FEDERAL COURT OF AUSTRALIA
Frigger v Kitay (Liquidator) (No 2) [2020] FCA 721
File number: WAD 549 of 2019 Judge: COLVIN J Date of judgment: 26 May 2020 Catchwords: COSTS - application by plaintiff to vary costs order - where plaintiff unsuccessful in outcome of proceedings - whether adjustment should be made to general approach that costs awarded in favour of successful party - whether appropriate to adjust costs orders by reference to outcome on particular issues - application dismissed Legislation: Bankruptcy Act 1966 (Cth) s 58
Federal Court of Australia Act 1976 (Cth) s 43
Cases cited: Firmware Technologies Inc v Asia Platinum Group Ltd [2016] WASCA 179; (2016) 50 WAR 453
Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 234 CLR 52
Frigger v Kitay (Liquidator) [2020] FCA 482
Kazar (Liquidator) v Kargarian; In the Matter of Frontier Architects Pty Ltd (In Liq) [2011] FCAFC 136; (2011) 197 FCR 113
Kitay v Frigger [No 3] [2020] WASCA 55
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Ruddock v Vadarlis (No 2) [2001] FCA 1865; (2001) 115 FCR 229
Date of hearing: Determined on the papers Date of last submissions: 6 May 2020 (Plaintiff)
21 May 2020 (Defendant)Registry: Western Australia Division: General Division National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Category: Catchwords Number of paragraphs: 22 Counsel for the Plaintiff: The Plaintiff appeared in person Counsel for the Defendant: Mr DA Lenhoff Solicitor for the Defendant: Lenhoff & Hotz ORDERS
WAD 549 of 2019 BETWEEN: ANGELA CECILIA THERESA FRIGGER
Plaintiff
AND: MERVYN JONATHAN KITAY IN HIS CAPACITY AS LIQUIDATOR OF COMPUTER ACCOUNTING & TAX PTY LTD (IN LIQ) (ACN 009 470 491)
Defendant
JUDGE:
COLVIN J
DATE OF ORDER:
26 MAY 2020
THE COURT ORDERS THAT:
1.The plaintiff's application to vary the costs orders made 15 April 2020 be dismissed.
2.The plaintiff do pay the defendant's costs of the application to be assessed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
COLVIN J:
Mrs Frigger commenced proceedings in this Court in which she claimed that certain property under the control of Mr Kitay as liquidator of Computer Accounting & Tax Pty Ltd (in liq) was property of the Frigger Superannuation Fund (Fund). Mrs Frigger and her husband had been the trustees of the Fund but, after their bankruptcy, they had been replaced by a company controlled by them, H & A Frigger Pty Ltd (HAF). Mrs Frigger claimed to be entitled to bring the proceedings in this Court as a beneficiary of the Fund. The same claims had been the subject of long‑running proceedings in the Supreme Court of Western Australia in which Mr and Mrs Frigger advanced personal claims as…
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- AGLC
- Frigger v Kitay (Liquidator) (No 2) [2020] FCA 721
- Case
- [2020] FCA 721
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether the general rule that costs follow the event should be adjusted based on the outcome of particular issues, even when the plaintiff is unsuccessful overall. The court considered the principles of costs in Australian civil litigation, particularly the rule that the unsuccessful party is generally ordered to pay the successful party's costs. The court also evaluated the plaintiff's argument that the costs order should reflect the outcome on specific issues rather than the overall result of the litigation.
The court dismissed the plaintiff's application to vary the costs order, upholding the general principle that costs follow the event. The court found that the general approach to awarding costs, which favours the successful party, should not be adjusted based on the outcome of specific issues. The court concluded that such an adjustment would undermine the fundamental principle that costs follow the event, and it was not appropriate to alter the costs orders in this instance. Consequently, the plaintiff was ordered to pay the defendant's costs of the application, to be assessed if not agreed.
Orders
Orders of the court
1. The plaintiff's application to vary the costs orders made 15 April 2020 be dismissed.
2. The plaintiff do pay the defendant's costs of the application to be assessed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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