Frigger v Mervyn Jonathon Kitay in His Capacity as Liquidator of Computer Accounting and Tax Pty Ltd (in Liquidation) [No 6]
[2014] WASC 384
•25 SEPTEMBER 2014
FRIGGER -v- MERVYN JONATHON KITAY IN HIS CAPACITY AS LIQUIDATOR OF COMPUTER ACCOUNTING & TAX PTY LTD (IN LIQUIDATION) [No 6] [2014] WASC 384
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 384 | |
| Case No: | CIV:2765/2010 | 25 SEPTEMBER 2014 | |
| Coram: | ALLANSON J | 25/09/14 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Costs orders made | ||
| 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 Costs Interlocutory application No oral hearing Detailed submissions Costs fixed to be paid forthwith |
Legislation: | Corporations Act 2001 (Cth), s 1321 Legal Practitioner's (Supreme Court) (Contentious Business) Determination 2012 (WA), Table B item 10 |
Case References: | Frigger v Mervyn Jonathon Kitay in his Capacity as Liquidator of Computer Accounting & Tax Pty Ltd (in liquidation) [No 4] [2014] WASC 165 Frigger v Mervyn Jonathon Kitay in his Capacity as Liquidator of Computer Accounting & Tax Pty Ltd (in liquidation) [No 5] [2014] WASC 195 Starrs v Retravision (WA) Ltd [2012] WASCA 67 (S) |
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 - Costs - Interlocutory application - No oral hearing - Detailed submissions - Costs fixed to be paid forthwith
Legislation:
Corporations Act 2001 (Cth), s 1321
Legal Practitioner's (Supreme Court) (Contentious Business) Determination 2012 (WA), Table B item 10
Result:
Costs orders made
Category: B
Representation:
Counsel:
Plaintiffs : In person (Mrs A Frigger)
First Defendant : Mr B W Ashdown
Second Defendant : Mr B W Ashdown
Solicitors:
Plaintiffs : In person
First Defendant : Holborn Lenhoff Massey
Second Defendant : Holborn Lenhoff Massey
Case(s) referred to in judgment(s):
Frigger v Mervyn Jonathon Kitay in his Capacity as Liquidator of Computer Accounting & Tax Pty Ltd (in liquidation) [No 4] [2014] WASC 165
Frigger v Mervyn Jonathon Kitay in his Capacity as Liquidator of Computer Accounting & Tax Pty Ltd (in liquidation) [No 5] [2014] WASC 195
Starrs v Retravision (WA) Ltd [2012] WASCA 67 (S)
- ALLANSON J:
(These reasons were delivered orally on 25 September 2014 and have been edited to correct grammar and syntax).
1 On 30 July 2014 I reserved my decision on two issues relating to the costs, including reserved costs of two earlier applications: the plaintiff's application for orders to compel the defendant to transfer title of the Armadale property to the plaintiffs for the purposes of sale to a third person – my reasons in that application are published as Frigger v Mervyn Jonathon Kitay in his Capacity as Liquidator of Computer Accounting & Tax Pty Ltd (in liquidation) [No 5] [2014] WASC 195, and the second was the plaintiff's application for leave to amend the originating summons and statement of claim together with costs thrown away by reason of those amendments which were allowed. And my reasons for that were published as Frigger v Mervyn Jonathon Kitay in his Capacity as Liquidator of Computer Accounting & Tax Pty Ltd (in liquidation) [No 4] [2014] WASC 165.
2 After hearing the parties on the last occasion, I indicated that I would reserve to consider matters, including, in particular, the amount of costs for each application as, in my opinion, there is a strong if not overwhelming argument that costs should be fixed. This action has been beset by multiple interlocutory applications. In many instances it has been appropriate to order costs to be paid forthwith rather than to await the final disposition of the proceedings.
3 That, unfortunately, has resulted in multiple taxations or bills because of the many applications that have been determined only after hearing and, in some cases, hearings that required detailed argument. But the time has come when the resources devoted to taxation of interlocutory bills must be considered. The amount in issue in these proceedings is large and the case has some complexity, at least, factually. But as I understand it neither the plaintiffs nor the defendants have substantial resources.
4 The plaintiffs are individuals and have frequently acted for themselves. The defendant company is in liquidation. And, despite Ms Frigger's professional training and obvious intelligence, and it would also seem some knowledge of legal matters, she does not have any legal qualification and, perhaps more importantly, she does not have the objectivity which a competent practitioner would be able to bring to a case of this kind.
5 That has resulted, as I said, in multiple interlocutory applications many of which have been decided against the plaintiffs and which are obviously going to be a drain on resources. With those preliminary comments, I have decided as follows.
6 On the application to transfer title, for the reasons which I published, I considered the application was without merit and the plaintiffs should pay the defendant's costs of the application.
7 After I reserved on the question of costs, the plaintiffs wrote to the court stating that the liquidator had obtained a sworn valuation of the Armadale property in June 2013 but failed to discover it, and asked me to defer making a decision on that basis. But even if that is true, and I have not heard the defendants on the question, I do not see to what issue in the pleading the value of the Armadale property would be relevant. The issue is whether Computer Accounting & Tax owns the property beneficially or as trustee. Also the interlocutory application was set down for an expedited hearing without the defendants being given an opportunity to put on affidavit evidence. It could not be suggested, in those circumstances, that there was some failing on the part of the defendants in failing to put forward evidence at the hearing. A valuation from June 2013, if there is one, would have been of no consequence to the decision I made.
8 The question, then, is how fairly to fix costs in a matter where there was no oral hearing but written submissions which, necessarily, are more detailed and complete when there is to be no oral hearing. Item 10 in Table B of the Legal Practitioner's (Supreme Court) (Contentious Business) Determination 2012 (WA) provides, on an interlocutory application, for two days preparation and a one day hearing. But that, clearly, is not this case.
9 By contrast, the Schedule of Standard Costs Orders for Interlocutory Applications in the Consolidated Practice Directions of the Supreme Court provides, both for interlocutory applications and for argued applications on a special appointment, for costs of $1,892 plus $583 per hour for any extra hour. That is in items 2.4 and 2.9. Had this matter gone through to a hearing it is likely, in my experience, that it would have been completed in less than an hour.
10 An earlier application by the plaintiffs for a substantially similar order was completed in well less than that time. The plaintiff's relied on two comparatively short affidavits and the defendant did not file affidavit evidence. The facts were not complicated. Accordingly, in my view, the schedule item for an argued special appointment is appropriate and I will order that the plaintiffs pay the defendant's costs fixed at $1,892 to be paid forthwith.
11 The second application - the application to amend - was considerably more complicated. The plaintiff sought to amend the originating summons to claim for an order that the liquidators pay to Mrs Frigger the amount of a taxing fee paid on behalf of Computer Accounting & Tax. And secondly, the plaintiff sought to introduce a claim that the defendants jointly and separately pay damages to the plaintiffs for losses resulting from wilful default and breach of fiduciary duty under an express trust, alternatively a Quistclose resulting trust.
12 That amendment and the corresponding amendment to the statement of claim were not allowed. The proposed amendments to the statement of claim included minor amendments which were not opposed, but there were also amendments of substance. Looking at the matter as a whole, the plaintiffs were successful in obtaining leave for those amendments which were not opposed and for some which were opposed but which, largely, in effect, were a different characterisation of the legal consequences of the material facts that had already been pleaded. I refer, in particular, to the proposed plea of a Quistclose trust.
13 The defendants, on the other hand, were successful with regard to the application for leave to plead a secondary trust and were also successful with regard to proposed amendments which, in my opinion, should probably have been the subject of a separate application under s 1321 of the Corporations Act 2001 (Cth). Where there is a mixed outcome, the apportionment of costs is very much a matter of impression and broad evaluation.
14 Mathematical precision is illusory. I refer to Starrs v Retravision (WA) Ltd [2012] WASCA 67 (S), a case about costs on an appeal but the principles remain the same. The defendants were largely successful on the application. And some of the matters on which they were not successful will need to await trial. I refer, in particular, to the issues surrounding the argument about abuse of process. The plaintiffs, in my opinion, would be entitled to the majority of their costs on the application.
15 I do not intend to try to put any sort of percentage value on that. As I said, mathematical precision is illusory in these circumstances. They should also be entitled to the costs thrown away by reason of the amendments which were allowed but those costs are not capable of present determination. In my opinion, they should be the defendant's costs in any event and I can see no reason why the costs order cannot be split in that way with the costs of the argued application fixed to be paid forthwith and the costs to be thrown away to be the costs of the defendant in any event.
16 Again, these matters were determined on the papers although, in this case the number of issues was greater and the submissions, more substantial. As I said, it is very much a matter of impression and broad evaluation. On my understanding of the file with which I am, by now, very familiar, I would allow the defendant's costs in the sum of $3,000 to be paid forthwith.
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