Frigger v Computer Accounting & Tax Pty Ltd - [2023] WASCA 152

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   FRIGGER -v- COMPUTER ACCOUNTING & TAX PTY LTD [2023] WASCA 152
CORAM:   MAZZA JA
MITCHELL JA

HEARD:   26 OCTOBER 2023
DELIVERED          :   26 OCTOBER 2023
PUBLISHED           :   26 OCTOBER 2023
FILE NO/S:   CACV 41 of 2023
BETWEEN:   ANGELA CECILIA THERESA FRIGGER
First Appellant

HARTMUT HUBERT FRIGGER
Second Appellant

AND

COMPUTER ACCOUNTING & TAX PTY LTD
First Respondent

MERVYN JONATHAN KITAY
Second Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   SMITH J
Citation: IN THE MATTER of Computer Accounting and Tax Pty Ltd (ACN 009 470 491) [No 4] [2023] WASC 90
File Number            :   COR 2 of 2010

Catchwords:

Appeal - Practice and procedure - Application for security for costs - 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
First Respondent	:	B W Ashdown
Second Respondent	:	B W Ashdown

Solicitors:

First Appellant	:	In person
Second Appellant	:	In person
First Respondent	:	Herbert Smith Freehills
Second Respondent	:	Herbert Smith Freehills

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

Clough Limited v Forge Group Limited (in liq) [2022] WASCA 179
Frigger v Professional Services of Australia Pty Ltd [2022] WASCA 119
George 218 Pty Ltd v Bank of Queensland Limited [2016] WASCA 56
Hancock Prospecting Pty Ltd v Hancock [No 3] [2016] WASC 423
Harvard Nominees Pty Ltd v Dimension Agriculture Pty Ltd (in liq) [2023] FCAFC 140
Marsh v Baxter [No 2] [2016] WASCA 51
Noye v Robbins [2010] WASCA 83
Oil Basins Ltd v Watson [2017] FCAFC 103; (2017) 252 FCR 420
Oze‑Igiehon v Rasier Operations BV [2017] WASCA 107

REASONS OF THE COURT:

At the hearing of the respondents' application for security for costs on 26 October 2023, we made the following orders for reasons to be published later:
1.The appellants pay into court the sum of $18,000 as security for the respondents' costs of the appeal.
2.The appeal is stayed pending compliance with order 1 of these orders.
3.Unless the appellants comply with order 1 of these orders by 4.00 pm on 16 November 2023, the appeal is dismissed and the appellants must pay the respondents' costs of the appeal, including reserved costs, to be assessed if not agreed.
4.The costs of the respondents' application in an appeal filed on 2 June 2023 be reserved.
These are our reasons for making those orders.

Background

The general background to the protracted litigation of which this appeal forms part is summarised in the annexure to the decision of this court in Frigger v Professional Services of Australia Pty Ltd.[1]
[1] Frigger v Professional Services of Australia Pty Ltd [2022] WASCA 119.
The current appeal is against orders made by the primary judge in COR 2 of 2010 on 24 March 2023. COR 2 of 2010 are the proceedings in which orders were made…

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: [2023] WASCA 152
Decision Date

CaseChat Overview and Summary

In the case of Frigger v Computer Accounting & Tax Pty Ltd, the Court of Appeal of the Supreme Court of Western Australia was called upon to decide an application for security for costs made by the respondents in relation to an appeal filed by the appellants, Angela Cecilia Theresa Frigger and Hartmut Hubert Frigger, against orders made by the primary judge in a winding-up proceeding. The primary judge had stayed the appellants' claim pending payment of costs into court, and the appeal against those orders was heard on 26 October 2023. The Court of Appeal found that the application for security for costs should be granted, requiring the appellants to pay $18,000 into court as security for the respondents' costs of the appeal, and that the appeal would be dismissed if the required amount was not paid by 16 November 2023.

The legal issues before the Court of Appeal included whether the appellants had a strong case for leave to appeal, given their history of non-compliance with orders for payment of security for costs and their apparent capacity to pay. The Court found that the appellants' prospects of success in the appeal did not appear strong, and that there was no obvious reason why the appellants could not have paid the amounts required by the primary judge and proceeded with their claim. The Court also considered the general principles of security for costs, noting that the discretion to order security is unfettered but must be exercised judicially. The Court held that it was in the interests of justice to require the appellants to pay security for the respondents' costs of the appeal, and that the indemnity principle did not provide a reason to avoid such an order.

The Court of Appeal's decision was based on a careful consideration of the circumstances of the case, including the appellants' history of non-compliance with orders for payment of security for costs, their apparent capacity to pay, and the lack of evidence that the respondents had no liability to their solicitors for costs. The Court concluded that it was appropriate to require the appellants to provide security for what was at least a prima facie liability of the respondents to their solicitors in respect of the costs of the appeal. The Court of Appeal's orders were made in the interests of justice and to ensure that the proceedings could proceed in an orderly manner.

The final orders of the Court of Appeal required the appellants to pay $18,000 into court as security for the respondents' costs of the appeal, with the appeal to be stayed pending compliance with that order. If the appellants did not comply with the order by 4.00 pm on 16 November 2023, the appeal was to be dismissed and the appellants were to pay the respondents' costs of the appeal, including reserved costs, to be assessed if not agreed. The costs of the respondents' application in the appeal were to be reserved. These orders were made to ensure that the proceedings could proceed in an orderly manner and that the interests of justice were served.

Orders