Frigger v Trenfield (Application for Release from Undertaking)

[2023] FCA 1284

FEDERAL COURT OF AUSTRALIA

Frigger v Trenfield (Application for Release from Undertaking) [2023] FCA 1284   

File number:

WAD 278 of 2021

Judgment of:

FEUTRILL J

Date of judgment:

24 October 2023

Catchwords:

PRACTICE AND PROCEDURE – undertaking – respondent’s interlocutory application to be released from undertaking – where undertaking given in lieu of interlocutory order pending outcome of appeal – where appeal has been resolved in favour of respondent – where special leave to the High Court of Australia has been refused

Legislation:

Bankruptcy Act1966 (Cth) ss 116(2)(d)(iii)(A), 149

Insolvency Practice Rules (Bankruptcy) 2016 (Cth) rr 42-40, 70-47(3)

Cases cited:

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170

Frigger v Trenfield (No 10) [2021] FCA 1500

Frigger v Trenfield (Application for Stay Pending Appeal) [2021] FCA 1605

Frigger v Trenfield (No 3) [2023] FCAFC 49

Frigger v Trenfield [2023] HCASL 110

Thomson Australian Holdings Pty Ltd v Trade Practices Commission [1981] HCA 48; (1981) 148 CLR 150

Division:

General Division

Registry:

Western Australia

National Practice Area:

Commercial and Corporations

Sub-area:

General and Personal Insolvency

Number of paragraphs:

28

Date of last submissions:

31 May 2023

Date of hearing:

25 May 2023

Counsel for the Appellants:

The Appellants appeared in person

Counsel for the Respondent:

Mr SD Majteles

Solicitor for the Respondent:

Johnson Winter Slattery

ORDERS

WAD 278 of 2021

BETWEEN:

ANGELA CECILIA THERESA FRIGGER

First Appellant

HARTMUT HUBERT JOSEF FRIGGER

Second Appellant

AND:

KELLY-ANNE LAVINA TRENFIELD

Respondent

ORDER MADE BY:	FEUTRILL J
DATE OF ORDER:	24 OCTOBER 2023

THE COURT ORDERS THAT:

1.The respondent be released from her undertaking given to the Court in these proceedings and noted in the order of the Court made on 16 December 2021.

2.The appellants pay the respondent's costs of this application to be taxed if not agreed.

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

REASONS FOR JUDGMENT

FEUTRILL J

1. On 16 December 2021 the respondent (Ms Trenfield) gave an undertaking to the Court in her capacity as trustee of the bankrupt estates of each of the first appellant (Mrs Frigger) and second appellant (Mr Frigger) to take no steps to dispose of, transfer or otherwise deal with the shares held by Commonwealth Securities Limited in Portfolio 270815 without first giving 30 days prior notice to the Friggers. That undertaking was subject to Ms Trenfield complying with any court order concerning the CommSec shares and Ms Trenfield having liberty to apply on notice to vary or be released from the undertaking: Frigger v Trenfield (Application for Stay Pending Appeal) [2021] FCA 1605 (Frigger No 1 WAD 278/2021). By an interlocutory application made on 8 May 2023, Ms Trenfield applied, on notice to the Friggers, to be released from that undertaking. These reasons concern that application.

2. On 20 July 2018 a sequestration order was made against the Friggers’ respective estates. On 31 August 2018 Ms Trenfield and Mr Paul Allen…