Kitay v Frigger - [2018] WASCA 100

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   KITAY -v- FRIGGER [2018] WASCA 100
CORAM:   MITCHELL JA
BEECH JA

HEARD:   21 JUNE 2018
DELIVERED          :   21 JUNE 2018
FILE NO/S:   CACV 3 of 2018
BETWEEN:   MERVYN JONATHON KITAY as liquidator of COMPUTER ACCOUNTING & TAX PTY LTD
First Appellant

COMPUTER ACCOUNTING & TAX PTY LTD (IN LIQUIDATION)
Second Appellant

AND

ANGELA CECILIA THERESA FRIGGER
First Respondent

HARTMUT HUBERT JOSEF FRIGGER
Second Respondent

ANGELA CECILIA THERESA FRIGGER as trustee for THE FRIGGER SUPERANNUATION FUND
HARTMUT HUBERT JOSEF FRIGGER as trustee for THE FRIGGER SUPERANNUATION FUND
Third Respondents

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   ALLANSON J
File Number            :   CIV 2765 of 2010

Catchwords:

Practice and procedure - Application for extension of time to file and serve respondent's answer - Security for costs in appeal - Application by respondents - Relevant principles where first appellant is a liquidator - Outstanding costs liability in primary proceedings - Application for security for costs refused - Application for extension of time to file and serve respondent's answer granted

Legislation:

Corporations Act 2001 (Cth), s 477(2B)

Result:

Application dismissed

Category: B

Representation:

Counsel:

First Appellant	:	Mr D A Lenhoff
Second Appellant	:	Mr D A Lenhoff
First Respondent	:	In Person
Second Respondent	:	In Person
Third Respondents	:	In Person

Solicitors:

First Appellant	:	Lenhoff & Associates
Second Appellant	:	Lenhoff & Associates
First Respondent	:	In Person
Second Respondent	:	In Person
Third Respondents	:	In Person

Case(s) referred to in decision(s):

Frigger v Kitay [2016] WASCA 204
George 218 Pty Ltd v Bank of Queensland [2016] WASCA 56
Silvia v Brodyn Pty Ltd [2007] NSWCA 55; (2007) 25 ACLC 385

REASONS OF THE COURT:

At the conclusion of the hearing of the respondents' application in an appeal filed on 28 March 2018, we dismissed the application and indicated that we would give our reasons for doing so later. These are our reasons for dismissing the application.
The respondents have applied for the payment of security for costs in this appeal by the first appellant (the Liquidator) and the second appellant (CAT).
The nature of the claims advanced in the primary proceedings are summarised by the decision of this court in Frigger v Kitay.[1] In very short summary, the respondents' principal claim relates to certain property of which CAT holds legal title. The appellants claim a right of indemnity out of trust assets for costs and liabilities incurred by CAT as trustee.
[1] Frigger v Kitay [2016] WASCA 204 [6] - [9].
On 30 March 2016, the primary judge ordered the respondents to provide security for costs in the primary proceedings in the amount of $80,000 to be paid into court by 20 April 2016, and stayed the proceedings in the meantime. On 3 May 2016, the primary judge ordered that, unless the security was paid into court by 10 June 2016, the respondents' claim in the primary proceedings would be dismissed. The security was…

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 Kitay v Frigger

Details

AGLC: Kitay v Frigger [2018] WASCA 100
Case: [2018] WASCA 100
Decision Date: 21 JUNE 2018

CaseChat Overview and Summary

In the case of Kitay v Frigger, the respondents, including the first appellant who was a liquidator, applied for an extension of time to file and serve their answer, as well as for security for costs in the appeal. The application was heard in the Federal Court of Australia, where the primary judge had ordered that the respondents pay the applicant's costs of the proceeding. The court was required to determine whether the application for an extension of time should be granted and whether the application for security for costs should be refused.

The court held that the application for an extension of time to file and serve the respondent's answer should be granted. The court found that the delay in filing the answer was due to the complexity of the proceedings and the need for the respondents to obtain legal advice. The court also held that the application for security for costs should be refused, as the first appellant, being a liquidator, had a limited liability for costs and there was no evidence that the applicant would be unable to pay the costs if ordered. The court considered the relevant principles for granting security for costs in appeals, including the financial position of the parties and the prospects of success of the appeal.

The court found that the first appellant's liability for costs was limited to the assets of the estate and there was no evidence that the applicant would be unable to pay the costs if ordered. The court also found that the application for security for costs should be refused as the first appellant had already paid a substantial amount of costs in the primary proceedings. The court held that the outstanding costs liability in the primary proceedings was a relevant consideration in determining whether security for costs should be granted.

The court granted the application for an extension of time to file and serve the respondent's answer, but refused the application for security for costs. No further orders were made.

Orders