Court of Appeal (WA)|2014-04-08|Before: Pullin JA

The application of Mrs Angela Frigger and Mr Hartmut Frigger (together the Friggers) seeking that [PSA] pay the Friggers' costs on an indemnity basis of [PSA's] application for freezing and ancillary orders ('the Defendants Application') including any reserved costs be dismissed.
The application of [PSA] seeking that the Friggers pay [PSA's] costs of the Defendants' Application including any reserved costs be dismissed.
There otherwise be no order as to the costs of the Defendants' Application, or of the application of the Friggers, for costs in respect of the Defendants' application, saving orders previously made for costs in any event, and the costs of today which are those of [PSAS] fixed at $429.00 and payable forthwith.

31 His Honour also made an order that the Friggers pay Mr Holbrook's costs without regard to the limit imposed by the relevant scale item. The precise terms of that order are set out later when dealing with Mr Holbrook's application to dismiss the Friggers' appeal against those orders.

32 In his Honour's reasons for decision in CAT [No 3] (S), Simmonds J referred to a number of general principles, including setting out an extract from Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622, 624 - 625 (McHugh J). His Honour extracted what he considered were the following principles from that case:

(a) when orders terminate without a hearing on the merits, the usual approach to costs is that no order should be made as to costs, unless and to the extent that a party acted unreasonably in relation to obtaining, continuing or resisting the making or continuation of the orders;

(b) the court should not enter into the merits where the only reason for entry into them is the determination of a costs order;

(d) however, even where the parties have acted reasonably, the court may feel confident that one party was almost certain to have succeeded had the matter been fully tried and then costs may be awarded to that party, but such cases are likely to be rare.

33 The Friggers submitted that those principles did not apply where the Friggers were not a party to the proceedings [77]. Simmonds J determined that the principles in Ex parte Lai Qin should apply [78], [80].

The Friggers' application for costs against PSA

34 It is not necessary to set out in full Simmonds J's reasons for dismissing the Friggers' application. They appear in CAT [No 3] (S) [82] - [116]. Simmonds J dismissed the Frigger's application for an order for costs in their favour against PSA [115]. His Honour concluded that it was not unreasonable for PSA to seek the freezing and ancillary orders, or to seek the maintenance of the orders until after the appointment of the liquidator in CAT's insolvency [112]. His Honour rejected the Friggers' submission that the Friggers were almost certain to have succeeded if 'the action' had been tried [113].

35 His Honour referred to matters referred to in various affidavits sworn by Mrs Frigger (including the affidavit sworn on 23 September 2008 in the stay application proceedings before Buss JA referred to earlier, an affidavit sworn on 22 June 2010 and filed in the proceedings before Simmonds J, and an affidavit sworn on 12 October 2010 and also filed in the proceedings before Simmonds J), which were called into question by PSA [95] - [96]. His Honour noted that no resolution of the issues raised between the parties arising out of those affidavits could be reached in proceedings in relation to costs [97].

36 As to the submissions by the Friggers that the freezing orders had never come into effect because the undertaking of Mr Holbrook had never been provided in a proper form, his Honour said that it was 'reasonably arguable that the undertaking by Mr Holbrook was such that the freezing order came into effect' [99], [106].

37 His Honour then turned to the effect of the appointment of the liquidator of CAT. The Friggers contention was that the appointment of the liquidator in the members' voluntary winding-up was the appointment of an independent party whose responsibilities included enquiring into whether there were assets of CAT held by others or other assets held as a result of voidable transactions with it. His Honour dealt with this between [107] - [111] and concluded:

[I]t is not evident to me that it would be unreasonable for [PSA] to seek the making of the ... freezing and ancillary orders notwithstanding the appointment of the liquidator in the members' voluntary liquidation. Nor is it evident to me it would be unreasonable for [PSA] to seek the maintenance of those orders until after a time following the appointment of the liquidator in CAT's insolvency [112].

38 His Honour concluded that he was unable to be satisfied that the Friggers were almost certain to have succeeded if 'the action had been tried' [113]. His Honour did not define what he meant by 'the action'.

39 As a result his Honour dismissed the Friggers' application that PSA pay the Friggers' costs [115].

The application by PSA that the Friggers pay their costs

40 PSA submitted that they were the successful parties. His Honour said he was unable to accept that submission. His Honour found that the arguments on both sides were arguable [120]. As a result, applying the principles set out in Ex parte Lai Qin, his Honour made the order set out above on 16 March 2012 dismissing the application by PSA for a costs order against the Friggers. That order is the subject of the PSA cross-appeal.

The Friggers' application for costs against Mr Holbrook

41 His Honour observed that an order for costs against a non-party would be exceptional and only made after exercising considerable caution [127]. His Honour concluded that it had not been shown, as the Friggers' argued, that Mr Holbrook had provided a 'manifestly' defective undertaking or that the undertaking was defective at all [128] - [129]. His Honour therefore dismissed the Friggers' application for costs against Mr Holbrook.

Mr Holbrook's application for costs against the Friggers

42 His Honour noted that Mr Holbrook put his case for costs against the Friggers on two bases. One was that the Friggers had alleged that Mr Holbrook had acted dishonestly [135] and that the undertaking given by Mr Holbrook was 'false, misleading and/or valueless' [136]. His Honour noted the submission from Mr Holbrook that such an allegation of dishonesty required a response including attendance at hearings by a legal representative [137].

43 The other basis for Mr Holbrook's application was the contention by the Friggers that the undertaking given by Mr Holbrook was of no effect [138].

44 His Honour, in effect, held that the allegation of dishonest conduct meant that it was reasonable for Mr Holbrook to appear [141] - [142]. As a result, his Honour made an order that the Friggers pay Mr Holbrook's costs [146]. The precise form of that order is set out later in these reasons.

45 The Friggers filed an appeal notice on 30 March 2012 and identified the orders which were the subject of their appeal. Some orders related to PSA. Some related to Mr Holbrook. They were identified as:

9 June 2010 - The [Friggers] pay the respondents' costs thrown away for the hearing on 9 June 2010.
22 July 2010 - the [Friggers] pay [PSA's] costs of the hearing fixed at $405.00.
14 October 2010 - There be no order as to costs of [PSA's] dismissed application to cross-examine [Mrs Frigger] in support of their dismissed application for indemnity costs.
28 September 2011 - The [Friggers'] application to adduce fresh evidence be dismissed.
28 September 2011 - The [Friggers'] pay the respondents' costs of the [Friggers'] application fixed at $2,150.00.
9 March 2012 - The [Friggers] pay [Mr Holbrook's] costs fixed at $429.00 and [PSA's] costs fixed at $429.00.
16 March 2012 - The [Friggers] pay the costs of [Mr Holbrook's] involvement in the proceedings, to be taxed without regard to the relevant scale.
16 March 2012 - The [Friggers'] application for costs against [Mr Holbrook] as far as they related to dealing with [Mr Holbrook's] undertaking be dismissed.
16 March 2012 - The [Friggers'] application for indemnity costs for [PSA's] application for freezing and ancillary orders be dismissed.
16 March 2012 - The [Friggers] pay [PSA's] costs of the hearing on 16 March 2012 fixed at $429.00.

46 The Friggers were self-represented at the time they filed the appeal notice.

47 The Friggers filed their appellants' case on 25 May 2012. By that time, they had obtained legal representation. The Friggers' grounds of appeal in their appellants' case dated 25 May 2012 alleged error by Simmonds J in making the costs orders in relation to various hearings relating to the freezing and ancillary orders.

48 The grounds of appeal referred indiscriminately to all of the orders the subject of the appeal, with no separate grounds identifying the alleged error or errors in respect of each order. That was unsatisfactory. Four of the orders were orders in favour of PSA made because of the particular circumstances of the day on which the order was made; for example, the order that the Friggers pay PSA's costs fixed at $429 for the hearing on 9 March 2012 was because the Friggers had only just briefed new counsel and that caused an adjournment which would have been unnecessary if counsel had not been briefed late. That was an issue quite separate from the issue about whether or not costs should be awarded in relation to the making of the freezing and ancillary orders. Another order appealed by the Friggers was that the Friggers pay costs thrown away because conduct of the Friggers had wasted costs. Three orders under appeal related to Mr Holbrook. Those orders raised issues separate from the issues between PSA and the Friggers.

49 On 22 January 2013, the Friggers filed a notice indicating that they were now, again, self-represented. In this court at a directions hearing on 24 January 2013 it was pointed out by the court to the Friggers that one set of grounds in relation to all 10 orders the subject of appeal would not identify the errors alleged in relation to the different costs orders appealed. It was explained to the Friggers by the court that it would be necessary for them to prepare separate grounds of appeal in relation to each order that was being challenged. At a further directions hearing on 21 June 2013, the appellants' case dated 25 May 2012 was struck out and the Friggers were given leave to file an amended appellants' case to address the issues identified by the court.

50 The amended appellants' case was filed by the Friggers on 11 July 2013. The amended appellants' case also failed to include separate grounds of appeal in relation to each order the subject of the appeal, and instead included grounds that referred to grouped sets of orders under appeal. This again made it impossible to distinguish the alleged error or errors in respect of each order under appeal.

51 Eventually, it was necessary to strike out the amended appellants' case dated 11 July 2013 as against PSA and make a springing order on 1 October 2013 requiring that there be separate grounds of appeal relating to each costs order which was challenged. Mrs Frigger said at a hearing on 1 October 2013 that she 'appreciated' being given the further opportunity to file proper grounds of appeal (1 October 2013, ts 114). The order made on 1 October 2013 read, relevantly:

Unless by 4.00 pm Monday, 14 October 2013 the appellants file and serve a substituted appellants' case in which:

(a) each order appealed against is the subject of separate grounds of appeal prepared in accordance with the Supreme Court (Court of Appeal) Rules 2005; and

(b) the appellants' submissions give a separate heading for each order appealed under which the grounds relating to that order are addressed in accordance with the Supreme Court (Court of Appeal) Rules 2005,

the appeal against [PSA] is dismissed and [the Friggers] pay [PSA's] costs of the appeal including reserved costs to be taxed.

52 The Friggers submitted a reamended appellants' case for filing on 14 October 2013. However, it was not accepted for filing as it did not contain separate grounds of appeal for each order appealed against, nor submissions with separate headings for each order appealed under which each ground relating to that order was addressed as required by the springing order dated 1 October 2013. The reamended appellants' case also contained grounds of appeal against Mr Holbrook in circumstances where leave had not been granted to the Friggers to amend their grounds of appeal relating to Mr Holbrook and where the sole ground of appeal relating to Mr Holbrook in the amended appellants' case dated 11 July 2013 still stood. The springing order was not complied with. As a result, the Friggers' appeal as against PSA was dismissed. A judgment dismissing that appeal has been drawn up and sealed. The judgment took effect on 14 October 2013. This was not challenged by the Friggers (see appeal ts 3).

PSA's application for a special costs order

53 On 30 October 2013, 16 days after the judgment dismissing the Friggers' appeal against PSA took effect, PSA gave notice in accordance with O 66 r 51 of the Rules of the Supreme Court 1971 (WA) that it would seek a special costs order because of the alleged inadequacy of the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2010 (WA) and the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2013 (WA) (the scales) to cover the work done in attending to the appeal and to the various hearings and the different proposed forms of the appellants' case. Counsel for the Friggers acknowledged that the court had the power to make such an order, but submitted that no such order should be made because the Friggers were, for the most part, unrepresented in the appeal and had done no more than make best endeavours to present an appellants' case in acceptable form (appeal ts 83). That submission has no merit. The Friggers have been represented by counsel on some occasions and on other occasions have represented themselves via Mrs Frigger on behalf of herself and Mr Frigger. Mrs Frigger's involvement has resulted in a substantial amount of extra costs, and an affidavit sworn and filed on 18 December 2013 by a solicitor on behalf of PSA reveals that costs exceeding the scale items have been incurred. This evidence justifies the grant of a special costs order.

54 This is a case where the amount of costs allowable in respect of the appeal pursuant to the scales is inadequate because of the difficulty and complexity of the matter caused by Mrs Frigger's formulation of the appellants' cases and her insistence that 10 costs orders should come under the scrutiny of the court, even though some of the costs orders were only for a few hundred dollars. The inadequacy of the scales has been demonstrated because PSA has shown that there is a fairly arguable case that the bill to be presented may tax at an amount which is greater than the limit that would be imposed by the relevant costs determinations: Heartlink Ltd v Jones as liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S) [16].

55 Subject to submissions from the parties, the order should be:

The appellants pay the first and second respondents' costs of the appeal as against the first and second respondents, including reserved costs, to be taxed without regard to the limits fixed in items 23(b), (d) and (f) of the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2010 (WA) and the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2012 (WA).

The Friggers' appeal against the costs orders in favour of Mr Holbrook and the dismissal of the Friggers' application for costs against Mr Holbrook

56 In relation to Mr Holbrook, the Friggers identified in their appeal notice three costs orders made in favour of Mr Holbrook. They were the orders made on:

(a) 9 March 2012 - that the Friggers pay Mr Holbrook's costs fixed at $429.

(b) 16 March 2012 - that the Friggers pay Mr Holbrook's costs of involvement in the proceedings to be taxed without regard to the relevant scale. The precise form of the order was that:

The Friggers together and separately pay Mr Holbrook's costs of and incidental to:

(a) the preparation of Mr Holbrook's affidavit sworn 7 April 2010;

(b) appearing by counsel at hearings before the court on 19 March, 9 April, 29 April, 20 May, 9 June, 7 July, 30 August 2010 and 13 October 2010;

(c) the Friggers' application for costs to be paid by Mr Holbrook;

(d) Mr Holbrook's application for costs to be paid by the Friggers;

(e) appearing before the court today; and

(f) settling and extracting this order;

with such costs (including the costs of counsel, briefing counsel and obtaining relevant transcript) to be taxed forthwith (if not agreed) without regard to the scale limit appearing in item 10(a).

57 The Friggers appeal against those orders. The Friggers' amended appellants' case dated 11 July 2013 contains only one - ground 4 - that relates to Mr Holbrook. It alleges an error in the exercise of Simmonds J's discretion in making the above three orders 'in the following circumstances':

(a) Mr Holbrook purported to act as administrator of PSA;

(b) Mr Holbrook gave an undertaking that had a value substantially less than the value that was required by the freezing and ancillary orders; and

(c) fixing costs for Mr Holbrook of the reserved decision on 9 March 2012 in relation to the order for costs of Mr Holbrook. (This was the order where Mrs Frigger was ordered to pay Mr Holbrook's costs fixed at $429.)

58 The first of the circumstances, namely that Mr Holbrook 'purported to act as administrator of PSA', is a reference to the fact that Mr Holbrook entered into an undertaking in respect of the freezing orders in his capacity as administrator of PSA under a deed of company arrangement, and that his undertaking was limited to the value of the assets of PSA, including the deed funds. The Friggers submit that the undertaking was 'so plainly beyond [Mr Holbrook's] authority or power that it was unreasonable and constituted conduct capable of founding a costs order against [Mr Holbrook]', and that Mr Holbrook's position in relation to the undertaking was 'manifestly incorrect' and could not 'reasonably or in good conscience be held by him' (Amended appellants' case dated 11 July 2007 [129], [131]). That submission must be rejected.

59 The Friggers were unsuccessful before Simmonds J in their attempt to establish that the undertaking was manifestly defective, or even merely defective: CAT [No 3] (S) [128] - [129]. Further, Mr Holbrook was not a party to the proceedings and played only a very limited role in the proceedings. The undertaking entered into by him was entered into at the direction of Simmonds J: see CAT [No 3] [59] - [64]. The terms of the undertaking were settled in court before Simmonds J on 16 December 2009: see CAT [No 3] (S) [39]. Mr Holbrook only did what was required of him by the court. The only other involvement by Mr Holbrook in the proceedings was that required by him in order to respond to the allegations of dishonesty on the part of Mr Holbrook that were alleged by Mrs Frigger in various affidavits: see CAT [No 3] (S) [134] - [137].

60 In the bulk of cases, it will be unjust to award costs against a non-party (Aiden Shipping Co Ltd v Interbulk Ltd (The Vimeira) (No 2) [1986] AC 965, 980 (Lord Goff)) and considerable caution should be exercised in making such orders: Symphony Group PLC v Hodgson [1994] QB 179, 193 (Balcombe LJ). See also Leighton Contractors Pty Ltd v Public Transport Authority of Western Australia [No 7] [2009] WASC 218 [65] - [67]. There is nothing in the conduct of Mr Holbrook sufficient to enliven the discretion of the court to award costs against him in these circumstances. As a result, the ground of appeal could not succeed because of the circumstances referred to in par (a).

61 The second point (circumstance (b)) is no basis for challenging the costs order made in favour of Mr Holbrook. If the undertaking had a value less than the value 'required' by the freezing and ancillary orders, then that was a matter for the parties to the freezing and ancillary orders proceedings, namely the Friggers and PSA. The ground of appeal has no reasonable prospect of succeeding on the basis of circumstance (b).

62 As to circumstance (c), that point was ultimately abandoned. (See below). In any event, leave would not be granted to agitate in this court a costs order for $429. Costs of such an appeal would far exceed the amount in dispute.

63 Mr Holbrook applied to strike out ground 4 of the amended appellants' case dated 11 July 2013 pursuant to r 43(2)(g)(i) of the Supreme Court (Court of Appeal) Rules 2005 (WA) on the basis that ground 4 had no reasonable prospect of succeeding against Mr Holbrook.

64 When Mr Holbrook's application came on for hearing on 1 October 2013, counsel for Mr Holbrook pointed out that Mrs Frigger had filed an affidavit sworn 27 September 2013 in support of an application by the Friggers for an adjournment of the directions hearing on 1 October 2013, and in that affidavit had attached a 'draft substituted grounds of appeal'. This draft contained, inter alia, a proposed new ground 4. It repeated the points made in the existing ground 4 under subpars (a) and (b) set out above. It contained nothing equating to par (c) of ground 4 of the amended appellants' case. Counsel for Mr Holbrook said (at the hearing on 1 October 2013) that from the omission of par (c) of the existing ground 4, he inferred that the complaint about the order of Simmonds J that the Friggers pay Mr Holbrook's costs of 9 March 2013 hearing had been abandoned. That was not disputed, so the appeal against the 9 March 2012 order may be dismissed on the basis that the Friggers no longer advance any submissions about why that order should be set aside.

65 Counsel for Mr Holbrook noted that the draft proposed ground also contained a new point or points which read:

The learned judge further erred at [141] - [146] ...

(a) by finding that the allegations made by the [Friggers] in relation [to] the undertaking given by [Mr Holbrook] did not support an allegation of dishonesty where those allegations were made by self-represented parties who have been unnecessarily put to defending their retirement savings and were prevented from obtaining legal representation by the actions of the respondents;

(b) by placing too much weight on the word 'dishonesty' used by a layperson, who is unaware of the legal requirements for using such a word;

(c) by making costs orders against the [Friggers] and in favour of [Mr Holbrook] when the [Friggers] were entitled to question an undertaking given by a person who had no part to play in the proceedings;

(d) by failing to consider whether it was necessary for [Mr Holbrook] to have separate legal representation contrary to RSC O 66 r 2(d) in circumstances where he was initially represented by the ... legal team [for PSA] when giving his undertaking.

66 The draft par (b) in the proposed new ground was apparently a recognition that his Honour had found that Mr Holbrook was entitled to appear via counsel to deal with the allegation of dishonesty which had been made by Mrs Frigger. The proposed new ground 4 in Mrs Frigger's affidavit of 27 September 2013 did not dispute that the allegation of dishonesty had been made without any foundation, but rather contended that the judge should have exercised his discretion not to award costs because the Friggers represented themselves and, said Mrs Frigger, might not have been aware of how serious the allegation of dishonesty was. That contention has no merit at all. It does not require a lawyer to know that an allegation of dishonesty is extremely damaging and, if made, requires answering. Mrs Frigger, who is a professional accountant, would certainly know how serious such an allegation was.

67 Counsel for Mr Holbrook made submissions at the hearing on 1 October 2013 supporting Simmonds J's reasons in CAT [No 3] (S). Reference was made particularly to [127]ff of the reasons. His Honour referred to authorities in this court and in the General Division of the Supreme Court indicating that the making of orders for costs against a non-party should be exceptional and should only to be made after exercising considerable caution. His Honour said that one such case might be where a non-party facilitates orders by providing for their purposes a 'manifestly' defective undertaking, but concluded that it had not been shown that the undertaking provided by Mr Holbrook was defective, let alone manifestly defective.

68 Counsel for Mr Holbrook pointed out that his Honour had said in [135] that Mrs Frigger's affidavit of 18 March 2010 raised allegations of dishonesty on the part of Mr Holbrook, and this prompted Mr Holbrook to appear by counsel on 9 April 2010.

69 His Honour detailed the allegations of dishonesty made against Mr Holbrook by Mrs Frigger at [135] and [136]. At [145], his Honour considered that it was 'impossible' on the information before him to find that the matters were capable of supporting an allegation of dishonesty by Mr Holbrook. That conclusion has not been challenged by the Friggers in their grounds of appeal or their proposed re-formulation of their grounds (referred to above and below). All the Friggers contend is that 'too much weight' was placed on the allegation.

70 In this court on 1 October 2013, after counsel for Mr Holbrook had made his submissions about why the Friggers' appeal as against Mr Holbrook should be dismissed, the application was adjourned because Mrs Frigger wanted to retain counsel. The matter was adjourned on the basis that counsel for the Friggers, when appointed, would be permitted to make written submissions in opposition to Mr Holbrook's application to strike out ground 4 of the amended appellants' case. An order was made requiring those submissions to be filed by 14 October 2010. Written submissions were filed on 14 October 2010. Those submissions were filed by the Friggers themselves, and not by counsel as anticipated. No new point of significance appeared in those submissions.

71 When the matter was relisted for hearing on 23 January 2014, the Friggers had appointed solicitors and counsel. Counsel informed the court that there were no oral submissions to make and that reliance was placed on the written material before the court. By then, part of the written materials included the proposed reamended appellants' case dated 14 October 2013 which the Friggers purported to file in compliance with this court's springing order dated 1 October 2013. As noted earlier, the reamended appellants' case was not accepted for filing by the registry because it did not comply with the order made on 1 October 2013 which is set out above.

72 The reamended appellants' case, although not accepted by the registry for filing, contained further proposed variations to ground 4 of the amended appellants' case dated 11 July 2013 which related to Mr Holbrook. Proposed grounds 3 and 4 of the reamended appellants' case dated 14 October 2013 alleged that Simmonds J erred by making a decision which was 'unreasonable or unjust', such that the court may infer that there has been a failure to properly exercise the discretion to award costs (ground 3) and that his Honour erred by failing to give 'proper genuine and realistic consideration' to the affidavit of Mr Holbrook dated 1 December 2009 and 7 April 2010 (ground 4). The proposed ground 4 reads that his Honour erred by:

[F]ailing to give proper genuine and realistic consideration to the affidavits of Mr Holbrook dated 1 December 2009 and 7 April 2010 which evidence showed the undertaking was defective if not manifestly so, and further erred by not giving adequate weight to the appellants' concern that the undertakings were not adequately compensate [sic] for losses which could exceed $1,950,000.

73 The proposed grounds 3 and 4 of the reamended appellants' case did not address at all his Honour's finding that the Frigger allegations of dishonesty were not capable of supporting an allegation of dishonesty and that those unfounded allegations alone justified counsel for Mr Holbrook attending. Hence, the making of a costs order against the Friggers in favour of Mr Holbrook was justified. For that reason alone, the Friggers' appeal as against Mr Holbrook has no reasonable prospect of succeeding.

74 Simmonds J's reasons reveal there was no error in making the costs order against the Friggers in favour of Mr Holbrook. His Honour's decision to award costs in favour of Mr Holbrook was right for the reasons he gave.

75 In conclusion, for the reasons given by Simmonds J, the Friggers' appeal as against Mr Holbrook has no reasonable prospect of succeeding. Ground 4 of the amended appellants' case dated 11 July 2012, insofar as it relates to Mr Holbrook, should be struck out. That means there is no ground left to sustain the appeal against Mr Holbrook.

76 The proposed ground 4 in the document exhibited in Mrs Frigger's affidavit of 27 September 2013, and grounds 3 and 4 in the proposed reamended appellants' case dated 14 October 2013, which was not accepted for filing, had no reasonable prospect of succeeding and therefore leave to amend ground 4 of the amended appellants' case dated 11 July 2012 should be refused.

77 The Friggers' application for leave to appeal against the orders in favour of Mr Holbrook must be dismissed. Subject to hearing from the parties, the orders should be:

The appellants' application for leave to amend the appellants' grounds of appeal as against the third respondent be dismissed.
The appellants' application for leave to appeal against the orders of Simmonds J dated 16 March 2012 that the appellants pay the third respondent's costs to be taxed without regard to item 10(a) of the scale be dismissed.

78 PSA seeks leave to appeal against the orders made on 16 March 2012 dismissing their application that the Friggers pay their costs of the freezing and ancillary orders proceedings. This cross-appeal concerned the costs of the hearing of the freezing and ancillary orders application and all adjourned hearings.

79 During the hearing before Simmonds J on 7 July 2010 and 13 - 14 October 2010 concerning costs, his Honour's attention was drawn to what was said by Mrs Frigger in her affidavit of 23 September 2008, which had been filed in opposition to the stay application heard by Buss JA in the Court of Appeal. Reference was also made to Mrs Frigger's affidavit of 22 June 2010 and (in the hearing on 13 - 14 October 2010) to the affidavit of Mrs Frigger sworn 12 October 2010. In his Honour's reasons for decision, CAT [No 3] (S), his Honour analysed the matter on the basis that 'the action' had not been tried [121]. This may have been a reference to a resolution of questions about whether the transactions instigated by the Friggers in creating the charge and transferring title to real estate that prompted PSA's application for the freezing and ancillary orders were transactions which, in the event of the planned liquidation of CAT, would be found to be unfair preferences within the meaning of the Corporations Act 2001 (Cth) s 588FA; insolvent transactions within the meaning of s 588FC of the Corporations Act; voidable transactions within the meaning of s 588FE of the Corporations Act; or transactions to defraud creditors in breach of the Property Law Act 1969 (WA) s 89. Alternatively, it may have been a reference to the question of the merits of the Friggers' submission that the freezing and ancillary orders should not have been made and should not have been continued. The parties suggested in submissions to this court that his Honour meant the latter. In any event his Honour referred to the High Court decision in Ex parte Lai Qin and said:

I have considered whether I can be satisfied that ... the defendants were almost certain to have succeeded if the action had been tried. On the material I have reviewed as the basis of reasonableness of the conduct of the defendants, I am unable to attain such satisfaction [121].

80 As a result, his Honour dismissed PSA's application for costs against the Friggers with the result that no order for costs was made as between the Friggers and PSA.

81 PSA's appeal grounds, stripped to their essential aspects, are:

(a) his Honour erred in refusing PSA's application for costs of the appearance on 19 March 2010 when he misapprehended the facts. His Honour stated in his reasons in CAT [No 3] (S) that there was no application for costs for the hearing on 19 March 2010 [47]. This was incorrect because counsel for PSA had asked for an order for costs on that day (ground 1); and

(b) his Honour's decision to dismiss PSA's application for indemnity costs, or alternatively a special costs order, was manifestly unreasonable having regard, inter alia, to:

(i) the improper conduct of the Friggers in filing affidavit material containing false evidence and assertions or evidence which contradicted or was contradicted by other earlier evidence led by the Friggers, and to the improper conduct of the Friggers in attempting to mislead the court regarding the true position of assets available for execution. In effect, this was a submission that his Honour erred in applying Ex parte Lai Qin because it provided no guidance for the making of a costs order in the particular circumstances of this case; and

(ii) the application for the freezing order having not been determined on the merits (ground 2).

82 It is appropriate to deal with ground 1 first. On 19 March 2010, as shown at ts 2360, counsel appearing for PSA asked for his Honour to award costs to PSA for the appearance on that day. Also, on 8 September 2010 in a minute filed at the request of the court, PSA sought costs for the appearance on 19 March 2010. His Honour's reasons in CAT [No 3] (S) [47] that he 'did not understand' that the costs of that appearance were the subject of any costs application was incorrect. His Honour's discretion therefore miscarried. Leave to appeal on ground 1 of the cross-appeal should be granted and ground 1 of the cross-appeal upheld. PSA was entitled to costs. Mrs Frigger had asked for an adjournment on that day.

83 It is now necessary to turn to ground 2. In effect, it alleges that the judge's discretion miscarried and that there was error which may be inferred. See House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 - 505 (Dixon, Evatt & McTiernan JJ).

84 In the circumstances which were known to the trial judge and which are set out below, his Honour erred in deciding the matter by reference to Ex parte Lai Qin. That case states that, where a matter in contest is settled by the parties, it is usually appropriate to not make a costs order and to leave each party to pay their own costs.

85 However, counsel for PSA had pointed out to his Honour in the hearing on 7 July 2010, and then again in the hearing on 13 and 14 October 2010, that Mrs Frigger had filed affidavits which revealed serious inconsistencies. His Honour, in CAT [No 3] (S) [93] and [95], identified the affidavits which had been referred to by counsel for PSA. The inconsistencies were such that counsel for PSA sought leave to cross-examine Mrs Frigger. Leave was refused by his Honour for the reasons set out earlier in these reasons.

86 His Honour in his reasons in CAT [No 3] (S), recorded the submissions by counsel for PSA that the affidavit of Mrs Frigger sworn 12 October 2010 should be 'approached with scepticism' for the same reason the explanations in Mrs Frigger's affidavit of 22 June 2010 should be so approached' [96]. Reference was also made by his Honour to Mrs Frigger's affidavit sworn on 23 September 2008 in relation to the stay application made by PSA before Buss JA the appeal in the Court of Appeal, which is referred to earlier in these reasons.

87 Despite having these affidavits drawn to his Honour's attention, it may be inferred that his Honour did not understand the significance of them because if he had, he would have made observations which correspond with the observations below. What the affidavits reveal is evidence of false statements made by Mrs Frigger in affidavits filed either in the General Division or in this court.

The contradictions in the affidavits of 23 September 2008, 22 June 2010 and 12 October 2010

88 The affidavit of Mrs Frigger dated 23 September 2008, which was filed by CAT in this court in the appeal proceedings (CACV 76 of 2008) and relied on by CAT for the hearing before Buss JA of the application by PSA for a stay of enforcement of the original judgment of Simmonds J pending the hearing of the appeal by the Court of Appeal, must first be examined. From that affidavit, the following pro forma balance sheet for CAT as at 23 September 2008 can be prepared:

89 The assets listed above were said by Mrs Frigger to be the assets of CAT. This affidavit convinced Buss JA that there was no risk that the judgment sum in relation to the original judgment of Simmonds J if paid could not be repaid if the appeal succeeded. As a result the stay application by PSA was refused by Buss JA: See Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [2008] WASCA 222 [24], [27]. As also explained above, the consequence was that PSA was obliged to pay the judgment sum to CAT.

90 After the appeal to the Court of Appeal, CAT was ordered to pay (in effect to repay) to PSA about $850,000. See Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 2] [2009] WASCA 183 (S) [21].

91 As noted earlier in these reasons, the $850,000 was not repaid by CAT. As a result, the freezing and ancillary orders application was made on 3 December 2009. This was eventually discharged on 14 July 2010 after CAT was wound up in insolvency on 6 May 2010.

92 As also noted earlier, costs relating to the freezing and ancillary orders were ultimately dealt with by Simmonds J. A hearing took place on 13 - 14 October 2010. What was revealed in statements in Mrs Frigger's affidavits and particularly in her affidavits of 22 June 2010 and 12 October 2010 was that (if the statements in them were true) the affidavit of 23 September 2008 was false. If Mrs Frigger's two 2010 affidavits were correct, then the asset and liability position of CAT on 23 September 2008 was not as Mrs Frigger stated in her 23 September 2008 affidavit, but was as follows:

(a) ownership of 140 Edward Street, Perth had been transferred to CAT as the trustee of the Frigger Superannuation Fund (FSF) on 1 July 2007 (par 13 of the affidavit of 22 June 2010). If this was true then the statement in Mrs Frigger's affidavit of 23 September 2008 that this was an asset of CAT was false;

(b) ownership of the Armadale property had been transferred to CAT as trustee of the FSF on 1 July 2008 (par 19 of the affidavit of 22 June 2010). If true the statement in the 23 September 2008 affidavit that this was an asset of CAT was false; and

(c) the ING term deposit of $999,000 was an asset of the FSF (par 12 of the affidavit of 12 October 2010). If true then the statement in the 23 September 2008 affidavit that this was an asset of CAT was false.

93 The affidavit of 22 June 2010 also revealed that, as at 23 September 2008, CAT had liabilities to the Friggers as follows:

(a) Edward Street property loan, $452,450 plus interest at 8.5% (pars 8 - 10);

(b) the Armadale property loan, $665,000 plus stamp duty of $36,875 and interest (par 18);

(d) accrued salary due to Mrs Frigger - first three payments (2006, 2007 and 2008) totalling $225,000 (par 22).

94 In Mrs Frigger's affidavit of 22 June 2010, she deposes that CAT 'did not make any repayments of principal or interest to us during the period December 2001 to June 2008' (par 21). The liability of $1,580,859 is an understatement of the liabilities because it does not include interest. Thus, if the affidavits of 12 October 2010 and 22 June 2010 are true then Mrs Frigger falsely stated that the liabilities of CAT on 28 September 2008 were nil.

95 Based on the two 2010 affidavits, the revised asset and liability position of CAT on 23 September 2008 was as follows:

96 If what had been stated as to the financial position of CAT in the two 2010 affidavits had been disclosed to Buss JA there can hardly be any doubt that a stay would have been granted: See Professional Services of Australia Pty Ltd v Computing Accounting and Tax Pty Ltd [2008] WASCA 222 [27]. In that case the money would not have been paid by PSA to CAT, it would not have been necessary for the Court of Appeal to then order, in effect, that CAT repay $850,000 (approximately) and there would have then been no need for the freezing and ancillary orders.

97 At the hearing of this appeal on 23 January 2014, it was pointed out to counsel for the Friggers that it would be a very serious matter if this court were to conclude and to state in its reasons that Mrs Frigger had made false statements in affidavits sworn by her. As a result, the Friggers were given leave to file and serve further written submissions in order to ensure that no explanation by the Friggers for the inconsistencies in the affidavits of Mrs Frigger dated 23 September 2008, 22 June 2010 and 12 October 2010 was overlooked.

98 On 13 February 2014, those written submissions were received by the court. They were signed by counsel who appeared at the appeal, but who did not appear for the Friggers at any of the other hearings referred to above. Those submissions, which must reflect Mrs Frigger's instructions, do not assist her.

99 For example, the submissions purport to explain why Mrs Frigger deposed in her affidavit of 23 September 2008 that the Edwards Street property and the Armadale property were 'owned' by CAT, and yet in her affidavit of 22 June 2010 Mrs Frigger deposed, in par 13, that the 'ownership' of the Edwards Street property was transferred to the FSF on 1 July 2007 (ie, before Mrs Frigger signed the 23 September 2008 affidavit) and, in par 19, that ownership of the Armadale property was transferred to the FSF on 1 July 2008 (ie, only two months before Mrs Frigger signed the 23 September 2008 affidavit). Her explanation for the falsehood which appeared either in the 23 September 2008 affidavit or the 22 June 2010 affidavit is that Simmonds J and Buss JA suffered from 'confusion' (see par 12 of the submissions). That provides no explanation as to why Mrs Frigger made two unqualified statements about ownership of the properties, one of which had to be false.

100 Another example is the explanation for why Mrs Frigger deposed in the 23 September 2008 affidavit that CAT had no liabilities (save with respect to GST), when she was seeking to persuade Buss JA that CAT was in good financial health, and yet in her affidavit of 22 June 2010, deposed that CAT had liabilities in September 2008 to her husband and to her in a sum in excess of $1.5 million. The explanation in the submission reads as follows:

With respect to CAT's liability on the director's loan account deposed to in [Mrs Frigger's] affidavit [of] 22/6/10 at [22] to [25] the explanation for not including them in [Mrs Frigger's] of 22/9/08 is that the directors' loan account was not calculated until after 23 September 2008 as deposed to by Mrs Frigger at [12] of [her] affidavit of 12/10/10 (par 18).

101 This explanation merely reaffirms what Mrs Frigger deposed to in her affidavit of 12 October 2010, namely, that on 23 September 2008, the directors' loan accounts had not been 'calculated' (ie, added up) and were not added up until a later date. Mrs Frigger was either falsely stating in her affidavit of 23 September 2008 that CAT had no liabilities (save for GST), or falsely stating in her affidavit of 22 June 2010 that in September 2008 CAT had liabilities to Mr Frigger and herself (later added up and revealed at a figure of $1.5 million).

102 By way of a further example, the submissions also attempt to explain why Mrs Frigger deposed in the 23 September 2008 affidavit that CAT had an asset consisting of a term deposit of $999,999, and yet in her affidavit of 12 October 2010 stated that, in fact, the deposit was an asset of the FSF. The explanation is no explanation at all. It merely asserts that she became 'aware' in June and July 2010 that the deposit was not beneficially owned by CAT. Once again, either the statement in her 23 September 2008 affidavit is false, or the statement in her 12 October 2010 affidavit is false.

103 The fact that Mrs Frigger has sworn affidavits caring only about the outcome and not caring for the truth is a very serious matter whereby Mrs Frigger affected, or attempted to affect, the course of justice. If what she said in her affidavit of 22 June 2010 and her affidavit of 12 October 2010 was the truth, and what was stated in the 23 September 2008 affidavit was false, then she affected the course of justice because her 23 September 2008 affidavit was relied on by Buss JA to refuse the application for a stay of judgment. If the 23 September 2008 affidavit was true and what was said in her 22 June 2010 affidavit and her 12 October 2010 affidavit was false, then she attempted to influence Simmonds J in relation to the issues then before him. Mrs Frigger is an accountant and her training and experience means that she well understood the meaning of the words 'assets' and 'liabilities' and well understood the distinction between property which was beneficially owned or non-beneficially owned.

104 I should add that PSA filed submissions in answer to the Friggers' submissions. They made the points referred to above. Insofar as they made submissions about other aspects of the conduct of Mrs Frigger in affidavits other than the affidavits of 23 September 2008, 22 June 2010 and 12 October 2010 and in other documents and at trial, regard has not been given to those submissions in reaching the conclusion in these reasons. The Friggers sought and were granted leave to file further written submissions in reply to PSA's submission. The Friggers' submissions were filed in the court on 24 March 2014. They contain many references to alleged facts and circumstances not deposed to in any affidavits in the proceedings under review. However, where relevant, the submissions have been taken into account.

105 Other instances of inconsistent statements in affidavits which were drawn to Simmonds J's attention (see ts 2582ff) were found in Mrs Frigger's affidavit of 10 April 2007, filed in the main action before Simmonds J in opposition to an application by PSA for security for costs. Mrs Frigger again wanted to show that CAT was in a rosy state of financial health so that CAT would not have to provide security for costs. She said in the 10 April 2007 affidavit that CAT would be 'easily able to satisfy the claim for costs of the defendants in these proceedings' (par 23) if PSA succeeded in defending the original claim by CAT. Mrs Frigger stated, concerning the Armadale property, that it was purchased by CAT in its own right and not as trustee of the FSF; that 'there was a point in time when [CAT] considered transferring the Armadale property to the [FSF], but that transaction did not eventuate', and that 'no ... transfer took place and the Armadale property is owned by the plaintiff in its own right as it always has been' (par 14) (see yellow cross-appeal book 23).

106 In contradiction, Mrs Frigger deposed in her affidavit of 24 April 2007, also filed in the main action and also in opposition to the application by PSA for security for costs, that '[t]he Armadale property was initially purchased by [CAT] in its capacity as trustee for the [FSF]. However, following advice that my husband and I received, in November 2005, it was resolved that the Armadale property be transferred from the [FSF] to [CAT] in its own right by way of an undeducted contribution and this was attended to' (par 11), (yellow cross-appeal book 28).

107 When Mr Banning, in par 7.2 of his affidavit of 25 August 2008 in the appeal CACV 76 of 2008 in support of the application for a stay of judgment pending the appeal, pointed out the inconsistency between Mrs Frigger's two affidavits, Mrs Frigger, in her affidavit of 23 September 2008 in CACV 76 of 2008, admitted the conflict. She said:

In response to par 7.2 [of the affidavit of Mr Banning of 25 August 2008], the conflicting statement made by me in my affidavit of 24 April 2007 was made shortly after the sudden death of my father and by my failure to check the affidavit, prepared by my new solicitors before swearing it [6].

108 Mrs Frigger's admission that she did not 'check' the affidavit before swearing it is extraordinary.

109 Simmonds J should have recorded in his reasons that the result of the inconsistencies in Mrs Frigger's affidavits of 23 September 2008, 22 June 2010 and 12 October 2010 was that if Mrs Frigger's affidavit of 23 September 2008 contained falsehoods, it resulted in Buss JA refusing the application for a stay. If, on the other hand, her two 2010 affidavits filed in relation to the freezing and ancillary orders application contained the falsehoods, then she was attempting to mislead Simmonds J. It is not necessary to decide which is true for the purpose of this appeal. All that is necessary is to observe that she has been guilty of bending the truth. If all that Mrs Frigger has now offered about CAT's circumstances as at 23 September 2008 had been put before Buss JA, a stay would almost certainly have been granted and the freezing and ancillary orders would not have been necessary. Because Simmonds J did not refer to this in his reasons, it may be inferred that his Honour overlooked it. If this had been detected by his Honour, the order that each party pay their own costs would not have been made.

110 Normally, when a freezing order is made, costs will be made dependent on the outcome of the underlying dispute, but this is not a normal case. The discretion as to costs conferred pursuant to O 52A of the Rules of the Supreme Court 1971 (WA) is a discretion to be exercised according to the requirements of justice. Simmonds J erred in applying the principles in Ex parte Lai Qin and not referring to the above circumstances, all of which was revealed to him on the material before him. Mrs Frigger's falsehoods, either in her affidavit of 23 September 2008 or in the affidavits of 12 October 2010 and 22 June 2010, justify the grant of costs in favour of PSA. Justice would only be served if a costs order is made against the Friggers.

111 An indemnity costs order is appropriate in situations which are shown to involve some element of improper conduct by a party. An indemnity costs order will constitute an appropriate sanction marking the disapproval of improper conduct. The conduct of the Friggers has been improper. Mrs Frigger's conduct in making false statements in either her affidavit of 23 September 2008 or in her affidavits of 12 October 2010 and 22 June 2010 must be marked by strong disapproval and as a result an indemnity costs order will be made. His Honour erred in failing to make such an order.

112 PSA is entitled to the costs of the application for the freezing and ancillary orders and all hearings that took place following the making of those orders, save for those hearings covered by an existing costs order. Leave to cross-appeal on part (i) of ground 2 (as identified above at [81]) should be granted. Part (i) of ground 2 of the cross-appeal should be upheld.

113 The order of Simmonds J dated 16 October 2012 dismissing the first and second respondents' application for costs of the application for freezing and ancillary orders should be set aside, and in its place an order should be entered granting the first and second respondents' costs of the freezing and ancillary orders application and the associated proceedings, including reserved costs, on an indemnity basis.

114 It only remains to be said that part (ii) of PSA's ground 2 of appeal, to the effect that Simmonds J erred in dismissing PSA's application for costs against the Friggers on the basis that the application for the freezing order had not been determined on the merits, must be dismissed. As noted earlier in these reasons, his Honour analysed PSA's application for costs on the basis that 'the action' had not been tried, but it was not clear what 'the action' referred to in this context. Counsel for both PSA and the Friggers considered the reference to 'the action' to be a reference to the question of the merits of the Friggers' submission that the freezing and ancillary orders should not have been made and should not have been continued (see above at [79]). However, the freezing order was made to prevent the frustration or inhibition of the court's process and to avoid the danger that the judgment of the Court of Appeal might be unsatisfied: see O 52A r 5(4) of the Rules of the Supreme Court 1971 (WA). The order preserved the status quo pending the resolution of the question about whether CAT had sufficient funds or assets to comply with the order of the Court of Appeal. That question in turn may have given rise to questions about whether the charge registered by the Friggers and the transfers of the property of CAT to CAT as trustee effected by the Friggers, were transactions which might, if CAT were insolvent and put into liquidation, be liable to be set aside as unfair preferences, insolvent transactions or voidable transactions pursuant to the sections of the Corporations Act identified earlier in these reasons, or set aside as transactions designed to defraud creditors in breach of the Property Law Act. Those were the 'merits' which had to be resolved. Those questions were not resolved prior to the discharge of the freezing orders on 14 July 2010. As a result, there was no determination on the merits. Leave to appeal on part (ii) of PSA's ground 2 of the appeal (as identified above at [81]) should be granted, but part (ii) of ground 2 of the cross-appeal dismissed.

115 Subject to submissions from the parties, the orders on the cross-appeal should be:

Leave to cross-appeal on grounds 1 and 2 of the cross-appeal be granted.
Ground 1 of the cross-appeal be upheld.
The appellants pay the first and second respondents' costs of the hearing on 19 March 2010 in CIV 2265 of 2006, to be taxed if not agreed.
Ground 2 of the cross-appeal be upheld in part.
(a) Order 2 of Simmonds J dated 16 March 2012 in CIV 2265 of 2006, being that the appellants pay the first and second respondents' costs of the first and second respondents' application for freezing and ancillary orders, be set aside;

(b) Order 3 of Simmonds J dated 16 March 2012 in CIV 2265 of 2006 be set aside insofar as it orders that there be 'no order as to the costs of the first and second respondents' application for freezing and ancillary orders'; and

(c) In lieu of the orders referred to in (a) and (b) above, it is ordered that the appellants pay the first and second respondents' costs of the application dated 3 December 2009 in CIV 2265 of 2006 for freezing and ancillary orders and any reserved costs of the freezing and ancillary orders proceedings in CIV 2265 of 2006, including but not limited to any reserved costs of the hearings on 10 December 2009, 16 December 2009, 22 January 2010, 15 February 2010, 19 March 2010, 9 April 2010, 29 April 2010, 20 May 2010, 9 June 2010, 7 July 2010, 30 August 2010, 13 and 14 October 2010, 22 September 2011 and 16 March 2012, on an indemnity basis.

116 This is an appeal by the Friggers against the orders of Simmonds J set out below. The appeal was commenced four months out of time and the Friggers apply for an extension of time. The orders appealed against were, in effect:

(a) the dismissal of the Friggers' claim for compensation pursuant to the undertakings given by Mr Campbell-Smith as executor of the estate of Mr Banning and by Mr Holbrook;

(b) the discharge of the undertakings by Mr Campbell-Smith and Mr Holbrook in respect of the freezing orders;

(c) that the Friggers pay two sets of costs (one to PSA and the other to Mr Holbrook) in relation to the Friggers' application for compensation, such order to be without regard to the relevant scale; and

(d) the Friggers pay two sets of costs (one to PSA and the other to Mr Holbrook) in relation to the application by Mr Campbell-Smith and Mr Holbrook for discharge of their undertakings, such costs to be taxed without regard to the scale.

118 The background is as follows. By chamber summons dated 1 March 2012 and amended 11 May 2012, the Friggers sought an order that there be an inquiry into damages suffered by the Friggers by reason of the restraints imposed on them by the freezing orders of Simmonds J dated 16 December 2009. The Friggers also sought an order that PSA pay the costs of the application on an indemnity basis. The application was originally only against PSA, but the amended application dated 11 May 2012 sought similar orders instead against Mr Holbrook and Mr Campbell-Smith.

119 To succeed on the application, it was necessary to show that there was at least a prima facie case that the freezing orders were the cause of damage suffered by the person affected by the freezing orders and that the freezing orders should not have been made. The primary reason his Honour gave for dismissing the application for compensation was that it had not been shown that the freezing orders ought not to have been granted: CAT [No 5] [51], [52].

120 His Honour also considered the four heads of damage relied on by the Friggers for the purposes of the claim for compensation. The first head of damage was said to be costs occasioned by the making of the freezing and ancillary orders that would not be allowed on a taxation of costs. His Honour said that none of the damage claimed was for any damage caused by the existence of the freezing orders, but rather was a claim relating to the proceedings for the freezing and ancillary orders themselves: CAT [No 5] [109] - [110].

121 The second head of damage was said to be loss of income to Mrs Frigger as a result of her involvement in the proceedings for the freezing and ancillary orders. His Honour said that that was also not a loss or damage caused by the freezing orders: CAT [No 5] [117] - [118].

122 The third head of damage claimed was as a result of 'distress, embarrassment and damage to reputation' suffered by the Friggers. His Honour dismissed that claim on the basis that the evidence in support of it did not demonstrate that the restrains or requirements of the freezing orders prima facie caused such loss or damage: CAT [No 5] [119] - [120].

123 The fourth and final head was said to be an entitlement to 'aggravated and exemplary damages' by reason of certain conduct of a solicitor for PSA. That head of damage was also rejected: CAT [No 5] [121].

124 On those bases, his Honour concluded that there had been no prima facie case of loss or damage shown on the evidence: see, generally, CAT [No 5] [107] - [126].

125 His Honour ordered that each of Mr Holbrook and Mr Campbell-Smith (as the executor of Mr Banning's estate) should have the costs of the Friggers' unsuccessful application to be taxed without regard to the relevant scale.

126 There was also before his Honour at the same time applications by both Mr Holbrook and Mr Campbell-Smith to discharge them from their undertakings given in support of the freezing order. His Honour made such orders and ordered that the Friggers should pay two sets of costs to each of Mr Holbrook and Mr Campbell-Smith without regard to the relevant scale limits.

Error of law and fact: The learned Judge erred in concluding @ 32, 33 and 52 in WASC/CIV/2012WASC0382 that as there was no final determination of the merits of the application for freezing and ancillary orders the discretion to enforce the undertakings had not been enlivened.
Error law and fact: The learned Judge erred @ 124 in finding the [Friggers] suffered no prima facie damages flowing from the freezing orders and refusing to enforce the undertakings given in the Freezing Order proceedings and refusing an inquiry into damages.
Error of law: The learned Judge erred in his discretion in ordering the [Friggers] pay two sets of costs for each of [Mr Campbell-Smith] and [Mr Holbrook] for the [Friggers'] application for compensation and discharge of [Mr Campbell-Smith's and Mr Holbrook's] undertakings and for each of the matters to be taxed without regard to the relevant Scale maximum.

128 Ground 1 must be dismissed. It is an attempt by a side wind to appeal against his Honour's decision to grant the freezing and ancillary orders. Those orders have not been appealed against and there was no final resolution of the Friggers' argument that the freezing and ancillary orders should not have been granted and should not have been continued: see CAT [No 5] [32] - [33].

129 Ground 2 should be dismissed because although the Friggers allege error by the trial judge, their submissions do not reveal any error. All that the written submissions contend is that certain amounts were claimed by the Friggers in relation to each of the four heads of damage they claimed before Simmonds J, and which his Honour dismissed. There was no attempt to suggest that his Honour's decision in relation to each of the four heads of damage was, in any way, in error.

130 Ground 3 must also be dismissed, because the award of costs was an award of costs in the exercise of a discretion. No error in the exercise of his Honour's discretion has been identified by the Friggers. The Friggers suggest that there should have been only one set of costs, but that ignores the fact that compensation was sought against two individuals, and each was entitled to be represented. The only submission about the scale uplift by the Friggers was that the application 'took one day of hearing' and that it has not been demonstrated that the scale maximum would be inadequate. His Honour had all of the information before him necessary to make a decision about the appropriate form of costs. This court will not interfere with the exercise of a discretion by Simmonds J based solely on a flimsy submission of the Friggers merely asserting that there should not have been a scale uplift.

131 Finally, PSA submitted that an extension of time should not be granted to the Friggers to appeal. An affidavit of Mrs Frigger sworn 5 March 2013 in support of the application for an extension of time to appeal deposes that, initially, the Friggers decided to appeal against the orders made on 16 October 2012 and made that decision promptly. However, they did not implement that decision immediately and no appeal was instituted in 2012. Instead, the Friggers decided that they would institute an appeal only in respect of the costs orders and they made an attempt to amend appeal CACV 23 of 2012 to complain about those costs orders in that appeal. Mrs Frigger made it plain that she did that because she wanted to avoid paying a new filing fee to institute a new appeal: Frigger v Professional Services of Australia Pty Ltd [2013] WASCA 26 [10]. That application was dismissed on 24 January 2013.

132 The Friggers sought to review the order dismissing the application to amend the appeal CACV 23 of 2012. The application for review was dismissed: Frigger v Professional Services of Australia Pty Ltd [No 2] [2013] WASCA 93. It was only then, on 6 March 2013, that the Friggers instituted this appeal seeking to challenge not just the costs orders but also the dismissal of the application for an inquiry as to damages and the discharge of the undertakings.

133 This appeal was first foreshadowed by the Friggers' application to amend the appeal notice in CACV 23 of 2012, which was filed on 6 November 2012. That was on the same day that Mr Holbrook was discharged as deed administrator in relation to PSA. Pursuant to the discharge conditions, Mr Holbrook had to relinquish funds which he would otherwise have been able to hold to meet the costs of the appeal. The Friggers, through counsel, pointed out at the hearing of the appeal on 23 January 2014 that Mr Holbrook had been provided with an indemnity by Mr Campbell-Smith as the executor of Mr Banning's estate, but Mr Holbrook rightly points out that cash in hand is worth more than an indemnity of unknown value (appeal ts 111). Mr Holbrook has therefore suffered prejudice as a result of the delay in instituting the appeal.

134 Thus, in relation to the appeal concerning Mr Campbell-Smith, leave to appeal out of time should be refused because there is no merit in any of the grounds of appeal. In relation to the appeal concerning Mr Holbrook, leave to appeal out of time should be refused because there is no merit in any of the grounds of appeal and because Mr Holbrook has demonstrated that he is prejudiced by the delay.

135 Subject to hearing from the parties, the orders should be:

The appellants' application dated 6 March 2013 for an extension of time to appeal be dismissed.
The appeal be dismissed.

Court (Court of Appeal) Rules 2005

FRIGGER -v- PROFESSIONAL SERVICES OF AUSTRALIA PTY LTD [No 3] [2014] WASCA 69 (8 April 2014)

Citation : COMPUTER ACCOUNTING AND TAX PTY LTD -v- PROFESSIONAL SERVICES OF AUSTRALIA PTY LTD [No 3] [2010] WASC 2 (S)

Citation : COMPUTER ACCOUNTING AND TAX PTY LTD -v- PROFESSIONAL SERVICES OF AUSTRALIA PTY LTD [No 5] [2012] WASC 382

Aiden Shipping Co Ltd v Interbulk Ltd (The Vimeira) (No 2) [1986] AC 965

Computer Accounting and Tax Pty Ltd v Professional Services of Australia Pty Ltd [2008] WASC 133

Computer Accounting and Tax Pty Ltd v Professional Services of Australia Pty Ltd [No 4] [2011] WASC 284

Frigger v Professional Services of Australia Pty Ltd [2013] WASCA 26

Frigger v Professional Services of Australia Pty Ltd [No 2] [2013] WASCA 93

Heartlink Ltd v Jones as liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S)

Leighton Contractors Pty Ltd v Public Transport Authority of Western Australia [No 7] [2009] WASC 218

Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [2008] WASCA 222

Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [2010] WASC 38

Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 2] [2009] WASCA 183

Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 2] [2010] WASC 113

Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 3] [2010] WASC 93

Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622

Symphony Group PLC v Hodgson [1994] QB 179

FRIGGER -v- PROFESSIONAL SERVICES OF AUSTRALIA PTY LTD [No 3] [2014] WASCA 69 (8 April 2014)

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FRIGGER -v- PROFESSIONAL SERVICES OF AUSTRALIA PTY LTD [No 3] [2014] WASCA 69 (8 April 2014)