Frigger v Kitay (Liquidator) (No 2)

Case [2020] FCA 721

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

PKT Technologies Pty Ltd (formerly known as Fairlight.au Pty Ltd) v Peter Vogel Instruments Pty Ltd (No 2) [2020] FCAFC 46

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:

  1. 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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Details
AGLC
Frigger v Kitay (Liquidator) (No 2) [2020] FCA 721
Case
[2020] FCA 721
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, Frigger, the plaintiff, filed an application to vary the costs orders previously made against them on 15 April 2020. The defendant, Kitay (Liquidator), opposed the application. The dispute primarily revolves around the plaintiff's unsuccessful attempt to alter the costs orders, which were awarded to the defendant after the plaintiff's failure in the original proceedings. The plaintiff's application seeks a deviation from the general principle that costs are awarded to the successful party, arguing for an adjustment based on the outcome of specific issues within the case.

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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