that might be incurred if the respondent prevailed. The court examined the current security for costs and assessed whether it was adequate given the evolving nature of the case.
After reviewing the submissions from both parties, the court concluded that the existing security for costs was sufficient under the current circumstances. However, it granted the applicant the liberty to apply for further security if there were significant changes in the case or if the application for an interlocutory injunction or the amendment to the statement of claim was determined. The court did not order any costs for the application for further security, deeming it unnecessary given the outcome of the application.
The court's decision resulted in the dismissal of the application for additional security for costs. It also allowed the possibility of future applications under specific conditions. The final orders reflected the court's decision, providing flexibility for future changes in the case's circumstances.
Orders
Orders of the court
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.
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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