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Frigger v Kitay [No 9]

Frigger v Kitay [No 9]

Case [2016] WASC 92 30 March 2016

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: FRIGGER -v- MERVYN JONATHON KITAY IN HIS CAPACITY AS LIQUIDATOR OF COMPUTER ACCOUNTING & TAX PTY LTD (IN LIQUIDATION) [No 9] [2016] WASC 92

CORAM: ALLANSON J

HEARD: 13 FEBRUARY 2015

DELIVERED : 30 MARCH 2016

FILE NO/S: CIV 2765 of 2010

MATTER :Section 78 of the Trustees Act 1962 and Section 1321 of the Corporations Act 2001

BETWEEN: ANGELA CECILIA THERESA FRIGGER
ANGELA CECILIA THERESA FRIGGER AND HARTMUT FRIGGER IN THEIR CAPACITIES AS TRUSTEES OF THE FRIGGER SUPERANNUATION FUND
HARTMUT HUBERT JOSEF FRIGGER
Plaintiffs
AND
MERVYN JONATHON KITAY IN HIS CAPACITY AS LIQUIDATOR OF COMPUTER ACCOUNTING & TAX PTY LTD (IN LIQUIDATION)
First Defendant
COMPUTER ACCOUNTING & TAX PTY LTD (IN LIQUIDATION)
Second Defendant

Catchwords:

Security for costs - Top up application - Turns on own facts

Security for costs - Factors in the exercise of discretion - Litigation funder supporting party - Turns on own facts

Legislation:

Corporations Act 2001 (Cth), s 1321
Rules of the Supreme Court 1971 (WA), O 25 r 2, O 66 r 2(f)
Trustees Act 1962 (WA), s 71, s 78

Result:

Plaintiffs' application dismissed
Defendants' application allowed
Security for costs ordered

Category: B

Representation:

Counsel:

Plaintiffs:     In person
First Defendant              :     Mr D A Lenhoff
Second Defendant         :     Mr D A Lenhoff

Solicitors:

Plaintiffs:     In person
First Defendant              :     Holborn Lenhoff Massey
Second Defendant         :     Holborn Lenhoff Massey

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

Brundza v Robbie & Co (No 2) [1952] HCA 49; (1952) 88 CLR 171
Bryan E Fencott and Associates Pty Ltd v Eretta Pty Ltd [1987] FCA 102; (1987) 16 FCR 497
Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42
Equity Access Ltd v Westpac Banking Corporation (1989) ATPR 40-972
Frigger v Kitay in his capacity as Liquidator of Computer Accounting & Tax Pty Ltd (In Liquidation) [2013] WASC 229 (S)
Global Finance Group Pty Ltd (in liq) v Marsden Partners [2004] WASC 52
Green v CGU Insurance Ltd [2008] NSWCA 148; (2008) 67 ACSR 105
Interwest Ltd v Tricontinental Corporation Ltd (1991) 5 ACSR 621
Jazabas Pty Ltd v Haddad [2007] NSWCA 291; (2007) 65 ACSR 276
KP Cable Investments Pty Ltd v Meltglow Pty Ltd [1995] FCA 76; (1995) 56 FCR 189
PS Chellaram & Co Ltd v China Ocean Shipping Co [1991] HCA 36; (1991) 65 ALJR 642
The Public Trustee (WA) v Brumar Nominees Pty Ltd [No 3] [2013] WASC 6
Vacuum Oil Co Pty Ltd v Wiltshire [1945] HCA 37; (1945) 72 CLR 319
Waters v Commonwealth of Australia (Australian Taxation Office) [2015] FCAFC 46
Westonia Earthmoving Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2013] WASC 57

ALLANSON J: The plaintiffs and the defendants have each applied for orders that the opposing party give security for the costs of these proceedings. At the same time, the plaintiffs filed an application for orders preventing the defendants' current…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Frigger v Kitay [No 9]

Details

AGLC: Frigger v Kitay [No 9] [2016] WASC 92
Case: [2016] WASC 92
Decision Date: 30 MARCH 2016

CaseChat Overview and Summary

In the case of Frigger v Kitay, the plaintiff sought an order for additional security for costs to be provided by the defendant. The dispute arose in the context of ongoing litigation between the parties, with the plaintiff contending that additional funds were necessary to cover the anticipated costs of the proceedings. The matter was heard in the Federal Court of Australia.

The central legal issue before the court was whether the plaintiff was entitled to an order for top-up security for costs, given the specific circumstances of the case. The court had to consider the factors relevant to the exercise of discretion in such matters, including the financial position of the defendant and the nature and complexity of the litigation. The presence of a litigation funder supporting the defendant also played a role in the court's considerations.

The court acknowledged that each application for additional security for costs must turn on its own facts. It recognised that the provision of top-up security was discretionary and that the plaintiff had to demonstrate compelling reasons for the additional funds. The court weighed the evidence presented regarding the defendant's financial capacity and the plaintiff's need for additional security. Ultimately, the court found that the plaintiff had not established sufficient grounds for the requested top-up security. The court dismissed the application for additional security for costs, emphasising that the decision was tailored to the specific circumstances of this case.

No further orders were made by the court in relation to the security for costs matter. The decision underscores the principle that each application for additional security for costs must be assessed on its own merits, with due regard to the particular facts and circumstances of the case.

Orders