FEDERAL COURT OF AUSTRALIA
Frigger v Trenfield (No 12) [2022] FCA 900
ORDERS
WAD 141 of 2019 BETWEEN: ANGELA CECILIA THERESA FRIGGER
First Applicant
HARTMUT HUBERT JOSEF FRIGGER
Second Applicant
AND: KELLY-ANNE LAVINA TRENFIELD
First Respondent
H & A FRIGGER PTY LTD IN ITS CAPACITY AS TRUSTEE OF THE FRIGGER SUPER FUND
Second Respondent
ORDER MADE BY:
JACKSON J
DATE OF ORDER:
3 AUGUST 2022
THE COURT ORDERS THAT:
1.The…
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Details
- AGLC
- Frigger v Trenfield (No 12) [2022] FCA 900
- Case
- [2022] FCA 900
- Decision Date
CaseChat Overview and Summary
The case of Frigger v Trenfield (No 12) involves a dispute regarding the costs associated with legal proceedings between the Frigger family and Trenfield, with the proceedings taking place in the Federal Court of Australia. The dispute centres on the quantum of costs to be awarded to the first respondent, Trenfield, following the earlier determination of the costs orders in Frigger v Trenfield (No 11). This case concerns the assessment of the costs incurred by Trenfield in the litigation against the Friggers, focusing on the reasonableness and appropriate quantum of those costs. The court was tasked with determining the appropriate amount of costs to be awarded to Trenfield, taking into account the arguments presented by both parties regarding the indemnity principle, the lump sum costs assessment principles, and the applicability of conditional costs agreements under the Legal Profession Act 2008 (WA).
The primary legal issue before the court was the assessment of the costs to be awarded to Trenfield. The applicants argued that the costs claimed were excessive and not in line with the indemnity principle, which seeks to provide an indemnity to the successful party for the costs incurred. They contended that the costs should be significantly reduced, proposing specific lower figures based on various factors, including the qualifications of the principal solicitor. Trenfield, on the other hand, argued that the costs claimed were reasonable and necessary, and that the lump sum approach to assessing costs was appropriate. The court also had to consider the impact of the void conditional costs agreement on the recoverability of costs, as well as the reasonableness of the costs claimed in light of the Legal Profession Act 2008 (WA).
The court found that the first respondent's legal costs were reasonable and that the lump sum approach to assessing costs was appropriate in this case. The court rejected the applicants' arguments invoking the indemnity principle and their contentions regarding the qualifications of the principal solicitor. While the court found that a modest discount was warranted, it was not appropriate to examine the invoices line by line in the lump sum costs assessment. The court assessed the costs at $406,269 plus disbursements of $16,041.45, inclusive of GST, resulting in a total of $422,310.45. The court also found that despite the void conditional costs agreement, Trenfield was entitled to recover the reasonable costs incurred in the litigation under the Legal Profession Act 2008 (WA).
The final orders of the court were that the first applicant is liable for Trenfield's legal costs of the proceeding up to and including 13 June 2019 in the sum of $13,813 (inclusive of GST), and that the first applicant and second applicant are jointly and severally liable for Trenfield's legal costs of the proceeding thereafter in the sum of $392,456 (inclusive of GST), as well as for disbursements in the sum of $16,041.45 (inclusive of GST). Entry of orders is governed by Rule 39.32 of the Federal Court Rules 2011.
The primary legal issue before the court was the assessment of the costs to be awarded to Trenfield. The applicants argued that the costs claimed were excessive and not in line with the indemnity principle, which seeks to provide an indemnity to the successful party for the costs incurred. They contended that the costs should be significantly reduced, proposing specific lower figures based on various factors, including the qualifications of the principal solicitor. Trenfield, on the other hand, argued that the costs claimed were reasonable and necessary, and that the lump sum approach to assessing costs was appropriate. The court also had to consider the impact of the void conditional costs agreement on the recoverability of costs, as well as the reasonableness of the costs claimed in light of the Legal Profession Act 2008 (WA).
The court found that the first respondent's legal costs were reasonable and that the lump sum approach to assessing costs was appropriate in this case. The court rejected the applicants' arguments invoking the indemnity principle and their contentions regarding the qualifications of the principal solicitor. While the court found that a modest discount was warranted, it was not appropriate to examine the invoices line by line in the lump sum costs assessment. The court assessed the costs at $406,269 plus disbursements of $16,041.45, inclusive of GST, resulting in a total of $422,310.45. The court also found that despite the void conditional costs agreement, Trenfield was entitled to recover the reasonable costs incurred in the litigation under the Legal Profession Act 2008 (WA).
The final orders of the court were that the first applicant is liable for Trenfield's legal costs of the proceeding up to and including 13 June 2019 in the sum of $13,813 (inclusive of GST), and that the first applicant and second applicant are jointly and severally liable for Trenfield's legal costs of the proceeding thereafter in the sum of $392,456 (inclusive of GST), as well as for disbursements in the sum of $16,041.45 (inclusive of GST). Entry of orders is governed by Rule 39.32 of the Federal Court Rules 2011.
Orders
Orders of the court
1. The costs ordered on 4 April 2022 are assessed in the following sums:
(a) the first applicant is liable for the first respondent's legal costs of the proceeding up to and including 13 June 2019 in the sum of $13,813 (inclusive of GST);
(b) the first applicant and second applicant are jointly and severally liable for the first respondent's legal costs of the proceeding thereafter in the sum of $392,456 (inclusive of GST); and
(c) the first applicant and second applicant are jointly and severally liable to pay the first respondent for disbursements in the sum of $16,041.45 (inclusive of GST).
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
In Frigger v Trenfield (No 11) [2022] FCA 326 (Costs Judgment) I made orders deciding a number of disputes about the costs of this proceeding. What the Costs Judgment did not determine was the quantum of costs that are to be payable. These reasons concern that determination. In so far as they are relevant for present purposes, the orders made in the Costs Judgment were that:(a)the first applicant must pay the first respondent's costs of the proceeding from its commencement;(b)both applicants must pay the first respondent's costs of the proceeding from 14 June 2019 (because the second applicant only became a party on that date);(c)reserved costs of certain interlocutory applications were also to be paid by the applicants (with a discount of 50% to be applied to a particular set of hearings and interlocutory applications);(d)the first respondent's costs of the interlocutory hearing that resulted in the Costs Judgment were also to be paid by the applicants, subject to a discount of 75%;(e)all those costs were to be paid on a party-party basis;(f)the quantum of costs are to be assessed by the trial judge on a lump sum basis; and(g)the first respondent was required to serve on the applicants a copy of each costs agreement and invoice on which she relied in support of the 'Costs Summary' affidavit filed to support her position in the lump sum costs assessment. Orders were also made programming the assessment of quantum to a hearing, which took place on 22 July 2022. At that hearing, the first respondent relied principally on a costs summary affidavit prepared in accordance with the Court's Costs Practice Note (GPN-Costs). On the basis described below, the first respondent seeks a lump sum costs order of $435,853.45, comprised of total legal fees of $419,812 and disbursements of $16,041.45. All those figures are inclusive of GST. Counsel fees are included in the amount for legal fees, not disbursements. The applicants, Mrs and Mr Frigger, oppose any award of costs on grounds that, in broad terms, invoke the indemnity principle and contend that the first respondent has no liability to pay her solicitors. They submitted in the alternative, for various specific reasons, that the award of costs should be no higher than $102,489 or, if a submission about the qualifications of the principal solicitor for the first respondent is accepted, $87,133. For the reasons that follow, the total costs against the applicants will be assessed at $406,269 plus disbursements of $16,041.45 (both inclusive of GST).Principles In Wentworth v Rogers [2006] NSWCA 145; (2006) 66 NSWLR 474 at [124] Basten JA approved the following statement of the indemnity rule or principle in GE Dal Pont, Law of Costs (LexisNexis Butterworths, 2003) 212 [7.6] (citations omitted):When a court makes an order for costs against a litigant, most commonly an unsuccessful litigant pursuant to the 'costs follow the event' principle, it does so with the object of providing to the opposing (successful) litigant an indemnity (but no more) for the costs liability the latter has incurred to his or her own legal representatives as a result of the litigation (hence often termed the 'indemnity rule').
Ratio Decidendi
Legal Principle Established
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