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

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

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…

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.

Continue reading Frigger v Kitay

Details

AGLC: Frigger v Kitay [2016] WASC 60 (S)
Case: [2016] WASC 60 (S)
Decision Date: 11 MAY 2016

CaseChat Overview and Summary

In the Federal Court, Frigger sued Kitay for orders to give effect to a judgment, as well as for costs. The dispute concerned the appropriate orders to enforce a prior judgment and the allocation of costs. The court was tasked with determining whether the orders Frigger sought were appropriate and whether the letter offering a compromise was a substantial success for the purposes of a costs order. Additionally, the court needed to decide whether a stay application was warranted and if indemnity costs were justified.

The court examined the nature of the orders Frigger sought, determining if they were appropriate in the context of enforcing the prior judgment. The court found that the orders sought were suitable and were in line with the requirements of the situation. Furthermore, the court considered whether the letter offering a compromise constituted a substantial success for the purposes of a costs order, concluding that it did not. The court also assessed the stay application and found no basis for a stay. Finally, the court deliberated on whether indemnity costs were appropriate, concluding that they were warranted based on the circumstances.

The court ordered that the appropriate orders be made to give effect to the judgment. It ruled that the costs sought by Frigger were appropriate, but the letter offering a compromise did not constitute a substantial success for the purposes of a costs order. The court dismissed the stay application and ordered indemnity costs, finding the circumstances justified such an order.

The court's final orders were that the appropriate orders to give effect to the judgment be made, costs be awarded to Frigger as sought, the stay application be dismissed, and indemnity costs be ordered.

Orders