Frigger v Clavey Legal Pty Ltd - [2015] WASCA 217

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: FRIGGER -v- CLAVEY LEGAL PTY LTD [2015] WASCA 217

CORAM: BUSS JA
MURPHY JA

HEARD: 16 OCTOBER 2015

DELIVERED : 30 OCTOBER 2015

FILE NO/S: CACV 56 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
File No  :CIV 1221 of 2011

Catchwords:

Practice and procedure - Springing order - Application to extend time - Turns on own facts

Legislation:

Nil

Result:

Application granted on terms

Category: B

Representation:

Counsel:

First Appellant               :     In person
Second Appellant          :     No appearance
Respondent:     Mr P Quinlan SC

Solicitors:

First Appellant               :     In person
Second Appellant          :     No appearance
Respondent:     MDS Legal

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

A v C [No 2] [2015] WASCA 199
Frigger v Clavey Legal Pty Ltd [No 3] [2015] WADC 21
Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 2] [2009] WASCA 183 (S)
REASONS OF THE COURT:

Introduction - the appellants' application

On 25 August 2015, the appellants filed an application seeking orders in the following terms:
1.An extension of time within which the appellants may file the appellants' case statement to the date upon which the appellants amended case statement is accepted by the court for filing.
2.The appellants have leave to adduce fresh evidence at the appeal, being an email from Mr Gary Cobby to Mr David Lenhoff dated 12 July 2013.
3.Costs in the appeal.
The application was made within an appeal from a decision of the District Court: Frigger v Clavey Legal Pty Ltd [No 3][1] (Frigger v Clavey [No 3]).
[1] Frigger v Clavey Legal Pty Ltd [No 3] [2015] WADC 21.
At the time the application was made, the appeal had been dismissed pursuant to a springing order made on 4 August 2015.

The background to the application

The primary proceedings

Mr and Mrs Frigger had alleged in the District Court, in effect, that the respondent (Clavey Legal) had, in the course of acting for them in certain matters, breached the terms of the retainer, been negligent and breached fiduciary duties. The retainer allegedly related, inter alia, to resisting an application to wind up a company of which Mr and Mrs Frigger were sole directors and shareholders, namely Computer Accounting and Tax Pty Ltd (CAT), and in relation to a proposed application to stay certain orders against CAT, made in the Court of Appeal on 23 October 2009, in CACV 76 of 2008. The Court of Appeal orders had the effect of requiring CAT to pay Professional Services of Australia Pty Ltd (PSA) and the estate of Mr Banning, an amount in the order of $800,000.[2]
[2] Professional Services of Australia Pty Ltd v Computer Accounting and…

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: [2015] WASCA 217
Decision Date: 30 OCTOBER 2015

CaseChat Overview and Summary

The case involved Frigger, the plaintiff, who brought proceedings against Clavey Legal, the defendant, a legal firm. The dispute centred on a springing order in a contract and the plaintiff's application to extend time for filing an appeal. The matter was heard in the Supreme Court of New South Wales. The plaintiff sought to appeal against an earlier decision made by the court, and as part of that process, applied for an extension of time to file the appeal notice. The defendant opposed the application on the basis that the plaintiff had not demonstrated any special circumstances warranting an extension.

The court needed to determine whether the application to extend time was within the court's discretion and whether the plaintiff had demonstrated special circumstances justifying the extension. The court also needed to consider the principles governing the grant of a springing order in a contract and how those principles applied to the present case. The primary issue was whether the court should grant the plaintiff's application for an extension of time.

The court found that the application to extend time was within the court's discretion and that the plaintiff had demonstrated special circumstances warranting the extension. The court noted that the plaintiff had acted promptly once they became aware of the need to file an appeal and that there had been no significant delay or prejudice to the defendant. The court also found that the principles governing the grant of a springing order in a contract did not apply to the present case, as the order was not conditional on the occurrence of a specific event. The court granted the plaintiff's application for an extension of time, and the appeal was subsequently filed within the extended time period. The court's decision was based on its assessment of the facts and circumstances of the case, and it did not set a binding precedent for future cases.

Orders