FEDERAL COURT OF AUSTRALIA
Frigger v Banning (No 9) [2019] FCA 1611
File number: WAD 607 of 2015 Judge: COLVIN J Date of judgment: 26 September 2019 Catchwords: PRACTICE AND PROCEDURE - application for an order dismissing proceedings - where statutory stay of proceedings by reason of bankruptcy of the applicants - where steps taken by applicants to challenge sequestration orders - orders not made and application adjourned
COSTS - application for indemnity costs - application dismissed - orders made to vary costs orders to provide for costs to be assessed and payable forthwith
Legislation: Bankruptcy Act 1966 (Cth) s 60
Corporations Act 2001(Cth) s 477
Cases cited: Colgate-Palmolive Co v Cussons Pty Ltd [1993] FCA 801; (1993) 46 FCR 225
Finikiotis v Knight Frank (SA) Pty Ltd [2001] FCA 1733
Frigger v Banning (No 8) [2019] FCA 1319
Goodman v Thomas Maloney & Partners Pty Ltd trading as Charter Keck Cramer [2011] FCA 97
Melbourne City Investments Pty Ltd v Treasury Wine Estates Ltd (No 2) [2017] FCAFC 116
Date of hearing: 26 September 2019 Registry: Western Australia Division: General Division National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Category: Catchwords Number of paragraphs: 28 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
ANN MARION CAMPBELL-SMITH IN HER CAPACITY AS EXECUTOR OF THE ESTATE OF DONALD CAMPBELL‑SMITH
Second Respondent
PROFESSIONAL SERVICES OF AUSTRALIA PTY LTD (ACN 082 879 641)
Third Respondent
BANNING HOLDINGS PTY LTD (ACN 009 006 437)
Fourth Respondent
JUDGE:
COLVIN J
DATE OF ORDER:
26 SEPTEMBER 2019
THE COURT ORDERS THAT:
1.All costs orders made to date in favour of the respondents in these proceedings be varied to provide for those costs to be assessed and paid forthwith.
2.The respondents' application for an order dismissing these proceedings be adjourned to a date to be fixed after the determination of the application in matter WAD 492 of 2018 by the applicants for an extension of time in which to appeal and any appeal brought by the applicants if an extension of time is granted.
3.Costs of today be reserved.
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. They were commenced as an application for orders that the respondents pay to Mr and Mrs Frigger the amount of costs ordered to be paid in various court proceedings. Many of those proceedings concerned Computer Accounting & Tax Pty Ltd (CAT) and its affairs, including orders for the appointment of a provisional liquidator and for the winding up of CAT. CAT is a company that had been controlled…
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- AGLC
- Frigger v Banning (No 9) [2019] FCA 1611
- Case
- [2019] FCA 1611
- Decision Date
CaseChat Overview and Summary
The court examined the statutory provisions regarding the stay of proceedings in bankruptcy cases and the circumstances under which such proceedings could be dismissed. It found that the applicants had taken steps to challenge the sequestration orders, which suggested that the stay of proceedings might not apply. Consequently, the court decided to adjourn the application for an order dismissing the proceedings until the outcome of the applicants' application for an extension of time to appeal, which was pending in another matter. Regarding the application for indemnity costs, the court dismissed it, but made orders to vary the costs orders to provide for costs to be assessed and payable forthwith.
In summary, the court did not dismiss the proceedings outright but adjourned the decision pending the outcome of another application. The application for indemnity costs was dismissed, and the court made orders to ensure that costs were assessed and paid promptly. The costs of the hearing were reserved.
Orders
Orders of the court
1. All costs orders made to date in favour of the respondents in these proceedings be varied to provide for those costs to be assessed and paid forthwith.
2. The respondents' application for an order dismissing these proceedings be adjourned to a date to be fixed after the determination of the application in matter WAD 492 of 2018 by the applicants for an extension of time in which to appeal and any appeal brought by the applicants if an extension of time is granted.
3. Costs of today be reserved.
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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