Ahmed v Russell Kennedy

Ahmed v Russell Kennedy - [2015] WADC 21 - WADC 2015 case summary — Zoe

[116]

So that once those properties had been transferred on those dates, 1 July 2007 and 1 July 2008, respectively, they were not available to pay the debts of CAT from that time on, correct?---Well, they transferred - the land transfer forms were those dates which you've just said. The actual transfer in the books between the company and the Frigger Super Fund happened later.

All right?---But you're right, they were not available and I never, ever pleaded or submitted or swore that they were available to pay the disputed amount under the DOCA.

When you say they weren't available to pay - - -?---They were never - well, they were never - well, they were never available to paid(?) if the - those amounts ever had to be paid. So when the - when the Court of Appeal reduced the judgment sum, then there was a statutory demand made, et cetera, they were not available to pay the - that - that - those amounts, if - if, in fact, those amounts had to be paid.

And that was your view as at 1 July 2008?---No.

Well, you said that it was transferred on the 1st - they were both transferred by 1 July 2008 and - - -?---No, I just said that they were transferred later on between the books of the company and the books of the Frigger Super Fund. Later. You know, I'm the accountant. I do all of those transactions. I know when they were transferred. I was referring to transfer documents dated - in - in this affidavit I'm referring to transfer documents.

No. The affidavit doesn't refer to transfer documents - - -?---Well, the - - -

- - - does it?---It - - -

It says - - -?---Mm.

- - - that on - for example, paragraph 13 - on July 2007, ownership of the Edward Street property was transferred to Frigger Super Fund?---Yep. There is a difference - and - and this is as - as from an accounting point of view, there is a difference when a land transfer document is executed and when the - like a settlement is done later on, the - the amount is transferred from one set of books to another.

Well, in the - - -?---So the bottom line is that from the 1st of July 2007, the transfer was done but the - the - sorry - the transfer document was executed but the actual transfer took place much later.

And from the - - -?---And I - I - to be honest, I can't remember the exact date but it was - - -

And from the 1st - - -?--- - - - 2009, I - I believe.

From 1 July 2007, you did not regard the Edward Street property as available to meet the debts of that?---No, that's wrong.

And - - -?---That's completely wrong.

[172]

HERRON DCJ: Well, Mr Quinlan has said - - -

COOK, MR: There are other parts not in the book.

HERRON DCJ: - - - the affidavit of 23 September 2008 is fully reproduced in the appeal books, the affidavit of 27 June 2010 is incomplete and the affidavit of 12 October 2010 is missing pages 1 and 2. It just seems to me, and this what I'm seeking clarification about, if Mrs Frigger was able to comply with the orders of Judge Derrick by providing those parts of the affidavits, it'd be unusual if she doesn't have the full affidavits.

COOK, MR: Well, it is odd because my - I have to admit it's odd because the affidavit of 22 June that Judge Derrick said had to be provided was paragraphs 1 to 41 and any annexures referred to in those paragraphs and, apparently, the annexures would be in the missing pages of 786 to - 69 missing page that my learned friend has talked about.

...

COOK, MR: Thank you, your Honour. I've received instructions. These green books were provided to us from Mr Britten-Jones, a barrister we had appearing for us who's an Adelaide barrister. My instructions are that the documents in 60.2 and 60.3 were provided in full pursuant to the order of Judge Derrick.

My problem is, and I've explained to the client, that my learned friend has said that, for example, the annexures to the affidavit of 22 June 2010 aren't in the green books and where did she get the - I've asked my client where she got the annexures from and she said, "Well, if they're not there now I don't know where they were" or words to that effect, "I'm happy to go and give evidence in the witness box if you want me to explain".

But it would appear that, for some reason, my client believes that she has complied with order 2, but if asked where are the annexures that aren't provided today she doesn't know.

HERRON DCJ: And in relation to the affidavit of 12 October, which is missing pages 1 and 2?

COOK, MR: Well, again, she - all she has is what is - she believes she has is what she's got there. That's all she has said she had in her office, were those documents there, and she doesn't know how there's a discrepancy.

...

UNIDENTIFIED SPEAKER: To give me instructions - - -

COOK, MR: Look, let me just - - -

HERRON DCJ: - - - those affidavits are sworn and I'm told that pages 1 and 2 of that affidavit are missing, so they need to be produced.

COOK, MR: Yes.

...

QUINLAN, MR: Now, the court matter numbers are these. 23 September 2008 was filed in CACV 76 of 2008 and both the affidavits of 22 June 2010 and 12 October 2010 were sworn in CIV 2265 of 2006.

...

[192]

QUINLAN, MR: Mrs Frigger, can I ask you to go to page 1,507 of that book?---Yep, I've got it open. Sorry. Seven. Seven, yep. No notice of acting in person.

Yes. Do you recognise that? And down the bottom you will see there's a fax print from H and A Frigger?---Mm.

Recording it as a facsimile transmission on 6 May. This is the facsimile that you sent to the defendant's solicitors, following the application for discovery before his Honour Judge Derrick, correct?---Yes.

Yes. And you will see that that runs to some - the facsimile, itself, runs to some 66 pages. Do you see that?---It - where - where it's got that facsimile thing on the bottom, you mean? Yep.

The last page is 1,625 of the book?---Yep. Yep. That's - that's fine.

And over the page, on page 1,508, there's a copy of the affidavit of discovery that you swore on 15 April 2014?---Mm hmm.

And on page 1,511, you swore, as part of the list of the documents, documents 165 through to 167, being the affidavit in each of those proceedings in the paragraphs and annexures that are referred to, correct?---Well, that's what it says in the - in the document. Yes.

Well, did you do it or not?---Absolutely, I - I swore this affidavit. Is that your question?

That was my question?---Yes, I swore this affidavit. I prepared the affidavit and I swore it. Is there any other questions about that?

So at that time you said that you had custody of the document which is now lost?---No. Just read it, please. It says copy and then it says the affidavit and the paragraphs and the annexures which Judge Derrick had asked me to discover, which form part of the green appeal book which I had got back from my barrister in Melbourne. That's what I was referring to.

So, for example, go to page 1,528?---Yep.

And that is a copy of the cover sheet of an affidavit sworn by you on 10 October 2010, correct?---Twelfth, actually.

Sorry, 12 October 2010?---Mm.

Correct?---Mm hmm.

Just stay on that page, Mrs Frigger?---Yep.

So you faxed that to the defendant's solicitors on 6 May?---I did.

Where did you get it from?---Well, if you look at the document itself - - -

Will you answer my question?---Well, I've already said where I got it from. I got it from the green appeal book which I got back from my barrister who was in Adelaide and which I brought to court. That's where I got it from.

Could the witness be shown that green appeal book, your Honour? Volume 3 that she provided to the court on 19 September this year.

THE WITNESS: Thank you.

QUINLAN, MR: Is that what you are saying you got it from?---Yes.

Okay. Can you find the page that I've just referred you to in that book, please?---Four twenty-one.

Yes?---Yes, I've found it.

Can you show me?---You want me to show you?

Can I just see it?---Okay.

Mrs Frigger, have you had these documents - did you take custody of these documents after they were provided to the court?---Yes. I - I - I went to a - an - level 9, like I - we had been instructed. Each party was allowed to take the documents from the court and make copies and bring them back. So I actually came here on a Friday and Judge - his Honour and his associate was not in Perth at the time but I spoke to the receptionist and I believe the receptionist called the associate and got permission for me to - to take them and - and do what I - I did.

And how long did you keep them for?---I can't remember. I think I only brought them back last Friday. Is that right? Let me - can I - may I ask? I can't remember the date but I - I returned it to the court.

Were you actually told not to leave the precincts of the court with them?---No, I wasn't told that.

And Mrs Frigger, did you change the documents when - did you - when you gave the documents back, had you done anything with them?---No.

Well, just have a look at that again, very carefully?---Why would I do anything with them? What a joke.

I - - -?---Anyway - - -

- - - asked you to - - -?---I'm sorry. I'm sorry. I - I - I am sorry. I - I - - -

I asked you to find - - -?---I found it. I found it.

- - - page 421?---Yes. And there is it.

And Mrs Frigger - - -?---Yes.

- - - between the time you took that from the custody of the court - - -?---Mm hmm.

- - - and when you brought it back - - -?---Mm hmm.

- - - you've inserted that page in there, haven't you?---No. I had actually pulled them out so that I could actually fax it to your office and I just put them back loosely because I don't have one of these machines to - that - that can bound it. So all - all I did was put them back. That's all I did. I - like I had given it to - to his Honour. That's all I did.

It's not true, is it, Mrs Frigger?---Well, you can say anything you like. That's what I took out of the court and what I've brought back to the court.

When you took it from the court, the copy that had been provided to the court did not have page 1 of that affidavit in it, did it?---Well, what, you think I just, you know, manufactured it out of the air? Is that what you think? Is that what you're implying? Because I didn't.

No. What - - -?---This - actually, I'll tell you what it - this was actually - you know where it was, it was inserted into the back of the file like that.

Mrs - - -?---Yes.

Mrs Frigger - - -?---That's where I found it. And so all I've done is I put - I've reassembled it into the right page order. That's all I have done.

Really?---Yep.

You haven't - - -?---Really.

Did you go to the - didn't you go to the defendant's supplementary bundles, get a copy of that page and insert it in?---No.

So are you saying that that copy - - -?---Yes.

- - - of page 421 - you're shaking your head, Mrs Frigger but just answer my question. Are you saying that that copy of page 421 of the appeal book - - -?---Mm hmm.

- - - is the page, the actual page, that was - - -?---Faxed to you?

Yes?---Yes. Exactly. Exactly what I am saying.

That's exactly what you're saying?---Exactly.

Give me another look at it?---Have a look.

COOK, MR: I wonder could I have a look at this at some stage, too, your Honour?

QUINLAN, MR: Yes, I'll give it to my friend.

Mrs Frigger, go to that page again?---Which one?

The one that we've been - - -?---The green book?

- - - looking at?---The green book or this one?

In the green book?---In the green book. Yep. Yep, 421. I've got it open.

Do you swear on your oath that the copy that is in front of you, in what you've identified as the green book - - -?---Mm hmm.

- - - is the copy that has always been in the green book and is the copy that was faxed on 6 May 2014?---I do swear that, yep. I do swear that.

And that you have not obtained that page from somewhere else and inserted it in the green book?---Absolutely not. I know that I cut all these pages off so that it would go through the fax machine and I know that I had pulled them out because Judge Derrick had only asked me to - to discover certain pages. And when I got it from the court I - I - if I remember rightly they were at the back of that and I just pulled them out and I put them into the correct order. That's all.

And Mrs Frigger - - -?---Yep.

- - - you can't then explain why a facsimile imprint actually appears on the bottom of that page?---No, I can't.

Look in the top right-hand corner, Mrs Frigger, of that page?---Yep.

Do you see it has the numbers 1457?---Yep, I do.

You know where that number comes from, don't you?---I have no idea. I have no idea where that comes from.

It comes from the defendant's second supplementary book of documents, doesn't it?---I - well - - -

Listen to me?---No, just - just let me think. Let me - let me just - so you - when you took this copy away you put the copies back in the book, did you?

Oh, Mrs Frigger.

HERRON DCJ: Mrs - Mrs Frigger, ?---Because - because this is the only place I found them. Sorry. This is - I found them in - sorry.

Mrs Frigger?---Yes, I'm sorry, your Honour.

Please listen to Mr Quinlan's question?---Okay.

QUINLAN, MR: Mrs Frigger, you have just sworn on your oath - - -?---Yep.

- - - that the document that is in front of you is the document that you have had since 6 May - - -?---No, I said this is the book that I got from the court. I took it home. These loose pages were at the back of the book. I pulled them out and I put them - reassembled them into the right page order. That's what I said. And they are the same copies that I faxed on 6 May to the - to you. They're exactly the same page. I haven't had any other copies of these documents other than what I got from this green appeal book.

How did the number get in the top corner then, Mrs Frigger?---Well, I - I think this is what has happened, that you have put copies of them into the back of the file because I certainly didn't extract pages from your defendant's book and put it in there.

Yes you did, Mrs Frigger, didn't you?---I did not.

That's exactly what you did and you've been - - -?---That's exactly not what I haven't done.

You have been - you - - -?---Well, you know, I tell you how to prove it. Go and have a look at the - at your - your books that you've given me. Go on, have a look at them.

The books that I've given you?---Well, you're saying that I've taken these out of your supplementary books and put them into this appeal book document. And I say, well, check our copies to - to prove the point. I haven't put anything out of our - our supplementary books.

You photocopied it?---I have not. If I photocopied it, how come they've got all these - all these - you know, this - this stuff here?

Ask them - pass those loose pages to me again?---If I photocopied it, it would have been a clean page here, clean - clean edge.

You've been caught out, haven't you, Mrs Frigger?---No, I think you've been caught out.

You have taken the documents from the custody of the court personally, not provided them to your solicitor and you have altered them, haven't you?---No, I haven't.

Because it's the case, isn't it - - -

HERRON DCJ: Can - can I - can I just clarify that question because there were two aspects of it? Mr Quinlan asked you, you've taken the two green appeal books from the custody of the court?---I did, your Honour, yes.

He then asked, you've not provided them to your solicitor. Did you provide them to your solicitor?---I did not, no.

And then the next question was, you've kept them in your custody?--- I have kept them all - all along, yes. I - I'll just clarify that, your Honour. At one stage I think it was Ms Moss who spoke to Mr Griffin and asked if she could inspect these green appeal books and I - I believe it was on one of those days where Mr Griffin was not in his office so I didn't take them into the court - into Mr Griffin's office. And then we appeared before you on the last directions hearing and you raised a concern that these - these appeal books had not been brought back to the court and I gave an undertaking that I would, and that's all I did, was I brought them back with - together with the - the - a supplementary books of the plaintiff's documents which I've also brought in at the same time.

QUINLAN, MR: Mrs Frigger, you were in court on the day that those green appeal books were produced, weren't you, on the 19th - - -?--- I produced them.

Just - just listen to me. You were in court on 19 September when I and my learned friend were addressing his Honour in relation to what had been provided to the court in those appeal books?---Correct.

And you heard me say in court that:

The appeal books contain part of the -

- this is at page 683 of the transcript. You heard me say they -

- contain part of the affidavit sworn on 12 October 2010. That is, the pages which are missing appear to be pages 1 and 2 of that affidavit.?---Correct. Well, I can't remember what you were saying but I knew - I know that you were saying that there were certain pages that were missing and you were not happy with that, et cetera, et cetera, because - - -

And - and you - - -?---Because those were the pages I believe that I was not required to discover.

And is that why you say they were missing, because those were - - -?---No, no, no, no, no, I - no, sorry.

- - - the pages you were not required to discover?---No, I'm sorry. There were two issues then on 19 September, as I recall. One was that I had only been asked to discover certain parts of certain affidavits and because I couldn't identify those parts that appeared in one of your books of documents you asked his Honour to make an order that I discover the entire affidavits, and the only copies of the entire affidavits I had were from these green appeal books. So the next day I brought the whole appeal book in with me. That's exactly what I did.

And you heard me say that the affidavit of 12 October 2010 had pages 1 and 2 missing?---Yep.

And after that - - -?---You mean they were missing from the appeal book?

Yes?---Okay. Yep.

Well, that's what I said in court. You were in court when I said it?---Well, I don't remember everything that you say in court, so are you asking me if I remember that or are you asking me if you actually said it? What's your question?

I identified that there were pages missing in the affidavit in court?---Okay. If you say that, you know, I'm not going to argue with you because I can't remember everything that you said.

Well, you remember that, don't you?---No. All I remember was that you were not happy that the whole affidavit had not been discovered because Judge Derrick had only asked me to discover certain documents and I was not able to verify, of the pages that you were asking me about, which affidavit belonged to - which pages belonged to which affidavit. That was the issue as far as I remember.

On the next day, when you produced the appeal books - - -?---Yes.

- - - I made submissions that there were pages missing from the affidavits in the appeal books. That's why there was another order made on that day?---Yep.

Yes?---Well - - -

And you - - -?---Because I - well, as I understood - look, I'm not a lawyer. As I understood it, because I couldn't identify the pages you were asking me about as to which affidavit it belonged, his Honour said I should bring the whole affidavit in. That's how I understood it. Maybe I'm wrong.

And after I had identified that there were pages missing you came and took the affidavit from the custody of the court, and over a week later you brought it back?---Yes.

And the pages that I had identified that were missing were now in the appeal book?---Yep.

And they had on them numbers in the top right-hand corner that showed that they had actually come from documents filed by the defendants?---Yep.

And you did that, didn't you?---No, I didn't. As I said, I got the appeal books - I didn't even make photocopies of the appeal books, by the way.

Your Honour - - -?---I haven't made copies of them for anybody. I simply brought them back to the court and gave them back to his Honour's office.

(ts 740 - 748)

[231]

Again, Mrs Frigger, at page 663 of the transcript you're again asked this question:

And all of the annexures to the affidavit prepared by Clavey Legal for you which you swore on 3 March 2010. All of the documents were documents that had been provided by you to Clavey Legal.

And your answer was:

But I am saying that that version of the DOCA was not what I provided to Mr Clavey because I was never given this version because there had been a material change and it was actually hidden from me.

?---It was.

Because it materially affected the arguments that I was making in relation to the DOCA.

?---Exactly. That's the point I just made.

Mrs Frigger, that answer was a statement that you had - - -?---Yes.

- - - not provided it to Mr Clavey?---Exactly, and at the time when you asked me the question I didn't remember providing it to Mr Clavey.

And when I asked you:

How did it get to be an annexure to your affidavit if you didn't supply it?

Your answer was:

Well, you know, the defendant has provided this book of documents. I didn't have anything to do with this book of documents so I don't know how it's come to be in this book of documents that's been filed in the court. But all I know is that this particular version of the DOCA was never given to me.

?---Correct.

And the suggestion you were trying to make there was that somehow in preparation of the book of documents a different DOCA had been inserted to the one that was actually in your affidavit?---Well, that's the impression that you have got.

That's exactly what you were saying, wasn't it?---And - and that is exactly my recollection of what had happened in the retainer.

You would prefer to give evidence to suggest - you are prepared to give evidence to suggest that the defendant, in providing that book of documents, provided an incorrect copy of the affidavit, that accept the possibility that you might be wrong and that, in fact, that DOCA was the DOCA you provided to Mr Clavey, correct?---No, I - you - you need to split that question up into smaller parts. What exactly are you trying to - ask me your question again, please, because - - -

HERRON DCJ: It is a long question, Mr Quinlan.

QUINLAN, MR: I will. On the last occasion you would not accept that the document that appears at page 831 in volume 3 was the document attached to your affidavit?---I would not accept it because I thought it should not have been attached.

And when you were asked to explain how it appeared as an annexure to your affidavit - - -?---Yep.

- - - your suggestion in the passage I just took you to was to imply that the defendant had changed it when they put the document books together?---Well - and that - that's the only answer I could give - - -

Yes?---because at the time - - -

So - - -?---I still say - say I finish my question or you just want to ask me questions?

Asking - you wanted me to ask you the questions one piece at a time?---All right. So ask me the second question.

So the only answer you gave at the time was, "The defendant must have done something to the documents when they were compiling their book of documents"?---No, I didn't say that. I didn't say that. I said that this particular book of documents has been complied - compiled by the defendants and I don't know how that DOCA got into the - into this book because I had nothing to do with it. Overall my answer is that particular version of the - the DOCA should not have been in my affidavit. That is the - that is the bottom line of the - the evidence that I gave and I still do - and I still stick by that.

And the question that I asked you was, you were prepared, sitting in the witness box, to imply that the defendants, in putting the book of documents together, had included a different version of the DOCA than that which appeared in your affidavit?---Absolutely, and the reason for that is - - -

Just - just - - -?---You asked me to - if I implied it and I'm agreeing with you. I did imply it.

You - you - - -?---I did imply it.

Yes?---I've answered your question.

And my proposition to you is that you are prepared to make such an allegation rather than accept the obvious point that you were wrong about it appearing in your affidavit?---No, I don't - I don't agree with that.

And, Mrs Frigger, you were wrong about it appearing in your affidavit, weren't you?---Well, I was wrong that it was attached to my affidavit but I'm not wrong in saying that it should not have been attached to my affidavit.

[246]

You spoke to Sarah on the phone, on the 26th, on the Friday?---I don't remember any phone conversation to Sarah.

And you were irate that it wasn't being completed that day and you couldn't understand why it would take until Tuesday. And she told you that it was a public holiday on the Monday?---Right. I don't remember that conversation. But even if I did tell her that, if I had repeated to her what I put in my email, I never got irate with Ms Richards. She - I found her to be a really nice person and I could see that she was doing her best to help me.

And in relation to the - there was an affidavit of Mr Lenhoff that was asked for. Do you remember saying to her that his firm is a bunch of liars and that Mr Lenhoff is the biggest liar?---No, I don't remember saying that.

That was a view you held?---It's a view I hold now. Yep.

Well, it was a view you held then?---No. Well, maybe. I can't remember if I held it then but I certainly hold that view now.

And it's likely that you said that to her at the time?---No. I wouldn't.

And you said they consistently lie about service?---Service?

Yes?---God, I - I have - no. All I know is that the statutory demand had been served on me. I sent it back to Mr Lenhoff because I was not allowed to accept service. That's what I do remember about service.

And she spoke to you about the liquidators and the fact that they were saying that you were being uncooperative?---Yep.

And she said to you 'It doesn't help that there are two officers of the court saying that you're being uncooperative'?---No, I - that part I do remember.

You do - - -?---I mean, but I don't know if she said it to me in a conversation or it was in an email, but I do remember that. In fact I'm sure it was in an email.

And you said to her that 'Glenn Trinick is an outright liar and she wants to instruct Clavey Legal to pursue a claim against him'?---No, I didn't say that.

And you said that he never made a request for books and records?---No, I never said that, because he did make a request but he made it a bit later. That's all

And that - and you said that when you came back from leave he forced you and your husband - that is Mr Trinick - 'that they would be personally responsible' - that you would be personally responsible for his fees?---That's correct. He did do that, yes.

He did do that?---Yep.

And so if Ms Richards has recorded that you must have told her?---If I said it to her - you know, I did have conversations with Ms Richards. I can't recall the gist of any conversation and I can't recall telling her that in person, you know, as I say, orally, or I put it in an email. But he did - Trinick did ask us to be personally responsible for his fees.

[252]

Well, Mrs Frigger, you've said that that did not happen?---And I'm - I continue to say that. It did not happen. Not a single time did Mr Clavey ever say to me orally, 'You need to give me more money.' Not a single time.

Notwithstanding the fact that you have no independent memory of the 18th or the 19th without these documents, do you?---I do have an independent memory because when they happened, when these documents were sent to us, I did read them and that's my memory because I - I did read them. I - - -

So you - - -?---And based on that - as I say, based on that, based on that email where he says he's not going to file any applications, I took a cheque to him - either took the cheque to him for 30,000 or posted it. I can't remember what I did that day on the - on 19 March.

You can't remember what you did that day?---Well, I said I can't remember if I took the cheque in to him or if I posted it to him.

Well, do you remember reading:

I explained that to Angela yesterday. The stay application can be filed when funds are deposited into -

?---I do remember reading it. I just said to you I remember reading this email when I came in. I do remember it. I remember reading it at the time and right now I remember that I read it at the time. Is that your question? And that's my answer.

And at the time when you read it - - -?---Yep.

- - - did you say to yourself, 'That's not true'?---No, I don't say that because there were - as I said before, the - one - one week before that there was an email from Mr - Mr Clavey dated 12 March. There were numerous things in that that I didn't agree either had happened or that I - that was my view or - or et cetera. But I didn't want to make any waves, you know? If somebody says:

I explained that to Angela yesterday.

And it actually didn't happen yesterday, why would I ring him up and stir basically and say, 'Why are you saying that in your email? It didn't happen. What would I achieve by that?

I'm asking you about what you thought when you read it. You read it and you thought, 'That's not true'?---No, I didn't say - think that at all. All I know was - just a moment. All I know is that when I received this email I knew that nothing more was going to happen unless I paid $30,000.

Not asking you about that. I'm asking you about what you thought when you read:

I explained that to Angela yesterday.

And the next sentence which refers to -

- as discussed with Angela.

?---Yep.

When you read that on the 19th did you say to yourself, 'That's not true'?---No, I didn't even - I didn't even think about it because it was not important.

Well, Mrs Frigger, you say it's not important?---It's not important.

But you say this is now the third time you're saying that you read emails from your solicitor which were saying things that were not true?---I am saying that on the 18th - this is my evidence, okay, and I'll repeat it. On 18 March when I went in to - I can't actually remember under what circumstances I swore the affidavit. I think that I picked it up from Mr Clavey and ran across the road to another legal firm on St Georges Terrace and then took it back in the hope that it would all be filed that day. And then the next day you get this email saying, 'You need to pay some more money,' and that's what I did. But Mr - not - not a single time did Mr Clavey say to me, 'You need to pay me $30,000.' Never. Never.

Do you remember the answer - the question that I asked you?---Yeah, you asked me, 'What was your thoughts about him telling you:

I explained that to Angela yesterday.

And my - I didn't have any thoughts about it because it had not happened. Simple.

Yes?---Every time somebody says something to me I am not going to make a mountain out of a molehill like you're doing at the moment, okay?

No, this is - - -?---I - that's not how I operate.

You're - - -?---You know, my solicitor had asked me for $30,000. He was not going to do any more work unless I paid him. Guess what? I paid him. That's the end of it.

I'm asking you about the fact that this is now the third time you've said that at the time you received an email from your lawyer you formed the view that what he was telling you about your discussions was not true?---No, I didn't form that view at all. I didn't form the view at all. I - you know, I had more important things to do in my life than to form a view that my solicitor was lying to me. I - it was unimportant to me and to my husband. My solicitor asked me for money. I paid it.

So it's - - -?---End of story.

So it's unimportant to you that that was said, but you say - - -?---Yep.

- - - that you can actually remember reading it on the 19th?---Of course I read it on the 19th.

No, no, but you can remember reading it on the 19th?---Of course I can remember reading it on the 19th. You think I didn't read it? Is that what your question to me is?

I'm asking you what your memory is?---I read it. I read the whole thing. That's my answer. I read the whole email on the 19th.

You do not remember it?---I don't remember the email or reading it?

You don't remember reading it. You're - - -?---I remember reading it.

You're reconstructing what you (indistinct)?---No, just a moment. Just a moment. I remember reading it because it is only from this email that I knew I had to pay $30,000.

When you - - -?---No other email.

When you read it - what did you think when you read, 'I explained that to Angela yesterday'? Did you think - - -?---I didn't think anything about that. I didn't form any thoughts. I didn't form any views about it. (ts 835 - 837)

[256]

Why did you send this email back to Mr Clavey if you're going to meet him shortly afterwards on the Friday?---Well, I will answer that question by saying that the email on page 442 just has the attachment and then just has the word 'Terry', but I think the body of the email is missing and I think what would - what I would have said was 'I have made changes' or 'I haven't made changes'. That's - I can't remember if I, you know - if I had a full email that I sent it would say, if I had, you know - sorry, your Honour. It would say if I had made changes or not. I really can't remember and I can't understand why the full email is not here. But I wouldn't send something with just the word 'Terry' written on it.

HERRON DCJ: Well, if you made changes - - -?---Mm hmm.

- - - would they have been saved on your computer?---Yes, definitely, because I can't simply re-send something without downloading it first and reading it. I would have had to download it, read it, and then re-send it, and I can't re-send something unless it's saved as a file document, yes.

Then you've referred to paragraph 47, and as you've noted there are two paragraphs, and as you've noted there are two paragraphs 47?---Which - yep, wrong numbering.

Paragraph 47 is on page 452?---Yes.

And then there's a further paragraph 47 on page 453. If you go back to the affidavit sent by Mr Clavey to you on the 11th, and this is with his email, as I understand it, as 11 March and his issue about the time. But the draft affidavit sent to you starts at page 419, goes through to page 431. Is that right?---Yes. I have that open, yep. Mm hmm.

Yes, and then you go to page 428, and that has a paragraph 47 there?---Yes. I see what you mean. There is a difference, yes.

So you compare that to paragraph - the second paragraph 47 on page 453?---Yes. It's something that I have added in.

Yes?---Yep.

Well, what have you added in?---Well, it's - the first paragraph 47, which is at page 452, and I've enumerated monies I know that are already owing, and in the following paragraph starting at 47.7 I say that there are also all of these other costs that are still owing.

So the paragraph 47, which is 47 through to 47.7.7, you have added in?---I believe I have, yes, your Honour. Because I - - -

You say you believe you have. Again, I don't understand that. You either have or you haven't?---I would say that I have, yes, because as you say the - well, I say I have, definitely.

COOK, MR: You'll see actually - sorry. You'll see that there are a number of other added paragraphs in the second version of the affidavit, in the - when I call it the second version I mean the version that you emailed back. For example, there are - there's only one paragraph 37 in the first version but in the second version there are two paragraph 37s?---Yes. That's obviously something else that I have changed, yep.

And you'll see that there are two paragraph 45s and two paragraph 46s - - -?---Yep.

- - - in the second version, but only one paragraph 45 and one paragraph 46 in the first version. Are you able to say why there are these extra paragraphs in the second version?---Because I added them all in.

Yes, and after you had downloaded it onto your computer?---Yes.

[259]

Do you now remember that you did swear an affidavit in relation to the winding-up application?---Well, I didn't remember that we had included winding-up application to be dismissed in this - in this matter. When I eventually came before Simmonds J, all we asked him for was the provisional liquidation to be terminated.

But you swore that affidavit on 8 February, correct?---Let me just check the date, I'll tell you. Yes, it was - it was sworn on 8 February - - -

Was it - - -?---- - - along with my husband.

Was it true?---Was what true?

Was the affidavit true?---As - as of that point in time it was, yes.

If you go to page 98 of the document in the affidavit, paragraph 29. Do you have that paragraph?---Yes.

It says:

Mrs Frigger has prepared a report as to the affairs of CAT as at 21 January 2010 and has included the special leave application as a contingent asset including the sum of $800,917 being the amount of the statutory demand, costs of the Court of Appeal and the costs of the High Court application.

Attached and marked 7 is a copy of the RATA(?), the report as to the statement of affairs. Do you see that?---Mm hmm.

And I ask you to go to that annexure which commences at page 106. Do you have that?---Yes.

That is a report as to affairs which you signed on 21 January 2010?---Yes. I did that for the liquidator, Yes.

You prepared - - -?---I do remember doing it, mm hmm.

You prepared that report of affairs?---No. It was all filled out by WHK Horwath and I just filled in some blanks. I didn't prepare the whole lot. It was sent to me by the liquidator and as - the best of my knowledge I filled it in.

Well, if you look at the statement of assets and liabilities that begin on page 108 and over to page 109?---Yes.

You prepared all of that?---I filled in the blanks, you mean.

Well, you entered that material in?---Yes, I did. That's my handwriting.

...

Look at page 108 and 109?---Well, I can only look at them one at a time. Which one would you like me to look at?

Mrs Frigger, are you being deliberately obtuse when I ask you questions?---No. Well, you said look at 108 and 109. I can only look at one at a time. Which one would you like me to look at first?

Is the handwriting in 108 yours?---Yes, it is.

Is the handwriting in 109 yours?---Yes, it is.

Did you determine that those were, in your view, the correct assets and liabilities of CAT as at the date that you prepared this document?---Just let me check when I - when I dated it. Just a moment. If I have a date on it or not. I can't remember. 2 February, Yes.

Was that statement of the assets of CAT and the liabilities of CAT true and correct?---Yes, they were, as far as I knew at the time.

You determined what to put in as the assets and the liabilities?---Well, I'm the accountant of the company and I'm also the director and shareholder so yes, that's exactly what I did.

And the assets that you've listed on page 108 include cash at bank $80,000, correct?---Mm hmm.

Now, that was $80,000 that was being held as a guarantee for BP, correct?---Yes.

Yes. It wasn't available funds, that is it had to be held as a guarantee for the purpose of the - the service stations business?---Correct.

[310]

your response was:

Dear Terry, at the time of filing the application for a stay in the High Court I spoke several times with somebody called Daniel who informed me that the special application would not be listed in March 2010 but probably in April 2010. This is because only Brisbane applications were listed for March 2010. When I later spoke to Ms Cheetham she did not tell me that the matter would not be listed at all. We did not discuss the listing of the matter but only my application for a stay.

Do you see that?---I do.

So in fact, when Mr Clavey asked you what the basis for your instruction that the special leave application had been listed for 23 April 2010 your response revealed that, in fact, you had not been told that it was listed for 23 April 2010, had you?---No. Daniel told me it had been listed for April 20, 2010.

That's not what that email of yours in response says?---Because he said it would probably be listed in 2010.

It says:

But probably in April 2010.

?---Yes. And?

That's a far cry from being listed - - -?---Jesus Christ.

- - - for 23 April 2010, which you - - -?---Yes.

- - - instructed Mr Clavey - - -?---Exactly.

- - - to tell Sanderson M?---Exactly. I did. And those were - and that is what was - I was led to believe, that it was going to be listed in April 2010.

Where did the 23rd come from?---He told me the 23rd because - no, sorry, sorry. I'm sure Daniel told me the 23rd, but not only that, if you look on the High Court website they list the dates for all the special leave applications.

So you went and looked on the website for what the date of special leave applications in April of that year was?---Quite - for - for - yep.

And because somebody at the registry had said it would not be listed in March but probably in April - - -?---Yes.

- - - you then concluded it was listed for 23 April?---Exactly. I did.

But no one ever told you it was listed for 23 April?---Daniel told me.

Well - - -?---Yes. And in fact, let me - just - just a moment. I think even Daniel is wrong. It was someone I had - I got the name wrong. It was someone else. And I think later on in - in stuff that I wrote, it was another name. It was another - the name it was - was wrong. Daniel was wrong. But he had told me - the person who I had been dealing with, because it was a person in the High Court who had helped me to put together the application for a stay in the High Court and I had asked him when do you think this is going to be listed for a hearing and he said to me, the Perth applications are being listed in April. That's what I - I assumed, that it would be listed, because nobody had ever told me that our hearing - sorry, our application would not get a listing at all. And he said - in fact, ours had been hanging around now such a long time that it most probably would be listed in April.

Well, the truth is what you said in part of your answer, you assumed. Correct?---Look, you - you continue on with this truth and falsity. If I - if somebody tells me that something is going to happen in April 2010, what's the problem with me telling my - my solicitor that that is going to happen? And if it later turns out wrong, who cares? You're the only one who cares, Mr Quinlan. You're the only one. All right. Who cares?

Is that the way that you spoke to Mr Clavey's staff, Mrs Frigger?---No, I did not. I'm saying it to you because you're constantly telling me the truth of this and the truth of that and I'm getting sick of it. If - if the High Court told me that the matter was going to be listed in April I have every right to tell Mr Clavey that is what is going to happen.

Because you know, don't you, that precisely the same thing happened on 28 April, didn't it?---On 28 April?

Yes. On 28 April, when it came on before Sanderson M again - - -?---When Mr Dutton was representing me?

Yes. Again, you - - -?---No, no, no, no, no.

Listen to me?---The same thing didn't happen so don't even go down there.

HERRON DCJ: Mrs Frigger - - -?---Sorry, your Honour.

Listen - - -?---Yes.

- - - to Mr Quinlan's questions, please.

QUINLAN, MR: On 28 April - - -?---Mm hmm.

- - - you told Mr Dutton that it was listed for 28 May, didn't you?---And it was. It was.

And during the hearing they adjourned, called the registry and confirmed that it had not been listed?---But in fact it was. There was a big mess up that day but it was and it was heard on 28 May, so I was right all along.

Now - - -?---Do you want to continue on with that or not? No. Of course not. Sorry.

Do you think you had a win there? Is that why you said that to me then, Mrs Frigger?---Well, because you're constantly trying to say that if I say something it's false. Daniel had told me, and actually I - it wasn't Daniel. I can't remember his right name, but it was a gentleman who had helped me and he had said that it was probably going to be listed in April and I told Mr Clavey to tell that to the master because there was questions being asked as to when this High Court application was going to be resolved.

And you took 'probably listed in April' to mean is listed for the 23rd?---Yep. I did.

[430]

(a) the first named plaintiff agreed to pay invoices for work done issued on a monthly basis (clause 4);

(b) the defendant was entitled to request a retainer in advance of providing services to be deposited into its trust account for the payment of the defendant's fees and disbursements and the first named plaintiff authorised the defendant to deduct from those monies, sums invoiced by the defendant pursuant to the Costs Agreement and that, from time to time the defendant may ask the first named plaintiff to top up the amount of money held in trust against costs (clause 5);

(c) payment of invoices was due within 30 days of the date of issue of the invoice (clause 6);

(d) the defendant was entitled to cease to act for the first named plaintiff and remove itself from the court record as the plaintiff's solicitor if the first named plaintiff did not pay the defendant's invoices in accordance with the terms of the Costs Agreement or if the first named defendant did not pay monies requested by the defendant on account of future fees (clause 9.3);

(e) the defendant was entitled to cease to act for the first named plaintiff and remove itself from the court record as the plaintiff's solicitor if the necessary relationship of trust was broken between the first named plaintiff and the defendant (clause 9.5);

(f) the terms and conditions of the Costs Agreement applied to all future matters for which the first named plaintiff provided new instructions, whether or not the first named plaintiff was given or signed another copy of the Costs Agreement (clause 11);

(g) the defendant owed a paramount duty to the Court and there had to be credible grounds to pursue a claim or run a defence. The defendant therefore had to review all of the first named plaintiff's evidence concerning the matter to allow the defendant to perform its duties to the Court (clause 13);

(h) the first named plaintiff agreed to provide full and complete instructions to allow the defendant to perform its duties (clause 13);

(i) the defendant could not run tactical defences or raise tactical claims to defend valid claims. The first named plaintiff agreed not to require the defendant to run a defence or a claim that was fanciful, unsupported by evidence or sought to, in the defendant's opinion, improperly raise an issue of law which was unjustified on the evidence (clause 14).

[642]

The usual costs order is one for party and party costs. An order for indemnity costs will only be made if there is some special or unusual feature in the case to justify a departure from the ordinary practice. In effect, the court has jurisdiction to make an indemnity costs order whenever justice requires such an order. Unioil International Pty Ltd v Deloitte Touche Tohmatsu (1997) 18 WAR 190 at 191; Colgate-Palmolive Co v Cussons Pty Ltd [1993] FCA 536; (1993) 46 FCR 225 at 233. When the justice of the case does require such an order, then the court will have a discretion as to whether the order should be made.

Many examples can be found where an indemnity costs order has been made. Suffice it to say that most of these involve some element of improper, or at least unreasonable, conduct on the part of the parties or their legal advisors in relation to the case. See the examples given by Sheppard J in Colgate-Palmolive v Cussons (supra) at page 233 and the circumstances referred to in Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Ltd (1988) 81 ALR 397 and in Unioil's case. Thus, the making of allegations of fraud knowing them to be false, or the commencement of proceedings for some ulterior motive, or in wilful disregard of known facts or the established law, or the making of allegations which ought never to have been made, or the undue prolongation of a case on groundless contentions, and even an unreasonable refusal to accept an offer of compromise, may lead to indemnity costs orders. See Colgate-Palmolive v Cussons (supra) at 233. The creation of false issues by tactical denials or failures to admit the facts may, in the circumstances of particular cases, lead to such an order: Unioil's case. An action commenced or continued in circumstances where the applicant, properly advised, should have known that he had no chance of success, may lead to such an order because such action might be presumed to have been commenced or continued for some ulterior motive or because of some wilful disregard of the known facts or the clearly established law. See Fountain Selected Meats (supra).

[692]

The offer which was made, 26 days before the trial was due to commence on 17 June 2013 and before the trial dates were vacated on 12 June 2013, was in my view, made at a sufficiently early stage in the history of the District Court proceedings, which if it had been accepted would have avoided the considerable costs incurred by the defendant in proceeding to trial.
The offer, which was open for acceptance until 4.00 pm on 14 June 2013, allowed for a sufficient length of time for the plaintiffs to consider the offer.
The extent of the compromise offered, which was expressed as a commercial offer, would have met a significant part of the plaintiffs' costs noting that the plaintiffs in their letter of 29 May 2013 rejecting the offer said they were advised by counsel that their legal costs would be in the order of $50,000.
The plaintiffs' prospects of success were in my view negligible. In its letter to the plaintiffs, the defendant expressed the view that the claims in the action were bound to fail. In my view at the time that offer was expressed, and without having regard to the decision I have since reached, the defendant's assessment was a realistic one.
The letter addressed each of the plaintiffs' pleaded alleged causes of action explaining in detail and at length why the defendant believed the plaintiffs would not succeed at trial. Essentially that letter reflected the defendant's defence to the plaintiffs' causes of action and how the defendant conducted its defence at trial.
The terms of the offer were, as I have already observed, set out in considerable detail and in my view were set out in clear terms. I reject the plaintiffs' submission that the offer was incapable of being accepted because it required the plaintiffs to sign a deed of release on behalf of CAT in circumstances where they had no authority to do so. In my view the terms of the offer which referred to the terms of settlement needing to be formalised in a deed of settlement, simply reflected the causes of action pleaded by the plaintiffs in their statement of claim against the defendant.
Section 471A of the Corporations Act 2001 (Cth) states that the powers of an officer of a company are suspended during the company's winding up. In my view the defendant's written offer of settlement did not require the plaintiffs to sign a deed of release on behalf of CAT where they were prevented from doing so because of s 471A. All that the Calderbank letter did was identify the various causes of action alleged against the defendant and require the plaintiffs in their personal capacity to release and discharge the defendant from all claims in the action and arising from the action. The defendant's solicitors would clearly have known of the effect of s 471A and would have known the plaintiffs could not have entered into a deed of release on behalf of CAT.
Therefore, I reject the plaintiffs' submission that the offer was incapable of being accepted in the terms proposed by the defendant.
Finally, the offer foreshadowed that in the event the offer was not accepted and in accordance with the principles in Calderbank v Calderbank [1975] 3 All ER 333 an application for indemnity costs would be made if the final outcome for the plaintiffs was not more favourable than that contained in the offer.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (731 paragraphs)

FRIGGER -v- CLAVEY LEGAL PTY LTD [No 3] [2015] WADC 21 (12 March 2015)

Parties

Legislation Cited (11)

Cases Cited (14)