Frigger v Trenfield (No 10)

Case [2025] FCA 164


FEDERAL COURT OF AUSTRALIA

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

File number: WAD 66 of 2021
Judgment of: LOGAN J
Date of judgment: 5 March 2025
Catchwords: COSTS – whether r 39.05(h) of the Federal Court Rules 2011 (Cth) (Rules) can apply to an error of a costs order made by the Court - whether r 39.05(h) of the Rules can apply to a proceeding where counsel failed to seek an order which required exercise of a judicial discretion – whether r 39.05(h) only applies where judicial discretion could only be exercised one way – whether regardless, r 40.02 provides sufficient authority to the Court to alter a costs order upon application –application for costs on an indemnity basis granted
Legislation:

Bankruptcy Act 1966 (Cth) s 109

Federal Court of Australia Act 1976 (Cth) s 43

Federal Court Rules 2011 (Cth) rr 39.05, 40.01, 40.02

Cases cited:

Australian Securities and Investments Commission v Mitchell (No 4) [2021] FCA 1387

Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225

Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385

Endresz v Commonwealth (2019) 273 FCR 286

Frigger v Trenfield (No 8) [2024] FCA 1438

Frigger v Trenfield (No 9) [2024] FCA 1486

Frigger v Trenfield [2021] FCA 792

Mawhinney v Australian Securities and Investments Commission (No 2) [2022] FCAFC 205

Notaras v Barcelona Pty Ltd (No 2) [2019] FCA 617

Division: General Division
Registry: Western Australia
National Practice Area: Commercial and Corporations
Sub-area: General and Personal Insolvency
Number of paragraphs: 25
Date of last submissions: 11 February 2025 (Applicants)
14 February 2025 (Second Respondent)
Date of hearing: Heard on the papers
Counsel for the Applicants: The applicants appeared in person
Counsel for the Second Respondent: Mr BW Ashdown

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

HERBERT SMITH FREEHILLS

Third Respondent

ORDER MADE BY:

LOGAN J

DATE OF ORDER:

5 MARCH 2025

THE COURT ORDERS THAT:

1.As to the sum of $25,000.00 paid into court by the applicants by way of security in respect of the second respondent’s costs pursuant to the Court’s order for security for costs dated 13 July 2021, and in respect of the applicants’ interlocutory application in relation thereto filed on 15 January 2025, upon the fixing on a lump sum basis of the amount of the second respondent’s costs, either by agreement or the registrar pursuant to the Court’s order of 13 December 2024 in respect of costs (costs order), as varied by this order:

A.if the lump sum so fixed (including the costs ordered to be paid by the applicants pursuant to this order) exceeds $25,000.00, the sum of $25,000.00 paid into court by way of security by the applicants be paid out by the registrar to the second respondent by way of reduction of the amount to be paid out of the bankrupt estates of the…

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AGLC
Frigger v Trenfield (No 10) [2025] FCA 164
Case
[2025] FCA 164
Decision Date

CaseChat Overview and Summary

The case of Frigger v Trenfield (No 10) involved the applicants, Frigger and others, and the second respondent, Trenfield. The dispute pertained to costs and the interpretation of certain rules within the Federal Court. The applicants sought clarification and modification of a previous costs order, particularly regarding the application of rule 39.05(h) of the Federal Court Rules 2011 (Cth) to errors in the costs order, and whether the rule could apply when counsel had failed to seek an order requiring judicial discretion. Additionally, the applicants questioned whether rule 39.05(h) only applies in cases where judicial discretion could only be exercised one way and sought to understand the extent to which rule 40.02 of the Rules provided authority for the Court to alter a costs order upon application.

The court addressed whether rule 39.05(h) could apply to an error in a costs order made by the Court, particularly in cases where counsel had not sought an order that required the exercise of judicial discretion. The court examined whether rule 39.05(h) is limited to situations where judicial discretion could only be exercised in one way. It also considered the extent to which rule 40.02 provides the Court with authority to alter a costs order upon application. After careful consideration, the court concluded that rule 40.02 provides sufficient authority for the Court to alter a costs order upon application. The court also found that the applicants' application for costs on an indemnity basis was granted, leading to the variation of the costs order as specified in the orders section.

The court issued an order concerning the amount of $25,000.00 paid into court by the applicants as security for the second respondent's costs. It directed that if the lump sum fixed for the second respondent's costs exceeds $25,000.00, then the sum paid into court is to be paid out to the second respondent, reducing the amount to be paid from the applicants' bankrupt estates. Conversely, if the lump sum is less than $25,000.00, the lesser amount is to be paid out to the second respondent, with the balance returned to the applicants. Furthermore, the second respondent's costs related to the applicants' application filed on 15 January 2025 were to be fixed in a lump sum by the registrar and added to the costs order, to be paid from the applicants' estates with the same priority as the trustee's costs under section 109(1)(a) of the Bankruptcy Act 1966 (Cth). Finally, the costs order was to be varied to include an additional paragraph, mandating that the registrar fix the second respondent's costs on an indemnity basis.

Orders

Orders of the court

1. As to the sum of $25,000.00 paid into court by the applicants by way of security in respect of the second respondent’s costs pursuant to the Court’s order for security for costs dated 13 July 2021, and in respect of the applicants’ interlocutory application in relation thereto filed on 15 January 2025, upon the fixing on a lump sum basis of the amount of the second respondent’s costs, either by agreement or the registrar pursuant to the Court’s order of 13 December 2024 in respect of costs (costs order), as varied by this order:

A. if the lump sum so fixed (including the costs ordered to be paid by the applicants pursuant to this order) exceeds $25,000.00, the sum of $25,000.00 paid into court by way of security by the applicants be paid out by the registrar to the second respondent by way of reduction of the amount to be paid out of the bankrupt estates of the applicants in respect of the second respondent’s costs and

B. if that sum be fixed in an amount less than $25,000.00 then, from the amount of $25,000.00 paid into court by way of security, that lesser amount be paid out to the second respondent by the registrar in lieu of being paid out of the bankrupt estates of the applicants, with the balance of the said sum of $25,000.00 being paid out to the applicants by the registrar.

2. The second respondent’s costs of and incidental to the applicants’ application filed on 15 January 2025 also be fixed in a lump sum by the registrar and added to the amount of the costs order and, subject to this order, be paid out of the estates of the bankrupts with the same priority accorded by s 109(1)(a) of the Bankruptcy Act 1966 (Cth) to the trustee’s costs.

3. The costs order be varied by adding a further order by way of an additional paragraph, paragraph 4, in these terms:

“4. In in the fixing of the second respondent’s costs on a lump sum basis pursuant to paragraph 3 [of the costs order], the registrar do so on the basis that those costs be fixed on an indemnity basis.”

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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