Frigger v Mervyn Jonathan Kitay as liquidator of Computer Accounting & Tax Pty Ltd - [2022] WASC 347

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   FRIGGER -v- MERVYN JONATHAN KITAY as liquidator of COMPUTER ACCOUNTING & TAX PTY LTD [2022] WASC 347
CORAM:   ALLANSON J
HEARD:   16 MARCH 2021
DELIVERED          :   25 OCTOBER 2022
FILE NO/S:   COR 126 of 2020
BETWEEN:   ANGELA CECELIA THERESA FRIGGER
Plaintiff
AND
MERVYN JONATHAN KITAY as liquidator of COMPUTER ACCOUNTING & TAX PTY LTD
Defendant

Catchwords:

Practice and procedure - Where applicant brings action on cause of action held by trustees of superannuation trust - Whether one trustee can bring action for cause of action held jointly with other trustees

Corporations - Insolvency Practice Schedule - Claim for damages against liquidator by creditor of corporation - Whether in relation to the external administration

Legislation:

Bankruptcy Act 1966 (Cth)
Corporations Act 2001 (Cth)
Criminal Code (WA)
Superannuation Industry (Supervision) Act 1993 (Cth)
Supreme Court (Corporations Rules)

Result:

Application struck out

Category: B

Representation:

Counsel:

Plaintiff	:	In person
Defendant	:	B W Ashdown

Solicitors:

Plaintiff	:	In person
Defendant	:	Herbert Smith Freehills

Cases referred to in decision:

Beath v Cousal [2010] VSC 24
Deputy Commissioner of Taxation, in the matter of ACN 154 520 199 Pty Ltd (in liq) v ACN 154 520 199 Pty Ltd (in liq) [2017] FCA 444
Dey v Victorian Railways Commissioner [1949] HCA 1; (1949) 78 CLR 62
Djordjevich v Rohrt [2022] VSCA 84
Frigger v Kitay (Liquidator) [2020] FCA 482
Frigger v Trenfield (No 10) [2021] FCA 1500
Frigger v Trenfield (No 2) [2019] FCA 2009
Frigger v Trenfield [No 4] [2020] FCA 797
General Steel Industries Inc v Commissioner for Railways [1964] HCA 69; (1964) 112 CLR 125
Glenfyne International Holdings Ltd v Glenfyne Farms International AU Pty Ltd (2019) 101 NSWLR 358; [2019] NSWCA 304
Hamex Corporation Pty Ltd v Latrobe Street Ventures [2020] VSC 360
Joiner (Liquidator), in the matter of CuDeco Limited (Receivers and Managers Appointed) (in liq) [2020] FCA 1661
Just, in Estate of (No 1) (1973) 7 SASR 508
Kitay v Frigger [2022] WASC 284
Law Society of New South Wales v Bruce (1996) 40 NSWLR 77
Re Hawden Property Group Pty Ltd (in liq) (2018) 125 ACSR 335; [2018] NSWSC 481
Skye v Body (1970) 92 WN (NSW) 934
Strawbridge (Administrator), in the matter of CBCH Group Pty Ltd (Administrators Appointed) (No 2) [2020] FCA 472
Walley, in the matter of Poles & Underground Pty Ltd (Administrators Appointed) [2017] FCA 486

ALLANSON J:

Introduction

The Insolvency Practice Schedule (Corporations), sch 2 to the Corporations Act 2001 (Cth), provides that, on an application under that schedule, the court may make such orders as it thinks fit in relation to the external administration of a company.
On 16 October 2020, the applicant, Mrs Angela Frigger, filed an interlocutory process under the Corporations Act, Schedule 2 Insolvency Practice Schedule (Corporations) s 90-20, for orders and damages against Mr Mervyn Kitay, the liquidator of Computer Accounting & Tax Pty Ltd.
The applicant brought the claim as trustee of the Frigger Super Fund. She was then an undischarged bankrupt.

The application

The applicant sought orders that fall into the following broad groups:
(1)Whether specified assets are assets of the Company or assets of the Frigger Super Fund, and consequential orders regarding the vesting of land, the removal of the liquidator as the signatory to a bank account, and the transfer of funds.[1]
(2)A claim for damages for losses to the Frigger Super Fund from the loss of opportunity to sell assets claimed by the liquidator but which the applicant claims are assets of the fund.[2]
(3)A claim for damages for loss of opportunity to earn capital increases and income on funds held by the liquidator but which the applicant claims are the property of the Frigger Super Fund.[3]
(4)A claim for repayment of costs incurred by Frigger Super Fund in payment of security for costs, costs orders, and payments made to its solicitors in other proceedings.[4]
[1] Originating Process filed 16 October 2020, Orders 1, 2, 5 and 7.
[2] Order 4.
[3] Order 3.
[4] Order 8.
The applicant submitted that the claims were based on a breach of duty by the liquidator in not allowing the assets of the Frigger Super Fund to vest in the new trustees, after Computer Accounting & Tax went into liquidation and was disqualified from acting as trustee of a superannuation fund.[5] She submitted that she had standing to apply for orders as a trustee of the Frigger Super Fund.
[5] ts 67 - 68.
The application was supported by an affidavit of the applicant, sworn 16 October 2020.
On 28 October 2020, I ordered the applicant to file and serve a statement of grounds, and any further evidence on which she intended to rely.
The applicant filed a statement of grounds and a further affidavit on 11 November 2020, and another affidavit on 30 November 2020.

The grounds

In summary, with regard to the orders sought, the applicant alleges:
(1)A property at 140 Edward Street, Perth, has been held as an asset of the Frigger Super Fund since May 2009. On Computer Accounting & Tax being disqualified as trustee, the property vested in the new trustees. The liquidator refused in 2010 to allow the property to vest in the new trustees.
(2)Similarly, the property in Armadale was registered in the name of Computer Accounting & Tax and held in the Frigger Super Fund trust estate from May 2009. It has been sold and the sale proceeds are deposited in a bank account, to which the liquidator is co-signatory with Mr Harmut Frigger. The applicant seeks an order for the liquidator to be removed as a signatory in order to transfer the sale proceeds to the Frigger Super Fund.
(3)On 11 February 2016, a service station business conducted from the property in Armadale was sold and the proceeds deposited in the same bank account. The applicant seeks and sought for the liquidator to be removed as a signatory to the account to enable the transfer of the sale proceeds to the Frigger Super Fund.
(4)The applicant claims loss of income from the lost opportunity of the Frigger Super Fund to earn income and capital gains on the sale proceeds of the Armadale property and service station from the time they were sold.
(5)In 2012, the Frigger Super Fund received an offer to purchase the Armadale property and service station business on condition that the liquidator have no involvement in the sale. The liquidator refused to agree to that condition. The applicant claims the balance between the 2012 offer and the sale price in 2016, and lost income and capital.
(6)The applicant claims that a deposit in St George Bank was from her own funds, and that in 2014 she resolved to contribute that deposit as an in specie superannuation contribution to the super fund. She also claims that the deposit was subject to a fixed charge. On his appointment, the liquidator 'froze' the deposit. The applicant claims loss of income and capital gains.
(7)On 2 June 2009, Computer Accounting & Tax lodged a bill of costs for taxation in other proceedings and the plaintiff paid the filing fee. In October 2010, the applicant applied for a refund of the filing fee. Her application was allowed by a registrar on condition the liquidator did not object. The liquidator objected and the fee has remained with the Supreme Court. The applicant claims the fee is an asset secured by a fixed charge, and that on 1 July 2014 she resolved to contribute it as an in specie superannuation contribution. The applicant claims loss of income and capital gains on the filing fee.
(8)Finally, the applicant claims that the Frigger Super Fund retained lawyers and paid legal fees as well as an amount for security for costs and costs orders in CIV 2765 of 2010, proceedings which were abandoned during her bankruptcy.
It was apparent from the applicant's submissions that the application is intended, in part, to be a substitute for the claim that was previously made in CIV 2765 of 2010 - an action which was stayed due to the bankruptcy of the plaintiffs and subsequently abandoned. Some of the proposed orders and grounds replicate claims that the applicant and other plaintiffs were litigating in that action. The counterclaim in that action continues. Whether specified assets are assets of Computer Accounting & Tax or assets of the Frigger Super Fund is in issue in the counterclaim.

The liquidator's application for summary disposal

On 10 December 2020, the liquidator filed a chamber summons for orders that the originating process be dismissed or struck out on the grounds that:
the Court does not have the power to order the relief in the Originating Process sought under section 90-20 to the Insolvency Practice Schedule (Corporations) of the Corporations Act 2001; and/or
to the extent that relief is sought on the part of the Frigger Super Fund, all trustees of the Frigger Super Fund must be plaintiffs.
In the alternative, the defendant sought an order staying the originating process until an amount was paid into court to meet existing costs orders against the defendant in two appeals in the Court of Appeal, an award of costs in the Federal Court of Australia, and an amount pending taxation in CIV 2765 of 2010.
The defendant also sought an order for security for the costs of defending the originating process.
The interlocutory application was supported by two affidavits: an affidavit of Sakura Kajimura, and an affidavit of David Abraham Lenhoff, both sworn 10 December 2020.
On 3 March 2021, the defendant filed an interlocutory process under the Corporations Act in identical terms to the chamber summons.
The applicant sought to have the liquidator's application dismissed because he proceeded on a chamber summons and not on interlocutory process under the Supreme Court (Corporations Rules). The application was brought in the inherent jurisdiction of the court and O 25 of the Rules of the Supreme Court. If it should have been made by interlocutory process, rather than by summons, that is a formal defect and not sufficient reason to dismiss the application.

The parties' cases

Strike out

The defendant submitted that the originating process should be struck out or dismissed on two bases.
The power conferred on the court by s 90-15 is discretionary.[6] The court is not presently concerned with the further issue of how the discretion would be exercised should these matters proceed.

The scope of Section 90-20(1) of the Insolvency Practice Schedule (Corporations)

[6] Frigger v Kitay (Liquidator) [2020] FCA 482 [39].

Section 1.1 of the Insolvency Practice Schedule (Corporations) states the objects of the Schedule, including to regulate the external administration of companies consistently, and to regulate the external administration of companies to give greater control to creditors. The Insolvency Practice Schedule is in the same terms as sch 2 to the Bankruptcy Act 1966 (Cth).
Division 90 provides for the review of the external administration of a company. Under s 90-15(1), the court may make such orders as it thinks fit in relation to the external administration of a company. That power may be exercised on the court's own initiative or on an application under s 90-20 by:
(a) a person with a financial interest in the external administration of the company;
(b) if the committee of inspection (if any) so resolves - a creditor, on behalf of the committee;
(c) ASIC;
(d) an officer of the company;
(e) if the application is in relation to a company that is a friendly society within the meaning of the Life Insurance Act 1995 and which may be wound up voluntarily under subsection 180(2) of that Act - APRA.
A person has a financial interest in the external administration of a company if the person is, relevantly, a creditor of the company.[7] The applicant relies on rights she holds as a trustee of the Frigger Super Fund, and being, in that capacity, a creditor of Computer Accounting & Tax. She could not rely on her personal rights as a creditor, having been a bankrupt at the time she brought the application.
[7] Section 5-5 and s 5-30.
Section 90-15(3) sets out, without limiting subsection (1), orders that may be made:
(a) an order determining any question arising in the external administration of the company;
(b) an order that a person cease to be the external administrator of the company;
(c) an order that another registered liquidator be appointed as the external administrator of the company;
(d) an order in relation to the costs of an action (including court action) taken by the external administrator of the company or another person in relation to the external administration of the company;
(e) an order in relation to any loss that the company has sustained because of a breach of duty by the external administrator;
(f) an order in relation to remuneration, including an order requiring a person to repay to a company, or the creditors of a company, remuneration paid to the person as external administrator of the company.
While s 90-15(3) does not limit subsection (1), it provides context for the proper construction of what orders are in relation to the external administration of a company.
Section 90-15(4) sets out matters that may be taken into account, including whether the company or any other person has suffered, or is likely to suffer, loss or damage because of an action or failure to act by the liquidator.
The liquidator submitted that, notwithstanding the breadth of the language used, s 90-15 was not intended to permit claims that were not otherwise recognised, to replace existing causes of action, or to avoid time limitations on actions. He submitted that the section does not give rise to an alternative form of action with respect to claims or causes of action with respect to matters occurring before the commencement of the external administration, or matters that are between or affect the substantive rights of third parties by or against the company under external administration.
The liquidator further submitted that for a matter to be 'in relation to the external administration' there must be a connection or association between the nature of the matters said to give rise to the relief or orders sought and matters internal to the administration of the liquidation. Any determination of substantive rights must be 'incidental to the internal workings of the administration of the company in liquidation'.[8] Later, the liquidator submitted that the ability to determine substantive issues under s 90-15 should be 'limited to where those substantive issues are incidental to the question arising in the external administration and not as an alternative method for the litigation of substantial disputes between a third party and a company under external administration or the external administrator'.[9] It was not entirely clear what matters would be regarded as 'internal to the administration of the liquidation'. Nor was it clear whether the liquidator argued that the power was limited or whether the decision to permit the applicant to proceed under s 90-15 was a matter within the discretion of the court.
[8] Written submissions [39] - [44].
[9] Written submissions [97].
Specifically, the liquidator submitted, first, that under s 90-15(3)(e), an order in relation to any loss that the company has sustained because of a breach of duty by the external administrator, is confined to a loss incurred by the company, and not losses incurred by third parties.
Second, an order under s 90-15(3)(d) should be confined to the costs incurred by the liquidator and which are sought to be met from the assets of the company. The Insolvency Practice Schedule was not intended to create a new cause of action by which a third party might claim costs as damages and recoverable upon principles other than those which apply to costs between parties to civil litigation.
Third, the potential scope of the schedule to include the determination of substantive rights has not itself been the subject of any decision. Those cases where it has been observed that the power extends to the determination of substantive rights have not been in relation to third‑party claims against the liquidator of the kind in issue here.
Finally, the liquidator submitted that the applicant seeks relief on claims to which Computer Accounting & Tax should be a party. The liquidator submitted that the company is a proper respondent to those claims where the applicant contends that specified property is not the property of the company but an asset of the Frigger Super Fund.
The applicant submitted that there is no such limitation on the orders which may be made in an application under the Insolvency Practice Schedule. She referred to proceedings against her trustee in bankruptcy in the Federal Court, where she made similar claims under the equivalent schedule in the Bankruptcy Act.[10] The issues in those proceedings included whether certain assets were part of the bankrupt's estate or were assets of the Frigger Super Fund; and also whether the applicants were entitled to compensation in relation to losses alleged to have been suffered as a result of conduct of the trustee. The orders for compensation appear to have been sought pursuant to s 30(1) of the Bankruptcy Act, by which the court has full power to decide all questions of law or of fact in any case of bankruptcy and may make such orders as the court considers necessary for the purposes of carrying out or giving effect to the Act.[11] The court was not asked to make orders solely relying on s 90-15.

Matters going to discretion

[10] Frigger v Trenfield (No 10) [2021] FCA 1500. See also Frigger v Trenfield [2019] FCA 1746; Frigger v Trenfield (No 2) [2019] FCA 2009.

[11] See Frigger v Trenfield [No 4] [2020] FCA 797 [2].

Some of the liquidator's arguments were, perhaps, more directed to the court's discretion to make orders under the schedule. There may be a strong argument for the court to decline to exercise its discretion under s 90-15 where a matter - such as a claim for damages - should be determined by the usual form of proceedings on a cause of action recognised in law or equity.
The liquidator's submissions also highlight the complication introduced by this application, where the questions about ownership of the specified property are in issue in existing proceedings (the counterclaim in CIV 2765 of 2010) to which the applicant and Computer Accounting & Tax are both parties. That complication might be dealt with by case management directions - for example, unless the proceedings can be heard together, by the court, in the exercise of discretion, staying one action pending the determination of the other.
But the question on the application for summary determination is whether the applicant's case is clearly not maintainable. It is rarely the case that a court might find, without determining all facts, that a discretion could only be exercised in one way. An application for summary dismissal, without any hearing on the merits, should only be granted in a very clear case.[12]

The power to make orders for damages

[12] Dey v Victorian Railways Commissioner [1949] HCA 1; (1949) 78 CLR 62, 91; General Steel Industries Inc v Commissioner for Railways [1964] HCA 69; (1964) 112 CLR 125, 129.

The authorities offer useful guidance on the application of the Insolvency Practice Schedule, particularly in circumstances where an external administrator seeks directions of the court, including directions relating to issues such as a legal issue of substance or procedure, or where orders are sought for the removal or replacement of a liquidator.[13]
[13] See, for example, Walley, in the matter of Poles & Underground Pty Ltd (Administrators Appointed) [2017] FCA 486 [41]; Deputy Commissioner of Taxation, in the matter of ACN 154 520 199 Pty Ltd (in liq) v ACN 154 520 199 Pty Ltd (in liq) [2017] FCA 444 [64]; Joiner (Liquidator), in the matter of CuDeco Limited (Receivers and Managers Appointed) (in liq) [2020] FCA 1661 [93] - [97]; Strawbridge (Administrator), in the matter of CBCH Group Pty Ltd (Administrators Appointed) (No 2) [2020] FCA 472.

In Re Hawden Property Group Pty Ltd (in liq), in a passage frequently cited, Gleeson JA said the power in s 90-15 is wider than the power to give directions under s 479(3) and s 511 of the Act (both now repealed) and said it 'accommodates the determination of substantive rights'.[14] In Glenfyne International Holdings Ltd v Glenfyne Farms International AU Pty Ltd, Bell P observed that it would be inappropriate to read into s 90-15 limitations which are not found in the express words.[15]
[14] Re Hawden Property Group Pty Ltd (in liq) (2018) 125 ACSR 335; [2018] NSWSC 481 [7] ‑ [8].
[15] Glenfyne International Holdings Ltd v Glenfyne Farms International AU Pty Ltd (2019) 101 NSWLR 358; [2019] NSWCA 304 [59] - [61]. See also Djordjevich v Rohrt [2022] VSCA 84 [34] - [57].
But I was not referred to, and am not aware of, any authority where it has been necessary to consider whether a claim for liquidated and unliquidated damages against the liquidator can be made under the schedule.
The power of the court under s 90-15 is to make orders in relation to the external administration of a company. The words 'in relation to' have consistently been construed as of wide and indefinite import. As Giles CJ Comm D said in Law Society of New South Wales v Bruce:
The phrase 'in relation to' is wide, satisfied by a connection or association between the two things in question: R v Murphy (1985) 158 CLR 596 at 611. It should not be read down unless there be compelling reason to do so: Fountain v Alexander (1982) 150 CLR 615 at 629. That it may be read down recognises that the context of the phrase or the purpose it serves may require that the relationship be of a particular kind, sometimes described as an appropriate or relevant relationship: Perlman v Perlman (1984) 155 CLR 474 at 484; R v Ross-Jones; Ex parte Green (1984) 156 CLR 185 at 196 - 197, 210; O'Grady v Northern Queensland Co Ltd (1989) 169 CLR 356 at 367.[16]
[16] Law Society of New South Wales v Bruce (1996) 40 NSWLR 77, 84.
Division 90 of the Insolvency Practice Schedule must be construed by reference to the objects of the schedule set out in s 1-1. Those objects are directed to regulating the external administration of companies.
Division 90 provides for the court to inquire into the external administration of a company, of its own motion during proceedings before the court, or on the application of those persons mentioned in s 99-10(2).
Section 90-15(1) then provides that the court 'may make such orders as it thinks fit in relation to the external administration of a company', either on its own initiative or on application under s 90-20. Those orders may include an order that the external administrator is liable to make good a loss suffered by the company. The section does not refer to an order relating to losses suffered by a third party.
It is at least arguable that an order that specified assets are not assets of the company in liquidation is an order in relation to its external administration. Orders to determine whether the Perth property and the proceeds of the Armadale property and business are assets of Computer Accounting & Tax are, at least arguably, within the power in s 90-15.
As a person with a financial interest, the applicant has an interest in what property is available to the liquidator in the administration. The liquidator could act on a declaration or order to that effect in carrying out the liquidation.
The ability of an applicant to apply for orders for liquidated and unliquidated damages is less clear.
While the Insolvency Practice Schedule should not be read as limited to the powers previously exercised under s 479(3) and s 511, it does not clearly evince an intention to provide a statutory cause of action dependent only on the parties being a liquidator or a company under administration and a person referred to in s 90-20(2). It might be contrasted with s 237 of the Australian Consumer Law where the court has power to make such orders as it thinks appropriate where it finds a contravention of the Act. Section 90-15 does not operate on a finding of breach of duty or a contravention of the Act.
The orders sought for damages against the liquidator might arise out of the conduct of the liquidator as external administrator but the orders would not determine any question arising in the administration or affect the external administration. The connection between the orders sought and the administration is not sufficient, in my opinion, for the orders to be properly regarded as in relation to the administration.
I accept the submission of the liquidator that the claims for damages are not claims for orders that come within the power in s 90-15. To that extent (had I not also found the applicant lacked standing to bring the application) I would have struck out the claims for orders 3, 4, 6, 7 (except 7(a)), and 8 in the applicant's originating process.

The standing of the applicant to bring the application

The question of standing was complicated by questions raised about who are currently the trustees of the Frigger Super Trust, whether the trust complies with s 17A of the Superannuation Industry (Supervision) Act 1993 (Cth), and whether the current trustees have been validly appointed. It is, however, unnecessary to deal with the complications. The applicant brings the application as one trustee and it is not in dispute that, if she is validly appointed, there is at least one other trustee.
This is not a case where a trustee seeks to bring proceedings for breach of trust and one trustee may act unilaterally to protect the trust. Where there are several trustees, they hold a single, joint, inseverable office.[17] The general rule is that, unless the trust instrument provides otherwise, the trustees must act jointly. A single trustee has no standing to represent the trust unilaterally.[18]
[17] Skye v Body (1970) 92 WN (NSW) 934, 935; Beath v Cousal [2010] VSC 24 [18] - [19].
[18] Just, in Estate of (No 1) (1973) 7 SASR 508, 513. Hamex Corporation Pty Ltd v Latrobe Street Ventures [2020] VSC 360.
The Superannuation Trust Deed for the Frigger Super Fund was in evidence.[19] It does not provide for the powers of the trustee to be exercised unilaterally by only one of them.
[19] Affidavit of Angela Cecilia Frigger, sworn 16 October 2020, AF1.
The applicant submitted that she and her husband were jointly and severally trustees. She relied on the provisions of the Superannuation Industry (Supervision) Act by which liability and duties are imposed on each trustee of a superannuation entity.[20] The imposition of a several statutory liability, as in s 169 of the Act, is a different question. It does not alter the general rule that trustees must act jointly.
[20] ts 51.
The applicant also submitted that the other trustee, Mr Frigger, had delegated his powers as trustee to her. Assuming that a delegation would be sufficient, there was no evidence of the delegation.
There was no evidence of any other basis on which the applicant could act alone.
In my opinion, the submission made on behalf of the liquidator is correct. The applicant does not have standing to bring this application on behalf of the trustees. That is a sufficient reason to strike it out.

Events after the hearing

On 1 June 2021, the applicant advised the court by email that she discontinued the application. I listed a directions hearing to hear whether the applicant required leave to discontinue and whether leave should be given. On 13 July 2021, the applicant advised the court that she no longer wished to discontinue.
On 30 July 2021, the applicant advised the court that she had been discharged from bankruptcy. She further asserted that Herbert Smith Freehills had no authority to represent the liquidator in the proceedings, and that his interlocutory process was a nullity.
As a result of her letter of 30 July 2021, this proceeding (and two others before me) became caught up in the issue regarding the retainer of Herbert Smith Freehills. On 3 August 2021, the liquidator commenced COR 131 of 2021 by originating process under the Corporations Act, in which he seeks orders to this effect:
(1)A declaration that he and, to the extent necessary, Computer Accounting & Tax did not require the leave of the court, pursuant to s 477(2B) of the Corporations Act, to enter into specified costs agreements with solicitors Herbert Smith Freehills, and to retain Herbert Smith Freehills to act on behalf of the liquidator and/or the company in relation to specified legal services.
(2)In the alternative, to the extent that the costs agreements and retainers are agreements to which s 477(2B) applies, those agreements are approved, effective as and from when they were made and the dates on which Herbert Smith Freehills were first instructed in each relevant matter.
(3)Pursuant to s 1322(4)(a) of the Corporations Act, neither the entry by the liquidator into the costs agreement nor the retainers, are invalid by reason of the liquidator not having obtained approval pursuant to s 477(2B) to entering into them.[21]
[21] Filed in the court as COR 131 of 2021.
Finally, on 9 August 2021, the applicant was tried and convicted of an offence under s 169 of the Criminal Code (WA). The conviction potentially affected her eligibility to be a trustee. The applicant was subsequently successful on appeal.
It has not been uncommon for matters between these parties to be stalled by interlocutory applications and arguments. The application in COR 131 of 2021 is not an exception. Following a judgment dealing with many of those side issues,[22] the application by the liquidator has been listed for hearing on 30 November 2022.
[22] Kitay v Frigger [2022] WASC 284.
While those proceedings were pending, the court has not proceeded with three actions which are directly affected by the issues there raised: this application, COR 2 of 2010, and CIV 2765 of 2010.
On 14 October 2022, I held a directions hearing to ascertain the wishes of the parties and determine how best to proceed. In short, the respondent in each case submitted I should publish judgments. Mrs Frigger submitted the matters should remain stayed on the expectation that the proceedings before Hill J, and pending proceedings in the Federal Court in relation to her bankruptcy and other matters, would render any decision I might make inutile.
The matters, have, however, been dormant for too long. I have decided that I should publish my reasons.

Security for costs

The last matter argued in the application was an application for security for costs, should the application not be summarily dismissed. Because I would strike out the action on the ground that the applicant lacks standing to bring it, it is unnecessary to make findings on that application.

Conclusion

The application brought by originating process, filed 16 October 2020, for orders under Corporations Act 2001 Schedule 2 Insolvency Practice Schedule (Corporations) and damages is struck out.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KK
Associate to the Honourable Justice Allanson
25 OCTOBER 2022