Frigger (Trustee) v Bank of Queensland Limited

(a) make the amendments shown in paras 2, 3, 6-10, 14-19, 22-25, 29, 30 (in part), 31, 33-38, 39-43, 49, 50 and 52-57 of the Proposed Re-amended Statement of Claim, which is Annexure B to these reasons for judgment; and

(b) delete paras 47 and 50 of the amended statement of claim.

1. The applicants are refused leave to amend the amended statement of claim to make the amendments shown in paras 4-5E, 38A and 44-47 of the Proposed Re-amended Statement of Claim, which is Annexure B to these reasons for judgment.
2. Pursuant to r 16.59(2) of the Federal Court Rules, the applicants are to file a re‑amended statement of claim that:

(a) incorporates and distinguishes the amendments referred to in order 5; and

(b) is marked with the information mentioned in r 16.59(1).

1. Pursuant to r 16.58(a) of the Federal Court Rules, unless the applicants comply with order 7 by 4.00 pm on 21 October 2025, order 5 ceases to have effect.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

1. By an interlocutory application lodged for filing on 24 March 2025, the applicants, Hartmut and Angela Frigger (Mr and Mrs Frigger) sought an order that I recuse myself, an order that they be granted leave to file a re-amended statement of claim, and an order that FTI Consulting (Australia) Pty Ltd (FTI), be joined as a party to these proceedings. FTI appears to be the employer of the second respondent, Kelly-Anne Trenfield. Mr and Mrs Frigger also subsequently applied for leave to amend their originating application.
2. I have already dealt with Mr and Mrs Frigger's application for an order that I recuse myself: Frigger (Trustee) v Bank of Queensland Limited [2025] FCA 447. Accordingly, these reasons are concerned with the balance of Mr and Mrs Frigger's interlocutory application, namely, their applications for leave to amend the originating application, to file a re-amended statement of claim, and for an order joining FTI as a party to these proceedings.
3. I would grant Mr and Mrs Frigger leave to amend their originating application. However, while I would grant Mr and Mrs Frigger leave to make some minor amendments to their amended statement of claim, I would refuse to grant leave to make the more substantive amendments that are sought. I would also refuse Mr and Mrs Frigger's application to join FTI as a party to these proceedings.
4. Before explaining why I have reached those conclusions, it is necessary to note that the first respondent, Bank of Queensland Limited (BoQ), has also filed an application for summary judgment. That application was filed in 2022, well before Mr and Mrs Frigger filed their interlocutory application. For reasons that need not be spelled out here, I reached the conclusion at the hearing of Mr and Mrs Frigger's interlocutory application that the hearing and determination of BoQ's application for summary judgment should await the determination of the balance of Mr and Mrs Frigger's interlocutory application.
5. For reasons that will become clear, it is convenient to deal with Mr and Mrs Frigger's application to amend the originating application and the amended statement of claim before then dealing with their application to join FTI as a party to these proceedings.

Applications to amend the originating application and to amend the amended statement of claim

1. Mr and Mrs Frigger currently make the following claims in their originating application:

On the grounds stated in the statement of claim, the Applicant claims:

1. An order pursuant to section 12GD Australian Securities and Investments Commission Act 2001 that the respondent remove the restriction on withdrawals on the following bank accounts:

(a) Account no. 22811228 in the name of Hartmut Hubert Josef Frigger

(b) Account No. 22810932 in the name of Angela Cecilia Theresa Frigger

1. An order pursuant to section 12GF Australian Securities and Investments Commission Act 2001 that the respondent pay the applicants as trustees of the Frigger Super Fund $1,920,000 for loss caused by the respondent's restriction on withdrawals on accounts in paragraph 1 above up to the date of the filing of this claim, and pay further losses that may be incurred to be calculated to the date the accounts are unfrozen.

1. Section 12GD of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act) provides that if, on an application made by the Minister, the Australian Securities and Investments Commission, or any other person, the Court is satisfied that a person has engaged, or is proposing to engage, in conduct that constitutes or would constitute a contravention of a provision in Div 2 of Pt 2 of the ASIC Act, or was a party to or conspired with others to contravene such a provision, the Court may grant an injunction in such terms as the Court determines to be appropriate. Further, s 12GF of the ASIC Act provides that a person who suffers loss or damage by the conduct of another person that contravenes a provision of various specified subdivisions in Div 2 of Pt 2 of the ASIC Act may recover the amount of the loss or damage by action against that other person or against any person involved in the contravention.
2. When Mr and Mrs Frigger filed their originating application, they also filed a statement of claim. However, a little over a month later, Mr and Mrs Frigger took advantage of r 16.51 of the Federal Court Rules 2011 (Cth), and filed, without leave, an amended statement of claim.
3. In both the originating application and the amended statement of claim, claims are made against BoQ, but there are no claims made against the second respondent, Ms Trenfield. This is because Ms Trenfield only became a party to these proceedings after she applied for, and was granted, leave to be joined as a party on the basis that she has an interest in the proceedings as the trustee of the bankrupt estates of Mr and Mrs Frigger: Frigger v Bank of Queensland [2021] FCA 1667.
4. I have previously summarised the nature of Mr and Mrs Frigger's currently pleaded allegations against BoQ: Frigger (Trustee) v Bank of Queensland Limited (No 2) [2025] FCA 526 at [10]‑[14]. In essence, Mr and Mrs Frigger allege that they lost the opportunity to invest certain funds standing to the credit of two BoQ accounts because BoQ wrongfully placed restrictions on withdrawals from those accounts, following a request made by the Official Receiver in bankruptcy under s 125 of the Bankruptcy Act 1966 (Cth). Although it is not entirely clear, Mr and Mrs Frigger currently appear to contend that BoQ contravened relevant provisions of the ASIC Act, and that ss 12GD or 12GF of that Act are thereby engaged.
5. At this stage, it is unnecessary to say anything about the merits of those allegations, or to deal with the question of whether it is open generally to Mr and Mrs Frigger to make those allegations in light of the findings made by Jackson J in Frigger v Trenfield (No 10) [2021] FCA 1500 at [533]. In particular, it is not necessary to consider the possible effects on Mr and Mrs Frigger's claims of his Honour's findings that Mr Frigger's interest in one of the BoQ accounts, and Mrs Frigger's interest in the other BoQ account, vested in Ms Trenfield pursuant to s 58(1)(a) of the Bankruptcy Act when sequestration orders were made on 20 July 2018 against both Mr and Mrs Frigger's estates in Kitay, in the matter of Frigger (No 2) [2018] FCA 1032. Those are issues that might well be raised in the context of BoQ's application for summary judgment.
6. It is common ground that Mr and Mrs Frigger require leave to amend the originating application: r 8.21 of the Rules. Further, as Mr and Mrs Frigger have already taken advantage of r 16.51(1) of the Rules to amend the original statement of claim, they also require leave to amend the amended statement of claim: r 16.53.
7. Mr and Mrs Frigger initially sought leave to make amendments to the originating application and to the amended statement of claim that were reflected in mark-ups shown in two documents lodged with the Court on 15 August 2025. Those documents were entitled 'Proposed Amended Originating Application' and 'Proposed Re-Amended Statement of Claim', respectively. However, part way through the hearing of their interlocutory application, Mr and Mrs Frigger provided further and different versions of those documents to the Court and to the respondents. As I made clear to Mr and Mrs Frigger at the hearing of their interlocutory application, the application to amend the originating application and the amended statement of claim will be determined by reference to those documents and not by reference to any other versions of those documents.
8. Several difficulties with the documents that were provided to the Court emerged after the hearing. After comparing those documents with the originating application and the amended statement of claim that have been filed, it became clear that the documents that had been provided to the Court did not clearly delineate all of the amendments sought. Accordingly, the Court has prepared its own versions of the documents that Mr and Mrs Frigger ultimately sought to rely on to more clearly indicate the full extent of the amendments sought. Those documents are referred to as the 'Proposed Amended Originating Application' and the 'Proposed Re-amended Statement of Claim' in the balance of these reasons, as well as in the orders that I have made, and are attached to these reasons as Annexures A and B, respectively, to aid in understanding these reasons.
9. It may be seen that Mr and Mrs Frigger seek leave to amend their originating application by deleting their claims for injunctive relief pursuant to s 12GD of the ASIC Act, and for compensation under s 12GF of the ASIC Act. Mr and Mrs Frigger also seek leave to substitute a claim for 'compensation' pursuant to s 236 of The Australian Consumer Law (being Sch 2 of the Competition and Consumer Act 2010 (Cth) (Australian Consumer Law)).
10. Section 236 of the Australian Consumer Law provides:

Actions for damages

(1) If:

(a) a person (the claimant) suffers loss or damage because of the conduct of another person; and

(b) the conduct contravened a provision of Chapter 2 or 3;

the claimant may recover the amount of the loss or damage by action against that other person, or against any person involved in the contravention.

(2) An action under subsection (1) may be commenced at any time within 6 years after the day on which the cause of action that relates to the conduct accrued.

1. Leave is also sought to make several amendments to the amended statement of claim. Many of those amendments are of a relatively minor nature. However, there are also several substantive amendments sought to be made, reflected in paras 4-5E, 38A, 44-47 and 52 of the Proposed Re-amended Statement of Claim.
2. In support of their applications, Mr and Mrs Frigger rely on an affidavit sworn by Mrs Frigger on 24 March 2025. They also seek to rely on a further affidavit of Mrs Frigger that was sworn on 22 August 2025, as well as a copy of a letter from FTI 'To the Bank as Addressed' dated 31 August 2018. It is unnecessary to say anything further about this evidence. None of that evidence bears upon the question of whether leave should be granted to allow the amendments that are sought to be made.
3. Ms Trenfield relies on two affidavits, affirmed on 11 April 2025 and 24 July 2025, respectively, by Peter Andrew Smith, a partner at Ms Trenfield's solicitors, Johnson Winter Slattery.
4. It is convenient to begin by considering Mr and Mrs Frigger's application to amend the amended statement of claim in terms that reflect the Proposed Re-amended Statement of Claim.

Should leave be granted to amend the amended statement of claim to reflect the Proposed Re-amended Statement of Claim?

1. In Caason Investments Pty Ltd v Cao [2015] FCAFC 94; (2015) 236 FCR 322 at [19]‑[21], Gilmour and Foster JJ said, in an often cited passage, that the power of the Court to grant or refuse leave must be exercised in the way that best promotes the Court's overarching purpose to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible. Further, the Court's power to grant leave to amend is broad and has the remedial objective of ensuring that any defect in the pleadings is cured and that the real questions in the controversy are properly agitated and to avoid a multiplicity of proceedings. Importantly, their Honours also said that leave to amend should be granted unless the proposed amendment is futile, such that the issue sought to be added is unlikely to succeed, the amendment is likely to be struck out or would cause substantial prejudice or injustice to the opposing party in a way that cannot be compensated by costs.
2. With those principles in mind, most of the amendments that are sought to be made to the amended statement of claim can be dealt with expeditiously; specifically, the amendments that are shown in paras 2, 3, 6-10, 14-19, 22-25, 29-31, 33-38, 39-43, 49, 50, and 53-57 of the Proposed Re-amended Statement of Claim, as well as the deletion of what were paras 47 and 50 of the amended statement of claim. By those amendments, Mr and Mrs Frigger seek to clarify which of the respondents, BoQ and Ms Trenfield, are the subject of the various pleas, to correct internal referencing and to delete certain, but curiously not all, pleas concerning the original claims for relief under the ASIC Act; (see, for example, para 8 of the Proposed Re‑amended Statement of Claim, which is not proposed to be deleted). Other amendments, such as those reflected in paras 55 and 56 of the Proposed Re-amended Statement of Claim, are more substantive in nature. However, in circumstances in which the respondents are yet to file a defence, there is no reason to conclude that any of those amendments would prejudice the respondents or cause them any injustice. Accordingly, I am prepared to grant Mr and Mrs Frigger leave to make those amendments to their amended statement of claim.
3. Mr and Mrs Frigger also seek leave to make the amendments that are reflected in paras 11, 30 and 52 of the Proposed Re-amended Statement of Claim. However, in relation to the amendments shown in paras 11 and 30 of the Proposed Re-amended Statement of Claim, I have assumed that Mr and Mrs Frigger do not in fact seek those amendments (other than the addition of the word 'first' before 'respondent' in para 30). This is because those amendments would have the effect of reverting back to the way that paragraph was originally pleaded when these proceedings were commenced, which seems to be an unlikely intended outcome.
4. The amendments that are shown in para 52 of the Proposed Re-amended Statement of Claim reflect Mr and Mrs Frigger's intention to substitute their claims under the ASIC Act with a claim or claims under the Australian Consumer Law. However, para 52 amounts to a less than satisfactory attempt to plead a new claim under s 18 of the Australian Consumer Law. Nevertheless, as the respondents have never applied to strike out the original plea, which was in similar, but equally deficient terms, I am prepared to grant leave to allow this amendment to be made. For the avoidance of doubt, this conclusion should not be understood to in any way reflect upon the merits of BoQ's pending application for summary judgment, or to foreclose any future strike out application that might be made.
5. It is now necessary to deal with the more substantive amendments that are sought to be made to the amended statement of claim, namely the proposed amendments shown at paras 4-5E, 38A and 44-47 of the Proposed Re-amended Statement of Claim.
6. In my view, Mr and Mrs Frigger should not be granted leave to make any of those amendments as all of those new pleadings are liable to be struck out.
7. The principles regulating the striking out of a pleading are well settled. A useful summary of those principles can be found in Sadie Ville Pty Ltd v Deloitte Touche Tohmatsu (A Firm) [2017] FCA 1202 at [17]‑[21]. Most relevantly to the circumstances of this case, the function of pleadings is to state with sufficient clarity the case that must be met by a respondent. A pleading will be embarrassing where it is unintelligible, vague or too general, or it is susceptible to various meanings, so as to embarrass the opposite party because they cannot know what is alleged against them. A pleading may also be embarrassing because it contains irrelevant allegations or if it contains a body of material by way of background factual matrix which does not lead to the making out of any defined cause of action, particularly if the offending paragraphs tend to obfuscate the issues to be determined: Alpert v Commonwealth of Australia (Department of Defence) (No 2) [2024] FCA 447 at [16], citing Uber Australia Pty Ltd v Andrianakis [2020] VSCA 186; (2020) 61 VR 580 at [50]. A statement of claim must also contain the material facts necessary to formulate a complete cause of action, and it is not sufficient simply to plead a conclusion drawn from unstated facts: Sadie Ville at [19], citing McKellar v Container Terminal Management Services Ltd [1999] FCA 1101 at [23]‑[26].
8. In each of paras 38A and 44-47 of the Proposed Re-amended Statement of Claim, Mr and Mrs Frigger allege the existence of various conspiracies. At para 38A, it is alleged that from 31 August 2018, Ms Trenfield and FTI conspired with BoQ to restrict withdrawals being made from the two BoQ accounts, and that 'the losses incurred by [Mr and Mrs Frigger]' were caused by that 'unlawful conspiracy'. At para 44, it is further alleged that on or about 1 December 2021, BoQ 'conspired with [FTI] and engaged in identity fraud' by opening certain bank accounts in Mr and Mrs Frigger's names. At para 45, another conspiracy is alleged between BoQ and FTI, namely, a conspiracy to steal the balances in the two BoQ accounts. At para 46, it is then alleged that FTI 'recorded bogus tax invoices ... for services that had not been supplied' to Mr and Mrs Frigger, and that this somehow amounted to or gave rise to a conspiracy between BoQ and FTI to steal a sum of money from Mr and Mrs Frigger. Finally, at para 47 it is pleaded that in all of the circumstances pleaded in paras 44-46, Ms Trenfield, FTI and BoQ were somehow parties to one overall conspiracy to defraud Mr and Mrs Frigger.
9. In my view, paras 38A and 44-47 of the Proposed Re-amended Statement of Claim are liable to being struck out, with the result that leave to make amendments in those terms should be refused. Even when those proposed pleas are considered in the context of the Proposed Re‑amended Statement of Claim as a whole, they fail to disclose a reasonable cause of action. Further, and in any event, they are liable to being struck out because they are likely to cause embarrassment in the proceeding.
10. As I have already said, Mr and Mrs Frigger have sought leave to amend their originating application to substitute their current claims for an injunction and damages under the ASIC Act with a claim for compensation under s 236(1) of the Australian Consumer Law. To succeed with that claim, Mr and Mrs Frigger would be required to prove that they suffered loss or damage because one or more of BoQ, Ms Trenfield and FTI contravened a provision of Chapter 2 or 3 of the Australian Consumer Law. Alternatively, Mr and Mrs Frigger could only succeed in a claim against BoQ, Ms Trenfield or FTI if one or more of them are shown to have been involved in a relevant contravention.
11. However, the material facts necessary to establish a claim under s 236(1) of the Australian Consumer Law have not been pleaded in the Proposed Re-amended Statement of Claim. Without intending to be exhaustive, there are no pleas concerning:

(a) the specific provision or provisions of Chapter 2 or 3 of the Australian Consumer Law that are alleged to have been contravened, other than the deficient plea in para 52 of the Proposed Re-amended Statement of Claim to which I have already referred earlier in these reasons;

(b) the particular conduct in which any of BoQ, Ms Trenfield or FTI have engaged that is alleged to amount to a contravention of a provision of Chapter 2 or 3 of the Australian Consumer Law, other than the conduct pleaded in para 52 of the Proposed Re-amended Statement of Claim, which is concerned only with BoQ;

(c) the particular conduct in which any of BoQ, Ms Trenfield or FTI have engaged that is alleged to amount to any of them being involved in a contravention of a provision of Chapter 2 or 3 of the Australian Consumer Law; or

(d) the specific loss or damage that is alleged to have been suffered because of the conduct that is alleged to have contravened a provision of Chapter 2 or 3 of the Australian Consumer Law.

1. Instead, what is sought to be pleaded in paras 38A and 44-46 of the Proposed Re-amended Statement of Claim are bare conclusions that BoQ, Ms Trenfield and FTI, in various different combinations and at different times, conspired with each other to injure Mr and Mrs Frigger in various different ways. Mr and Mrs Frigger then appear to wish to wrap up all of the alleged conduct pleaded in paras 44-46 (but not para 38A) in a further conclusionary pleading at para 47 of the Proposed Re-amended Statement of Claim in which they confusingly seek to allege that the combined conspiratorial conduct of each of BoQ, Ms Trenfield and FTI somehow 'constitutes a [separate] conspiracy to defraud [Mr and Mrs Frigger]'.
2. The proposed amendments reflected in paras 38A and 44‑47 of the Proposed Re-amended Statement of Claim are completely unintelligible and fall well short of fulfilling their intended function of identifying the issues and stating with sufficient clarity the case that each of BoQ, Ms Trenfield and FTI might be required to meet if the amendments were to be made. It is also impossible to understand from the Proposed Re-amended Statement of Claim how the matters sought to be pleaded in those paragraphs have any connection to a claim under s 236(1) of the Australian Consumer Law. In any event, even when read in the context of the Proposed Re‑amended Statement of Claim as a whole, including para 52, the amendments proposed by paras 38A and 44-47 fail to state the material facts that are necessary to constitute a completed cause of action to recover loss or damage under s 236(1) of the Australian Consumer Law. It follows that the application for leave to amend the amended statement of claim, insofar as it relates to the addition of paras 38A and 44-47 of the Proposed Re-amended Statement of Claim, must be refused.
3. If the true purpose of Mr and Mrs Frigger's application for leave to amend the amended statement of claim by the addition of paras 38A and 44-47 of the Proposed Re-amended Statement of Claim was to plead one or more tortious conspiracies, in addition to and apart from their proposed claim for relief under the Australian Consumer Law, I would also refuse to allow the amendments sought for at least two reasons.
4. Firstly, the pleas fail to state all the material facts that are necessary to constitute a complete tortious cause of action of conspiracy to injure. In that regard, there are two forms of torts of conspiracy to injure. The first is a conspiracy to injure by lawful means and the second is a conspiracy to injure by unlawful means. The elements of the tort of conspiracy to injure by lawful means are as follows:

(a) there was a combination or agreement between two or more persons;

(b) the sole or dominant purpose of the combination or agreement was to injure the plaintiff;

(c) the combination or agreement was carried into effect by the defendants' conduct; and

(d) the defendants' conduct in carrying the combination or agreement into effect caused damage to the plaintiff.

1. The elements of the tort of conspiracy to injure by unlawful means are as follows:

(a) there was a combination or agreement between two or more persons to engage in conduct amounting to unlawful means;

(b) a purpose of that combination or agreement was to injure the plaintiff;

(c) the combination or agreement was carried into effect by the commission of the agreed unlawful acts; and

(d) those unlawful acts caused damage to the plaintiff.

1. In that respect, see Lee v Abedian [2016] QSC 92; [2017] 1 Qd R 549 at [68]‑[70], citing Australian Wool Innovation Ltd v Newkirk [2005] FCA 290 at [60]‑[61]; Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899; (1999) 93 FCR 34 at [421], and Weston v Publishing and Broadcasting Ltd [2011] NSWSC 433 at [612].
2. Paragraphs 38A and 44-47 of the Proposed Re-amended Statement of Claim fall well short of pleading the material facts necessary to establish either of those causes of action. It is not even clear from the proposed amendments whether there are one, or more, of the two forms of conspiracy to injure on which Mr and Mrs Frigger may be intending to rely.
3. Secondly, if the intended purpose of paras 38A and 44-47 of the Proposed Re-amended Statement of Claim is to plead one or more tortious conspiracies, then that would be contrary to r 16.02(4) of the Rules. In that regard, r 16.02(4) provides that a party is not entitled to seek any relief that is additional to the relief claimed in the originating application. Mr and Mrs Frigger have not applied for leave to amend the originating application to add a new claim for damages due to some pecuniary loss sustained as a result of acts done in furtherance of any tortious conspiracy.
4. Mr and Mrs Frigger also seek leave to amend the amended statement of claim to reflect paras 4‑5E of the Proposed Re-amended Statement of Claim. However, I would not grant leave to make any of those amendments. These proposed pleadings are plainly embarrassing. They contain irrelevant allegations or background facts that do not in any way lead to the making out of any of Mr and Mrs Frigger's current claims under the ASIC Act or their proposed claim under the Australian Consumer Law.
5. Before moving on to deal with the question of whether leave should be granted to amend the originating application, it is necessary to briefly say something about one of the arguments that was put on behalf of Ms Trenfield in opposition to Mr and Mrs Frigger's application for leave to amend the amended statement of claim.
6. Ms Trenfield argued that Mr and Mrs Frigger were precluded from making the allegations at paras 4-5E of the Proposed Re-amended Statement of Claim because of certain orders that were made by Colvin J in other proceedings before this Court. By those orders, Colvin J granted conditional leave to Mr and Mrs Frigger to discontinue proceedings in WAD 128 of 2023. One of the conditions of the grant of leave was that Mr and Mrs Frigger shall not commence any further proceedings in any court against Ms Trenfield based upon the allegations or asserting the same causes of action as those that were to be heard in that matter. In that regard, Ms Trenfield relies on the fact that in that matter Mr and Mrs Frigger had also alleged that she had had made false statements in a declaration of independence, relevant relationships and indemnities.
7. Given my conclusion that leave to amend the amended statement of claim should not be granted to allow amendments to be made that reflect paras 4-5E of the Proposed Re-amended Statement of Claim, which is based on other grounds, it is unnecessary to determine the correctness of Ms Trenfield's argument. I would only note that as the current proceedings were already on foot at the time Colvin J made the orders in WAD 128 of 2023, there is a real question about whether amendments made in accordance with paras 4-5E of the Proposed Re-amended Statement of Claim would have amounted to 'commencing any further proceedings' against the respondent.

Should leave be granted to amend the originating application to reflect the Proposed Amended Originating Application?

1. Rule 8.21(1) of the Rules provides that an applicant may apply for leave to amend an originating application for any reason, including for any of the various reasons set out in paras (a) to (g) of that rule. In the context of Mr and Mrs Frigger's application, it is only necessary to note that r 8.21(1)(g)(i) provides that an applicant may, relevantly, apply for leave to substitute a new claim for relief, or a new foundation in law for a claim for relief, which arises out of the same facts or substantially the same facts as those already pleaded to support an existing claim for relief by the applicant.
2. As I would not allow the amended statement of claim to be amended by introducing the substantive pleas that appear at paras 4-5E, 38A and 44-47 of the Proposed Re-amended Statement of Claim, and given that I am prepared to allow the amendment that is reflected in para 52 of the Proposed Re-amended Statement of Claim, the new claim for relief under s 236 of the Australian Consumer Law may be seen to arise out of the same facts or substantially the same facts as those already pleaded to support the existing claim. Accordingly, as there can be no prejudice to any of the respondents, and subject to what is said below about Mr and Mrs Frigger's application to join FTI as a party to these proceedings, I am prepared to grant leave to amend the originating application in terms that reflect what is set out in the details of claim section of the Proposed Amended Originating Application.

1. Mr and Mrs Frigger's application to join FTI as a party to these proceedings depends on leave being granted to make amendments to the amended statement of claim reflecting paras 4-5E, 38A and 44-47 of the Proposed Re-amended Statement of Claim. As I would refuse leave to make those amendments, there are no pleaded facts necessary to formulate a complete cause of action against FTI. Accordingly, the application to join FTI as a party must also be refused.

1. I would refuse Mr and Mrs Frigger's application to join FTI as a party to these proceedings.
2. I would grant leave to amend the originating application in terms reflecting the details of claim section that appears in the Proposed Amended Originating Application, which appears as Annexure A to these reasons.
3. I would grant leave to amend the amended statement of claim in part, by allowing the amendments that are reflected in paras 2, 3, 6-10, 14-19, 22-25, 29, 30 (in part), 31, 33-38, 39‑43, 49, 50 and 52-57 of the Proposed Re-amended Statement of Claim, which appears as Annexure B to these reasons. I would also grant leave to delete paras 47 and 50 of the amended statement of claim. However, I would refuse to grant leave to amend the amended statement of claim in terms reflected in paras 4-5E, 38A or 44-47 of the Proposed Re-amended Statement of Claim.
4. I will give the parties the opportunity to be heard on the question of costs.

I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Vandongen.

Hartmut Hubert Josef Frigger as trustee of the Frigger Super Fund (ABN 99604) and another named in the Schedule

KELLY-ANNE LAVINA TRENFIELD, TRUSTEE OF THE BANKRUPT ESTATES OF HARTMUT FRIGGER AND ANGELA FRIGGER

The Applicant applies for the relief set out in this application.

The Court will hear this application, or make orders for the conduct of the proceeding, at the time and place stated below. If you or your lawyer do not attend, then the Court may make orders in your absence.

You must file a notice of address for service (Form 10) in the Registry before attending Court or taking any other steps in the proceeding.

Time and date for hearing: [Registry will insert time and date]

The Court ordered that the time for serving this application be abridged to [Registry will insert date, if applicable].

Signed by an officer acting with the authority of the District Registrar

On the grounds stated in the re-amended statement of claim, the Applicants claims:

1. An order pursuant to section 12 GD Australian Securities and Investments Commission Act 2001 that the respondent remove the restriction on withdrawals on the following bank accounts:

(a) Account no. 22811228 in the name of Hartmut Hubert Josef Frigger

(b) Account No. 22810932 in the name of Angela Cecilia Theresa Frigger

1. An order pursuant to section 12GF Australian Securities and Investments Commission Act 2001 236 Australian Consumer Law (Schedule 2 Competition and Consumer Act 2010) that the respondents pay the applicants as trustees of the Frigger Super Fund $1,920,000 compensation for loss of opportunity to invest the funds deposited on 27 July 2018 in account No 22811228 in the name of Hartmut Hubert Josef Frigger and No 22810932 in the name of Angela Cecilia Theresa Frigger, caused by the respondent's' restriction on withdrawals on accounts in paragraph 1 above up to the date of the filing of this claim, and pay further losses that may be incurred to be calculated to the date the accounts are unfrozen.
2. Costs.

It is intended to serve this application on all Respondents.

Hartmut Hubert Josef Frigger as trustee of the Frigger Super Fund (ABN 99604) and another named in the Schedule

1. The Applicants are individual trustees of their self-managed superannuation fund named "Frigger Super Fund" having Australian Business Number 99602844956 and tax file number with last three digits '650'.
2. The first rRespondent is:

(a) a body corporate registered with Australian Securities and Investments Commission having Australian Company Number 009 656 740;

(b) is a financial corporation within the meaning of s 51 of the Constitution and is a body corporate that carries on as its sole or principal business the business of banking.

1. At all material times the first respondent engaged in the business activity of providing a financial service being a depository service within the meaning of section 12BAB ASIC Act 2001.
2. The third respondent obtained appointment as trustee of the Applicants' bankrupt estates by the third respondent, through its employee Trenfield, falsely stating in a Declaration of Independence, Relevant Relationships and Indemnities that she was a partner in FTI Consulting (Australia) Pty Ltd (FTI) and FTI is a partnership, in circumstances where FTI is not a partnership and Trenfield is not a partner in FTI or a partner in any partnership. Had the third respondent not made such false statements through its employee, it would not have been appointed as trustee.
3. FTI is a company registered with ASIC having Australian Company Number 160 397 811 and is indirectly fully owned by FTI Consulting Inc, which is listed on the New York Stock Exchange.

5A. At all material times during the events pleaded in paragraphs 6-36 below, the applicants' conduct in respect of the Bank of Queensland accounts was undertaken in their capacity as trustees of the Frigger Super Fund.

5B. The finding of the Federal Court on 1 December 2021 that Bank of Queensland funds had vested in the bankruptcy trustee did not have the effect of undermining or invalidating the applicants' conduct as trustees during the period prior to 1 December 2021.

5C. The finding of the Federal Court on 1 December 2021 does not exonerate the respondents' conduct prior to that date.

5D. The conduct of the first respondent in refusing a withdrawal of funds held by it for the benefit of the applicants, and the conspiracy of the respondents in respect of the freezing of the Bank of Queensland funds from 31 August 2018 constitutes the causes of action pleaded in this matter, which occurred prior to the commencement of this action in October 2021.

5E. Notwithstanding that the parts played by the second respondent, as employee of the third respondent, did not come to the attention of the applicants until mid-2022, and the third respondent until 14 November 2024, the causes of action had already commenced on 27 July 2018 and 31 August 2018.

1. On or about 1 March 2018 the second-named applicant as trustee of the Frigger Super Fund (Mrs Frigger) opened a bank account by filling out a form on the first respondent's website:

(a) The account was described by the first respondent as "WebSavings Account".

(b) The first respondent assigned account number 22696479 to the account. (First WebSavings Account)

1. Material terms and conditions disclosed by the first respondent in its product disclosure statement published on its website for First WebSavings Account were:

(a) there were no restrictions on withdrawing funds;

(b) bonus interest would be payable if no withdrawals were made during a calendar month;

(c) bonus interest would not be paid if a withdrawal was made during a calendar month;

(d) bonus-interest would be paid for the first 4 months;

(e) standard interest would be paid after 4 months.

1. The disclosures in [5] [7] above constituted a representation as to future matters within the meaning of section 12BB ASIC Act 2001.
2. On or about 1 March 2018 Mrs Frigger attended the first respondent's branch at 18‑22 Riseley Street, Applecross and deposited HSBC bank cheque for $1,995,443.08 to First WebSavings Account.
3. On or about 2 March 2018 Mrs Frigger attended the first respondent's Applecross branch and deposited to First WebSavings Account a cheque for $500,000 drawn on the Frigger Super Fund bank account No. "......7174" held with BankWest, South Perth branch (BankWest Account).
4. At the time of opening the First WebSavings Account on-line Mrs Frigger notified the first respondent included the tax file number (TFN) for First WebSavings Account was the TFN of the Frigger Super Fund having last three digits 650.
5. On or about 5 March 2018 Mrs Frigger added the words "Frigger Super Fund" to First WebSavings Account name.
6. First WebSavings Account was held by Mr Frigger as trustee of the Frigger Super Fund.
7. On 31 March, 30 April, 31 May 2018 and 30 June 2018 the first respondent credited interest $5,786.62, $5,961.83, $6,175.24 $5,990.76 to First WebSavings Account.
8. In the circumstances of the matters in [9]-[11] [11]-[13] above, the first respondent ought to have been satisfied that the First WebSavings Account was on behalf of another person, being the members of the Frigger Super Fund, within the meaning of section 125 Bankruptcy Act 1966.
9. On 2 July 2018 Mrs Frigger attended the first respondent's Applecross branch with her husband, the first-named applicant (Mr Frigger). Mrs Frigger closed First WebSavings Account and requested the balance and accrued interest be deposited to a new WebSavings Account in Mr Frigger's name. The first respondent informed the Friggers that it was not possible to transfer the balance to a new WebSavings Account and it was necessary to open a savings account in Mrs Frigger name through which the transfers could be made.
10. On 2 July 2018 the first respondent opened saving account number 22810932 in Mrs Frigger's name (Savings Account) and transferred the balance of the First WebSavings Account to Savings Account.
11. On 2 July 2018 the first respondent opened a WebSavings Account in Mr Frigger's name having account number 22811228 and transferred $2,519,597.42 from Savings Account to the new WebSavings Account (Second WebSavings Account), leaving a balance of $50.00 in Savings Account.
12. The first respondent did not provide the applicants with a product disclosure statement for Second WebSavings Account and the applicants assumed the product disclosure statement for First WebSavings Account in [5] [7] above also applied to Second WebSavings Account.
13. Second WebSavings Account was held by Mr Frigger as trustee of the Frigger Super Fund.
14. On or about 5 July 2018 Mr Frigger added the words "Frigger Super Fund" to Second WebSavings Account name.
15. On 13 July 2018 by email Mr Frigger notified the first respondent TFN for the Second WebSavings Account was TFN of the Frigger Super Fund having the last three digits 650.
16. In the circumstances of the matters in [18]-[20] [20]-[22] above, the first respondent ought to have been satisfied that the Second WebSavings Account was on behalf of another person, being the members of the Frigger Super Fund, within the meaning of section 125 Bankruptcy Act 1966.
17. During the period from 1 March 2018 until 13 July 2018 the first respondent attempted to change TFN notified on the First WebSavings Account and Second WebSavings Account, but was unable to do so.

The applicants hold copies of email communications between respondent's staff during early July 2018 and respondent's staff and FTI Consulting Pty Ltd during May-July 2019

1. On 3 July 2018 the first respondent submitted TFN/ABN report to the ATO in respect of the applicants' accounts. No correction report was received from the ATO.
2. On or about 20 July 2018 the Federal Court made sequestration orders against the applicants and the Official Receiver was appointed trustee.
3. On or about 24 July 2018 the applicants attended the Applecross branch and deposited a cheque for $300,000 to Second WebSavings Account drawn on BankWest Account.
4. The funds deposited to First WebSavings Account and Second WebSavings Account comprised income earned by Frigger Super Fund on trust estate assets.
5. On or about 25 July 2018 pursuant to s 125 Bankruptcy Act 1966 the Official Receiver by letter notified the first respondent of the applicants' bankruptcy and requested the first respondent place a restriction on any accounts in the applicants' names having a cash balance of more than $5,000.00.
6. On, or prior to, or about 25 July 2018 the first respondent placed a restriction on Savings Account and Second WebSavings Account preventing the applicants from withdrawing funds.
7. In the circumstances of the matters in [13] [15] and [21] [23] above, the first respondent's conduct in [28] [30] above constituted a contravention of s 125 Bankruptcy Act 1966.
8. On 27 July 2018 the Official Trustee determined that Second WebSavings Account and BankWest Account were accounts of Frigger Super Fund.
9. On 27 July 2018 the Official Trustee sent an urgent letter to the first respondent advising that the Second WebSavings Account is an account for the Frigger Super Fund and directed that the first respondent immediately remove the restriction.
10. On 278 July 2018 the applicants attended the Applecross branch and attempted to withdraw the balance of Savings Account and Second WebSavings Account. The first respondent refused the applicants' withdrawal requests.
11. In the circumstances of the matters in [29] - [32] [31] - [34] above, the first respondent's conduct constituted contravention of a material term of the contract:

(a) Savings Account had a balance of less than $5,000 and was not subject to the Official Trustee's written instructions contained in the letter dated 25 July 2018;

(b) Second WebSavings Account name included "Frigger Super Fund" and notification of Frigger Super Fund TFN.

1. Had the first respondent not restricted withdrawals from Savings Account and Second WebSavings Account, the applicants would have closed the accounts and invested the funds in shares and managed investments listed on the Australian Stock Exchange.
2. On 30 July 2018 the first respondent sent a letter to the Official Trustee advising of Savings Account and Second WebSavings Account, and Second WebSavings Account was frozen.
3. On 30 July 2018 the official trustee advised the first respondent to maintain the freeze on the Second WebSaving Account because it had received further information which questioned whether the account was held by the Frigger Super Fund. No further information has ever been disclosed to the first respondent by the official trustee or its replacement FTI Consulting Pty Ltd.

38A. During the period from 31 August 2018 the second and third respondents conspired with the first respondent in respect of the First Websaving Account and the Second Websaving Account and restricted withdrawals on the accounts. In those circumstances the losses incurred by the applicants were caused by an unlawful conspiracy of the respondents.

1. On or about 24 May 2019 director of FTI Consulting Pty Ltd, Paris Parasadi, sent an email to the first respondent, requesting TFN for each of the applicants' accounts and whether TFN had ever been changed.
2. On 27 May 2019 the first respondent advised Mr Parasadi that TFN for each of the accounts ended in "650" and TFNs had not been changed.
3. On 3 July 2019 the first respondent submitted TFN/ABN report to the ATO in respect of the applicants' accounts.
4. On or about 18 July 2019 the first respondent by email advised FTI Consulting Pty Ltd that the first respondent had "submitted TFN/ABN report to the ATO on 3 July 2019 but still not received correction report yet from ATO. We will definitely come back to you once that correction report received from ATO."
5. No correction report was received by the first respondent from the ATO within one month or at all.
6. On or about 1 December 2021 the first respondent conspired with FTI Consulting (Australia) Pty Ltd and engaged in identity fraud by opening bank accounts Numbers 23039942 and 23267367 in the Applicants' names, "Hartmut & Angela Frigger (A Bankrupt)" without knowledge or authority of the Applicants:

(a) Tax file numbers of Hartmut Hubert Josef Frigger and Frigger Super Fund were fraudulently notified by the first respondent and FTI on the accounts.

(b) When the above matters were brought to the attention of Trenfield, the first respondent changed the name of No 23267367 to "Kelly-Anne Lavina Trenfield AS Trustee for the Bankrupt Estate of Hartmut and Angela Frigger". No.23039942 was not changed because it was the nominated account for receipt of dividends on shares held by the applicants, as trustees of Frigger Super Fund, which dividends would not be paid to an account in Trenfield's name.

1. On or about 1 December 2021 the first respondent and FTI conspired to steal, and transferred, the balances of First WebSavings Account and Second WebSavings Account to No 23267367 without the knowledge or consent of the applicants, being an amount exceeding $3,000,000.
2. On or about 20 September 2023 FTI recorded bogus tax invoices in the amount of $907,772.99 to the applicants, without the applicants' knowledge, for services that had not been supplied to the applicants. The first respondent and FTI conspired to steal $907,772.99 from the applicants by transferring $907,772.99 from No. 23039942 to FTI's bank account on 20 September 2023.
3. In the circumstances of the matters in [44]-[46] above, the respondents' conduct constitutes a conspiracy to defraud the applicants.
4. On or about 26 July 2021 the applicants' bankruptcies were discharged by law.
5. On or about 30 July 2021 the applicants attended the Applecross branch and provided the first respondent with extracts from National Personal Insolvency Index for each of the applicants noting the applicants' discharge from bankruptcy by law. The applicants requested withdrawal of funds from Savings Account and Second WebSavings Account. The first respondent refused the applicants' withdrawal requests.
6. On 13 September 2021 the first respondent sent a letter to the applicants advising that it will not be releasing funds without instruction from FTI Consulting.
7. In the circumstances of the applicants' discharge by law from bankruptcy on 26 July 2021, Savings Account and Second WebSavings Account are not accounts held by an undischarged bankrupt.
8. In the circumstances of the matters in [13], [21], [28], [29], [32], [33], [35], [40], [43], [44] [15], [23], [30], [31], [34], [35], [37], [42], [45], [46] the first respondent's representation in [5a] [7a] above was a misleading representation as to a future matter within the meaning of section 12BB ASIC Act 2001 of section 18 Australian Consumer Law (Schedule 2 Competition and Consumer Act 2010).
9. The respondent's conduct in [46] above constitutes contravention of section 12BB, 12DA and 12DF ASIC Act.
10. By restricting withdrawals on Savings Account on 25 July 2018 held by Mrs Frigger with a balance of $50.00 the first respondent contravened s 125 Bankruptcy Act 1966.
11. By restricting withdrawals on Second WebSavings Account held by Mr Frigger on behalf of another person, the first respondent contravened a material term of the contract.
12. The respondent's conduct in [48]-[49] above constitutes contraventions of s 12DA ASIC Act 2001.
13. In the circumstances of the respondents' conduct in [49] [51] pleaded above, the applicants as trustees and fully-vested beneficiaries of the Frigger Super Fund, alternatively as beneficiaries of their bankrupt estates, lost the opportunity to invest the funds in Second WebSavings Account in shares and managed funds listed on the Australian Stock Exchange and lost the opportunity to earn $1,920,000 in interest and dividend income and capital gains from such investments during the period from July 2018 until the date of this document:

The applicants will provide particulars of the losses at the trial of this proceeding.

1. In the circumstances of the matters in [50] 38A, [40-47] and [52] pleaded above, the applicants are entitled to an order in terms of paragraph [1] in the Originating Application. that the respondents jointly and severally pay the applicants compensation for loss and damages to be calculated by a registrar pursuant to Federal Court Rule 30.41(1)(b).
2. In the circumstances of the matters in [51] [53] above the applicants are entitled to an order in terms of paragraph [2] in the Originating Application.