Frigger v Clavey Legal Pty Ltd [No 2]
[2015] WASCA 258
•30 DECEMBER 2015
FRIGGER -v- CLAVEY LEGAL PTY LTD [No 2] [2015] WASCA 258
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASCA 258 | |
| THE COURT OF APPEAL (WA) | 30/12/2015 | ||
| Case No: | CACV:56/2015 | 11 DECEMBER 2015 | |
| Coram: | BUSS JA MURPHY JA | 11/12/15 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Application granted | ||
| B | |||
| PDF Version |
| Parties: | ANGELA FRIGGER HARTMUT FRIGGER CLAVEY LEGAL PTY LTD |
Catchwords: | Practice and procedure Application for security for costs Turns on own facts Costs of application Whether any 'normal' rule as to costs of application for security |
Legislation: | Supreme Court Act 1935 (WA), s 37(1) Supreme Court (Court of Appeal) Rules 2005 (WA), r 44(1) |
Case References: | Ailakis v Olivero [2013] WASCA 91 Boksmati v Girgis Nominees (WA) Pty Ltd [2014] WASCA 101 Collignon Developments Pty Ltd v Wurth (1975) 1 ACLR 314 Four Vanguard Servicos E Navagacao LDA v ENI Australia Ltd [2014] WASC 473 Frigger v Clavey Legal Pty Ltd [2015] WASCA 217 Frigger v Clavey Legal Pty Ltd [No 3] [2015] WADC 21 Frigger v Clavey Legal Pty Ltd [No 3] [2015] WADC 21 (S) Frigger v Professional Services of Australia Pty Ltd [2015] WASCA 3 J & M O'Brien Enterprises Pty Ltd v Shell Co of Australia Ltd (No 2) (1983) 70 FLR 261 Lawless v Mackendrick [No 3] [2011] WASC 298 Michael Bickley Pty Ltd v Westinghouse Electric Australasia Ltd (1983) 1 ACLC 967 Pacific Acceptance Corporation Ltd v Forsyth trading as Flack & Flack (No 2) [1967] 2 NSWR 402 Sims v Suda Ltd [No 2] [2015] WASCA 180 Specialised Building Materials Pty Ltd v EU Occusted Pty Ltd (1981) 58 FLR 270 Sunlea Enterprises Ltd as trustee for Drummond Cove Unit Trust v Pollock [2014] WASC 91 (S) |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : FRIGGER -v- CLAVEY LEGAL PTY LTD [No 2] [2015] WASCA 258 CORAM : BUSS JA
- MURPHY JA
- 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 - Application for security for costs - Turns on own facts
Costs of application - Whether any 'normal' rule as to costs of application for security
Legislation:
Supreme Court Act 1935 (WA), s 37(1)
Supreme Court (Court of Appeal) Rules 2005 (WA), r 44(1)
Result:
Application granted
Category: B
Representation:
Counsel:
First Appellant : In person
Second Appellant : No appearance
Respondent : Mr A T Macknay
Solicitors:
First Appellant : In person
Second Appellant : No appearance
Respondent : MDS Legal
Case(s) referred to in judgment(s):
Ailakis v Olivero [2013] WASCA 91
Boksmati v Girgis Nominees (WA) Pty Ltd [2014] WASCA 101
Collignon Developments Pty Ltd v Wurth (1975) 1 ACLR 314
Four Vanguard Servicos E Navagacao LDA v ENI Australia Ltd [2014] WASC 473
Frigger v Clavey Legal Pty Ltd [2015] WASCA 217
Frigger v Clavey Legal Pty Ltd [No 3] [2015] WADC 21
Frigger v Clavey Legal Pty Ltd [No 3] [2015] WADC 21 (S)
Frigger v Professional Services of Australia Pty Ltd [2015] WASCA 3
J & M O'Brien Enterprises Pty Ltd v Shell Co of Australia Ltd (No 2) (1983) 70 FLR 261
Lawless v Mackendrick [No 3] [2011] WASC 298
Michael Bickley Pty Ltd v Westinghouse Electric Australasia Ltd (1983) 1 ACLC 967
Pacific Acceptance Corporation Ltd v Forsyth trading as Flack & Flack (No 2) [1967] 2 NSWR 402
Sims v Suda Ltd [No 2] [2015] WASCA 180
Specialised Building Materials Pty Ltd v EU Occusted Pty Ltd (1981) 58 FLR 270
Sunlea Enterprises Ltd as trustee for Drummond Cove Unit Trust v Pollock [2014] WASC 91 (S)
1 REASONS OF THE COURT: This matter came before the court on 11 December 2015 to consider the respondent's amended application for security for costs dated 18 November 2015.
2 The appellants (Mr and Mrs Frigger) appeal against a decision of Herron DCJ dated 12 March 2015: Frigger v Clavey Legal Pty Ltd[No 3].1 They also appealed an earlier interlocutory decision of Herron DCJ in the same matter.
3 Following the hearing on 11 December 2015, the court granted the respondent's application for security for costs and said that reasons would subsequently be provided. These are our reasons.
The history of the appeal to this court
4 The appeal notice was filed on 2 April 2015. The appellants' case was not filed in time. Orders were made to extend the time for filing the appellants' case to 28 May 2015. Those orders were not complied with by the appellants. On 4 August 2015, the court made orders requiring the appellants to file and serve an appellants' case in accordance with pt 5 r 32 of the Supreme Court (Court of Appeal) Rules 2005 (WA) on or before 4.00 pm, 14 August 2015. Those orders were not complied with by the appellants. On 25 August 2015 the appellants applied for an order for an extension of time to file the appellants' case. On 30 October 2015 the Court granted an extension of time to file and serve an appellants' case by 6 November 2015. Reasons of the court were given for granting the application for an extension of time: Frigger v Clavey Legal Pty Ltd.2 (These reasons will be referred to as the 'extension of time reasons'.) The appellants' case was filed on 6 November 2015.
The decision under appeal
5 The nature of the decision under appeal was summarised in the extension of time reasons.3 There the court observed, inter alia:4
The appellants' case at trial in relation to the scope and terms of the relevant retainer and the communications between the parties throughout the performance of the retainer up to and including its termination, relied significantly upon the evidence of Mrs Frigger. His Honour found, with detailed reference to Mrs Frigger's evidence and affidavits previously sworn by her that:
(a) Mrs Frigger was dishonest in, and gave a dishonest explanation about, an affidavit sworn 23 September 2008;
(b) Mrs Frigger was a person who showed little or no regard for the truth;
(c) Mrs Frigger deliberately falsely swore an affidavit for the purpose of intentionally misleading the court;
(d) Mrs Frigger manipulated and created documentation, including by swearing affidavits which were often contradictory of and inconsistent with each other to defeat applications against her;
(e) Mrs Frigger swore a false affidavit on 10 February 2010 in connection with [Computer Accounting and Tax Pty Ltd (CAT)]'s application for special leave to the High Court, and she dishonestly swore the affidavit intending to mislead the High Court as to CAT's financial position;
(f) Mrs Frigger took certain green appeal books away from the court and into her custody, and returned them with a page inserted into volume 3 of the green appeal book which had not been there, and she knowingly and deliberately gave false and untruthful evidence when she denied that she had inserted the document into the book; and
(g) Mrs Frigger gave unsatisfactory evidence with little regard, if any, to the truth on other matters and was otherwise an unreliable witness.
On the other hand, the trial judge found that Mr Clavey was a credible, truthful and reliable witness, whose evidence he accepted. His Honour also found that Clavey Legal's other witnesses, Ms Richards and Ms Zohar, were reliable and credible witnesses who gave their evidence in a thoughtful and straightforward way. His Honour noted that it was not suggested by the appellants' counsel that they were unreliable witnesses. (footnotes omitted)
Evidence in the application
6 For the purpose of its application the respondent relied on two affidavits of Ms Duthie, solicitor for the respondent, one dated 14 July 2015 and the other dated 13 November 2015.
7 The effect of Ms Duthie's evidence in the 14 July 2015 affidavit is that searches reveal that Mr and Mrs Frigger are the registered proprietors of a property in Applecross which is 'subject to dealing'; and that Mrs Frigger is the registered proprietor of a property in Como and a property in Bayswater. Ms Duthie's evidence discloses that the Applecross property is subject to a mortgage registered on 7 April 2014 in favour of 'H & A Frigger Pty Ltd', said to secure a sum of $2.5 million, and that there are certain applications to register property seizure and sale orders in respect of the property.
8 The Bayswater property is also subject to a mortgage which secures a sum of $800,000 said to be owed to 'H & A Frigger Pty Ltd'. The Como property is similarly encumbered to H & A Frigger Pty Ltd allegedly in the sum of $800,000.
9 Each of the mortgage documents contained the following:
REPAYMENT OF PRINCIPAL SUM
As agreed between the parties from time to time
RATE OF INTEREST
6.5% pa and as agreed between the parties from time to time
PAYMENT OF INTEREST
As agreed between the parties from time to time
10 Each of the mortgages bears a typed date of 1 July 2012. However, none of the mortgages was registered until 7 April 2014.
11 The evidence shows that the mortgagee, H & A Frigger Pty Ltd, is a $2 company, the directors of which are Mr and Mrs Frigger, and the two shareholders are residents of Germany. The effect of the evidence in Ms Duthie's affidavit dated 13 November 2015 is that the two current members acquired their shareholding by way of a transfer of the shares from Mr and Mrs Frigger. The date of entry of those members onto the register is said to be 1 July 2012. The Australian Securities and Investment Commission (ASIC) was notified on 4 April 2014.
12 Ms Duthie's affidavit, dated 14 July 2015, also discloses that the appellants have not paid fixed and taxed costs in the various emanations of the litigation in which they have been involved in that:
(a) costs of approximately $33,000 are owing in respect of taxed costs to the parties represented by Eastwood Sweeney Law;5
(b) taxed costs are owed to a client of Holborn Lenhoff Massey in sums totalling approximately $40,000;6
(c) taxed costs are owed to clients of Hotchkin Hanly totalling approximately $24,000.7
13 Ms Duthie also deposes to other costs orders against Mr and Mrs Frigger in substantial litigation, where the costs have not yet been taxed, including the costs of the primary decision.
14 Ms Duthie's affidavit of 13 November 2015 also indicates that an indemnity costs order was made by Herron DCJ on 19 October 2015 against Mr and Mrs Frigger in the decision under appeal: Frigger v Clavey Legal Pty Ltd [No 3].8 Ms Duthie deposes to her belief that as a result of the indemnity costs order, the costs in that matter will be taxed far in excess of her estimate of $225,482 contained within her affidavit of 14 July 2015. The costs decision is also under appeal.
15 The effect of the evidence in Ms Duthie's affidavit of 13 November 2015 is also that title searches of properties owned by persons with the surname Frigger reveal that there are two other people with the surname Frigger who are registered property owners. The evidence appears to be responsive to the evidence of Mrs Frigger referred to in [19] below.
16 The evidence indicates that:
(a) Ms Jessica Ann Frigger of 29 Gairloch Street, Applecross (the same address as the appellants) became registered as the proprietor of a property in Cockburn Central (Cockburn Property) on 7 June 2013;
(b) the transfer document in relation to the Cockburn property indicates the consideration was $575,000;
(c) Mr Michael Jonathon Frigger became registered proprietor of a property in Shoalwater on 28 June 2012, and the consideration for the transfer was stated to be $400,000;
(d) the Shoalwater property is subject to a mortgage dated 28 June 2012, registered on 24 September 2012, in favour of the appellants;
(e) the Shoalwater mortgage is said to secure a sum of $550,000;
(f) the Shoalwater mortgage provides for the principal sum to be repaid by 28 June 2042, and that the rate of interest is 7.5%, 'subject to agreement between the parties'; and
(g) there is an application to register a property seizure and sale order in respect of the Shoalwater property.
17 In opposition to the application for security, Mrs Frigger, by affidavit sworn 31 July 2015, deposed, inter alia, that she was 'not impecunious' and that most of Ms Duthie's affidavit was 'misinformed and naïve'. However, Mrs Frigger does not, save to the extent referred to below, disclose with any detail the appellants' assets and liabilities.
18 In her affidavit of 31 July 2015, Mrs Frigger states, without annexing the underlying documents, that:
(a) the appellants are owed over $1.4 million by Computer Accounting and Tax Pty Ltd (CAT), a company wound up in insolvency;
(b) the appellants have claims they are owed money by Professional Services of Australia Pty Ltd and the estate of Martin Banning, and they too are insolvent;
(c) there are certain costs orders made by Simmonds J on 8 April 2015 which are the subject of an appeal by the appellants that Mrs Frigger is 'confident' will succeed; and
(d) the appellants have claims against other parties, for each of whom the searches indicate that they have no real estate assets in Western Australia.
19 Mrs Frigger also stated:9
Because of the caveats lodged by [another legal firm] and the fact that my husband and I are directors of CAT, a company in insolvent external administration, my husband and I have been unable to obtain mortgage loans in Australia. Accordingly in 2012 and 2013 we borrowed funds overseas to assist our children purchase homes in Perth. We also borrowed funds to purchase a further commercial property in our superannuation fund. Those funds are secured by mortgages over our properties in Applecross, Bayswater and Como.
20 The appellants rely on a further affidavit of Mrs Frigger dated 27 November 2015. In her affidavit Mrs Frigger deposes:10
I have calculated the net assets of my husband and me, and say it is approximately $17,834,950.
21 Mrs Frigger's affidavit provides no evidence of any assets or liabilities that are relevant to her 'calculation'. There is, however, one annexure attached to the affidavit which is a notice of land tax assessment for 2015 - 2016 addressed to 'ACT & HHJ Frigger ATF The Frigger Super Fund', in relation to property in Tasmania. In oral submissions, Mrs Frigger also said:
There are no details given there, but the details are - there's so much detail in the affidavits that the respondents [sic] have put in that I say that if you go through all of that, you recalculate all of that, that's what comes out. And, as I say, I have sworn it. That is the amount and there should not be any question that that is what is available.
22 In her affidavit of 27 November 2015, Mrs Frigger also deposes that all of the costs orders listed in Ms Duthie's affidavits are the subject of claims for damages in the Federal Court, and that she is 'now in possession of sufficient evidence to prove' that certain costs orders were obtained by fraud. She also alleges that another person 'is also the victim of fraud'.
23 Mrs Frigger also deposed that the estimate of costs provided by the respondent is overstated because Ms Duthie's affidavit annexed copies of judgments and that was a waste of costs; and also in Ms Duthie's affidavit of 14 July 2015, she estimated $545,498 for the costs of the action below, whereas in her affidavit before Herron DCJ dated 21 August 2015 in support of indemnity costs, she stated that the costs were $597,650 in circumstances where 'no work had been undertaken after the delivery of judgment below'.
Parties' submissions
24 The respondent contended that the appeal has limited prospects of success; that there is no suggestion that an order for security would frustrate the appeal; that there has been no delay in bringing the application; and that Mr and Mrs Frigger are at risk of leaving the jurisdiction.
25 The respondent also contended that the charges on land in favour of H & A Frigger Pty Ltd indicate, in all the circumstances, that the charges were granted with an intention to put Mr and Mrs Frigger's assets out of the reach of unsecured creditors. It was also contended that on the evidence, Mr and Mrs Frigger could not be regarded as having sufficient funds to satisfy a costs order made against them. The respondent also referred to the costs orders against Mr and Mrs Frigger and other costs claimable against Mr and Mrs Frigger which have not yet been taxed.
26 In their submissions, Mr and Mrs Frigger contended the appeal has good prospects of success 'otherwise the extension of date of the springing order would not have been granted'.11 Further, Mr and Mrs Frigger contended that comments made by the Martin CJ in CACV 76 of 2008 on 2 October 2015 indicate that '[the respondent's] failures in those proceedings are grounds for suing him'.12
27 Mr and Mrs Frigger also contended that there is no risk that she and her husband will leave the jurisdiction; that they are 'high net worth individuals'; and that the respondent's analysis of the evidence relating to Mr and Mrs Frigger's dealings with their assets 'is flawed and displays a misunderstanding of the way normal people manage their financial affairs.13 It was also contended that Mr and Mrs Frigger have commenced proceedings 'against the parties to the DOCA in the Federal Court, claiming all of the costs listed in the respondent's submissions'.14 Mr and Mrs Frigger also contend that there is no proper explanation for the proposed increase in the amount of security sought from $25,000 to $45,000.
28 Mr and Mrs Frigger also contended that security should not be ordered because there is a public interest in the appeal.
Principles
29 Under r 44(1) of the Supreme Court (Court of Appeal) Rules, the court has a very wide discretion to make orders for security for the costs of an appeal. Relevantly for present purposes, the factors to be considered will ordinarily include:
(a) the appellant's capacity to satisfy an order for costs if the appeal is unsuccessful;
(b) the appellant's prospects of success on the appeal;
(c) the fact that the appellant has already lost at first instance on the merits, that being a circumstance which favours the exercise of the discretion in favour of an order for security for costs;
(d) whether the appellant would be shut out of the appeal if security for costs were ordered; and
(e) whether there has been any delay in the respondent filing the application for security for costs.15
Disposition
30 It appeared to us that any successful appeal against the primary judge's decision would require Mr and Mrs Frigger to demonstrate that the judge erred in accepting the evidence of Mr Clavey and other officers of Clavey Legal, as opposed to the evidence of Mrs Frigger. The difficulty, at least prima facie, for Mr and Mrs Frigger is that the judge had the benefit of observing and hearing Mrs Frigger in the witness box, and he made crucial findings adverse to her credibility on numerous occasions. Mr and Mrs Frigger are incorrect insofar as they contended that the court concluded that Mr and Mrs Frigger had good prospects of success insofar as the court allowed the extension of time to file Mr and Mrs Frigger's case on certain terms. In the extension of time reasons, this court expressly observed that whilst the court could not be satisfied that the appeal was totally devoid of merit, 'it should not be thought that we accept that the proposed appeal has good merits'.16 Also, Mr and Mrs Frigger's reference to observations by Martin CJ in appeal CACV 76 of 2008 have been taken out of context and provide no reasonable basis for the contention that the appeal has good prospects of success. For present purposes, having considered all the materials and arguments, our necessarily preliminary view is that the appeal may well not enjoy good prospects of success.
31 Mr and Mrs Frigger did not contend that an order for security for costs would stifle the appeal. Nor did Mr and Mrs Frigger contend that there has been any delay in making the application.
32 The finding is open, on the evidence of Ms Duthie, that the charges on land in favour of H & A Frigger Pty Ltd have the effect, and it is open to infer were done with the intention, of putting assets out of the reach of unsecured creditors. The court also made such an observation in Frigger v Professional Services of Australia Pty Ltd.17
33 Mrs Frigger's evidence referred to in [19] above, to the effect that Mr and Mrs Frigger borrowed money from overseas, does not displace the inference that is open on Ms Duthie's evidence. Mrs Frigger's evidence includes evidence to the effect that, on the strength of the equity in the Applecross, Bayswater and Como properties, Mr and Mrs Frigger borrowed money from overseas to effectively gift it to their children to enable their children to purchase homes in Cockburn Central and Shoalwater respectively. However, there are a number of aspects of Mr and Mrs Frigger's evidence, which affect, adversely, its cogency, including:
(a) Ms Jessica Frigger became the registered proprietor of the Cockburn Central property on 7 June 2013, but the mortgages given by Mr and Mrs Frigger to H & A Frigger Pty Ltd are dated 1 July 2012 and were not registered until 7 April 2014;
(b) the mortgage over the Shoalwater property secures a sum of $550,000, even though the consideration for the transfer was said to be $400,000, which is a significant difference even allowing for transaction costs;
(c) the mortgage taken by Mr and Mrs Frigger over the Shoalwater property is inconsistent with an outright gift and in any event was registered over 18 months before the mortgages given by Mr and Mrs Frigger to H & A Frigger Pty Ltd were registered;
(d) insofar as it is said that Mr and Mrs Frigger borrowed money from lenders overseas:
(i) there is no evidence of any instrument of loan;
(ii) there is no evidence as to who the lenders are; and
(iii) there is no explanation as to why the lenders are not mortgagees of Mr and Mrs Frigger's properties, rather than a $2 company of which Mr and Mrs Frigger are the directors;
(e) insofar as Mr and Mrs Frigger seek to imply that the overseas lenders are the new German shareholders of H & A Frigger Pty Ltd, and that the mortgages are for the benefit of those new shareholders:
(i) the terms of each of the mortgages appear uncommercial if, perhaps, not unenforceable, insofar as they provide that the repayment of the debt, and the payment of interest is to occur 'as agreed between the parties from time to time';
(ii) under the current corporate arrangements for H & A Frigger Pty Ltd, any such agreement would be between Mr and Mrs Frigger as directors of the mortgagee and Mr and Mrs Frigger as mortgagors;
(iii) the notification to ASIC of the new shareholders only occurred on 4 April 2014, and there is no explanation as to why, in relation to any new shareholding prior to that date, there was a delay in notifying ASIC.
35 As noted earlier, Mrs Frigger stated in her affidavit of 27 November 2015 that she had calculated that Mr and Mrs Frigger had net assets of approximately $17.83 million. In oral submissions, Mrs Frigger contended that the claims referred to in [18] above were not included as assets in her calculation as to net assets. It may be accepted that such claims ought not be included as assets for present purposes, given that the evidence indicates that Mr and Mrs Frigger are engaged in apparently expensive litigation on many fronts against entities who are either said to be insolvent, or in respect of whom there is no real property against which Mr and Mrs Frigger could levy to enforce any judgments that they obtained.
36 The mere assertion that Mr and Mrs Frigger have net assets of approximately $17.83 million lacks cogency without admissible evidence of the underlying assets and liabilities. Nor does the notice of land tax in relation to what appears to be a superannuation trustee provide any evidence of land beneficially owned by Mr and Mrs Frigger. Further, the notice itself is unsatisfactory evidence in the absence of any evidence as to the relevant certificates of title. Also, Mr and Mrs Frigger's suggestion that Ms Duthie's evidence disclosed that Mr and Mrs Frigger had net assets of $17.83 million was not explained and its correctness is not otherwise apparent.
37 The appeal which Mrs Frigger deposed she was 'confident' of succeeding in, was dismissed by this court on 7 August 2015.18 Also, there is no, or no satisfactory, evidence of any fraud as alleged by Mrs Frigger. Whilst Mr and Mrs Frigger's claims against the respondent include claims in relation to the termination by the respondent of its retainer, we presently do not see the appeal as serving anything other than the private interest of Mr and Mrs Frigger.
38 In all the circumstances, it was appropriate to make an order for security for costs in this matter. In reaching this conclusion, we did not need to resolve, and we did not take into account, the respondent's contention that there remains a risk that Mr and Mrs Frigger would seek to leave the jurisdiction.
39 In relation to the quantum of the security, Ms Duthie's first estimate was expressly qualified on the basis that an appellants' case had not then been filed, and her estimate was to that extent provisional. In her affidavit of 13 November 2015, she deposes in some detail to the basis for the revised estimate of $45,558.70. The revised estimate appears to be reasonable in all the circumstances.
Conclusion
40 For the above reasons, we ordered that the appellants pay into court the sum of $45,000 for security for costs by 29 December 2015 and that the appeal be stayed pending payment of the security.
Costs
41 The respondent sought its costs of the application. The appellants resisted that application. They contended that where the respondent has successfully applied for security, the 'normal' order for costs is that the costs of the application be the respondent's costs in the appeal, and that the 'normal' order should apply.19
42 We ordered that the appellants pay the respondent's costs of the application. These are our reasons.
43 The costs of and incidental to all proceedings in court are in the discretion of the court: s 37(1) of the Supreme Court Act 1935 (WA). The discretion conferred is wide, but must be exercised judicially. It is not uncommon in an application for security for costs to be reserved,20 or for costs to be made in the cause.21
44 Nevertheless, in dealing with an application for costs in connection with a successful application for security under the relevant companies legislation, Needham J in Collignon Developments Pty Ltd v Wurth,22 observed:
While I feel that there is perhaps some reason for saying that under s 363 [of the Companies Act 1961] because the assumption has to be made that the defendant will be successful in his defence the costs should be made costs in the proceedings, such a conclusion I think is probably unjustified. If it were correct then in every application under s 363 such an order should have been made, but my experience is that orders are frequently made for costs to be paid by one or other party to such application.
45 In that case, his Honour considered that the plaintiff should pay the costs of the application on the basis that 'as the first defendant [had] been successful the ordinary consequence should follow'.23 See also, in this regard, for example, Michael Bickley Pty Ltd v Westinghouse Electric Australasia Ltd;24Lawless v Mackendrick [No 3];25Sunlea Enterprises Ltd as trustee for Drummond Cove Unit Trust v Pollock.26
46 Whilst Needham J's observations in Collignon were made with reference to an order for security under the companies legislation, they are equally apposite in the context of an application for security for costs under r 44(1) of the Supreme Court (Court of Appeal) Rules. In this court, there have been cases where costs have followed the event where an application for security has been contested and unsuccessfully resisted.27 There is also authority in the appellate context in which the costs of the application for security have been ordered to be costs in the appeal, even though the respondent has failed in its application for security.28
47 Accordingly, in our opinion, there is no 'normal' order as suggested by the appellants.
48 In this case, the factors that we had particular regard to were the fact that the respondent had invited the appellants to provide security without the need for making an application and the appellants' response did not, objectively, engage with the issues;29 the application was resisted on a number of bases which, objectively, had little or no arguable merit; and, generally speaking, the respondent succeeded on all of the material bases upon which it sought security.
1Frigger v Clavey Legal Pty Ltd[No 3] [2015] WADC 21.
2Frigger v Clavey Legal Pty Ltd[2015] WASCA 217.
3Frigger v Clavey Legal Pty Ltd [2015] WASCA 217 [4] - [29].
4Frigger v Clavey Legal Pty Ltd [2015] WASCA 217 [14] - [15].
5 Ms Duthie's affidavit, 14 July 2015, pars 10(a) and 10(b). (It is not clear whether the amount referred to in par 10(c) of Ms Duthie's affidavit refers to taxed costs.)
6 Ms Duthie's affidavit, 14 July 2015, pars 13, 15.
7 Ms Duthie's affidavit, 14 July 2015, pars 20(a), 23, 27.
8Frigger v Clavey Legal Pty Ltd [No 3] [2015] WADC 21 (S).
9 Mrs Frigger's affidavit, 31 July 2015, par 16.
10 Mrs Frigger's affidavit, 27 November 2015, par 3.
11 Appellants' written submissions, par 6.
12 Appellants' written submissions, par 20.
13 Appellants' written submissions, pars 18 - 19.
14 Appellants' written submissions, par 21.
15Sims v Suda Ltd [No 2] [2015] WASCA 180 [17] - [18]; Frigger v Professional Services of Australia Pty Ltd [2015] WASCA 3 [51].
16Frigger v Clavey Legal Pty Ltd [2015] WASCA 217 [63].
17Frigger v Professional Services of Australia Pty Ltd [2015] WASCA 3 [54].
18Frigger v Professional Services of Australia Pty Ltd [2015] WASCA 167.
19 ts 46 - 47.
20 See, for example, Four Vanguard Servicos E Navagacao LDA v ENI Australia Ltd [2014] WASC 473 [12].
21 See, for example, Specialised Building Materials Pty Ltd v EU Occusted Pty Ltd (1981) 58 FLR 270, 275; Pacific Acceptance Corporation Ltd v Forsyth trading as Flack & Flack (No 2) [1967] 2 NSWR 402, 409 (costs were made the defendants' costs in the cause).
22Collignon Developments Pty Ltd v Wurth (1975) 1 ACLR 314, 316.
23Collignon (316).
24Michael Bickley Pty Ltd v Westinghouse Electric Australasia Ltd (1983) 1 ACLC 967, 971.
25Lawless v Mackendrick [No 3] [2011] WASC 298 [55].
26Sunlea Enterprises Ltd as trustee for Drummond Cove Unit Trust v Pollock [2014] WASC 91 (S) [4] - [6], [14].
27 See, for example, Ailakis v Olivero [2013] WASCA 91 [26]; Boksmati v Girgis Nominees (WA) Pty Ltd [2014] WASCA 101 [73]. Costs were also ordered by this court in Frigger v Professional Services of Australia Pty Ltd [2015] WASCA 3.
28J & M O'Brien Enterprises Pty Ltd v Shell Co of Australia Ltd (No 2) (1983) 70 FLR 261, 266.
29 Ms Duthie's affidavit, 14 July 2015, pages 236 - 239.
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