PRACTICE AND PROCEDURE – Application to withdraw interlocutory applications – Consent to withdrawal – Where judgment reserved – Costs of application to withdraw
PRACTICE AND PROCEDURE – Application to seek leave to amend notice of appeal
PRACTICE AND PROCEDURE – Application to seek leave to adduce further evidence on appeal – Application to seek leave to adduce further evidence for interlocutory applications – Where judgment reserved – Probative value
PRACTICE AND PROCEDURE – Costs – Application for security for costs – Prior history of non-payment of cost orders – Real risk costs orders would not be satisfied – Prospects of success not strong – Whether in interests of justice – Quantum
[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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AGLC
Frigger v Trenfield (No 11) [2025] FCA 1193
Case
[2025] FCA 1193
Decision Date
CaseChat Overview and Summary
The case of Frigger v Trenfield (No 11) involved multiple applications and appeals stemming from a long-standing series of litigations between Mr. and Mrs. Frigger, as appellants, and various parties, including the respondent Mrs. Trenfield. The primary judgment in question, Frigger v Trenfield (No 8), dealt with the dismissal of the appellants' application to annul their bankruptcy, which had been ordered in a previous judgment. The current proceedings include applications to withdraw certain interlocutory applications, to adduce further evidence, and to seek leave to amend the notice of appeal, among others. The hearing was complex, with judgments reserved on several matters, including the security for costs application, the stay of costs application, and the restraint application.
The legal issues before the court encompassed whether the appellants should be granted leave to withdraw their interlocutory applications, whether they should be allowed to adduce further evidence on the security for costs application and the appeal, and whether leave should be granted to amend the notice of appeal. Additionally, the court needed to determine the appropriate costs orders, including security for costs and indemnity costs, given the appellants' history of non-payment and the real risk that costs orders would not be satisfied.
The court's reasoning involved a careful consideration of the procedural history and the merits of each application. The court granted the appellants leave to withdraw their interlocutory applications regarding the restraint and stay of costs, dismissing these applications accordingly. On the security for costs application, the court ordered the appellants to provide security for the respondent's costs in the sum of $30,000, to be provided within 21 days. The further evidence application was dismissed in relation to the security for costs application, but it was to be determined alongside the appeal. The amendment application, concerning the appellants' leave to file an amended notice of appeal, was to be decided by the Full Court. Regarding costs, the appellants were ordered to pay certain costs associated with the interlocutory applications and the case management hearings, reserving costs for the further evidence application and the amendment application.
The final orders included the withdrawal of the restraint and stay of costs applications, the dismissal of the further evidence application in relation to the security for costs application, and the determination of the amendment application by the Full Court. The court also mandated the provision of security for costs and detailed the costs orders to be paid by the appellants.
Orders
Orders of the court
Withdrawal Application
1. In relation to the appellants’ application for leave to withdraw (withdrawal application) their interlocutory application dated 16 January 2025, seeking an order to restrain the first respondent from disposing or dealing with or diminishing certain identified assets (restraint application) as set out in the appellants’ letter to the Legal Case Manager dated 19 June 2025 (letter), the appellants be given leave and the restraint application is withdrawn.
2. In relation to the appellants’ withdrawal application with respect to their interlocutory application dated 4 April 2025 for a stay of the taxation of the bill of costs in WAD616/2017 (stay of costs application) as set out in the appellants’ letter, the appellants be given leave and the stay of costs application is withdrawn.
Security for Costs Application
3. Pursuant to section 56 of the Federal Court of Australia Act 1976 (Cth) and rule 36.09(1) of the Federal Court Rules 2011 (Cth), the appellants are to provide the second respondent with security for his costs of and incidental to defending this appeal in the sum of $30,000.
4. The security referred to in Order 3 is to be provided by payment into Court or the provision of an unconditional bank guarantee from an Australian trading bank.
5. The security referred to in Order 3 is to be provided by no later than 21 days after Order 3 is made.
6. If security is not provided in accordance with these orders, or the second respondent’s costs referred to in order 10 are not paid within 21 days of the date of these Orders, the appeal be dismissed, and the appellants pay the second respondent’s costs of this appeal to be taxed if not agreed.
Further Evidence Application
7. In relation to the appellants’ interlocutory application dated 18 June 2025 to adduce further evidence (further evidence application):
(a) insofar as the further evidence application is sought to be relied upon in relation to the second respondent’s interlocutory application for security for costs dated 3 February 2025 (security for costs application), the further evidence application is dismissed.
(b) insofar as the further evidence application is sought to be relied upon in the appeal, the further evidence application is to be determined at the same time as the appeal.
Amended Notice of Appeal
8. The question of whether leave ought to be given to the appellants to amend the notice of appeal in the terms of the amended notice of appeal dated 20 March 2025, which was accepted for filing on 6 June 2025, be determined at the hearing of this appeal (amendment application).
Costs
9. The appellants pay the first respondent’s costs of:
(a) the withdrawal application insofar as it relates to the restraint application;
(b) the restraint application;
(c) the case management hearing on 16 July 2025, and the hearing on 27 August 2025 insofar as it relates to order 9(a) above.
10. The appellants pay the second respondent’s costs of:
(a) the withdrawal application insofar as it relates to the stay of costs application;
(b) the stay of costs application;
(c) the security for costs application on an indemnity basis fixed on a lump sum basis by a Registrar of the Court if not agreed;
(d) the further evidence application insofar as it relates to the security for costs application; and
(e) the case management hearing of 16 July 2025, and the hearing on 27 August 2025 insofar as it relates to order 10(a) above.
11. Costs be reserved with respect to the appellants’ further evidence application insofar as it relates to the appeal.
12. Costs be reserved with respect to the appellants’ amendment application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
The restraint application, the security for costs application and the stay of costs application were heard concurrently on 14 May 2025, at which time I reserved judgment. The hearing before me on 27 August 2025 overwhelmingly concerned the withdrawal application and the appellants’ application to rely on further evidence in relation to the security for costs application. As the transcript discloses, the appellants’ application to rely upon further evidence on the appeal, and their application seeking leave to rely upon an amended notice of appeal accounted for only a small part of that hearing. BACKGROUND The applications arise within the context of the appellants’ appeal from Frigger v Trenfield (No 8) [2024] FCA 1438 (primary judgment or PJ). The appellants seek to appeal from the primary Judge’s decision to dismiss their application to annul their bankruptcy: PJ at [55] – [56], [82] – [84]. The primary judgment forms part of a long and complex series of litigation between the appellants and various parties. Mr Kitay was the liquidator of Computer Accounting and Tax Pty Ltd (in liq) (CAT). At the time that CAT was wound up, the appellants were its directors. In Mr Kitay’s submissions of 9 April 2025, he provides a useful explanation of the factual and procedural background to the bankruptcies of the appellants. Mr Kitay notes that on 20 July 2018, Justice Colvin delivered judgment in Kitay, in the matter of Frigger (No 2) [2018] FCA 1032, in which his Honour ordered that the appellants be made bankrupt. Mrs Trenfield was appointed the trustee in bankruptcy of the bankrupt estates of Mr and Mrs Frigger on 31 August 2018 and initially held this position jointly with Mr Paul Allen: PJ at [63]. Mr Kitay’s submissions provide a helpful summary of the factual background from which the debt, the subject of the creditor’s petition emerged, as follows: (a)the debt arises out of a cost order made in WA Supreme Court proceedings, which was taxed in the amount of $61,000.42 (Judgement Debt) on 5 July 2015;(b)despite demand, Mr and Mrs Frigger refused to pay the Judgment Debt and the attempts by Mr Kitay and CAT to enforce against the assets of Mr and Mrs Frigger were unsuccessful;(c)on 29 August 2016, Mr Kitay and CAT caused a Bankruptcy Notice to issue against Mr and Mrs Frigger with respect to the Judgment Debt. Mr and Mrs Frigger applied to set aside the Bankruptcy Notice and on 28 February 2016, Deputy District Registrar Trott (as he then was) dismissed that application;(d)Mr and Mrs Frigger then applied for a review of that decision, which application was dismissed by Siopis J on 1 November 2017; and(e)Mr Kitay and CAT then presented a creditor’s petition in December 2017, and after a contested hearing, sequestration orders were made against the estates of Mr and Mrs Frigger on 20 July 2018.(Emphasis in original and footnotes omitted.) Mr and Mrs Frigger’s annulment application, which was the subject of the primary judgment, occurred after two prior attempts to end their bankruptcies: See Frigger v Trenfield (No 6) [2022] FCA 1233 at [9], Frigger v Kitay (No 2) [2020] FCA 497 at [4] and Frigger v Banning (No 11) [2020] FCA 1257 at [5]. Ultimately, the primary Judge concluded that the appellants’ annulment application be dismissed: PJ at [55] – [56], [82] – [84].
Evidence
Evidence Before The Court
As to costs I accept the submissions of the first and second respondents and conclude that costs should follow the event. On 16 July 2025, I made orders reserving the costs of the case management hearing on that date. The Court has a wide discretion under s 43 of the Act to award costs. The case management hearing on 16 July 2025 was only necessary due to the appellants’ withdrawal application. The appellants should pay the costs of the case management hearing on 16 July 2025. They should also pay the costs of the hearing on 27 August 2025 except as to the amendment application and the further evidence application insofar as it relates to the appeal. Further Evidence Application and Amendment Application Objections At the hearing on 27 August 2025 Mr Kitay stated that he objected to [6], [7], and [9] of the affidavit of Mrs Frigger filed 20 June 2025 on the basis that those paragraphs contain allegations made without foundation, and he wished to record that, while not relevant to the security for costs application, he did not accept the statements contained at [11] of that affidavit. With Respect to the Appeal The amendment application was raised at the case management hearing held on 19 March 2025 at which time Mrs Frigger informed the Court that she had, on 17 March 2025, emailed my Associate. It emerged that, in fact, Mrs Frigger had attached a “Supplementary Notice of Appeal” to her email which was sent to the Registry and in which she stated the appellants would seek leave to file on 19 March 2025. Mrs Frigger made oral submissions on behalf of the appellants to the effect that they sought leave to file the “supplementary” notice of appeal as the amendments were “only as a result of the variations to the original judgment” related to orders. On the basis that the appellants informed the Court that the amended notice of appeal was only responsive to a supplementary judgment, I granted the appellants leave to file the amended notice of appeal and rely upon it. The appellants did not file the amended notice of appeal until 6 June 2025. At the case management hearing on 16 July 2025, counsel for Mr Kitay raised the issue of the amended notice of appeal now filed by the appellants noting that it was not in accordance with the leave granted. The amended notice of appeal exceeded the terms of the leave granted on 19 March 2025 by traversing matters beyond the variations to the original judgment with respect to orders, that is, what Mrs Frigger described as a supplementary judgement. It also included additional information not contained in the version provided to the Court on 17 March 2025 and, at least on one occasion, included matters which post-date, by months, the leave granted. I consider that the amendment application and the further evidence application as they relate to the appeal should be determined by the Full Court of the Federal Court of Australia, as it is in the interests of justice for those applications to be dealt with alongside the substantive appeal to which they are closely related. The parties had no objections to this course. With Respect to the Security for Costs Application
Decision
Reasons for decision
The applications arise within the context of the appellants’ appeal from Frigger v Trenfield (No 8) [2024] FCA 1438 (primary judgment or PJ). The appellants seek to appeal from the primary Judge’s decision to dismiss their application to annul their bankruptcy: PJ at [55] – [56], [82] – [84]. The primary judgment forms part of a long and complex series of litigation between the appellants and various parties. Mr Kitay was the liquidator of Computer Accounting and Tax Pty Ltd (in liq) (CAT). At the time that CAT was wound up, the appellants were its directors. In Mr Kitay’s submissions of 9 April 2025, he provides a useful explanation of the factual and procedural background to the bankruptcies of the appellants. Mr Kitay notes that on 20 July 2018, Justice Colvin delivered judgment in Kitay, in the matter of Frigger (No 2) [2018] FCA 1032, in which his Honour ordered that the appellants be made bankrupt. Mrs Trenfield was appointed the trustee in bankruptcy of the bankrupt estates of Mr and Mrs Frigger on 31 August 2018 and initially held this position jointly with Mr Paul Allen: PJ at [63]. Mr Kitay’s submissions provide a helpful summary of the factual background from which the debt, the subject of the creditor’s petition emerged, as follows: (a)the debt arises out of a cost order made in WA Supreme Court proceedings, which was taxed in the amount of $61,000.42 (Judgement Debt) on 5 July 2015;(b)despite demand, Mr and Mrs Frigger refused to pay the Judgment Debt and the attempts by Mr Kitay and CAT to enforce against the assets of Mr and Mrs Frigger were unsuccessful;(c)on 29 August 2016, Mr Kitay and CAT caused a Bankruptcy Notice to issue against Mr and Mrs Frigger with respect to the Judgment Debt. Mr and Mrs Frigger applied to set aside the Bankruptcy Notice and on 28 February 2016, Deputy District Registrar Trott (as he then was) dismissed that application;(d)Mr and Mrs Frigger then applied for a review of that decision, which application was dismissed by Siopis J on 1 November 2017; and(e)Mr Kitay and CAT then presented a creditor’s petition in December 2017, and after a contested hearing, sequestration orders were made against the estates of Mr and Mrs Frigger on 20 July 2018.(Emphasis in original and footnotes omitted.) Mr and Mrs Frigger’s annulment application, which was the subject of the primary judgment, occurred after two prior attempts to end their bankruptcies: See Frigger v Trenfield (No 6) [2022] FCA 1233 at [9], Frigger v Kitay (No 2) [2020] FCA 497 at [4] and Frigger v Banning (No 11) [2020] FCA 1257 at [5]. Ultimately, the primary Judge concluded that the appellants’ annulment application be dismissed: PJ at [55] – [56], [82] – [84]. Also relevant to the current proceeding is the proceeding WAD155/2025, in which Mr and Mrs Frigger made an application “to appeal pursuant to section 82(5) or section 30 of the Bankruptcy Act 1966 (Cth) against a series of alleged decisions of the trustee” which included decisions “to admit or to assess certain proofs of debt” (creditor claims application). Mrs Trenfield sought summary dismissal of the application on the basis that the application had no premise and therefore was without merit. Moshinsky J concluded in his Honour’s judgment of 5 August 2025 that both paragraphs one and two of the appellants’ creditor claims application were without merit. Nonetheless, his Honour considered that “[i]n the course of the hearing today, it became apparent that the real relief that is sought by Mr and Ms Frigger is that the court order that the trustee forthwith adjudicate on the proofs of debt”. As such, his Honour concluded that paragraphs one and two of the creditor claims application should be struck out and the appellants should be given “leave to amend the application to seek an order that the trustee forthwith adjudicate on the proofs of debt”.CONSIDERATIONWithdrawal Application