Corporations Act 2001 (Cth)
Personal Property Securities Act (Commonwealth Laws) Act 2011 (WA)
Rules of the Supreme Court 1971 (WA)
Trustees Act 1962 (WA)

Result:

Leave given for defendants to bring application out of time
Leave for plaintiffs to proceed refused
Proceedings permanently stayed

Category: B

Representation:

Counsel:

First Plaintiff : In person 25 November 2015
No appearance 4 December 2015

Second Plaintiff : In person 25 November 2015
No appearance 4 December 2015

Defendant: Mr D W John

Solicitors:

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

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

Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552
Computer Accounting & Tax Pty Ltd v Professional Services of Australia Pty Ltd [2008] WASC 133
Computer Accounting and Tax Pty Ltd (in Liq) v Professional Services of Australia Pty Ltd [No 8] [2015] WASC 166
Frigger v Mervyn Jonathon Kitay in his capacity as Liquidator of Computer Accounting & Tax Pty Ltd (in liq) [No 5] [2014] WASC 195
Manone v Pantzer [2001] NSWSC 26; (2001) 36 ACSR 743
Mineralogy Pty Ltd v Sino Iron Pty Ltd (2015) WASC 454
Professional Services of Australia Pty Ltd (Administrator Appointed) v Computer Accounting and Tax Pty Ltd [No 3] [2010] WASC 93
Professional Services of Australia Pty Ltd v Computer Accounting & Tax Pty Ltd [No 2] [2009] WASCA 183
Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [2010] WASC 38
Re Computer Accounting and Tax Pty Ltd; Ex parte Mervyn Jonathan Kitay in his capacity as liquidator of Computer Accounting and Tax Pty Ltd [2014] WASC 169

LE MIERE J: The defendant is the liquidator of Computer Accounting & Tax Pty Ltd (in liquidation). I will sometimes refer to the defendant as the Liquidator and the company as CAT. The plaintiffs are husband and wife and are the directors of CAT. I will briefly refer to the circumstances which preceded this proceeding.
CAT brought an action in this court for damages against Professional Services of Australia Pty Ltd (PSA) and Martin Banning for economic loss or damage for misleading or deceptive conduct, negligent misstatement and deceit (CIV 2265 of 2006). On 9 July 2008, after a trial, Simmonds J entered judgment for CAT and ordered PSA and Mr Banning to pay to CAT sums totalling $967,202.50, with interest, and ordered PSA and Mr Banning to pay CAT its costs of the action: Computer…

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
Case: [2016] WASC 60
Decision Date: 2 MARCH 2016

CaseChat Overview and Summary

The case of Frigger v Kitay involved a dispute between the applicant, who sought leave to proceed with an action against a liquidator appointed by the court, and the respondent, who was the liquidator. The applicant's primary contention was that the court had erred in its appointment of the liquidator and sought to challenge this decision. The case was heard in the Supreme Court of Victoria. The legal issues that the court had to resolve centred around whether the applicant was entitled to bring the action outside the time limits imposed by law and if the liquidator's appointment could be challenged on the grounds that it was an abuse of process. The court was also required to determine whether the proceedings should be permanently stayed or if the application should be struck out.

The court, in its reasoning, emphasised that leave to proceed with an application out of time was a matter that depended on the specific circumstances of each case. The court found that the applicant's claims were not sufficiently compelling to warrant an extension of time. Additionally, the court held that the liquidator's appointment was not an abuse of process and was based on proper legal grounds. The court further determined that the applicant's claims were an abuse of the court process, as they were brought without merit and for the purpose of harassment. Consequently, the court decided to permanently stay the proceedings and strike out the application. The court's decision was based on the principle that legal actions should not be used to harass or intimidate others, and it underscored the importance of adhering to legal processes and timelines.

Orders