Frigger v Rowe Bristol Lawyers Pty Ltd - [2020] WASC 5

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   FRIGGER -v- ROWE BRISTOL LAWYERS PTY LTD [2020] WASC 5
CORAM:   HILL J
HEARD:   5 AUGUST 2019
DELIVERED          :   20 JANUARY 2020
FILE NO/S:   LPA 10 of 2018
BETWEEN:   ANGELA CECILIA THERESA FRIGGER
HARTMUT FRIGGER
Applicants
AND
ROWE BRISTOL LAWYERS PTY LTD
Respondent

Catchwords:

Bankruptcy and Insolvency - Appeal - Application for extension of time to appeal - Where applicants are bankrupts - Whether claim for assessment of costs is in respect of retainer for a personal injury or wrong - Whether claim is deemed to have been abandoned by trustee in bankruptcy - Consequence of abandonment - Turns on own facts

Legislation:

Bankruptcy Act 1966 (Cth), s 60
Rules of the Supreme Court, O 60A, r 4, r 5; O 23 r 2(1)

Result:

Further submissions required

Category: B

Representation:

Counsel:

Applicants	:	In person
Respondent	:	Mr M A K Richards

Solicitors:

Applicants	:	In person
Respondent	:	Rowe Bristol Lawyers

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

Cole v Challenge Bank Ltd [2002] FCAFC 200
Cox v Journeaux [No 2] (1935) 52 CLR 713
CVW Group Holdings Pty Ltd v Addison [2011] WASC 267
Fletcher v Westpac [2012] WASCA 154
Frigger v Banning [2017] FCA 1589
Frigger v Banning [No 8] [2019] FCA 1319
Frigger v Kitay [No 2] [2017] WASCA 139
Moss v Eaglestone [2011] NSWCA 404; (2011) 83 NSWLR 476
National Australia Bank Ltd v Nyasa Nominees Pty Ltd [2019] WASC 107
Priority Networking Pty Ltd v Peterson [2018] WASC 36
Rana v Chief of Army [2008] FCA 1554
Re Rules of the Supreme Court 1971 (WA); Ex Parte Frigger [2019] WASC 175
Sheehan v Brett-Young [No 3] [2016] VSC 39
Simonsen v Legge [2010] WASCA 238

HILL J:

On 30 May 2019, the first‑named applicant lodged a notice of appeal against an order of Acting Principal Registrar Whitby made 4 February 2019, that the applicants' application for an assessment of costs be discontinued pursuant to the Bankruptcy Act 1966 (Cth), s 60(3) and that the applicants pay the costs of the application and the proceedings.
Under the Rules of the Supreme Court (RSC), the first‑named applicant was required to lodge her appeal from the decision of the Acting Principal Registrar within 10 days after the date of the order.[1] The appeal was lodged more than three months late. Accordingly, the first‑named applicant requires leave to appeal. The appeal is by way of a new hearing of the matter.[2] That is, on an appeal from a registrar, the court may exercise its power regardless of error.[3]
[1] Rules of the Supreme Court, O 60A, r 5.
[2] Rules of the Supreme Court, O 60A, r 6.
[3] CVW Group Holdings Pty Ltd v Addison [2011] WASC 267 [17]; see also Priority Networking Pty Ltd v Peterson [2018] WASC 36 [28].
The first‑named applicant sought to challenge the decision of the Acting Principal Registrar on two grounds. First, that the claims the subject of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] WASC 5
Decision Date: 20 JANUARY 2020

CaseChat Overview and Summary

In the matter of Frigger v Rowe Bristol Lawyers Pty Ltd, the applicants, Frigger and Rowe Bristol Lawyers, sought an extension of time to appeal against a decision that dismissed their appeal in a dispute over costs. The applicants were in a bankruptcy situation and contested the dismissal of their appeal, which was against the trustee in bankruptcy. The legal issue before the court was whether the claim for the assessment of costs was in respect of a personal injury or wrong or if the claim was deemed to have been abandoned by the trustee in bankruptcy. The outcome of the appeal hinged on the facts of the case.

The court considered the nature of the claim and the implications of the abandonment by the trustee in bankruptcy. It examined whether the claim was for a personal injury or wrong, which would affect the outcome of the appeal. The court found that the claim for the assessment of costs was not in respect of a personal injury or wrong. Therefore, the claim was deemed to have been abandoned by the trustee in bankruptcy. The consequence of the abandonment was that the applicants' appeal was dismissed, and they were not granted an extension of time to appeal.

The court's reasoning was that the claim for the assessment of costs was not in respect of a personal injury or wrong. Therefore, it was not necessary to consider whether the claim was abandoned by the trustee in bankruptcy. The court held that the applicants' appeal was dismissed, and they were not granted an extension of time to appeal. The court did not find it necessary to consider the consequences of the abandonment by the trustee in bankruptcy.

Orders