Frigger v Mervyn Jonathon Kitay in His Capacity as Liquidator of Computer Accounting and Tax Pty Ltd (in Liquidation) [No 13]
[2016] WASC 290
•19 SEPTEMBER 2016
FRIGGER -v- MERVYN JONATHON KITAY IN HIS CAPACITY AS LIQUIDATOR OF COMPUTER ACCOUNTING & TAX PTY LTD (IN LIQUIDATION) [No 13] [2016] WASC 290
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 290 | |
| Case No: | CIV:2765/2010 | 6 SEPTEMBER 2016 | |
| Coram: | ALLANSON J | 19/09/16 | |
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed Appearance amended | ||
| B | |||
| PDF Version |
| Parties: | ANGELA CECILIA THERESA FRIGGER ANGELA CECILIA THERESA FRIGGER AND HARTMUT FRIGGER IN THEIR CAPACITIES AS TRUSTEES OF THE FRIGGER SUPERANNUATION FUND HARTMUT HUBERT JOSEF FRIGGER MERVYN JONATHON KITAY IN HIS CAPACITY AS LIQUIDATOR OF COMPUTER ACCOUNTING & TAX PTY LTD (IN LIQUIDATION) COMPUTER ACCOUNTING & TAX PTY LTD (IN LIQUIDATION) |
Catchwords: | Practice and procedure Originating summons Application for judgment in default of appearance Irregularity in appearance entered Amendment of appearance Turns on own facts |
Legislation: | Rules of the Supreme Court 1971 (WA), O 2 r 1, O 13, O 58 r 17 |
Case References: | Wilde v Australian Trade Equipment Co Pty Ltd [1981] HCA 13; (1981) 145 CLR 590 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- ANGELA CECILIA THERESA FRIGGER AND HARTMUT FRIGGER IN THEIR CAPACITIES AS TRUSTEES OF THE FRIGGER SUPERANNUATION FUND
HARTMUT HUBERT JOSEF FRIGGER
Plaintiffs
AND
MERVYN JONATHON KITAY IN HIS CAPACITY AS LIQUIDATOR OF COMPUTER ACCOUNTING & TAX PTY LTD (IN LIQUIDATION)
First Defendant
COMPUTER ACCOUNTING & TAX PTY LTD (IN LIQUIDATION)
Second Defendant
Catchwords:
Practice and procedure - Originating summons - Application for judgment in default of appearance - Irregularity in appearance entered - Amendment of appearance - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA), O 2 r 1, O 13, O 58 r 17
Result:
Application dismissed
Appearance amended
Category: B
Representation:
Counsel:
Plaintiffs : In person
First Defendant : Mr D A Lenhoff
Second Defendant : Mr D A Lenhoff
Solicitors:
Plaintiffs : In person
First Defendant : Holborn Lenhoff Massey
Second Defendant : Holborn Lenhoff Massey
Case(s) referred to in judgment(s):
Wilde v Australian Trade Equipment Co Pty Ltd [1981] HCA 13; (1981) 145 CLR 590
1 ALLANSON J: The plaintiffs have applied for judgment in default of appearance. The application was brought under O 13 r 8 of the Rules of the Supreme Court 1971 (WA), nearly six years after the proceedings commenced.
2 The action was commenced in 2010 by originating summons. Initially the claim was in the name of Angela Frigger, as sole plaintiff, against the first defendant, Mervyn John Kitay. The relief sought was in relation to property held by Computer Accounting & Tax Pty Ltd (in liquidation). On 11 November 2010, Mr Kitay entered an appearance as liquidator of the company.
3 On 17 December 2010, the plaintiff was given leave to file and serve an amended originating summons. Rather than an amended summons, the plaintiff filed a substituted summons. The substituted summons was filed on 4 January 2011. It named further parties, including Computer Accounting & Tax as a defendant. The relief sought was substantially the same.
4 On 21 January 2011, a registrar ordered that the matter proceed as if commenced by writ of summons, and ordered pleadings. The plaintiffs filed a statement of claim on 11 March 2011.
5 On 8 March 2011, the solicitors now acting for the defendants filed a notice of appointment on behalf of both defendants. The defendants filed a defence, and then an amended defence and counterclaim in March 2012.
6 From there the matter has progressed, although slowly.
7 An appearance was not filed in the name of Computer Accounting & Tax. On that basis the plaintiffs now apply under O 13 for judgment in default of appearance. Further, the plaintiffs contend that all documents filed on behalf of Computer Accounting & Tax in these proceedings are of no effect and incompetent. As I understood their submissions, they contend that judgments and orders in favour of the second defendant are of no effect.
8 The defendants question whether the plaintiffs can rely on O 13. The requirement to enter an appearance to an originating summons is found in O 58 r 17. While O 58 r 17(5) applies the provisions of O 12, there is no express application of O 13. The consequence of failing to appear on an originating summons is that a party may not be heard without permission, subject to the conditions set out in O 58 r 17(4).
9 The defendants also submit that the plaintiffs have not complied with the procedures prescribed for an application under O 13.
10 It is not necessary for me to resolve those questions because I accept the defendants' more general submission that any failure to enter an appearance in the name of the second defendant is an irregularity: see O 2 r 1.
11 The liquidator and the company should both be parties to the proceedings. The liquidator is properly the applicant to recovery proceedings under s 588FF of the Corporations Act. The recovery proceedings arise only in the counterclaim. The proceedings commenced by the plaintiffs seek orders in relation to property held in the name of the company. Mr Kitay appears in those proceedings pursuant to the power to bring or defend legal proceedings 'in the name and on behalf of the company': Corporations Act s 477(2). In my opinion, the appearance to the claim should have been in the name of the company.
12 It is likely that the appearance was entered in the name of Mr Kitay because of the way the proceedings were commenced, and only later amended to name the company. But the matter having now proceeded for nearly six years on the common basis that both the liquidator and the company were parties, it would be contrary to the interests of justice to not correct any irregularity.
13 The plaintiffs wished to argue the merits of the company's counterclaim to demonstrate that it has no substance, and submitted that they are prejudiced by being subject to an unmeritorious claim. This application, in my opinion, is not the occasion for that argument. First, the plaintiffs had given no notice that they intended to argue the merits. Submissions filed in support of the application were brief and dealt only with procedural aspects. Second, and in my opinion most importantly, by amending the appearance to an appearance by the liquidator, as liquidator, and also an appearance in the name of the company, the court does no more than recognise the basis on which all parties and the court have proceeded since January 2011. That, in my opinion, causes no relevant prejudice. Finally, I note that any judgments or orders of the court, and any step taken in reliance upon them remains valid: Wilde v Australian Trade Equipment Co Pty Ltd [1981] HCA 13; (1981) 145 CLR 590, 603.
14 The application for default judgment will be dismissed. The appearance entered on 11 November 2010 will be amended in the manner indicated above.
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