Frigger v Professional Services of Australia Pty Ltd - [2022] WASCA 119

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   FRIGGER -v- PROFESSIONAL SERVICES OF AUSTRALIA PTY LTD [2022] WASCA 119
CORAM:   MURPHY JA
MITCHELL JA

HEARD:   26 AUGUST 2022
DELIVERED          :   26 AUGUST 2022
PUBLISHED           :   7 SEPTEMBER 2022
FILE NO/S:   CACV 55 of 2022
BETWEEN:   ANGELA CECELIA THERESA FRIGGER
First Appellant
HARTMUT HUBERT JOSEF FRIGGER
Second Appellant
AND
PROFESSIONAL SERVICES OF AUSTRALIA PTY LTD
First Respondent
SANDRA MAY BANNING
Second Respondent
DAVID ABRAHAM LENHOFF
Third Respondent
TIMOTHY RICHARD STEPHENSON
Fourth Respondent
CAMERON VICTOR EASTWOOD
Fifth Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   MASTER SANDERSON
Citation: FRIGGER -v- PROFESSIONAL SERVICES OF AUSTRALIA PTY LTD [2022] WASC 158
File Number            :   CIV 1309 of 2021

Catchwords:

Practice and procedure - Security for costs of appeal - Where applicant parties represented by same counsel but different solicitors - Whether security should be ordered by reference to one set of legal costs for both solicitors and counsel - Turns on own facts

Legislation:

Nil

Result:

Security for costs ordered

Representation:

Counsel:

First Appellant	:	In person
Second Appellant	:	In person
First Respondent	:	No appearance
Second Respondent	:	No appearance
Third Respondent	:	S Vandongen SC
Fourth Respondent	:	S Vandongen SC
Fifth Respondent	:	S Vandongen SC

Solicitors:

First Appellant	:	In person
Second Appellant	:	In person
First Respondent	:	K G Sorensen
Second Respondent	:	K G Sorensen
Third Respondent	:	Jackson McDonald
Fourth Respondent	:	Barry Nilsson Lawyers (WA)
Fifth Respondent	:	Popperwell & Co

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

Banning Holdings Pty Ltd v Holbrook [2009] WASC 178
Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 10] [2015] WASC 380
Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 7] [2014] WASC 360
Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 8] [2015] WASC 166
Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 9] [2015] WASC 343
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 [2008] WASC 133 (S)
Computer Accounting and Tax Pty Ltd v Professional Services of Australia Pty Ltd [2010] HCA Trans 139
Computer Accounting and Tax Pty Ltd v Professional Services of Australia Pty Ltd [No 3] [2010] WASC 2
Computer Accounting and Tax Pty Ltd v Professional Services of Australia Pty Ltd [No 3] [2010] WASC 2 (S)
Frigger v Clavey Legal Pty Ltd [No 3] [2015] WADC 21
Frigger v Clavey Legal Pty Ltd [No 3] [2015] WADC 21 (S)
Frigger v Professional Services of Australia Pty Ltd [2015] WASCA 3
Frigger v Professional Services of Australia Pty Ltd [2022] WASC 158
Frigger v Professional Services of Australia Pty Ltd [No 2] [2016] WASCA 68
Frigger v Professional Services of Australia Pty Ltd [No 3] [2014] WASCA 69
George 218 Pty Ltd v Bank of Queensland Limited [2016] WASCA 56
Holbrook v Professional Services of Australia Pty Ltd [2012] WASC 444
Hunter v Chief Constable of the West Midlands Police [1982] AC 529
Kidd v The State of Western Australia [2014] WASC 99 (S)
Ogbonna v Programmed Integrated Workforce Ltd [No 2] [2022] WASCA 79
Oze‑Igiehon v Rasier Operations BV [2017] WASCA 107
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)
Re Luck [2003] HCA 70; (2003) 78 ALJR 177
Richard Brady Franks Ltd v Price (1937) 58 CLR 112
Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4; (2015) 48 WAR 93
Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378

REASONS OF THE COURT:

The third, fourth and fifth respondents applied for security for costs in respect of this appeal. We ordered security in the sum of $50,000, and said that we would publish our reasons. These are our reasons.
In this appeal, the appellants (Mr and Mrs Frigger) appeal against orders made by the learned master dismissing an action by Mr and Mrs Frigger commenced against the respondents in April 2021. The master published reasons on 6 May 2022: Frigger v Professional Services of Australia Pty Ltd [2022] WASC 158 (primary decision).
The third, fourth and fifth respondents are legal practitioners whom, it was alleged in the primary proceedings, acted for various entities, including the first respondent, Professional Services of Australia Pty Ltd (PSA). It was not alleged that the third, fourth or fifth respondents acted at any time for Mr and Mrs Frigger, and there was no claim in the primary proceedings against the third, fourth or fifth respondents for negligence or breach of retainer. All claims against the third, fourth and fifth respondents were in relation to actions they took whilst acting for third parties.[1]
[1] Primary decision [6].
The primary proceedings were another emanation of claims by Mr and Mrs Frigger arising out of litigation in 2006 to 2010 between a company previously controlled by Mr and Mrs Frigger, Computer Accounting and Tax Pty Ltd (CAT) and PSA. The earlier proceedings substantively culminated in a judgment of this court in late 2009, pursuant to which orders were made requiring CAT to pay PSA an amount in excess of $800,000 (which included an amount in respect of certain costs). CAT never paid the judgment debt and was ordered to be wound up in insolvency. The litigation spawned a multiplicity of other proceedings, including in relation to freezing orders, contests as to the legitimacy of the winding up of CAT, various attacks made on a deed of company arrangement entered into by PSA in 2009 (DOCA), and disputes about consequential costs orders. A summary of a number of these proceedings appears in the annexure to these reasons.
The claims in the primary proceedings effectively sought to create an alternative universe in which Mr and Mrs Frigger had rights ascertainable by supposing that the orders made by this court over the last 10 or so years had not been made, or that different orders could and should have been made.

The pleading in the primary proceedings

In their amended statement of claim filed 3 June 2021 (amended statement of claim) the subject of the primary decision,[2] Mr and Mrs Frigger alleged, in effect, that PSA was, at all material times, incapacitated from operating as a company capable of suing and being sued. That was put effectively on two bases:
1.PSA did not have two directors when it was obliged by law to have two directors, pursuant to s 221(1) of the Corporations Law,[3] and, it may be inferred had no validly appointed directors for a time because there was only a 'purported' appointment, on the death of one of the directors, of the personal representative of his estate in 2008;[4] and
2.the DOCA was invalid ab initio or was automatically terminated in 2009, as a result of which PSA was, or was deemed to have been, wound up.
[2] Primary decision [1].
[3] Section 221(1) of the Corporations Law provided that, 'A proprietary company must have at least one director. At least one director must ordinarily reside in Australia'.
[4] Amended statement of claim, pars 10 - 11.
Mr and Mrs Frigger alleged that PSA's corporate incapacity, and/or the void or voidable DOCA, adversely affected the rights of CAT and/or Mr and Mrs Frigger, including in relation to various costs orders made against them over the years. In particular, it was pleaded that:
1.PSA 'ought to have been in liquidation' prior to the Court of Appeal's judgment in late 2009 requiring CAT to pay PSA around $800,000.[5]
2.Had PSA been in liquidation prior to the appeal judgment, there would have been a statutory set off of debts, and without the statutory set off, 'there was nothing owing between CAT and PSA';[6] alternatively, any net balance in favour of PSA 'would have been paid'.[7]
3.CAT was not insolvent in May 2010, when it was ordered to be wound up in insolvency by the court.[8]
4.CAT's winding up in insolvency was based on a 'invalid statutory demand' arising out of judgment debt in favour of CAT ordered by the Court of Appeal in late 2009.[9]
5.As a result of the alleged corporate incapacity and/or the invalid DOCA and representations made about PSA and the DOCA, Mr and Mrs Frigger 'were misled as to the status of PSA … and accordingly … were prevented from making appropriate submissions to the Court in the related proceedings …'.[10]
6.As a result, 'subsequent decisions have been handed down in related proceedings, without the benefit of a true and accurate representation of the facts'[11] including the true 'net amount owing between CAT and PSA following the appeal', and the fact that PSA was in liquidation since 23 March 2009, or alternatively 30 August 2009 (both dates preceding the Court of Appeal judgment in late 2009 and the winding up of CAT in insolvency in May 2010).[12]
7.But for the invalid DOCA and the incorrect representations concerning it, subsequent judgments would not have been made in the form in which they presently stand.[13]
8.The legal proceedings pleaded in the statement of claim were, by reason of the above matters 'nullities'. These included freezing order proceedings in CIV 2265 of 2006, the proceedings to wind up CAT in COR 2 of 2010 based on the issuance of a statutory demand pursuant to the unpaid judgment debt the subject of the Court of Appeal's judgment, and various costs orders.[14]
9.The third respondent (Mr Lenhoff), the fourth respondent (Mr Stephenson) and the fifth defendant (Mr Eastwood) had, at various times, been retained as lawyers to act for PSA, and, 'by reason of' their retainers, each of them 'counselled and was knowingly concerned with all decisions' made by PSA.[15]
10.The freezing order proceedings, the issue of a statutory demand to wind up CAT based on the unpaid judgment of the Court of Appeal, and the application to wind up CAT were proceedings begun and carried on by Mr Lenhoff, Mr Stephenson and Mr Eastwood not to vindicate any right of PSA, but for the ulterior purposes of delaying the payment of CAT's costs, damaging the credit and reputation of Mr and Mrs Frigger, and putting CAT under the control of a liquidator.[16] They also acted in breach of warranty of authority.[17]
[5] Amended statement of claim, par 44(a).
[6] Amended statement of claim, pars 44(c), 51.
[7] Amended statement of claim, par 44(e).
[8] Amended statement of claim, par 77(vi).
[9] Amended statement of claim, pars 50, 93.
[10] Amended statement of claim, par 45, see also par 42.
[11] Amended statement of claim, par 46.
[12] Amended statement of claim, par 46.
[13] Amended statement of claim, par 95.
[14] Amended statement of claim, pars 48 - 51, 56, 64.
[15] Amended statement of claim, pars 5(c), 5(c) (sic), 6(c).
[16] Amended statement of claim, par 61.
[17] Amended statement of claim, par 64, 73, 99.
Mr and Mrs Frigger also pleaded that Mr Stephenson and Mr Eastwood issued a 'means inquiry' summons in relation to a costs order in favour of Mr Campbell‑Smith which was an abuse of process. It was alleged that the relevant costs judgment was a 'nullity' and, further, that Mr Campbell‑Smith had dementia at the time and could not have given the requisite instructions for the means inquiry.[18] They also alleged that the 'defendants' had made 'false submissions' in proceedings since January 2010 which caused them loss.[19]
[18] Amended statement of claim, pars 64 - 69.
[19] Amended statement of claim, pars 87 - 90.
Mr and Mrs Frigger also alleged that PSA commenced a cross‑appeal in CACV 23 of 2012 which was a 'nullity'. Mr and Mrs Frigger pleaded that in the cross‑appeal (which was a 'nullity'), the Court of Appeal made findings of 'serious wrongdoing' by Mrs Frigger and that the court's judgment was referred to the Director of Public Prosecutions (DPP).[20] It was further alleged that Mr Stephenson and Mr Eastwood made 'criminal complaints' to the DPP about Mrs Frigger. It was alleged that the complaints were false and that Mr Stephenson and Mr Eastwood acted with malice and without reasonable or probable cause and were the 'effective prosecutors' in criminal proceedings subsequently brought by the DPP against Mrs Frigger and were liable as joint tortfeasors.[21]
[20] Amended statement of claim, pars 70 - 83; with reference to Frigger v Professional Services of Australia Pty Ltd [No 3] [2014] WASCA 69, where the court ordered indemnity costs against Mr and Mrs Frigger having found that Mrs Frigger made false statements on oath (at [88] ‑ [104]).
[21] Amended statement of claim, pars 76 - 82.
As the master noted, Mr and Mrs Frigger, in their prayer for relief, claimed:
AND THE PLAINTIFFS CLAIM AGAINST THE DEFENDANTS
A. To the extent necessary, pursuant to section 38 alternatively section 39 Limitation Act 2005 the plaintiffs have leave to commence this action.
C. Order for compensation, including:
i. Damages, including exemplary damages, for loss of credit and reputation in the [freezing order] Proceeding, the Liquidation Application, CACV23/2014, the Criminal Complaint and the Means Inquiry Summons.
ii. The costs paid by, and ordered to be paid, by the Friggers in the Freezing Order Proceeding and related appeals;
iii. The costs paid by, and ordered to be paid by the Friggers in the provisional liquidation proceeding;
iv. The costs paid by, and ordered to be paid by the Friggers in the winding up of CAT;
v. Costs paid by, and ordered to be paid to, the Friggers' solicitors Clavey Legal Pty Ltd and Murfett Legal Pty Ltd;
vi. Costs paid by the Friggers, and ordered to be paid by the Friggers, in Federal Court WAD607/2015
vii. Costs paid by the Friggers, and ordered to be paid by the Friggers, in Court of Appeal CACV118/2015;
2) An order that Eastwood repay the Friggers $18,500 paid into Court by the Friggers as security plus interest at 18% p.a. from the date of payment into court;
3) Interest pursuant to statute.
4) Costs.
5) Such other or further order as the Court considers appropriate.

The master's decision

The master dismissed the action on the bases that:
1.The statement of claim failed to disclose a reasonable cause of action.[22]
2.If and insofar as the statement of claim pleaded a reasonable cause of action, it was clearly statute‑barred.[23]
3.Also by operation of s 58 of the Bankruptcy Act 1966 (Cth), any cause of action Mr and Mrs Frigger may have had against the third, fourth and fifth respondents (and probably the first and second respondents) vested in the trustee in bankruptcy, and Mr and Mrs Frigger lacked standing to bring proceedings in relation to those causes of action.[24]
[22] Primary decision [14] - [20].
[23] Primary decision [21] - [22].
[24] Primary decision [24] - [26].

Grounds of appeal

By their grounds of appeal, the appellants alleged:
1.The Master erred in law by summarily dismissing the appellants' claims which order was consequent on numerous errors of fact and law in reasons dated 6 May 2022:
1.1The respondents committed fraud on the court by preparing and adducing two fraudulent versions of Professional Services of Australia Pty Ltd's memorandum of association, one of which contained forged signatures of the original subscribers;
1.2The Master was aware of the fraud but excluded it from his reasons;
1.3The reasons misconstrue facts pleaded in the Amended Statement of Claim;
1.4The reasons mischaracterise causes of action;
1.5The reasons misapply bankruptcy law to the mischaracterised causes of action;
1.6The reasons misconstrue when causes of action were first ascertained or ascertainable and consequently misapply statute of limitations.
2.The Master erred in law by dismissing the appellants chamber summons and Substituted Statement of Claim dated 19 April 2022 pleading causes of action that were ascertained and accrued pursuant to the documents in [1.1] above.

Evidence on the application for security

Affidavit evidence was filed by each of the third, fourth and fifth respondents in support of his application for security for costs. Mr and Mrs Frigger filed an affidavit of Mrs Frigger in opposition dated 20 July 2022 and leave was given to file further affidavits dated 19 and 25 August 2022.
The evidence filed on behalf of each of the third, fourth and fifth respondents was to the following effect. Mr and Mrs Frigger are the registered proprietors of certain property in Applecross, and Mrs Frigger is the registered proprietor of certain strata titled properties in Bayswater and South Perth. The Applecross property is the subject of numerous encumbrances, including a mortgage recorded as securing a principal sum of $2.5 million in favour of H & A Frigger Pty Ltd. Each of the Applecross and Bayswater properties also has numerous encumbrances, including, in each case, a mortgage recorded as securing a principal sum of $800,000 in favour of H & A Frigger Pty Ltd. There are also a number of Property (Seizure and Sale) Orders registered on the titles to the properties. The evidence also disclosed that each of Mr and Mrs Frigger were made bankrupt on 20 July 2018, and were discharged by law from bankruptcy on 26 July 2021.
The fifth respondent's solicitor, Mr Popperwell, in his affidavit made 22 June 2022, estimated that the costs of the appeal (including a one‑third share of counsel's fees) would likely be $25,410, and annexed a draft bill of costs in that regard. Mr Lenhoff, the third respondent, estimated his likely costs of the appeal (including a one‑third share of fees of senior counsel) would be $31,554. The fifth respondent estimated that the fifth respondent's likely costs of the appeal (including a one‑third share of fees of senior counsel) would be $26,878. It appears from these estimates that the third to fifth defendants will jointly instruct one counsel for the appeal.
In Mrs Frigger's affidavit of 20 July 2022, Mrs Frigger attached certain correspondence with the solicitors for the respondents in relation to the application for security. Mrs Frigger also annexed a copy of:
1.an 'originating motion in District Court' 'charging the third, fourth and fifth respondents with nine charges of contempt of court';
2.a copy of a draft amended originating application in the Federal Court to 'set aside the sequestration orders on the ground of fraud'; and
3.an originating process in the Federal Court, to which PSA was not a party, seeking orders for removal of PSA from the Organisation and Business Names register under s 1322(4)(b) of the Corporations Act 2001 (Cth).
She also annexed a copy of documents described as 'statements of investments'. The first was dated 16 July 2021 from 'Fidelity International' in respect of 'Mr Hartmut Frigger and Mrs Angela Frigger ATF Frigger Super Fund', referring to an amount of $65,542 in 'Fidelity Asia Fund' and $89,355 in 'Fidelity India Fund'. There was also a 'Platinum Trust' document in relation to 'Hartmut and Angela Frigger ATF Frigger Super Fund' described as an annual fee statement from 1 July 2020 to 30 June 2021. The document referred to 'Platinum Asia Fund - C Class units' having a value of $67,891 and 'Platinum International Brands Fund - C Class units' having a value of $36,375. Mrs Frigger also explained that the appellants 'chose not to pay' security for costs ordered in another appeal because it would 'effectively be unjust enrichment for [the third respondent]'.

In her second affidavit, Mrs Frigger annexed certain correspondence from ASIC and draft 'consent orders' signed by Mr and Mrs Frigger and Mr D Boyle and Ms M Boyle, providing for a declaration, in the proceedings in which PSA was not named as a party, that the registration of Liberty Oil (Australia) Pty Ltd[25] was 'invalid ab initio', and for there to be certain rectifications to the register kept by ASIC relating to PSA. The affidavit also annexed a copy of a substituted statement of claim filed 19 April 2022, upon which Mr and Mrs Frigger said they would rely if PSA were removed from ASIC's register. The document in substance was the same version of the proposed statement of claim in respect of which Mr and Mrs Frigger contend that the master should have granted leave to replead, as alleged in ground 2 of the appeal. The proposed substituted statement of claim deletes reference to PSA as first defendant in the primary proceedings, purports to add new parties as sixth and seventh defendants, and alleges fraud in relation to PSA's constitution. It otherwise maintains the general architecture of the primary proceedings, insofar as it alleges that PSA had no corporate existence and, consequently, no capacity to sue or be sued, and alleges that various proceedings were 'nullities'. The alleged nullities included proceedings in relation to the Court of Appeal judgment in favour of PSA in late 2009, the winding up of CAT in insolvency in 2010 and certain costs orders.
[25] This appears to be alleged to be the former corporate name of PSA.
In her third affidavit, Mrs Frigger annexed copies of documents referring to the investments referred to in [17] above as at 30 June 2022.

Parties' submissions on security

The third, fourth and fifth respondents sought security effectively on the basis that the application was made promptly, there was cogent evidence that a costs order would unlikely be met, there was evidence of significant failures in the past to comply with costs orders and security for costs orders, and there was no suggestion that an order for security would stifle the appeal. Also, the appellants' prospects of success were weak. In oral submissions, the third, fourth and fifth respondents submitted (amongst other things) that the primary proceedings constituted an impermissible collateral attack on judgments of the court.
Mr and Mrs Frigger submitted, in effect, that:
1.there was a failure to confer in relation to the application and the application should be dismissed on that account;
2.the appeal has good prospects of success, including with respect to ground 2, concerning the question of leave to replead;
3.they have challenged the sequestration order on the ground that it was obtained by civil fraud by solicitors and a liquidator;
4.they have produced evidence of two investments funds listed on the Australian Stock Exchange, having a total value of $260,000;
5.the costs of separate representation should, in any event, not be allowed because the third, fourth and fifth respondents have common interests in the appeal, there is no conflict of interest and will all be represented by the same counsel; and
6.the amount of any security ordered should be no more than $8,000, given the shortness of the first and second respondents' answer and an estimate of a 20‑minute hearing.

Principles

The general principles in relation to security for costs were not in dispute. They were outlined in George 218 Pty Ltd v Bank of Queensland Limited.[26] In summary:
1.The power to order security is exercised to serve the interests of justice.
2.The discretion to order security is unfettered but must be exercised judicially. 'Special circumstances' do not have to be shown before an order for security for costs is made against an appellant.
3.An appellant's inability to satisfy a costs order should the appeal fail is generally a significant factor in favour of an order for security for costs. However, if the respondent has caused the appellant's impecuniosity, that may be a relevant countervailing factor.
4.Impecuniosity is not in itself generally the sole ground for the making of an order for security. Even where the appellant is impecunious, in all the circumstances, the interests of justice may properly be served by not making such an order.
5.Other factors generally include the appellant's prospects of success, whether the appellant would be shut out of the appeal if security for costs were ordered, and whether there has been any delay in the respondent filing the application for security for costs.
6.Ultimately, each case will turn on its own circumstances, and it is not possible to set out an exhaustive list of the relevant considerations.
7.Where security is ordered against an impecunious appellant, the amount ordered should not be greater than is absolutely necessary.
[26] George 218 Pty Ltd v Bank of Queensland Limited [2016] WASCA 56 [41] ‑ [48]; Oze‑Igiehon v Rasier Operations BV [2017] WASCA 107 [13].
In a case such as this, the question of security will also be considered having regard to the general principles summarised by Beech J in Kidd v The State of Western Australia:[27]
A party is entitled to be represented as it sees fit, and cannot be compelled to share representation with another party. However, if there has been unnecessary separate representation, the court may allow one set of costs only to the parties who could reasonably have had common representation.
The costs of separate representation should be allowed where there is a difference in the facts or law relating to several defendants, if they have different interests, if there is an actual or possible conflict of interest between them, or if there is any other circumstance that makes it embarrassing for counsel appearing for one defendant to appear for them all.
As Woodward J observed in Statham v Shephard, there may be circumstances in which, although the defendants were united in their opposition to the plaintiff, their relationship to each other may be such that they would be acting reasonably in remaining at arm's length during the course of the litigation. To my mind this is such a case. (citations omitted)
[27] Kidd v The State of Western Australia [2014] WASC 99 (S) [20] ‑ [22]; see also the observations of Lathan CJ in Richard Brady Franks Ltd v Price (1937) 58 CLR 112, 136 ‑ 137.

Disposition

We ordered that the appellants provide security for costs. In our view, conferral was adequate. The evidence as a whole disclosed that Mr and Mrs Frigger do not have assets against which any costs order made against them in the appeal could be effectively enforced. The documentary evidence of investments annexed to Mrs Frigger's affidavit related to investments of a superannuation fund, and it was not shown that the third, fourth and fifth respondents would be able to effectively enforce any costs order made in their favour in this appeal against the assets of the superannuation fund.
The draft amended originating motion application in the Federal Court to set aside the sequestration orders on the ground of fraud was no more than a claim or perhaps, more accurately, a draft claim. Also, the application for the removal of PSA from the Organisation of Business Names register in proceedings to which it was not a party, and the draft 'consent orders' in that regard, have no material bearing on whether it is in the interests of justice to make an order for security for costs in favour of the third, fourth and fifth respondents in this appeal. Also, the originating motion in the District Court charging the third, fourth and fifth respondents with 'nine charges of contempt of court' reflected no more than allegations and also have no material bearing on the disposition of this application.
Further, the applications for security by the third, fourth and fifth respondents were brought in a timely way, and there is no suggestion that an order would stifle the appeal.
Even if it were assumed that the appeal has reasonable prospects of success, the combined weight of the above considerations would point to an order for security in this case.
In relation to prospects of success, as a threshold issue the master's judgment was prima facie interlocutory, in respect of which Mr and Mrs Frigger would require leave to appeal.[28] No application for leave to appeal has been made. Even if an application were made, on the face of it, the primary proceedings raised a potential question as to whether the proceedings constituted an impermissible collateral attack on the judgments of this court.[29] Also, many of the claims in the amended statement of claim against the third, fourth and fifth respondents appeared to be built around propositions that:
1.PSA was required by law to have two directors pursuant to s 221(1) of the Corporations Law; and
2.there was only a 'purported' appointment of Mr Campbell‑Smith, the legal representative of the estate of the former director, Mr Martin Banning, as a director in 2008.
The first proposition appears to be inconsistent with s 221(1) of the Corporations Law pleaded by the appellants (and for that matter, with s 201A(1) of the Corporations Act). The second might arguably involve consideration of the operation of s 201F(2), s 201F(4) and s 201F(5) of the Corporations Act (applicable in 2008) and other statutory provisions relevant to corporate capacity.
[28] Re Luck [2003] HCA 70; (2003) 78 ALJR 177; Ogbonna v Programmed Integrated Workforce Ltd [No 2] [2022] WASCA 79 [116] ‑ [118].
[29] Hunter v Chief Constable of the West Midlands Police [1982] AC 529, 536, 541 ‑ 542; Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378, 392 ‑ 393; Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4; (2015) 48 WAR 93 [8].
Other allegations including with respect to malicious prosecution are arguably conclusionary allegations, unsupported by pleaded material facts. Also, the vitiating conduct in relation to the alleged corporate incapacity of PSA and the alleged invalidity of the DOCA allegedly occurred between 2008 and 2009, in the latter case to the knowledge of Mr and Mrs Frigger by April 2015,[30] in respect of which, at least prima facie, limitation issues may arise. Also, any claims for breach of warranty of authority (at least) might ordinarily be thought to be subject to the operation of s 58 of the Bankruptcy Act.
[30] Amended statement of claim, par 36.
With respect to ground 2 of the appeal, whilst the proposed substituted statement of claim dated 19 April 2022 sought to challenge corporate capacity by reference to the alleged fraud in relation to PSA's constitution, many of the fundamental difficulties at least arguably remained.
Overall, as a necessarily preliminary impression and without the benefit of detailed argument, it appeared to us that the prospects of appeal could not be characterised as strong.
For these reasons, in our view it was appropriate to order security for costs.
In relation to quantum, it appeared that the third, fourth and fifth respondents were represented by one counsel in the primary proceedings, and that they proposed to be represented by one counsel in the substantive appeal. They were represented by one counsel in the present application.
On the material before us, there appeared to be no conflict of interest or other circumstance, particularly bearing in mind the interlocutory nature of the appeal, which would justify an order for security for costs on the assumption that the third, fourth and fifth defendants would each obtain a separate order for costs in the appeal if successful. Accordingly, we were of the view that security for costs referrable to one set of costs was appropriate. That said, none of the third, fourth or fifth respondents had filed a respondent's answer when the application was heard, and our reasons are not to be taken as precluding the revisitation of quantum if the position were shown to be materially different after the respondent's answers have been filed (assuming that security is paid).
On the basis that it was appropriate to order security in respect of effectively one set of costs, we had regard to Mr Popperwell's detailed draft bill, which seemed to us to be reasonable in the circumstances, particularly given the lengthy account of events and their alleged legal consequences pleaded in the amended statement of claim covering the period 1998 to date. We did not accept Mrs Frigger's submission that the brevity of the first and second respondent's answer would be a reasonable guide to the scope of the answer of the third, fourth and fifth respondents.
As noted earlier, the draft bill estimated costs at $25,410 on the basis that the fifth respondent would only be liable for one‑third of counsel's fees. 'Grossing up' that figure to include a full set of counsel's fees produces an estimate of total costs, in respect of single representation by solicitors and counsel, of approximately $50,000.

Conclusion

For these reasons, we ordered that:
1.On or before 4.00 pm on 16 September 2022, the appellants pay into court, by way of security for costs of the third, fourth and fifth respondents, the sum of $50,000.
2.The appeal be stayed pending payment into court of such security.
3.The time for each of the third, fourth and fifth respondents to file his respondent's answer be extended to 28 days after payment into court of the security for costs.

Annexure

Much of the following summary is taken from an earlier interlocutory judgment of this court.[31]
[31] Frigger v Professional Services of Australia Pty Ltd [No 2] [2016] WASCA 68 [6], [10] ‑ [21].

Genesis of proceedings

In proceedings CIV 2265 of 2006 (Original Proceedings), Computer Accounting and Tax Pty Ltd (CAT) sued Professional Services of Australia Pty Ltd (PSA) and its director, Mr Martin Banning, for alleged misleading or deceptive conduct in relation to the sale of a service station to CAT in 2003. CAT was a corporate vehicle used by Mr and Mrs Frigger for investment purposes.[32]
[32] Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 2] [2009] WASCA 183 [2].
The Original Proceedings were heard by Simmonds J, who gave judgment for CAT on 9 July 2008: Computer Accounting and Tax Pty Ltd v Professional Services of Australia Pty Ltd[33] (Original Judgment).
[33] Computer Accounting and Tax Pty Ltd v Professional Services of Australia Pty Ltd [2008] WASC 133.
On 6 May 2009, Simmonds J made costs orders in the Original Proceedings: Computer Accounting and Tax Pty Ltd v Professional Services of Australia Pty Ltd[34] (Original Costs Orders).
[34] Computer Accounting and Tax Pty Ltd v Professional Services of Australia Pty Ltd [2008] WASC 133 (S).
PSA and Mr Banning appealed the Original Judgment on the question of damages (Original Appeal). The appeal was heard on 22 July 2009.
In the interim, prior to the hearing of the Original Appeal, Mr Banning had died and his estate was administered by Mr Campbell‑Smith. PSA had also, in the meantime, in March 2009, entered into a Deed of Company Arrangement.[35] The Deed of Company Arrangement made provision for the judgment debt under the Original Judgment to be paid to CAT from the sale of certain assets owned by Banning Holdings Pty Ltd. Banning Holdings Pty Ltd was a company controlled by Mr Banning prior to his death, and in which he held a 50% shareholding.[36] Also, by the time of the hearing of the Original Appeal, CAT had already been paid, in June 2009, the judgment sum of $1,165,661.54.[37] In this regard, CAT had successfully resisted an application for a stay of Simmonds J's orders pending the determination of the Original Appeal.[38] The Deed of Company Arrangement of PSA generated its own disputes, referred to in [76] ‑ [87] below.
[35] Computer Accounting and Tax Pty Ltd v Professional Services of Australia Pty Ltd [No 3] [2010] WASC 2 (S) [14].
[36] Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 9] [2015] WASC 343 [9].
[37] Frigger v Professional Services of Australia Pty Ltd [No 3] [2014] WASCA 69 [11]; Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 2] [2009] WASCA 183 (S) [13]. See also Computer Accounting and Tax Pty Ltd v Professional Services of Australia Pty Ltd [No 3] [2010] WASC 2 [16]; cf Holbrook v Professional Services of Australia Pty Ltd [2012] WASC 444 [15].
[38] Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [2008] WASCA 222.
There was no dispute that the judgment sum of $1,165,661.54 was paid by CAT to Mr and Mrs Frigger.[39]
[39] Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 4] [2015] WASCA 253 [21].
On 23 October 2009, the Court of Appeal delivered reasons allowing the Original Appeal and reducing substantially the quantum of damages to which CAT was entitled: Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 2][40] (Original Appeal Judgment). An advance copy of the Original Appeal Judgment was made available to the parties' solicitors in accordance with Practice Direction 8.1 on 22 October 2009.[41]
[40] Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 2] [2009] WASCA 183.
[41] Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 2] [2009] WASCA 183 (S) [2].
Orders had been made by consent by the parties to that appeal following the Original Appeal Judgment, but before those orders were extracted, CAT, through Mr and Mrs Frigger, effectively resiled from its agreement as to the relevant orders, and a dispute accordingly arose about the relevant orders consequential upon the Original Appeal Judgment. These matters were addressed by the Court of Appeal in a further judgment, delivered 7 December 2009: Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 2] (S)[42] (Final Orders Judgment).
[42] Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 2] [2009] WASCA 183 (S).
The Final Orders Judgment dealt with, amongst other things:
1.the amount paid to CAT pursuant to the Original Judgment in excess of the amount which the Court of Appeal found to be a proper award for damages in the Original Appeal Judgment (the Overpayment Sum);
2.the costs of the appeal; and
3.the Original Costs Orders.
Pursuant to the Final Orders Judgment, the court ordered CAT to pay 80% of PSA's and Mr Banning's taxed costs of the appeal. The court also set aside the Original Costs Orders, and remitted the question of costs to Simmonds J for reconsideration in light of the Court of Appeal's reasons (Costs Remitter Order). (The Court of Appeal's orders appear to have been entered on 16 December 2009.)
In relation to the Overpayment Sum, the Court of Appeal ordered (Overpayment Orders):
4.The respondent [CAT] do pay to the appellants [PSA and Mr Banning's executor] 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 and Mr Banning's executor] 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.
An application by CAT to the High Court for special leave to appeal the Original Appeal Judgment was dismissed: Computer Accounting and Tax Pty Ltd v Professional Services of Australia Pty Ltd.[43]
[43] Computer Accounting and Tax Pty Ltd v Professional Services of Australia Pty Ltd [2010] HCA Trans 139.

Winding up of CAT

Following the adverse decision against CAT in the Court of Appeal, Mr and Mrs Frigger, amongst other things, resolved to place CAT into voluntary liquidation on 3 December 2009, and subsequently passed a resolution for a members' voluntary winding‑up on 12 December 2009.[44] On 21 January 2010, in response to an application by PSA, Simmonds J appointed a provisional liquidator to CAT in company proceedings COR 2 of 2010.[45] Further, in COR 2 of 2010, on 6 May 2010, Master Sanderson made an order that CAT be wound‑up in insolvency following non‑compliance with a statutory demand and no application having been made to set it aside.[46] CAT never paid the respondents the amount ordered to be paid to them under the Overpayment Orders, which stood at a sum in excess of $800,000.[47]
[44] Frigger v Professional Services of Australia Pty Ltd [No 3] [2014] WASCA 69 [14], [30].
[45] Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [2010] WASC 38.
[46] Professional Services of Australia Pty Ltd (administrator appointed) v Computer Accounting and Tax Pty Ltd [No 3] [2010] WASC 93.
[47] Frigger v Professional Services of Australia Pty Ltd [No 3] [2014] WASCA 69 [12], [90], [91].
There was no appeal from Master Sanderson's judgment to wind‑up CAT in insolvency.

Subsequent proceedings

Mr and Mrs Frigger have since commenced, or otherwise been involved in, a myriad of other proceedings in the General Division of the Supreme Court, as well as proceedings in this court and in the District Court, in relation to matters associated with the preceding litigation or the events with which the litigation is concerned. Some of the principal proceedings are noted below.

Freezing orders

Freezing orders were made against Mr and Mrs Frigger by Simmonds J in December 2010: Computer Accounting and Tax Pty Ltd v Professional Services of Australia Pty Ltd[No 3][48] (Freezing Orders). The Freezing Orders were made in the context that:
1.on 23 October 2009 (the day of delivery of the Original Appeal Judgment and the day after an advanced copy had been given to the parties' solicitors), Mr and Mrs Frigger registered a charge, allegedly created on 10 September 2009, over property of CAT to secure loans allegedly made by Mr and Mrs Frigger to CAT in the sum of $2 million;
2.on 13 November 2009, Mr and Mrs Frigger arranged for the lodgement of absolute caveats over parcels of real estate registered in the name of CAT; and
3.on 3 December 2009, Mr and Mrs Frigger resolved to put CAT into voluntary liquidation.[49]

Proceedings relating to the receivership of Mr Banning's share

[48] Computer Accounting and Tax Pty Ltd v Professional Services of Australia Pty Ltd[No 3] [2010] WASC 2.

[49] Frigger v Professional Services of Australia Pty Ltd [No 3] [2014] WASCA 69 [14].

On 21 November 2008, CAT had applied for, and obtained, orders pursuant to s 86 of the Civil Judgments Enforcement Act 2004 (WA) appointing Graeme Trevor Lean as receiver over one 50% share owned by Mr Banning in Banning Holdings Pty Ltd (Banning Holdings). On 10 March 2009, Mr Lean entered into a binding written agreement with Mr and Mrs Frigger for the sale and purchase of that share for $730,000. The sale ultimately did not proceed when the directors of Banning Holdings refused to register the share transfer under the provisions of the company constitution.[50]
[50] Frigger v Lean [2015] WASC 125 [5] - [18].
Payment of the judgment debt by PSA and decision in the Original Appeal meant that it was unnecessary to proceed with the sale of the share in Banning Holdings to enforce the judgment debt. However, Mr and Mrs Frigger pursued proceedings to enforce the transfer and registration of the share. Those proceedings were permanently stayed by Kenneth Martin J as an abuse of the process of the court: Frigger v Campbell Smith.[51]
[51] Frigger v Campbell Smith [2010] WASC 353.
Mr and Mrs Frigger also pursued a claim for compensation against Mr Lean for alleged irregularities in performing his duties as the receiver of the share in Banning Holdings. Simmonds J dismissed that claim on 28 March 2014: Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 6].[52] Subsequently, Mr and Mrs Frigger commenced new proceedings advancing substantially the same claim. On 2 April 2015, Mitchell J permanently stayed the new proceedings as an abuse of process: Frigger v Lean.[53]

Proceedings against the liquidator of CAT

CIV 2765 of 2010

[52] Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 6] [2014] WASC 105.

[53] Frigger v Lean[2015] WASC 125.

On 4 November 2010, Mrs Frigger commenced proceedings in CIV 2765 of 2010 against Mr Kitay, the liquidator of CAT. The nature of the proceedings were described in the following terms:[54]
[54] Frigger v Kitay [2016] WASCA 204 [6] - [9].
CAT was the registered proprietor of two properties, 'the Armadale property' and 'the Perth property'. The other parties to the proceedings were added later.
The plaintiffs originally sought:
1.an order pursuant to s 78 of the Trustees Act 1962 (WA) that the Perth property and the Armadale property, vest in Mr and Ms Frigger in their capacity as trustees of the Frigger Super Fund;
2.a declaration pursuant to s 1321 of the Corporations Act 2001 (Cth) regarding interests in a term deposit at St George Bank; and
3.orders pursuant to s 1321 of the Corporations Act regarding the plaintiffs' entitlement to repayment of a taxing fee paid in other proceedings.
In the primary proceedings, the plaintiffs initially alleged that CAT and Mr and Ms Frigger were parties to an enforceable agreement under which Mr and Ms Frigger advanced funds, for the purchase of the Armadale Property and the Perth Property, as loans, subject to an agreement that the properties would later become assets of a trust. In subsequent amendments to their pleadings, the plaintiffs alleged that CAT holds the beneficial interest in each property on an express trust, and that the facts relied upon give rise to a Quistclose trust.
The defendants then brought a counterclaim, asserting a right of indemnity out of trust assets for any costs and liabilities incurred by CAT in its capacity as trustee.
The proceedings in CIV 2765 of 2010 have generated at least 17 interlocutory written decisions to date.[55] On 10 June 2016, Mr and Mrs Frigger's claim in the proceedings was dismissed by operation of a springing order when they failed to give security for costs of those proceedings. However, on 19 December 2017 Allanson J extended the time for compliance with the springing order to 15 January 2018, and it appears Mr and Mrs Frigger complied with that order.[56] However, the proceedings were stayed on Mr and Mrs Friggers' bankruptcy and have not substantively progressed since the bankruptcy of Mr and Mrs Frigger.[57]

CIV 1606 of 2015

[55] The last being Frigger v Kitay [No 17] [2020] WASC 366.

[56] See Kitay v Frigger [2021] WASCA 78 [8] - [14].

[57] See Frigger v Kitay [No 17] [2020] WASC 366.

In CIV 1606 of 2015, Mr and Mrs Frigger commenced another action against Mr Kitay. The amended statement of claim was described by this court as:[58]
a lengthy document containing a wide and diffuse range of allegations expressed in general and vague terms in relation to certain alleged misconduct by the liquidator over the period from around February 2010 to around July 2014.
[58] Frigger v Kitay [No 2] [2017] WASCA 139 [3].
On 2 March 2016, Le Miere J permanently stayed the proceedings in CIV 1606 of 2015: Frigger v Kitay.[59] This court dismissed Mr and Mrs Friggers' appeal against that decision: Frigger v Kitay [No 2].[60] In the course of doing so, the court summarised the basis for dismissal of the proceedings in the following terms:[61]
In the primary decision, the primary judge refused Mr and Mrs Frigger's application for leave to proceed against the liquidator, and ordered that the proceedings be permanently stayed. His Honour found, in effect, that certain claims involved an abuse of process, that in other claims, Mr and Mrs Frigger had not adduced sufficient evidence to justify the grant of leave and the claims had no real prospects of success, and that some claims involved both an abuse of process as well as having no real prospect of success. (footnote omitted).

COR 2 of 2010

[59] Frigger v Kitay [2016] WASC 60.

[60] Frigger v Kitay [No 2] WASCA 139.

[61] Frigger v Kitay [No 2] [2017] WASCA 139 [5].

On 11 November 2019, Mrs Frigger attempted to file an interlocutory process in the winding up proceedings seeking orders setting aside the winding up orders of CAT. Kenneth Martin J dismissed an application for leave to file the interlocutory process on the basis that it would amount 'to the plainest of abuses of processes of this court': Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 5].[62]

Proceedings against Mr and Mrs Friggers' former solicitors

[62] Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 5] [2020] WASC 39 esp at [126].

Mr and Mrs Frigger commenced proceedings against their former solicitors, Clavey Legal Pty Ltd, in the District Court in relation to their retainer in respect of certain matters in connection with proceedings in the Supreme Court in February/March 2010: Frigger v Clavey Legal Pty Ltd [No 3][63] (Retainer Dispute Judgment). The hearing occupied 12 days and Mr and Mrs Frigger's claims were dismissed, with the trial judge making serious adverse findings concerning the honesty of Mrs Frigger, including in relation to Mrs Frigger deliberately swearing false affidavits, including with the intention of misleading the High Court.[64] In a supplementary costs judgment,[65] the District Court made special orders as to costs against Mr and Mrs Frigger on grounds including that they had made unfounded allegations of fraud and perjury against their solicitors and that Mr and Mrs Frigger's conduct of the proceedings was improper and unreasonable (Retainer Costs Judgment).[66]
[63] Frigger v Clavey Legal Pty Ltd [No 3] [2015] WADC 21.
[64] The findings of dishonesty were summarised in Frigger v Clavey Legal Pty Ltd [2015] WASCA 217 [14].
[65] Frigger v Clavey Legal Pty Ltd [No 3] [2015] WADC 21 (S).
[66] Frigger v Clavey Legal Pty Ltd [No 3] [2015] WADC 21 (S) [26] ‑ [29], [33].
An appeal by Mr and Mrs Frigger against the Retainer Dispute Judgment and the Retainer Costs Judgment was dismissed by this court: Frigger v Clavey Legal Pty Ltd [No 3].[67]

Costs appeals

[67] Frigger v Clavey Legal Pty Ltd [No 3] [2016] WASCA 209.

In 2014, this court dismissed various appeals by Mr and Mrs Frigger including in relation to a range of costs orders made against them in connection with the Freezing Orders and other matters: Frigger v Professional Services of Australia Pty Ltd[68] (Omnibus Costs Judgment). In the Omnibus Costs Judgment, the court allowed a cross‑appeal by PSA and ordered that Mr and Mrs Frigger pay costs on an indemnity basis given their 'improper' conduct in making false statements in affidavits.[69]

Costs of Original Proceedings

[68] Frigger v Professional Services of Australia Pty Ltd [No 3] [2014] WASCA 69 [2], [45], [47] ‑ [57], [75] ‑ [77], [116], [135].

[69] Frigger v Professional Services of Australia Pty Ltd [No 3] [2014] WASCA 69 [81], [87] ‑ [113].

In relation to the costs of the Original Proceedings, which were the subject of the Costs Remitter Order by the Court of Appeal, there were certain claims by Mr Banning's estate and PSA for costs orders against CAT in respect of which Simmonds J gave leave to proceed pursuant to s 471B of the Corporations Act 2001 (Cth). In relation to those matters, Simmonds J, with the consent of CAT's liquidator, also granted leave to Mrs Frigger, on 18 February 2011, to conduct the defence of those claims for costs against CAT. Leave was given on the condition that Mr and Mrs Frigger appoint solicitors for that purpose.[70]
[70] Frigger v Professional Services of Australia Pty Ltd [2015] WASCA 3 [18].
Despite leave being given to Mrs Frigger in that regard, Mr and Mrs Frigger also sought to be personally joined to the Original Proceedings, ostensibly for the purpose of dealing with the claims for costs against CAT. Simmonds J refused that application on the basis that, amongst other things, it was inappropriate to allow them to be joined as parties, as his Honour had previously ordered that Mrs Frigger be given leave to conduct the defence of the claims for costs against CAT: Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd[71] (Joinder Decision).
[71] Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 7] [2014] WASC 360.
On 22 September 2014, Mr and Mrs Frigger filed appeal CACV 118 of 2014 against the Joinder Decision (Joinder Appeal).
In October 2014, Mr and Mrs Frigger, in the Joinder Appeal, sought a stay of the Joinder Decision pending the determination of the appeal. That application for a stay of the Joinder Decision was dismissed by this court: Frigger v Professional Services of Australia Pty Ltd[72] (Stay Dismissal Decision).
[72] Frigger v Professional Services of Australia Pty Ltd [2015] WASCA 3.
On 21 January 2016, Mr and Mrs Frigger applied for a stay of the Joinder Appeal pending the resolution of certain proceedings pending in the Federal Court of Australia. On 24 March 2016, Buss and Murphy JJA dismissed that application: Frigger v Professional Services of Australia Pty Ltd [No 2] (Appeal Stay Decision).[73]
[73] Frigger v Professional Services of Australia Pty Ltd [No 2] [2016] WASCA 68.
In the Appeal Stay Decision, Mr and Mrs Frigger sought a stay because they had recently commenced proceedings in the Federal Court of Australia, which they contended would (somehow) have the effect of, or lead to, the setting aside or variation of various judgments and orders made by this court, and by the General Division of the Supreme Court of Western Australia, going back over many years. Mr and Mrs Frigger contended that if the Federal Court made orders which have the effect of, or provide the basis for, setting aside or varying the judgments of the Supreme Court of Western Australia, the appeal would become otiose, and that accordingly, the interest of justice required that the Joinder Appeal be stayed.[74]
[74] Frigger v Professional Services of Australia Pty Ltd [No 2] [2016] WASCA 68 [4].
Buss and Murphy JJA observed that, on the information then available, it was difficult to see how, at least prima facie, any applications in the Federal Court designed to set aside or affect the orders of this court and of the General Division of the Supreme Court, going back several years, would not constitute an abuse of process as an impermissible collateral attack on the judgments of this court.[75] Their Honours concluded that Mr and Mrs Frigger had not adduced in evidence any material from which they could infer that Mr and Mrs Frigger had good arguable claims with reasonable prospects of success that could somehow lead to the setting aside or variation of any of the relevant orders.[76]
[75] Frigger v Professional Services of Australia Pty Ltd [No 2] [65], referring to Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378, 392 - 393.
[76] Frigger v Professional Services of Australia Pty Ltd [No 2] [77].
On 22 April 2016, the Joinder Appeal was dismissed by operation of a springing order when Mr and Mrs Frigger failed to file appeal books: see Frigger v Professional Services of Australia Pty Ltd [No 3].[77]
[77] Frigger v Professional Services of Australia Pty Ltd [No 3] [2018] WASCA 106 [9].
Pursuant to the Costs Remitter Order, Simmonds J made orders in relation to the costs of the Original Proceedings and other associated matters: Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 8][78] (Remitter Costs Judgment).

Slip rule application

[78] Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 8] [2015] WASC 166.

Well over five years after the Final Orders Judgment in the Court of Appeal, Mr and Mrs Frigger applied, purportedly under the slip rule, to set aside the Overpayment Orders which the Court of Appeal had made in December 2009. That application was heard on 2 October 2015, and the Court of Appeal delivered reasons dismissing the application on 10 December 2015: Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 4][79] (Slip Rule Judgment).
[79] Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 4] [2015] WASCA 253.

Proceedings concerning PSA's Deed of Company Arrangement

The Final Orders Judgment and the Slip Rule Judgment

In their application under the Slip Rule Judgment to set aside the Overpayment Orders which had been made in December 2009, Mr and Mrs Frigger raised with the Court of Appeal the question of the operation of the Deed of Company Arrangement of PSA and in particular, the provision (cl 6.1.3) concerning repayment of the Overpayment Sum. Martin CJ rejected this as a basis for setting aside the Overpayment Orders and in doing so, noted that the Deed of Company Arrangement had been brought to the attention of the court at the hearing in relation to final orders in December 2009. His Honour said:[80]
First, it cannot be said that the failure to draw the attention of the court to the deed of company arrangement (upon which the current application is based) was inadvertent or accidental. As I have noted, the attention of the court was in fact drawn to the deed of company arrangement in the written submissions which preceded the making of the orders which the Friggers now seek revoked. However, no argument of the kind now advanced was brought based upon the terms of the deed of company arrangement, nor was the deed adduced in evidence. The court refused to act upon the assertions made with respect to the deed for those reasons. Omissions of that kind cannot be characterised as accidental or inadvertent, but are more properly characterised as a failure to provide any basis for, or to substantiate by evidence, the proposition advanced. The slip rule does not permit arguments or contentions that have been poorly or inadequately advanced to be bolstered by further argument or evidence after final orders have been made. Further, there is a fair inference that the failure to produce in evidence and advance detailed submissions based upon the deed of company arrangement may have well been a deliberate forensic decision on the part of the Friggers and/or their legal advisers. That is because CAT had commenced proceedings in the Supreme Court of Western Australia seeking orders to the effect that the deed of company arrangement was either void or had been terminated according to its terms. Those proceedings were on foot at the time written submissions were provided to this court on behalf of CAT, and at the time this court made the orders which the Friggers now seek to have revoked.
Second, the consequences which the Friggers assert flow from the terms of the deed of company arrangement are neither obvious nor compelling, and are matters upon which there is great scope for argument and for the formation of differing views. To the contrary, the legal reasoning said to underpin the Friggers' application is convoluted and at points circuitous.

CIV 211 of 2009

[80] Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 4] [2015] WASCA 253 [30] - [31].

In CIV 2001 of 2009, proceedings were commenced (relevantly) by Banning Holdings to extend the time for the operation of PSA's Deed of Company Arrangement. There was a hearing on 5 June 2009. Mr and Mrs Frigger were heard, having been given leave. They opposed the application for an extension. The court (Simmonds J) in effect granted the extension: Banning Holdings Pty Ltd v Holbrook.[81]
[81] Banning Holdings Pty Ltd v Holbrook [2009] WASC 178.

Also in CIV 2001 of 2009, by application dated 27 August 2009, CAT applied for orders to the effect that PSA's Deed of Company Arrangement be terminated. The application by CAT was supported by an affidavit of Mrs Frigger sworn 27 August 2009. Mrs Frigger claimed, inter alia, that the deed was oppressive, unfairly prejudicial and discriminatory against CAT; that the deed had been improperly procured; that there had been material contraventions of the deed; and that the deed administrator had made misrepresentations: see Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 9].[82]
[82] Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 9] [2015] WASC 343 [15], [77], [78], [89], [91] ‑ [93], [97] ‑ [102].
The application was initially heard on 7 October 2009 when it was adjourned sine die with costs reserved and liberty to apply.[83]
[83] Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 9] [2015] WASC 343 [22].
On 2 December 2009, Mrs Frigger's affidavit of 30 November 2009 was filed in support of an application by CAT for the other parties to 'give full discovery … prior to the substantive hearing of CAT's application for the termination of the DOCA'.[84] Informal discovery was ordered against, and given by, Mr Holbrook as the administrator under the PSA Deed of Company Arrangement.[85]
[84] Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 9] [2015] WASC 343 [27].
[85] Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 9] [2015] WASC 343 [29] ‑ [30].
The matter was then, in effect, left in abeyance for some years.[86] In the meantime, however, in COR 205 of 2011, the Deed of Company Arrangement of PSA had been terminated, effectively on the basis that its purposes had been wholly effectuated.[87]
[86] Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 9] [2015] WASC 343 [32], [38].
[87] Holbrook v Professional Services of Australia Pty Ltd [2012] WASC 444 [41] ‑ [42]; Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 9] [2015] WASC 343 [36].
Subsequently, proceedings in CIV 2001 of 2009 were reactivated and on 19 September 2014, certain programming orders were made at which Mr Griffin, solicitor, appeared on behalf of CAT on instructions from Mr and Mrs Frigger.[88]
[88] Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 9] [2015] WASC 343 [39] ‑ [40], [43].
Simmonds J ultimately considered and addressed CAT's application in CIV 2001 of 2009 in his reasons for judgment delivered on 16 September 2015: Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 9].[89] In that judgment, Simmonds J, amongst other things, addressed the grounds and arguments raised by Mrs Frigger's affidavit sworn 27 August 2009.[90] His Honour said:[91]
I should further note, apart from the matters I have just reviewed, that the fact that the DOCA ultimately achieved the purpose of more than meeting the just claim of the only creditor of PSA that objected to the DOCA - CAT - indicates that there would have been no order to terminate the DOCA or otherwise to qualify the effect of actions under it as sought by the application of 27 August 2009 in CIV 2001 of 2009.
[89] Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 9] [2015] WASC 343.
[90] Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 9] [2015] WASC 343 [77] ‑ [79], [87] ‑ [104].
[91] Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 9] [2015] WASC 343 [103].
Accordingly, by orders made on 18 September 2015, Simmonds J in CIV 2001 of 2009 dismissed CAT's application dated 27 August 2009, and ordered CAT to pay the costs of Mr Holbrook and Banning Holdings.

The Original Proceedings - application for suspension of costs orders

Mr and Mrs Frigger also agitated the question of the effect and operation of PSA's Deed of Company Arrangement in Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 10].[92] In that matter, Mr and Mrs Frigger applied for the suspension of certain costs orders against them. The claim was put on the basis that the Freezing Orders, the appointment of a provisional liquidator to CAT, and the winding‑up of CAT in insolvency, were all legal processes undertaken by the respondents which were 'collateral abuses of process and which had the ulterior motive of forcing CAT or the Friggers to repay the judgment sum in circumstances where it did not have to be repaid, or it had to be repaid to a third party under a Deed of Company Arrangement for [PSA], or it could be set‑off against CAT's legal and enforcement costs'.[93] Simmonds J also noted that Mr and Mrs Frigger claimed that there had been a 'waiver of the right to payment' under the Deed of Company Arrangement.[94]
[92] Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 10] [2015] WASC 380.
[93] Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 10] [2015] WASC 380 [37].
[94] Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 10] [2015] WASC 380 [38].
As to the arguments made by Mr and Mrs Frigger in relation to the Deed of Company Arrangement of PSA, Simmonds J said:[95]
I should further note that the question of the waiver of the right to payment contended for would appear to depend on the application of the relevant terms of the DOCA in the events that happened. Particular reference was made to this purpose, as I understood the matter, to DOCA cl 6.3, read with cl 6.1.3 and cl 5.2: see Mrs Frigger's affidavit of 19 January 2015 annexure 'AF4'.
However, the application contended for would appear to be difficult to sustain, as it depends upon termination of the DOCA by operation of its terms (automatic termination). Such operation would appear to be inconsistent with my decision in Holbrook v Professional Services of Australia Pty Ltd [2012] WASC 444 to grant an application to terminate the DOCA under Corporations Act 2001 (Cth) s 447A.
As to the entitlement to the repayment by virtue of the operation of the DOCA before its termination, in particular cl 6.1.3, on which, from the affidavit of Mrs Frigger of 19 January 2015 annexure 'AF4' appeared to make the matter depend, this would appear to have been a matter which might have been raised before the Court [of] Appeal in submissions on the orders [the] Court eventually made in Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 2] [2009] WASCA 183 (S) (PSA [No 2] WASCA (S)). Indeed, it would appear that matters arising out of the DOCA were pressed on the court, which allowed leave for CAT to apply for a stay of orders as to repayment: see PSA [No 2] WASCA (S) [11], [13] - [14].
No application for such a stay was made, on the materials before me. The terms of the orders made were for repayment to the defendants, as I have indicated.
Having regard to those matters, it is not evident to me this basis for a collateral abuse claim [by Mr and Mrs Frigger against the respondents - sic] is a strong one.
As to the right of set-off contended for, whether it rests on DOCA cl 6.1.3, which provides for any repayment amount to be set-off against any costs owing on the taxation of costs (see affidavit of Mrs Frigger of 19 January 2015), or on any other basis, I indicate below why I consider that there is unlikely to be any balance in favour of CAT on that account.

CIV 2765 of 2010

[95] Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 10] [2015] WASC 380 [52] ‑ [57].

In Frigger v Mervyn Jonathon Kitay in his capacity as liquidator of Computer Accounting and Tax Pty Ltd (in liquidation) [No 7],[96] there was a dispute in relation to Mr and Mrs Friggers' substituted reply and defence to counterclaim. In that judgment, Allanson J observed with respect to Mr and Mrs Friggers' pleading:[97]
[96] Frigger v Mervyn Jonathon Kitay in his capacity as liquidator of Computer Accounting and Tax Pty Ltd (in liquidation) [No 7] [2014] WASC 441.
[97] Frigger v Mervyn Jonathon Kitay in his capacity as liquidator of Computer Accounting and Tax Pty Ltd (in liquidation) [No 7] [2014] WASC 441 [26] - [28], [30] ‑ [35].
In paragraph 27, [Mr and Mrs Frigger] plead that the judgment and orders of the Court of Appeal were contrary to the terms of the DOCA; and that Professional Services Australia and Mr Banning had no right to apply for a liquidator to be appointed to [CAT], because [CAT] was entitled to retain the judgment sum pursuant to the DOCA.
In that way, pars 14 to 20 and 27 mount a collateral challenge to the decision of the master ordering that [CAT] be wound up in insolvency for failure to comply with two statutory demands, and probably to the orders made in the Court of Appeal: see Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 3] [2010] WASC 93.
Paragraph 29 contains the extraordinary plea that Mr and Mrs Frigger acted in compliance with their duties as directors of [CAT] in refusing to cause [CAT] to comply with the appeal judgment.
…
[Mr and Mrs Frigger] support these pleadings as a defence to the defendants' claim under the trustee's right of indemnity and exoneration. I will refer to it as the right of indemnity. In their written submissions, [Mr and Mrs Frigger] say:
'In their Defence, the defendants make a claim under a trustee's right of indemnity and exoneration on behalf of Professional Services of Australia Pty Ltd and the Estate of Martin Paul Banning (PSA/Banning), the entities that sought and obtained the appointment of the first defendant and who are still clients of Mr Lenhoff [the solicitor for the liquidator].
In those circumstances, Mr and Mrs Frigger are entitled to raise any defence against such a claim, including that those entities are not entitled to repayment of the judgment sum which they did not pay in the first place.'
[Mr and Mrs Frigger] say their plea is not an attack on the decision of the Court of Appeal, but that the order of the court could only be effective if the parties named in the order had a right to repayment. Accordingly, they submit, as the defendants claim the right of indemnity on behalf of Professional Services Australia or the estate of Mr Banning, which have no right to repayment, the orders of the Court of Appeal are ineffective, the liquidators appointment is invalid, and the liquidators claim 'on behalf of PSA/Banning' is invalid.
The submission, in my opinion, is misconceived. If that is the purpose of the plea, it cannot stand.
The defendants claim the right of indemnity as an asset in the liquidation. … The fact that Professional Services Australia or the estate of Mr Banning may be able to prove debts in the liquidation of [CAT] does not make the claim to that right a claim 'on behalf of' either or both of them. No question of assignment by Banning Holdings of the amount ordered to be paid by the Court of Appeal arises.
I am satisfied that pars 14 to 20, 27 and 29 may prejudice, embarrass or delay the fair trial of the action, and should be struck out on that ground. They seek to raise issues which are immaterial and irrelevant, and disclose no arguable defence to the counterclaim.
Paragraph 27 should also be struck out as an abuse of process to the extent that it is a collateral challenge to earlier decisions of this court. (emphasis in original).

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RW
Associate to the Honourable Justice Murphy
7 SEPTEMBER 2022