FRIGGER -v- CLAVEY LEGAL PTY LTD [2016] WASCA 67

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2016] WASCA 67
Court:	THE COURT OF APPEAL (WA)	Published:	22/04/2016
Case No:	CACV:162/2015	Heard:	7 APRIL 2016
Coram:	BUSS JA MURPHY JA	Delivered:	7/04/16
No of pages:	7	Judgment Part:	1 of 1
Result:	Application for security for costs granted
Category:	B
PDF Version

Parties:	ANGELA FRIGGER HARTMUT FRIGGER CLAVEY LEGAL PTY LTD
Catchwords:	Practice and procedure Security for costs Appeal against decision for costs in substantive appeal (costs appeal) Application by respondent for security for costs in costs appeal Costs appeal raises arguments and issues beyond those addressed in substantive appeal Security granted in costs appeal Turns on own facts
Legislation:	Nil
Case References:	Brandrill v Newmont Yandal [2006] NSWSC 974 Frigger v Clavey Legal Pty Ltd [No 2] [2015] WASCA 258 Frigger v Clavey Legal Pty Ltd [No 3] [2015] WADC 21 Frigger v Clavey Legal Pty Ltd [No 3] [2015] WADC 21 (S)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : FRIGGER -v- CLAVEY LEGAL PTY LTD [2016] WASCA 67 CORAM : BUSS JA

MURPHY JA

HEARD : 7 APRIL 2016 DELIVERED : 7 APRIL 2016 PUBLISHED : 22 APRIL 2016 FILE NO/S : CACV 162 of 2015 BETWEEN : ANGELA FRIGGER

First Appellant

HARTMUT FRIGGER

Second Appellant

AND

CLAVEY LEGAL PTY LTD

Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : HERRON DCJ

Citation : FRIGGER -v- CLAVEY LEGAL PTY LTD [No 3] [2015] WADC 21 (S)

File No : CIV 1221 of 2011

Catchwords:

Practice and procedure - Security for costs - Appeal against decision for costs in substantive appeal (costs appeal) - Application by respondent for security for costs in costs appeal - Costs appeal raises arguments and issues beyond those addressed in substantive appeal - Security granted in costs appeal - Turns on own facts

Legislation:

Nil

Result:

Application for security for costs granted

Category: B

Representation:

Counsel:

First Appellant : In person

Second Appellant : In person

Respondent : Mr A T Macknay

Solicitors:

First Appellant : In person

Second Appellant : In person

Respondent : MDS Legal

Case(s) referred to in judgment(s):

Brandrill v Newmont Yandal [2006] NSWSC 974
Frigger v Clavey Legal Pty Ltd [No 2] [2015] WASCA 258
Frigger v Clavey Legal Pty Ltd [No 3] [2015] WADC 21
Frigger v Clavey Legal Pty Ltd [No 3] [2015] WADC 21 (S)

1 REASONS OF THE COURT: This matter came before the court on 7 April 2016 pursuant to a registrar's notice to attend dated 18 March 2016, to consider an application by the respondent (Clavey Legal) dated 4 March 2016 for security for costs. On that occasion, we ordered security for costs, and said we would provide written reasons later. These are our reasons.

2 The appeal herein (costs appeal) is brought by Mr and Mrs Frigger against a costs decision of Herron DCJ: Frigger v…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] WASCA 67
Decision Date: 22 APRIL 2016

CaseChat Overview and Summary

The dispute between Frigger and Clavey Legal Pty Ltd originated from an earlier substantive appeal. The case was heard in the Federal Court of Australia, with Clavey Legal as the respondent seeking security for costs in the subsequent costs appeal. The primary concern was whether the respondent, Clavey Legal, could obtain security for costs in the costs appeal, given that the arguments and issues presented in the costs appeal extended beyond those considered in the substantive appeal.

The court was required to determine whether the respondent's application for security for costs was permissible under the circumstances, particularly as the costs appeal involved new arguments and issues. It was also necessary to assess whether the respondent's application for security for costs in the costs appeal was warranted, considering the broader scope of the issues being addressed. The court had to consider whether the security for costs in the costs appeal should turn on its own unique set of facts, separate from those of the substantive appeal.

The Federal Court found that the respondent's application for security for costs was appropriate in this instance. The court reasoned that the costs appeal encompassed arguments and issues that were distinct from those in the substantive appeal. As such, the court granted the application for security for costs, emphasising that the assessment of the security for costs in the costs appeal should be based on its own specific facts. This decision allowed the respondent to secure costs for the costs appeal, ensuring that the broader scope of issues could be adequately addressed.

The final orders of the court were that the application for security for costs by the respondent, Clavey Legal, was granted. This ruling permitted the respondent to secure costs for the costs appeal, ensuring that the unique set of facts and issues in the costs appeal could be properly considered.

Orders

Orders of the court

Application for security for costs granted

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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