FEDERAL COURT OF AUSTRALIA
Kitay (Liquidator) v Trenfield (Trustee) [2021] FCA 508
File number: WAD 40 of 2021 Judgment of: JACKSON J Date of judgment: 6 May 2021 Date of publication of reasons: 13 May 2021 Catchwords: BANKRUPTCY AND INSOLVENCY - application for leave under s 58(3) of the Bankruptcy Act 1966 (Cth) to continue Supreme Court proceedings - provable claims linked with other claims - complex facts and law - leave granted Legislation: Bankruptcy Act 1966 (Cth) ss 58, 60, 82, 104 Cases cited: 7Steel Building Solutions Pty Ltd v Wright [2011] FCA 328
Ashala v Featherstone [2016] QSC 121; [2017] 2 Qd R 1
Auto Group Ltd v England [2008] NSWSC 402
Commissioner of Taxation v Yeo (Trustee) [2018] FCA 635
Commissioner of Taxation v Yeo (Trustee) (No 2) [2019] FCA 1188
Cummings v Claremont Petroleum NL (1996) 185 CLR 124
Fraser v Deputy Commissioner of Taxation (1996) 69 FCR 99
Frigger v Kitay (Liquidator) [2020] FCA 482
Health Services Union v Jackson (No 3) [2015] FCA 694
Hudson v Sigalla [2015] FCAFC 140; (2015) 235 FCR 122
Kattirtzis v Zaravinos [2001] FCA 1158
Mango Media Pty Ltd v Velingos [2008] NSWSC 202; (2008) 216 FLR 176
Melnik v Melnik [2005] FCAFC 160; (2005) 144 FCR 141
Mercedes Holdings Pty Ltd v Waters (No 5) [2011] FCA 1428
Otvosi v Ferella [2008] FMCA 1250; (2008) 219 FLR 472
Pedersen v Delaveris [2010] FCA 536
Re McMaster; Ex parte McMaster (1991) 33 FCR 70
Re Rose; Ex parte Devaban Pty Ltd [1994] FCA 1082
Re Sharp; Ex parte Tietyens Investments Pty Ltd (in liq) [1998] FCA 1367
SBA Music Pty Ltd v Hall (No 2) [2014] FCA 1116
Taylor (liquidator) v Trustee, bankrupt estate of Heading, in the matter of Heading [2020] FCA 1450
Van Dyke v Lo Pilato, in the matter of Sidhu [2016] FCA 1347
Westpac Banking Corporation v Victor Warren Ollis [2007] FCA 1194
Division: General Division Registry: Western Australia National Practice Area: Commercial and Corporations Sub-area: General and Personal Insolvency Number of paragraphs: 29 Date of hearing: 6 May 2021 Counsel for the Applicants: Mr BW Ashdown Solicitor for the Applicants: Lenhoff & Hotz Counsel for the First and Second Respondents: The first and second respondents filed submitting notices Counsel for the Third Respondent: The third respondent appeared in person Counsel for the Fourth Respondent: The fourth respondent did not appear ORDERS
WAD 40 of 2021 BETWEEN: MERVYN JONATHAN KITAY IN HIS CAPACITY AS LIQUIDATOR OF COMPUTER ACCOUNTING & TAX PTY LTD (ACN 009 470 490) (IN LIQ)
First Applicant
COMPUTER ACCOUNTING & TAX PTY LTD (ACN 009 470 490) (IN LIQ)
Second Applicant
AND: KELLY-ANNE TRENFIELD AS TRUSTEE OF THE PROPERTY OF ANGELA CECILIA THERESA FRIGGER, A BANKRUPT
First Respondent
KELLY-ANNE TRENFIELD AS TRUSTEE OF THE PROPERTY OF HARTMUT HUBERT JOSEF FRIGGER, A BANKRUPT
Second Respondent
ANGELA CECILIA THERESA FRIGGER, A…
Continue reading Kitay (Liquidator) v Trenfield (Trustee)
Sign in free to access the full text
- AGLC
- Kitay (Liquidator) v Trenfield (Trustee) [2021] FCA 508
- Case
- [2021] FCA 508
- Decision Date
CaseChat Overview and Summary
The court examined the complexity of the facts and the legal issues involved in the case. Given the protracted nature of the Supreme Court proceedings, the court recognised that further delays or permanent stays could result in significant waste of time and increased costs. Additionally, the uncertainty regarding the provability of other claims could further exacerbate these costs if leave was not granted. The court concluded that it was appropriate to exercise its discretion in favour of granting the applicants leave to proceed with the counterclaim, as necessary, under section 58(3) of the Bankruptcy Act.
The Federal Court granted the application, allowing CAT and Mr Kitay to take all necessary steps to continue the prosecution of the counterclaim in the Supreme Court proceedings, including any interlocutory applications. The court ordered that the costs of the application be jointly and severally paid by the bankrupt estates of Angela Cecilia Theresa Frigger and Hartmut Hubert Josef Frigger and assessed accordingly. This decision ensures that the applicants can proceed with their counterclaim without unnecessary delays, while also considering the financial implications for the involved parties.
Orders
Orders of the court
1. If and to the extent that leave is necessary under s 58(3) of the Bankruptcy Act 1966 (Cth), the applicants have leave to take all and any further steps in connection with the prosecution of the counterclaim in Supreme Court of Western Australia proceedings CIV 2765 of 2010, and all or any interlocutory applications and steps, including as against the bankrupt estates of Angela Cecilia Theresa Frigger and Hartmut Hubert Josef Frigger.
2. The applicants' costs of this application are costs, jointly and severally, in and are to be paid from the bankrupt estates of Angela Cecilia Theresa Frigger and Hartmut Hubert Josef Frigger and are to be assessed.
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
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.