Frigger v Trenfield (No 4) - [2020] FCA 797

FEDERAL COURT OF AUSTRALIA
Frigger v Trenfield (No 4) [2020] FCA 797

File number: WAD 141 of 2019

Judge: JACKSON J

Date of judgment: 5 June 2020

Legislation: Bankruptcy Act 1966 (Cth) s 30

Cases cited:
Frigger v Trenfield [2019] FCA 1746

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

Date of hearing: 5 June 2020

Registry: Western Australia

Division: General Division

National Practice Area: Commercial and Corporations

Sub-area: General and Personal Insolvency

Category: No Catchwords

Number of paragraphs: 10

Counsel for the Applicants: The applicants appeared in person

Counsel for the Respondent: Mr SD Majteles

Solicitor for the Respondent: Carles Solicitors

ORDERS

WAD 141 of 2019

BETWEEN:
ANGELA CECILIA THERESA FRIGGER

First Applicant

HARTMUT HUBERT JOSEF FRIGGER

Second Applicant

AND:
KELLY-ANNE TRENFIELD

Respondent

JUDGE:

JACKSON J

DATE OF ORDER:

5 JUNE 2020

THE COURT ORDERS THAT:
1.The applicants have leave to rely upon the amended statement of charge filed on 26 May 2020.
2.On or before 12 June 2020, the applicants must file and serve any affidavits and an outline of written submissions, such submissions not to exceed 7 pages, in opposition to the respondent's interlocutory application for discovery dated 2 June 2020.
3.The respondent's interlocutory application dated 2 June 2020, insofar as it relates to orders for discovery, will be dealt with on the papers.
4.On or before 6 July 2020, the parties must serve on each other a list of each deponent of an affidavit whom the party requires to attend the hearing for the purposes of cross‑examination.
5.The affidavits of any deponent who is the subject of a notification referred to in paragraph 4 above who does not make themselves available for cross-examination at the trial will not be received into evidence without the leave of the Court.
6.The hearing presently listed on 27 to 31 July 2020 will be confined to the issues that arise out of paragraphs 1, 2, 4-13, 16 and 17 of the third amended originating application filed on 25 January 2020.
7.Costs in relation to today's case management hearing will be costs in the cause.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
(edited from the transcript)
JACKSON J:

This proceeding concerns a dispute over whether certain assets are part of the bankrupt estates of the applicants. The applicants claim that they are not because, at the time of their bankruptcy, the assets were held on trust on the terms of a superannuation fund known as the Frigger Super Fund. The assets in dispute include the funds in two bank accounts with the Bank of Queensland, and a portfolio of shares administered through Commonwealth Securities Ltd (CommSec). I have described the issues in the proceeding in detail in Frigger v Trenfield [2019] FCA 1746 and Frigger v Trenfield (No 2) [2019] FCA 2009. The trial of the matter has been fixed for five days, commencing on 27 July 2020.
The orders the applicants will seek at…

Grounds of appeal

[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.

Continue reading Frigger v Trenfield (No 4)

Details

AGLC: Frigger v Trenfield (No 4) [2020] FCA 797
Case: [2020] FCA 797
Decision Date: 5 June 2020

CaseChat Overview and Summary

The case of Frigger v Trenfield (No 4) involved the applicants, Frigger and others, and the respondent, Trenfield. The nature of the dispute was related to bankruptcy proceedings and discovery orders. The matter was heard in the Federal Court of Australia. The applicants sought to amend their statement of charge and filed an interlocutory application for discovery against the respondent. The court had to decide several legal issues, including whether the applicants were entitled to rely on their amended statement of charge, the scope of discovery orders, and the procedure for serving affidavits and cross-examining deponents.

The court considered the arguments presented by the parties and decided that the applicants were granted leave to rely upon the amended statement of charge. The court also ordered the applicants to file and serve any affidavits and an outline of written submissions in opposition to the respondent's interlocutory application for discovery. The court directed that the respondent's interlocutory application would be dealt with on the papers, and the parties were required to serve on each other a list of each deponent of an affidavit whom they required to attend the hearing for the purposes of cross-examination. The affidavits of any deponent who did not make themselves available for cross-examination at the trial would not be received into evidence without the leave of the court. The hearing was confined to specific issues related to the third amended originating application filed by the applicants.

The court made several orders in relation to the case management hearing. The applicants were granted leave to rely upon the amended statement of charge filed on 26 May 2020. The applicants were also required to file and serve any affidavits and an outline of written submissions in opposition to the respondent's interlocutory application for discovery dated 2 June 2020. The respondent's interlocutory application was to be dealt with on the papers. The parties were required to serve on each other a list of each deponent of an affidavit whom they required to attend the hearing for the purposes of cross-examination. The affidavits of any deponent who did not make themselves available for cross-examination at the trial would not be received into evidence without the leave of the court. The hearing was to be confined to specific issues related to the third amended originating application filed by the applicants. Costs in relation to the case management hearing were to be costs in the cause.

Orders

Orders of the court

1. The applicants have leave to rely upon the amended statement of charge filed on 26 May 2020.

2. On or before 12 June 2020, the applicants must file and serve any affidavits and an outline of written submissions, such submissions not to exceed 7 pages, in opposition to the respondent's interlocutory application for discovery dated 2 June 2020.

3. The respondent's interlocutory application dated 2 June 2020, insofar as it relates to orders for discovery, will be dealt with on the papers.

4. On or before 6 July 2020, the parties must serve on each other a list of each deponent of an affidavit whom the party requires to attend the hearing for the purposes of cross‑examination.

5. The affidavits of any deponent who is the subject of a notification referred to in paragraph 4 above who does not make themselves available for cross-examination at the trial will not be received into evidence without the leave of the Court.

6. The hearing presently listed on 27 to 31 July 2020 will be confined to the issues that arise out of paragraphs 1, 2, 4-13, 16 and 17 of the third amended originating application filed on 25 January 2020.

7. Costs in relation to today's case management hearing will be costs in the cause.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number:	WAD 141 of 2019
Judge:	JACKSON J
Date of judgment:	5 June 2020
Legislation:	Bankruptcy Act 1966 (Cth) s 30
Cases cited:	Frigger v Trenfield [2019] FCA 1746 Frigger v Trenfield (No 2) [2019] FCA 2009
Date of hearing:	5 June 2020
Registry:	Western Australia
Division:	General Division
National Practice Area:	Commercial and Corporations
Sub-area:	General and Personal Insolvency
Category:	No Catchwords
Number of paragraphs:	10
Counsel for the Applicants:	The applicants appeared in person
Counsel for the Respondent:	Mr SD Majteles
Solicitor for the Respondent:	Carles Solicitors