Frigger v Lean [No 2]
[2016] WASCA 212
•30/11/16
FRIGGER -v- LEAN [No 2] [2016] WASCA 212
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASCA 212 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:65/2015 | 24 OCTOBER 2016 | |
| Coram: | MARTIN CJ BUSS P MURPHY JA | 30/11/16 | |
| 31 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to appeal, and the appeal, dismissed | ||
| B | |||
| PDF Version |
| Parties: | ANGELA FRIGGER HARTMUT FRIGGER GRAEME TREVOR LEAN |
Catchwords: | Abuse of process Application to permanently stay proceedings Claim based on substantially the same facts as previous unsuccessful claim Turns on own facts |
Legislation: | Nil |
Case References: | Allmark v Mossensons (a firm) [2006] WASCA 127 Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175 Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 11] [2016] WASC 365 Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 6] [2014] WASC 105 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 [No 3] [2010] WASC 2 Frigger v Campbell-Smith [2010] WASC 353 Frigger v Lean [2012] WASCA 66 Frigger v Lean [2015] WASC 125. Frigger v Professional Services of Australia Pty Ltd [No 3] [2014] WASCA 69 Leybourne v Habkouk [2012] NSWCA 212 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 Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 2] [2009] WASCA 183 (S) Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 2] [2010] WASC 113 Re Luck [2003] HCA 70; (2003) 78 ALJR 177 Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4; (2015) 48 WAR 93 Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28 Trawl Industries of Australia Pty Limited v Effem Foods Pty Limited (1992) 36 FCR 406 Tyne (Trustee) v UBS AG [2016] FCA 241 Wing Luck Foods v Lay Choo Lim [1989] WAR 358 Zavodnyik v Alex Constructions Pty Ltd [2005] NSWCA 438; (2005) 67 NSWLR 457 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : FRIGGER -v- LEAN [No 2] [2016] WASCA 212 CORAM : MARTIN CJ
- BUSS P
MURPHY JA
- HARTMUT FRIGGER
Appellants
AND
GRAEME TREVOR LEAN
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MITCHELL J
Citation : FRIGGER -v- LEAN [2015] WASC 125
File No : CIV 2408 of 2014
Catchwords:
Abuse of process - Application to permanently stay proceedings - Claim based on substantially the same facts as previous unsuccessful claim - Turns on own facts
Legislation:
Nil
Result:
Application for leave to appeal, and the appeal, dismissed
Category: B
Representation:
Counsel:
Appellants : In person
Respondent : Mr J Healy
Solicitors:
Appellants : In person
Respondent : DLA Piper
Case(s) referred to in judgment(s):
Allmark v Mossensons (a firm) [2006] WASCA 127
Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 11] [2016] WASC 365
Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 6] [2014] WASC 105
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 [No 3] [2010] WASC 2
Frigger v Campbell-Smith [2010] WASC 353
Frigger v Lean [2012] WASCA 66
Frigger v Lean [2015] WASC 125
Frigger v Professional Services of Australia Pty Ltd [No 3] [2014] WASCA 69
Leybourne v Habkouk [2012] NSWCA 212
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
Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 2] [2009] WASCA 183 (S)
Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 2] [2010] WASC 113
Re Luck [2003] HCA 70; (2003) 78 ALJR 177
Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4; (2015) 48 WAR 93
Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28
Trawl Industries of Australia Pty Limited v Effem Foods Pty Limited (1992) 36 FCR 406
Tyne (Trustee) v UBS AG [2016] FCA 241
Wing Luck Foods v Lay Choo Lim [1989] WAR 358
Zavodnyik v Alex Constructions Pty Ltd [2005] NSWCA 438; (2005) 67 NSWLR 457
- REASONS OF THE COURT:
Introduction
1 The appellants, Mr and Ms Frigger, seek leave to appeal against a decision of Mitchell J (as his Honour then was). His Honour permanently stayed proceedings (primary proceedings) in which the appellants claimed damages in relation to a contract for the sale and purchase of a share in Banning Holdings Pty Ltd (Banning Holdings) from the respondent, who was a court-appointed receiver (Mr Lean): Frigger v Lean1 (primary reasons). His Honour found that the primary proceedings constituted an abuse of process of the court, effectively on the basis that Mr and Ms Frigger had made claims against Mr Lean in earlier proceedings, based on the same facts and essentially claiming the same monetary relief for the same loss, which had been dismissed. The reasons for dismissing those earlier proceedings were delivered on 28 March 2014 in Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 6]2 (CAT v PSA [No 6]).
2 The primary proceedings were one of the latest iterations in a series of proceedings stemming from a dispute commencing in 2003 between Computer Accounting and Tax Pty Ltd (CAT), a company of which the appellants were sole shareholders and directors, and Mr Martin Banning and his associated company, Professional Services Australia Pty Ltd (PSA).3 It is convenient to outline some of the history of this litigation in order to understand the context in which Mr and Ms Frigger brought both the primary proceedings against Mr Lean, and their claims in the earlier proceedings against Mr Lean (described later in these reasons as the 'Receivership claims').
Background
The original dispute and the original proceedings
3 The original dispute arose out of CAT's agreement to purchase from PSA a property in Armadale. Part of the property was leased and a BP service station/roadhouse and an automotive workshop were operated from the leased area.4 Two contracts were entered into, with a total purchase price of $665,000.5 Settlement occurred on 1 May 2003.6 Following settlement, issues arose in respect of outstanding amounts owing under the leases attached to the Armadale property.
4 On 17 September 2003, CAT commenced proceedings No 17065 of 2003 in the Local Court against PSA and Mr Banning for 'loss incurred in the purchase of [the Armadale property] as a result of misleading or deceptive conduct'.7 On 14 November 2005, the proceedings were transferred into the District Court. The District Court proceedings were initially CIV 332 of 2004, but later became CIV 2797 of 2005.8 On 17 November 2006, following an unsuccessful attempt to have the proceedings transferred into the Federal Court, the District Court proceedings were transferred into the Supreme Court and became CIV 2265 of 2006.9
5 On 2 November 2007, the matter went to trial. CAT's claims included claims for misleading or deceptive conduct in relation to alleged misrepresentations made by Mr Banning in relation to the sale.
6 Simmonds J delivered reasons for judgment in favour of CAT: Computer Accounting and Tax Pty Ltd v Professional Services of Australia Pty Ltd.10 His Honour awarded CAT damages in the sum of $967,202.50.11
7 On 25 July 2008, PSA and Mr Banning appealed the assessment of damages awarded against them.12
Stay application by PSA and Mr Banning pending the hearing of their appeal
8 On 25 August 2008, PSA and Mr Banning applied for an order for suspension or a stay of the original judgment pending the hearing and determination of the appeal.13 An interim stay was initially granted.
9 On 24 September 2008, Buss JA dismissed an application to extend the interim stay: Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd.14 His Honour relied on an affidavit provided by Ms Frigger deposing to the fact that CAT had sufficient assets to repay the judgment sum in the event of the appeal being allowed.15
CAT's enforcement of the original judgment: the appointment of Mr Lean as receiver
10 On 21 November 2008, CAT obtained orders pursuant to s 86(1) of the Civil Judgments Enforcement Act 2004 (WA) (Enforcement Act) in respect of the original judgment. By these orders (Receivership orders), Mr Lean was appointed as receiver over the share owned by Mr Banning in Banning Holdings (the Banning Share) in order to 'appropriate and realise [the Banning Share] so as to satisfy the judgment debt'.16 The only other shareholder in Banning Holdings was Ms Sandra Banning.17
11 On 16 December 2008, a transfer of the Banning Share to Mr Lean was registered in the register of members of Banning Holdings.18 Mr Lean then undertook steps to sell the Banning Share.
12 On or about 10 February 2009, Mr Lean advertised the Banning Share for sale in The West Australian newspaper and invited expressions of interest. On or about 27 February 2009, Mr Lean held a meeting for interested parties.19 There were several offers to purchase the Banning Share, including an offer from Mr and Ms Frigger to purchase the Banning Share for $730,000.20
13 On 10 March 2009, Mr Lean entered into an agreement with Mr and Ms Frigger for the sale of the Banning Share to Mr and Ms Frigger (share sale agreement).21 A deposit of $20,000 was paid on that date and the balance of $710,000 was paid on 25 March 2009.22
14 At all material times, although it was not always known to Mr Lean, the constitution of Banning Holdings contained provisions to the effect that the directors may decline to register any transfer without giving any reason therefor (Article 22), and that no shares in the capital of the company could be sold or transferred unless and until specified rights of pre-emption had been followed (Article 22A).23
15 On 25 March 2009, Mr and Ms Frigger received a letter from Banning Holdings' solicitors informing them that the directors of Banning Holdings would not approve registration of the transfer of the Banning Share.24
16 By email dated 27 March 2009, Mr and Ms Frigger informed Mr Lean that, amongst other things, they required a transfer of share document signed by him to be given as the consideration for the '$730,000 which he has taken for such share'.25 On that same date, Mr Lean completed the transfer document signed by Mr and Ms Frigger, refunded the amount of $710,000, and informed them that settlement under the share sale agreement would be deferred.26 Mr Lean held the deposit of $20,000 from 10 March 2009 until 21 January 2011 on the basis that he considered the sale agreement to be on foot.27
17 On 30 March 2009, Mr Lean's solicitor sent an email to Mr and Ms Frigger in which he said, in effect, that in his view it was appropriate for Mr and Ms Frigger to bring an application to the court in separate proceedings to, amongst other things, compel the directors of Banning Holdings to register the transfer of the Banning Share.28
18 Mr and Ms Frigger then commenced the proceedings referred to below to compel the registration of the transfer of the Banning Share.
Proceedings CIV 1727 of 2009
19 On or about 20 April 2009,29 Mr and Ms Frigger commenced proceedings CIV 1727 of 2009 against, amongst others, Mr Campbell-Smith, who had replaced Mr Banning as a director of Banning Holdings on 14 July 2008.30 Mr and Ms Frigger sought relief under s 1071F of the Corporations Act 2001 (Cth) or, alternatively, mandatory final injunctive orders to the same end under the general law.31 Mr Lean was initially joined as a second plaintiff, but was subsequently removed and added as a fourth defendant, and a declaratory order and a form of mandatory injunction were sought by Mr and Ms Frigger against Mr Lean.32
20 Ultimately, by reasons delivered on 2 December 2010, Kenneth Martin J granted a permanent stay of these proceedings.33 Amongst other things, his Honour had regard to the following matters that he found had occurred since the commencement of the proceedings in CIV 1727 of 2009:
(a) the Court of Appeal heard and allowed the appeal by PSA and Mr Banning, thereby reducing the judgment debt in CIV 2265 of 2006 in favour of CAT;34
(b) payments made before the Court of Appeal's decision to CAT meant that the judgment debt in CIV 2265 of 2006 had been effectively extinguished, and CAT had been left with an overpayment representing the difference between the amount paid and the amount to which the judgment debt was reduced on appeal;35
(c) CAT went into liquidation without having paid to PSA and Mr Banning the amount of the 'overpayment';36 and
(d) on 10 November 2010, Mr Lean had been removed as receiver over the Banning Share.37
21 In his reasons, his Honour said:38
The Receiver's sale of [the Banning Share] in March 2009 to the Friggers, was conceived in a very different underlying factual environment. There was then a subsisting judgment debt to CAT. That is no longer so. The Receiver was removed on 10 November 2010.
…
The pointlessness scenario provides, prima facie, a basis for [Banning Holdings'] directors to continue to decline to process the Receiver's transfer of [the Banning Share] to the Friggers - based upon power in the directors to reject a transfer under Article 22. … Absent a subsisting judgment debt to be recovered by a Receiver (who is now removed), there is no sufficient underlying rationale in principle to support enforcement orders against the directors of [Banning Holdings] compelling the registration of a share transfer to the Friggers. More particularly, that is so when the sale is not a disposition to an arms length third party, but rather to parties inseparably associated with the (former) judgment creditor, CAT.
Had I not ordered a permanent stay of proceedings I would, in any event, still have required the Friggers to provide a bank guarantee to the Receiver for the outstanding purchase price in the amount of $710,000 - before considering allowing the action to proceed further, were it not permanently stayed on the basis of the considerations which I have discussed.
22 On 9 February 2011, Kenneth Martin J made orders permanently staying the proceedings in CIV 1727 of 2009 and ordered that Mr and Ms Frigger pay certain costs of Mr Lean. On 27 March 2012, the Court of Appeal refused Mr and Ms Frigger's application for leave to appeal against those costs orders.39
Hearing and determination of the appeal by PSA and Mr Banning
23 The appeal by PSA and Mr Banning was heard on 22 July 2009. Mr Campbell-Smith, who had been appointed executor of Mr Banning's estate, became the second appellant in the appeal.40
24 The Court of Appeal upheld the appeal on damages. Reasons were published on 23 October 2009.41 The damages awarded to CAT against PSA and Mr Banning had been substantially reduced to $424,449.42
25 However, CAT had already been paid, in the meantime, the sum of $1,165,661.59 in June 2009.43 That sum was then paid by CAT to Mr and Ms Frigger.44
26 Following the delivery of reasons for judgment by the Court of Appeal on 23 October 2009, there was some dispute as to final orders. Following further submissions, the Court of Appeal delivered supplementary reasons on 7 December 2009. In these supplementary reasons, the Court of Appeal observed:45
The appellants [PSA/Mr Banning] eventually satisfied the judgment entered at first instance, by payments made on 2 June and 5 June 2009. Because of the allowance of the appeal, and the reduction in the judgment entered, they are entitled to a refund of the moneys overpaid, together with interest. There is no dispute between the parties as to the amounts involved.
27 The Court of Appeal ordered, amongst other things:46
4. The respondent [CAT] do pay to the appellants [PSA/Mr Banning] 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/Mr Banning] 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.
6. The respondent [CAT] do pay to the appellants [PSA/Mr Banning] 80% of their taxed costs of the appeal, save that in respect of the appellants' costs of the issues relating to the orders to be made upon publication of the court's reasons, the respondent [CAT] do pay the entirety of the appellants' [PSA/Mr Banning] costs to be taxed on an indemnity basis, in that the appellants [PSA/Mr Banning] are to be awarded all costs reasonably incurred which are reasonable in amount.
…
8. The costs orders made on 6 May 2009 by the trial judge be set aside and the question of the costs of the trial be remitted to the trial judge for reconsideration in light of the reasons of this court.
9. Liberty to apply within 14 days in relation to whether there should be a stay of any of orders 4, 5 and 7.
28 As noted below, CAT was later wound up in insolvency, effectively as a result of its non-compliance with these orders of the Court of Appeal.
The winding up of CAT
29 On 8 January 2010, following CAT's failure to comply with a statutory demand served on it on 1 December 2009, an application was made for the appointment to CAT of a provisional liquidator.47 Simmonds J appointed Mr Kitay as provisional liquidator.48 Mr and Ms Frigger applied to have Mr Kitay removed, but their application was dismissed.49
30 On 6 May 2010, following non-compliance with a statutory demand and no application having been made to set it aside, Master Sanderson made an order that CAT be wound-up in insolvency.50 The statutory demand related to the amounts ordered to be paid by CAT following the successful appeal by PSA and Mr Banning, referred to in [24] - [27] above.
Proceedings against Mr Lean - overview
31 Mr and Mrs Frigger instituted a number of claims and proceedings following Master Sanderson's orders winding-up CAT. These included claims against Mr Lean in CIV 2265 of 2006 (Receivership claims) which were heard in 2013 and determined adversely to Mr and Ms Frigger in March 2014, and the primary proceedings in 2015 before Mitchell J.
32 In the primary proceedings, Mr and Ms Frigger claimed damages for alleged breach of contract in connection with the (failed) sale and purchase of the Banning Share arising out of the Receivership orders. In essence, Mitchell J found that the primary proceedings were an abuse of process insofar as they were based wholly or substantially on the facts of the unsuccessful Receivership claims. Mitchell J said:51
I … accept that the pursuit of the present proceedings is an abuse of process of the court. The plaintiff, Ms Frigger, accepts that the facts on which the claims were based were the same and that the relief sought in the current proceedings was also sought in CIV 2265 of 2006 in respect of the same loss.
In my view, this is a classic case of plaintiffs who have failed in their claim for compensation in one set of proceedings seeking to make a claim based wholly or substantially on the facts of their earlier unsuccessful claim in respect of the same alleged loss.
33 It is appropriate at this point to refer to the Receivership claims in the proceedings before Simmonds J in CIV 2265 of 2006.
CIV 2265 of 2006: the Receivership claims against Mr Lean and CAT v PSA [No 6]
The Receivership claims
34 On 25 January 2012, Mr and Ms Frigger filed a document in CIV 2265 of 2006 entitled 'Claimants Submissions on the Issue Stated at Paragraph One of the Order of the Honourable Justice Simmonds in Chambers on 16 June 2011'.52 This document was in materially identical terms to another document filed by Mr and Ms Frigger, headed 'Amended Submissions - Claim for Compensation'.53 That document was titled 'In the matter of s 105 Civil Judgments Enforcements Act 2004', and refers to Mr and Ms Frigger as the 'Claimants' and Mr Lean as the 'Respondent'. It included the following:54
1. [Mr and Mrs Frigger] seek directions from this Honourable Court pursuant to section 104 Civil Judgments Enforcement Act … as persons affected by an order made by this court.
2. [Mr and Mrs Frigger] wish to claim compensation from [Mr Lean] for losses they have suffered resulting from irregularities in the carrying out of the order pursuant to section 105 Civil Judgments Enforcement Act.
PARTICULARS
- [Mr Lean] sold the Share the subject of the Receiver Orders contrary to [the] pre-emptive rights attached to the Share.
3. Further [Mr Lean] failed to perform his duty as receiver whilst carrying out the orders made by this Honourable Court.
PARTICULARS
- 3.1 failed to report to this Honourable Court and the judgment creditor regarding the nature and details of the Share;
3.2 failed to provide accurate information to potential purchasers;
3.2 [sic] failed in his duty of care under the [share sale agreement];
3.3 acted in bad faith in related proceedings CIV 1727/2009.
104. Directions, court may give
(1) Any of the following persons may apply to a court for directions in respect of a matter arising under or in connection with the operation or carrying out of an order issued under this Act -
(a) the person who obtained the order;
…
(d) a person who is affected by, or whose property is affected by, the order;
(e) a person who in the opinion of the court has a sufficient interest in the matter.
(2) Such an application must be made -
(a) if the order relates to personal property, to the court that issued the order;
…
(3) On such an application, the court may -
(a) give any directions that are just; and
(b) make any order as to the payment of the costs of the application as are just.
If the court that made an order under Part 4 or 5 or section 101 is satisfied that an irregularity has occurred in connection with the making or carrying out of the order, the court may make any order needed to correct the irregularity including an order -
(a) that sets aside the order or an act done under the order;
(b) that requires the restitution of property or the payment of money, compensation or damages. (emphasis added)
The Applicants [Mr and Ms Frigger] seek compensation from the Respondent [Mr Lean] in connection with the carrying out of a receiver order made appointing the Respondent [Mr Lean] receiver of property on 20 November 2008.
Civil Judgments Enforcement Act (WA) 2004, section 105.
Issues and contentions in the Receivership claims
37 Simmonds J identified seven issues for determination, the first four of which are presently relevant. They were to the following effect:57
1. Did the court have jurisdiction under s 104 or s 105 of the Enforcement Act to entertain the application, particularly given that Mr and Ms Frigger were seeking compensation in respect of the Receivership orders which had since been cancelled?
2. If the answer to the question in issue 1 was yes, was there such jurisdiction notwithstanding Mr Lean's contention that the proceedings were an abuse of process having regard to the issues addressed in proceedings CIV 1727 of 2009 and the appeal from that matter against the costs decision in favour of Mr Lean.
3. If the answer to the question in issue 2 was yes, did Mr Lean's conduct in the respects identified by Mr and Ms Frigger represent an 'irregularity' in carrying out the Receivership orders within the meaning of s 105 of the Enforcement Act?
4. If the answer to the question in issue 3 was yes, what was the power of the court to make orders in this case, and in particular was this power discretionary?
38 In relation to issue 3, Mr and Ms Frigger asserted that Mr Lean had committed six matters or forms of 'irregularity' within the meaning of s 105 of the Enforcement Act:58
(a) offering to sell the Banning Share without first having identified the limitations in the Articles of Association of Banning Holdings represented by Article 22 and Article 22A (alleged irregularity no 1);
(b) failing to comply with Article 22A of Banning Holdings' Articles of Association (alleged irregularity no 2);
(c) failing to obtain the directions of the court before contracting to sell the Banning Share, or failing to make the contract subject to such directions (alleged irregularity no 3);
(d) contracting to sell the Banning Share where, as circumstances transpired, Mr and Ms Frigger were unable to obtain the share registered in their names (alleged irregularity no 4);
(e) promoting the participation of Mr and Ms Frigger in the proceedings in CIV 1727 of 2009 to obtain the registration of the Banning Share in their names, in which he was initially a co-plaintiff who then became a defendant (alleged irregularity no 5);59 and
(f) being a co-plaintiff or being otherwise involved in the proceedings in CIV 1727 of 2009 without first obtaining the directions of the court (alleged irregularity no 6).
Findings by Simmonds J in relation to the Receivership claims
39 Simmonds J delivered reasons for judgment on 28 March 2014.60 With respect to issue 1, his Honour said that there was no dispute that Mr and Ms Frigger had standing to bring their claims under s 105 of the Enforcement Act in the proceedings, and that he 'would be satisfied' that the court had jurisdiction. He said, however, that he need not reach a final view on this issue because of his conclusions with respect to issues 3 and 4.61 He also said that he 'would be satisfied' that the answer to issue 2 was in the affirmative, but again it was not necessary to reach a final view in light of his conclusions on issues 3 and 4.62
40 In relation to alleged irregularities nos 1 - 5, his Honour concluded that these claims by Mr and Ms Frigger had not been established.63 His Honour also appears to have concluded that alleged irregularity no 6 had not been established.64
41 In relation to issue 4, his Honour said that the power under s 105 of the Enforcement Act to make orders is limited by the words 'needed to correct the irregularity'.65 In the present circumstances, no order was needed to correct the irregularity contended for as irregularity no 6.66 Similarly, in relation to irregularities nos 1 - 5, his Honour said that the orders sought by Mr and Ms Frigger under s 105 were in the nature of remedies for failure to provide what they were to receive under the share sale agreement, namely, the Banning Share registered in their joint names.67 His Honour continued:68
However, for the purposes of the application of the Friggers before me, given the contractual relations I have described, I consider it is not apparent that any order under Civil Judgments Enforcement Act s 105 is 'needed to correct the irregularity' in irregularities 1 to 5. Rather, the Friggers should be left to their remedies under those contractual relations. That is, the application by the Friggers under s 105 should be dismissed.
42 Simmonds J concluded:69
On those bases, even if there were irregularitiesin the terms of irregularities 1 to 6, I would not make any orders under Civil Judgments Enforcement Act s 105 in view of the remedies available under the contractual relations between [Mr and Ms Frigger] and [Mr Lean]. (emphasis added)
43 According to the associate's record, Simmonds J ordered that:
[Mr and Ms Frigger's] application in CIV 2265 of 2006 for directions pursuant to sections 104 and 105 of the Civil Judgments Enforcement Act 2004 (WA) be dismissed. (emphasis added)
44 It is convenient to record here that there has been no suggestion in this appeal that this was not a final order.
CIV 2408 of 2014: the primary proceedings against Mr Lean
45 In their statement of claim dated 7 October 2014 Mr and Ms Frigger alleged, amongst other things, that:
26. In breach of the sale agreement [Mr Lean] could not and did not deliver the [Banning Share] registered in the name of [Mr and Ms Frigger] because:
a. he failed to comply with the Pre-emptive Rights Provision
b. the constitution of Banning Holdings reserved to the company's directors a discretion to register the transfer of any share;
…
29. By reasons of his conduct particularized below [Mr Lean] breached the constitution of Banning Holdings Pty Ltd, his duties as an officer of the Court and his duties as the Court appointed Receiver of the [Banning] Share:
a. the offering of the [Banning] Share for sale,
b. contracting with [Mr and Ms Frigger],
c. participating in the proceedings seeking to have the [Banning Share] registered,
d. accepting consideration without having identified the preemptive rights in the constitution of Banning Holdings Pty Ltd or the discretion of the directors as regards registration,
e. failing to obtain directions from the Court,
f. failing to comply with the Pre-emptive Rights Provision
g. acting as a co-plaintiff in proceedings to compel registration.
[Mr Lean submitted] that the only discernible difference between these proceedings and the proceedings in CIV 2265 of 2006 is that the alleged breaches in the current action are framed as breaches of Banning Holdings' constitution and director's duties, or breach of contract, as opposed to an irregularity under s 104 and s 105 of the Act.
47 Mitchell J extracted two tables from Mr Lean's submissions. Mr Lean contended that the first table showed the similarity of the alleged breaches in the two proceedings. The table appears to place each of the breaches outlined in par 29 of Mr and Ms Frigger's statement of claim alongside a corresponding issue under the Enforcement Act (CJEA Issue), being a reference to the six irregularities alleged in the Receivership claims and referred to in CAT v PSA [No 6] (March 2014 judgment). The table appears as follows:71
Para |
Issue |
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48 The second table was said to illustrate that the loss and damage the subject of the primary proceedings and the Receivership claims were identical.72 The table, based on annexures in an affidavit sworn by Mr Edward on behalf of Mr Lean, appears to place each of the costs pleaded in par 35 of Mr and Ms Frigger's statement of claim in the primary proceedings alongside the costs claimed by Mr and Ms Frigger in the Receivership claims. The table appears as follows:73
Para |
Case Statement |
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Para |
Case Statement |
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In an amount to be determined in respect of costs ordered to be paid by the applicants to the respondent in respect of action CIV 1727 of 2009 |
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Findings in the primary reasons
49 Mitchell J held that the pursuit of the primary proceedings by Mr and Ms Frigger was an abuse of process of the court. His Honour made the following principal findings:
1. Ms Frigger's affidavit, sworn 3 March 2015, provided no explanation as to why the current damages claims could not have been, and were not, raised in the Receivership claims in CIV 2265 of 2006. This gave rise to the inference that the primary proceedings were commenced because Mr and Ms Frigger failed in their earlier claims in CIV 2265 of 2006 and now wished to raise a claim which ought to have been raised in those proceedings if it was to be brought.74
2. Mr and Ms Frigger received no assistance from Simmonds J's observations in CAT v PSA [No 6] pertaining to a possible contractual claim. Those observations indicated why the claim which Mr and Ms Frigger made in CIV 2265 of 2006 may have failed if a relevant 'irregularity' had been established, but they did not explain why the current claim was not, or could not have been, made in the earlier proceedings.75 With respect to this point, his Honour said:76
There are some passages in Simmonds J's judgment which might be read to suggest that the plaintiffs might still have such a contractual claim (see, eg, [CAT v PSA [No 6]] [217], [228]). That suggestion arises by the use of the present tense in those paragraphs. I do not read Simmonds J as determining whether a claim could still be made in new proceedings by the use of the present tense. That was not a matter which Simmonds J had any reason to decide.
Further, the comments about [Mr and Ms Frigger's] contractual rights did not form the ultimate basis on which Simmonds J determined the earlier proceedings.
3. It would be unfair and unjustifiably oppressive on Mr Lean to require him to again litigate the same issues after being put through the previous proceedings associated with CAT v PSA [No 6]. To impose the burden of litigation on Mr Lean again would bring the administration of justice into disrepute.77
4. While they may not have been named parties to the proceedings, it was clear that Simmonds J was dealing with claims made by Mr and Ms Frigger in CAT v PSA [No 6].78
5. The contractual relations between Mr and Ms Frigger and Mr Lean, and the remedies available, were addressed in the proceedings before, and considered by, Kenneth Martin J in CIV 1727 of 2009. While the contractual claim was not pleaded at that time and was not the subject of the stay granted by his Honour, the arguments formed part of the background of the litigation. Further, this was another occasion on which Mr Lean was required to deal with arguments of the kind now sought to be advanced.79
6. Mr and Ms Frigger obtained the benefit of the share sale agreement for the Banning Share as part of the execution of the judgment debt arising out of the original proceedings. The quantum of the judgment debt was reduced on appeal. Mr and Ms Frigger's claimed contractual rights arose through an error made by the court in relation to the assessment of the original judgment debt, and from the use of the court's enforcement processes which were not, in fact, required to satisfy the judgment debt as reduced on appeal. It is difficult to perceive any practical injustice flowing from an order precluding Mr and Ms Frigger from pursuing claimed rights obtained in those circumstances, 'which they have failed to claim in the course of the lengthy and dogged pursuit of their interests to which [Mr Lean] has already been subject'.80
Grounds of appeal and appellants' submissions
50 Mr and Ms Frigger raise two grounds of appeal to the following effect:
1. The primary judge's decision to permanently stay the appellants' claim for damages in CIV 2408 of 2014 under the share sale agreement (the Contractual Claim) was a 'jurisdictional error'.
2. The primary judge's decision to permanently stay the Contractual Claim on the basis that it was an abuse of process, was an error of mixed fact and law.
The appellants' arguments in relation to ground one
51 The appellants rely on aspects of the judgment of Simmonds J in CAT v PSA[No 6] that, in effect, point towards 'other process' being available for the remedies and losses sought by the appellants. According to the appellants, by permanently staying the primary proceedings, 'Justice Mitchell has effectively overturned the decision of Justice Simmonds, for which he has no authority'.81
The appellants' arguments in relation to ground two
52 The appellants identified 10 alleged errors by Mitchell J. In summary, the appellants submit that the judge erred:
1. In finding that 'the plaintiffs' current contractual claim could and should have been made in the earlier proceedings'.82 According to the appellants, this gives rise to an inference that Mitchell J believed the contractual claim had not been brought in the earlier proceedings. However, this inference is wrong insofar as the findings of Simmonds J and the submissions of the appellants make it clear that the contractual claim was brought in the earlier proceedings.
2. In failing to particularise the 'observations' to which his Honour was referring when he said:83
The plaintiffs point to various statements in [CAT v PSA [No 6]] which note a possible contractual claim by the plaintiffs. … These observations do not explain why the current claim was not, or could not have been, made in the earlier proceedings.
3. In finding that it was not necessary for Simmonds J to decide whether a contractual claim could be made in new proceedings. According to the appellants, Simmonds J assessed the respondent's conduct and the losses sustained, and exercised his discretion to allow the appellants to pursue their contractual remedies for breach of contract.
4. In finding that Simmonds J's decision was not based on the appellants' contractual rights. The appellants submit that, in assessing the alleged irregularities, Simmonds J exercised his discretion under s 105 of the Enforcement Act and found that 'no order was needed' because those irregularities gave rise to remedies under contractual relations. Accordingly, the discretionary exercise of the jurisdiction under s 105 of the Enforcement Act and at common law (sic) to allow the appellants to pursue remedies for identified irregularities was the ultimate basis on which the Receivership claims were decided.
5. In finding that the contractual claim was an abuse of process because it was, in effect, commenced as a result of the failed application to Simmonds J.
6. In finding that the respondent had been subject to a substantial burden of litigation and, in effect, would be substantially burdened by the pursuance of the contractual claim, while not giving sufficient weight to the appellants' position. According to the appellants, 'giving considerable weight to the respondent's position and no weight at all to the appellants' position, resulted in the learned judge's error in staying the Contractual Claim as an abuse of process'.84
7. In finding that 'the contractual relations between [Mr and Ms Frigger] and [Mr Lean] and the remedies available were addressed to, and considered by, Kenneth Martin J'.85 According to the appellants, while the irregularities identified before Simmonds J were also relied on by Banning Holdings and its directors for a counterclaim in CIV 1727 of 2009 against the respondent, Kenneth Martin J did not deal with those irregularities as the counterclaim was discontinued. Further, it was said, the appellants cannot be blamed for the respondent's conduct which led the beneficial owner of the Banning Share to make such a counterclaim against the respondent.
8. In finding that the appellants 'obtained the benefit of the contract for the purchase of'86 the Banning Share, when the appellants obtained no benefit of the contract, but only sustained losses.
9. In finding that the appellants were taking advantage of an error made by the court.87 In this regard, the appellants appear to contend that when proper account is taken of the contractual doctrine of frustration, they were not seeking to take advantage of an error made by the court, and the law of contract provided an entitlement to the contractual remedies sought.
10. In finding that:88
It is hard to perceive any real practical injustice which will flow from an order which precludes the plaintiff from now pursuing claimed rights obtained in those circumstances, which they have failed to claim in the course of the lengthy and dogged pursuit of their interests to which the defendant has already been subject.
- According to the appellants, Mr Lean could have avoided further litigation if he had diligently performed his duties as an officer of the court. The only practical injustice that flowed from Mitchell J's decision was that which was imposed on Mr and Ms Frigger in being denied an opportunity to recoup their loss of $376,000 in legal costs, and the loss of $548,112 in the value of the Banning Share.
53 Mr and Ms Frigger sought to adduce additional evidence by applications dated 14 August 2015 and 17 October 2016.
54 The second application concerned leave to adduce evidence in terms of statements made by Mr Lean to Ms Frigger to the effect that they were covered by professional indemnity insurance, and that certain documents filed in CIV 2265 of 2006 which, according to Mr and Ms Frigger, showed that Mr Lean would not be out of pocket in connection with the proceedings in CIV 1727 of 2009. It was alleged that these matters showed that Mitchell J was incorrect to find that the proceedings in CIV 2265 of 2006 imposed a substantial burden on Mr Lean.
55 In their first application, Mr and Ms Frigger sought to adduce evidence of:
(a) a copy of the transcript of proceedings in CIV 1727 of 2009 in chambers before Kenneth Martin J on 21 May 2009;
(b) the associate's record of the orders made in CIV 1727 of 2009 on 9 February 2011 by Kenneth Martin J;
(c) submissions filed by Mr Lean in CIV 2265 of 2006 on 1 August 2011 to the effect that s 105 of the Enforcement Act does not confer an independent right of action, and that if Mr and Ms Frigger had any alleged common law rights, they should bring a claim against Mr Lean in some recognised form of originating process, alleging a recognised cause of action;
(d) Mr and Ms Frigger's submissions dated 12 September 2011 in CIV 2265 of 2006, in which it was alleged by Mr and Ms Frigger that s 105 of the Enforcement Act did provide an independent cause of action. These submissions were prepared, on the face of the document, by Mr and Ms Frigger's then solicitor;
(e) Mr and Ms Frigger's submissions dated 25 July 2013 filed in CIV 2265 of 2006 in relation to the Receivership claims. These submissions were, according to the document, prepared by Mr S K Shepherd of counsel; and
(f) an email from Mr Lean to Ms Frigger dated 17 July 2015.
56 Counsel for Mr Lean did not object to the receipt of these materials on the hearing of the appeal, and the applications were not opposed. In these circumstances, the applications may be granted.
Disposition
57 Three central and recurring general propositions permeated much of the appellants' submissions. They were as follows:
(a) Mr and Ms Frigger's claims for breach of contract fell within the ambit of the Receivership claims litigated before Simmonds J in CIV 2265 of 2006;
(b) Simmonds J dealt with their breach of contract claims by, as a matter of discretion under s 105 of the Enforcement Act, denying relief to them on the basis that those claims could and should subsequently be brought in separate proceedings in the General Division; and
(c) by commencing the primary proceedings claiming breach of contract, Mr and Ms Frigger were merely proceeding consistently with the way in which Simmonds J had addressed their claims in CIV 2265 of 2006.
58 In relation to the first proposition, Ms Frigger, on behalf of the appellants, emphasised that a number of the documents which had been filed in the Receivership claims in CIV 2265 of 2006 referred to the share sale agreement with Mr Lean, and Mr Lean's failure to deliver the Banning Share under that agreement. Reference was made, for example, in particular, to the 'Amended Submissions - Claim for Compensation'; pars 35, 36 and 37 of their 'Case Statement'; and pars 1, 3, 4, 6, 18 - 45 of their written closing submissions dated 25 July 2013 in CIV 2265 of 2006.89 Ms Frigger also sought to emphasise that the Receivership claims did not depend on the identification of a duty of care owed by Mr Lean. Reference in this regard was made to par 10 of their closing submissions.90
59 Having considered the particular matters referred to by Ms Frigger, and having examined each of the documents as a whole, and in connection with each other, the first general proposition advanced by the appellants cannot be accepted. Although it is true that the share sale agreement, and allegations concerning the non-delivery of the Banning Share featured in the claims before Simmonds J, those matters were raised as being, or being relevant to, specified irregularities within the meaning of s 105 of the Enforcement Act, for which statutory compensation was being sought. They were not, on a proper construction of the documents, raised as general law claims for breach of contract.
60 Moreover, even if Simmonds J had been seized of the appellants' general law claims for breach of contract as the appellants contend, that could not assist the appellants in this appeal. That is because his Honour's dismissal of the claims would have resulted in Mr and Ms Frigger being precluded by a cause of action estoppel from raising the claims afresh in the primary proceedings: Tomlinson v Ramsey Food Processing Pty Ltd;91Trawl Industries of Australia Pty Limited v Effem Foods Pty Limited;92Zavodnyik v Alex Constructions Pty Ltd;93Sheraz Pty Ltd v Vegas Enterprises Pty Ltd.94
61 The appellants' second general proposition cannot be accepted for two reasons. The first is that, as indicated above, there was no general law contractual claim of which Simmonds J was seized in CIV 2265 of 2006. Secondly, insofar as there was an asserted irregularity within the meaning of s 105 of the Execution Act arising from or based upon Mr Lean's failure to deliver the Banning Share under the share sale agreement, his Honour dismissed that claim as not having been established by the evidence. In other words, his Honour addressed the merits of the claim and found that it had not been established. His Honour did not find that it should merely be dismissed for discretionary reasons. That is apparent from the following matters:
(a) the irregularities alleged by Mr and Ms Frigger in relation to the share sale agreement, Mr Lean's failure to deliver the Banning Share and associated matters, arose under issue 3;
(b) his Honour found that the alleged irregularities had not been established;
(c) issue 4, which concerned the exercise of discretion, was expressed only to arise if the alleged irregularities were established under issue 3; and
(d) when his Honour's reasons are read as a whole (including, in particular, [223]), his Honour concluded that even if the irregularities had been established, he would not have made orders under s 105 of the Enforcement Act given that common law remedies for breach of contract were available to Mr and Ms Frigger.
62 As to this last-mentioned finding, his Honour was correct in the sense that any claims for breach of contract which Mr and Ms Frigger had would involve common law remedies separate from the statutory claim for compensation sought under s 105 of the Enforcement Act. There was an entirely separate question, however, which Mitchell J in the primary proceedings was required to consider. That was whether any subsequent claims for breach of contract (ie, in proceedings brought subsequent to the Receivership claims) would be susceptible to being permanently stayed as an abuse of process as a result of the dismissal of the Receivership claims. Simmonds J was not required to, and did not, consider that question. Mitchell J was correct in characterising the nature and scope of Simmonds J's reasons in relation to the Receivership claims in this regard.
63 The third general proposition advanced by the appellants cannot, as a consequence of the foregoing, be accepted either.
64 These observations are sufficient to dispose of the first ground of appeal. Essentially, ground 1 proceeds on a misconstruction of Simmonds J's reasons for judgment in the Receivership claims in CIV 2265 of 2006. The above observations also explain why the appellants' first to fifth arguments under ground 2 cannot be accepted and why, to the extent that the three central propositions are reflected in the appellants' sixth to tenth arguments, those arguments cannot be accepted either. In relation to appellants' sixth to tenth arguments under ground 2, the following additional observations may be made.
65 His Honour did not err in 'giving considerable weight to the respondent's position and no weight at all to the appellants' position'.95 On any objective view, the primary proceedings were unjustifiably oppressive and unfairly burdensome in circumstances where identical facts underpinned both the Receivership claims under s 105 of the Enforcement Act, and the contractual claims in the primary proceedings; the claimed loss was materially the same; the parties were relevantly, and in substance, the same (although the statutory claim was brought under the umbrella of proceedings between CAT and PSA and Mr Banning, that claim was litigated only between Mr and Ms Frigger and Mr Lean); the witnesses and evidence in the primary proceedings would have been the same as in the Receivership claims; and the Receivership claims had been heard over several days in 2013.
66 Further, even if Mr Lean were protected as to his costs, the strains imposed upon litigants are well recognised: Aon Risk Services Australia Limited v Australian National University.96 Moreover, the fact that a person had taken the precaution of obtaining insurance to meet claims, or the cost of claims, that might be brought against him or her, would ordinarily be collateral to any objective assessment of whether subsequent proceedings against that person were seriously and unfairly burdensome or unjustifiably oppressive.
67 In relation to proceedings CIV 1727 of 2009, it was open to the primary judge to consider the question of abuse within the broader context of the litigation between the parties. However, even if that matter were disregarded, the result would be no different.
68 Further, the appellants appear to contend that they had rights under the law of contract, for the enforcement of which they were absolutely entitled to invoke the exercise of judicial power by way of the commencement and prosecution of the primary proceedings. That submission misses the mark. A plaintiff does not have the right to prosecute an asserted claim at law to judgment if the proceedings in which the claim is prosecuted are an abuse of process. Further, the judge was correct in exercising his discretion to stay the primary proceedings, to take into account that the share sale agreement preceded both the payment of the original judgment in full, and the reduction of the original judgment debt following the successful appeal by PSA and Mr Banning in 2009. In those circumstances, it is difficult to conceive that Mr and Ms Frigger would have recovered substantial damages for the non-delivery of the Banning Share. Again, however, even if this point were to be disregarded, it would not affect the result in this case.
69 Three final points may be made.
70 First, Mr and Ms Frigger do not contend in this appeal that his Honour erred in concluding, in effect, that there was no procedural impediment to Mr and Ms Frigger bringing their claim in contract in CIV 2265 of 2006. It is perhaps difficult, with respect, to see how a general law cause of action in contract by Mr and Ms Frigger against Mr Lean might have been introduced in proceedings CIV 2265 of 2006 between CAT and PSA and Mr Banning. Nevertheless, even if that point had been raised, it would not have made any difference to the result. That is because such a claim could, and should, in any event, have been brought in separate proceedings and heard in tandem97 in connection with the statutory claim under s 105 of the Enforcement Act. See, for example, Sheraz.98
71 Secondly, Mr Lean did not contend (either in this appeal or below) that the substance of the controversy of the contractual claims had been litigated before Simmonds J, giving rise to a cause of action estoppel notwithstanding the differences in the legal forms of the two claims: cf Trawl;99Zavodnyik;100Sheraz.101
72 The third point is this. By letter dated 12 November 2016 to Buss P's associate, the appellants sought to draw the court's attention to a decision of Master Sanderson handed down since the hearing of the appeal herein. On 18 November 2016, the appellants filed an application and affidavit in support seeking to adduce additional evidence in the form of the Master's decision and in relation to consequential changes to the orders sought in the appeal. Justice Buss directed that the appellants' application be referred to the coram for the purposes of it being addressed in these reasons.
73 The Master's decision is Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 11]102 (Fee Decision). The Fee Decision related to a claim by Mr Lean in CIV 2265 of 2006 for fees in relation to his work as a court-appointed receiver. The claim was resisted by PSA and Mr Campbell-Smith as executor of Mr Banning's estate. The Master made certain criticisms of Mr Lean's conduct and concluded that Mr Lean should not receive all of his claimed costs in respect of work undertaken after the sale of the Banning Share, because it did not appear to have been strictly necessary.103 The appellants said in their letter that the Master's findings are 'capable of this court finding Mr Lean liable for damages in the contract of sale, leaving only an assessment of the appellants' damages'. The Fee Decision has no bearing on this appeal. The Master's findings are not capable of achieving the object suggested by the appellants and, even if they were, the achievement of that object could have no relevance to the critical question of whether the primary proceedings were an abuse of process.
Conclusion
74 It was not in dispute that the orders of Mitchell J were interlocutory.104 The principles in relation to leave to appeal are well known.105
75 It has not been shown that the decision below was wrong, let alone attended with sufficient doubt to justify the granting of leave. That is sufficient to dispose of the appellants' application for leave to appeal.
76 Nor, in any event, have the appellants shown that substantial injustice would be done in the circumstances, if the decision were left unreversed. Those circumstances are that the appellants' claims in contract arose in connection with the enforcement of the original judgment debt which was paid in full, the amount of which was subsequently substantially reduced on appeal, and where, at a time when Mr and Ms Frigger were, in effect, in control of CAT, the money representing the paid judgment debt was removed from CAT and paid to the appellants, before CAT went into liquidation in insolvency.
77 The appellants' application for leave to appeal, and the appeal, should be dismissed.
1Frigger v Lean [2015] WASC 125.
2Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 6] [2014] WASC 105.
3Computer Accounting and Tax Pty Ltd v Professional Services of Australia Pty Ltd [2008] WASC 133 (original judgment) [8].
4 Original judgment [16], [18], [22] - [24].
5 Original judgment [26] - [28].
6 Original judgment [32].
7 Original judgment [8].
8 Original judgment [9].
9 Original judgment [10].
10 Original judgment.
11Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 2] [2009] WASCA 183 (PSA v CAT [No 2]) [45].
12Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [2008] WASCA 222 (PSA v CAT WASCA 222) [4].
13PSA v CAT WASCA 222 [5].
14PSA v CAT WASCA 222.
15PSA v CAT WASCA 222 [24], [27].
16CAT v PSA [No 6] [5].
17CAT v PSA [No 6] [6].
18CAT v PSA [No 6] [7].
19CAT v PSA [No 6] [10], [12].
20CAT v PSA [No 6] [14].
21CAT v PSA [No 6] [19] - [28].
22CAT v PSA [No 6] [17] - [18], [34].
23CAT v PSA [No 6] [8] - [9], [33]; primary reasons [7].
24CAT v PSA [No 6] [35].
25CAT v PSA [No 6] [39].
26CAT v PSA [No 6] [40] - [41].
27 Primary reasons [18].
28CAT v PSA [No 6] [42].
29CAT v PSA [No 6] [43].
30Frigger v Campbell-Smith [2010] WASC 353 [8].
31Frigger v Campbell-Smith [25] - [26].
32 Re-amended statement of claim, filed 16 June 2009 in CIV 1727 of 2009.
33Frigger v Campbell-Smith.
34Frigger v Campbell-Smith [16], [90].
35Frigger v Campbell-Smith [17], [91].
36Frigger v Campbell-Smith [17].
37Frigger v Campbell-Smith [97].
38Frigger v Campbell-Smith [97], [104] - [105].
39Frigger v Lean [2012] WASCA 66.
40Frigger v Professional Services of Australia Pty Ltd [No 3] [2014] WASCA 69 [12].
41PSA v CAT [No 2].
42 Primary reasons [22].
43Computer Accounting and Tax Pty Ltd v Professional Services of Australia Pty Ltd [No 3][2010] WASC 2 [6].
44Frigger v Professional Services of Australia Pty Ltd [No 2] [2016] WASCA 68 [6].
45Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 2] [2009] WASCA 183 (S) (PSA v CAT [No 2] (S)) [13].
46PSA v CAT [No 2] (S) [21].
47Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [2010] WASC 38 (PSA v CAT WASC 38) [17].
48PSA v CAT WASC 38 [95].
49Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 2] [2010] WASC 113.
50Professional Services of Australia Pty Ltd (Administrator Appointed) v Computer Accounting and Tax Pty Ltd [No 3] [2010] WASC 93 (PSA v CAT [No 3]).
51 Primary reasons [37] - [38].
52CAT v PSA [No 6] [59].
53CAT v PSA [No 6] [59]. Note, the document referred to by Simmonds J as 'Amended Submissions - claim for compensation ordered to be filed' appears to be the same document located at GB 47 entitled 'Amended Submissions - Claim for Compensation' filed 26 September 2011.
54 GB 47.
55CAT v PSA [No 6] [74] - [76].
56 YB 70.
57CAT v PSA [No 6] [92].
58CAT v PSA [No 6] [136].
59CAT v PSA [No 6] [181].
60CAT v PSA [No 6].
61CAT v PSA [No 6] [109] - [112].
62CAT v PSA [No 6] [119] - [120].
63CAT v PSA [No 6] [153], [160], [167], [177], [184].
64CAT v PSA [No 6] [185] - [190].
65CAT v PSA [No 6] [200].
66CAT v PSA [No 6] [203].
67CAT v PSA [No 6] [205].
68CAT v PSA [No 6] [217].
69CAT v PSA [No 6] [223].
70 Primary reasons [33].
71 Primary reasons [35].
72 Primary reasons [36].
73 Primary reasons [36].
74 Primary reasons [39].
75 Primary reasons [40].
76 Primary reasons [41] - [42].
77 Primary reasons [43].
78 Primary reasons [45].
79 Primary reasons [46].
80 Primary reasons [47].
81 Appellants' submissions, par 6; WB 9.
82 Primary reasons [39].
83 Primary reasons [40].
84 Appellants' submissions, par 33; WB, 13.
85 Primary reasons [46].
86 Primary reasons [47].
87 Primary reasons [47].
88 Primary reasons [47].
89 Appeal ts 40 – 42.
90 Appeal ts 51.
91Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) ALJR 750 [22].
92Trawl Industries of Australia Pty Limited v Effem Foods Pty Limited (1992) 36 FCR 406, 409.
93Zavodnyik v Alex Constructions Pty Ltd [2005] NSWCA 438; (2005) 67 NSWLR 457 [33].
94Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4; (2015) 48 WAR 93 [87].
95 Appellants' submissions, par 33; WB 13.
96Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175 [100] - [101].
97 By consolidation or other appropriate orders, see O 83 of the Rules of the Supreme Court 1971 (WA); Kendall and Curthoys, Civil Procedure Western Australia vol 1, pars 83.1.1 - 83.1.7.
98Sheraz [118] - [119], [122] - [125], [151]; special leave to the High Court dismissed: Sheraz Pty Ltd (ACN 009134016) as Trustee for the Terranora Family Trust v Vegas Enterprises Pty Ltd (ACN 009074148) [2015] HCASL 172.
99Trawl (418 - 422).
100Zavodnyik [25].
101Sheraz [94].
102Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 11] [2016] WASC 365.
103 Fee decision [30].
104Re Luck [2003] HCA 70; (2003) 78 ALJR 177 [6] - [9]; Tyne (Trustee) v UBS AG [2016] FCA 241 [31]; Leybourne v Habkouk [2012] NSWCA 212 [21] - [23].
105 See, for example, Wing Luck Foods v Lay Choo Lim [1989] WAR 358, 360; Allmark v Mossensons (a firm) [2006] WASCA 127 [26].
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