Frigger v Trenfield (Application to Adjourn Final Hearing) (No 2) - [2025] FCA 580

FEDERAL COURT OF AUSTRALIA
Frigger v Trenfield (Application to Adjourn Final Hearing) (No 2) [2025] FCA 580

File number: WAD 128 of 2023

Judgment of: COLVIN J

Date of judgment: 26 May 2025

Date of publication of reasons: 4 June 2025

Catchwords: PRACTICE AND PROCEDURE - application to adjourn final hearing - where final hearing would be conducted before outcome of application for leave to appeal interlocutory judgment - where applicants seek leave to appeal to join a party to the proceedings and further amend statement of claim - whether prejudice to the applicants would arise if the final hearing is not adjourned - whether there is an adequate explanation for the delay in bringing the adjournment application - where proposed joinder would expand the existing scope of the proceedings to include a new case with distinct issues - application dismissed

Cases cited:
Frigger v Trenfield (Application to Amend) [2024] FCA 508

Frigger v Trenfield (Application to Adjourn Final Hearing) [2025] FCA 71

Division: General Division

Registry: Western Australia

National Practice Area: Commercial and Corporations

Sub-area: Corporations and Corporate Insolvency

Number of paragraphs: 28

Date of hearing: 26 May 2025

Counsel for the Applicants: The applicants appeared in person

Counsel for the Respondent: Mr SD Majteles

Solicitor for the Respondent: Johnson Winter Slattery

ORDERS

WAD 128 of 2023

BETWEEN:
ANGELA CECILIA THERESA FRIGGER

First Applicant

HARTMUT HUBERT JOSEF FRIGGER

Second Applicant

AND:
KELLY-ANNE LAVINA TRENFIELD

Respondent

ORDER MADE BY:

COLVIN J

DATE OF ORDER:

26 MAY 2025

THE COURT ORDERS THAT:
1.The interlocutory application to adjourn the final hearing dated 19 May 2025 is dismissed.

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

REASONS FOR JUDGMENT
COLVIN J:

In June 2023, Mrs and Mr Frigger commenced proceedings against Ms Kelly-Anne Trenfield who is the trustee administering their bankrupt estates. They claimed that Ms Trenfield and her employer, FTI Consulting (Australia) Pty Ltd, were liable for the costs of various court proceedings. Mrs and Mr Frigger also claimed that Ms Trenfield and FTI were not entitled to be reimbursed their own legal costs of those proceedings from the bankrupt estates and that they were both liable to make good losses that the estates were said to have sustained 'because of a breach of duty' by Ms Trenfield.
The application was supported by a short statement of claim. It alleged that Ms Trenfield undertook her work as a trustee in bankruptcy subject to the control of FTI, her employer. It claimed that the trustee's fees for the administration of the bankrupt estates of Mrs and Mr Frigger were being paid directly to FTI. It was said that Ms Trenfield had 'surrendered her independence to her employer FTI'. It was claimed that, in those circumstances 'there exists a clear conflict of interest' between Ms Trenfield's duties as trustee and her duties as an employee of FTI. On that basis, it was alleged that Ms Trenfield was 'not a fit and proper person to be…

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: [2025] FCA 580
Decision Date: 26 May 2025

CaseChat Overview and Summary

The case of Frigger v Trenfield (Application to Adjourn Final Hearing) (No 2) involved Mrs and Mr Frigger, the applicants, seeking to adjourn the final hearing of their proceedings against Ms Trenfield. The applicants sought to join a new party, FTI, and further amend their statement of claim to include new claims of fraud and issues concerning the administration of bankruptcy. The Federal Court was required to decide whether the final hearing should be adjourned pending the outcome of an application for leave to appeal an interlocutory judgment, and if there was adequate justification for the delay in making the adjournment application.

The court considered several factors, including the delay in bringing the adjournment application, the lack of a claim formulated on the basis of joint liability between Ms Trenfield and FTI, and the nature of the proposed new claims. The court concluded that the proposed new claims would introduce distinct issues not related to the existing proceedings, and that any prejudice to the applicants would be limited to having these new claims heard separately. The court also noted that the proceedings had been conducted on the basis that the existing claims did not require the joinder of FTI. Consequently, the court found that the proposed adjournment would result in significant further delay in determining the issues related to the validity of the bankrupt estates' administration and the recission of Ms Trenfield's appointment.

The court dismissed the application to adjourn the final hearing. The reasons included the unexplained delay in bringing the application, the absence of a claim formulated on the basis of joint liability, and the distinct nature of the proposed new claims. The court emphasized that the existing claims did not require the joinder of FTI and that further adjournment would lead to additional delays in resolving the core issues of the case.

The court's final order was that the interlocutory application to adjourn the final hearing dated 19 May 2025 was dismissed. The entry of orders was dealt with in Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The interlocutory application to adjourn the final hearing dated 19 May 2025 is dismissed.

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

Therefore, even if the application for leave to appeal succeeded, it would result in the introduction of a new case of a kind that concerns distinct issues. At best, the prejudice to Mrs and Mr Frigger will be the fact that they would be unable to include these further claims into the existing proceedings rather than pursuing them separately, assuming, of course, that there was a proper basis demonstrated to bring the proposed claims of fraud and the claims about administration of the bankruptcy insofar as it concerns the share portfolio.Conclusion In those circumstances, I concluded that the adjournment application must be declined. I did so because:(1)the delay in bringing the second adjournment application was not adequately explained;(2)there was no claim as currently pleaded that was formulated on the basis of joint liability on the part of Ms Trenfield and FTI;(3)success on the interlocutory appeal would add claims for determination rather than affect the claims as currently pleaded;(4)it is the proposed new claims that are said to justify the joinder of FTI;(5)the proposed new claims raise distinct issues concerning aspects of the administration of the bankrupt estates not the arrangements in place as between Ms Trenfield and her employer, FTI, as to the administration;(6)in the circumstances set out in (2) to (5), any prejudice was confined to having the new claims heard with the existing claims;(7)the proceedings have been conducted by Mrs and Mr Frigger for a considerable period on the basis that the claims as currently pleaded do not require the joinder of FTI; and(8)a further adjournment of the final hearing would result in considerable further delay in the determination of issues that were alleged to bear upon the validity of the administration of the bankrupt estates and the recission of the appointment of Ms Trenfield 'ab initio'.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number:	WAD 128 of 2023
Judgment of:	COLVIN J
Date of judgment:	26 May 2025
Date of publication of reasons:	4 June 2025
Catchwords:	PRACTICE AND PROCEDURE - application to adjourn final hearing - where final hearing would be conducted before outcome of application for leave to appeal interlocutory judgment - where applicants seek leave to appeal to join a party to the proceedings and further amend statement of claim - whether prejudice to the applicants would arise if the final hearing is not adjourned - whether there is an adequate explanation for the delay in bringing the adjournment application - where proposed joinder would expand the existing scope of the proceedings to include a new case with distinct issues - application dismissed
Cases cited:	Frigger v Trenfield (Application to Amend) [2024] FCA 508 Frigger v Trenfield (Application to Adjourn Final Hearing) [2025] FCA 71
Division:	General Division
Registry:	Western Australia
National Practice Area:	Commercial and Corporations
Sub-area:	Corporations and Corporate Insolvency
Number of paragraphs:	28
Date of hearing:	26 May 2025
Counsel for the Applicants:	The applicants appeared in person
Counsel for the Respondent:	Mr SD Majteles
Solicitor for the Respondent:	Johnson Winter Slattery

ORDER MADE BY:	COLVIN J
DATE OF ORDER:	26 MAY 2025