FEDERAL COURT OF AUSTRALIA
Frigger v Trenfield (No 11) [2022] FCA 326
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- AGLC
- Frigger v Trenfield (No 11) [2022] FCA 326
- Case
- [2022] FCA 326
- Decision Date
CaseChat Overview and Summary
The court held that the applicants must pay the trustee in bankruptcy's costs on a party-party basis, with specific timelines and conditions for the assessment of costs. The court distinguished between the trustee's right of indemnity from the bankrupt estates and the costs between the parties, noting that the trustee could initially recover costs from the estates but could later seek to recover those costs from the applicants. The court ruled that the costs should be paid by the applicants on a party-party basis, with specific provisions for the assessment of costs and the recovery of costs from the bankrupt estates. The court also set out detailed timelines for the submission of costs summaries, responses, and written submissions on the quantum of costs.
The final orders required the applicants to pay the trustee's costs on a party-party basis, with certain costs discounted. The court also provided for the assessment of costs on a lump sum basis and set out specific timelines for the submission of costs summaries, responses, and written submissions. The court clarified that the trustee could recover costs from the bankrupt estates initially but could later seek to recover those costs from the applicants.
Orders
Orders of the court
1. The applicants must pay the first respondent's costs of the proceedings on a party-party basis (inclusive of the costs ordered in paragraph 11 below):
(a) in the case of the first applicant, from the time of commencement of the proceedings, and from 14 June 2019 (inclusive) jointly and severally with the second applicant; and
(b) in the case of the second applicant, from 14 June 2019 (inclusive), jointly and severally with the first applicant.
2. The costs referred to in paragraph 1 of these orders include costs of and incidental to the following applications and orders, which had been ordered to be reserved:
(a) the applicants' interlocutory application filed 6 September 2019 as amended including the orders made on 11 September 2019 and 24 October 2019;
(b) the applicants' interlocutory application for summary judgment made by minute of proposed orders emailed to Chambers on 25 July 2019, including the orders made on 29 November 2019;
(c) the applicants' interlocutory application filed 6 January 2020 and the orders made on 17 February 2020;
(d) the applicants' interlocutory application filed 9 June 2019 and the first respondent's interlocutory applications filed 2 June 2020 and 15 June 2020, including the orders made on 17 June 2020, 25 June 2020, 1 July 2020 and 6 July 2020, with a discount of 50% to be applied to the costs referred to in this subparagraph;
(e) the orders made on 17 July 2020;
(f) the applicants' interlocutory application to re-open supported by an affidavit filed 2 September 2020, including the orders made on 2 September 2020, 7 September 2020 and 9 September 2020;
(g) the orders made on 21 October 2020; and
(h) the orders made on 23 April 2021.
3. All other reserved costs orders are vacated so that there is no order as to the costs of and incidental to the orders to which those vacated orders relate.
4. The assessment of costs the subject of orders 1 and 2 above is to be determined by the trial judge on a lump sum basis in accordance with section 4 of the Court's Costs Practice Note (GPN-Costs).
5. By 26 April 2022, the first respondent must file and serve a Costs Summary affidavit in accordance with paras 4.10 to 4.12 and Annexure A of the Practice Note, with the Costs Summary to be limited to 10 pages. The Costs Summary must identify which items or categories of work are, according to the first respondent, connected to the performance of the applicants' duties and the exercise of their powers and discretions as trustees of the Frigger Super Fund.
6. At the same time as service of the Costs Summary referred to in the preceding paragraph, the first respondent must serve on the applicants (but not file with the Court) a copy of each costs agreement and invoice on which the first respondent relies in support of the Costs Summary.
7. By 17 May 2022, the applicants must file and serve a Costs Response affidavit in accordance with paras 4.13 and 4.14 of the Practice Note, limited to 10 pages plus any annexures comprised of costs agreements or invoices to which the applicants wish to refer.
8. By 31 May 2022, the first respondent must file and serve an outline of written submissions of no more than 5 pages in length on the quantum of costs sought.
9. By 14 June 2022, the applicants must file and serve an outline of written submissions of no more than 5 pages in length on the quantum of costs sought.
10. The assessment of the quantum of costs will be listed for hearing on a date to be fixed, not before 16 June 2022.
11. The applicants must pay the first respondent's costs of and incidental to these orders, including the costs of the hearing on 16 February 2022, all discounted by 75%.
12. Without limiting any of the above orders, the first respondent may obtain payment of her costs of and incidental to the proceeding (including costs of and incidental to these orders, and the hearing on 16 February 2022) on a solicitor-client basis, out of the bankrupt estates of the applicants.
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
Ratio Decidendi
Legal Principle Established
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