Frigger v Trenfield (No 11)

Case [2022] FCA 326


FEDERAL COURT OF AUSTRALIA

Frigger v Trenfield (No 11) [2022] FCA 326

File number: WAD 141 of 2019
Judgment of: JACKSON J
Date of judgment: 4 April 2022
Catchwords: COSTS - costs of unsuccessful application by then bankrupts against trustee in bankruptcy - costs to follow usual rule - costs between parties distinguished from trustee in bankruptcy's right of indemnity from the bankrupt estate - order affirming trustee in bankruptcy's right of indemnity - no order as to extent of bankrupts' right of indemnity as trustees of self-managed superannuation fund - no order for indemnity costs
Legislation:

Bankruptcy Act 1966 (Cth) ss 109, 116, Schedule 2 (Insolvency Practice Schedule (Bankruptcy)) ss 5-15, 5‑30, 90-20

Federal Court of Australia Act 1976 (Cth) ss 37N, 43

Superannuation Industry (Supervision) Act 1993 (Cth)

Federal Court Rules 2011 (Cth) r 40.02

Cases cited:

Adsett v Berlouis (1992) 37 FCR 201

Anchorage Capital Partners Pty Ltd v ACPA Pty Ltd (No 4) [2016] FCA 218

Barrett Property Group Ltd v Metricon Homes Pty Ltd (No 2) [2007] FCA 1823

Boomerang Investments Pty Ltd v Padgett (Costs of the Liability Phase) [2021] FCA 385

Cachia v Hanes (1994) 179 CLR 403

Calokerinos, Executor of the Estate of the late George Sclavos v Yesilhat (No 2) [2019] NSWSC 584

Cardaci v Filippo Primo Cardaci as executor of the estate of Marco Antonio Cardaci (No 5) [2021] WASC 331 (S)

Carter Holt Harvey Woodproducts Australia Pty Ltd v Commonwealth [2019] HCA 20; (2019) 268 CLR 524

Civil Properties Pty Ltd v Miluc Pty Ltd [2011] WASCA 195

Clipsal Australia Pty Ltd v Clipso Electrical Pty Ltd [2016] FCA 37

Coyne v Douglas-Brown [2002] FCA 1324

Cranes 'R' Us Pty Ltd v Busselton Mini Crane Hire Pty Ltd [2012] WADC 24; (2012) 79 SR (WA) 322

Currie v Currie (No 3) [2018] WASC 306

Doggett v Commonwealth Bank of Australia [2019] FCAFC 19

Fitzpatrick v Keelty (No 2) [2008] FCA 742

Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 234 CLR 52

Frigger v Trenfield [2019] FCA 1746

Frigger v Trenfield (No 2) [2019] FCA 2009

Frigger v Trenfield (No 3) [2020] FCA 150

Frigger v Trenfield (No 6) [2020] FCA 934

Frigger v Trenfield (No 7) [2020] FCA 1740

Frigger v Trenfield (No 9) [2021] FCA 652

Frigger v Trenfield (No 10) [2021] FCA 1500

Hopkins v Edwards [2020] VSC 456

Innes v AAL Aviation Ltd (No 2) [2018] FCAFC 130

Jones v Matrix Partners Pty Ltd; Re Killarnee Civil & Concrete Contractors Pty Ltd (in liq) [2018] FCAFC 40; (2018) 260 FCR 310

Krueger Transport Equipment Pty Ltd v Glen Cameron Storage & Distribution Pty Ltd (No 3) [2008] FCA 1592

Lewis v Lewis (No 2) [2020] NSWSC 1519

LFDB v SM (No 2) [2017] FCAFC 207

McDonald v Young [2012] FCAFC 137

Mehajer v Weston in his Capacity as Trustee of the Bankrupt Estate of Salim Mehajer [2019] FCA 1713

Melbourne City Investments Pty Ltd v…

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Details
AGLC
Frigger v Trenfield (No 11) [2022] FCA 326
Case
[2022] FCA 326
Decision Date

CaseChat Overview and Summary

In Frigger v Trenfield (No 11), the applicants, former bankrupts, sought to challenge the costs of their unsuccessful application against the trustee in bankruptcy. The dispute arose from an earlier proceeding where the applicants sought declarations and orders regarding their bankrupt estates and their self-managed superannuation fund, the Frigger Super Fund (FSF). The application was dismissed in its entirety, and the trustee in bankruptcy now seeks orders for costs. The applicants opposed the orders sought and requested a deferral pending another proceeding concerning the validity of their bankruptcies. The central legal issues were the appropriate basis for assessing the applicants' liability for costs and whether the trustee in bankruptcy could recover costs from the bankrupt estates.

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

Judgment in this proceeding was delivered on 1 December 2021: Frigger v Trenfield (No 10) [2021] FCA 1500 (Main Judgment). These reasons concern the costs of the proceeding. The matter concerned the bankruptcies of the applicants and, to a large extent, also concerned their self‑managed superannuation fund, the Frigger Super Fund (FSF). The applicants were discharged from bankruptcy on 26 July 2021. They are, however, seeking orders in a different proceeding in this Court, WAD 66 of 2021, in which (according to their written submissions on costs) the issue is whether their 'bankruptcies were invalid'. The first respondent is the trustee in bankruptcy of the applicants' bankrupt estates. The second respondent, H & A Frigger Pty Ltd, was trustee of the FSF from before the commencement of the proceeding until 15 April 2020. The applicants sought a number of orders in the proceeding, in broad terms:(a)declarations that the applicants' interests in various assets were interests in a regulated superannuation fund, namely the FSF, and orders consequential on that;(b)orders in this court concerning costs orders that had been made in the Court of Appeal of Western Australia; and(c)an order for the removal of the first respondent as the applicants' trustee.The application was dismissed in its entirety. The first respondent now seeks orders relating to the costs of the proceeding. The applicants oppose the orders sought, and seek a deferral of the determination of their costs liability pending the outcome of WAD 66 of 2021. The orders the first respondent now seeks are, in summary, orders that:(a)the applicants, in their own right and in their capacity as trustees of the FSF, jointly and severally pay the first respondent's costs of the proceeding on an indemnity basis, including all costs that had been reserved (save the reserved costs in relation to two interlocutory issues, which the first respondent does not seek);(b)the costs referred to above be fixed by the trial judge on a lump sum basis; and(c)the first respondent's solicitor-client costs of the proceeding, including any reserved costs and costs the subject of any interlocutory costs order in the first respondent's favour, be paid out of the bankrupt estates on terms that upon payment, any costs recovered by the first respondent pursuant to the previous orders sought shall form part of those bankrupt estates. The first respondent summarises the effect of these orders as enabling her initially to recover her costs from the assets of the bankrupt estates but to then, in effect, seek to recover the costs against the applicants, with those costs then going into the pool of assets available for distribution to the creditors of the bankrupt estates. She submits this is appropriate because the bankrupt estates may not be sufficient to discharge all the costs of the litigation and, in any event, the creditors of the bankrupt estates should not have to bear the burden of the costs of defending the applicants' unsuccessful pursuit of the litigation.

Ratio Decidendi

Legal Principle Established

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