Frigger v Computer Accounting & Tax Pty Ltd

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.