COMPUTER ACCOUNTING AND TAX PTY LTD (in liq) -v- PROFESSIONAL SERVICES OF AUSTRALIA PTY LTD [No 10] [2015] WASC 380 (9 October 2015)

Supreme Court of WA|2015-10-09|Before: Simmonds J

1 There is an oral application for an order for suspension of a means inquiry (the suspension application) under the Civil Judgments Enforcement Act 2004 (WA) (CJE Act). The means inquiry was in respect of the costs taxed pursuant to an order for costs made in favour of the second defendant against Angela Cecilia Theresa Frigger (Mrs Frigger) and Hartmut Helmut Frigger (Mr Frigger) (collectively, the Friggers).

2 The suspension application is by the Friggers. The Friggers are required to show 'special circumstances that justify' the court making such an order, which would have the effect of suspending enforcement of the judgment against the Friggers.

3 The Friggers rest their argument on the submission that special circumstances exist on claims they say they have against the second defendant, as well as claims in certain other matters.

4 The orders for costs were made as parts of orders made on 16 October 2012 (the orders of 16 October 2012). The orders of 16 October 2012 were made following the judgment in Computer Accounting and Tax Pty Ltd v Professional Services of Australia Pty Ltd [No 5] [2012] WASC 382 (CAT [No 5] WASC), appeal dismissed sub nomine Frigger v Professional Services of Australia Pty Ltd [No 3] [2014] WASCA 69 (Frigger [No 3] WASCA). The background to that judgment is set out in CAT [No 5] WASC [7] [49], in some detail.

5 In brief, the judgment in CAT [No 5] WASC related to freezing orders I made on the application of the defendants against the Friggers (the defendants' freezing orders) and undertakings by the defendants (the undertakings). Those orders, or rather, their successors, were ultimately discharged.

6 No appeal against the making of the orders referred to was made.

7 The judgment in CAT [No 5] WASC was on the application by the Friggers for compensation under the undertakings and the applications for the defendants for discharge of the undertakings.

8 I dismissed the Friggers' application and granted the applications of the defendants.

9 I ordered, among other things, that the Friggers jointly and severally pay the second defendant's costs, including certain reserved costs, with an uplift. Subsequently those costs were taxed and a certificate of taxation was issued dated 9 May 2014.

10 Following the making of the orders of 16 October 2012, the costs of the second defendant were taxed in an amount of $31,599.72.

11 By application for enforcement order under CJE Act pt 4 div 1 dated and filed 5 August 2014 (the application for enforcement order) the second defendant applied for a means inquiry against the Friggers. Means inquiries are provided for by CJE Act pt 4 div 2.

12 I note in passing that Mrs Frigger, who appeared in hearings before me without any appearance by Mr Frigger, appeared to take objection to the issue of summons against under CJE Act s 29 without Mr Frigger also having been summonsed. However, it is not clear to me that a summons against one joint debtor but not another may not be issued. In any event, I did not understand Mrs Frigger to press this objection and I set it aside.

13 I should also note that at the hearing before me Mrs Frigger indicated no difficulty with the view I expressed that I should proceed on the basis that Mrs Frigger was representing herself but that Mr Frigger was content to abide by the result based on the submissions and that the costs of the suspension application might be made against or in favour of both of the Friggers.

15 I consider that, as the application for an enforcement order was made against the Friggers, the suspension application was in respect of that application and the submissions by Mrs Frigger were ones on behalf of both of the Friggers, I should proceed on that view.

16 On 22 August 2014, at the return of the summons against Mrs Frigger before Principal Registrar Gething she made the suspension application orally. The Principal Registrar made programming orders but also indicated to the parties that the matter might be transferred to me.

17 The matter came before me for hearing on 23 January 2015, 30 January 2015 and 27 February 2015. At the end of the last hearing I made provision for closing written submissions.

18 In support of the suspension application Mrs Frigger swore an affidavit with annexures (Mrs Frigger's affidavit of 19 January 2015), a number objections to the contents of which took most of the hearing on 23 January 2015 to be dealt with.

19 Mrs Frigger filed no other affidavits for the purposes of the suspension application. However, she provided a list of a number of affidavits and other documents, apparently forming parts of the files in these proceedings or in related proceedings, upon which she intended to rely.

20 Mrs Frigger provided written submissions in support of the suspension application dated 9 September 2014 (the opening written submissions for the Friggers). The opening written submissions for the Friggers were apparently intended to be pursuant to Principal Registrar Gething's programming orders.

21 Mrs Frigger also provided closing written submissions dated 13 February 2015 (the closing written submissions for the Friggers), but these were said by the defendants in their written submissions dated 16 March 2015 to have been received only on 13 March 2015. In any event the closing written submissions for the Friggers were apparently intended to be pursuant to the provision for closing written submissions I made at the conclusion of the hearing on 27 February 2015.

22 For their parts, the defendants filed two affidavits of Cameron Victor Eastwood in opposition to the suspension application.

23 Mr Eastwood was a director of the company acting as solicitors for the defendants.

24 The first affidavit was sworn on 13 October 2014 (the Eastwood affidavit of 13 October 2014); the second affidavit was sworn on 20 January 2015 (the Eastwood affidavit of 20 January 2015).

25 The defendants filed no other affidavits in opposition to the suspension application.

26 The defendants provided written submissions in opposition to the application dated 15 October 2014 (the opening written submissions for the defendants), which contained a list of a number of affidavits and attached some documents. The affidavits apparently formed parts of files in these proceedings or in related proceedings. The affidavits and documents were those upon which they intended to rely.

27 The defendants also provided 'supplementary submissions' in opposition to the suspension application dated 16 March 2015 (the closing written submissions for the defendants) apparently intended to be pursuant to the provision for closing written submissions I made at the conclusion of the hearing on 27 February 2015.

28 I should note that my attention was drawn to a District Court authority by an e-mail from the defendants to the court of even date with the closing written submissions for the defendants, copied to Mrs Frigger and upon which Mrs Frigger commented.

30 I should also note that by an e-mail of 17 September 2015 Mrs Frigger sought to make a further argument in relation to the suspension application. I have not taken account of that e-mail as it fell well outside the provision for closing submissions I made.

31 In the remainder of these reasons I set out the applicable law before reviewing the submissions of the Friggers and of the defendants, applying the law as I do so.

32 CJE Act s 15, in material part ((1)(a), (3) and (5)(a)) provides as follows:

(1) A person against whom a judgment is given may apply for an order suspending the enforcement of all or part of the judgment to -

...

(3) On such an application, the court may only make such an order if there are special circumstances that justify doing so.

...

(5) When or after making a suspension order the court may make any necessary ancillary or consequential order including an order -

(a) that a means inquiry, default inquiry or interpleader proceedings be adjourned.

33 Mrs Frigger initially drew my attention to CJE Act s 31(1)(b), which reads:

(1) At a means inquiry the court, having regard to the matters listed in section 26 that it has determined, may -

(a) make any enforcement order that is just, whether or not the judgment creditor has applied for the order; or

(b) make a suspension order on the application of the judgment debtor.

34 Before Principal Registrar Gething she referred her application to this provision. Mrs Frigger appeared to contend this provision meant her application did not fall under CJE Act s 15(3). However, in view of s 3 'suspension order', which refers to s 15(3), I was unable to accept her apparent contention. In the event, she did not press it.

35 It was not in contest before me that the principles applicable to the CJE Act s 15(3) for a case such as this one are usefully set out in New Resource Holdings Pty Ltd v Lunt [No 3] [2008] WASC 221 (Templeman J), especially at [28], [40] and [41]. Adapted to the present application those principles are the following:

(1) A person such as the second defendant who has obtained a judgment will ordinarily be entitled to enforce it, there being no question in this case of any appeal.

(2) In determining whether there are special circumstances such as to justify an order which would suspend that enforcement, the court may consider a number of matters, the relative significance of which will vary enormously from case to case.

(3) One matter is the nature of the claim on which the judgment rests. The example given in New Resource Holdings, of a claim a judgment based on which would rarely if ever be stayed, is one based on a dishonoured bill of exchange. This matter would appear to have no application here, and no submission it did was put to me.

(4) Another matter is the extent of the identity between the parties in the action on which the judgment is based and the parties to claims relied upon for the purposes of the suspension application.

(5) Another matter is the interrelationship of the respective claims.

(6) Another matter is the strength of the claims relied upon for the purposes of the suspension application.

(7) Another matter is the size of the claims relied upon for the purposes of the suspension application relative to the claims of the second defendant.

(8) Another matter is the likely delay before the merits of the claims relied upon for the purpose of the suspension application will be adjudicated.

(9) Another matter is the prejudice to the second defendant if it is denied the fruits of his judgment until the claims relied upon for the purposes of the suspension application are determined.

(10) Another matter is the risk of prejudice to the Friggers if they make payment to the second defendant under the judgment.

(11) There might be additional matters in a suitable case. The Friggers rely what appeared to be certain additional matters within (11), as will be seen. So too do the defendants.

36 I particularly note the following on the application of CJE Act s 15(3), from Boase v ASICA Developments Pty Ltd [2009] WASC 183 [13] (Le Miere J), which for a case like this one involving a costs order in respect of which costs have been fixed I take to relate particularly to (5), (6) and (8) from the list above:

In Sami v Roads Corporation [2009] VSCA 44 Williams AJA said that the 'possibility of setting off obligations under a costs order against some future order in favour of an applicant has been proffered as the justification for a stay' [27]. His Honour referred to Grant v Banque FrancoEgyptienne [1878] 3 CPD 202:

'... where a stay of costs orders associated with an application was sought on the basis that the amount payable could be set off against costs which might be payable if the applicant were successful in the action. The application was refused, and Jessell MR (with whom Cotton and Thesiger LJJ agreed) said:

"It was quite unheard of, in courts where the practice of several taxations prevailed, that the mere chance of the litigant obtaining costs upon a decision at some subsequent stage of the case was to prevent his paying the costs already ordered to be paid under a separate judgment. Certainly no such rule ever existed in the old Court of Chancery and no such practice has been established under the Judicature Act; it does not seem to me that we ought to establish any such practice and that part of the application ought to fail" [27].'

Williams AJA also referred to Re Utsa Pty Ltd (in liq) (Unreported, VSC, 26 June 1998) where Chernov J 'distinguished the facts in Grant from those before the court. [Chernov J] awarded a short stay of an order for costs in favour of liquidators who were obliged to pay costs, yet to be taxed, to the applicant in another proceeding' [28].

The Friggers' claim in respect of the defendants' freezing orders proceedings as a collateral abuse of process

37 This claim is that the Friggers, on their own behalf and on behalf of CAT, incurred losses as a result of legal processes taken by the defendants which were collateral abuses of process and which had the ulterior motive of forcing CAT or the Friggers to repay the judgment sum in circumstances where it did not have to be repaid, or it had to be repaid to a third party under a Deed of Company Arrangement for the first defendant, or it could be setoff against CAT's legal and enforcement costs.

38 The legal processes were the defendants' freezing orders; the appointment of a provisional liquidator of CAT; and the winding up of CAT in insolvency. The losses referred to were reputation damage for the Friggers and losses incurred by the Friggers as a result of adverse credit reports resulting in their inability to obtain mortgage loans in Australia. The bases for the claim appeared to be that the defendants' freezing orders proceedings were unnecessary as CAT had been placed into liquidation before the defendants' freezing orders or their successors were made; there had been the waiver of the right to payment under the deed of company arrangement referred to by the third-party referred to, or alternatively the amount had to be repaid to that third party; or there was the right of setoff referred to.

39 To enable this claim and certain other claims to be understood I set out the following additional background.

40 The defendants' freezing orders were applied for to prevent the Friggers taking steps to enforce payment of money due under a deed of charge granted by CAT, with related orders.

41 The Friggers were the sole shareholders and directors of CAT.

42 On 9 July 2008 CAT had, following my decision in Computer Accounting and Tax Pty Ltd v Professional Services of Australia Ltd [2008] WASC 133 (the trial judgment) obtained judgment for $967,202.50 as damages against the first defendant and Martin Paul Banning, who subsequently died and of whose estate the second defendant is executor. The orders following the trial judgment also required the payment of interest. The judgment sum was ultimately paid by the first defendant in the amount of $1,165,661.54. There was an issue as to whether this was the entirety of the amount due. However, I consider I do not have evidence that for my purposes any difference from the amount due was of a significant size.

43 The payment was made from funds provided by Banning Holdings Pty Ltd, a company controlled by Mr Banning, under a Deed of Company Arrangement (the DOCA) to which that company and CAT, were parties, among others.

44 Subsequent to the payment, an appeal against the decision in the trial judgment resulted in the decision in Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 2] [2009] WASCA 183; (2009) 261 ALR 179 (PSA [No 2] WASCA). That decision had the effect of reducing the judgment sum by a substantial amount.

45 On the day that decision was published, 23 October 2009, the Friggers registered a charge allegedly created on 10 September 2009 over the property of CAT described in Frigger [No 3] WASCA [14] as 'all of the proceeds from legal proceedings in the Supreme Court or the Magistrates Court to secure loans allegedly made by the Friggers to CAT in the sum of $2 million' (the Deed of Charge). I provide more detail as to the collateral below.

46 On 7 December 2009 the Court of Appeal ordered CAT to repay the amount overpaid by the first defendant, that amount including the estimated costs of appeal being about $850,000: Frigger [No 3] WASCA [13].

47 As to the bases relied upon by the Friggers, I should note that at the hearing on the date of the making of the defendants' freezing orders (10 December 2009) counsel for the first defendant had noted that, if a liquidator of CAT were appointed, the Friggers would cease to be in a position as directors of CAT to dispose of property of the company, which would provide some comfort to the first defendant. However, it was doubtful at that date that a liquidator had been validly appointed.

48 A liquidator in a members' voluntary winding up was subsequently appointed and on 21 January 2010 I made orders for the appointment of a provisional liquidator: see Frigger [No 3] WASCA [30].

49 I further note that, following the making of an order for the winding up of CAT in insolvency, and at a hearing not long afterwards, counsel for the first defendant had suggested before me that it might be possible to make an order to discharge the defendants' freezing orders.

50 At the hearing about a month later, counsel for the first defendant indicated he was content to have the orders discharged, and orders were made following consultation between the parties: Frigger [No 3] WASCA [30](p) and (s).

51 In view of that history it is not evident to me that the basis referred to is strong.

52 I should further note that the question of the waiver of the right to payment contended for would appear to depend on the application of the relevant terms of the DOCA in the events that happened. Particular reference was made to this purpose, as I understood the matter, to DOCA cl 6.3, read with cl 6.1.3 and cl 5.2: see Mrs Frigger's affidavit of 19 January 2015 annexure 'AF4'.

53 However, the application contended for would appear to be difficult to sustain, as it depends upon termination of the DOCA by operation of its terms (automatic termination). Such operation would appear to be inconsistent with my decision in Holbrook v Professional Services of Australia Pty Ltd [2012] WASC 444 to grant an application to terminate the DOCA under Corporations Act 2001 (Cth) s 447A.

54 As to the entitlement to the repayment by virtue of the operation of the DOCA before its termination, in particular cl 6.1.3, on which, from the affidavit of Mrs Frigger of 19 January 2015 annexure 'AF4' appeared to make the matter depend, this would appear to have been a matter which might have been raised before the Court Appeal in submissions on the orders Court eventually made in Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 2] [2009] WASCA 183 (S) (PSA [No 2] WASCA (S)). Indeed, it would appear that matters arising out of the DOCA were pressed on the court, which allowed leave for CAT to apply for a stay of orders as to repayment: see PSA [No 2] WASCA (S) [11], [13] [14].

55 No application for such a stay was made, on the materials before me. The terms of the orders made were for repayment to the defendants, as I have indicated.

56 Having regard to those matters, it is not evident to me this basis for a collateral abuse claim is a strong one.

57 As to the right of setoff contended for, whether it rests on DOCA cl 6.1.3, which provides for any repayment amount to be setoff against any costs owing on the taxation of costs (see affidavit of Mrs Frigger of 19 January 2015), or on any other basis, I indicate below why I consider that there is unlikely to be any balance in favour of CAT on that account.

58 I have noted that the statement of claim for the purposes of a proposed action by CAT and the Friggers, at least, against parties including the first and second defendants in the Federal Court in respect of the collateral abuse of process claim, as well as a further claim for tortious interference to which I will return, is annexure 'AF3' to the affidavit of Mrs Frigger of 19 January 2015.

59 However, I was not informed that the action had been commenced.

60 I note that the papers comprising annexure 'AF3' bear the date 21 April 2014. I understood that the action would be filed when the losses claimed for had been 'crystallised'. It was not altogether apparent when that would be. However, I understood that it was at the earliest when proceedings in CIV 2765 of 2010 concluded.

61 I return to those proceedings below. They have resulted in a number of interlocutory decisions. They appear to be some distance from trial.

62 On the matters from New Resource Holdings I identified above I consider (4), (5) and (7) tend to favour a conclusion that special circumstances exist. However, tending strongly against are (6) and (8).

The Friggers' claim for defamation against the defendants

63 For this purpose the Friggers rely on 'a defamation claim of approximately $250,000' in respect of a letter to the liquidator of CAT in respect of the defendants' proof of debt in the liquidation.

64 That letter appears to be the annexure to a draft statement of claim for defamation which is annexure 'AF6' to the affidavit of Mrs Frigger of 19 January 2015. That claim is referred to in the affidavit as one which the Friggers would commence 'shortly' against the defendants and a solicitor from whom the letter came [10].

65 That letter asked whether the liquidator would admit the trial judgment was obtained as a result of a 'fraud on the court' and would be prepared to execute a consent judgment to that effect, having regard to certain matters imputed to the Friggers that are set out in the letter.

66 It appears to be common ground between the parties that the letter was capable of attracting qualified privilege which, however, could be met by proof of malice.

67 It should be evident that it would be difficult in proceedings such as ones on the suspension application to evaluate the strength of a claim of malice. However, in view of the matters imputed to the Friggers in the letter to the liquidator referred to, I do not consider I am at this point in a position to evaluate the claim as a strong one.

68 The matters imputed to the Friggers are those referred to in Frigger [No 3] WASCA , which appears to be a reference to [85] [111] (Pullin & Newnes JJA); and in Frigger v Mervyn Jonathon Kitay in his capacity as Liquidator of Computer Accounting & Tax Pty Ltd (in liq) [2013] WASC 229 (Frigger v Kitay), which appears to be a reference to [34] (Allanson J). It may be expected the Friggers will strongly contest the matters referred to. However, there was no admissible evidence to support such contest before me.

69 Further, it did not appear as at the date of the written closing submissions for the defendants that the proceedings on the defamation claim had been commenced.

70 I consider on the matters from New Resources Holdings I identified above that (4) and (7) tend to favour a conclusion that special circumstances exist. However, tending against such a conclusion are matters (5), (6) and (8).

71 I should not leave the present matter without referring to the statement in the written opening submissions for the Friggers (at [7]) to their service on the second defendant of a Concerns Notice under Defamation Act 2005 (WA) (see s 14) in respect of 'defamatory comments imputing that the plaintiff and Mr and Mrs Frigger obtained [the trial judgment] by conduct contrary to the Criminal Code WA'.

72 This appears to be a reference to the alleged defamatory matters the subject of the draft statement of claim in annexure 'AF6' to Mrs Frigger's affidavit of 19 January 2015. I do not consider it adds anything relevant to my analysis of that defamation claim.

73 The tortious interference relied upon appears to be alleged defamatory comments about Mrs Frigger which resulted in certain solicitors being reluctant to represent CAT and the Friggers.

74 I have previously indicated this matter is included in the draft statement of claim for collateral abuse of process. There was reference in Mrs Frigger's affidavit of 19 January 2015 to what was said to be admissions by that solicitor that he had made comments of the kind relied upon, in the affidavit which was annexure 'AF10' to the affidavit.

75 I do not consider 'AF10' in fact supports the tortious interference claim contended for. Further, I note the findings in Frigger v Clavey Legal Pty Ltd [No 3] [2015] WADC 21 (Herron DCJ) (Frigger v Clavey), the District Court authority to which I previously referred, as to why one of the solicitors with whom it was alleged there was the tortious interference complained of terminated his retainer: see [263] [268]. Those findings appear to me to be very difficult, indeed likely impossible, to reconcile with the claim so far as it concerns that solicitor.

76 I also note the views I expressed in Computer Accounting and Tax Pty Ltd v Professional Services of Australia Pty Ltd [No 4] [2009] WASC 407 [31] [32] (CAT [No 4] WASC) as to whether on the evidence I referred to there the solicitor had ceased to act for the Friggers because of the remarks attributed to the solicitor for the second defendant.

77 At the same time I note that the draft statement of claim refers to other evidence of the allegedly defamatory comments relied upon.

78 Further, in my preliminary view, the judgment in Friggers v Clavey does not necessarily preclude a finding of the sort the Friggers contend for in respect of the solicitor concerned.

79 Finally, I note that the judgment in Friggers v Clavey is presently under appeal.

80 However, in my view on the materials before me I cannot assess the tortious interference claim as a strong one.

81 Further, I note again the matter of the delay in initiation of the proceedings the subject of the draft statement of claim for collateral abuse of process that includes the tortious interference claim.

82 On the matters from New Resource Holdings I identified above, I consider (4) and (7) tend to favour a conclusion that special circumstances exist. However, tending against such a conclusion are (5), (6) and (8).

The Friggers' claims for amounts in the present proceedings for CAT's legal and enforcement costs

84 Under the Deed of Charge the collateral is expressed to include the judgment sum, prejudgment and postjudgment interest, legal costs and enforcement costs owing and payable to CAT in specified legal proceedings, including all of those relevant to me.

85 It did not appear to be in contest before me that the Deed of Charge purported to cover all the matters of costs the subject of the Friggers' claims in the present respect.

86 The matters of whether and to what extent the Friggers were secured creditors for the indebtedness referred to, and whether the Deed of Charge could apply to items not assets of CAT at the date of the Deed of Charge or costs orders that had not then been made or which were later set aside, appear to be matters to be dealt with at a trial that has not yet taken place, and indeed at the preparation of these reasons that had not been listed, in the proceedings in CIV 2765 of 2010: see Frigger v Kitay [42] [44].

87 It was submitted by counsel for the defendants that I should evaluate the strength of the Friggers' case in respect of those matters by reference to statements by Mrs Frigger from the bar table as to the Friggers acting as 'bankers for CAT' and to the historical accounts for CAT prepared by Mrs Frigger and in evidence at the trial in CIV 2265 of 2006 showing the directors' loan accounts as presumptively having been repaid, inconsistently with the indebtedness relied upon for the purposes of the Deed of Charge.

88 I consider that the latter aspect of that submission at least has merit and might be said to derive some support from the analysis of the evidence as to the directors' loan accounts in Frigger [No 3] WASCA [100] [101], albeit as at a different point in time.

89 I consider I do not need to go further into that aspect of the strength of the Friggers' claim, in view of my decision in Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 8] [2015] WASC 166 (CAT [No 8] WASC).

90 In that decision I indicated the costs orders I would make following from the setting aside by the Court of Appeal of my costs orders of 6 May 2009: see for that setting aside PSA [No 2] WASCA (S) [21]. The largest part of my costs orders 6 May 2009 was for the costs of the trial and certain special costs orders in favour of CAT. The costs orders for the trial following CAT [No 8] WASC reduced the costs awarded to CAT from 90% of their costs to 50%. None of the special costs orders were reinstated, with two exceptions, which meant the most of the special costs I ordered were not reinstated: see CAT [No 8] WASC [35], [71], [76]. None of those costs have yet been taxed.

91 I consider that on the amount in respect of the judgment sum that CAT must repay as I previously indicated, and the reductions in the costs for CAT the result of my decision in CAT [No 8] WASC, it is most likely there is a significant net amount owing by CAT to the defendants in respect of the legal and enforcement costs of CIV 2265 of 2006.

92 I have arrived at that conclusion accepting arguendo the amounts itemised in the Friggers' written closing submissions [9](a) (e), except (e). If the amounts itemised in the written opening submissions for the defendants [13](h)(1) were accepted, a matter to which I return below, that net amount would be significantly larger. I should note that the total of the amounts in the Friggers' written closing submissions [9](a) (c) is approximately $62,000; and the costs under my costs orders 6 May 2009 as shown in [9](d) is estimated at $736,000.

93 The remaining amount, in [9](e), is $175,000, for 'other costs orders sought by CAT/the Friggers for numerous interlocutory hearings after 9 July 2008 relating to CAT's enforcement of its judgment including interest'.

94 However, there is nothing before me to indicate to what hearings these relate, and I consider I cannot include that amount for present purposes.

95 There is a further item of costs on which the Friggers appear to rely for present purposes. It is the Sheriff's costs of a property seizure and sale order to enforce the trial judgment (CAT's PSSO). However, there is evidence (see Mr Eastwood's affidavit of 20 January 2015 annexure 'CVE2') that the Sheriff wrote the costs of CAT's PSSO off. The Friggers say the Sheriff has, that notwithstanding, filed a proof of debt in the liquidation of CAT. However, the evidence on which they appear to rely, an affidavit of the liquidator (see affidavit of Mervyn Jonathon Kitay sworn 8 August 2014 in CIV 2265 of 2006) appears to me to offer the Friggers no support that contention.

96 In any event, it is not apparent to me that the amounts for costs in respect of CAT's PSSO are likely to reduce the net amount I have referred by any significant extent.

97 Finally, I note that none of the costs here have yet been taxed, unlike the costs the subject of the suspension application.

98 There appear to be still further items as to costs on which the Friggers relied for present purposes. These are the legal costs in the defendants' freezing orders; in the appointment of a provisional liquidator; in the winding up proceedings; and in CIV 2765 of 2010.

99 I leave aside the costs in CIV 2765 of 2010. Those proceedings as I have indicated are some distance from conclusion, let alone from an award of costs.

100 As to the remaining costs referred to, as counsel for the defendants reminded me, the costs in each case were awarded in favour of the defendants against CAT.

101 Finally, I note the item of costs referred to as 'any other losses for CAT, the Friggers and the Frigger Superannuation Fund resulting from the liquidation of CAT', which appears to be relied upon for present purposes.

102 However, I would put the matter aside. There is no evidence or submission before me that would indicate what losses are involved here so as to permit an assessment of the Friggers' claim for them.

103 On the matters from New Resource Holdings I identified above, I consider matters (4) and (5) tend to favour a conclusion special circumstances exist. However, tending against such a conclusion are (6), (7) and (8), particularly the first two.

The Friggers' claim in respect of the costs of the enforcement of the trial judgment

105 There are other costs referred to which include these two. However, those other costs are not itemised or otherwise identified in a way which would permit them to be assessed.

106 The two specified costs items would appear to be ones within the previous claim. However, the Friggers' written closing submissions treat them as a separate claim.

107 The first item is described in the Friggers' written closing submissions as of 'numerous interlocutory applications by the defendants under the freezing orders of 8 January 2008'. Those were freezing orders granted on the application of CAT against the defendants in respect of their then liability for the judgment sum (CAT's freezing orders).

108 The costs referred to appear to be those originally provided for by my costs orders of 6 May 2009. Those costs orders were effectively reinstated by the orders I made following CAT [No 8] WASC.

109 However, there is no indication in the materials before me of their estimated amount.

110 Further, I note that the orders made relate to costs reserved on only two occasions, 8 and 11 January 2008: see CAT WASC (S) [92].

111 My attention was not drawn to any other costs orders in favour of CAT or the Friggers.

112 On these considerations, noting that none of these costs have yet been taxed, I am unable to conclude a significant amount for costs relative to the net amount in the previous section of these reasons is involved.

113 As to the costs of the remuneration of the receiver, these are included as part of the 'costs of the receiver' provided for in the costs orders for his appointment, and were to be payable by the defendants: see Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 2] [2010] WASC 318; (2010) 246 FLR 143 [46] (Simmonds J) (CAT [No 2] WASC). That was the judgment in which I granted an application for the discharge of the receiver.

114 There was no indication before me of the expected quantum of that remuneration. I understand that the matter of the assessment of the remuneration is presently pending before Master Sanderson, although a decision may be expected soon on what I was told in the written closing submissions for the defendants.

115 Of those considerations I am unable to conclude a significant amount for the remuneration of the receiver relative to the net amount in the previous section of these reasons has yet been shown.

116 With respect to those two matters, on the matters from New Resources Holdings I identified above, (4), (5) and (8) tend to favour a conclusion special circumstances exist. However, tending against such a conclusion are (6) and (7).

The Friggers' claim costs of CIV 1727 of 2009 against the receiver

117 The proceedings in CIV 1727 of 2009 were by the Friggers against the second defendant and certain other parties, including the receiver, after directors of the company, a share in which was held by the receiver, refused to execute a transfer of the share to the Friggers from the receiver.

118 Those proceedings were permanently stayed following the decision in Frigger v CampbellSmith [2010] WASC 353 (Kenneth Martin J). The costs orders made following that decision included orders for certain costs to be paid by the Friggers: see Frigger v Lean [2012] WASCA 66 [35] (Allanson J, Newnes & Murphy JJA agreeing). There is an estimate of those costs, which have yet to be taxed, in an affidavit of the second defendant sworn 25 July 2014, at about $80,000 including interest. That amount did not appear to be in contest on the evidence before me.

119 The Friggers' present claim rests on the view I expressed in Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 6] [2014] WASC 105 [2] [8] (CAT [No 6] WASC), that a claim by them for the costs of their participation in CIV 1727 of 2009 against the receiver for the failure of their contract to purchase the share from him was 'strongly arguable [as one for] loss incurred as a result of steps in mitigation'.

120 I accept for the purposes of the present claim that the cost of the liability of the receiver on any such claim would be a cost of the receiver payable by the defendants under the costs orders made on the receiver's appointment already referred to.

121 However, I did not determine that there had been such a contractual failure. Indeed, I expressly noted that the matter simply was not clear on the evidence I had: see CAT [No 6] WASC [174].

122 Further, in the present proceedings my attention was not drawn to any proceedings against the receiver on any such basis. In addition, the costs referred to in the previous paragraph would in my view have to be discounted by the chance of any recovery.

123 On the matters from New Resources Holdings I identified above, I consider (4) and (5) tend to favour a conclusion that special circumstances exist. However tending against such a conclusion are (6), (7) and (8).

124 This is (10) from the matters from New Resources Holdings above.

125 The prejudice is said to be the real risk that ultimately the estate of the second defendant will be found to be insolvent.

126 The Friggers' claim rests on the finding in that regard in Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [2010] WASCA 171 [28] (Newnes JA). That finding was for the purposes of the decision on an application to suspend the enforcement of costs orders pending determination of an appeal against the decision as to costs. The decision was to grant the application.

127 There is no appeal against any part of the judgment to which the suspension application relates. However, I accept that an insolvency would render any right of setoff the Friggers might have in the insolvency of the estate, to the extent of the payment under the judgment against them, nugatory. At the same time, I note the age of the judgment the Friggers rely upon and the fact that the estate has not been found to be insolvent in the intervening period.

128 Further, of course, any assessment of prejudice must take account of the net claims, if any, the Friggers would have at the relevant time. See the previous sections of my reasons.

129 I conclude that no substantial prejudice has been shown.

The Friggers' claim of matter tending to show special circumstances exist in other respects

130 This I consider to be (11) from the list from New Resources Holdings. The Friggers' submissions referred to these matters as circumstances in the defendants' conduct of the proceedings in CIV 2265 of 2006 and in other proceedings.

131 Their submissions referred to a number of matters which appeared to fall into two classes.

132 One class is for an alleged oral agreement in August 2008 between CAT's thensolicitor and the thensolicitor for the defendants, for security by reference to certain sums, to pay the judgment sum and legal costs pending the defendants' appeal against the trial judgment.

133 However, there is no evidence before me of such an agreement, and the evidence of the solicitor for the defendants referred to is against any such agreement: see the affidavit of David Lenhoff of 19 September 2014. I consider I should put this matter aside.

134 The other class is for advice allegedly given by counsel and solicitors also acting for the defendants to the widow of Mr Banning. That alleged advice, it is said, was 'wrong' and led to an unsuccessful attempt to pay the judgment sum, following which the plaintiff took certain enforcement actions; the DOCA was entered into; and 'legal costs in excess of $1,500,000' were incurred.

135 However, there is no evidence of such advice having been given, that was wrong, productive of any such results, and for which the defendant should be held responsible. I put this matter aside also.

136 I turn now to separate matters raised by the defendants as tending against finding a special circumstances. Those matters are two. One is prejudice to the defendants. The other is for certain claims of the defendants.

Prejudice to the defendants from the Friggers' possible placing of their assets beyond the reach of the court

137 The written closing submissions for the defendants referred to a number of matters which they say give rise to a concern in this regard.

138 Those matters are a number of costs orders against the defendants in favour of various persons including the receiver and their former solicitors, none of which appear to have been paid (see affidavit of second defendant sworn 25 July 2014 [8](g) in CIV 2265 of 2006) (the second defendant's affidavit of 25 July 2014); a mortgage over all of the Friggers' properties in favour of a company of which formerly the Friggers were shareholders but the shares of which are now owned by persons in Germany ([8](h) and annexure 'DCS4'); certain dealings with the residence of the Friggers in respect of which there is reference to an 'owner name listing' for the Friggers as attached to the written closing submissions for the defendant; and the letter to the court addressed to Allanson J dated 26 September 2014 indicating the Friggers intended to leave Australia in 2015, 'it is understood [by the defendants] permanently'.

139 A concern in this regard would appear to be matter falling within (7) from the list of matters I identified from New Resources Holdings. The matters referred to, none of which I understood to be contested on evidence brought by the Friggers, would appear to me to give a reasonable basis for the concern described. This would be a matter tending against a conclusion special circumstances exist.

140 The written closing submissions for the defendants referred to claims for costs payable by the Friggers to the defendants in respect of applications concerning CAT's freezing orders under the costs orders made in respect of those applications. Those costs include not only orders for costs I made but also costs orders made by the Court of Appeal in certain appeals in respect of CAT's freezing orders. Some of this history is described in Frigger v Professional Services of Australia Pty Ltd [No 2] [2013] WASCA 93. I was informed those costs have not yet been assessed or taxed but are estimated to be in the vicinity of $160,000 to $200,000 and I was referred to the second defendant's affidavit of 25 July 2014 [8](f). Some of the costs are indemnity costs.

141 I did not understand any of these matters to be in contest on evidence brought by the Friggers.

142 Those are matters which it seems to me fall within (11) and the matters I identified from New Resources Holdings. I consider the present matters to be ones tending against a conclusion special circumstances exist.

My conclusion on whether special circumstances exist

143 I have now reviewed the various claims of the parties and other matters by reference to the approach in New Resources Holdings.

144 In my view, the claims of the Friggers taken in combination, assessed also with the claims raised by the defendants, are not sufficient to establish special circumstances so as to justify making the suspension order. I particularly note the matters in Boase v ASICA [13] I quoted above.

146 I will hear from the parties as to the other orders, including orders as to costs, I should make.

Judgments Enforcement Act 2004

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (168 paragraphs)

Legislation Cited (1)

Cases Cited (2)