Mervyn Jonathan Kitay in his capacity as liquidator of Computer Accounting And Tax Pty Ltd (in liq) and Computer Accounting And Tax Pty Ltd (in liq) [No 12]
[2025] WASC 262
•2 JULY 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: MERVYN JONATHAN KITAY in his capacity as liquidator of COMPUTER ACCOUNTING AND TAX PTY LTD (in liq) and COMPUTER ACCOUNTING AND TAX PTY LTD (in liq) [No 12] [2025] WASC 262
CORAM: HILL J
HEARD: 8 APRIL 2025
DELIVERED : 2 JULY 2025
FILE NO/S: COR 2 of 2010
EX PARTE
MERVYN JONATHAN KITAY in his capacity as liquidator of COMPUTER ACCOUNTING AND TAX PTY LTD (in liq) and COMPUTER ACCOUNTING AND TAX PTY LTD (in liq)
Applicants
ANGELA CECILIA THERESA FRIGGER
Interested Party
Catchwords:
Practice and procedure - Whether interested party's summary judgment application in relation to notice of motion for contempt ought be dismissed - Effect of declarations made in COR 131 of 2021 - Application dismissed
Practice and procedure - Application by interested party for stay of notice of motion for contempt pending resolution of two separate Supreme Court proceedings commenced by interested party - Factors relevant to exercise of discretion - Application dismissed
Legislation:
Nil
Result:
Application for summary judgment dismissed
Application for stay dismissed
Category: B
Representation:
Counsel:
| Applicants | : | Ms O de Koning |
| Interested Party | : | In Person |
Solicitors:
| Applicants | : | Herbert Smith Freehills |
| Interested Party | : | In Person |
Cases referred to in decision:
Frigger v Professional Services of Australia Pty Ltd [No 2] [2023] WASC 246
Frigger v Professional Services of Australia Pty Ltd [No 2] [2025] WASC 238
Kitay v Frigger [No 2] [2024] WASC 113
Rayney v The State of Western Australia [2019] WASCA 23
State of Queensland v Stradford (Pseudonym) [2025] HCA 3
Sterling Pharmaceuticals Pty Ltd v The Boots Company (Australia) Pty Ltd (1992) 34 FCR 287
Stradford (A Pseudonym) v Judge Vasta [2023] FCA 1020
HILL J:
On 6 January 2025, the solicitors for the applicants requested that the notice of motion for contempt be re-listed for directions. On 28 January 2025, the applicants filed a minute of proposed orders seeking:
(a)the filing of a response to a notice to produce dated 8 March 2021;
(b)the service of a re-amended reply to the substituted amended notice of contempt dated 23 December 2021; and
(c)the dismissal of a summary judgment application filed by Mrs Frigger on 22 June 2021.
The notice of motion for contempt was listed for directions on 19 February 2025. At the request of Mrs Frigger, the directions hearing was adjourned until 26 March 2025.
On 24 March 2025, Mrs Frigger filed an application seeking orders for a stay of the notice of motion for contempt pending the final determination (including any appeal) of Mrs Frigger's applications in two separate proceedings, being CIV 1613 of 2023 and CIV 1986 of 2023 (Supreme Court Proceedings).
On 26 March 2026, orders were made programming Mrs Frigger's application, as well as the proposed orders in 1(a) and 1(c), to a hearing on 8 April 2025.
On 2 April 2025, the applicants advised that they no longer sought an order for the filing of a response to the notice to produce. Accordingly, there are only two issues that are required to be determined. First, whether the notice of motion for contempt should be stayed pending resolution of the Supreme Court Proceedings. Second, whether Mrs Frigger's application for summary judgment ought be dismissed.
For the reasons that follow, I consider that:
(a)the application for a stay of the notice of motion for contempt until the final determination of the Supreme Court Proceedings should be dismissed; and
(b)in light of the declarations made in COR 131 of 2021, Mrs Frigger's application for summary judgment should also be dismissed.
Should the notice of motion for contempt be stayed?
Mrs Frigger seeks an order staying the notice of motion for contempt until after the resolution of two separate proceedings, CIV 1613 of 2023 and CIV 1986 of 2023 (Supreme Court Proceedings). CIV 1613 of 2023 was commenced by Mrs Frigger against Professional Services of Australia Pty Ltd (PSA) and CIV 1986 of 2023 was commenced by Mrs Frigger and her husband against PSA, its sole director and shareholder, and various legal practitioners who have acted for PSA over the years.
The basis for the application for a stay is Mrs Frigger's contention in the Supreme Court Proceedings that PSA was not validly incorporated as a company and did not have any directors or shareholders who could give instructions to PSA to seek the winding up of Computer Accounting and Tax Pty Ltd (in liq) (CAT). If the Supreme Court Proceedings are resolved in her favour, either the applicants would not have standing to bring the notice of motion (in the case of Mr Kitay) or would not do so (in the case of CAT). On this basis, Mrs Frigger submits that the resolution of the Supreme Court Proceedings will 'conclusively determine the validity (or otherwise) of CAT's liquidation' and that a stay is in the interests of justice.
There is no dispute that the court has the power to grant an interim stay of proceedings, with or without conditions, where it is contended that there are pending related proceedings. The court will take various matters into account in deciding whether to grant a temporary stay, including:[1]
[1] Rayney v The State of Western Australia [2019] WASCA 23 [48]; see also Frigger v Professional Services of Australia Pty Ltd [No 2] [2023] WASC 246 [33] citing with approval Lockhart J in Sterling Pharmaceuticals Pty Ltd v The Boots Company (Australia) Pty Ltd (1992) 34 FCR 287, 291.
(a)which proceedings were commenced first;
(b)whether the finalisation or termination of one proceeding is likely to have a material effect on the other proceedings;
(c)the public interest;
(d)the undesirability of two courts competing to see which can determine common facts first;
(e)consideration of the circumstances of any witnesses;
(f)whether work on pleadings, particulars, and other pre-trial steps may be wasted;
(g)the undesirability of the substantial waste of time, effort and costs if the practice of bringing actions in two courts involving substantially the same issues becomes common;
(h)how far each proceeding has progressed;
(i)that the law should strive against allowing a multiplicity of proceedings in relation to similar issues; and
(j)balancing the advantages and disadvantages to each party.
Given these factors, it is necessary to briefly describe the nature of each of the Supreme Court Proceedings and the issues raised in them.
CIV 1613 of 2023: Frigger v Professional Services of Australia Pty Ltd
On 10 June 2023, Mrs Frigger filed a writ of summons against PSA. A statement of claim was filed on 16 June 2023, which pleads that the orders made in these proceedings for the appointment of a provisional liquidator and to wind up CAT were obtained by fraud and should be set aside.
There are two separate factual grounds on which this pleading is advanced. The first relates to signatures on a document dated 5 June 1998 and entitled 'Memorandum & Articles of Association of Liberty Oil (Australia) Pty Ltd' (the previous name for PSA), which she says were forged. The second disputes the validity of any transfers of shares to Donald Campbell-Smith and Sandra May Banning.
Mrs Frigger says that PSA never came into existence as an incorporated company, and that instructions for PSA to serve a statutory demand that ultimately caused the winding up of CAT in insolvency, and to commence COR 2 of 2010, were not given by a properly appointed director. She says that these steps were either taken by a non-existent company or were not authorised by validly appointed directors.
CIV 1986 of 2023: Frigger & Frigger v Professional Services of Australia Pty Ltd & Ors
On 23 August 2023, Mr and Mrs Frigger filed a writ of summons indorsed with a statement of claim. In these proceedings, Mr and Mrs Frigger's claim also arises from the contention that a person or persons failed to subscribe their names to a memorandum for PSA. As a result, they say that:
(a)PSA was not formed as an incorporated company;
(b)because PSA never came into existence, all of the actions commenced in this court by PSA against Mr and Mrs Frigger, and CAT are nullities; and
(c)the fourth to sixth defendants, as agents for PSA, are jointly and severally liable to Mr and Mrs Frigger.
Mr and Mrs Frigger seek orders setting aside orders made in CIV 1309 of 2021 and CACV 55 of 2022, as well as damages (including compensatory damages and exemplary damages).
Is there a proper basis on which the stay should be granted?
In my view, there is a fundamental issue with Mrs Frigger's application for an interim stay.
At the hearing, Mrs Frigger submitted that 'Mr Kitay's status as the liquidator of [CAT] is yet to be decided' and that if the orders appointing him as liquidator were set aside, he would have no standing to continue with this application. The primary difficulty with this submission is that at present, there is an order of a superior court appointing Mr Kitay as liquidator of CAT. As was noted by the High Court in State of Queensland v Stradford (Pseudonym):[2]
[A]n order of a superior court is valid unless and until set aside including where the order is made without jurisdiction, such as where the order of the superior court was based on a statute that was unconstitutional.
[2] State of Queensland v Stradford (Pseudonym) [2025] HCA 3 [53].
Relevantly, this has two consequences. First, until any order for the appointment of Mr Kitay as liquidator of CAT is set aside, he has been validly appointed. Second, as a validly appointed liquidator, he has standing to pursue this application.
None of the other factors that the court considers on an application for a stay favour the grant of a stay. The notice of motion for contempt was filed on 9 October 2019, almost four years prior to the commencement of the Supreme Court Proceedings. The public interest, in my view, supports the notice of motion being heard and determined as soon as practicable. There are no common facts to be decided nor will there be any impact on witnesses. The work required to prepare each matter is separate and, in my view, will not be wasted or duplicated. In addition, this application has not been brought promptly after the filing of the Supreme Court Proceedings, and instead was filed in response to the applicants' request that the notice of motion for contempt be relisted for directions.
In my view, none of the matters raised by Mrs Frigger support an interim stay being granted. On this basis, the application for a stay of the notice of motion for contempt will be dismissed.
Should Mrs Frigger's application for summary judgment be dismissed?
On 22 June 2021, Mrs Frigger filed an application to summarily dismiss the motion for contempt together with an affidavit, which set out the grounds for the application. The grounds for the application were that:
(a)Mr Kitay required approval pursuant to s 477(2B) of the Corporations Act 2001 (Cth) to enter into costs agreements with his solicitors dated 8 February 2010 and 29 October 2013;
(b)as approval had not been obtained, the interlocutory processes on which the orders underpinning the notice of motion for contempt were made are nullities; and
(c)the applicants' solicitors did not have authority to file the notice of motion for contempt and it is a nullity.
The applicants say that the question as to the validity of the retention of their solicitors was finally determined by the court in COR 131 of 2021[3] and that the orders and declarations made by the court in those proceedings are a complete answer to this application. On this basis, they say that the application for summary judgment should be dismissed.
[3] Kitay v Frigger [No 2] [2024] WASC 113.
Mrs Frigger does not accept that her application for summary judgment should be dismissed. The basis for her position is that at the time reasons were delivered in COR 131 of 2021, being 10 April 2024, the court had reserved its decisions on two applications made by Mrs Frigger in the Supreme Court Proceedings. Mrs Frigger says that:
(a)if orders are made in terms of her applications, the appointment of Mr Kitay as liquidator of CAT will 'fall away' and be 'null and void ab initio';[4]
(b)even if summary judgment had not been delivered at the time reasons were delivered in COR 131 of 2021, it ought to have been;
(c)if summary judgment occurs, the court will have a 'statutory duty' to dismiss COR 131 of 2021; and
(d)as a consequence, the declarations made in COR 131 of 2021 were beyond jurisdiction, constitute jurisdictional error and are void ab initio.
[4] Submissions filed 7 April 2025 [2.1].
In support of these submissions, Mrs Frigger relied on the decision of Wigney J at first instance in Stradford (A Pseudonym) v Judge Vasta.[5]
[5] Stradford (A Pseudonym) v Judge Vasta [2023] FCA 1020.
There are two primary issues with Mrs Frigger's contentions.
First, under the principles set out above at [17], all orders of this court are valid unless and until set aside. For this reason, even if it could be said that the declarations made in COR 131 of 2021 were affected by jurisdictional error (which I do not accept is the case), these orders have not been set aside nor are the subject of appeal. These orders bind all parties to those proceedings, which include the parties to the notice of motion for contempt. Given the orders made by the court in COR 131 of 2021, there is no basis on which it can be contended that the solicitors for Mr Kitay were not authorised to file the notice of motion for contempt.
Second, summary judgment has not been granted.[6] The appointment of Mr Kitay has not fallen away nor been rendered void ab initio. As liquidator of CAT, he had the authority to instruct solicitors to file the notice of motion and his solicitors had the requisite authority to file it.
[6] Frigger v Professional Services of Australia Pty Ltd [No 2] [2025] WASC 238.
For these reasons, it is my view that Mrs Frigger's application for summary judgment cannot be maintained. As a consequence, the application must be dismissed.
Conclusion and Orders
For these reasons, Mrs Frigger's application for summary judgment and a stay of proceedings will be dismissed. My preliminary view is that costs should follow the event, namely that Mrs Frigger should pay the applicants' costs of both applications to be taxed if not agreed. However, before making any formal orders I will hear from the parties.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KS
Associate to the Hon Justice Hill
2 JULY 2025
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