Frigger v Kitay in his capacity as liquidator of Computer Accounting and Tax Pty Ltd (In Liq) and Computer Accounting and Tax Pty Ltd (In Liq) [No 11]
[2025] WASC 254
•26 JUNE 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: FRIGGER -v- KITAY in his capacity as liquidator of COMPUTER ACCOUNTING AND TAX PTY LTD (In Liq) and COMPUTER ACCOUNTING AND TAX PTY LTD (In Liq) [No 11] [2025] WASC 254
CORAM: MUSIKANTH J
HEARD: ON THE PAPERS
DELIVERED : 26 JUNE 2025
PUBLISHED : 26 JUNE 2025
FILE NO/S: COR 2 of 2010
BETWEEN: ANGELA CECILIA THERESA FRIGGER
HARTMUT HUBERT JOSEF FRIGGER
Applicants
AND
MERVYN JONATHAN KITAY in his capacity as liquidator of COMPUTER ACCOUNTING AND TAX PTY LTD (In Liq) and COMPUTER ACCOUNTING AND TAX PTY LTD (In Liq)
Respondents
Catchwords:
Costs - Application to amend costs order - Where application unsuccessful - Where no adequate reason identified to warrant departure from usual costs order
Legislation:
Rules of the Supreme Court 1971 (WA)
Supreme Court Act 1935 (WA)
Result:
Applicants ordered to pay the costs of both respondents
Category: B
Representation:
Counsel:
| Applicants | : | No appearance |
| Respondents | : | No appearance |
Solicitors:
| Applicants | : | In person |
| Respondents | : | Herbert Smith Freehills |
Case(s) referred to in decision(s):
Barjeba Pty Ltd v Bogg [2023] WASC 232 (S)
Frigger v Kitay in his capacity as liquidator of Computer Accounting and Tax Pty Ltd (in liq) and Computer Accounting and Tax Pty Ltd (in liq) [No 10] [2025] WASC 214
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Strezelecki Holdings Pty Ltd v Jorgensen [2019] 54 WAR 388; [2019] WASCA 96
MUSIKANTH J:
On 26 February 2025, Mrs Angela Cecilia Theresa Frigger and Mr Hartmut Hubert Josef Frigger (Friggers) filed an application seeking that the indemnity costs order made against them by Master Sanderson in June 2014 be varied.
On 30 May 2025, the Court dismissed the application.
The Court's reasons for doing so are reflected in Frigger v Kitay in his capacity as liquidator of Computer Accounting and Tax Pty Ltd (in liq) and Computer Accounting and Tax Pty Ltd (in liq) [No 10] [2025] WASC 214(Reasons).
The parties were then directed to file and serve a joint memorandum of consent orders or, if they could not agree, competing minutes of proposed orders as to costs with submissions.
The parties were unable to agree.
The respondents, Mervyn Jonathan Kitay in his capacity as liquidator of Computer Accounting & Tax Pty Ltd (in liquidation) (Mr Kitay) and Computer Accounting & Tax Pty Ltd (CAT), submit that the Friggers should pay the costs of and incidental to the application to be taxed if not agreed.
However, the Friggers seek an order that each party bear their own costs or, alternatively, if costs are to be awarded to Mr Kitay and CAT, such costs should be substantially reduced 'to reflect the limited success achieved'.[1]
[1] Friggers' written submissions dated 17 June 2025, [22(b)].
It is trite that the general rule, when the Court exercises its discretion under s 37 of the Supreme Court Act 1935 (WA) and O 66 r 1 of the Rules of the Supreme Court 1971 (WA) (Rules), is that a successful party recover its costs.
It is therefore incumbent on an unsuccessful party to satisfy the Court that there are good reasons why it should not pay the successful party's costs.[2]
[2] Barjeba Pty Ltd v Bogg [2023] WASC 232 (S) [9].
What constitutes 'success' in proceedings is to be determined by the reality of the circumstances involved in the case.[3]
[3] Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72; Strezelecki Holdings Pty Ltd v Jorgensen[2019] 54 WAR 388; [2019] WASCA 96 [50].
In circumstances where the application was dismissed, on each of the bases relied upon by the Friggers, Mr Kitay and CAT have on any view been successful.
However, the Friggers contend as follows:
1.The application raised a 'discrete and arguable question' concerning the accuracy of the indemnity costs order.[4]
2.Mr Kitay and CAT had, in opposing the application, relied on 'a suite of alternative grounds and defences', which were not adjudicated by the Court.[5]
3.Accordingly, it cannot be said that Mr Kitay and CAT were wholly successful, and the appropriate order is that each party bear their own costs.[6]
4.Alternatively, any costs order should be limited to reflect 'only the issues upon which [Mr Kitay and CAT] succeeded (namely, delay and discretionary refusal)'.[7]
[4] Friggers' written submissions dated 17 June 2025, [6].
[5] Friggers' written submissions dated 17 June 2025, [6].
[6] Friggers' written submissions dated 17 June 2025, [7], [10].
[7] Friggers' written submissions dated 17 June 2025, [8].
Having carefully considered the Friggers' fulsome written submissions, I am of the view that no adequate reason has been advanced to warrant a departure from the usual costs order.
I accept, as the Friggers correctly contend, that an ultimately successful party:
(a)is more likely not to receive the benefit of a costs order in circumstances where it improperly or unreasonably raised issues (and, accordingly, has unnecessarily increased costs);[8] and
(b)ought not to be rewarded for unreasonable conduct in pursuing ultimately unsuccessful issues.[9]
[8] Friggers' written submissions dated 17 June 2025, [3].
[9] Friggers' written submissions dated 17 June 2025, [4].
However, the conduct of Mr Kitay and CAT can hardly be characterised in any of the ways contemplated by the above emphasised words.
Mr Kitay and CAT simply elected to advance, in answer to the application, certain legal arguments which the Court ultimately considered unnecessary to address.[10]
[10] Eg. Reasons, [135] - [136].
Nor do I accept what appears to be the premise of the Friggers' alternative argument that Mr Kitay and CAT were successful on only some 'issues'.
Properly understood, there was only one 'issue' between the parties: whether the indemnity costs order ought to be varied.[11]
[11] Reasons, [17].
That issue was to be viewed (and was considered by the Court) through the prism of four potential sources of power identified by the Friggers:
(a)O 2 r 1 and r 2 of the Rules;
(b)O 21 r 10 of the Rules;
(c)O 43 r 15 of the Rules; and
(d)the Court's inherent jurisdiction.
The Friggers were unsuccessful in achieving an affirmative outcome in any of those respects.
As emerges from the Reasons, there was in any event no realistic scope for the application to succeed given the Friggers' inordinate and inadequately explained delay in bringing the application.
For the foregoing reasons, I make the following orders:
1.Mr and Mrs Frigger pay the costs of Mervyn Jonathan Kitay (in his capacity as liquidator of Computer Accounting and Tax Pty Ltd (in liq)) and Computer Accounting and Tax Pty Ltd (in liq) of and incidental to the application, to be taxed if not agreed.
2.The application otherwise be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
IL
Associate to the Hon Justice Musikanth
26 JUNE 2025
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