Appeal against decision permanently staying proceedings - Alleged 'contraventions' by court-appointed liquidator - Alleged deed of charge over 'Mortgaged Property' - Whether deed of charge was fixed or floating - Whether the primary judge erred in finding no attempts were made to enforce the deed of charge during the relevant period of the liquidator's alleged contraventions - Whether any judgment, interest, or costs were 'owing and payable' within the meaning of 'Mortgaged Property' as defined in the alleged deed of charge - Whether the primary judge erred in finding certain pleadings in the primary proceedings were a collateral attack upon other decisions and an abuse of process - Whether error in ordering indemnity costs
Practice and procedure - Application to adduce additional evidence - Turns on own facts
Practice and procedure - Application to amend ground of appeal - Turns on own facts
Legislation:
Nil
Result:
Appeal dismissed Application to adduce evidence allowed in part Application to amend ground of appeal dismissed
Frigger v Professional Services of Australia Pty Ltd [No 2] [2011] WASCA 103
Frigger v Professional Services of Australia Pty Ltd [No 2] [2011] WASCA 103 (S)
Frigger v Professional Services of Australia Pty Ltd [No 2] [2016] WASCA 68
Frigger v Professional Services of Australia…
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.
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Details
AGLC
Frigger v Kitay [No 2] [2017] WASCA 139
Case
[2017] WASCA 139
Decision Date
CaseChat Overview and Summary
The appeal in Frigger v Kitay [No 2] involves the appellants challenging the primary decision to permanently stay proceedings against the liquidator, Mr. Kitay. The appellants argue that Mr. Kitay contravened certain provisions by allegedly entering into a deed of charge over certain property. The dispute hinges on whether the deed of charge was fixed or floating, whether there were attempts to enforce the deed during the relevant period, and whether any judgment, interest, or costs were owing and payable under the deed of charge. Additionally, the appellants contend that the primary judge erred in finding that certain pleadings were a collateral attack and an abuse of process. The Court of Appeal examined the merits of the appeal and the grounds for indemnity costs.
The legal issues the court was required to decide include the interpretation of the deed of charge, the enforcement of the deed, the definition of "owing and payable" in the context of the deed, and the propriety of the primary judge's findings regarding collateral attacks and abuse of process. The court also considered whether the primary judge erred in ordering indemnity costs against the appellants. These issues required a careful analysis of the evidence, legal precedents, and the principles of judicial discretion in awarding costs.
The court found that the appeal was indeed commenced and pursued without a reasonable prospect of success, particularly given the substantial volume of litigation the appellants had been involved in over many years. The court also found that the Calderbank offer made by the respondent prior to the primary decision was relevant to the exercise of discretion in awarding indemnity costs. The court held that the appellants' argument regarding the need to renew the Calderbank offer was not well-founded, as the substance of pre-trial settlement negotiations could be relevant to the exercise of the discretion to award costs of an appeal. The court concluded that the appellants' appeal was frivolous and that the application for indemnity costs should be granted.
The final orders of the court included the dismissal of the appeal and the granting of indemnity costs to the respondent. The court refused leave for the appellants to file additional submissions, as they did not introduce new issues within the scope of the court's directions. The court emphasised that the decision on indemnity costs turned on the specific facts of the case and the principles of judicial discretion in awarding costs.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
JUDGMENT OF THE COURT: On 23 June 2017, this court heard the appellant's appeal against Le Miere J's decision in Frigger v Kitay[99] (primary decision). On 27 July 2017, the court delivered judgment, dismissing the appeal: Frigger v Kitay [No 2][100] (appeal decision).[99] Frigger v Kitay [2016] WASC 60.[100] Frigger v Kitay [No 2] [2017] WASCA 139. Although the appellants were given notice of judgment delivery in the appeal, they did not attend judgment delivery. Counsel for the respondent did, and made an oral application for indemnity costs. The court on that occasion reserved its decision on costs and made directions for the filing of submissions by the appellants, and by the respondent in reply, and for the matter to be determined on the papers. The appellants filed submissions on 17 August 2017, and the respondent filed submissions in reply on 21 August 2017. The court has read the parties' submissions and the cases to which they refer. The appellants also provided further submissions, without leave, on 22 August 2017 on the basis, they said, that the respondent's submissions in reply went beyond the scope of the court's directions and introduced new issues that were not made in their oral submissions. That is not the case, and leave to file the appellants' further submissions of 22 August 2017 should be refused. However, even if those additional submissions were taken into account, they could not affect the proper disposition of the application. The application for indemnity costs should be granted for the reasons which follow. The respondent's application effectively relies on two factors. The first is the contention that the appeal was commenced and pursued in circumstances where, properly advised, the appellants should have known that they had no chance of success. The respondent also refers to the substantial volume of litigation in which the appellants have been involved over many years. Secondly, the respondent relies on a Calderbank offer made by the respondent prior to the primary decision (referred to at [117] ‑ [119] of the appeal decision). The appellants resist the application. They note that they were unrepresented at the hearing of the appeal and say that there is no evidence that they obtained legal advice as to the merits of the appeal. They also contend that a Calderbank offer made before a trial must be renewed or made afresh in order for the offeror to obtain indemnity costs in an appeal. Reference was made to Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2),[101] where Basten JA (McColl & Campbell JJA agreeing) said that the substance of settlement negotiations undertaken at any time on a 'without prejudice except as to costs' basis may be relevant to the exercise of the discretion to award costs of an appeal, that an informal offer[102] made pre‑trial and open for a limited time will rarely carry significant weight, and that to refer to an informal pre‑trial offer as 'generally "relevant" to the exercise of discretion' on appeal is apt to encourage futile applications.[103][101] Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344.[102] Baston JA distinguished between an informal offer made other than pursuant to the Rules of Court and a formal offer made under the Rules of Court.[103] Miwa [23].