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
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 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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