Frigger v Kitay [No 2] - [2017] WASCA 139

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: FRIGGER -v- KITAY [No 2] [2017] WASCA 139

CORAM: MARTIN CJ
MURPHY JA
BEECH JA

HEARD: 23 JUNE 2017

DELIVERED : 27 JULY 2017

FILE NO/S: CACV 45 of 2016

BETWEEN: HARTMUT FRIGGER
ANGELA FRIGGER
Appellants
AND
MERVYN JONATHAN KITAY
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :LE MIERE J
Citation  :FRIGGER -v- KITAY [2016] WASC 60
File No  :CIV 1606 of 2015

Catchwords:

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

Category: B

Representation:

Counsel:

Appellants: In person
Respondent: Mr D W John

Solicitors:

Appellants: In person
Respondent: Herbert Smith Freehills

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

Associated Alloys Pty Ltd v ACN 001 452 106 Pty Ltd [2000] HCA 25; (2000) 202 CLR 588
Birla Nifty Pty Ltd v International Mining Industry Underwriters Ltd [2014] WASCA 180 (S)
Bowen Buchbinder Vilensky (a firm) [No 2] [2011] WADC 67
Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 8] [2015] WASC 166
Computer Accounting and Tax Pty Ltd v Professional Services of Australia Pty Ltd [2008] WASC 133
Computer Accounting and Tax Pty Ltd v Professional Services of Australia Pty Ltd [2008] WASC 133 (S)
Computer Accounting and Tax Pty Ltd v Professional Services of Australia Pty Ltd [2010] HCA Trans 139
Computer Accounting and Tax Pty Ltd v Professional Services of Australia Pty Ltd [No 3] [2010] WASC 2
CPB Contractors Pty Ltd v JKC Australia LNG Pty Ltd [No 2] [2017] WASCA 123
Frigger v Kitay [2016] WASC 60
Frigger v Kitay [2016] WASC 60 (S)
Frigger v Lean [No 2] [2016] WASCA 212
Frigger v Professional Services of Australia Pty Ltd [2015] WASCA 167
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 Pty Ltd [No 3] [2012] WASCA 38
Frigger v Professional Services of Australia Pty Ltd [No 3] [2014] WASCA 69
Mamone v Pantzer [2001] NSWSC 26
Professional Services of Australia Pty Ltd (Administrator Appointed) v Computer Accounting and Tax Pty Ltd [No 3] [2010] WASC 93
Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [2008] WASCA 222
Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [2010] WASC 38
Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 2] [2009] WASCA 183
Rambal v Griffin Coal Mining Co Pty Ltd [2015] WASCA 197; (2015) 48 WAR 540
Re Computer Accounting and Tax Pty Ltd; Ex parte Mervyn Jonathan Kitay in his capacity as liquidator of Computer Accounting and Tax Pty Ltd (in liq) [No 4] [2014] WASC 169
Saunders v Public Trustee [2015] WASCA 203
Tarlinton v Hall (1981) 38 ACTR 1

TABLE OF CONTENTS

Introduction
The primary proceedings

The primary judge's findings

The background to Mr and Mrs Frigger's allegations

The original litigation and the original appeal
The alleged deed of charge and the freezing orders application against Mr and Mrs Frigger
The appointment of Mr Kitay as provisional liquidator of CAT and the winding‑up of CAT in insolvency, and the cessation of the freezing orders
The costs of the Original Proceedings
Mr and Mrs Frigger's proceedings against Mr Kitay in CIV 2765 of 2010
The primary proceedings against Mr Kitay the subject of this appeal

Procedural matters in the appeal

Applications to adduce additional evidence
Supplementary submissions

Grounds of appeal

Ground 1
Ground 2
Ground 3
Ground 4
Ground 5

The proceedings referred to in the particulars to appeal ground 1

LPA 36/2008
CIV 1216 of 2009
Magistrates Court proceedings 7493 of 2009

The alleged Charge - provisions and preliminary observations

The Mortgaged Property
Operative clauses
The Moneys Secured

Mr and Mrs Frigger's supplementary submissions

Disposition

Ground 1
Ground 2
Ground 3
Ground 4
Ground 5

Conclusion

REASONS OF THE COURT:

Introduction

This is an appeal against the decision of Le Miere J in Frigger v Kitay,[1] and against his Honour's consequential costs decision in that matter.[2]
[1] Frigger v Kitay [2016] WASC 60 (primary decision).
[2] Frigger v Kitay [2016] WASC 60 (S) (costs decision).
The primary proceedings were commenced by the appellants (Mr and Mrs Frigger) against the respondent (Mr Kitay or the liquidator) in April 2015. Mr Kitay is the court‑appointed liquidator of Computer Accounting and Tax Pty Ltd (CAT), having been appointed when CAT was wound‑up in insolvency on 6 May 2010.[3] He had been appointed provisional liquidator prior to then, on 21 January 2010.[4]
[3] Professional Services of Australia Pty Ltd (Administrator Appointed) v Computer Accounting and Tax Pty Ltd [No 3] [2010] WASC 93.
[4] Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [2010] WASC 38.
The primary proceedings were, relevantly, constituted by an amended statement of claim dated 4 June 2015 (statement of claim). The statement of claim was a lengthy document containing a wide and diffuse range of allegations expressed in general and vague terms in relation to certain alleged misconduct by the liquidator over the period from around February 2010 to around July 2014.
Mr and Mrs Frigger required leave to sue the liquidator, the relevant principles of which requirement were set out by the primary judge as follows:[5]
The applicable principles and their public purpose which underlie the requirement that a prospective litigant must obtain leave to sue a court appointed liquidator can be stated in the following propositions.
(i)The Court will protect its officer from spurious or vexatious litigation: Re Siromath Pty Ltd (No 3) (1991) 25 NSWLR 25 at 29; Re Magic Aust Pty Ltd(in liq) (1992) 7 ACSR 742, at 746; 10 ACLC 929 at 932; and
(ii)The Court will protect the integrity of the winding up process to ensure no wrongful interference with that process: Sydlow Pty Ltd (in liq) v T G Kotselas Pty Ltd & Ors (1996) 65 FCR 234 at 241; 144 ALR 159 at 165-166.
To those ends, a prospective litigant must, to obtain the necessary leave, demonstrate its claim has sufficient merit. What is sufficient is affected by the circumstances and timing in which that leave is sought. Moreover courts recognise that liquidators, like administrators, often have to make decisions on the run; to expect perfection in those circumstances is unrealistic. In Sydlow, above, Tamberlin J stated:
'The discretionary power of the court to grant leave must be exercised having regard to all the circumstances of the particular cases and bearing in mind the need to protect the integrity of its process. It does not necessarily follow that, in order to obtain leave, a prima facie case must be demonstrated. There is no specific threshold appropriate in all cases, however there must be more than mere assertion. The court's discretion may be exercised on many grounds, including, but not limited to, the sufficiency of the evidence adduced, as to the prospects of success of the action on the application for leave.' [4].
[5] Primary decision [15], quoting Santow J in Mamone v Pantzer [2001] NSWSC 26.
In the primary decision, the primary judge refused Mr and Mrs Frigger's application for leave to proceed against the liquidator, and ordered that the proceedings be permanently stayed. His Honour found, in effect, that certain claims involved an abuse of process, that in other claims, Mr and Mrs Frigger had not adduced sufficient evidence to justify the grant of leave and the claims had no real prospects of success, and that some claims involved both an abuse of process as well as having no real prospect of success.[6]
[6] Primary decision [58] - [59].
It is those findings which Mr and Mrs Frigger challenge in their grounds of appeal. As noted earlier, they also challenge the adverse costs decision against them.
For the reasons which follow the appeal should be dismissed.

The primary proceedings

It is convenient, at the outset, to indicate the nature of the claims asserted by Mr and Mrs Frigger against Mr Kitay in the primary proceedings.
Mr and Mrs Frigger, in their statement of claim, alleged what they described as 12 'contraventions' by Mr Kitay, although for the purposes of this appeal, only alleged contraventions 1 ‑ 9 and 11 are relevant.[7] The essence of the pleaded contraventions may be summarised as follows.
[7] See [35] below.

Alleged Contravention	Date/Period	Claim
1	17 February 2010	Mr Kitay allegedly swore a false affidavit as to CAT's liabilities whilst it was in provisional liquidation
2	May - October 2010	Mr Kitay 'combined' with others allegedly assisting in the liquidation of CAT to conduct an informal examination of Mrs Frigger in relation to a Freezing Order
3	August - October 2010	Mr Kitay applied under the Freedom of Information Act 1982 (Cth) to obtain documents from the Australian Taxation Office (freedom of information request) in relation to the Frigger Superannuation Fund in connection with matters connected with a Freezing Order application against Mr and Mrs Frigger
4	August - September 2010	Mr Kitay sought advice from his solicitors, and his solicitors allegedly gave false advice
5	June 2010	Mr Kitay refused to give written consent to Mrs Frigger's request for 'Legal and Enforcement Costs' under the Judgment of Simmonds J on 9 July 2008 in CIV 2265/2006 to 'be brought back before the trial Judge for orders and assessment'
6	June 2010 and October 2011	Mr Kitay refused to allow Mrs Frigger 'to represent CAT' at the taxation of bills of costs of CAT's former solicitors (BBV) and refused 'to request BBV to file its bills of March and April 2007 and all of counsel bills'
7	June 2010	Mr Kitay did not consent to Mrs Frigger's request for an assignment to her of CAT's claim against other former solicitors (Vogt)
8	5 January 2012	Mr Kitay swore a false affidavit in connection with proposed litigation funding
9	January 2010 - July 2011	Mr Kitay refused Mrs Frigger's requests that the costs of a solicitor (Forbes) be reviewed, and that a further legal firm be instructed for the purpose of the review
11	April 2013 - July 2014	• CAT purchased and became the registered proprietor in 2003 of a property in Armadale (Armadale property) on which was operated a BP station; • whilst CAT remained the registered proprietor of the Armadale property, the property was 'transferred to the Frigger Super Fund as a personal … contribution on behalf of [Mr and Mrs Frigger]'; • Mr Kitay, as liquidator of CAT, gave 'fabricated accounting figures' to a licensed valuer, refused to allow Mr and Mrs Frigger to sell the Armadale property and business, and planned to terminate the lease of the property on 30 June 2015 'thereby denying [Mr and Mrs Frigger] the internally generated goodwill of $1,300,000'.

Mr and Mrs Frigger alleged that the pleaded conduct involved breaches of statutory and fiduciary duties 'owed to CAT and to [Mr and Mrs Frigger] as secured creditors of CAT' (original emphasis). Amongst other things, Mr and Mrs Frigger made allegations to the following effect:
(a)in accepting the court appointment as liquidator, Mr Kitay 'wrested control of CAT' from Mr and Mrs Frigger;
(b)Mr Kitay accepted the appointment for an improper purpose, namely to earn fees;
(c)Mr Kitay sought the financial records under the Freedom of Information Act in order to gain, improperly, an advantage for himself;
(d)Mr Kitay obtained legal advice to obtain an improper advantage 'for himself' as liquidator in his counterclaim in proceedings brought by Mr and Mrs Frigger in CIV 2765 of 2010;[8]
(e)Mr Kitay did not consent to Mrs Frigger's various requests to him in the course of the liquidation and provisional liquidation regarding costs for the improper purposes of prolonging the liquidation and earning fees, and gaining an advantage for himself and others, including judgment creditors of CAT, and to cause 'detriment to CAT';
(f)Mr Kitay gave false evidence for the purpose of 'falsely stating that CAT was insolvent and in order to obtain a winding up order [sic]'; and
(g)Mr Kitay 'fabricated' certain evidence and records in order to gain an advantage for himself and others.
[8] These are the proceedings referred to in [21] of these reasons.
An aspect of Mr and Mrs Frigger's pleading was the allegation that they were secured creditors over 'certain assets' of CAT pursuant to a 'fixed charge' between CAT and Mr and Mrs Frigger dated 10 September 2009. The alleged charge (Charge) was pleaded in relation to the fifth, sixth and seventh alleged contraventions. Although not pleaded in relation to the ninth contravention, Mr and Mrs Frigger also contended that it was relevant to that alleged contravention.[9] Mr and Mrs Frigger pleaded that CAT's right to deal with the 'Legal and Enforcement costs' under a judgment in its favour given by Simmonds J on 9 July 2008 (and referred to in [15(2)] below as the 'Original Judgment') ceased when CAT was put into 'members voluntary liquidation pursuant to the Fixed Charge clause 9'.

The primary judge's findings

[9] Appeal ts 30.

The primary judge found, relevantly for present purposes, in effect, that:
(a)the alleged second, third, fourth and eleventh contraventions were an abuse of process and, in any event, otherwise had no real prospects of success; and
(b)the alleged first, fifth, sixth, seventh, eighth and ninth contraventions had no real prospects of success.

The background to Mr and Mrs Frigger's allegations

The primary proceedings against Mr Kitay were one emanation of a multiplicity of proceedings and claims brought by Mr and Mrs Frigger against a variety of persons having a connection with the winding‑up of CAT and the events leading up to the winding‑up of CAT. A number of the events in question go back to 2003, and there has been a substantial torrent of litigation in the General Division, and a number of appeals to this court, for over a decade. Summaries of aspects of the litigation may be found in, for example, Frigger v Professional Services of Australia Pty Ltd [No 2][10] and Frigger v Lean [No 2].[11]
[10] Frigger v Professional Services of Australia Pty Ltd [No 2] [2016] WASCA 68 [1] ‑ [21].
[11] Frigger v Lean [No 2] [2016] WASCA 212 [3] ‑ [33].
In general terms, the substance of what has occurred is as follows:
(a)CAT, a company owned and controlled by Mr and Mrs Frigger, commenced proceedings against certain defendants for alleged misleading or deceptive conduct. The proceedings came to the Supreme Court General Division via the Magistrates Court and the District Court. CAT was successful in the proceedings at first instance, and obtained a judgment in the sum of approximately $1.1 million in damages and interest, plus orders for costs.
(b)The defendants to that action appealed against the judgment.
(c)Prior to the hearing of the appeal a judge of the Court of Appeal dismissed an application for a stay of the judgment in reliance upon an affidavit in which Mrs Frigger deposed that CAT had sufficient assets to repay the judgment sum in the event that the appeal was allowed.[12]
(d)After the application for a stay was dismissed the defendants (or one or other of them) paid the judgment sum to CAT, and Mr and Mrs Frigger then caused CAT to pay that sum to themselves.
(e)On the hearing of the appeal, CAT was successful as regards quantum, and the court made restorative orders to the effect that CAT repay the defendants sums totalling approximately $800,000.
(f)After the original judgment sum had been transferred out of CAT to Mr and Mrs Frigger, CAT did not have the funds to repay the sum of approximately $800,000.
(g)CAT was wound‑up in insolvency for the failure to repay the sum of approximately $800,000 in accordance with the restorative orders made by the Court of Appeal.
(h)The Court of Appeal also made costs orders against CAT in the appeal, and set aside the trial judge's costs orders and remitted the question of costs of the primary proceedings to the trial judge.

The original litigation and the original appeal

[12] Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [2008] WASCA 222 [24], [27].

More particularly, for present purposes, the following matters may be noted:[13]
[13] See Frigger v Professional Services of Australia Pty Ltd [No 2] [6(1) - (12)].
1.In proceedings CIV 2265 of 2006 (Original Proceedings), CAT sued Professional Services of Australia Pty Ltd (PSA) and its director, Mr Martin Banning, for alleged misleading or deceptive conduct in relation to the sale of a service station to CAT in 2003. CAT was a corporate vehicle used by Mr and Mrs Frigger for investment purposes.
2.The Original Proceedings were heard by Simmonds J, who gave judgment in the sum of approximately $1.1 million in damages and interest for CAT on 9 July 2008 (Original Judgment).[14]
[14] Computer Accounting and Tax Pty Ltd v Professional Services of Australia Pty Ltd [2008] WASC 133.
3.On 6 May 2009, Simmonds J made costs orders in the Original Proceedings (Original Costs Orders).[15]
[15] Computer Accounting and Tax Pty Ltd v Professional Services of Australia Pty Ltd [2008] WASC 133 (S).
4.PSA and Mr Banning appealed the Original Judgment on the question of damages (Original Appeal). The appeal was heard on 22 July 2009.
5.By the time of the hearing of the Original Appeal, CAT had already been paid, in June 2009, the judgment sum. In this regard, CAT had successfully resisted an application for a stay of Simmonds J's orders pending the determination of the Original Appeal, relying upon the affidavit of Mrs Frigger to which reference has already been made.
6.Mr and Mrs Frigger caused CAT to pay to them the judgment sum prior to the hearing of the appeal.
7.On 23 October 2009, the Court of Appeal delivered reasons allowing the Original Appeal and reducing substantially the quantum of damages to which CAT was entitled (Original Appeal Judgment).[16] An advance copy of the Original Appeal Judgment was made available to the parties' solicitors in accordance with Practice Direction 8.1 on 22 October 2009.
[16] Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 2] [2009] WASCA 183.
8.There was a dispute over final orders which was resolved by the Court of Appeal in a further judgment, delivered on 7 December 2009 (Final Orders Judgment).[17]
[17] Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 2] [2009] WASCA 183 (S).
9.The Final Orders Judgment dealt with, amongst other things:
(a)the amount paid to CAT pursuant to the Original Judgment in excess of the amount which the Court of Appeal found to be a proper award for damages in the Original Appeal Judgment (Overpayment Sum);
(b)the costs of the appeal; and
(c)the Original Costs Orders.
10.Pursuant to the Final Orders Judgment, the court ordered CAT to pay 80% of the appellants' taxed costs of the appeal. The court also set aside the Original Costs Orders, and remitted the question of costs to Simmonds J for reconsideration in light of the Court of Appeal's reasons (Costs Remitter Order).
11.In relation to the Overpayment Sum, the Court of Appeal ordered (Overpayment Orders):
4.The respondent [CAT] do pay to the appellants [PSA and Mr Banning's executor] the sum of $716,188.45 plus interest at 6 per cent per annum from 2 June 2009 until 23 October 2009 in the sum of $16,835.33 plus further interest at 6 per cent per annum from 23 October 2009 being $117.73 per day to the date of payment.
5.The respondent [CAT] do pay to the appellants [PSA and Mr Banning's executor] the sum of $59,634.27 plus interest at 6 per cent per annum from 5 June 2009 until 23 October 2009 in the sum of $1,372.41 plus further interest at 6 per cent per annum from 23 October 2009, being $9.80 per day to the date of payment.
12.An application by CAT to the High Court for special leave to appeal the Original Appeal Judgment was dismissed.[18]

The alleged deed of charge and the freezing orders application against Mr and Mrs Frigger

[18] Computer Accounting and Tax Pty Ltd v Professional Services of Australia Pty Ltd [2010] HCA Trans 139.

In summary, the following events occurred:[19]
[19] See Frigger v Professional Services of Australia Pty Ltd [No 3] [2014] WASCA 69 [14] ‑ [19], [30].
1.On 23 October 2009 (the day of delivery of the Original Appeal Judgment and the day after an advance copy had been given to the parties' solicitors), Mr and Mrs Frigger registered the Charge, allegedly created on 10 September 2009, over specified property of CAT to secure loans allegedly made by Mr and Mrs Frigger to CAT in the sum of $2 million.
2.On 13 November 2009, Mr and Mrs Frigger arranged for the lodgement of two absolute caveats over parcels of real estate registered in the name of CAT, including the Armadale property, which referred to the properties being held on trust for the Frigger Superannuation Fund on the basis that the properties were transferred from CAT, to CAT as trustee, for a consideration of $1.
3.Having found out about the registration of the Charge and lodgement of the caveats referred to above, PSA (a defendant in the Original Proceedings) brought an urgent application for freezing orders to prevent Mr and Mrs Frigger from taking steps to enforce payment to them of money allegedly due under the Charge, or to diminish the value of CAT's real estate, and for ancillary orders requiring CAT and Mr and Mrs Frigger to depose as to the assets and liabilities of CAT and what had become of the money paid to CAT in satisfaction of the Original Judgment. The application was heard by Simmonds J on 10 December 2009.
4.On 12 December 2009, Mr and Mrs Frigger signed a resolution which provided that CAT be put into a members' voluntary winding‑up.
5.Freezing orders were made against Mr and Mrs Frigger by Simmonds J,[20] and the precise form of the orders was settled on 16 December 2009. They included, relevantly, the following terms:
[20] See Computer Accounting and Tax Pty Ltd v Professional Services of Australia Pty Ltd[No 3] [2010] WASC 2 (freezing orders).
[Mr and Mrs Frigger] must not take any steps to enforce the payment to them of any amount claimed to be owing to them by [CAT] pursuant to a deed of charge dated 10 September 2009 or otherwise;
[Mr and Mrs Frigger] must not take any steps to replace [CAT] as trustee of any trust in which [CAT] is presently the trustee; and
[Mr and Mrs Frigger] must not take any steps to deal with or diminish the value of any of the following assets:-
(a)the properties known as 140 Edward Street and 46 Pier Street in Perth, and, [the Armadale property] … or, if any have been sold, the net proceeds of the sale;
(b)any money in the trust account of any solicitor acting for [CAT] but in particular Chris Stokes & Associates.
6.The freezing orders were extended from time to time up to 14 July 2010, but (as noted below) their necessity, from PSA's point of view, as a restraint on the disposition of CAT's assets effectively ceased after the appointment to CAT of a court‑appointed liquidator (ie, Mr Kitay).
7.Ancillary orders were also made against Mr and Mrs Frigger in relation to the disclosure of assets and information.

The appointment of Mr Kitay as provisional liquidator of CAT and the winding‑up of CAT in insolvency, and the cessation of the freezing orders

In summary:
1.On 21 January 2010, Simmonds J effectively replaced the liquidator appointed by Mr and Mrs Frigger for the members' voluntary winding‑up of CAT, and appointed, instead, Mr Kitay as provisional liquidator to CAT.[21] His Honour also dismissed Mrs Frigger's subsequent application to set aside the appointment.[22]
2.On 6 May 2010, Master Sanderson ordered that CAT be wound‑up in insolvency following non-compliance with statutory demands and no application having been made to set them aside.[23] CAT never paid the amounts ordered to be paid to PSA and Mr Banning's executor under the Overpayment Orders.[24]
3.In his judgment in relation to the winding-up of CAT in insolvency, Master Sanderson said:[25]
[T]he investigations by Mr Kitay indicate [CAT] is insolvent. No elaborate examination of Mr Kitay's evidence is necessary. [CAT] is indebted to [PSA and Mr Banning's executor] in an amount of over $800,000. It does not have the capacity to make that payment. It is therefore not able to meet its debts as and when they fall due and it is prima facie insolvent.
In opposition to this application Mrs Frigger filed two affidavits, the first sworn 3 March 2010 and the second sworn 27 April 2010. In both affidavits Mrs Frigger pointedly fails to address Mr Kitay's claim she has refused to produce the books and records of [CAT] and has failed to complete a report as to activities. That does not go to the question of whether or not [CAT] is insolvent. It does, however, raise questions as to Mrs Frigger's bona fides.
Given the position of [CAT] the only way that Mrs Frigger's evidence could establish [CAT] is solvent would be for her and her husband to personally undertake they would meet the debts of [CAT] as and when they fell due. No such undertaking is found in either affidavit. Mrs Frigger does maintain she and her husband have sufficient assets to meet the debts of [CAT], but they do not undertake to make payment of those debts.
4.There was no appeal from Master Sanderson's decision to wind-up CAT in insolvency.[26]
5.At a hearing before Simmonds J on 7 July 2010 in relation to the freezing orders, counsel for PSA indicated that, given the appointment of Mr Kitay as liquidator of CAT, PSA was content for the freezing orders against Mr and Mrs Frigger to be discharged with effect from 4.00 pm on 14 July 2010.[27]

The costs of the Original Proceedings

[21] Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [2010] WASC 38 [95].

[22] Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 2] [2010] WASC 113.

[23] Professional Services of Australia Pty Ltd (Administrator Appointed) v Computer Accounting and Tax Pty Ltd [No 3] [2010] WASC 93.

[24] Frigger v Professional Services of Australia Pty Ltd [No 3] [2014] WASCA 69 [90], [91].

[25] Professional Services of Australia Pty Ltd (Administrator Appointed) v Computer Accounting and Tax Pty Ltd [No 3] [2010] WASC 93 [17] - [19].

[26] There was an appeal by Mr and Mrs Frigger against Master Sanderson's order that Mr and Mrs Frigger pay costs in that matter. The appeal was successful, but only to the extent that the Court of Appeal found that the costs should have been ordered to have been taxed, rather than fixed: Frigger v Professional Services of Australia Pty Ltd [No 2] [2011] WASCA 103. Mr and Mrs Frigger were ordered to pay the costs of that appeal on the basis that their victory in the appeal was only 'pyrrhic'. See Frigger v Professional Services of Australia Pty Ltd [No 2] [2011] WASCA 103 (S) [9]. A subsequent application by Mr and Mrs Frigger for an order 'recalling' those orders was dismissed in Frigger v Professional Services of Australia Pty Ltd [No 3] [2012] WASCA 38.

[27] Frigger v Professional Services of Australia Pty Ltd [No 3] [2014] WASCA 69 [30(5)].

Pursuant to the Costs Remitter Order, Simmonds J made substituted costs orders in the Original Proceedings and other costs orders: Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 8].[28] They included orders that the defendants to the Original Proceedings pay 50% of CAT's costs of the action, and that CAT pay various other costs to the defendants of the Original Proceedings.
[28] Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 8] [2015] WASC 166.
An application for leave to appeal by Mr and Mrs Frigger against this decision was dismissed.[29]
[29] Frigger v Professional Services of Australia Pty Ltd [2015] WASCA 167.
By 9 October 2015, the substituted costs orders had not been taxed. In reference to those costs orders, Simmonds J said:[30]
In that decision I indicated the costs orders I would make following from the setting aside by the Court of Appeal of my costs orders of 6 May 2009: see for that setting aside PSA [No 2] WASCA (S) [21]. The largest part of my costs orders 6 May 2009 was for the costs of the trial and certain special costs orders in favour of CAT. The costs orders for the trial following CAT [No 8] WASC reduced the costs awarded to CAT from 90% of their costs to 50%. None of the special costs orders were reinstated, with two exceptions, which meant the most of the special costs I ordered were not reinstated: see CAT [No 8] WASC [35], [71], [76]. None of those costs have yet been taxed.
I consider that on the amount in respect of the Judgment sum that CAT must repay as I previously indicated, and the reductions in the costs for CAT the result of my decision in CAT [No 8] WASC, it is most likely there is a significant net amount owing by CAT to the defendants in respect of the legal and enforcement costs of CIV 2265 of 2006. (emphasis added)

Mr and Mrs Frigger's proceedings against Mr Kitay in CIV 2765 of 2010

[30] Computer Accounting and Tax Pty Ltd v Professional Services of Australia Pty Ltd [No 10] [2015] WASC 380 [90] - [91].

In 2010, in CIV 2765 of 2010, Mr and Mrs Frigger commenced proceedings against Mr Kitay in his capacity as liquidator of CAT. Those proceedings had generated, prior to the primary court's decision in the proceedings subject to this appeal, at least nine interlocutory judgments.[31]

The primary proceedings against Mr Kitay the subject of this appeal

[31] Frigger v Mervyn Jonathon Kitay in his capacity as liquidator of Computer Accounting & Tax Pty Ltd (in liquidation) [2013] WASC 229; Frigger v Mervyn Jonathon Kitay in his capacity as liquidator of Computer Accounting & Tax Pty Ltd (in liquidation) [2013] WASC 229 (S); Frigger v Mervyn Jonathon Kitay in his capacity as liquidator of Computer Accounting & Tax Pty Ltd (in liquidation) [No 2] [2013] WASC 394; Frigger v Mervyn Jonathon Kitay in his capacity as liquidator of Computer Accounting & Tax Pty Ltd (in liquidation) [No 3] [2014] WASC 24; Frigger v Mervyn Jonathon Kitay in his capacity as liquidator of Computer Accounting & Tax Pty Ltd (in liquidation) [No 4] [2014] WASC 165; Frigger v Mervyn Jonathon Kitay in his capacity as liquidator of Computer Accounting & Tax Pty Ltd (in liquidation) [No 5] [2014] WASC 195; Frigger v Mervyn Jonathon Kitay in his capacity as liquidator of Computer Accounting & Tax Pty Ltd (in liquidation) [No 6] [2014] WASC 384; Frigger v Mervyn Jonathon Kitay in his capacity as liquidator of Computer Accounting & Tax Pty Ltd (in liquidation) [No 7] [2014] WASC 441; and Frigger v Mervyn Jonathon Kitay in his capacity as liquidator of Computer Accounting & Tax Pty Ltd (in liquidation) [No 8] [2015] WASC 104.

In April 2015, Mr and Mrs Frigger commenced the primary proceedings against Mr Kitay, the permanent stay of which is the subject of this appeal.[32]
[32] Primary decision [5].

Procedural matters in the appeal

Applications to adduce additional evidence

Mr and Mrs Frigger applied, by application dated 26 April 2017, to adduce additional evidence in the appeal. The evidence sought to be adduced was an affidavit of Mrs Frigger sworn 26 April 2017. The affidavit contains a number of vague and argumentative assertions. It also annexes what purports to be:
(a)certain correspondence between BBV and Mr Kitay in April/May 2010, and a copy of an affidavit of Mr Vilensky sworn 20 May 2010;
(b)a copy of a letter from Mr Kitay to the Australian Taxation Office dated 6 August 2010;
(c)a copy of an affidavit by Mr Kitay sworn 5 October 2016;
(d)copies of certain correspondence between Mrs Frigger and her former solicitors, and Mrs Frigger and an associate of a judge of the General Division in April 2017; and
(e)a copy of a Form 524 lodged with ASIC.
The principles governing the receipt of additional evidence on appeal have been set out relatively recently in Saunders v Public Trustee,[33] and it is unnecessary to repeat them here. There is no explanation as to why the correspondence bearing dates preceding the delivery of the primary decision was not adduced in evidence in the primary proceedings. Nor, in any event, is any of that material, or any of the other material referred to in the affidavit, relevant to the proper disposition of this appeal, save in the following respect. The copy of the affidavit of Mr Kitay sworn 5 October 2016 in annexure 'AF5' to Mrs Frigger's affidavit of 26 April 2017 is fresh evidence and, in all the circumstances, it is in the interests of justice to allow that document to be received on the hearing of the appeal. The result is that:
(a)the court admits, on the hearing of the appeal, the copy of Mr Kitay's affidavit sworn 5 October 2016, being annexure 'AF5' to Mrs Frigger's affidavit of 26 April 2017; and
(b)the court otherwise dismisses Mr and Mrs Frigger's application dated 26 April 2017.
[33] Saunders v Public Trustee [2015] WASCA 203 [83] ‑ [90].
Mr Kitay had filed an affidavit sworn 19 June 2017 in opposition to Mr and Mrs Frigger's application for leave to adduce additional evidence dated 26 April 2017. Mr and Mrs Frigger's application dated 26 April 2017, in the respects to which Mr Kitay in his affidavit responds, is dismissed. It is accordingly unnecessary to receive in evidence Mr Kitay's affidavit sworn 19 June 2017. Nor, in any event, as we understood it, was the tender of Mr Kitay's affidavit pressed.
Mrs Frigger also referred to a six‑page unsworn affidavit bearing the date 22 June 2017. It is entirely irrelevant to the proper disposition of the appeal. Insofar as Mr and Mrs Frigger applied orally to adduce the unsworn affidavit as evidence in the appeal (it was not clear), that application is also dismissed.
Finally, it may be noted here that Mr and Mrs Frigger also sought, in effect, orally to rely on an affidavit (comprising in total 20 pages) sworn by Mrs Frigger on 22 June 2017 in support of an application for an adjournment of the hearing of the appeal.[34] The application was dismissed and the tender of the affidavit was rejected on the grounds that it did not disclose any arguable basis for an adjournment.[35] However, both parties to the appeal subsequently referred to a document in the affidavit, being annexure 'AF5' at page 14. That was a copy email from Mr and Mrs Frigger to Mr Kitay's solicitor dated 20 August 2010. That email, according to Mrs Frigger's affidavit, was 'missed' from the green appeal book. In the circumstances, despite the rejection of the tender of the affidavit, that copy email will be treated as incorporated at the end of volume 2 of the green appeal book, and assigned page number 697.

Supplementary submissions

[34] Appeal ts 6 - 7.

[35] Appeal ts 8.

During the hearing of the appeal, the court raised with the parties the question of the meaning of the words 'owing and payable' in the definition of 'Mortgaged Property' in the alleged Charge relied on by Mr and Mrs Frigger in the primary proceedings, and in ground 1 of the grounds of appeal. Although the parties made certain submissions in that regard at the hearing, the court considered it appropriate to give the parties the opportunity to provide written submissions on that topic. Accordingly, following the oral hearing of the appeal, the court made the following directions:
3.[Mr and Mrs Frigger] have leave to file and serve written submissions within 14 days limited to the issues concerning the meaning of 'Mortgaged Property' in cl 4 of the schedule to the document described as a deed of charge bearing date 10 September 2009, which clause is located at page 246 of the green book.
4.[Mr Kitay] have leave to reply to [Mr and Mrs Frigger's] written submissions within 14 days of their filing and service.
The parties subsequently filed supplementary submissions. Mr and Mrs Frigger's submissions are referred to in [68] ‑ [71] below.

Grounds of appeal

Ground 1

1.Ground 1 alleges that the judge erred in law at [22] by finding that:[36]
(a)'unless and until [Mr and Mrs Frigger] exercise their option to enforce the (Fixed) Charge they have no relevant rights with respect to the mortgaged property … the choses in action';
(b)'[Mr Kitay], as liquidator, was entitled and bound to deal with the various assets which were the subject of the security'; and
(c)at [21] '[Mr Kitay] challenges the authenticity and validity of the Charge'.
[36] Appellants' case, grounds of appeal, 5.

The particulars in support of the ground are to the following effect:
1.By cl 6.4 of the Charge, Mr Kitay was required to do all acts, deeds and things for further and better securing the Mortgaged Property at the request of Mr and Mrs Frigger, at Mr Kitay's cost.
2.Mr and Mrs Frigger had made requests to Mr Kitay in relation to the following proceedings, which requests were made pursuant to cl 6.4 of the Charge, but Mr Kitay refused each request:
(a)proceedings LPA 36/2008;
(b)Magistrates Court proceedings 7493 of 2009; and
(c)Supreme Court proceedings CIV 1216 of 2009.
3.At no time since his appointment on 21 January 2010 has Mr Kitay commenced a claim under the Corporations Act 2001 (Cth) challenging the authenticity and validity of the 'Fixed Charge', and, since 12 December 2012, he was statute‑barred from doing so.
The proceedings referred to in the second particular are described further in [38] ‑ [47] below.

Ground 2

Ground 2 alleges that the judge erred in law in finding at [24] of the primary decision that the matters pleaded in par 101(1) of the statement of claim were a collateral attack upon the decision of Simmonds J to appoint Mr Kitay as provisional liquidator of CAT in Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [2010] WASC 38, and upon the decision of Master Sanderson in ordering the winding-up of CAT in Professional Services of Australia Pty Ltd (Administrator Appointed) v Computer Accounting and Tax Pty Ltd [No 3] [2010] WASC 93.
The particulars to ground 2 are in the following terms:
2.1PSA was subject to a Deed of Company Arrangement [(DOCA)];
2.2PSA varied the terms of the DOCA without a creditors resolution in contravention of s 445 Corporations Act 2001;
2.3PSA attempted to give effect to those variations by filing false submissions in CACV76/2008;
2.4The false submissions constituted a collateral abuse of process because they gave effect to variations of a DOCA, which variations had never taken effect, and which DOCA had nothing to do with the proper purpose of the appeal;
2.5It is not a collateral attack to challenge a Judgment obtained by a collateral abuse of process. (original emphasis)

Ground 3

Ground 3 is in the following terms:
The learned Judge erred at law by:
(a)considering each of [Mr Kitay's] eleven contraventions of Corporations Act 2001 … in a piecemeal manner rather than as a whole;
(b)accepting [Mr Kitay's] cleverly worded affidavit evidence and submissions;
(c)refusing to consider [Mr and Mrs Frigger's] evidence and submissions that contradicted [Mr Kitay's] evidence;
(d)imposing the legal consequences of strike-out, summary Judgment and permanent stay[.]
Had the learned Judge considered the contraventions in totality and fully he would have concluded that each of the eleven contraventions were steps taken by [Mr Kitay], who was counselled, aided and abetted by Herbert Smith Freehills' partners … in the execution of a plan to gain advantages for [Mr Kitay], Freehills and four South African compatriots to the detriment of CAT and [Mr and Mrs Frigger] as shareholders and Secured Creditors, resulting in four heads of damages claimed by [Mr and Mrs Frigger].

The particulars to this ground set out Mr and Mrs Frigger's allegations in respect of the alleged contraventions, but say that the tenth contravention 'is not pressed'. Also, at the hearing of the appeal, Mrs Frigger said that she did 'not press contravention 12'.[37]

Ground 4

[37] Appeal ts 58.

Ground 4 is to the effect that the judge erred in mixed fact and law by finding that the second, third and fourth alleged contraventions were an abuse of process. The particulars effectively repeat certain matters set out under the particulars in relation to grounds 1 and 3.

Ground 5

Ground 5 alleges that the judge 'erred at law by imposing the penalty of indemnity costs against [Mr and Mrs Frigger] in circumstances where the letter upon which such order was based had 38 false facts'. It is stated that '[i]n those circumstances [Mr and Mrs Frigger] did not act unreasonably by refusing the offer of compromise'. There are no particulars to this ground, and the alleged 'false facts' are not specified.

The proceedings referred to in the particulars to appeal ground 1

LPA 36/2008

Mrs Frigger said, without contradiction in the appeal, that proceedings LPA 36/2008 (being the first of the proceedings referred to in the particulars to ground 1) concerned a taxation of the solicitor/client costs charged by BBV to CAT (apparently in relation to the Original Proceedings). She said that the taxation proceeded without anyone representing CAT at the taxation, and that all of BBV's costs were allowed.[38]

CIV 1216 of 2009

[38] Appeal ts 21 - 23. It appears that Mrs Frigger might arguably have also had a personal interest in the taxation as, in a decision referred to by Mrs Frigger in this appeal, summary judgment was sought against her as alleged guarantor of the BBV bills. She was, however, given leave to defend that action: Bowen Buchbinder Vilensky (a firm) [No 2] [2011] WADC 67. In a letter dated 26 May 2010, Mrs Frigger also referred to a proposed assignment of LPA 36/2008, in which she informed Mr Kitay that if he refused the proposed assignment, she would 'deny' her 'guarantee': GB 191.

Mrs Frigger also said, without challenge in the appeal, that Supreme Court proceedings CIV 1216 of 2009 (being the third of the proceedings referred to in the particulars to ground 1) were 'related' proceedings, by which she meant, it appears, related to the Original Proceedings.[39]
[39] Appeal ts 11, 42 - 43.
There are two judgments in the General Division of this court in CIV 1216 of 2009. The first is Forbes v Computer Accounting and Tax Pty Ltd,[40] delivered 12 March 2009 (Forbes No 1), and the second is Forbes v Computer Accounting and Tax Pty Ltd[No 2],[41] delivered on 17 February 2012 (Forbes No 2).
[40] Forbes v Computer Accounting and Tax Pty Ltd [2009] WASC 89.
[41] Forbes v Computer Accounting and Tax Pty Ltd[No 2] [2012] WASC 49.
In Forbes No 1, Le Miere J granted leave to Mr Forbes to be relieved from an implied undertaking in respect of a discovered document concerning counsel's fees rendered to CAT in connection with the Original Proceedings. Mr Forbes was acting for the defendants (against CAT) in relation to certain special costs orders sought by CAT against the defendants before Simmonds J. In Forbes No 1, the judge found, in effect, that Mrs Frigger had made statements about counsel's fees for CAT being charged at the rate of $7,700 per day, when the document in question showed that the rate was $3,850 per day.[42] The judge said (in relation to events occurring when CAT was under the control of Mr and Mrs Frigger):[43]
[CAT] has put before Simmonds J material that states that, or at least creates the impression that, [counsel] has charged $7,700 per day as counsel fees for the second and each successive day for trial. That, on the face of it, is a misleading impression. As I have said, it appears from the account of [counsel] that he charged $3,850 per day for the second and each successive day of trial.
The balance of [counsel's] fees appear to have been for work in relation to particular applications, conferences, getting up and other matters. Whether or not that is so and what the consequences of that are, are matters for the parties to consider and, if an appropriate application is made to Simmonds J, for Simmonds J to deal with. However, for the purposes of the proceedings before me, it is sufficient that I conclude that the account is relevant and the court may be misled if the account is not put before Simmonds J.
…
[CAT] has chosen to put part of the account before Simmonds J. That may not cure the problem, and indeed, it may further mislead the court. That is because the earlier pages of the account set out the work in relation to which [counsel] made his charges, and the account should be read in its totality to convey to the reader the complete picture in relation to [counsel's] fees. In all the circumstances, it is in the interests of Justice that [Mr Forbes] be released from the implied undertaking unless there are some countervailing considerations that outweigh the interests of Justice and the administration of Justice in releasing [Mr Forbes] from the implied undertaking.
…
I conclude that it is [in] the interests of Justice and would further the interests of the administration of Justice if [Mr Forbes] is released from his implied undertaking.
[42] Forbes No 1 [13], [23], [28].
[43] Forbes No 1 [28] - [30], [35].
His Honour also ordered that CAT pay Mr Forbes the costs of the application, including the costs of Mr Forbes obtaining advice from senior counsel.[44]
[44] Forbes No 2 [2].
In Forbes No 2, the court dismissed an application by Mrs Frigger, brought by her then solicitor, Mr Thompson, on 23 August 2011, that a chamber summons filed 9 December 2009 be issued. The chamber summons, by CAT, sought a review of Mr Forbes' costs in respect of Forbes No 1.
In his reasons, the judge found:[45]
(a)after Mr Forbes was awarded costs against CAT in relation to Forbes No 1, his costs were taxed;
(b)CAT lodged objections to the taxation;
(c)costs were taxed and allowed in the sum of $15,222.59;
(d)CAT was represented at the hearing of the taxation and at the hearing of CAT's objections by lawyers Chris Stokes & Associates; and
(e)the taxed costs were paid to Mr Forbes.
[45] Forbes No 2 [2], [27].
The judge also observed that the chamber summons of 9 December 2009 stated that it had been prepared by Chris Stokes & Associates, but that firm had written to the court stating that they did not file the chamber summons, that CAT was in liquidation, and that they had no instructions from the liquidator to continue acting or to file the chamber summons.[46]
[46] Forbes No 2 [3] - [4].
The judge rejected Mrs Frigger's submission that she had requested, and obtained, the liquidator's consent to file the chamber summons. The judge rejected the application on that basis, and on two further bases. They were, in effect, that he had concerns about whether the chamber summons had been filed with the authority of Chris Stokes & Associates as represented in the document, and there was no adequate explanation for the delay in prosecuting the review of the objections to taxation.

Magistrates Court proceedings 7493 of 2009

Mrs Frigger said, without objection, that Magistrates Court proceedings 7493 of 2009 (being the second of the proceedings particularised in relation to ground 1) related to a claim by CAT against Vogt, the subject of alleged contravention 7.[47] In alleged contravention 7, Mr and Mrs Frigger pleaded, in effect, that CAT sued Vogt (solicitors) in April 2009 for misleading or deceptive conduct, and that judgment was entered for Vogt on the claim.
[47] Appeal ts 42, 78.

The alleged Charge - provisions and preliminary observations

Under the Charge, CAT is the 'Grantor' and 'Borrower', and Mr and Mrs Frigger are collectively the 'Grantee'. As noted below, the Charge applied to the 'Mortgaged Property'.

The Mortgaged Property

The 'Mortgaged Property' is defined in cl 4 of the Schedule to mean, relevantly and in effect, all 'judgment sums', pre and post‑judgment 'interest', and all legal and enforcement 'costs' 'owing and payable to [CAT]'[48] in specified legal proceedings.
[48] (emphasis added).
The legal proceedings specified in cl 4 of the Schedule in relation to the 'Mortgaged Property' include:
(1)Supreme Court proceedings CIV 2265 of 2006, and the appeal in that matter, CACV 76 of 2008;
(2)LPA 36/2008; and
(3)Magistrates Court proceedings GCLM 7493/2009.[49]
[49] Clause 4 also refers to Magistrates Court proceedings GCLM 11299/2009, but those proceedings were not referred to in the grounds of appeal.
Clause 4 of the Schedule also refers to 'related proceedings'. For the purposes of this appeal it will be assumed in favour of Mr and Mrs Frigger, without deciding, that the term 'related proceedings' includes the proceedings in CIV 1216 of 2009.
The following preliminary observations may be made at this point in relation to the proceedings referred to in the definition of 'Mortgaged Property', as at the commencement of CAT's winding‑up and in the subsequent period when the alleged contraventions by Mr Kitay occurred.
As to the proceedings referred to in (1) above, ie, the Original Proceedings and the Original Appeal (as defined in these reasons):
(a)the judgment sum in the Original Proceedings had already been paid to CAT, and Mr and Mrs Frigger had caused CAT to pay the money to them;
(b)CAT was a judgment debtor in a sum of approximately $800,000 as a result of the Original Appeal, and was not a judgment creditor;
(c)80% of the costs of the Original Appeal had been ordered against CAT, and there was no order for costs in favour of CAT in the Original Appeal;[50] and
(d)the Original Costs Orders had been set aside by the Court of Appeal.
[50] See [15(10)] above.
The proceedings referred to in (2) and (3) in [50] above, and the 'related proceedings' referred to in [51] above, are the proceedings relevant to ground 1 of the grounds of appeal.
As to the proceedings referred to in (2) in [50] above, on Mr and Mrs Frigger's case,[51] the proceedings in LPA 36/2008 related to the taxation of certain of BBV's bills and, accordingly, CAT's liability for solicitor/client costs to BBV. BBV's costs were allowed in full on the taxation. Accordingly, on Mr and Mrs Frigger's case, there was no judgment, or order for costs or interest, in favour of CAT in those proceedings, on or after the commencement of the winding‑up of CAT.[52]
[51] Statement of claim, pars 51, 52; BB 47.
[52] For the purposes of the remainder of these reasons, it will be assumed (without deciding) that the winding‑up of CAT commenced on 12 December 2009, at the time of the resolution referred to in [16(4)] above.
The proceedings referred to in (3) in [50] above (the Vogt proceedings), concerned CAT's claim for alleged misleading or deceptive conduct against Vogt, another former solicitor. According to the statement of claim, judgment was entered for Vogt against CAT. In other words, on Mr and Mrs Frigger's case,[53] there was no judgment, or order for costs or interest, in favour of CAT in the Vogt proceedings, on or after the commencement of the winding‑up of CAT.
[53] Statement of claim, pars 56, 57; BB 47 - 48.
As to the assumed 'related proceedings' in CIV 1216 of 2009 (see [51] above), they were proceedings between Mr Forbes and CAT, in relation to which, relevantly, CAT was ordered to pay Mr Forbes' costs in excess of $15,000. In other words, on Mr and Mrs Frigger's case,[54] Mr Forbes had a judgment against CAT in those 'related proceedings'. There was no judgment, or order for costs or interest, in favour of CAT in CIV 1216 of 2009, on or after the commencement of the winding‑up of CAT.

Operative clauses

[54] Statement of claim, par 62; BB 49.

Clause 3 of the Charge provides that the Grantor charges the 'Mortgaged Property' in favour of the Grantee.
Clause 4 provides, relevantly and in effect, that the 'Principal Sum' and all other 'Moneys Secured' is payable by the Grantor to the Grantee on demand, provided that the Grantee is not entitled:
(a)to make demand under this clause; or
(b)to seek to enforce the Charge;
for so long as the Grantor performs and observes its covenants under the Charge.
The Charge contains a number of covenants by the Grantor: cl 6, cl 7, cl 8.1 ‑ cl 8.4, cl 8.7 ‑ cl 8.10. Clause 6.4 (referred to in ground 1 of the grounds of appeal) provides, relevantly and in effect, that the Grantor shall, at its cost, at the request of the Grantee, do or cause to be done all things necessary for further and better securing the Mortgaged Property, and for enabling the Grantee to obtain possession of the Mortgaged Property, or any part of it, as shall be reasonably required.
Clause 8.5 deals with the Charge's operation as a fixed and floating charge. Clause 8.5 provides:
This deed shall operate as a first fixed charge as regards all freehold and leasehold property, fixtures, uncalled capital, unpaid calls, plant and machinery and other chattels (other than stock in trade), books of account, vouchers and other documents relating in any way to the business transactions of the Grantor and all securities negotiable or otherwise and documents evidencing title to or right of possession of any property at any time deposited with the Grantee by the Grantor and the property mentioned in any such documents and all licences mentioned in the Schedule AND shall operate as a first floating charge as regards all other property and assets hereby charged. (emphasis added)
Clause 8.7 provides, relevantly and in effect, that the Grantor shall execute all such acts, deeds and assurances whatsoever for more effectively and satisfactorily securing the Mortgaged Property, and shall execute in favour of the Grantee such mortgages, powers and provisions as the Grantee shall require.
By cl 10, the security may be enforced by the Grantee, notwithstanding the acceptance of any part of the moneys payable in respect of the Moneys Secured after any 'default'. The term 'default' is not defined, but would presumably include any breach of covenant.
Clause 11 provides that, 'after [the] security becomes enforceable', and from time to time thereafter, the Grantee may exercise any of the powers contained in the Charge, including the power:
•to take possession of, demand, collect and get in the Mortgaged Property and take proceedings in the name of the Grantor (cl 11.1);
•to exercise any of the rights, powers, authorities and remedies conferred on the Grantor under any contract, agreement or otherwise (cl 11.2);
•to employ or engage managers, professional consultants and others for all or any of the purposes of, relevantly, collecting and getting in the Mortgaged Property (cl 11.9);
•to take proceedings in the name of the Grantor for any of the preceding purposes (cl 11.14);
•to do all things necessary to perform or observe any of the covenants on the part of the Grantor contained in the Charge (cl 11.15); and
•to do or cause to be done such other things expedient for the protection or enforcement of the security created or for the recovery of moneys payable in respect of the Moneys Secured (cl 11.16).
By cl 13, the Grantee is to have the powers of a receiver at 'any time after [the] security becomes enforceable'.
Clause 9 provides, relevantly:
The Moneys Secured shall at the option of the Grantee and notwithstanding any delay or previous waiver of the right to exercise such option immediately become due and payable without the necessity for any demand or notice to the Grantor and notwithstanding that the Grantee [sic - Charge] shall at the option of the Grantee become enforceable and also at the like option the right of the Grantor to deal for any purpose with the Mortgaged Property shall forthwith cease in each or any of the following events namely:
9.1if … an order is made, or an effective resolution is passed … for the winding up or dissolution … of the Grantor provided always that this security shall not become enforceable where the winding up is for the purpose of reconstruction … and the scheme for reconstruction … has the Grantee's prior written consent. (emphasis added)

The Moneys Secured

The term 'Moneys Secured' is defined to mean the aggregate or any part of the Principal Sum and interest and other moneys due to or recoverable by the Grantee. The 'Principal Sum' is defined to include the amount in the Schedule. Clause 2 of the Schedule provides, relevantly:
Consideration of $2,000,000 granted by way of loan secured under this deed which Angela Cecilia Theresa Frigger and Hartmut Hubert Josef Frigger is entitled to this security to protect loans both past present and future and/or undistributed capital gains both present and future and/or equity both present and future such as has been assigned to Angela Cecilia Theresa Frigger and Hartmut Hubert Josef Frigger under this deed limited to $2,000,000.

Mr and Mrs Frigger's supplementary submissions

In purported compliance with the direction referred to in [28] above, Mr and Mrs Frigger filed and served 'appellants supplementary submissions' which:
(1)under the rubric of addressing the meaning and effect of cl 8.5 of the Charge, misstated the effect of a District Court decision,[55] and included various allegations of fact and law concerning an alleged employment relationship with CAT, the entry into a 'Contract for Litigation dated 1 September 2003', the meaning and effect of that alleged contract and its application to certain alleged facts, the effect of a deed of company arrangement, the existence of alleged book debts, the making of alleged costs orders, allegations of ulterior motive on the part of the liquidator, the effect of various Australian Accounting Standards, and the application of a 'First Fixed Charge in clause 8.5';[56]
(2)refer to the meaning of 'owing and payable' in the definition of 'Mortgaged Property' in cl 4 of the schedule to the Charge at page 246 of the green book;[57] and
(3)make submissions on the topic, 'Did the respondent believe the Mortgaged Property were floating (or circulating) assets?'[58]
[55] Bowen Buchbinder Vilensky.
[56] Appellants' supplementary submissions, pars 2(a), 3 ‑ 15.
[57] Appellants' supplementary submissions, pars 2(b), 16 ‑ 21.
[58] Appellants' supplementary submissions, pars 2(c), 22 ‑ 28.
The matters referred to in (1) above, save arguably in one respect, do not fall within the scope of the court's direction, and cannot be relied on by Mr and Mrs Frigger in the appeal. The possible exception is in respect of pars 12(a) ‑ (j) of Mr and Mrs Frigger's supplementary submissions. Although those paragraphs appear to have been directed to the meaning and application of cl 8.5 (a topic falling outside the scope of the court's direction), some of the matters in pars 12(a) ‑ (j) are also arguably intended to be relevant to the meaning of Mortgaged Property. To that extent and in that regard, the submissions in pars 12(a) ‑ (j) have been considered.
As to the second matter, it is submitted, in substance, that the words 'and payable' in the phrase 'owing and payable' in the definition of 'Mortgaged Property' in the Charge mean 'what would be payable after the resolution of the legal proceedings mentioned in the Schedule', and that the words refer to 'future judgments and future taxations'.[59]
[59] Appellants' supplementary submissions, pars 17 ‑ 21.
The third matter falls entirely outside the scope of the court's direction, and cannot be relied on by Mr and Mrs Frigger in this appeal.
On 24 July 2017, Mr and Mrs Frigger attempted to file what they described as 'responsive' submissions dated 21 July 2017. The submissions were not accepted for filing as there was no order granting leave to file such further submissions. By letter dated 25 July 2017, Mr and Mrs Frigger sought leave to file the 'responsive' submissions. Such an application is not properly made by letter. In any event, we would not grant leave to file the submissions dated 21 July 2017. Both parties were provided with an opportunity to file submissions on the topic identified in the order we made following the oral hearing of the appeal, as set out in [28] above. Further and in any event, having reviewed Mr and Mrs Frigger's submissions dated 21 July 2017 in considering whether leave should be granted, we observe that, were leave granted, the submissions would not assist the appellants.

Disposition

Ground 1

Ground 1(a) misquotes the judge's reasons, in that the judge made no reference to a 'Fixed' charge at [22] of the primary decision. Also, the judge's overall conclusion at [22] of the primary decision was that the Charge was 'irrelevant to any of the causes of action alleged' by Mr and Mrs Frigger.
The essential basis for the judge's conclusion at [22] that the Charge was irrelevant was that Mr and Mrs Frigger did not purport to rely on their (alleged) rights as secured creditor and seek to take steps with respect to the pleaded causes of action at any time during the period of the alleged misconduct by Mr Kitay. The alleged misconduct in relation to alleged contraventions five, six, seven and nine occurred prior to April 2014, and the judge evidently accepted that Mr and Mrs Frigger did not enforce or purport to enforce their (alleged) rights under the Charge prior to then.
The first two particulars of ground 1 allege, in effect, that the judge erred in finding that Mr and Mrs Frigger had not enforced or sought to enforce the Charge prior to April 2014. Further, in the course of argument in this appeal, Mr and Mrs Frigger contended, in effect, for the following propositions:[60]
(1)the Mortgaged Property (as defined in the Charge) was, by the terms of the instrument, always subject to a fixed charge;
(2)a fixed chargee has, by way of security, a proprietary interest in the property charged;
(3)the Charge, in any event, became immediately enforceable by Mr and Mrs Frigger without notice or demand under cl 9 once CAT was placed in liquidation; and
(4)Mr and Mrs Frigger took steps to enforce the Charge,[61] during the period of CAT's liquidation prior to April 2014, and Mr Kitay, wrongfully in that period, refused to allow them to enforce the Charge, thereby (allegedly) breaching his duties to Mr and Mrs Frigger, and giving rise to the fifth, sixth, seventh and ninth alleged contraventions.
[60] Appeal ts 25 - 47, 95 - 96.
[61] In accordance with cl 11.1 ‑ cl 11.2, cl 11.9, cl 11.14 ‑ cl 11.16.
In relation to the fourth of those contentions, in oral submissions, Mr and Mrs Frigger referred to and relied on the following passage from Halsbury's Laws of Australia:[62]
A secured party takes steps to enforce a security interest given by a company in favour of a covered officer if, without limitation:
…
(2)(whether directly or by an agent) the secured party enters into possession or assumes control of property of a company for the purposes of enforcing the security interest[.] (footnotes omitted)
[62] Halsbury's Laws of Australia [295-10660]; appeal ts 26 - 27.
As a preliminary observation, it may be noted that in the primary proceedings Mr and Mrs Frigger did not (unsurprisingly given their then control of CAT) contend that there was a pre‑liquidation breach of covenant by CAT which gave them rights to enforce the Charge prior to any resolution or order for the winding‑up of CAT. Nor was it alleged that Mr Kitay as liquidator dealt with the Mortgaged Property by paying away any moneys comprising the Mortgaged Property to creditors of CAT other than Mr and Mrs Frigger.
Turning, then, to the four contentions raised by Mr and Mrs Frigger (referred to in [75] above), the first of the contentions is not correct. The Mortgaged Property as defined fell within the scope of the floating charge referred to in the last two lines of cl 8.5 as quoted above at [61]. That is because the property constituting the Mortgaged Property (as defined in cl 4 of the Schedule) was not within the ambit of any of the specified classes of property in relation to which the clause stipulated the deed created a first fixed charge.
The second of Mr and Mrs Frigger's contentions is, in general terms, correct. In Associated Alloys Pty Ltd v ACN 001 452 106 Pty Ltd,[63] the High Court said:
In In re Bank of Credit and Commerce International SA (in liq) [No 8] [[1998] AC 214, 226], Lord Hoffmann, with whose speech the other Law Lords agreed, gave a description of an equitable charge in which he emphasised that the proprietary interest created thereby is held by way of security, so that the chargee may resort to the charged asset only for the purpose of satisfying some liability due to the chargee.
[63] Associated Alloys Pty Ltd v ACN 001 452 106 Pty Ltd [2000] HCA 25; (2000) 202 CLR 588 [6].
However, the point goes nowhere, because the primary judge did not hold otherwise.
As to the third contention, although the chapeau to cl 9 is somewhat obscurely drafted, it may be accepted that the effect of cl 9.1 is to make the Charge (assuming it were otherwise valid and capable of operation) immediately enforceable upon the winding‑up of the Grantor. In the circumstances of this case, however, the provision adds nothing to the general law position that a floating charge becomes fixed (crystallises) upon the passing of a resolution for winding‑up, or absent such a resolution, upon the making of a winding‑up order.[64] On a winding‑up, a floating chargee under a crystallised charge has the option, in the ordinary way of a secured creditor, to stand outside the liquidation and rely on the security to recover any amounts secured by the charge.[65] Ordinarily, as a secured creditor, the chargee will, in that event, realise the security to satisfy the debt owed. If, after realisation, there is a balance owing, the chargee may prove for the balance in the liquidation, unless the liquidator is not satisfied that the realisation has not been effected in good faith and in a proper manner. Alternatively, the chargee may give up the security altogether and prove for the full amount in the liquidation.[66]
[64] See, for example, W J Gough, Company Charges (2nd ed), pages 139 - 140, 143.
[65] W J Gough, Company Charges (2nd ed), page 131.
[66] Keay, McPherson, The Law of Company Liquidation (4th ed, Australian edition), pages 554 - 556; Keay, McPherson's Law of Company Liquidation (2nd ed, English edition), pages 801 ‑ 804.
However, we would not understand his Honour's reasons to suggest otherwise. Moreover, the third contention, again, goes nowhere, unless, at the very least, the judge erred in finding that Mr and Mrs Frigger did not take steps to enforce or purportedly enforce the Charge prior to April 2014. That leads to the fourth contention.
The judge's reference to Mr and Mrs Frigger first purporting to take steps to enforce the Charge is a reference to a document dated 7 April 2014 in the following terms:[67]
[67] GB 294. Even this document was not addressed to Mr Kitay as liquidator of CAT, and the address was not Mr Kitay's place of business.
NOTICE UNDER S 123(2) PERSONAL PROPERTIES SECURITIES ACT 2009
The giving of this notice constitutes seizure of the property the subject of a Fixed Charge under section 123(2) Personal Properties Securities Act 2009.
Details of charge:
Grantor:Computer Accounting & Tax Pty Ltd
Chargees:1.     Hartmut Hubert Josef Frigger
2.Angela Cecilia Theresa Frigger
Allotted Number:         1870823
Date of Charge:            10 September 2009
Lodgment [sic] Date:    23 October 2009
SIGNED BY THE CHARGEES
[signed]           [signed]
HARTMUT HUBERT JOSEF FRIGGER            ANGELA CECILIA THERESA FRIGGER
There is logically an anterior question, in relation to which the parties were given leave to file further submissions (see [28] above), as to whether, at any time on or after the commencement of the winding‑up of CAT, there was any judgment, interest, or costs 'owing and payable' to CAT within the meaning of the definition of 'Mortgaged Property' in cl 4 of the Schedule to the Charge. That matter is referred to in [93] ‑ [96] below. At this point, in dealing with the fourth contention, it will be assumed, in favour of Mr and Mrs Frigger, that there was 'Mortgaged Property' of which Mr and Mrs Frigger could take possession or assume control in the period from the commencement of the winding‑up of CAT up to 7 April 2014.
As best we understood it, the matters relied upon by Mr and Mrs Frigger to establish that they had, in fact, in relation to the fifth, sixth, seventh and ninth alleged contraventions, taken steps to enforce the Charge prior to 7 April 2014, were as follows.
In relation to the fifth alleged contravention, reliance was apparently placed on the pleaded 'request' on 4 June 2010 to Mr Kitay to have the question of costs 'brought back' before Simmonds J, pursuant to the Costs Remitter Order of the Court of Appeal.[68]
[68] Statement of claim, par 45; BB 46; appeal ts 38.
In relation to the sixth alleged contravention (concerning the taxation of CAT's solicitor/client costs rendered by BBV), reliance was apparently placed on:
(a)the pleaded request by Mrs Frigger on 10 June 2010 to allow Mrs Frigger to represent CAT in the taxation of certain of BBV's bills of costs;[69]
(b)a refusal by Mr Kitay's solicitor in October 2011 of Mrs Frigger's request to have other BBV bills taxed after the completion of the earlier taxation;[70]
(b)certain emails sent by Mr Kitay's solicitor (not by Mr and Mrs Frigger) on 25 and 27 May 2010, 30 June 2010, 19 July 2010 and 23 August 2010;[71]
(c)Mrs Frigger's request on 26 May 2010 for an assignment to her of the proceedings in LPA 36/2008;[72] and
(d)an email from Mr and Mrs Frigger to Mr Kitay dated 13 December 2010, complaining, in effect, that Mr Kitay's solicitor had not taken steps in relation to the BBV taxation in the interests of creditors and shareholders.[73]
[69] Statement of claim, pars 49, 51; BB 47; appeal ts 39.
[70] Statement of claim, par 52; BB 47; appeal ts 39.
[71] Mr Kitay's affidavit of 30 June 2015, par 22; GB 47.
[72] GB 191; appellant's case, written submissions, par 3.6.15; WB 14.
[73] GB 197; appellant's case, written submissions, par 3.6.15; WB 14.
In relation to the seventh alleged contravention (concerning the Vogt proceedings), reliance was apparently placed on:
(a)in effect, an alleged request by Mrs Frigger on 10 June 2010 to take an assignment of the Vogt proceedings;[74]
(b)certain correspondence from Mr Kitay's solicitor (not from Mr and Mrs Frigger) at various dates from 19 July 2010 to 5 October 2010;[75]
(c)Mrs Frigger's email to Mr Kitay dated 23 January 2010 requesting certain advice in relation to certain proceedings;[76] and
(d)an email from Mr and Mrs Frigger dated 20 August 2010.[77]
[74] Statement of claim, par 55, read with pars 48, 49, 58; BB 47 - 48; appeal ts 39.
[75] GB 67 - 72.
[76] GB 73.
[77] Annexure 'AF5' in Mrs Frigger's affidavit of 22 June 2017, page 14.
In relation to the ninth alleged contravention (concerning Mr Forbes' costs), reliance was apparently placed on:
(a)Mrs Frigger's requests (in effect) to Mr Kitay to 'progress' a review of Mr Forbes' costs on 22 January 2010, June 2010 and July 2011;[78] and
(b)an email from Mrs Frigger's solicitor to Mr Kitay's solicitor dated 30 November 2011 referring to Mrs Frigger seeking leave to issue the chamber summons dated 9 December 2009 in relation to CIV 1216 of 2009.[79]
[78] Statement of claim, pars 66, 67, 72; BB 49 - 50.
[79] GB 79.
These materials do not reveal Mr and Mrs Frigger purporting to take any steps to enforce the Charge prior to 7 April 2014. In broad terms, to the extent that they reflect any conduct on the part of Mr and Mrs Frigger, the materials indicate that Mrs Frigger was requesting Mr Kitay himself to do things on behalf of CAT, and, or alternatively, to allow Mrs Frigger to take steps on behalf of CAT, or to assign causes of action to Mrs Frigger, in relation to litigation over which Mr and Mrs Frigger apparently accepted that they had no control. Save with respect to the email dated 20 August 2010, there is no mention of the Charge. Although the email dated 20 August 2010 refers to the existence of the Charge, it does so only in the context of a request for an assignment of the Vogt proceedings. There is no suggestion that the Charge is being enforced, and the request for an assignment is inconsistent with the existence of an existing right to the cause of action. There is nothing in the materials referred to which indicates any enforcement of the Charge in general, or any reliance on cl 6.4 in particular. There is no reference to Mortgaged Property, no reference to anything necessary to be done for further and better securing the Mortgaged Property, and no reference to any judgment sums, interest or costs being 'owing and payable' to CAT. Expressed in the terms used in the passage from Halsbury's Laws of Australia on which Mr and Mrs Frigger rely, there is no basis to conclude that they acted in any respect 'for the purposes of enforcing the security interest'.
Further, insofar as Mr and Mrs Frigger rely on communications in the period 16 December 2009 to 14 July 2010 (which are many of the communications relied on), those communications could not be taken as asserting any rights under the Charge, as the freezing orders referred to at [16(5)] applied in that period to restrain them from taking any steps to enforce the payment of any amounts claimed under the Charge.
For these reasons, grounds 1(a) and (b) lack any merit and should be dismissed.
There is an additional reason why that is so, although the dismissal of grounds 1(a) and (b) is not dependent upon this further reason. It appears, on Mr and Mrs Frigger's case, that the Charge always operated as a fixed charge on the Mortgaged Property, or it at least became fixed on the winding‑up of CAT. Yet, in relation to the three proceedings the subject of the Mortgaged Property relied on in ground 1 of the grounds of appeal,[80] as indicated in [54] ‑ [57] above, even on Mr and Mrs Frigger's case properly understood, there was no judgment, and no orders for interest or costs in favour of CAT as at the commencement of CAT's winding‑up or thereafter during the period of the alleged misconduct, upon which the Charge might conceivably fix.
[80] LPA 36/2008, GCLM 7493 of 2009 (Vogt proceedings) and CIV 1216 of 2009.
As best we understand it, Mr and Mrs Frigger may nevertheless be seeking to contend otherwise on the basis of pars 12(a) ‑ (j) and 16 ‑ 21 of their supplementary submissions. Those paragraphs do not, however, assist them.
In relation to pars 12(a) ‑ (j) of Mr and Mrs Frigger's supplementary submissions, it is difficult to attribute any sensible meaning to most of the allegations in those paragraphs. Specifically, in relation to the alleged costs orders in par 12(d) of the supplementary submissions: (1) it has not been shown, or even contended, that any of the alleged costs orders were made in any of the proceedings the subject of ground 1 of the appeal; (2) nor does it appear that these alleged costs orders were pleaded as part of the allegations against Mr Kitay in the primary proceedings; and (3) the alleged costs and costs orders were, in any event, either too vaguely expressed or insufficiently identified in the submissions to enable the allegations to be verified and accepted as accurate.
Further, even if there were any extant costs orders relevant to ground 1 of the appeal at the relevant time, Mr and Mrs Frigger's contentions in pars 16 ‑ 21 of their supplementary submissions, to the effect that where there are orders for costs to be taxed, then prior to taxation the costs are 'owing and payable', cannot be accepted. The word 'payable' ordinarily signifies an amount immediately or presently payable in the sense that the time for payment has arrived, and an action could be maintained in respect of it.[81] In the absence of an agreed amount, costs to be taxed or assessed are not presently or immediately payable prior to the issue of a certificate of taxation.[82]
[81] See CPB Contractors Pty Ltd v JKC Australia LNG Pty Ltd [No 2] [2017] WASCA 123 [122] and the cases there cited.
[82] See Birla Nifty Pty Ltd v International Mining Industry Underwriters Ltd [2014] WASCA 180 (S) [11]; Rambal v Griffin Coal Mining Co Pty Ltd [2015] WASCA 197; (2015) 48 WAR 540 [95], [100] ‑ [101]; Tarlinton v Hall (1981) 38 ACTR 1, 6 (referred to with approval in Rambal [95]); Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 3] [2011] WASCA 80 [4]; Greenco Pty Ltd v Wilden Pty Ltd (WASC, Bredmeyer M, Lib No 980029, 30 January 1998, Unreported, BC9800104); see also O 66 r 57 and O 66 r 61 of the Rules of the Supreme Court 1971 (WA).
In relation to ground 1(c), Mr and Mrs Frigger appeared to contend that the judge erred in finding that Mr Kitay challenged the authenticity and validity of the Charge. That assertion is plainly wrong. Neither the judge at first instance nor Mr Kitay placed any reliance, for the purposes of the disposition of the primary proceedings, upon an assertion that the Charge was invalid.[83]
[83] See, for example, primary decision [21].
Ground 1 must be dismissed.

Ground 2

Ground 2 challenges the judge's conclusion that the allegation made in par 101(1) of the statement of claim was an abuse of process because it amounts to a collateral attack upon previous decisions of the court. The relevant paragraph of the statement of claim repeats assertions made with respect to the effect of a deed of company arrangement which have been rejected both by this court and by judges at first instance and makes assertions with respect to the solvency of CAT which are contrary to findings made by the court at the time Mr Kitay was appointed liquidator of that company.[84] The judge at first instance was plainly correct to conclude that the allegations are an abuse of process. Ground 2 is entirely without substance. Ground 2 must be dismissed.

Ground 3

[84] See, for example, Frigger v Professional Services of Australia Pty Ltd [No 2] [2016] WASCA 68 [8] - [21], [65] ‑ [78].

Ground 3 is both scandalous and bizarre. It is scandalous because it includes assertions with respect to a conspiracy said to have been formed amongst a number of individuals of South African origin which has no basis whatsoever in any evidence before the court. It is bizarre because it complains that the judge at first instance erred by considering individually 11 specific contraventions alleged in the statement of claim when it is said he should have considered them as a whole, and then supports that contention by separately addressing each of the alleged contraventions.
For present purposes, and subject to one matter referred to below, it is sufficient to say that the reasons given by the trial judge for concluding that the contraventions alleged by Mr and Mrs Frigger in the statement of claim were an abuse of process and, or alternatively, had no prospect of success were plainly correct.
Particular mention should be made of the second alleged contravention. The background is that the liquidator had applied to the court in January 2012 in COR 2 of 2010 for leave to enter into a litigation funding agreement. This was to fund the defence of the other proceedings commenced against the liquidator by Mr and Mrs Frigger in CIV 2765 of 2010 (see [21] above), and to counterclaim in those proceedings, effectively seeking title, on behalf of CAT, to certain assets, including the Armadale property. The liquidator's application was supported by two affidavits, including an affidavit which the court ordered to be kept confidential and placed in a sealed envelope and marked confidential.[85]
[85] Primary decision [29].
Mrs Frigger obtained access to the confidential affidavit and sought to make use of it. The liquidator applied in COR 2 of 2010 for orders to protect its confidentiality. That matter was heard by Master Sanderson. The master said:[86]
First, there is nothing in the confidential affidavit nor the privileged materials which in any way suggests the liquidator is engaged in some fraudulent or dishonest act. A series of wild allegations are made by Mrs Frigger in her submissions. None is … of any substance. Moreover, the allegations are so wild and incoherent as not to warrant detailed analysis.
Second, this is not a question strictly speaking of privilege. It may be the case in other proceedings when discovery is given, communications passing between the liquidator and his solicitors and touching matters related to the litigation, will have to be discovered. Doubtless a claim for privilege would be made. If some challenge is to be mounted to that privilege it can be done in the context of those proceedings. What happened here was a confidentiality order was made. It is pursuant to that order the confidential affidavit and the privileged materials were protected. The making of such an order does not determine the question of any privilege which might attach to any document in other proceedings.
Subsequent to the hearing in this matter, Mrs Frigger purported to make a further application. It was titled 'Interlocutory process for orders regarding Mr Kitay's confidential affidavit dated 5 January 2012'. It seeks certain orders and declarations in relation to the confidential affidavit. Mrs Frigger was insistent this interlocutory application ought be listed at least for mention before determination of the liquidator's application. The lodging of the application was improper. It seeks to re-ventilate matters which were the subject of the special appointment. For that reason the interlocutory process was not listed and will be dismissed.
This matter has gone on long enough. As soon as it was pointed out to Mrs Frigger she had obtained a copy of the confidential affidavit she was not entitled to possess, she should have returned it to the liquidator's solicitors. That is the beginning and the end of the matter. There can be no possible Justification for her retaining possession of any copies of the confidential affidavit and the orders I will make are designed to so far as is possible put the situation to rights.
[86] Re Computer Accounting and Tax Pty Ltd; Ex parte Mervyn Jonathan Kitay in his capacity as liquidator of Computer Accounting and Tax Pty Ltd (in liq) [No 4] [2014] WASC 169 [19] ‑ [22].

The master ordered Mrs Frigger to deliver up or destroy all copies of the confidential affidavit, and that she not use it in any proceedings. The orders were varied on 22 May 2014.[87]
[87] Primary decision [30].
It was in that context that, in the primary proceedings the subject of this appeal, Mr and Mrs Frigger pleaded a letter of legal advice given to the liquidator, which had been attached to the confidential affidavit.[88] The pleading was in the following terms:[89]
27.During the period May to October 2010, the [liquidator] combined with PSA/Banning, Mr Lenhoff and [the liquidator's solicitor] … to conduct an informal public examination … of [Mrs Frigger] in the Freezing Order Application:
Particulars
[Mr and Mrs Frigger] will rely on a letter dated 25 August 2010 from [the liquidator's solicitor] to the [liquidator].
[88] Primary decision [31].
[89] Statement of claim, par 27; BB 43.
By par 101(3) of the statement of claim, Mr and Mrs Frigger pleaded that by the aforementioned alleged conduct, Mr Kitay 'improperly used his position to gain an advantage for himself in his counterclaim against [Mr and Mrs Frigger] in CIV2765/2010 which conduct contravened s 182(1) [of the Corporations Act]'.
In their prayer for relief, Mr and Mrs Frigger claimed various injunctions, and further or alternatively damages, monetary amounts and costs.
In relation to this pleading Le Miere J said:[90]
The [liquidator] submits, and I accept, that any attempt to rely upon the 25 August 2010 letter, where it is subject to the Confidentiality Order, is an abuse of process and any plea based upon it should be struck out. The alleged second contravention is dependent upon the contents of the letter which was an annexure to the Confidential Affidavit, which Mrs Frigger obtained in the circumstances I have set out earlier. The claim in relation to the second contravention is an abuse of process, has no real prospect of success and should be struck out.
[90] Primary decision [32].
The written and oral arguments of Mr and Mrs Frigger in this appeal under ground 4 were directed to these matters in relation to the second alleged contravention, which formed part of ground 3.
In their written submissions, Mr and Mrs Frigger submitted that '[i]n their statement of claim [they] sought discovery of' letters of advice, including a letter to the liquidator dated 25 August 2010.[91] It is difficult to see how that submission could have been made, having regard to the pleading referred to earlier. In oral submissions, Mrs Frigger, at one point, accepted that they had not sought discovery of the letter of 25 August 2010 in the primary proceedings.[92] She later appeared to resile from that when she said:[93]
[W]e would have been able to rely on that confidential affidavit … where we say in our pleadings - we simply say we will seek discovery. It was not a breach of - it was not a contempt of court to say - to plead we will seek discovery. (emphasis added)
[91] Appellant's case, submissions, par 30; WB 27.
[92] Appeal ts 59.
[93] Appeal ts 60 - 61.
Insofar as Mr and Mrs Frigger persist in a contention that the judge erred because he failed to appreciate that they were 'simply' seeking discovery of the letter of advice of 25 August 2010 in the primary proceedings, they are plainly incorrect.
Mr and Mrs Frigger also appeared to contend that Mr Kitay had discovered the confidential affidavit in related proceedings, and that, somehow, that meant that their pleading in the primary proceedings of the letter of advice of 25 August 2010, obtained from the confidential affidavit, was not an abuse of process.[94] That submission must also be rejected. In the other proceedings to which Mrs Frigger referred, Mr Kitay had maintained a claim for confidentiality over the text of the confidential affidavit, and had maintained a claim for legal professional privilege over the letter of advice dated 25 August 2010.[95]
[94] Appeal ts 58 - 60.
[95] Annexure 'AF5' to Mrs Frigger's affidavit sworn 26 April 2017; YB 27 - 28.
Ground 3 is entirely without substance and should be dismissed.

Ground 4

Ground 4 is unintelligible in its terms. Its particulars are, in effect, limited to a repetition of earlier grounds of appeal. The submissions in support relate to Mr and Mrs Frigger's improper use of the confidential affidavit.
It follows from our earlier conclusions that ground 4 must also be dismissed.

Ground 5

Ground 5 challenges the order made by the judge at first instance with respect to the costs of the proceedings. Although leave is required to pursue such a ground,[96] no application for leave has been made.
[96] Supreme Court Act 1935 (WA), s 60(1)(e).
The ground asserts that the order for indemnity costs should not have been made because the letter from the solicitors conveying the offer of compromise upon which the judge at first instance relied contained '38 false facts'. Leaving to one side the irrelevance of that assertion, the falsity of the unidentified facts asserted in the ground has not been demonstrated in any respect.
In the submissions in support of the ground reference is made to the fact that the letter in question was not marked 'without prejudice save as to costs'. However, clearly the fact that the offer was made on an open basis, without any claim to privilege, does not detract from its relevance on the question of costs.
The ground also overlooks the fact that the judge at first instance ordered indemnity costs for two reasons - first, the unreasonable rejection of the offer of compromise by Mr and Mrs Frigger, and second, their persistence in a hopeless case and their making of allegations which amounted to an abuse of process.[97] The ground of appeal made no challenge to the second reason given by the judge at first instance for ordering indemnity costs. At the oral hearing of the appeal, Mr and Mrs Frigger applied to amend the ground of appeal to allege that, even if they failed in respect of grounds 1 ‑ 4, the judge erred in ordering indemnity costs against them.[98]
[97] Costs decision [9] - [10].
[98] Appeal ts 70.
The application to amend should be refused. It has no merit. For the reasons given earlier, the claims made by Mr and Mrs Frigger in the primary proceedings included allegations which amounted to an abuse of process, and which otherwise had no arguable merit. Indemnity costs was the appropriate order.
Leave to appeal in respect of ground 5 should be refused, and the ground dismissed.

Conclusion

For these reasons the appeal should be dismissed.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: FRIGGER -v- KITAY [No 2] [2017] WASCA 139 (S)

CORAM: MARTIN CJ
MURPHY JA
BEECH JA

HEARD: 27 JULY 2017

DELIVERED : 18 OCTOBER 2017

FILE NO/S: CACV 45 of 2016

BETWEEN: HARTMUT FRIGGER
ANGELA FRIGGER
Appellants
AND
MERVYN JONATHAN KITAY
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :LE MIERE J
Citation  :FRIGGER -v- KITAY [2016] WASC 60
File No  :CIV 1606 of 2015

Catchwords:

Costs - Application for indemnity costs - Order sought against in person litigants - Turns on own facts

Legislation:

Nil

Result:

Application granted

Category: B

Representation:

Counsel:

Appellants: No appearance
Respondent: Mr D W John

Solicitors:

Appellants: No appearance
Respondent: Herbert Smith Freehills

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

Frigger v Clavey Legal Pty Ltd [No 3] [2016] WASCA 209
Frigger v Kitay [2016] WASC 60
Frigger v Kitay [2016] WASC 60 (S)
Frigger v Kitay [No 2] [2017] WASCA 139
Frigger v Lean [No 2] [2016] WASCA 212
Frigger v Professional Services of Australia Pty Ltd [No 2] [2016] WASCA 68
Hughes v St Barbara Ltd [2011] WASCA 234 (S)
Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344
Tey v Optima Financial Group Pty Ltd [2012] WASCA 192
Yara Australia Pty Ltd v Oswal [2012] WASCA 264

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].
In Yara Australia Pty Ltd v Oswal,[104] Murphy JA (McLure P agreeing) said:[105]
[104] Yara Australia Pty Ltd v Oswal [2012] WASCA 264.
[105] Yara Australia [33].
There must be some special or unusual feature of the case to warrant an award of indemnity costs: Colgate-Palmolive Co v Cussons Pty Ltd [1993] FCA 801; (1993) 46 FCR 225, 233. The categories of cases in which an indemnity costs order may be made are not closed: Colgate‑Palmolive Co v Cussons (233). In Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Ltd [1988] FCA 202; (1988) 81 ALR 397, 401, Woodward J said that indemnity costs were appropriate where the action 'has been commenced or continued in circumstances where the applicant, properly advised, should have known that he had no chance of success'. As Pullin J observed in Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122 (S); (2003) 28 WAR 95 [25], an order for indemnity costs may be seen as a 'mark of disapproval on the part of the court about the improper or unreasonable conduct of litigation'. It is sufficient to enliven the discretion to award indemnity costs that, for whatever reasons, a party persists in what should on a proper consideration seem to be a hopeless case: Quancorp Pty Ltd v MacDonald [1999] WASCA 101 [6].
Further, with specific reference to in person litigants, in Tey v Optima Financial Group Pty Ltd,[106] Pullin and Newnes JJA said:
[106] Tey v Optima Financial Group Pty Ltd [2012] WASCA 192 [16].
Where it is alleged that a person's conduct was improper or unreasonable so as to justify an order for indemnity costs, the fact that the person was without legal representation will ordinarily be a relevant factor in determining whether such an order is justified. What might be considered conduct warranting an indemnity costs order where a party is legally represented may not appear in the same light when account is taken of the lack of legal expertise of a litigant in person. That will necessarily depend upon the particular circumstances of the case. But where, after taking into account the lack of legal representation, the conduct of an unrepresented party is such as to warrant an indemnity costs order the court should not be reluctant to make such an order. Litigants in person have the capacity to inflict a great deal of unnecessary expense and hardship on other parties and the court should not stay its hand where such censure is properly called for.
In Hughes v St Barbara Ltd,[107] this court said, in effect, that where a party has made a Calderbank offer at first instance, such an offer may, in appropriate circumstances, be taken into account when it comes to the question of costs on the appeal. However, the existence of a pre‑trial offer should ordinarily be given less weight than an offer made during the appeal, and the absence of an offer during the appeal proceedings is also a relevant factor. We would not see the observations in Miwa, to which the appellants referred, as indicating a contrary position.
[107] Hughes v St Barbara Ltd [2011] WASCA 234 (S) [24] ‑ [26].
In this matter the appellants, at first instance, sought leave to commence proceedings against the respondent alleging misconduct. The statement of claim made extremely serious allegations against the respondent, a liquidator and officer of the court. The allegations were summarised in the appeal decision.[108] They included allegations to the effect that the respondent swore false affidavits and fabricated accounting information. In broad terms, the primary judge found that the allegations were an abuse of process and, or alternatively, were unsupported by evidence sufficient to justify the grant of leave and had no real prospects of success. The primary judge awarded indemnity costs against the appellants on two bases, one being the unreasonable rejection of an offer of compromise and the other being that it was a hopeless case involving an abuse of process.[109]
[108] Appeal decision [9].
[109] Frigger v Kitay [2016] WASC 60 (S) [9] ‑ [10].
The appellants appealed on five grounds. In the appeal decision the court found that ground 1 had misquoted the judge's reasons,[110] lacked any merit,[111] and included an assertion that was plainly wrong.[112] Ground 2 was dismissed on the basis that the judge's findings of abuse were plainly correct in relation to the appellants' repeated assertions about the effect of a deed of company arrangement and the solvency of Computer Accounting and Tax Pty Ltd (CAT).[113] Also, it should be added here, that this was not the first time that the appellants have sought to challenge matters concerning and relating to the liquidation of CAT which were determined many years ago.[114] Ground 3 was, as this court observed, scandalous and bizarre in that it referred to a conspiracy by persons of South African origin. It was entirely without substance.[115] Ground 4 was unintelligible.[116] Ground 5 required the grant of leave, but no leave was sought, and the ground had no arguable merit.[117]
[110] Appeal decision [73].
[111] Appeal decision [92]
[112] Appeal decision [97].
[113] Appeal decision [99].
[114] See, eg, Frigger v Professional Services of Australia Pty Ltd [No 2] [2016] WASCA 68 [8] ‑ [32], [65] ‑ [78]; Frigger v Clavey Legal Pty Ltd [No 3] [2016] WASCA 209 [152] ‑ [154]. See also Frigger v Lean [No 2] [2016] WASCA 212 in relation to other proceedings commenced by the appellants having been dismissed as an abuse of process.
[115] Appeal decision [100], [113].
[116] Appeal decision [114].
[117] Appeal decision [116] - [121].
On any proper consideration of the matter, this was a hopeless appeal. The appellants are, or have been, persons in professional occupations and business people. They have, over the last decade or so, been involved in what was described in the appeal decision as a torrent of litigation in relation to events concerning CAT and the winding up of CAT. Their commencement and pursuit of the appeal indicates an unwillingness, rather than an incapacity, to appreciate that their complaints about the primary judge's decision lacked any merit. Their lack of legal representation is not a factor of any significance in the present circumstances.
Accordingly, in all the circumstances, this is an appropriate case to award indemnity costs. That conclusion is confirmed by, but not dependent upon, the additional consideration that the purpose of the appeal was to restore proceedings which had been found to be an abuse of process, in circumstances where the abuse of process had been pointed out and explained in the offer of compromise made prior to the determination of the proceedings at first instance.
Accordingly, there will be an order in the following terms:
The appellants do pay the respondent's costs of the appeal to be assessed on an indemnity basis so that the respondent is fully indemnified for his costs except insofar as the costs may have been unreasonably incurred or are unreasonable in amount.