Frigger v Trenfield (No 6)

Case [2022] FCA 1233

FEDERAL COURT OF AUSTRALIA

Frigger v Trenfield (No 6) [2022] FCA 1233   

File number: WAD 66 of 2021
Judgment of: FEUTRILL J
Date of judgment: 17 October 2022
Catchwords: PRACTICE AND PROCEDURE – varying or setting aside interlocutory orders – application for expedited hearing – whether any expedited hearing is in the interests of justice – whether there is a substantial overlap with issues with other court proceedings – no overlap found – application for expedition refused  
Legislation:

Bankruptcy Act 1966 (Cth) s 153B

Corporations Act 2001 (Cth) ss 477(2B), 1322(4)(a)

Federal Court of Australia Act 1976 (Cth) s 37M

Federal Court Rules 2011 (Cth) r 39.05(c)

Cases cited:

Ford, In the matter of Zhong Ao Zhi Hong Investment Holding Pty Ltd (Receivers and Managers Appointed) [2021] FCA 1375

Frigger v Kitay [2019] FCA 624

Frigger v Kitay (No 2) [2020] FCA 497

Frigger v Trenfield (Annulment Proceedings)

Frigger v Trenfield (No 2) [2021] FCA 1255

Frigger v Trenfield (No 3) [2021] FCA 1471

Frigger v Trenfield (No 5) [2022] FCA 531

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

Hird v Chief Executive Officer of the Australian Sports Anti-Doping Authority [2014] FCA 1090

Kitay v Frigger [2022] WASC 284

Kitay v Frigger [2022] WASC 284 (S)

Kitay, in the matter of Frigger (No 2) [2018] FCA 1032

Keynes v Rural Directions Pty Ltd (No 4) [2011] FCA 304

Professional Administration Service Centres Pty Ltd v Commissioner of Taxation [2012] FCAFC 180; (2012) 295 ALR 52

Re Computer Accounting & Tax Pty Ltd (in liq); Ex parte Kitay [No 4] [2014] WASC 169

Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543

Division: General Division
Registry: Western Australia
National Practice Area: Commercial and Corporations
Sub-area: General and Personal Insolvency
Number of paragraphs: 50
Date of hearing: 12 October 2022  
Counsel for the Applicants: The Applicants appeared in person
Counsel for the First Respondent: Mr SD Matjeles
Solicitor for the First Respondent: Carles Solicitors
Counsel for the Second Respondent: Mr BW Ashdown
Solicitor for the Second Respondent: Herbert Smith Freehills

ORDERS

WAD 66 of 2021
BETWEEN:

ANGELA CECILIA THERESA FRIGGER

First Applicant

HARTMUT HUBERT JOSEF FRIGGER

Second Applicant

AND:

KELLY TRENFIELD

First Respondent

MERVYN JOHN KITAY

Second Respondent

ORDER MADE BY:

FEUTRILL J

DATE OF ORDER:

17 OCTOBER 2022

THE COURT ORDERS THAT:

1.The applicants’ interlocutory application dated 6 September 2022 is dismissed.

2.The costs of the application are reserved.

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


REASONS FOR JUDGMENT

FEUTRILL J:

Introduction

  1. The applicants (Mr and Mrs Frigger) made an interlocutory application dated 6 September 2022 for an order that the matter be re-allocated to another judge and listed for an expedited hearing. At the hearing of the application, Mr and Mrs Frigger clarified that the order sought was for an expedited hearing of the originating application and that it be heard by another judge if the docket judge to whom the matters is…

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Details
AGLC
Frigger v Trenfield (No 6) [2021] FCA 1375
Case
[2022] FCA 1233
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Frigger v Trenfield (No 6) involved an application for an expedited hearing of proceedings. The applicants, Mr and Mrs Frigger, sought a variation or setting aside of interlocutory orders in their ongoing dispute. The court was required to determine whether an expedited hearing was in the interests of justice and whether there was a substantial overlap with issues in other court proceedings. The Friggers argued that expediting their application would serve the interests of justice, but the court found no substantial overlap between the issues in their case and those in the other proceedings.

The court carefully considered the circumstances of the case and the potential impact of expediting the hearing. It was noted that the administration of justice did not require an expedited hearing, even if the issues were narrowed to eliminate any overlap. The court ultimately decided that expediting the hearing was not necessary and refused the application for expedition. The court also reserved the costs of the application for later determination.

The final orders of the court dismissed the applicants' interlocutory application dated 6 September 2022 and reserved the costs of the application. The applicants were required to bear the costs of their own application, highlighting the importance of demonstrating a compelling need for an expedited hearing in such matters.

Orders

Orders of the court

1. The applicants’ interlocutory application dated 6 September 2022 is dismissed.

2. The costs of the application are reserved.

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

Background

Background to the litigation

For the reasons which follow, the application for an expedited hearing is dismissed. The costs of the application will be reserved.Background To place the present application into context, it is necessary to briefly describe the background and the procedural history of these proceedings. On 11 July 2018, Colvin J made a sequestration order against the estates of each of Mr and Mrs Frigger upon petition for sequestration orders by the second respondent in this proceeding (Mr Kitay) and Computer Accounting and Tax Pty Ltd (in liq) (CAT): Kitay, in the matter of Frigger (No 2) [2018] FCA 1032 (Frigger Sequestration No 2). Mr Kitay made the petitions in his capacity as liquidator of CAT. The petition were founded on a debt in an amount of $61,000.42 assessed upon a taxation of a bill of costs by a Registrar of the Supreme Court of Western Australia. That taxation took place pursuant to an order for indemnity costs made by a Master of that court. Mr and Mrs Frigger opposed the making of sequestration orders on a number of grounds all of which were rejected by Colvin J. The order for indemnity costs was made in respect of an interlocutory application that Mr Kitay, as liquidator of CAT, had made in proceedings in the Supreme Court of Western Australia concerning the liquidation of CAT. The application was made against Mr and Mrs Frigger and the orders sought were for the delivery up of a confidential affidavit, to which Mrs Frigger had obtained access through inspection of the Supreme Court file, along with ancillary orders: Re Computer Accounting & Tax Pty Ltd (in liq); Ex parte Kitay [No 4] [2014] WASC 169. The firm, Herbert Smith Freehills, acted for Mr Kitay and CAT on that interlocutory application and on the costs assessment pursuant to the Master’s order for indemnity costs. As part of the grounds upon which they opposed the application for sequestration orders, Mr and Mrs Frigger contended that, with respect to CAT, the costs agreement with HSF was unenforceable because it had not been approved pursuant to s 477(2B) of the Corporations Act 2001 (Cth). Colvin J found that: there was a valid and enforceable costs agreement between Mr Kitay, as liquidator of CAT, and HSF; Mr Kitay was liable for HSF’s fees on that agreement; and that agreement supported the existence of the debt that was the foundation for Mr Kitay’s petition for sequestration orders: Kitay Sequestration (No 2) at [128] – [138]. As to the question of whether approval was required for Mr Kitay to enter into a costs agreement with HSF, Colvin J said (at [178] – [183]):178It is common ground that no such approval was obtained in respect of the HSF terms of engagement concerning the conduct of the proceedings relating to the Confidential Affidavit. However, s 477(2B) only applies where a liquidator enters into an agreement on behalf of the company. It does not apply to agreements made by a liquidator personally in his capacity as liquidator. It is common for liquidators to seek legal advice as to the discharge of their responsibilities as liquidator.179Therefore, in the circumstances of the present case, no such approval was required because, as I have found, the agreement was between HSF and Mr Kitay. CAT was not a party to the agreement. In accordance with common practice, Mr Kitay engaged HSF in his capacity as liquidator of CAT. As Mr Kitay had been an applicant for orders based upon the Confidential Affidavit and he had prepared the affidavit in the discharge of his responsibilities as liquidator he was entitled to bring the application for orders as to the use of the Confidential Affidavit in his capacity as liquidator.180Accordingly, liability for the costs the subject of the indemnity costs order was incurred by Mr Kitay as liquidator, not by CAT. The application that was determined by Master Sanderson was brought by Mr Kitay. Orders were made on the application of Mr Kitay. Those orders provided for an order for indemnity costs in favour of both Mr Kitay and CAT as applicants in the substantive winding-up proceedings (being the proceedings in which the interlocutory application was made for orders concerning the Confidential Affidavit).181The bill of costs was presented by both Mr Kitay and CAT as the applicants. However, the only costs claimed in the bill were costs that had been incurred by Mr Kitay. The claim to the costs in the bill did not depend upon a claim that costs had been incurred by CAT. The indemnity costs order did not apply only to costs jointly incurred by Mr Kitay and CAT. It is an order in favour of each of them. No claim is advanced by the petitioning creditors that the costs that were assessed by Registrar Boyle were incurred by CAT. They rely upon the terms of engagement agreed between Mr Kitay and HSF.182Although the petition for sequestration orders is presented by both Mr Kitay and CAT, it is sufficient if Mr Kitay demonstrates that he is a judgment creditor in respect of the costs the subject of the assessment. For reasons I have expressed elsewhere in these reasons, he has done so.183Therefore, there is no merit in this ground.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

It follows that, taking all the above matters into account, the administration of justice does not require an expedited hearing of the proceedings even if the issues are narrowed such that there is no overlap between the issues in COR 131 of 2021 and the issues in these proceedings.Conclusion The interlocutory application dated 6 September 2022 is to be dismissed with costs reserved.

Ratio Decidendi

Legal Principle Established

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