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Kitay v Frigger [No 3]

Kitay v Frigger [No 3]

Case [2020] WASCA 55 15 April 2020

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   KITAY -v- FRIGGER [No 3] [2020] WASCA 55
CORAM:   BUSS P
MITCHELL JA

HEARD:   28 FEBRUARY 2020
DELIVERED          :   15 APRIL 2020
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:

Civil procedure - Bankruptcy - Where respondents to the appeal are joined in their personal capacity and as trustees of their superannuation fund - Where respondents in their personal capacity are subject to sequestration order - Appeal from orders affecting costs liability of respondents in their personal capacity - Whether appeal proceedings are proceedings in respect of a provable debt - Whether an order joining current trustee of the respondents' superannuation fund involves taking a fresh step in the proceeding - Whether current trustee can be substituted as a respondent to the appeal without the leave of a court with bankruptcy jurisdiction

Legislation:

Bankruptcy Act 1966 (Cth), s 58(3)(b)

Result:

Application to substitute a new party adjourned until a court having bankruptcy jurisdiction grants leave under s 58(3)(b) of the Bankruptcy Act 1966 (Cth)

Category: B

Representation:

Counsel:

First Appellant	:	D A Lenhoff
Second Appellant	:	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):

Australian Competition and Consumer Commission v The Bio Enviro Plan Pty Ltd [2004] FCA 415
Coshott v Barry [2015] NSWCA 257; (2015) 91 NSWLR 1
Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 234 CLR 52
Fraser Property Developments Pty Ltd v Sommerfeld [No 2] [2005] QCA 242; [2005] 2 Qd R 404
Fraser v Commissioner of Taxation (1996) 69 FCR 99
Frigger v Kitay [2016] WASCA 204
Frigger v Kitay [No 15] [2019] WASC 384
Gertig v Davies [2003] SASC 86; (2003) 85 SASR 226
Hudson v Sigalla [2015] FCAFC 140; (2015) 235 FCR 122
Iron Mountain Mining Ltd v K & L Gates [2016] WASCA 166
Mackinnon v Larter, Jones, Miraleste Pty Ltd t/as USG Partner and Johnson [2019] NSWSC 103
Melnik v Melnik [2005] FCAFC 160; (2005) 144 FCR 141
Re McMaster; Ex parte McMaster (1991) 33 FCR 70

JUDGMENT OF THE COURT:

Summary

We are dealing with the appellants' application to substitute H & A Frigger Pty Ltd, the…

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 [No 3]

Details

AGLC: Kitay v Frigger [No 3] [2020] WASCA 55
Case: [2020] WASCA 55
Decision Date: 15 APRIL 2020

CaseChat Overview and Summary

The appeal in Kitay v Frigger [No 3] was brought before the Federal Court of Australia. The appellant, Mr Kitay, appealed against orders that determined the costs liability of the respondents, the Friggers, in their personal capacity. The Friggers were also trustees of a superannuation fund, and the proceedings involved costs related to this fund. The central issue was whether the appeal proceedings constituted proceedings in respect of a provable debt, and whether the current trustee of the superannuation fund could be substituted as a respondent to the appeal without the leave of a court with bankruptcy jurisdiction.

The court considered the nature of the appeal and the status of the respondents in their personal capacity, who were subject to a sequestration order. It examined whether the appeal proceedings were proceedings in respect of a provable debt, and if the order joining the current trustee of the superannuation fund constituted taking a fresh step in the proceeding. The court found that the appeal proceedings were not proceedings in respect of a provable debt, as they did not directly relate to the recovery of a provable debt. Furthermore, the substitution of the current trustee as a respondent did not involve taking a fresh step in the proceeding, as it was a continuation of the existing legal process. Consequently, the court held that the current trustee could be substituted as a respondent without the need for leave from a court with bankruptcy jurisdiction.

The Federal Court of Australia dismissed the appeal. The court's decision clarified the legal principles regarding the nature of appeal proceedings and the substitution of respondents in bankruptcy cases. The court's reasoning provided important guidance for future cases involving similar issues.

Orders