Frigger v Kitay

[2016] WASC 60 (S)

JURISDICTION	:	SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS
CITATION	:	FRIGGER -v- KITAY [2016] WASC 60 (S)
CORAM	:	LE MIERE J
HEARD	:	ON THE PAPERS
DELIVERED	:	11 MAY 2016
FILE NO/S	:	CIV 1606 of 2015

BETWEEN : ANGELA FRIGGER

First Plaintiff

HARTMUT FRIGGER

Second Plaintiff

AND

MERVYN JONATHAN KITAY

Defendant

Catchwords:

Orders to give effect to judgment - Where orders sought are appropriate - Turns on own facts

Costs - Stay application - Substantial success - Letter offering compromise -

Indemnity costs ordered - Turns on own facts

Legislation:

Nil

[2016] WASC 60 (S)

Result:

Plaintiff refused leave to commence or continue the proceedings
Defendant given leave to file applications out of time
Parts of amended statement of claim struck out
Proceedings permanently stayed

Plaintiffs pay defendant's costs on indemnity basis

Category: B

Representation:

Counsel:

First Plaintiff	:	No appearance
Second Plaintiff	:	No appearance
Defendant	:	No appearance

Solicitors:

First Plaintiff	:	In person
Second Plaintiff	:	In person
Defendant	:	Herbert Smith Freehills

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

Frigger v Kitay [2016] WASC 60
Globaltech Pty Ltd v Pareek [2006] WASC 30(S)

[2016] WASC 60 (S)

LE MIERE J

1. LE MIERE J: The plaintiffs commenced this proceeding against the defendant as liquidator of Computer Accounting & Tax Pty Ltd (in liquidation) without seeking leave of the court to bring the proceedings notwithstanding that the conduct of the defendant which the plaintiffs complain of relates to activities and actions undertaken by him as the liquidator of CAT. The defendant applied for the proceedings to be permanently stayed on the ground that the plaintiffs do not have leave to commence the proceedings and in the alternative for summary judgment or for the statement of claim to be struck out on the grounds that the action or the claims in it are frivolous or vexatious, that the defendant has a good defence on the merits, that the action should be disposed of summarily or that the claims disclose no reasonable cause of action, or are an abuse of process of the court or are embarrassing. I found that the plaintiffs' claims are in some instances an abuse of process and the remaining allegations and claims have no real prospect of success, that leave to commence or continue the proceedings should be refused and the proceedings should be permanently stayed: Frigger v Kitay [2016] WASC 60.

2              The plaintiffs were not present when I handed down my reasons for

judgment. I ordered that the parties file and serve submissions concerning the orders which should be made to give effect to my reasons and the appropriate order for costs.

Orders proposed by defendant

1. The defendant proposes that the following orders be made:

1.	The plaintiffs' application for leave to commence or continue the proceedings (Plaintiffs' Application) be dismissed.
2.	The defendant be granted leave to file, out of time:

(a)	his application dated 30 June 2015 (Defendant's Applications) so far as that application constitutes an application to strike out parts of the plaintiffs' Amended Statement of Claim dated 27 May 2015 (Amended Statement of Claim) pursuant to Order 20 Rule 19(1) of the Rules of the Supreme Court of Western Australia (Rules); and
(b)	the Defendant's Application so far as that application constituted an application for summary judgment against the plaintiffs pursuant to Order 16 Rule 1(1) of the Rules.

[2016] WASC 60 (S)

LE MIERE J

3.          The following paragraphs of the Amended Statement of Claim be struck out on the basis that the matters alleged in those paragraphs constitute an abuse of process:

(a)	paragraph 101(1);
(b)	paragraphs 27 and 101(3);
(c)	paragraphs 28-33 and 101(4);
(d)	paragraphs 34-42 and 101(5);
(e)	paragraphs 75-77 and 101(11);
(f)	paragraphs 78-99 and 101(12); and
(g)	paragraphs 100 and 101(13).

4.          The following paragraphs of the Amended Statement of Claim be struck out on the basis that the matters alleged in those paragraphs have no real prospect of success or are unsustainable:

(a)	paragraphs 26 and 101(2);
(b)	paragraphs 27 and 101(3);
(c)	paragraphs 28-33 and 101(4);
(d)	paragraphs 34-42 and 101(5);
(e)	paragraphs 43-46 and 101(6);
(f)	paragraphs 47-53 and 101(7);
(g)	paragraphs 54-58 and 101(8);
(h)	paragraphs 59-61 and 101(9); and
(i)	paragraphs 62-74 and 101(10).

5.          The plaintiffs pay the defendant's costs of these proceedings including any reserved costs and the costs of each of the Defendant's Application, the Plaintiffs' Application and the plaintiffs' application for an injunction set out in the plaintiffs' Minute of Orders for Injunction dated 22 October 2015:

(a)	up to 10 June 2015, to be taxed and paid on a party/party basis; and
(b)	on and after 11 June 2015, to be taxed and paid on an indemnity basis.

[2016] WASC 60 (S)

LE MIERE J

6.          The proceedings herein be permanently stayed.

Orders to give effect to reasons for judgment

4              The orders proposed by the defendant in pars 1 to 4 above are

appropriate and the plaintiffs have made no submissions to the contrary.
Accordingly, there will be orders in those terms.

5              The defendant moves for an order that the proceedings be

permanently stayed. In correspondence to the court the plaintiffs say that they will file an application for an order lifting the stay of the proceeding. In [59] of my reasons for judgment I found that the proceedings should be permanently stayed. An order in terms of par 6 set out above will be made.

Costs
6	The defendant seeks an order that the plaintiffs pay the defendant's
costs of the proceedings in accordance with proposed order 5 set out above.
7	The plaintiffs say that the defendant was partly successful in his
chamber summons of 30 June 2015 and in the circumstances is only entitled to less than 50% of the costs of the application. The defendant was substantially successful. He should have the costs of the application.
8	The plaintiffs say there is no basis for the defendant having the costs
of the entire proceeding because where proceedings have been stayed the order does not prevent the plaintiffs seeking to lift the stay for a good reason. The proceedings were commenced against the liquidator without leave. I found that the plaintiffs' claims were either an abuse of process or had no reasonable prospect of success. The proceedings are to be permanently stayed. The plaintiffs should pay the defendant's costs of the proceeding.
9	The defendant seeks an order that the plaintiffs pay the defendant's
costs on an indemnity basis from 11 June 2015. The order is sought on the basis of an offer of compromise made in a letter of 10 June 2015 from the defendant's solicitors, Herbert Smith Freehills, to the plaintiffs' solicitors. In that letter the defendant set out in detail the reasons why the amended statement of claim was liable to be struck out and/or why summary judgment ought to be entered for the defendant. The letter invited the plaintiffs to consent to orders dismissing the proceedings and stated that if the plaintiffs did so the defendant would not seek to recover the costs incurred to date. The letter stated that if the plaintiffs failed to

[2016] WASC 60 (S)

LE MIERE J

consent to the dismissal of the proceedings the defendant reserved the right to rely on the letter in seeking an order for indemnity costs. The compromise offered was that the defendant would not seek to recover its costs to the date of the letter. Such a concession can properly be described as a compromise: Globaltech Pty Ltd v Pareek [2006] WASC 30(S). In my opinion the plaintiffs' refusal of the offer was unreasonable.

10            Furthermore, the plaintiffs persisted to pursue a hopeless case and to

raise allegations which amounted to an abuse of process. The plaintiffs should pay the defendant's costs incurred on and after 11 June 2015 on an indemnity basis.