On 19 June 2025, I delivered my reasons for decision dismissing Mrs Frigger's application for summary judgment.[1] Mrs Frigger did not attend this hearing. For this reason, rather than make any costs orders in her absence, I ordered that submissions be filed and for the question of costs to be determined on the papers.
The defendant sought orders that Mrs Frigger pay the costs of the application to be taxed if not agreed. In its submission, the application was 'the epitome of an "unduly technical and costs dispute about a non‑essential issue".'[2]
In contrast, Mrs Frigger said that the appropriate costs order was for costs to be reserved or that there be no order for costs. In her submission, the fact that the summary judgment application was dismissed did not, in itself, mean the application was unmeritorious, misconceived, or improperly brought.[3]
[2]
The court has a wide discretion in relation to the costs order that can be made.[4] While this discretion is broad, it is not unfettered and must be exercised judicially.[5]
The usual order where an application for summary judgment is dismissed is that the costs of the application are in the cause. It is only in exceptional cases that costs will be awarded to the party who successfully opposed the application.
However, given modern case management practices, there has been some discussion as to whether this 'ordinary rule' should be reconsidered.[7] In NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd, the Court of Appeal held there was no basis to doubt the correctness of the ordinary rule, but noted that it is not fixed nor inviolable.[8] Where a reasonable party ought to have known it had no reasonable prospects of success of obtaining summary judgment, given case management principles, it may not be just for the applicant to have the costs of the failed interlocutory application, even if successful at trial.[9]
The defendant submitted that the application for summary judgment proceeded on two issues (the evidence of Mr Boyle and the basis on which the determination of the preliminary issues by Feutrill J was made), which ultimately were the subject of Feutrill J's judgment in Frigger v Professional Services of Australia Pty Ltd [No 5].[10] The defendant contended that, in these circumstances, the application did not have good prospects of success and the costs of the application should not be deferred. Reliance was also placed on the other aspects of the application (to strike out the memorandum of appearance and for default judgment) that were wholly unsuccessful and deserved 'a costs sanction'.[11]
Mrs Frigger emphasised that a central issue raised on the application was the capacity of the defendant to appear in the proceedings and to give instructions to solicitors.[12] This issue has not yet been determined and will be determined at the final hearing. If this contention was upheld at the final hearing, it would not be appropriate for the defendant to have its costs of this application.
While this matter has not been entered into the court's Commercial and Managed Cases List, current case management principles strongly discourage interlocutory disputes unless they are necessary. The factual issues raised on the application require factual findings to be made. These findings can only be made after the parties have had an opportunity to adduce evidence and there has been cross-examination of relevant witnesses. For this reason, it is my view that a reasonable party in the position of Mrs Frigger ought to have known that there were no reasonable prospects of successfully obtaining summary judgment. On this basis, I do not consider that it would be just for Mrs Frigger, even if successful at trial, to have the costs of the failed application.
However, this does not mean that the appropriate order is that the defendant should have its costs of the application. While I accept that at least one of the grounds for the application (whether the defendant has been validly incorporated) is the subject of the decision of Feutrill J, his Honour's decision was only delivered after this application had been heard and the decision reserved. In addition, this is not the only basis for the application. I accept that if it were ultimately determined at the final hearing of this matter that there were no valid directors of the defendant, it would not be appropriate for the defendant have its costs of the application.
In my view, the appropriate costs order is that the costs of the application be the defendant's costs in the cause, to be taxed if not agreed. This means that if the defendant is successful at trial, it will be entitled to its costs of the application. However, in the event that Mrs Frigger is successful, there will, in effect, be no order as to the costs of the application.
[3]
For these reasons, the costs order will be that the costs of the application for summary judgment dated 23 August 2023 be the defendant's costs in the cause, to be taxed if not agreed.
[4]
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
[5]
[1] Frigger v Professional Services of Australia Pty Ltd [No 2] [2025] WASC 238.
[6]
[2] Defendant's submissions dated 11 July 2025 [2].
[7]
[3] Plaintiff's submissions filed 3 July 2025 [3].