Frigger v Banning (No 9)

[2019] FCA 1611

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

Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S)

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:

1. 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…