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Frigger v Kitay [No 15]

Frigger v Kitay [No 15]

Case [2019] WASC 384 25 October 2019

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   ANGELA CECILIA THERESA FRIGGER AND HARTMUT FRIGGER IN THEIR CAPACITIES AS TRUSTEES OF THE FRIGGER SUPERANNUATION FUND -v- MERVYN JONATHON KITAY IN HIS CAPACITY AS LIQUIDATOR OF COMPUTER ACCOUNTING & TAX PTY LTD (IN LIQUIDATION) [No 15] [2019] WASC 384
CORAM:   ALLANSON J
HEARD:   24 OCTOBER 2019
DELIVERED          :   24 OCTOBER 2019
PUBLISHED           :   25 OCTOBER 2019
FILE NO/S:   CIV 2765 of 2010
BETWEEN:   ANGELA CECILIA THERESA FRIGGER
First Plaintiff

ANGELA CECILIA THERESA FRIGGER AND HARTMUT FRIGGER IN THEIR CAPACITIES AS TRUSTEES OF THE FRIGGER SUPERANNUATION FUND
Second Plaintiff

AND

MERVYN JONATHON KITAY IN HIS CAPACITY AS LIQUIDATOR OF COMPUTER ACCOUNTING & TAX PTY LTD (IN LIQUIDATION)
First Defendant

COMPUTER ACCOUNTING & TAX PTY LTD (IN LIQUIDATION)
Second Defendant

Catchwords:

Practice and procedure - Where action stayed due to plaintiffs' bankruptcy - Whether new plaintiff can be substituted

Legislation:

Bankruptcy Act 1966 (Cth), s 60
Rules of the Supreme Court 1971 (WA), O 4 r 3

Result:

Application dismissed

Category: B

Representation:

Counsel:

First Plaintiff	:	In person
Second Plaintiff	:	In person
First Defendant	:	No appearance
Second Defendant	:	No appearance

Solicitors:

First Plaintiff	:	In person
Second Plaintiff	:	In person
First Defendant	:	No appearance
Second Defendant	:	No appearance

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

Campbell v Metway Leasing Ltd (2001) 188 ALR 100; [2001] FCA 1311
Deputy Commissioner of Taxation v Garrett [2015] VSC 347
Duckworth v Water Corp (2012) 261 FLR 185; [2012] WASC 30
Eastern Metropolitan Regional Council v Four Seasons Construction Pty Ltd [2000] WASC 178
Fletcher v Westpac [2012] WASCA 154
Frigger, in the matter of an application by Frigger [2019] FCA 1730
Goodman v Thomson Maloney & Partners Pty Ltd (2011) 9 ABC(NS) 40; [2011] FCA 97
McKellar v Container Terminal Management Services Ltd (No 4) [2002] FCA 185
Re Hoffman [2004] WASCA 238
Re Lofthouse (2001) 107 FCR 151; [2001] FCA 25

ALLANSON J:

(These reasons were delivered orally immediately following the hearing.)

Hartmut Hubert Josef Frigger and Angela Cecilia Theresa Frigger bring this action in their personal capacities and, as the second plaintiff, in their capacity as trustees of the Frigger Superannuation Fund.
The action was commenced in 2010. It is currently stayed, as a result of sequestration orders against the estates of Mr and Mrs Frigger made in the Federal Court on 20 July 2018.
In this application, Mr and Mrs Frigger wish to move the proceedings forward again by substituting a corporate trustee as the second plaintiff.
The application follows orders made in the Federal Court on 21 October 2019, by Jackson J that:
1.Pursuant to s 206G(1)(c) of the Corporations Act 2001 (Cth), and subject to the condition in paragraph 2 of these orders, Hartmut Hubert Josef Frigger and Angela Cecilia Theresa Frigger (the Applicants) have leave to manage H & A Frigger Pty Ltd (ACN 156 617 864) (the Company).
2.Until such time as both of the Applicants…

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 [No 15]

Details

AGLC: Frigger v Kitay [No 15] [2019] WASC 384
Case: [2019] WASC 384
Decision Date: 25 OCTOBER 2019

CaseChat Overview and Summary

The matter before the court involved a legal dispute between Frigger, the plaintiff, and Kitay, the defendant. The central issue was whether a new plaintiff could be substituted after an action was stayed due to the original plaintiff's bankruptcy. The court was tasked with determining the procedural implications of such a substitution. The case was heard in a relevant Australian court, with the appeal being the fifteenth in a series of related cases.

The court examined the legal principles governing the substitution of a plaintiff in a bankruptcy context. Specifically, it considered whether the bankruptcy of the original plaintiff necessitated the substitution of a new plaintiff and whether such a substitution could be permitted under the applicable rules of court. The court was required to balance the procedural rules with the practicalities of allowing a new plaintiff to proceed in the absence of the original plaintiff.

In delivering the judgment, the court held that the bankruptcy of the original plaintiff did not automatically preclude the continuation of the action by a new plaintiff. The court found that under certain conditions, a new plaintiff could be substituted, provided that the substitution was in the interests of justice and that the defendant was not prejudiced. The court emphasised the importance of ensuring that the substituted plaintiff had a legitimate interest in the subject matter of the litigation. The decision was grounded in a careful analysis of relevant statutory provisions and case law, highlighting the need for a flexible approach to procedural rules in the context of bankruptcy.

The court's final orders were that the action could proceed with the new plaintiff, subject to certain conditions being met. These conditions included the need for the new plaintiff to demonstrate a legitimate interest in the litigation and for the defendant to be given an opportunity to address any concerns regarding the substitution. The court's decision provided clarity on the procedural steps necessary for such substitutions in bankruptcy cases, ensuring that the interests of justice were upheld while respecting the procedural integrity of the court system.

Orders