Frigger v Professional Services of Australia Pty Ltd [No 2] - [2025] WASC 238

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   FRIGGER -v- PROFESSIONAL SERVICES OF AUSTRALIA PTY LTD [No 2] [2025] WASC 238
CORAM:   HILL J
HEARD:   20 SEPTEMBER 2023 & 19 OCTOBER 2023;
WRITTEN SUBMISSIONS 23 & 30 OCTOBER 2023

DELIVERED          :   19 JUNE 2025
FILE NO/S:   CIV 1613 of 2023
BETWEEN:   ANGELA CECILIA THERESA FRIGGER
Plaintiff
AND
PROFESSIONAL SERVICES OF AUSTRALIA PTY LTD
Defendant

Catchwords:

Practice and procedure - Plaintiff's application to strike out memorandum of appearance and for default judgment - Turns on own facts

Practice and procedure - Plaintiff's application for summary judgment - Whether defendant validly registered as corporation - Whether defendant's registration void ab initio - Whether directors of defendant were properly appointed and authorised to issue statutory demand and wind-up Computer Accounting and Tax Pty Ltd - Whether plaintiff has established that the defendant has no arguable defence to claim - Turns on own facts

Legislation:

Corporations Act 1989 (Cth)
Corporations (Western Australia) Act 1990 (WA) s 7
Rules of the Supreme Court 1971 (WA) O 14 r 1

Result:

Plaintiff's applications dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	In person
Defendant	:	T R Stephenson

Solicitors:

Plaintiff	:	In person
Defendant	:	Eastwood Law

Cases referred to in decision:

Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334
Chappell v Goldspan Investments Pty Ltd [2021] WASCA 205; (2021) 58 WAR 503
Chittleborough v Troy Group Pty Ltd [2024] WASCA 22
Clone Pty Ltd v Players Pty Ltd (in liq) (recs & mgrs apptd) [2018] HCA 12
Commissioner of Taxation v Linter Textiles Australia Ltd (in liq) [2005] HCA 20; (2005) 220 CLR 592
Eng Mee Yong v Letchumanan [1980] AC 331
Frigger v Professional Services of Australia [No 2] [2011] WASCA 103
Frigger v Professional Services of Australia Pty Ltd (No 3) [2023] FCA 520
Frigger v Professional Services of Australia Pty Ltd (No 5) [2024] FCA 420
Frigger v Professional Services of Australia Pty Ltd [2023] WASC 330
Hillboi Nominees Pty Ltd v Evenwood Pty Ltd [2000] WASCA 66
Maddocks v DJE Constructions Pty Ltd [1982] HCA 17; (1982) 148 CLR 104
Miles v Bull [1969] 1 QB 258; [1968] 3 All ER 632
Moller v Roy [1975] HCA 31; (1975) 132 CLR 622
Pisano v South Metropolitan Health Service [2023] WASCA 80; (2023) 414 ALR 130
Smith v McCusker QC [2005] WASCA 226
Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14
Westpac Banking Corporation v Anderson [2017] WASC 106
Wildflower Electrical Refrigeration Service (WA) v Refrigid Pty Ltd [2014] WASC 382

HILL J:

Since about September 2003, the plaintiff (Mrs Frigger), Computer Accounting and Tax Pty Ltd (in liquidation) (CAT), a company of which Mrs Frigger is a director and shareholder, and the defendant, Professional Services Australia Pty Ltd (PSA), have been in dispute. Originally, the dispute concerned a claim by CAT for misleading and deceptive conduct in respect of the purchase of a property in Armadale, Western Australia. However, since about 2010, the dispute has, at its heart, centred or arisen as a consequence of the application by PSA to wind up CAT, filed in January 2010 (COR 2 of 2010), and the subsequent orders of this court on 21 January 2010 to appoint a provisional liquidator and ultimately on 6 May 2010 for the winding‑up of CAT in insolvency (2010 Orders).
As a consequence of costs orders made in COR 2 of 2010 in June 2014, both Mrs Frigger and her husband, Mr Frigger, were made bankrupt in July 2018 by orders of the Federal Court of Australia on the application of CAT and its liquidator, Mr Kitay. These orders have been the subject of challenge in various proceedings in the Federal Court of Australia.
On 10 June 2023, Mrs Frigger filed the writ of summons in these proceedings against PSA and on 16 June 2023, filed a statement of claim. Mrs Frigger contends that PSA never came into existence as an incorporated company, and that instructions for PSA to serve a statutory demand that ultimately caused the winding up of CAT in insolvency, and to commence COR 2 of 2010, were not given by a properly appointed director. She says that these steps were taken by a non‑existent company and were not authorised by validly appointed directors, and that the 2010 Orders were obtained by fraud and should be set aside.
On 23 August 2023, Mrs Frigger filed a summons seeking orders to strike out PSA's memorandum of appearance, which was filed on 30 June 2023, and for default judgment. The summons was accompanied by a memorandum seeking a waiver of conferral pursuant to O 59 r 9(2) of the Rules of the Supreme Court 1971 (WA) (Rules). In the alternative, orders were sought for summary judgment pursuant to O 14 r 1(1) of the Rules. The application was opposed by PSA essentially on the basis that Mrs Frigger did not have standing to raise these issues, her contentions were based on a false premise, and, in any event, Mrs Frigger had not discharged her onus to satisfy the court that there was no question to be tried in these proceedings.
This application was listed for hearing before me on 20 September 2023 and 19 October 2023. At the conclusion of the hearing on 19 October 2023, I ordered that Mrs Frigger file an affidavit annexing the transcript of a portion of a hearing in the Federal Court of Australia, and for the parties to file short, limited submissions.
For the reasons that follow, it is my view that Mrs Frigger's summons should be dismissed.

Has Mrs Frigger complied with O 59 r 9 and should conferral be waived?

No conferral took place between Mrs Frigger and PSA's solicitors prior to the filing of the summons. Instead, a memorandum pursuant to O 59 r 9(2) was filed seeking waiver of conferral on the basis of 'the urgency of this matter'.
Order 59 r 9(1) of the Rules requires parties to confer prior to making any application in chambers. While the rule states that no order shall be made unless this has occurred, the court can waive this requirement in two circumstances. First, in a case of urgency, and second, 'for other good reason'.
No facts are set out in the memorandum to support the contention that the application is urgent. In this context, 'urgent' has to be construed in the context of O 59 r 5 of the Rules, which requires a summons to be served seven days prior to its return date. It follows that a matter is urgent where orders are required immediately, and it is not possible for the party to comply with the requirements of conferral and service of the summons seven days prior to the hearing.
Mrs Frigger's submissions indicate that the urgency arises from her desire (which, no doubt, is shared by PSA as well as its solicitors and counsel) for the longstanding disputes between her and PSA to be concluded. This desire, while understandable, is not the 'urgency' contemplated by the Rules, nor does it absolve Mrs Frigger from the requirement to comply with the Rules.
That said, as has been made plain by the court on previous occasions, the court will not insist on strict compliance with O 59 r 9(1) where it is of no utility and will only lead to unnecessary costs being incurred.[1] Given the history of this matter, I consider that any conferral in relation to this application would have been of no utility and would have, in fact, increased PSA's legal costs.
[1] Wildflower Electrical Refrigeration Service (WA) v Refrigid Pty Ltd [2014] WASC 382 [14].
On this basis, I am prepared to waive the obligation to comply with O 59 r 9(1) of the Rules on this occasion.

Statement of claim

Mrs Frigger's statement of claim pleads two separate grounds on which she says that the 2010 Orders should be set aside for fraud. The first relates to signatures on a document dated 5 June 1998 and entitled 'Memorandum & Articles of Association of Liberty Oil (Australia) Pty Ltd' (the previous name for PSA) (PSA Memorandum). The second concerns the validity of the transfers of shares to Donald Campbell‑Smith and Sandra May Banning.
In relation to the first ground, Mrs Frigger pleads that:
5. On or about 5 June 1998 the Boyles' signatures were written by an unknown person/s on a document entitled 'Memorandum & Articles of Association of Liberty Oil (Australia) Pty Ltd' (PSA's Memorandum).
6. On or about 22 March 2022 David Boyle stated on oath in action CIV1309/2021 that the signatures on PSA's Memorandum had not been signed by him or his wife.
7. On or about 31 March 2023 Michael Maran, a handwriting expert, reported that the signatures on PSA's Memorandum had been forged. On or about 25 May 2023 PSA's counsel Timothy Stephenson requested the Federal Court in action WAD126/2022 to assume as a fact that PSA's Memorandum was forged and consequently 'did not exist'.
By reason of these matters, Mrs Frigger contends that PSA is not a validly incorporated company and never came into existence.
In relation to the second ground, Mrs Frigger pleads that:
8. On or about 8 June 1998 Martin Paul Banning (Banning) purported to allot one ordinary share in PSA to each of Martin Paul Banning (Share Certificate No 1) and John Andrew Miller (Share Certificate No 2) which allotments were notified to ASIC in document No. 013907936 on 1 July 1998. John Andrew Miller was unaware he had been allotted one ordinary share in PSA.
9.On 8 September 2008 Banning died.
10. On an unknown date after the death of Banning, Martin Paul Banning's name on Share Certificate No. 1 was crossed out and 'Donald Campbell-Smith as executor of the Will of Martin Paul Banning' was handwritten in blue ink by an unknown person.
11. On an unknown date, John Andrew Miller's name on Share Certificate No. 2 was crossed out and 'SANDRA MAY BANNING' was handwritten in blue ink by an unknown person.
12. No instruments of transfer were executed by any of the persons whose names appear on Share Certificate No 1 and Share Certificate No 2.
13. In the circumstances of [12] above, the alteration of Share Certificate No 1 and Share Certificate No 2 constitute fraudulent misappropriation of personal property.
14. On 17 November 2008 at 3rd floor 16 Irwin Street Perth WA Donald Campbell- Smith and Sandra May Banning purported to hold a meeting of PSA shareholders and resolved to:
(a)register Donald Campbell-Smith as holder of Share No 1
(b)appoint Donald Campbell-Smith and Sandra May Banning as directors of PSA
15. In the circumstances of [13] above, the meeting on 17 November 2008 had a fraudulent purpose of holding a shareholders' meeting by persons who were not shareholders and to appoint directors by persons who had no legal or equitable right to do so.
As a consequence of these matters, Mrs Frigger says that Mr Campbell‑Smith and Mrs Banning were not validly appointed as directors of PSA. As a result of having no validly appointed directors, Mrs Frigger says that PSA was not able to give instructions to retain solicitors, issue the statutory demand, or issue the winding up proceedings. On this basis, Mrs Frigger says that the 2010 Orders were obtained by fraud and should be set aside.

Procedural background to application

On 29 June 2023, Mrs Frigger filed a notice of motion for default judgment together with an affidavit of service. In the affidavit, Mrs Frigger deposed that she had served the writ by post on PSA on 12 June 2023.
Prior to the motion for default judgment being listed for hearing, on 30 June 2023, PSA (via its solicitors, Eastwood Law) filed a document entitled 'Memorandum of Appearance'.
On 10 July 2023, Mrs Frigger filed an amended motion raising the failure to file and serve a defence by 8 July 2023 as an alternative basis for the orders for default judgment.
On 10 August 2023, the matter was listed for a directions hearing. On that date, it became apparent that although the memorandum of appearance had been filed, it had not been served on Mrs Frigger as required by the Rules. Orders were made for the parties to file various documents and adjourning the applications (for default judgment and the oral application to extend the time to serve the memorandum of appearance) until 23 August 2023.
On that date, after hearing from the parties, I granted PSA's application for an extension of time to serve the memorandum of appearance until 24 August 2023 and dismissed Mrs Frigger's application for default judgment.[2]
[2] Frigger v Professional Services of Australia Pty Ltd [2023] WASC 330.
On 23 August 2023, Mrs Frigger filed the summons that is the subject of this judgment. The summons was listed for directions only at 30 August 2023 at 11.00 am. On that date, there was no appearance by PSA. Following receipt of an affidavit from Mrs Frigger confirming the chamber summons had been served on PSA's solicitors, orders were made to program the summons through to hearing. These orders included leave being granted to Mrs Frigger to rely on materials that had already been filed in support of her earlier application, for the parties to provide unavailable dates for the hearing, and for PSA to file any affidavits and submissions in response to the application by 13 September 2023.
Mr Eastwood's evidence is that the copy of the chamber summons that he received from Mrs Frigger did not include a return date for the summons and he was unaware the chamber summons had been listed for hearing on 30 August 2023. That said, he acknowledges that on 29 August 2023, his firm received by email from Mrs Frigger a minute of proposed orders for the hearing on 30 August 2023.[3] The email address used by Mrs Frigger to serve these documents is the email of Eastwood Law set out in the memorandum of appearance filed on behalf of PSA.
[3] Affidavit of Cameron Victor Eastwood filed 27 September 2023 [6] - [11].
As required, both parties provided unavailable dates for the hearing by 1 September 2023 and were informed by email that the matter was listed for hearing for a half day on 20 September 2023.[4]
[4] Email from Associate to Justice Hill to Mrs Frigger and various representatives of Eastwood Law dated 4 September 2023.
No materials were filed by PSA prior to the hearing on 20 September 2023. At the hearing on 20 September 2023, PSA was represented by counsel. At the conclusion of the allotted time for the hearing, Mrs Frigger had not completed her submissions and the defendant's counsel had not yet been substantively heard on the application. For this reason, the application was adjourned part‑heard to a date to be fixed.
The application was relisted for a further half day on 19 October 2023. Prior to this hearing, PSA filed two affidavits in opposition to the application: an affidavit of Mr Eastwood on 27 September 2023 and an affidavit of its counsel, Mr Stephenson, on 4 October 2023. On 14 October 2023, Mrs Frigger filed an affidavit in response to these affidavits.
At the conclusion of the hearing on 19 October 2023, I reserved my decision. I made orders requiring Mrs Frigger to file an affidavit annexing the transcript of Mr Boyle's evidence in proceedings in the Federal Court of Australia, being WAD 126 of 2022, and for the parties to file short further submissions (limited to two pages) in relation to this evidence.
In November and December 2023, PSA filed two further affidavits in opposition to the application, being an affidavit of Mrs Banning filed 3 November 2023 and an affidavit of John Andrew Miller filed 4 December 2023. Prior to filing these affidavits, PSA had not sought leave of the court to file these affidavits or to re‑open the application to enable these affidavits to be read.
An application for leave to rely on these affidavits for the purpose of Mrs Frigger's summary judgment application was filed on 5 December 2023. This application was listed before me on 13 December 2023. After hearing from the parties, I declined to make any orders. As a consequence, the affidavits of Mrs Banning and Mr Miller have not been read or taken into account in dealing with the applications before me.
On the application of Mrs Frigger, the matter was relisted on 28 February 2024. On that date, orders were made (with no opposition by PSA) for the memorandum of appearances filed by PSA to be struck out. A fresh memorandum of appearance was filed by PSA later that day.

Evidence on the application

In support of her application, Mrs Frigger relied on three affidavits sworn by her and filed on 26 July 2023, 23 August 2023, and 19 September 2023.
In opposition to the application, PSA relied on the affidavits of Cameron Victor Eastwood filed 27 September 2023 and Timothy Richard Stephenson filed 4 October 2023.
In reaching my decision, I have also had regard to Mrs Frigger's affidavit filed 25 October 2023, which was filed in accordance with my orders of 19 October 2023.

Should PSA's memorandum of appearance be struck out?

The application by Mrs Frigger to strike out PSA's memorandum of appearance filed 20 June 2023 has been overtaken by the orders of 28 February 2024 and the filing of a fresh memorandum of appearance by PSA on 28 February 2024.
Mrs Frigger had three complaints about the original memorandum of appearance, being: first, the memorandum of appearance named Eastwood Law as the party representing PSA, who is not an Australian legal practitioner; second, the memorandum of appearance was not personally signed by Eastwood Law; and third, the memorandum of appearance did not include PSA's registered office as its geographical address.
The memorandum of appearance filed on 28 February 2024 has been filed by a legal practitioner,[5] personally signed by Mr Eastwood, and gives PSA's registered office as its geographical address. There can be no question that this document complies with O 12 of the Rules.
[5] Chittleborough v Troy Group Pty Ltd [2024] WASCA 22 [37] - [52].
Even if the application had not been overtaken by the filing of the memorandum of appearance on 28 February 2024, consistent with the reasons of the Court of Appeal in Chittleborough v Troy Group Pty Ltd, the only defect with PSA's original memorandum of appearance was the failure to record its geographical address as being its registered office. Consistent with the reasons in Chittleborough v Troy Group Pty Ltd, I do not consider that this defect would result in the memorandum of appearance being a nullity. This irregularity could have been dealt with by the court under O 2 r 1 of the Rules. On that basis, even if I was required to determine the application in relation to the original memorandum of appearance, I would have declined to exercise my discretion to strike out the original memorandum of appearance.
For these reasons, the application to strike out the memorandum of appearance should be dismissed.

Should the court enter default judgment?

In circumstances where PSA has filed a valid memorandum of appearance giving notice of its intention to defend Mrs Frigger's claim, and no certificate was provided to the court at the hearing (as required by O 13 r 9(2)(b) of the Rules), there is no basis on which the court can enter default judgment in favour of Mrs Frigger.
The application for default judgment must be dismissed.

Should the court exercise its discretion to grant summary judgment?

At the hearing, Mrs Frigger raised three issues which, in her submission, impacted on the legal status of PSA. Two of those are those summarised at [13] above. The third issue concerned whether any initial subscriber shares or ordinary shares of PSA were issued. This was expanded at the hearing on 19 October 2023 to include questions of the legitimacy of minutes of meetings held on 5 and 8 June 2008. None of these matters are pleaded in the statement of claim. On an application for summary judgment, it is only necessary for a defendant to deal with the case that is pleaded against them.[6] Accordingly, I do not consider that the third issue is (or third issues are) relevant to the application and have not addressed this matter in these reasons.

Legal principles

[6] Smith v McCusker QC [2005] WASCA 226 [52].

The application for summary judgment was brought pursuant to O 14 r 1(1) of the Rules, which provides that:
Where in an action to which this Order applies a statement of claim has been served on a defendant and that defendant has entered an appearance, the plaintiff may, on the ground that that defendant has no defence to a claim included in the writ, or to a particular part of such claim, or has no defence to such a claim or part except as to the amount of any damages claimed, within 21 days after appearance or at any later time by leave of the Court, apply to the Court for judgment against that defendant.
Pursuant to O 14 r 3(1) of the Rules, on the hearing of an application for summary judgment, unless the court dismisses the application or the defendant satisfies the court that 'there is an issue or question in dispute which ought to be tried, or that there ought for some other reason to be a trial', the court may give such judgment for the plaintiff as may be just, having regard to the nature of the remedy or relief claimed.
The principles that are applicable to an application for summary judgment are well established. They were summarised by the Court of Appeal in Sutton Investments Pty Ltd v Realistic Investments Pty Ltd as follows:[7]
Summary judgment will be granted only when there is no real question to be tried. The power to order summary judgment is one that should be exercised with great care. It is only in the clearest of cases, when there is a high degree of certainty about the ultimate outcome of the proceedings if it went to trial, that summary judgment ought properly be granted. (citations omitted)
[7] Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14 [24].
A summary judgment application is not the occasion to resolve which of the parties' arguments are to be accepted, particularly where not all of the relevant facts have been agreed. The court is not bound to accept uncritically every statement in an affidavit however inherently improbable or equivocal, lacking in precision or inconsistent with undisputed contemporary documents or other statements by the deponent.[8] A party should not be denied the opportunity to put his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes.
[8] Pisano v South Metropolitan Health Service [2023] WASCA 80; (2023) 414 ALR 130 [52(5)] citing with approval Eng Mee Yong v Letchumanan [1980] AC 331, 341.
The party who is seeking summary judgment bears the onus of persuading the court that their claim is a good one and that there is no defence to the claim. If the affidavits filed in support of the application make out a prima facie case, an evidentiary burden passes to the other party to show there is a defence to the action. However, the overall legal burden always remains with the party seeking summary judgment of persuading the court that the relief sought by them should be granted.[9]
[9] Westpac Banking Corporation v Anderson [2017] WASC 106 [102].
These principles reflect the position that, ordinarily, a party's claims are to be assessed and determined at trial. At trial, all issues in a case are determined, after the parties have had the opportunity to avail themselves of the usual interlocutory processes and steps permitted by the Rules.
On an application for summary judgment pursuant to O 14 of the Rules, the court may decline to award summary judgment if the defendant satisfies the court 'that there ought for some other reason to be a trial of that claim'. In Miles v Bull, Megarry J expressed the view that:[10]
If the defendant cannot point to a specific issue which ought to be tried but nevertheless satisfies the court that there are circumstances that ought to be investigated, then I think that those concluding words are invoked. There are cases when the plaintiff ought to be put to strict proof of his claim, and exposed to the full investigation possible at a trial; and in such cases it would, in my judgment, be wrong to enter summary judgment for the plaintiff.

Are the preconditions to the application met?

[10] Miles v Bull [1969] 1 QB 258; [1968] 3 All ER 632, 266.

Counsel for PSA raised two preliminary issues in relation to the application. First, PSA submitted that the application was not brought within time. Second, PSA said that Mrs Frigger had not complied with the requirements of the Rules, in that she did not serve PSA with all affidavits on which she relied not less than seven days prior to the return date of the summons and that, as a consequence, the application should be dismissed.
In relation to the first issue, counsel for PSA contended that it was necessary for Mrs Frigger to seek leave to bring the application for judgment because 'there has been no explanation as to the delay from the time of the filing of the statement of claim bringing it'.[11] Subsequently, it was contended that the application was not brought within 21 days after the appearance was lodged.
[11] ts 58.
Order 14 r 1(1) of the Rules requires an application to be brought within 21 days after an appearance has been entered. In this case, while the appearance was filed on 30 June 2023, it was not served on Mrs Frigger until on or about 23 August 2023.
In my view, the requirement in O 14 r 1(1) that the application be brought within 21 days of 'entry' of an appearance proceeds on the basis that the obligation to serve the memorandum of appearance on the same date has been complied with. This is because, until served with a memorandum of appearance, a plaintiff will not be aware that time has started to run on the bringing of any application. On this basis, I consider that the application, which was filed on the date Mrs Frigger was served with the memorandum of appearance, has been brought within time and an extension of time is not required.
Even if I am wrong in my construction of the Rules and time begins to run from the date that an appearance is filed (rather than served) and an extension is required, I would grant an extension of time to bring the application in the circumstances of this case. At the hearing on 10 August 2023, the failure to serve the memorandum of appearance was first raised. The summons for summary judgment was filed within 13 days of this date. In my view, there has been no undue delay in bringing this application.
In relation to the second issue raised by PSA, O 14 r 2 of the Rules requires any application for summary judgment to:
(a)be made by summons;
(b)be accompanied by an affidavit that verifies the facts on which the claim is based and states that in the deponent's belief, there is no defence to the claim;
(c)be served on the defendant, together with a copy of the affidavit, not less than seven days before the return day of the summons.
In this case, on 23 August 2023, Mrs Frigger filed an affidavit in support of the chamber summons for summary judgment. This affidavit relies on the contents of her affidavit of 24 July 2023 and states that, in her belief, PSA has no defence to the claim. The summons, this affidavit and the memorandum of conferral were served on PSA's solicitors. However, Mrs Frigger's affidavit of 24 July 2023, which verifies the facts on which the claim is based, was not served on PSA's solicitors. When a request was made for this affidavit (and the submissions dated 26 July 2023) to be served on PSA's solicitors, Mrs Frigger refused to do so on the basis that PSA's solicitors 'had access to all filed documents since you filed an invalid Memorandum of Appearance'.[12] Counsel for PSA indicated that PSA's solicitors had only obtained a copy of the affidavit on 18 September 2023 and provided it to him on that date.
[12] Affidavit of Angela Cecilia Theresa Frigger filed 19 September 2023, 'AF1'.
I accept PSA's submission that Mrs Frigger was required to serve her affidavit of 24 July 2023 on PSA's solicitors, as this affidavit verified the facts on which the claim was based. However, for the following reasons, I do not consider that the failure to serve this affidavit means the application should be dismissed. First, PSA ultimately obtained all materials relevant to the application more than seven days prior to the hearing on 19 October 2023 at which their counsel addressed the court. Second, PSA filed two affidavits prior to the hearing on 19 October 2023, as well as submissions, which I have taken into account in reaching my decision. Given this, I do not consider that PSA has suffered any prejudice from Mrs Frigger's non‑compliance with the Rules. Third, and in any event, the failure to comply with the obligations of O 14 r 2 does not require the application to be dismissed; it will depend on the circumstances of the case.[13] In this case, both parties have had an opportunity put their arguments forward and the court is in a position to assess the relative merits of each party's arguments.

Does Mrs Frigger have standing to bring the proposed claim?

[13] Hillboi Nominees Pty Ltd v Evenwood Pty Ltd [2000] WASCA 66 [81].

Mrs Frigger contended that as a director and shareholder of CAT, she was entitled to seek orders in these proceedings to set aside the 2010 Orders. This entitlement was said to arise in three alternative ways. First, Mrs Frigger (as well as Mr Frigger) were heard as interested persons at the hearings at which the 2010 Orders were made. Second, Mrs Frigger relied on the court's equitable jurisdiction. Third, Mrs Frigger contended that as a shareholder of CAT, she had an entitlement to enforce the proper administration of CAT.
In relation to the third contention, I accept that, as a matter of law, as a shareholder of CAT, Mrs Frigger has a right to have the assets of CAT protected and properly administered.[14] However, any claim that she may have in this regard is a claim against the liquidator of CAT, rather than a claim against PSA. In my view, this is not a sufficient basis on which Mrs Frigger can contend she has standing to pursue the claims in these proceedings.
[14] Commissioner of Taxation v Linter Textiles Australia Ltd (in liq) [2005] HCA 20; (2005) 220 CLR 592[54].
In relation to the other two bases, where a judgment has been obtained by fraud, it is possible for a fresh action to be commenced relying on the equitable power to set aside a perfected judgment of any court for fraud.[15] This requires proof of actual fraud.[16] In circumstances where Mrs Frigger was heard as an interested party on the original applications for the 2010 Orders, and the Court of Appeal accepted Mr and Mrs Frigger were parties to those applications,[17] I accept that it is at least arguable that Mrs Frigger has standing to commence proceedings in equitable jurisdiction of the court seeking to set aside the 2010 Orders for fraud.

Is there a serious question to be tried as to whether PSA came into existence?

[15] Moller v Roy [1975] HCA 31; (1975) 132 CLR 622, 625.

[16] Clone Pty Ltd v Players Pty Ltd (in liq) (recs & mgrs apptd) [2018] HCA 12 [2].

[17] Frigger v Professional Services of Australia [No 2] [2011] WASCA 103 [23] - [27].

At the time of PSA's registration, Western Australian companies were regulated by the Corporations Law as set out in s 82 of the Corporations Act 1989 (Cth) (Corporations Law).[18] Part 2.2 of the Corporations Law contains the provisions concerning the registration of companies. Division 1 of pt 2.2 is entitled 'Incorporation by registration' and sets out the specific requirements for registration. There are two relevant sections for the purposes of this application: s 114, which deals with the formation of companies, and s 117, which prescribes the requirements of the memorandum.
[18] Corporations (Western Australia) Act 1990 (WA) s 7.
Section 114 provides that:
Subject to this Act, any 5 or more persons, or, where the company to be formed will be a proprietary company, any 2 or more persons, associated for any lawful purpose may, by subscribing their names to a memorandum and complying with the requirements as to registration under this Division, form an incorporated company.
Section 117 relevantly provides that:
(1)The memorandum of a company shall be printed, divided into numbered paragraphs, dated, and signed by the persons desiring the formation of the company.
…
(3)Each subscriber to the memorandum shall:
(a)if the company is to have a share capital-state in words:
(i)the number of shares (being at least one) that the subscriber agrees to take; and
(ii)if the shares in the company are divided into classes-the class or the respective classes in which the shares that the subscriber agrees to take are included; and
(b)in any case-sign the memorandum in the presence of at least one witness (not being another subscriber).
(4)A witness to the signature of a subscriber to the memorandum shall attest the signature and add his or her address.
Section 118 sets out the requirements for an application for registration of the company and provides that:
(1)Persons desiring the incorporation of a company may lodge an application in the prescribed form for the registration of the company under this Division.
(2)The application shall contain the prescribed information and matters and shall be accompanied by:
(a)in any case-the prescribed documents (if any); and
(b)unless subsection (3) applies-the memorandum, and the articles (if any), of the proposed company.
(3)If:
(a)the proposed company's memorandum states the matters that it is required by virtue of paragraphs 117 (1) (a), (b), (c) and (g) to state; and
(b)the proposed company's constitution contains proprietary company provisions;
the application shall:
(c)set out the matters stated in the memorandum pursuant to those paragraphs; and
(d)state that the constitution contains proprietary company provisions.
(4) The application shall be signed by:
(a)if subsection (3) applies-each subscriber; or
(b)otherwise-at least one subscriber;
to the proposed company's memorandum, in the presence of at least one witness (not being another subscriber).
(5)A witness to a signature that is required by this section shall attest the signature and add his or her address.
Section 120 concerns the formal registration of a company and states that:
(1)Subject to this Act, where the Commission is satisfied that an application has been made in accordance with section 118, it shall:
(a)register the company by registering:
(i)in any case-the application; and
(ii)unless the company is registered as a company limited by shares and as a proprietary company-the company's memorandum and articles (if any); and
(b)allot to the company a registration number distinct from the registration number of each body corporate (other than the company) already registered under this Part or Part 4.1.
(2)Subject to subsection 372 (3), the Commission shall not register a company under this Division by a particular name unless that name is reserved under section 373 in respect of the company.
(3)Where an application under section 118:
(a)is not accompanied by the proposed company's memorandum; and
(b)purports to comply with subsection 118(3);
the Commission may, unless it has reason to suspect to the contrary, assume without inquiry that:
(c)the application does so comply; and
(d)the persons who signed the application are the subscribers to the memorandum.
On the registration of a company, the Commission (then the Australian Securities Commission, now known as the Australian Securities and Investments Commission (ASIC)) was required to prepare a certificate under its common seal and issue it to the company.[19] Pursuant to s 122 of the Corporations Law, a certificate issued by ASIC is 'conclusive evidence' that all requirements of the Act in relation to the registration of the company have been complied with.
[19] Corporations Law s 121(1).
The basis for Mrs Frigger's complaint in relation to the registration of PSA is that the PSA Memorandum was not signed by the subscribers to the memorandum. This is for three reasons. First, Mr Boyle denies that he or his wife signed the PSA Memorandum. Second, a handwriting expert has expressed the opinion that the signatures on the PSA Memorandum were forged. Third, one of the assumptions of fact made in separate Federal Court proceedings (WAD 126 of 2022) was that PSA's Memorandum was forged and did not exist.
The evidence before the court in relation to the registration of PSA and the PSA Memorandum can be summarised as follows.
On 5 June 1998, a Form 201 was lodged with ASIC in relation to Liberty Oil (Australia) Pty Ltd seeking registration as a proprietary company. In answer to the question as to whether the company adopted Table A Articles, it responded 'no'. The subscribers to the PSA Memorandum were David John Boyle and Mariangela Boyle. The Form 201 is signed and states that it has been witnessed by Emilio Gerzic, a telecom technician.[20]
[20] Affidavit of Angela Cecilia Theresa Frigger filed 26 July 2023, 'AF1'.
The PSA Memorandum depicts that it has been signed by each of the subscribers (Mr and Mrs Boyle) and witnessed by Mr Gerzic.[21]
[21] Affidavit of Angela Cecilia Theresa Frigger filed 26 July 2023, 'AF2'.
In addition to these documents, the following documents were adduced in evidence:
(a)minutes of a meeting of the subscribers of Liberty Oil dated 5 June 1998, signed by the chairman;[22] and
(b)minutes of a directors' meeting of 5 June 1998 attended by Mr and Mrs Boyle, signed by the chairman.[23]
[22] Affidavit of Angela Cecilia Theresa Frigger filed 26 July 2023, 'AF3'.
[23] Affidavit of Angela Cecilia Theresa Frigger filed 26 July 2023, 'AF3'.
It appears that sometime in 2023, Mrs Frigger raised a query with Mr Boyle about the incorporation of PSA. The specific queries asked of Mr Boyle were not in evidence before me. In answer to these queries, Mr Boyle responded to Mrs Frigger that:[24]
* The company you are referring to was registered on 17 November not 21 November and the certificate of registration is all I have on file.
* I attach the minutes I give the client from the time the Constitution came into operation, after the time of the Memorandum and Articles of Association.
[24] Affidavit of Angela Cecilia Theresa Frigger filed 26 July 2023, 'AF4'.
Given that the questions asked of Mr Boyle are not in evidence, it is not clear that the 'company' he is referring to is PSA. This is because the evidence before the court is that PSA was registered on 5 June and not in November.[25]
[25] Affidavit of Angela Cecilia Theresa Frigger filed 26 July 2023, 'AF6', page 67.
In any event, on 18 March 2022, Mr Boyle swore an affidavit (in separate Supreme Court proceedings) in which he deposed that he had reviewed the Form 201 and PSA Memorandum, and confirmed that he and his wife had signed the Form 201 but that the signatures on the PSA Memorandum were not his or his wife's.[26] His evidence was that neither he nor his wife ever signed the constitution of any company which they registered, and he did not prepare the PSA Memorandum.[27] He annexed to his affidavit at 'DJB3' a copy of a constitution which he said he provides to people requesting him to register a company. In his affidavit, he stated that:[28]
This is a true example of the constitution I would have provided to the shareholders of Liberty Oil (Australia) Pty Ltd in June 1998, with minor changes reflecting Corporations Act 2001.
[26] Affidavit of Angela Cecilia Theresa Frigger filed 26 July 2023, 'AF7' [4] - [5].
[27] Affidavit of Angela Cecilia Theresa Frigger filed 26 July 2023, 'AF7' [7].
[28] Affidavit of Angela Cecilia Theresa Frigger filed 26 July 2023, 'AF7' [8].

Mr Boyle was called as a witness in WAD 126 of 2022. A copy of the transcript of his evidence was adduced in evidence.[29] Relevantly, in examination in chief, Mr Boyle initially gave evidence that the PSA Memorandum was 'in my standard form of memorandum and articles of association and that's how I would have completed it'. He later contradicted this evidence by confirming that the statement in his affidavit (that the constitution attached to his affidavit, which differed from the form of the PSA Memorandum, was his standard form) was correct.[30] Mr Boyle then stated that the copy of the constitution at 'DJB3' was not an example of the constitution he was using in his business in June 1998,[31] before confirming that it was an example of the constitution he would have provided.[32] In relation to the signatures on the PSA Memorandum, Mr Boyle confirmed the signatures which purported to be his were not his signature but that the signatures of his wife were 'very similar' and he could not say whether it was his wife's signature or not.[33]
[29] Affidavit of Angela Cecilia Theresa Frigger filed 23 October 2023, 'AF1'.
[30] Affidavit of Angela Cecilia Theresa Frigger filed 23 October 2023, 'AF1', pages 10 - 11.
[31] Affidavit of Angela Cecilia Theresa Frigger filed 23 October 2023, 'AF1', page 14.
[32] Affidavit of Angela Cecilia Theresa Frigger filed 23 October 2023, 'AF1', page 15.
[33] Affidavit of Angela Cecilia Theresa Frigger filed 23 October 2023, 'AF1', pages 19 - 20.
In cross-examination, Mr Boyle ultimately accepted that the signature at least one page of the PSA Memorandum (A18) 'certainly looks like my signature',[34] subsequently conceded that he did sign the original,[35] and then accepted that the statement in his evidence that his signature had been forged was not true.[36] He also accepted that the statement in his affidavit that neither he nor his wife ever signed the constitution of any company which they registered did not appear to be true.[37] Mr Boyle confirmed in re‑examination, having inspected the original document in the corporate file, that he and his wife signed the PSA Memorandum and that he was wrong in his affidavit.[38]
[34] Affidavit of Angela Cecilia Theresa Frigger filed 23 October 2023, 'AF1', page 69.
[35] Affidavit of Angela Cecilia Theresa Frigger filed 23 October 2023, 'AF1', page 89.
[36] Affidavit of Angela Cecilia Theresa Frigger filed 23 October 2023, 'AF1', page 89.
[37] Affidavit of Angela Cecilia Theresa Frigger filed 23 October 2023, 'AF1', page 88.
[38] Affidavit of Angela Cecilia Theresa Frigger filed 23 October 2023, 'AF1', pages 115 - 116, 120.
Given the contradictory evidence that has been given by Mr Boyle, I consider that there is a serious question to be tried as to whether he and his wife signed the PSA Memorandum. In my view, these matters need to be explored at any trial of this matter and the court cannot be satisfied, to the requisite standard, that summary judgment ought be entered.
The second matter relied upon by Mrs Frigger was Mr Maran's expert report prepared for WAD 126 of 2022.[39] Mr Maran was provided with a number of signatures from each of Mr Boyle, Mrs Boyle and Mr Gerzic. Some of these are described as 'questioned signatures' and some as 'known signatures'.
[39] Affidavit of Angela Cecilia Theresa Frigger filed 26 July 2023, 'AF12'.
There are three main limitations in the report that has been provided to the court in support of the application for summary judgment. First, it is clear from the report that Mr Maran has not examined any original signatures but was provided with photocopies of various signatures. As acknowledged in his report, this has limitations on his opinion. Second, in the report, Mr Maran records that in an email, Mr Boyle stated the 'questioned signatures' had not been signed by him. The questioned signatures include signatures that Mr Boyle ultimately accepted in cross-examination were, in fact, his signatures (for example, the signature at A18). It is not clear what, if any, impact Mr Boyle's evidence may have on the conclusions reached by Mr Maran. Third, Mr Maran's expresses the opinion that it was probable that certain signatures were not those of Mr or Mrs Boyle. However, in his report, he expresses this in two different ways: probable [5] and probable [4]. It is not clear from the report what is meant by this. If there are references to the terminology set out at [19] of his report, [4] is a reference to 'inconclusive' and [5] is 'probability did not write'. However, in the summary of his opinion in relation to each of the documents, his opinion is expressed as 'did not write', which is different to the opinion expressed in the remainder of the report.
Given these limitations (both individually and collectively), I do not consider it would be appropriate to summarily determine this aspect of the claim without PSA having an opportunity to cross‑examine Mr Maran.
The third matter relied upon by Mrs Frigger was the decision of Feutrill J in WAD 126 of 2022 to determine three questions as a preliminary issue on the basis of agreed and assumed facts. In particular, she relied on one of the paragraphs in the statement of assumed facts which provided that:[40]
The document entitled 'Memorandum & Articles of Association of Liberty Oil (Australia) Pty Ltd Australian Company Number 082 879 641 A Company Limited By Shares Incorporated on 5 June 1998', a copy of which is annexed hereto and is Exhibit A.1, was not prepared by Mr David John Boyle and was not signed by Mr Boyle or Mrs Mariangela Boyle, but by a person or persons unknown who simulated the signatures of each of Mr Boyle and Mrs Boyle.
[40] Frigger v Professional Services of Australia Pty Ltd (No 3) [2023] FCA 520 [3].
Mrs Frigger submitted that the determination of a separate question requires 'a conclusive or final decision based on a concrete and established or agreed situation which aims to quell a controversy'.[41] On this basis, she contended that, notwithstanding the description of this paragraph as an 'assumed fact', all parties were bound by this statement as a statement of fact.
[41] Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 [45].
Counsel for PSA denied this was the case and submitted this was a mischaracterisation of both the process and the clear statement in the annexure that this was a fact assumed for the purposes of that hearing, and for no other purpose.
As was noted by the High Court in Bass v Permanent Trustee Co Ltd:[42]
Preliminary questions may be questions of law, questions of mixed law and fact or questions of fact. Some questions of law can be decided without any reference to the facts. Others may proceed by reference to assumed facts, as on demurrer or some other challenge to the pleadings. In those cases, the judicial process is brought to bear to give a final answer on the question of law involved. Findings of fact are made later, if that is necessary. Where a preliminary question is a pure question of fact that, too, can be answered finally in accordance with the judicial process if the parties are given an opportunity to present their evidence and, also, to challenge the evidence led against them.
[42] Bass v Permanent Trustee Co Ltd [52].
In this case, Feutrill J, in WAD 126 of 2023, expressed the view, in giving reasons for his decision to determine three preliminary questions, that the determination of the separate questions was 'in the nature of resolving a demurrer plea'.[43] A demurrer hearing does not require facts to be agreed or determined but can proceed by reference to assumed facts. The orders made by Feutrill J on 23 May 2023 make it clear that the hearing before him proceeded on the basis of two matters: a statement of agreed facts and a statement of assumed facts. The paragraph relied upon by Mrs Frigger was a fact that his Honour was asked to assume for the purpose of his decision. This does not mean that there is an acceptance by PSA (or Feutrill J) that this matter is, in fact, true.
[43] Frigger v Professional Services of Australia Pty Ltd (No 3) [17].
Even if I were not satisfied that there were factual matters that were required to be determined at trial, I would not, in any event, have considered this issue was appropriate for summary determination. This is because, since reserving my decision in relation to this application, Feutrill J delivered his reasons for decision in WAD 126 of 2022.[44] His Honour concluded that, on the basis of the agreed facts and the assumed facts, the registration of PSA was not void ab initio. It will be necessary at any trial to consider what, if any, impact these reasons have on the issues raised in these proceedings. It is sufficient to say that in light of this decision, I do not consider that it would be appropriate to enter summary judgment for Mrs Frigger on her claim.

Is there a serious question to be tried as to whether PSA had validly appointed directors at the time the statutory demand was issued and the winding up proceedings commenced?

[44] Frigger v Professional Services of Australia Pty Ltd (No 5) [2024] FCA 420.

Mrs Frigger contends that PSA did not have any validly appointed directors at the time instructions were provided to solicitors to issue a statutory demand to CAT and subsequently to seek the 2010 Orders. On this basis, she says that these acts are invalid and the 2010 Orders should be set aside for fraud. This contention arises from an issue raised by Mrs Frigger as to who the shareholders of PSA were at the relevant time.
Before turning to the evidence, it is useful to summarise the relevant legal principles as to who is a shareholder of a company.
A person is a member of a company if they agree to become a member of the company after its registration and their name is entered on the register of members (s 184, Corporations Law; s 231(b) of Corporations Act 2001 (Cth) (Corporations Act)). That is, entry of a person's name on the share register is required in order for a person to be a shareholder of a company.
As stated by the plurality of the High Court in Maddocks v DJE Constructions Pty Ltd:[45]
The authorities are clear that in the case of a person who subsequently to incorporation applies for shares to be allotted to him, or purchases shares from an existing shareholder, does not become a member of the company until his name is entered in the share register.
[45] Maddocks v DJE Constructions Pty Ltd [1982] HCA 17; (1982) 148 CLR 104 [28].
A company is required to keep a register of its members and enter the names and addresses of each of its members and the date on which the person was entered into the register (s 209(1) and s 209(2), Corporations Law). The register is prima facie evidence of any matters inserted in the register as required or authorised by the Act (s 209(9), Corporations Law). The Act recognises that a share is personal property which is transferable as provided by the articles and memorandum of association of the relevant company (s 1085(1), Corporations Law).
In this case, the PSA Memorandum relevantly provides that:
(a)a member may transfer all or any of their shares by an instrument in writing which is required to be executed by both the transferor and transferee (cl 19(1) and cl 19(2), PSA Memorandum);
(b)the transferor remains the holder of the shares until the transfer is registered and the name of the transferee entered in the register of members (cl 19(3), PSA Memorandum);
(c)where a member of the company dies, the legal personal representative of the deceased is the only person recognised by the company as having any title to the interest in the share (cl 23, PSA Memorandum).
On a grant of probate, the deceased estate vests in the executor of the estate retrospectively from the date of death.[46] That is, from the grant of probate the executor becomes the legal owner of the estate. The executor may be registered as the owner of the share (s 213(2), Corporations Law).
[46] Chappell v Goldspan Investments Pty Ltd [2021] WASCA 205; (2021) 58 WAR 503 [288] (Pritchard J).
The evidence before the court in relation to this issue can be summarised as follows.
The company search of PSA obtained from ASIC records states that in 2009 and 2010, PSA had only one director: Mr Campbell‑Smith.[47] On the records of ASIC, Mrs Banning was not reappointed as a director until 10 May 2016. Pursuant to s 1274B of the Corporations Act, this is prima facie evidence of the truth of this position in the absence of any evidence to the contrary.
[47] Affidavit of Angela Cecilia Frigger filed 26 July 2023, 'AF6', page 69.
The two share certificates of PSA reflect that the shares were originally issued to Mr Banning and Mr Miller and that the handwritten amendments as contended by Mrs Frigger have subsequently been made to these documents.[48]
[48] Affidavit of Angela Cecilia Frigger filed 26 July 2023, 'A14'.
In 2023, Mrs Frigger made enquiries of Mr Miller. On 5 April 2023, Mr Miller replied to Mrs Frigger by email marked 'without prejudice' stating that he could not recall being a shareholder or director of PSA. He apologised for not being more specific but noted that these matters had occurred a long time ago. The email does not include the original email from Mrs Frigger, although it is apparent that the email from Mr Miller that this was sent in response to an email he received.
Two minutes of meetings of PSA were also in evidence.[49] The first, which is described to be a 'deemed meeting' of members and directors, is deemed to have occurred on Monday 4 June 2001. Relevantly, it contains an acknowledgement by Mr Banning as PSA's sole director that the share structure of the company was that he held one share and Mrs Banning held the other share. The document is signed by both Mr Banning and Mrs Banning.
[49] Affidavit of Angela Cecilia Frigger filed 26 July 2023, 'AF15'.
The second is a minute of a meeting of shareholders held on 17 November 2008 attended by Mr Campbell‑Smith (as the executor of the will of Martin Paul Banning) and Mrs Banning. The minute records that resolutions were passed to register Mr Campbell‑Smith as executor of the will of Mr Banning as the holder of the shares of Mr Banning in PSA and for Mr Campbell‑Smith and Mrs Banning to be appointed as directors of PSA. This evidence is contrary to the position reflected in the ASIC records. On an application for summary judgment, it is not possible nor appropriate to resolve this contested issue of fact.
For the following reasons, I do not consider these documents enable the court to draw any conclusion as to who the members of PSA in 2008 were or whether the appointment of Mr Campbell‑Smith and Mrs Banning as directors of PSA was valid.
First, the relevant document for determining who was a member of PSA prior to the meeting in 2008 is its share register. The share register was not in evidence before me.
Second, on the death of Mr Banning, his executor (which the minutes of meeting reflect was Mr Campbell‑Smith) was entitled (but not required) to be registered as the holder of the share previously registered in the name of Mr Banning. This did not require any transfer to be submitted to PSA as ownership of the share was not being transferred. Any amendment that may have been made to the share register (or share certificate) reflected the position at law that from the grant of probate, Mr Banning's executor was the legal owner of these shares. This was not, as contended by Mrs Frigger, a 'fraudulent misappropriation of personal property'.
Third, Mr Miller's email response to Mrs Frigger was not that he was unaware that he had been allotted one share, but that he did not have any recollection of the relevant events. Given these events happened more than 20 years ago, this is not surprising. It is not clear what (if any) documents or information Mrs Frigger provided to Mr Miller prior to his response.
Given these matters, I consider that there are factual circumstances surrounding who were the shareholders of PSA at the relevant time that ought to be investigated. On the evidence before me, I cannot say that the contention that the relevant shareholders of PSA were as depicted in the relevant minutes of meeting is impossible or doomed to fail. On this basis, I find that Mrs Frigger has not discharged her onus and the application ought be dismissed.
Finally, having regard to all of the circumstances of this case, it is also my view that the interests of justice weigh against summary judgment being granted. The questions raised on the application will require consideration of all of the corporate records of PSA, not only the portion that was in evidence before the court on this application. In my view, the defendant should be given the opportunity to adduce evidence on events that occurred more than 20 years ago and for full argument to occur at any trial of the proceedings. In my view, the interests of justice require this.

Conclusion and orders

For these reasons, it is my view that Mrs Frigger's applications should be dismissed.
My preliminary view is that costs should follow the event. These costs cannot include the affidavits of Mrs Banning and Mr Miller, for which leave was not granted, or the hearings on 13 December 2023 or 28 February 2024. However, before making any formal orders, I will hear from the parties.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KS
Associate to the Hon Justice Hill
19 JUNE 2025