Kitay, in the matter of Frigger

The matter involved a petition for sequestration orders against Mr and Mrs Frigger, based on their failure to comply with a bankruptcy notice, which referred to an unpaid costs order. The Court of Appeal was tasked with determining whether the orders should be made dispensing with the requirement for deponents to attend for cross-examination, and whether the court should first determine if there was a reason to go behind the costs order. The court addressed these issues and made specific orders for the hearing of preliminary issues and dispensation with compliance with Federal Court Rules 2011 (Cth) regarding the attendance of deponents for cross-examination.

The legal issues before the court were whether there was a reason to question the existence of the debt as per the order for indemnity costs made by Master Sanderson on 12 June 2014, and if not, whether a sequestration order should be made in respect of the estates of Mr and Mrs Frigger. Additionally, the court considered whether the requirement under rule 29.09 of the Federal Court Rules 2011 (Cth) that an affidavit may not be used if a person does not attend should be dispensed with in respect of the affidavits of Michelle Vivian Shephard and Mervyn Jonathan Kitay. The court also needed to decide whether the hearing on 5 June 2018 should commence not before 10.30 am, and how costs should be allocated.

The court found that there was a need to determine the questions of whether there was reason for questioning the existence of the debt, and if not, whether a sequestration order should be made. The requirement under rule 29.09 of the Federal Court Rules 2011 (Cth) that an affidavit may not be used if a person does not attend should be dispensed with in respect of the affidavits of Michelle Vivian Shephard and Mervyn Jonathan Kitay. The court ordered that the hearing on 5 June 2018 commence not before 10.30 am and that the costs of the petitioning creditor be costs in the petition, while the costs of the intervening creditors be reserved. The court also ordered that Mr and Mrs Frigger file and serve any further affidavits and submissions on which they propose to rely for the hearing on 5 June 2018, by 1 June 2018.