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Frigger v Trenfield

Frigger v Trenfield

Case [2021] FCA 792 13 July 2021

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FEDERAL COURT OF AUSTRALIA
Frigger v Trenfield [2021] FCA 792

File number: WAD 66 of 2021

Judgment of: COLVIN J

Date of judgment: 13 July 2021

Catchwords: PRACTICE AND PROCEDURE - application for security for costs - where applicants are bankrupts - whether in interests of justice that there be order for security - consideration of merits of substantive application for orders for annulment and to set aside sequestration orders - application allowed

Legislation:
Bankruptcy Act 1966 (Cth) ss 37, 153B

Corporations Act 2001 (Cth) s 477

Cases cited:
Bailey v Marinoff (1971) 125 CLR 529

Bulic v Commonwealth Bank of Australia Limited [2007] FCA 307

Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218

Francis v Eggleston Mitchell Lawyers Pty Ltd [2014] FCAFC 18

Frigger v Kitay (No 2) [2020] FCA 497

Frigger v Kitay [2016] WASCA 173

Frigger, in the matter of Computer Accounting & Tax Pty Ltd (in liq) (No 2) [2018] FCA 612

G v H (1994) 181 CLR 387

Gamser v Nominal Defendant (1977) 136 CLR 145

Kitay, in the matter of Frigger (No 2) [2018] FCA 1032

Knight v Beyond Properties Pty Ltd [2005] FCA 764

Mecrus Pty Ltd v Industrial Energy Pty Ltd [2015] FCA 103

Morgan v Babcock & Wilcox Ltd (1929) 43 CLR 163

Ozer v Australian Liquor Marketers Pty Ltd [2001] FCA 1197

Re Gollan; Ex parte Gollan (1992) 40 FCR 38

Symons v Bateman [1999] FCA 658

The Austral Brick Company Pty Ltd v Daskalovski [1998] FCA 782

Wentworth v Rogers [2006] NSWCA 145; (2006) 66 NSWLR 474

Division: General Division

Registry: Western Australia

National Practice Area: Commercial and Corporations

Sub-area: General and Personal Insolvency

Number of paragraphs: 37

Date of hearing: 9 July 2021

Counsel for the Applicants: The Applicants appeared in person

Counsel for the First Respondent: The First Respondent did not appear

Counsel for the Second Respondent: Mr DW John

Solicitor for the Second Respondent: Herbert Smith Freehills

ORDERS

WAD 66 of 2021

BETWEEN:
ANGELA CECILIA THERESA FRIGGER

First Applicant

HARTMUT HUBERT JOSEF FRIGGER

Second Applicant

AND:
KELLY TRENFIELD

First Respondent

MERVYN JOHN KITAY

Second Respondent

ORDER MADE BY:

COLVIN J

DATE OF ORDER:

13 JULY 2021

THE COURT ORDERS THAT:
1.Pursuant to r 19.01 of the Federal Court Rules 2011 (Cth), the applicants are to provide the second respondent with security for their costs of and incidental to defending this proceeding in the sum of $25,000.
2.The security referred to in order 1 is to be provided by payment into Court or the provision of an unconditional bank guarantee from an Australian trading bank.
3.Security is to be provided on or before 26 July 2021.
4.Until the provision of security in accordance with these orders, the proceeding is stayed.
5.The applicants pay the second respondent's costs of and incidental to this application.
6.There be liberty to the second respondent to apply for orders in relation to documents alleged to have been included in affidavit material by the first-named applicant in breach…

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.

Continue reading Frigger v Trenfield

Details

AGLC: Frigger v Trenfield [2021] FCA 792
Case: [2021] FCA 792
Decision Date: 13 July 2021

CaseChat Overview and Summary

The Federal Court heard an application from the applicants, who were both bankrupts, for security for costs against the second respondent. The applicants sought orders for annulment and to set aside sequestration orders. The second respondent, in turn, applied for security for costs from the applicants in the event they were unsuccessful in their application. The primary legal issue before the court was whether it was in the interests of justice to order the applicants to provide security for the second respondent’s costs in defending the proceeding. The court had to consider the merits of the substantive application for annulment and to set aside sequestration orders. In assessing the matter, the court examined the likelihood of success of the applicants’ substantive claims, the ability of the applicants to meet any costs order, and the potential prejudice to the second respondent if security was not ordered.

The court found that the applicants were unlikely to succeed in their substantive claims, given the weight of the evidence against them and the absence of any compelling arguments to warrant the relief sought. The court also considered that the applicants were bankrupts and unlikely to be able to meet any costs order against them. Furthermore, the second respondent would suffer significant prejudice if the applicants were not required to provide security for costs, as they had limited financial resources and would be unable to defend the proceeding without incurring substantial legal costs. Based on these findings, the court concluded that it was in the interests of justice to order the applicants to provide security for the second respondent’s costs. The court set the amount of security at $25,000, to be provided by payment into court or an unconditional bank guarantee from an Australian trading bank. The security was to be provided by 26 July 2021, and until then, the proceeding was stayed. Additionally, the applicants were ordered to pay the second respondent’s costs of and incidental to the application. The court also granted liberty to the second respondent to apply for orders in relation to documents alleged to have been included in affidavit material by the first-named applicant in breach of orders of the Supreme Court of Western Australia.

Orders

Orders of the court

1. Pursuant to r 19.01 of the Federal Court Rules 2011 (Cth), the applicants are to provide the second respondent with security for their costs of and incidental to defending this proceeding in the sum of $25,000.

2. The security referred to in order 1 is to be provided by payment into Court or the provision of an unconditional bank guarantee from an Australian trading bank.

3. Security is to be provided on or before 26 July 2021.

4. Until the provision of security in accordance with these orders, the proceeding is stayed.

5. The applicants pay the second respondent's costs of and incidental to this application.

6. There be liberty to the second respondent to apply for orders in relation to documents alleged to have been included in affidavit material by the first-named applicant in breach of orders of the Supreme Court of Western Australia.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Frigger v Trenfield [2021] FCA 792

Most Recent Citation

Frigger v Trenfield (No 6) [2021] FCA 1375

Cases citing this decision · 4 of 4 shown

Frigger v Trenfield (No 10)
[2025] FCA 164 Para 8

…attention either by them or by counsel on behalf of the second respondent that, on 13 July 2021, for reasons published that day ( Frigger v Trenfield [2021] FCA 792), Colvin J had made, on Mr Kitay’s application, orders which materially included the following: 1.Pursuant to r 19.01 of the Federal Court Rules 2011…
Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd (in Liquidation) (ACN 009 570 491) [No 6]
[2024] WASC 108 Para 11

…Pty Ltd [2015] WASCA 3 [54] (Buss & Murphy JJA); Frigger v Clavey Legal Pty Ltd [No 2] [2015] WASCA 258 [32] (Buss & Murphy JJA); Frigger v Trenfield [2021] FCA 792 [18] (Colvin J); and Kitay, in the matter of Frigger [No 2] [2018] FCA 1032 [123] and [126] (Colvin J).…
Frigger v Trenfield (No 14)
[2023] FCA 307

…FEDERAL COURT OF AUSTRALIA Frigger v Trenfield (No 14) [2023] FCA 307 Appeal from: Frigger v Trenfield [2021] FCA 792 File number(s): WAD 169 of 2021 Judgment of: PERRY J Date of judgment: 5 April 2023 Catchwords: BANKRUPTCY – application for leave to appeal from a decision granting an application for security fo…
Frigger v Trenfield (No 6)
[2022] FCA 1233 Para 16

…made orders, amongst others, requiring Mr and Mrs Frigger to provide Mr Kitay with security for his costs in the sum of $25,000: Frigger v Trenfield [2021] FCA 792. Mr and Mrs Frigger provided the security so ordered.…

View all 4 citing cases →

Cases cited in this decision · 19 of 19 shown

Frigger v Kitay (No 2)
[2020] FCA 497 Para 13

…orth J as part of the now abandoned attempts to seek an extension of time in which to appeal against the sequestration orders: Frigger v Kitay (No 2) [2020] FCA 497 at [47]‑[69]. Further, as was there determined, to the extent necessary, approval has been given retrospectively for the purposes of s 477(2B) of the…
Kitay, in the matter of Frigger (No 2)
[2018] FCA 1032 Para 22

…s. In determining that sequestration orders should be made, I reviewed the evidence and concluded as follows ( Kitay, in the matter of Frigger (No 2) [2018] FCA 1032 at [126]): I find that by reason of the funds available to Mr and Mrs Frigger from the Frigger Superannuation Fund, they are able to pay their debts.…
Frigger, in the matter of Computer Accounting & Tax Pty Ltd (in Liq) (No 2)
[2018] FCA 612 Para 6

…s to be applied when considering an application for security for costs in Frigger, in the matter of Computer Accounting & Tax Pty Ltd (in liq) (No 2) [2018] FCA 612 at [5]‑[10]. The Court's jurisdiction to order security is broad and unfettered. It is to be exercised by considering where the interests of justice…
Frigger v Kitay
[2016] WASCA 173 Para 2

…ce then before the Court, to have engaged in conduct for the purpose of putting their assets out of the reach of their creditors (see Frigger v Kitay [2016] WASCA 173). Mrs Frigger made submissions to the effect that the finding in those proceedings should not be brought to account because it was an inference and n…
Mecrus Pty Ltd v Industrial Energy Pty Ltd
[2015] FCA 103 Para 10

…As was explained by Murphy J in Mecrus Pty Ltd v Industrial Energy Pty Ltd [2015] FCA 103 at [41]‑[43] it is common for the Court to undertake a preliminary assessment of the strength of claims for the purpose of determining whether to order security. However, all depends upon the circumstances. The need to do so…
Francis v Eggleston Mitchell Lawyers Pty Ltd
[2014] FCAFC 18 Para 14

…: Ozer v Australian Liquor Marketers Pty Ltd [2001] FCA 1197 at [30] (Heerey, Emmett and Allsop JJ); and Francis v Eggleston Mitchell Lawyers Pty Ltd [2014] FCAFC 18 at [16] (adopting the summary of the principles by Tracey J in Bulic v Commonwealth Bank of Australia Limited [2007] FCA 307 at [12]). As to delay, T…
Burrell v The Queen
[2008] HCA 34 Para 12

…d no issue of fraud or irregularity was properly articulated. Finality in the decisions of the Courts is a fundamental principle: Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218 at [15]. Unless conferred by statute (as is the case with all appellate powers), the Court has no inherent power to reopen a subs…
Wentworth v Rogers & Anor
[2007] HCATrans 747 Para 16

…met that the costs claimed have actually been paid. It is sufficient if there is a liability to meet such costs: Wentworth v Rogers [2006] NSWCA 145; (2006) 66 NSWLR 474 at [126].…
Bulic v Commonwealth Bank of Australia Ltd
[2007] FCA 307 Para 14

…itchell Lawyers Pty Ltd [2014] FCAFC 18 at [16] (adopting the summary of the principles by Tracey J in Bulic v Commonwealth Bank of Australia Limited [2007] FCA 307 at [12]). As to delay, Tracey J summarised the position in the following terms: Considerations which may have a bearing on the exercise of discretion…
Wentworth v Rogers
[2006] NSWCA 145 Para 16

…y principle to be met that the costs claimed have actually been paid. It is sufficient if there is a liability to meet such costs: Wentworth v Rogers [2006] NSWCA 145; (2006) 66 NSWLR 474 at [126].…
Knight v Beyond Properties Pty Ltd
[2005] FCA 764 Para 9

…Frigger, in the matter of Computer Accounting & Tax Pty Ltd (in liq) (No 2) , examples were given by Lindgren J in Knight v Beyond Properties Pty Ltd [2005] FCA 764 at [33]. This approach reflects the concern that poverty should be no bar to access to the Courts. Relevance of merits…
Ozer v Australian Liquor Marketers Pty Ltd
[2001] FCA 1197 Para 14

…equestration order ought not to have been made the Court has a discretion whether to make any such orders: Ozer v Australian Liquor Marketers Pty Ltd [2001] FCA 1197 at [30] (Heerey, Emmett and Allsop JJ); and Francis v Eggleston Mitchell Lawyers Pty Ltd [2014] FCAFC 18 at [16] (adopting the summary of the princip…
Symons v Bateman
[1999] FCA 658 Para 12

…oceed in that manner rather than by their annulment application: The Austral Brick Company Pty Ltd v Daskalovski [1998] FCA 782; and Symons v Bateman [1999] FCA 658. The power which the Court once had to rescind a sequestration order on application no longer remains: see s 37(2) of the Bankruptcy Act ; and Re Gol…
Austral Brick Company Pty Ltd v Daskalovski
[1998] FCA 782 Para 12

…f Mrs and Mr Frigger being able to proceed in that manner rather than by their annulment application: The Austral Brick Company Pty Ltd v Daskalovski [1998] FCA 782; and Symons v Bateman [1999] FCA 658. The power which the Court once had to rescind a sequestration order on application no longer remains: see s 37(…
G v H
[1994] HCA 48 Para 3

…s still a finding of fact. It is a finding of fact based upon the existence of some other fact by applying the ordinary powers of human reason: G v H (1994) 181 CLR 387 at 390; and Morgan v Babcock & Wilcox Ltd (1929) 43 CLR 163 at 173.…
Re Gollan; ex parte Gollan
[1992] FCA 1044 Para 12

…Court once had to rescind a sequestration order on application no longer remains: see s 37(2) of the Bankruptcy Act ; and Re Gollan; Ex parte Gollan (1992) 40 FCR 38.…
Gamser v Nominal Defendant
[1977] HCA 7 Para 12

…en a substantive exercise of judicial power and set aside an order earlier made: Bailey v Marinoff (1971) 125 CLR 529; and Gamser v Nominal Defendant (1977) 136 CLR 145. As to the limited jurisdiction to set aside an order for irregularity, even if a basis upon which such an application might now be brought could be…
Bailey v Marinoff
[1971] HCA 49 Para 12

…te powers), the Court has no inherent power to reopen a substantive exercise of judicial power and set aside an order earlier made: Bailey v Marinoff (1971) 125 CLR 529; and Gamser v Nominal Defendant (1977) 136 CLR 145. As to the limited jurisdiction to set aside an order for irregularity, even if a basis upon which…
Morgan v Babcock & Wilcox Ltd
[1929] HCA 25 Para 3

…the existence of some other fact by applying the ordinary powers of human reason: G v H (1994) 181 CLR 387 at 390; and Morgan v Babcock & Wilcox Ltd (1929) 43 CLR 163 at 173.…

Legislation cited in this decision · 3

Bankruptcy Act 1966 (Cth)
153B, 37 3 mentions (from Para 1)
Corporations Act 2001 (Cth)
477 2 mentions (from Para 4)
Federal Court Rules 2011 (Cth)
1 mention

File number:	WAD 66 of 2021
Judgment of:	COLVIN J
Date of judgment:	13 July 2021
Catchwords:	PRACTICE AND PROCEDURE - application for security for costs - where applicants are bankrupts - whether in interests of justice that there be order for security - consideration of merits of substantive application for orders for annulment and to set aside sequestration orders - application allowed
Legislation:	Bankruptcy Act 1966 (Cth) ss 37, 153B Corporations Act 2001 (Cth) s 477
Cases cited:	Bailey v Marinoff (1971) 125 CLR 529 Bulic v Commonwealth Bank of Australia Limited [2007] FCA 307 Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218 Francis v Eggleston Mitchell Lawyers Pty Ltd [2014] FCAFC 18 Frigger v Kitay (No 2) [2020] FCA 497 Frigger v Kitay [2016] WASCA 173 Frigger, in the matter of Computer Accounting & Tax Pty Ltd (in liq) (No 2) [2018] FCA 612 G v H (1994) 181 CLR 387 Gamser v Nominal Defendant (1977) 136 CLR 145 Kitay, in the matter of Frigger (No 2) [2018] FCA 1032 Knight v Beyond Properties Pty Ltd [2005] FCA 764 Mecrus Pty Ltd v Industrial Energy Pty Ltd [2015] FCA 103 Morgan v Babcock & Wilcox Ltd (1929) 43 CLR 163 Ozer v Australian Liquor Marketers Pty Ltd [2001] FCA 1197 Re Gollan; Ex parte Gollan (1992) 40 FCR 38 Symons v Bateman [1999] FCA 658 The Austral Brick Company Pty Ltd v Daskalovski [1998] FCA 782 Wentworth v Rogers [2006] NSWCA 145; (2006) 66 NSWLR 474
Division:	General Division
Registry:	Western Australia
National Practice Area:	Commercial and Corporations
Sub-area:	General and Personal Insolvency
Number of paragraphs:	37
Date of hearing:	9 July 2021
Counsel for the Applicants:	The Applicants appeared in person
Counsel for the First Respondent:	The First Respondent did not appear
Counsel for the Second Respondent:	Mr DW John
Solicitor for the Second Respondent:	Herbert Smith Freehills

ORDER MADE BY:	COLVIN J
DATE OF ORDER:	13 JULY 2021