Frigger v Trenfield

1. The restraint application, the security for costs application and the stay of costs application were heard concurrently on 14 May 2025, at which time I reserved judgment. The hearing before me on 27 August 2025 overwhelmingly concerned the withdrawal application and the appellants' application to rely on further evidence in relation to the security for costs application. As the transcript discloses, the appellants' application to rely upon further evidence on the appeal, and their application seeking leave to rely upon an amended notice of appeal accounted for only a small part of that hearing.

1. The applications arise within the context of the appellants' appeal from Frigger v Trenfield (No 8) [2024] FCA 1438 (primary judgment or PJ). The appellants seek to appeal from the primary Judge's decision to dismiss their application to annul their bankruptcy: PJ at [55] - [56], [82] - [84]. The primary judgment forms part of a long and complex series of litigation between the appellants and various parties.
2. Mr Kitay was the liquidator of Computer Accounting and Tax Pty Ltd (in liq) (CAT). At the time that CAT was wound up, the appellants were its directors. In Mr Kitay's submissions of 9 April 2025, he provides a useful explanation of the factual and procedural background to the bankruptcies of the appellants. Mr Kitay notes that on 20 July 2018, Justice Colvin delivered judgment in Kitay, in the matter of Frigger (No 2) [2018] FCA 1032, in which his Honour ordered that the appellants be made bankrupt. Mrs Trenfield was appointed the trustee in bankruptcy of the bankrupt estates of Mr and Mrs Frigger on 31 August 2018 and initially held this position jointly with Mr Paul Allen: PJ at [63].
3. Mr Kitay's submissions provide a helpful summary of the factual background from which the debt, the subject of the creditor's petition emerged, as follows:

(a) the debt arises out of a cost order made in WA Supreme Court proceedings, which was taxed in the amount of $61,000.42 (Judgement Debt) on 5 July 2015;

(b) despite demand, Mr and Mrs Frigger refused to pay the Judgment Debt and the attempts by Mr Kitay and CAT to enforce against the assets of Mr and Mrs Frigger were unsuccessful;

(c) on 29 August 2016, Mr Kitay and CAT caused a Bankruptcy Notice to issue against Mr and Mrs Frigger with respect to the Judgment Debt. Mr and Mrs Frigger applied to set aside the Bankruptcy Notice and on 28 February 2016, Deputy District Registrar Trott (as he then was) dismissed that application;

(d) Mr and Mrs Frigger then applied for a review of that decision, which application was dismissed by Siopis J on 1 November 2017; and

(e) Mr Kitay and CAT then presented a creditor's petition in December 2017, and after a contested hearing, sequestration orders were made against the estates of Mr and Mrs Frigger on 20 July 2018.

1. Mr and Mrs Frigger's annulment application, which was the subject of the primary judgment, occurred after two prior attempts to end their bankruptcies: See Frigger v Trenfield (No 6) [2022] FCA 1233 at [9], Frigger v Kitay (No 2) [2020] FCA 497 at [4] and Frigger v Banning (No 11) [2020] FCA 1257 at [5]. Ultimately, the primary Judge concluded that the appellants' annulment application be dismissed: PJ at [55] - [56], [82] - [84].
2. Also relevant to the current proceeding is the proceeding WAD155/2025, in which Mr and Mrs Frigger made an application "to appeal pursuant to section 82(5) or section 30 of the Bankruptcy Act 1966 (Cth) against a series of alleged decisions of the trustee" which included decisions "to admit or to assess certain proofs of debt" (creditor claims application). Mrs Trenfield sought summary dismissal of the application on the basis that the application had no premise and therefore was without merit. Moshinsky J concluded in his Honour's judgment of 5 August 2025 that both paragraphs one and two of the appellants' creditor claims application were without merit. Nonetheless, his Honour considered that "[i]n the course of the hearing today, it became apparent that the real relief that is sought by Mr and Ms Frigger is that the court order that the trustee forthwith adjudicate on the proofs of debt". As such, his Honour concluded that paragraphs one and two of the creditor claims application should be struck out and the appellants should be given "leave to amend the application to seek an order that the trustee forthwith adjudicate on the proofs of debt".

1. It is useful to consider the withdrawal application first, as its resolution will determine whether the restraint application and the stay of costs application need to be substantively decided, including whether the further evidence application, insofar as it relates to the restraint application and stay of costs application, should also be determined.
2. The appellants sought the Court's leave to withdraw the restraint application and the stay of costs application by way of their letter dated 19 June 2025 sent to the Registry. Despite their experience in litigation, the appellants did not send the letter to the other parties in accordance with the requirements of the Court's Central Practice Note: National Court Framework and Case Management (CPN-1): See at [15]. Therefore, I held a case management hearing on 16 July 2025 in order to timetable the withdrawal application.
3. Relevantly, the letter which constitutes the withdrawal application reads as follows:

Dear ...

RE: WAD390/2024

I refer to my previous letter of 2 June 2025. The appellants filed an interlocutory application on 18 June 2025 to receive further evidence in the appeal.

Included in the evidence, is an originating application for review of proofs of debt that have been admitted or assessed by Mrs Trenfield. As submitted on 14 May 2025, in those circumstances the application to restrain Mrs Trenfield is now otiose.

Further, the other application to stay the taxation of the petitioning creditors bill of costs is also otiose because the proof of debt for those costs is included in the application for review.

In those circumstances, the appellants request her honour's directions that they have leave to file withdrawal of the two applications. This will serve the overarching purpose in section 37M Federal Court Act 1976.

Yours faithfully ...

1. In addition to the withdrawal application, the appellants rely upon the following materials:
   • Written submissions filed 30 July 2025; and
   • Supplementary submissions filed 14 August 2025.
2. Mrs Trenfield relies upon:
   • Written submissions filed 20 August 2025; and
   • An affidavit of Mr Smith filed 20 August 2025.
3. Mr Kitay relies upon:
   • Written submissions filed 20 August 2025; and
   • An affidavit of Mr David John filed 20 August 2025.
4. Mrs Trenfield consents to the withdrawal by the appellants of the restraint application, but seeks her costs.
5. Mr Kitay consents to the withdrawal by the appellants of the stay of costs application, but seeks his costs.
6. At the hearing on 27 August 2025, the appellants no longer pressed for a stay of the security for costs application, despite making submissions in support of it in their supplementary submissions of 14 August 2025.
7. On the basis of the respective positions adopted by Mrs Trenfield and Mr Kitay I am content to grant leave to the appellants to withdraw the restraint application and the stay of costs application. My conclusion as to the costs of those applications follows.

Costs of Restraint Application and Stay of Costs Application

1. At the hearing on 27 August 2025, Mrs Frigger made oral submissions on behalf of the appellants with respect to the costs of withdrawing the restraint application and the stay of costs application. As Mrs Frigger noted, her submissions drew directly from a textbook.
2. Accordingly, I made orders requiring the appellants to "file and serve a list of the citations" upon which they relied in their oral submissions with respect to the costs of the withdrawal of both the restraint application and the stay of costs application. The appellants filed a list on 1 September 2025 which, as well as setting out the textbook from which Mrs Frigger read (which is referred to below), included brief written submissions largely reflecting the oral submissions made but also providing authorities which were not expressly referred to in the hearing (post hearing submissions).
3. While the provision of written submissions extended beyond the scope of the order made, I had some limited regard to them as they exposed that during oral submissions Mrs Frigger not only read out excerpts of the commentary in the textbook, but also referred to legislation and a number of cases without identifying them to the Court.
4. The appellants submit that "no costs order should be made against us, or alternatively, that costs should be reserved or lie where they fall". In their submission, the "key supervening event" was their decision to file an originating application in the proceeding WAD155/2025 which sought to review creditor claims, and which "now encompasses the very matters that made those interlocutory applications necessary".
5. Indeed, in the appellants' written submissions filed 14 August 2025, they contend that as a result of the judgment in WAD155/2025, the premise of the "interlocutory applications filed in this appeal", presumably, the restraint application, the security for costs application and the stay of costs application has been "fundamentally" changed.
6. While the appellants accept that the general rule with respect to costs is that costs follow the event, they contend that "this rule does not apply mechanically, where applications become otiose due to supervening events rather than through any fault of the applicant". The appellants state that where an application is rendered "unnecessary due to circumstances beyond the applicant's control, courts regularly make no order as to costs".
7. The appellants refer to ss 37N and 43 of the Federal Court of Australia Act 1976 (Cth). Section 37N(1) of the Act requires parties to engage with proceedings in a manner "consistent with the overarching purpose", detailed in s 37M, of the civil practice and procedure provisions. That overarching purpose requires the just, quick, inexpensive and efficient resolution of disputes according to law: s 37M(1) of the Act. Section 43 of the Act details the Court's discretion in awarding costs.
8. As alluded to at [18] - [19] above, the appellants rely upon Dal Pont's fifth edition of Law of Costs. Specifically, the appellants relied upon the contents of a footnote at [8.39]: Dal Pont GE, Law of Costs (5th ed, Lexis Nexis, 2021) p 240. The relevant passage reads:

Below are discussed various grounds, most focusing on the conduct of the successful party,225 that may potentially justify him or her being deprived, wholly or partly, of an award of costs.

Cf SA UCR r 194.6(2), which inclusively lists multiple factors to which the court may have regard in exercising its costs discretion, most of which target the litigation behaviour of the parties (namely: (a) any misconduct or unreasonable conduct of a party in connection with a proceeding; (b) any breach by a party of overarching obligations (see r 3.1(1)), the rules or a court order; (c) any breach by a party of the pre-action obligations imposed by Ch 7 Pt 1; (d) the making or not making of an offer by a party to resolve the proceeding; (e) the non-acceptance by a party of an offer made by another party to resolve the proceeding).

1. The reference to "SA UCR" refers to Uniform Civil Rules 2020 (SA).
2. Not only is this legislation irrelevant to these proceedings, but it is misrepresented to the Court by the appellants in both their oral submissions and post-hearing submissions. In the appellants' oral submissions, Mrs Frigger merely stated that she was reading from "the book by Dal Pont in respect of costs". Very little clarity can be gleaned from the appellants' post-hearing submissions which stated, in part:
   1. At the hearing on 27 August 2025 the appellants opposed the respondents' applications for costs of the appellants' discontinued interlocutory applications. The appellants read out from G E Dal Pont, Professor, Faculty of Law, University of Tasmania "Law of Costs", 5th Edition, 2021, Chapter 8 "Ouster of general rule that costs follow the event".
   2. Circumstances that may justify depriving a successful party of costs: [8.39].
3. In addition, the appellants assert that the following principles are applicable:
   • "... [W]here a litigant succeeds in a case not on any merits of his own, but, say, on a technicality, it is open to the court to make no costs order in its favour", later citing Dal Pont GE, Law of Costs (5th ed, Lexis Nexis, 2021) at [8.44] p 244, Williamson v Bors [1900] NSWLawRp 68; (1900) 21 LR (NSW) Eq 302;
   • "A court may refuse costs to a successful defendant who has, by any act or omission, led the plaintiff to bring the action, where aside from the defendant's inducing conduct, the action would in all likelihood not have been brought", later citing Dal Pont GE, Law of Costs (5th ed, Lexis Nexis, 2021) at [8.45] p 245, Ritter v Godfrey [1920] 2 KB 47 at 53;
   • "A court may deny costs to a successful party, whether wholly or partly, who has done something connected with the institutional [sic] or the conduct of the suit calculated to occasion unnecessary litigation and expense, or has otherwise placed upon the unsuccessful party an unjustified cost burden", later citing Dal Pont GE, Law of Costs (5th ed, Lexis Nexis, 2021) at [8.48] p 247, Ritter v Godfrey; and
   • "Also, there's another reason or another ground where an ultimately successful party has hindered court processes in the litigation by filing deficient documents or otherwise committing some procedural irregularity", later citing Dal Pont GE, Law of Costs (5th ed, Lexis Nexis, 2021) at [8.50] p 248, Doval v Anka Builders Pty Ltd (1992) 28 NSWLR 1 at 15.
4. According to the appellants' submissions, these principles apply in the present circumstances due to the conduct respectively of Mrs Trenfield and Mr Kitay.
5. With respect to Mrs Trenfield, the appellants seek to cast aspersions on her honesty and the propriety of her actions as a trustee in bankruptcy. Mrs Frigger made oral submissions that:
   • Mrs Trenfield failed to adjudicate on proofs of debt despite advising Colvin J that she would do so;
   • In the proceeding before Moshinsky J, Mrs Trenfield did not explain her failure to adjudicate on proofs of debt despite her previous "assurance";
   • Mrs Trenfield provided "false evidence" to the primary Judge in the hope of preventing the annulment of the appellants' bankrupt estates;
   • Mrs Trenfield "goaded" the appellants into making the applications the subject of the withdrawal application;
   • Mrs Trenfield engaged in "a persistent refusal ... to answer inquiries, to give reasonable explanations, to impart information, or to render adequate accounts";
   • Mrs Trenfield "changed her story" and "obfuscated" the meaning of the words "admitted" and "assessed" in the context of proofs of debt;
   • Mrs Trenfield "deliberately delayed for the purposes of avoiding a review of her conduct by this court, and deliberately avoided that for the purposes of opposing the ... annulment order".
6. In Mrs Frigger's submission, if the Court were to award costs to Mrs Trenfield, it would "be awarding an officer of the court who has misconducted herself to the absolute highest degree possible by a trustee in bankruptcy".
7. With respect to Mr Kitay, Mrs Frigger made oral submissions which contend he "was just as much to blame because the evidence shows that he has put in proofs of debt totalling approximately $8 million and all of them are actually fraudulent claims".
8. Finally, Mrs Frigger makes a very serious allegation that Mrs Trenfield and Mr Kitay "conspired to put in false proofs of debt in an amount of $8 million". Indeed, the appellants assert in their oral submissions that "every single one of those proofs of debt now have proven to be false". The appellants have provided no independent evidence to support that assertion. It is no more than their subjective opinion, which, as the history of this litigation makes clear, has been rejected on a number of occasions.
9. The appellants' allegations are scurrilous. Despite the allegations being made repeatedly before the Courts, no evidence has been provided in support of them. As such they demonstrate the appellants' persistent pattern of baseless misrepresentation to the Court.
10. The material discloses the following chronology:
    • The restraint application was filed in January 2025 in the present proceedings, which is approximately four months prior to the commencement of the proceeding WAD155/2025 which was commenced on 21 May 2025;
    • The restraint application was accompanied by an affidavit of Mr Frigger filed 20 January 2025, which affidavit bears the proceeding number WAD66/2021, which is struck through and replaced with WAD390/2024;
    • Mr Frigger's affidavit annexed an email chain between the appellants and Mrs Trenfield's legal representatives. On some occasions, the email chain included Mr Kitay's legal representatives;
    • Within the email chain, there exists an email from the appellants to Mrs Trenfield's legal representatives, sent 16 November 2024, which specifically requested that Mrs Trenfield "forthwith ... stop the administration of our estate until delivery of judgment" in the proceeding WAD66/2021;
    • The judgment in WAD66/2021 was delivered in December 2024, that is before the filing of the restraint application;
    • On 18 December 2024 the appellants appealed against that decision, being these proceedings in which the applications are brought; and
    • The application in WAD155/2025 was made on 21 May 2025, some five months after the institution of these appeal proceedings.
11. In her oral submissions, Mrs Trenfield pointed out that the appellants' decision to bring the proceeding WAD155/2025 did not occur until months after making the restraint application, as evidenced in the affidavit of Mrs Frigger filed 20 June 2025 by way of the annexed application in WAD155/2025 dated 21 May 2025.
12. Mrs Trenfield submits that she has already been the subject of an "unsuccessful attempt", whether once or twice, by the appellants to restrain her, presumably in her administration of their estates. She contends that the appellants' appeal embodies "a fresh opportunity for Mr and Mrs Frigger to file for the umpteenth time ... an application seeking to restrain Mrs Trenfield effectively from administering the estates".
13. Mrs Trenfield also contends that the application in WAD155/2025 relates to a "decision that Mrs Frigger and Mr Frigger say happened in either June 2023" or "a decision that happened in April 2025". If it is the former, then the application in WAD155/2025 was brought with respect to a decision made some 18 months prior to the restraint application brought in these proceedings. If it is the latter, then the application in WAD155/2025 was brought "months after the restraint application".
14. As to the judgment delivered by Moshinsky J in WAD155/2025, the appellants blatantly misrepresent it. In their supplementary submissions, they submit that Mrs Trenfield "has been ordered to forthwith adjudicate proofs of debt" as a result of the judgment. Mrs Trenfield has in no way been ordered to adjudicate on the proofs of debt. That relief has not been granted. As is clearly laid out at [7] above, all that has been granted is leave for the appellants to seek an order that Mrs Trenfield forthwith adjudicate on those proofs of debt. Indeed, Moshinsky J indicated an intention to timetable the amended application for that purpose. The appellants have ignored this fundamental distinction and misrepresented the outcome of the judgment and orders in WAD155/2025 to this Court.
15. To the extent that the appellants attempt to rely upon circumstances beyond their control to justify no order as to costs, this is an astonishing proposition in light of the fact that the appellants were the moving party in both WAD390/2024 and WAD155/2025.
16. Additionally, Mrs Frigger's oral submissions that the appellants were "goaded" by Mrs Trenfield into bringing the applications is completely unsubstantiated and incomprehensible. Mrs Trenfield filed a submitting notice in these proceedings on 13 January 2025. She did not wish to be involved.
17. I accept Mrs Trenfield's submissions, as follows:
    • The appellants' "underlying premise" for bringing the restraint application did not exist, insofar as Mrs Trenfield had not "admitted or assessed proofs and that creditors needed protecting";
    • The appellants' restraint application is expressed broadly and is unrelated to "assessed or adjudicated claims or imminent payment to creditors";
    • The appellants have only recently connected the restraint application to the "admission or assessments of proofs of debt". Their previous evidence in this matter made no reference to any such "underlying premise";
    • Mrs Trenfield has "consistently and repeatedly" stated that she has not adjudicated on proofs of debt; and
    • Even if such an "underlying premise" existed, that is itself insufficient to warrant the Court restraining Mrs Trenfield.
18. Further, I note Mrs Trenfield's oral submissions, in which counsel frankly stated:

... Can I just say, once again, and this is - we just hear this time and time and time again. We have a number of allegations that are made by Mrs Frigger on behalf of Mr and Mrs Frigger in relation to fraud and misconduct and false claims and no creditors and without proof, which have all been proven to be false and etcetera, etcetera, without, of course, any foundation. There was no reference to any evidence or any material that actually supports any of those baseless allegations.

1. With respect to the costs of the restraint application, Mrs Trenfield therefore submits that the appellants should pay her costs. This submission was advanced on the basis that a withdrawal is "akin to a discontinuance", and under r 26.12(7) of the Federal Court Rules 2011 (Cth), the usual rule is that a party seeking discontinuance pay the other party's costs. This position will not be displaced unless the party seeking discontinuance can demonstrate a "good reason" to do so: Dalian Huarui Heavy Industry International Co Ltd v Duro Felguera Australia Pty Ltd [2018] FCA 905 at [7]. Mrs Trenfield contends that there is an absence of a good reason in these circumstances, given her submissions.
2. With respect to Mr Kitay's position, counsel adopted the oral submissions of Mrs Trenfield. Mr Kitay submits that costs should follow the event. In terms of the stay of costs application, he submits that "there was no merit in that application in the first instance" and there was significant and unexplained delay in bringing that application. Both Mrs Trenfield and Mr Kitay sought their costs of the case management hearing on 16 July 2025 and the hearing on 27 August 2025.
3. Over the course of the myriad applications brought in these proceedings, it has become increasingly apparent that the appellants are seemingly attempting to achieve two inconsistent goals. On the one hand they purportedly seek the efficient adjudication of the proofs of debt and on the other the forestalling of the administration of their estates.
4. As to costs I accept the submissions of the first and second respondents and conclude that costs should follow the event. On 16 July 2025, I made orders reserving the costs of the case management hearing on that date. The Court has a wide discretion under s 43 of the Act to award costs. The case management hearing on 16 July 2025 was only necessary due to the appellants' withdrawal application. The appellants should pay the costs of the case management hearing on 16 July 2025. They should also pay the costs of the hearing on 27 August 2025 except as to the amendment application and the further evidence application insofar as it relates to the appeal.

Further Evidence Application and Amendment Application

1. At the hearing on 27 August 2025 Mr Kitay stated that he objected to [6], [7], and [9] of the affidavit of Mrs Frigger filed 20 June 2025 on the basis that those paragraphs contain allegations made without foundation, and he wished to record that, while not relevant to the security for costs application, he did not accept the statements contained at [11] of that affidavit.

1. The amendment application was raised at the case management hearing held on 19 March 2025 at which time Mrs Frigger informed the Court that she had, on 17 March 2025, emailed my Associate. It emerged that, in fact, Mrs Frigger had attached a "Supplementary Notice of Appeal" to her email which was sent to the Registry and in which she stated the appellants would seek leave to file on 19 March 2025.
2. Mrs Frigger made oral submissions on behalf of the appellants to the effect that they sought leave to file the "supplementary" notice of appeal as the amendments were "only as a result of the variations to the original judgment" related to orders.
3. On the basis that the appellants informed the Court that the amended notice of appeal was only responsive to a supplementary judgment, I granted the appellants leave to file the amended notice of appeal and rely upon it.
4. The appellants did not file the amended notice of appeal until 6 June 2025. At the case management hearing on 16 July 2025, counsel for Mr Kitay raised the issue of the amended notice of appeal now filed by the appellants noting that it was not in accordance with the leave granted. The amended notice of appeal exceeded the terms of the leave granted on 19 March 2025 by traversing matters beyond the variations to the original judgment with respect to orders, that is, what Mrs Frigger described as a supplementary judgement. It also included additional information not contained in the version provided to the Court on 17 March 2025 and, at least on one occasion, included matters which post-date, by months, the leave granted.
5. I consider that the amendment application and the further evidence application as they relate to the appeal should be determined by the Full Court of the Federal Court of Australia, as it is in the interests of justice for those applications to be dealt with alongside the substantive appeal to which they are closely related. The parties had no objections to this course.

With Respect to the Security for Costs Application

1. I accept Mr Kitay's submissions regarding [6], [7] and [9] of the affidavit of Mrs Frigger filed 20 June 2025, and accordingly those objections are upheld in relation to the security for costs application.
2. However, at the case management hearing on 16 July 2025, Mrs Frigger maintained that the appellants rely upon the further evidence application with respect relevantly to the security for costs application, even though there appears to be no relevant nexus between the further evidence and that application.
3. The appellants made no written submissions in support of their application to adduce further evidence with respect to their security for costs application and nor have they provided an explanation for their failure to do so. Mrs Frigger made brief oral submissions to the effect that the further evidence "fortifies" the merits of their appeal and that the evidence "in respect of the alleged proofs of debt ... shows that any proof of debt which has not been adjudicated on by Mrs Trenfield cannot be taken into account in assessing what funds would be available in the event that the appeal is unsuccessful". As such, Mrs Frigger submits the further evidence is "relevant" and "has only come into our possession after your Honour reserved" the judgment.
4. On the other hand, Mr Kitay has provided compelling written submissions which oppose the further evidence application with respect to the security for costs application. I agree that there are no "exceptional" circumstances which would justify permitting the appellants to adduce further evidence where judgment is reserved: Briggs on behalf of the Boonwurrung People v State of Victoria [2024] FCA 288 at [20] - [21].
5. It is not clear that the affidavit of Mrs Frigger filed 20 June 2025, which purports to annex the relevant further evidence upon which the appellants wish to rely on appeal, supports the appellants' argument. First, it bears, once again, the number of another proceeding, namely WAD225/2021. Secondly, the affidavit is directed to "Evidence in Support of Ground Two" and "Evidence in Support of Ground Three", being, presumably, grounds two and three of the appellants' amended notice of appeal. Finally, I note that Mrs Frigger also indicated in that affidavit that the evidence was to be considered with respect to "the interlocutory applications currently reserved by the Honourable Justice Markovic", which is presumably meant to refer to me.
6. Further, the appellants' further evidence cannot be characterised as bearing such significant probative value that it would "most certainly affect the result" of the application: Daniel v State of Western Australia (2004) 138 FCR 254; [2004] FCA 849 at [67]. The evidence in relation to ground two appears directed to the conduct of Mr David John, the legal representative for Mr Kitay, with respect to a related proceeding in a different Court, namely COR2/2010. The evidence in relation to ground three appears directed to Mrs Trenfield's trustee report filed in the primary judgment and the appellants' creditor claims application brought in the proceedings WAD155/2025.
7. It is not clear how this further evidence "fortifies" the merits of the appellants' appeal. In any case, I accept Mr Kitay's oral submission that "[w]hilst, obviously, the merits of the appeal is one of the factors relevant to a security for costs application, it is not the overriding factor and, in our submission, even if there was to be found some evidence within that affidavit that could be relied upon, it does not alter your Honour's discretion".
8. Finally, the appellants have not established why this evidence, which appears to have been available in various other proceedings in this Court, was not adduced when the application was heard.
9. Consequently, I dismiss the appellants' further evidence application with respect to the security for costs application.

1. By way of a letter sent to the Registry from Mrs Frigger, dated 12 May 2025, the appellants sought an adjournment of the security for costs application, pending the resolution of the proceedings in COR2/2010. Mrs Frigger informed the Registry that the proceedings in COR2/2010 were adjourned from 8 May 2025 until 15 May 2025. In oral submissions on 14 May 2025, Mrs Frigger contended that the affidavit filed by Mr John on behalf of Mr Kitay on 7 May (presumably this year) in COR2/2010 "goes to the merits of the appeal which is one of the grounds upon which security for costs is being sought" and, therefore, is relevant to these proceedings. During Mrs Frigger's oral submissions on behalf of the appellants in support of the adjournment, Mrs Frigger directed the Court to [26] - [28] of her affidavit filed 14 May 2025 (Mrs Frigger's hearing affidavit), upon which, subject to certain limitations, I granted the appellants leave to rely.
2. Mr Kitay contended in his oral submissions at the hearing on 14 May 2025 that:

... With respect to the adjournment, however, the application that is being heard by Musikanth J tomorrow is an application to amend or vary the judgment for costs upon which the bankruptcy notice was based. That's the relevance of the application. The merits of the application before Musikanth J, however, we submit shouldn't cause an adjournment. It's an application to try and vary an order that is now some almost 11 years old.

1. At the oral hearing on 14 May 2025, I refused the adjournment. My reasons included that the appellants failed to adequately explain the relevance of the proceedings in COR2/2010 to the present proceedings. At best there appears to be only a tenuous connection between those proceedings and the present proceedings and there was delay in bringing this matter to the Court's attention.

The substantive determination of the security for costs application

1. Mr Kitay sought the following orders:
   1. Pursuant to section 56 of the Federal Court of Australia Act 1976 (Cth) and rule 36.09(1) of the Federal Court Rules 2011 (Cth), the Appellants are to provide the Second Respondent with security for his costs of and incidental to defending this Appeal in the sum of A$30,000.
   2. The security referred to in Order 1 is to be provided by payment into Court or the provision of an unconditional bank guarantee from an Australian trading bank.
   3. The security referred to in Order 1 is to be provided by no later than 21 days after Order 1 is made.
   4. The Appellants pay the Second Respondent's costs of and incidental to this application on an indemnity basis to be fixed on a lump sum basis.
   5. If security is not provided in accordance with these orders, or the Second Respondent's costs referred to in order 4 are not paid within 21 days of the date of these Orders, the Appeal be dismissed, and the Appellants pay the Second Respondent's costs of this Appeal to be taxed if not agreed.
   6. The parties have liberty to apply.
   7. Such further or other orders as the Court deems fit.
2. Mr Kitay relies upon the following material:
   • The security for costs application filed 4 February 2025;
   • An affidavit of Mr John filed 4 February 2025 (Mr John's first affidavit);
   • Written submissions filed 9 April 2025;
   • An affidavit of Mr John filed 9 April 2025 (Mr John's second affidavit);
   • Supplementary submissions filed 27 June 2025.
3. The appellants rely upon the following material:
   • An affidavit of Mrs Frigger filed 18 March 2025 (Mrs Frigger's March affidavit);
   • Written submissions filed 17 April 2025;
   • Mrs Frigger's hearing affidavit;
   • Correspondence of Mrs Frigger dated 2 June 2025; and
   • Further submissions filed 20 June 2025.
4. With respect to Mrs Frigger's hearing affidavit, the appellants sought leave to rely upon it at the hearing on 14 May 2025, as alluded to at [64] above, by way of a letter to the Registry dated 12 May 2025.
5. At the hearing on 14 May 2025, Mrs Frigger referred to the affidavit as being dated 9 May 2025. The only affidavit filed by the appellants in May 2025 is the affidavit of Mrs Frigger filed 14 May 2025, and which was sworn on 9 April 2025. It is elsewhere dated 9 May 2025.
6. I granted the appellants leave to rely upon Mrs Frigger's hearing affidavit absent the statements at [10], which include another completely unsubstantiated allegation that Mrs Trenfield and Mr Kitay "entered an arrangement calculated to pervert the course of justice".
7. An application for security for costs is made pursuant to s 56 of the Act and r 36.09(1) of the Rules for security for costs. Section 56 of the Act provides:

(1) The Court or a Judge may order an applicant in a proceeding in the Court, or an appellant in an appeal under Division 2 of Part III, to give security for the payment of costs that may be awarded against him or her.

(2) The security shall be of such amount, and given at such time and in such manner and form, as the Court or Judge directs.

(3) The Court or a Judge may reduce or increase the amount of security ordered to be given and may vary the time at which, or manner or form in which, the security is to be given.

(4) If security, or further security, is not given in accordance with an order under this section, the Court or a Judge may order that the proceeding or appeal be dismissed.

(5) This section does not affect the operation of any provision made by or under any other Act or by the Rules of Court for or in relation to the furnishing of security.

(1) A party may apply to the Court for an order that:

(a) the appellant give security for the costs of the appeal, and for the manner, time and terms for giving the security; and

(b) the appeal be stayed until security is given; and

(c) if the appellant fails to comply with the order to provide security within the time specified in the order - the appeal be stayed or dismissed.

1. The Court's discretion is "broad" and, subject to the "requirement to act judicially", it is "effectively unlimited or unconfined": Lim v Comcare [2016] FCA 1346 at [18].
2. Mr Kitay submits that the principles outlined by Rofe J in Chawk v Callan [2024] FCA 92 at [12] are relevant. These include:

(a) the prospects of success of the appeal;

(b) the likelihood that a costs order will not be satisfied;

(c) whether the making of the order would be oppressive in that it would stifle a reasonably arguable appeal;

(d) whether the appellant's impecuniosity arises out of the respondent's conduct; and

(e) whether there are aspects of public interest which weigh against the making of the order.

1. Mr Kitay also relies upon the statement of Emmett J in Dye v Commonwealth Securities Ltd [2012] FCA 992 at [27] as follows:

As a general rule, in relation to proceedings at first instance, impecuniosity, and even insolvency, does not mandate that an order for the provision of security for costs should be made. However, that principle does not necessarily apply in relation to an appeal, where the appellant has had the benefit of a decision of a court at first instance. An insolvent party will not be excluded from an appeal, but if he cannot find security, he may be prevented from taking his opponent from one court to another. The feature of an appeal that marks it out from a proceeding at first instance is that there has already been a decision given by the court that heard the matter at first instance. That is to say, the appellant has had his or her day in court and has had an opportunity to present his or her case, and has had a ruling that must be presumed to be correct. Security may not necessarily be ordered if an appeal is brought in good faith and raises substantial questions of law. However, the position will be different where the appeal turns largely on questions of fact and it does not give rise to any important question of law.

1. He submits that security for costs has historically been ordered by the Court where the appeal grounds simply reventilate the grounds in the primary judgment, even if the appellants are impecunious, relying upon Beames v Rigby [2002] FCA 1095 at [4] and Mead v Mead [2010] FCA 288 at [10].
2. Mr Kitay submits that the appellants "have limited or no prospects of success" on their grounds of appeal in the substantive matter, whilst acknowledging that the Court is only obliged to "undertake a preliminary assessment" of the case: See Impex Pty Ltd v Crowner Products Ltd (1994) 13 ACSR 440 at 441, Mecrus Pty Ltd v Industrial Energy Pty Ltd (2015) 327 ALR 523; [2015] FCA 103 at [41] - [43], Bray v F Hoffmann-La Roche Ltd (2003) 130 FCR 317; [2003] FCAFC 153 at [252].
3. In that regard, Mr Kitay contends that the appellants' appeal reventilates matters decided against them. In his written submissions, he refers to Kitay and Kitay v Frigger (No 2) [2024] WASC 113, and "the cost order, upon which the bankruptcy notice and sequestration order were made, ... dated 17 June 2014 and the Certificate of Assessment of Costs ... dated 6 July 2015".
4. In making that submission Mr Kitay points to [83] of the primary judgment, in which the primary Judge stated:

Looking at the long history of litigation which has followed a refusal by Mr and Mrs Frigger to return a confidential affidavit which had come into their hands, it is apparent that Mr and Mrs Frigger have become obsessed with the righteousness of their claim that nothing is owed by them in respect of the costs sequel to the interlocutory application brought to secure the return of that document. The present is but the most recent endeavour to secure vindication of their claim. In reality, it is nothing other than a contrived endeavour, under the guise of a baseless allegation of fraud, to reagitate issues long ago finally determined against them. It is, in truth, a vexatious proceeding.

1. He also points to Frigger v Trenfield (No 10) [2025] FCA 164 at [25] whereby Mr Kitay was awarded costs on an indemnity basis, given the "vexatious" nature of the annulment application by the appellants in the primary judgment.
2. The appellants contend that their appeal has merit. They made submissions as to the relevant legal principles as follows:

The relevant factors (prospects, ability to pay, oppression, causal connection, public interest) are not cumulative prerequisites; weakness on one does not compel a grant.

1. In their written submissions the appellants describe the merits of their appeal grounds as follows:

C. Merits of the appeal

1. Grounds 1 and 5 contend that Logan J erred in mixed fact and law by finding the appellants committed acts of bankruptcy:

   (a) in circumstances where it is established that the bankruptcy notices were invalid.

   (b) Siopis J did not conclude the bankruptcy notices were valid, because the appellants did not know about the invalidity and did not raise the issue. In those circumstances, the appellants are entitled to raise that issue in a challenge to the sequestration orders. The court is entitled to consider the case as disclosed at the time the sequestration order was made, but as it would have been disclosed had all the true facts been before the court on the making of the order.

   (c) Hill J did not resolve any fraud issues in WASC Approval Judgment, because none of those issues were raised. This court is not bound by Hill J's decision in any event.

   1. Ground 2 alleges that Logan J erred in law on the fraud claim without adequately addressing evidence of that fraud: the appeal ground is validly raised.

   2. Ground 3 alleges Logan J erred in mixed fact and law by relying on the validity of bankruptcy notices in circumstances where the evidence unequivocally proves the opposite.

   3. Ground 4 alleges Logan J erred in law by dismissing the annulment claim in circumstances where Trenfield's affidavit of 5 August 2024 purporting to be a report as to the administration was not filed, and accordingly Logan J could not assess the solvency of [sic] otherwise of the estates. Further Logan J did not have regard to the appellants [sic] evidence proving solvency of the estates.

   4. In the above circumstances, the appeal has good prospects of success and is arguable. An appeal is precisely the vehicle for challenging conclusions in law, and Kitay is wrong to submit otherwise. An appeal that raises arguable jurisdictional error is not "hopeless". Security should rarely be imposed where the merits are at least arguable.

   5. Whether the alleged fraud is "baseless" is itself a live issue; the primary judge declined to determine the authenticity of the PSA incorporation documents, leaving that question open.

(Footnotes omitted.)

1. By way of their further submissions, the appellants attempt to rely upon Frigger v Kitay (No 10) [2025] WASC 214 to establish that "the underlying judgment debt was not validly constituted" and that "the three interlocutory applications heard on 14 May 2025 ought to be decided in the appellants' favour, because grounds of appeal are strongly arguable and of considerable merit". To the extent that the restraint application and the stay of costs application are no longer on foot, the appellants' submissions with respect to those applications are moot.
2. In her correspondence of 2 June 2025, Mrs Frigger contends that Frigger v Kitay (No 10) confirmed that errors exist with respect to "both documents attached to the bankruptcy notice". In that regard Mrs Frigger directs the Court to [74] and [81] of Frigger v Kitay (No 10). Those paragraphs respectively read:

Noting what is said in paragraphs 11 to 15 above, I accept it is reasonably possible that Master Sanderson may have erroneously used the expression 'the Applicants' when making the indemnity costs order (as extracted).

...

However, noting the bill had been filed on behalf of both applicants (unsurprising given the terms of the indemnity costs order itself) it seems likely to me that this was an error.

(Footnotes omitted.)

1. The context for these purported errors is found at [8] - [15] of Frigger v Kitay (No 10), and to the extent that it is relevant, concerned the term 'the applicants' which was used in various forms, both singular and plural, or interchangeably with 'liquidator', in various materials before the Court in Frigger v Kitay (No 10).
2. Mr Kitay contends in his supplementary submissions that Frigger v Kitay (No 10) does not assist Mr and Mrs Frigger's case. Mr Kitay submits that [75] of Frigger v Kitay (No 10) is relevant, insofar as it establishes Musikanth J's view as to the "mere possibility of error", not its actual existence. Mr Kitay also contends that both [80] and [81] of Frigger v Kitay (No 10) are relevant. Frigger v Kitay (No 10) at [80] reads as follows:

In coming to this view, I have not overlooked the Friggers' submission that the costs assessment certificate, signed by Registrar S Boyle just over a year later, referred in two places to the 'applicant's' bill of costs (i.e. with the apostrophe between the 't' and the 's').

1. Mr Kitay elaborates upon this submission, contending:

The reasoning and finding in paragraphs [80] and [81] of the Variation Application Decision was against Mr and Mrs Frigger's submission, as the Court found that the Certificate of Assessment does not mean that the costs were assessed in favour of Mr Kitay (as liquidator) alone as opposed to Mr Kitay (as liquidator) and Computer Accounting and Tax Pty Ltd (in liq) jointly.

1. I agree with Mr Kitay's submissions on this point. To that end, I do not consider Frigger v Kitay (No 10) as lending any assistance to Mr and Mrs Frigger with respect to the merits of their appeal.
2. I accept Mr Kitay's submissions that the appellants' appeal is unmeritorious, given the history of the matters upon which their appeal rests and the statements of the primary Judge at [83] of the primary judgment. The appellants appear to be simply reagitating matters which have been repeatedly and consistently decided against them. On a preliminary basis, I conclude that the appellants have little prospect of success on appeal. Consequently, this consideration weighs in favour of granting Mr Kitay's security for costs application.
3. On the question of whether the appellants can satisfy the costs order, Mr Kitay submits that the risk of their inability to do so is real, in that the appellants have been made the subject of "[f]ourteen previous orders for security for costs". He submits that despite having "assets in the Frigger Super Fund" these are beyond the reach of creditors and could not assist him: See Kitay at [107] - [126].
4. The appellants have previously been the subject of numerous costs orders and security for costs orders and have engaged in a pattern of failure to satisfy such orders: See Frigger v Kitay [2019] FCA 624, Frigger v Kitay (No 2) (2020) 143 ACSR 655; [2020] FCA 497, Frigger, in the matter of Computer Accounting & Tax Pty Ltd (in Liq) (No 2) [2018] FCA 612; Frigger, in the matter of Computer Accounting & Tax Pty Ltd (In Liq) (No 4) [2021] FCA 487; Kitay v Frigger [2022] WASC 350; Frigger v Kitay (No 9) [2024] WASC 375; In the matter of Computer Accounting and Tax Pty Ltd (No 4) [2023] WASC 90; In the matter of Computer Accounting and Tax Pty Ltd (in Liq) (No 8) [2024] WASC 258; Frigger v Computer Accounting & Tax Pty Ltd [2023] WASCA 152.
5. In response, the appellants contend in their written submissions that their "statements of position show net positive asset values", that Mrs Trenfield's evidence was "unequivocally flawed" and the "supporting evidence was not read" by the primary Judge such that his Honour could not assess solvency. Although conceding that fourteen security orders have been made, the appellants submit that many are now discharged, which demonstrates their "history of compliance".
6. I do not consider the appellants' contentions to be persuasive, and particularly so given their generalised contention that Mrs Trenfield's evidence was "unequivocally flawed". I am not satisfied in that regard and nor was the primary Judge: see PJ at [63] and [74]. The repeated imposition of security for costs orders, far from demonstrating the appellants' "history of compliance", demonstrates the repeated recognition by the Courts of their potential inability to pay costs. On this basis, I conclude that there is a risk that the appellants will be unable to satisfy the costs order. This factor weighs in favour of granting a security for costs order.
7. Further, Mr Kitay submits that the appellants' contention that he "has not incurred and will not incur personal liability for legal fees in these proceedings" was not only "unsuccessfully raised" in a similar form in previous proceedings but fundamentally misapprehends the position of a party with respect to their legal representation.
8. The appellants submit that Mr Kitay is indemnified by their estates, even if he is liable to pay his lawyer (which they deny). Therefore, they contend that "the risk of non-recovery is theoretical". Yet again misstating the law, the appellants rely upon Hancock Prospecting Pty Ltd v Hancock (No 3) [2016] WASC 423 at [59] for the proposition that Mr Kitay must "prove he has a liability to pay costs in this matter". Hancock (No 3) at [59] reads as follows:

Those authorities highlight the distinction between an evidentiary onus, and an onus of proof. The presumption as to the existence of a retainer (which arises when a solicitor acts for a client with the client's knowledge and assent) may be displaced by evidence inconsistent with the existence of a retainer. In that event, the evidentiary onus will shift to the client to demonstrate the terms of the retainer with his or her solicitors. Consequently, arguments about the evidential burden often arise at the point where an application is made for an order requiring the client to put on evidence as to the existence of a retainer.

(Emphasis added and footnotes omitted.)

1. The appellants contend that Mr Kitay has refused to prove this liability. They also submit that the Court may infer that "no such liability exists and the application for security is an abuse of process", relying upon Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8.
2. In summary, Mr Kitay contends that where a retainer exists between a solicitor and a client, the client's obligation to pay their solicitor is enlivened by operation of law: Adams v London Improved Motor Coach Builders Ltd [1921] 1 KB 495 at 501; Hudgson v Endrust (Australia) Pty Ltd (1986) 11 FCR 152 at 154. A party will become liable when its solicitors act with its "knowledge and assent": Adams at 501 - 503; McKenzie v Director-General of Conservation and Natural Resources [2001] VSC 220 at [61] - [62]; Shaw v Yarranova Pty Ltd [2011] VSCA 55 at [19], [24].
3. Mr Kitay made extensive submissions with respect to the relevant legal principles which relate to costs incurred by a party and owed to their legal representatives. Adams at 501 provides a useful explanation:

When once it is established that the solicitors were acting for the plaintiff with his knowledge and assent, it seems to me that he became liable to the solicitors for costs, and that liability would not be excluded merely because the Union also undertook to pay the costs. It is necessary to go a step further and prove that there was a bargain, either between the Union and the solicitors, or between the plaintiff and the solicitors, that under no circumstances was the plaintiff to be liable for costs.

1. Irrespective of the source of the instructions to a solicitor, a solicitor is entitled to obtain costs from the party whom they represent on the record: Marsh v Baxter (No 2) [2016] WASCA 51 at [37], Hudgson at 154 - 155, Bolton v Stange [2001] WASCA 34 at [8], Davies v Taylor (No 2) [1974] AC 225 at 230, Halliday v High Performance Personnel Pty Ltd (In Liq) (formerly SACS Group Pty Ltd) (1993) 113 ALR 637; [1993] HCA 13 at 640, McKenzie at [59], [61], Adams at 501.
2. A party who wishes to challenge the liability of a party to pay costs must tender evidence that establishes an express agreement between the solicitor and their client that no payment is required: Marsh at [37]; Davies v Taylor (No 2) at 230.
3. It clearly emerges from these principles that unless there is very clear and specific evidence to the contrary, a party will usually be obliged to pay their legal representatives. No evidence of the kind referred to in the principles above has been adduced by the appellants to establish that this is not the case in Mr Kitay's circumstances. To the extent that the appellants attempt to establish that Mr Kitay was not and would not be liable for costs owed to his solicitors as a factor in their favour, this must be rejected.
4. Mr Kitay further contends that the estates of the appellants are indeed bankrupt and refers the Court to the conclusions of the primary Judge at [78] - [79] and [82] of the primary judgment. He also contends that the appellants have creditors who are entitled to a claim against the estate, as decided by the primary Judge at [81].
5. Contrastingly, the appellants rely upon Mrs Frigger's March affidavit, wherein Mrs Frigger deposed that during the cross-examination of Mrs Trenfield, presumably in the proceedings the subject of the primary judgment, Mrs Trenfield had "conceded that no creditors have been admitted" and that she "admitted that she has not issued accounts for remuneration to the estates". In her March affidavit, Mrs Frigger stated that "[a]s there are no creditors entitled to claim against the estate, it follows that Mr. Kitay's assertion that he requires security for costs is without merit".
6. I do not accept these statements. The transcript of the cross examination is not in evidence before the Court. It is therefore not possible to know what was said by Mrs Trenfield under cross examination, nor is it possible to know the context in which any such statements were made. Whatever was said under cross examination the primary Judge accepted the evidence of Mrs Trenfield as being, in the face of considerable "antipathy" toward her on the part of Mrs Frigger, "noteworthy for its dispassionate, clinical calm and detachment": PJ at [63]. Furthermore, the primary Judge regarded Mrs Trenfield's evidence, including her very helpful report (at [63]) to be the best guide as to the financial position of the appellants, and indeed the "only reliable evidence as to the present financial position of Mr and Mrs Frigger and their bankrupt estates" (at [74]) in respect of whom he concluded at [79] of the primary judgment:

In summary, the more likely position looks to be that the joint and several bankrupt estates of Mr and Mrs Frigger will not yield a surplus. Instead, large shortfalls are in prospect.

1. The appellants also rely upon Mrs Frigger's March affidavit, wherein Mrs Frigger deposed that in the lower Court, the appellants paid Mr Kitay a prior security pursuant to an order he obtained, yet "when the proceedings concluded, Mr. Kitay obtained an order that his costs be paid from the bankrupt estates". Mrs Frigger claimed in her March affidavit that this meant "the security for costs was ultimately unnecessary" such that the Court in the current proceeding "should not permit Mr. Kitay to abuse the security for costs process by repeatedly seeking security".
2. In response to the appellants' assertions, Mr Kitay submits:

It is correct that at the conclusion of the Annulment Application, Mr Kitay sought and was granted an order that his costs be paid out of the estates of the bankrupts. In this regard, it is submitted:

(f) It is implicit in the nature of an order for the provision of security for costs, and the amount held in court pursuant to an order for security for costs, that such amount paid into court pursuant to the order should be applied in satisfaction of any cost order made against the party paying security.

(g) As a matter of fact, the Applicants remain primarily liable and responsible for the costs incurred by the Second Respondent in the proceedings.

(h) That the ultimate order made in the proceedings provides for payment of costs out of the bankrupt estate does not extinguish the reason for the making of an order for security for costs. There is no certainty that such an order will be made in the Appeal if Mr and Mrs Frigger are unsuccessful.

(i) The order for costs in favour of the Second Respondent, as ultimately made, reflects the underlying position that the action of the Second Respondent has preserved the bankrupts' property for creditors[.]

(j) However, if such a costs order is made, it is to the detriment of the other creditors of the bankrupt estates (ie as the costs are paid in priority to the debts of other creditors). In such a context, an order for security for costs preserves and protects the position of the other creditors of the bankrupt estates (ie as the quantum that will be borne out of the bankrupt estate is reduced). The other creditors of the bankrupt estates are entitled to have the assets of the bankrupt estate preserved, to the extent possible.

(k) If Mr and Mrs Frigger's argument is correct, it would militate against an order for security for costs being made against a bankrupt in any challenge to a sequestration order or appeal of such challenge, by reason of the possibility that it will ultimately be ordered that the petitioning creditor's costs be paid out of the bankrupt's estate. This would leave bankrupts free to challenge a sequestration order or bring annulment proceedings and subsequent appeals without the appropriate check and balance provided by the discretion invested in the court to order security for costs of such an application.

(l) Recently, Logan J made orders that the security for costs paid into court by Mr and Mrs Frigger as security for Mr Kitay's costs of defending the Annulment Application should be paid out to Mr Kitay in the event that Mr Kitay's costs in the Annulment Application, as fixed by a registrar, exceeded that amount (with the remainder to be paid out of Mr and Mrs Frigger's bankrupt estates), or if costs fixed were less than that amount, the balance would be paid out to Mr and Mrs Frigger.

(m) His Honour made these orders following Mr and Mrs Frigger making an application that the security for costs be paid out to them because Mr Kitay's costs had been ordered to be paid out from their bankrupt estates. Logan J's reasoning was that given the Annulment Application had been dismissed "it would hardly be just to order, as they promote, that the sum be paid to Mr and Mrs Frigger" and that it "would be subversive of the costs discretion already having been exercised in a way that saw costs following the event".

(Emphasis in original and footnotes omitted.)

1. I accept the submissions of Mr Kitay with respect to the utility of a security for costs order in these proceedings. It cannot be the case that the mere possibility that a Court will eventually order that the petitioning creditor's costs be paid out of the bankrupt's estate renders a security for costs order unnecessary in all circumstances.
2. Additionally, Mr Kitay submits that the appellants' bankruptcy notice which led to a sequestration order is valid, relying upon [46] of the primary judgment. He contends that the primary Judge had both heard and considered the appellants' argument with respect to the certificate of assessment.
3. Contrastingly the appellants rely upon Mrs Frigger's March affidavit, wherein she deposed that the bankruptcy notices upon which the sequestration orders were made were "invalid as they were not based on final judgments exceeding $5000" and that the taxation certificate which formed the basis of those bankruptcy notices was "unsigned and did not name the judgment creditor". Mrs Frigger stated in her March affidavit that no "adequate explanation" had been given by Mr Kitay and his solicitors with respect to a variety of subjects, including "the discrepancies between the cost judgement, cost order and bankruptcy notices".
4. I gratefully adopt the statements of the primary Judge at [46] with respect to the validity of the bankruptcy notice, which was "finally determined" to be valid in Frigger v Kitay [2017] FCA 1278. The statements by the appellants simply reagitate the substantive issue of the validity of the bankruptcy notice and sequestration order and do not, in my view, assist their present opposition to an order being made that they provide security for costs.
5. Nor can the appellants derive much, if any, assistance from the assertions made by Mrs Frigger in her March affidavit that Mr Kitay's appointment as the liquidator of CAT was somehow invalid. Mrs Frigger states in that affidavit that Professional Services of Australia Pty Ltd, which applied to appoint Mr Kitay as the liquidator of CAT, was "never a legally incorporated entity" such that Mr Kitay's appointment was "void ab initio" and he therefore has no standing to apply for a security for costs order.
6. Mr Kitay contends that, as it presently stands, Frigger v Professional Services of Australia Pty Ltd (No 6) [2024] FCA 1320 affirms that the registration of Professional Services of Australia Pty Ltd "was not invalid ab initio". Mr Kitay has informed the Court that there remain separate proceedings with respect to this argument in the Supreme Court of Western Australia, but until such time as those proceedings are resolved, Mr Kitay cannot be deprived of the benefit of the present ruling with respect to the status of Professional Services of Australia Pty Ltd.
7. Mrs Frigger's March affidavit purports to respond to Mr John's first affidavit. In her March affidavit Mrs Frigger deposed that the appellants have, in their personal capacities, made "a claim against Mr Kitay for loss and compensation more than $8,000,000" in the proceedings CIV2765/2010. Mrs Frigger also deposed that she has asked Mr Kitay about the value of his professional indemnity insurance "repeatedly" and that he has "refused to provide that information". Ultimately, Mrs Frigger relied upon an assertion in her March affidavit that "there is a real risk that Mr Kitay is himself insolvent and will not pay our losses". Mrs Frigger took issue in her March affidavit with the statements contained in [25] - [38] of Mr John's first affidavit, which read as follows:
   1. Mr and Mrs Frigger were bankrupted in 2018 as a consequence of a refusal to pay a costs award made against them. See Kitay, in the matter of Frigger (No 2) [2018] FCA 1032.
   2. On 2 April 2020, Justice Hill made orders in Supreme Court of Western Australia proceedings COR 2 of 2010 (COR 2 of 2010). Annexed hereto and marked 'DWJ-16' is a true copy of those orders. By paragraph 2 of that Order Mrs Frigger was ordered to pay Mr Kitay's costs in the sum of $1,750. Annexed hereto marked 'DWJ-17' is a true copy of a chain of emails that includes emails from me to Mrs Frigger sent 24 April 2020 at 12:55pm and Mrs Frigger's email sent in reply on 24 April 2020 at 3:08pm. Those costs have still not been paid.
   3. On 15 October 2020, Justice Hill made orders in COR 2 of 2010. Annexed hereto and marked 'DWJ-18' is a true copy of those orders. By paragraph 2 of that Order Mrs Frigger was ordered to [sic] Mr Kitay's costs in the sum of $1,750. Annexed hereto marked 'DWJ-19' is a true copy of a chain of emails that includes my email to Mrs Frigger sent 26 October 2020 at 10:56am and Mrs Frigger's email to [sic] sent in reply on 26 October 2020 at 12:10pm. Those costs have still not been paid.
   4. On 19 June 2020, in proceeding WAD 549 of 2019 in the Federal Court of Australia, orders were made, inter alia, that the Friggers pay Mr Kitay's costs to be assessed on a lump sum basis (see: Frigger v Kitay (Liquidator) (No 3) [2020] FCA 861). Those costs were assessed in the sum of $18,000 and those costs have not been paid. Attached and marked 'DWJ-20' is a true copy of the costs award.

29. In proceeding WAD 492 of 2018 in the Federal Court of Australia:

(a) on 6 May 2019, orders were made, inter alia, that the Friggers provide security for costs in the amount of $12,500 (see: Frigger v Kitay [2019] FCA 624); and

(b) on 17 April 2020, orders were made, inter alia, that this security be provided on or before 15 May 2020 (see: Frigger v Kitay (No 2) [2020 [sic] FCA 497) and if it is not paid, the matter be dismissed.

1. The Friggers did not pay that security and the proceedings were therefore dismissed.

2. As a consequence of the dismissal of the proceedings in WAD 492 of 2018, on 14 May 2020, orders were made, inter alia, that the Friggers pay costs fix [sic] in a sum of $30,000 (see: Frigger v Kitay (No 3) [2020] FCA 650). The Friggers have not paid these costs.

3. On 7 May 2018, in proceeding WAD 674 of 2015 in the Federal Court of Australia, orders were made, inter alia, that the Friggers provide security for Mr Kitay's costs in the sum of $30,000 by way of unconditional bank guarantee in that sum, or otherwise to the satisfaction of a Registrar of the Court (see: Frigger, in the matter of Computer Accounting & Tax Pty Ltd (in Liq) (No 2) [2018] FCA 612). That security was not provided and the proceedings have been dismissed, including because the security was not paid (see: Frigger, in the matter of Computer Accounting & Tax Ply [sic] Ltd (In Liquidation) (No 4) [2021] FCA 487).

4. On 25 October 2022, Justice Allanson in COR 2 of 2010 ordered that Mrs Frigger pay the amount of $15,000 into court as security for costs for the [sic] Mr Kitay's costs of defending Mrs Frigger's interlocutory process dated 19 October 2020 (see: Kitay, in his capacity as liquidator of CAT [2022] WASC 350). That security was not paid, even though the court made a springing order, and the proceedings therein were consequently dismissed when Mrs Frigger failed to pay the security ordered (see: Angela Cecilia Theresa Frigger and Hartmut Hubert Josef Frigger v Mervyn Jonathan Kitay and Computer Accounting and Tax Pty Ltd (In Liq) [No 9] [2024] WASC 375).

5. On 25 October 2022, Justice Allanson in Supreme Court of Western Australia proceedings COR 126 of 2020 (COR 126 of 2020), dismissed an application brought by Mrs Frigger against Mr Kitay dated 16 October 2020, and ordered that Mrs Frigger pay Mr Kitay's costs of that application and Mr Kitay's interlocutory process dated 3 March 2021, to be taxed if not agreed (see Frigger v Mervyn Jonathan Kitay as liquidator of Computer Accounting & Tax Pty Ltd [2022] WASC 347). Attached and marked 'DWJ-21' is a true copy of the Orders dated 25 October 2022. Those costs were taxed and allowed in the sum of $26,231.75. Attached and marked 'DWJ-22' is a true copy of Certificate of Taxation dated 8 August 2023. Mrs Frigger has not paid those costs. This taxation was a lengthy and contested process involving various applications by Mrs Frigger including applications to stay and/or review the taxation. Annexed hereto and marked DWJ-23 is a true copy of the orders of Justice Lundberg dated 18 March 2024 dismissing the various applications made by Mrs Frigger in the course of the COR 126 taxation. The history of the assessment process is detailed in Justice Lundberg's reasons published in February 2024: Frigger v Mervyn Jonathan Kitay (as liquidator of Computer Accounting & Tax Pty Ltd [sic] (No 2) [2024] WASC 50 and is referred to in Computer Accounting and Tax Pty Ltd (In Liq) (No 8) [2024] WASC 258 at [10]- [11].

6. On 24 March 2023, Justice Smith in COR 2 of 2010 ordered that Mr and Mrs Frigger pay the amount of $30,000 into court as security for costs for Mr Kitay and CAT's costs of defending Mr and Mrs Frigger's interlocutory process filed on 28 October 2022 and that the interlocutory process be stayed until Mrs Frigger pay the costs of COR 126 of 2020 into court, which are the costs referred to at paragraph 34 above (see: Computer Accounting and Tax Pty Ltd (ACN 009 470 491) (No 4) [2023] WASC 90). That security and the costs of COR 126 of 2020 were not paid, even though the court made a springing order, and the proceedings therein were consequently dismissed when Mr and Mrs Frigger failed to pay the security ordered and costs of COR 126 of 2020 (see: In the Matter of Computer Accounting and Tax Pty Ltd (In Liq) [No 8] [2024] WASC 258).

7. On 26 October 2023, Mazza JA and Mitchell JA in Western Australia Court of Appeal proceedings CACV 41 of 2023 ordered Mr and Mrs Frigger to pay into court the sum of $18,000 as security for Mr Kitay and CAT's costs of the appeal (see: Frigger v Computer Accounting & Tax Pty Ltd [2023] WASCA 152). That security was not paid, with the consequence that the appeal was dismissed.

8. On 31 May 2021, Colvin J dismissed the application against me in Federal Court proceedings WAD 66 of 2021, being the proceedings the subject of this Appeal, and ordered that Mr and Mrs Frigger pay the costs of my interlocutory application dated 28 May 2021 and the proceedings (ie to the extent that they related to me) to be taxed. The orders made by Colvin J in this regard are annexed hereto and marked DWJ-24. On 10 January 2025, a certificate of taxation of my costs was issued in the amount of $13,901.80. Annexed hereto and marked DWJ-25 is a true copy of the Certificate of taxation dated 10 January 2025. Despite demand, Mr and Mrs Frigger have not paid those costs.

QUANTUM OF SECURITY SOUGHT

1. In order to defend the Appeal, I consider that it will be necessary to carry out at least the following tasks on behalf of the Second Respondent:

(a) consider the Appellants' Notice of Appeal and prepare and file a Notice of Address for service;

(b) review the Appeal Books filed by the Appellants;

(c) consider the Appellants' submissions, chronology of relevant events and list of authorities;

(d) prepare and file an outline of submissions in response to the Appeal, with Counsel settling those submissions;

(e) prepare and file a chronology of the relevant events, with Counsel settling the chronology;

(f) prepare and file a list of authorities and / or legislation;

(g) consider any submissions in reply;

(h) preparing for the Appeal including considering the content and merits of the Appeal, taking instructions from and providing advice to the Second Respondent, in respect of content and merits of the Appeal;

(i) prepare for and attend the hearing of the Appeal, which I anticipate will last for at least 1 day; and

(j) attend to receive judgment of the Appeal.

1. With respect to [25] of Mr John's first affidavit, Mrs Frigger denied their liability to pay costs due to the "unsigned and unnamed Certificate of Taxation" and deposed that Mr Kitay "had no legal right to obtain Bankruptcy Notices in respect of an invalid judgment".
2. With respect to [26] of Mr John's first affidavit, Mrs Frigger deposed that she is "now aware that the cost order of $1,750 is a nullity and void because Kitay's appointment as liquidator is invalid and void".
3. With respect to [27] - [36] of Mr John's first affidavit, Mrs Frigger relied upon her assertions in her affidavit with respect to [26] of Mr John's first affidavit and regarding Mr Kitay's alleged insolvency as outlined at [112] of this judgment.
4. With respect to [37] of Mr John's first affidavit, Mrs Frigger deposed that she "was not served with any documents relating to an [sic] taxation hearing of John's costs", that she has sought to set aside the certificate of assessment pursuant to that ground but is "yet to receive a response from WA Registry".
5. With respect to [38] of Mr John's first affidavit, Mrs Frigger deposed follows:
   1. I refer to paragraph 38: I refer to my letter to Kitay dated 21 January 2025. Based on the Jones v Dunkel principle, this court may infer that there exists no evidence that Kitay has incurred a liability for legal fees or paid legal fees. I believe the application for security is purely for the benefit of Mr John, who has wasted thousands of hours representing Kitay, without payment, since 2010. I believe Mr John is also aware that Kitay is not my company's liquidator but refuses to accept that fact.
6. Mrs Frigger's March affidavit concludes at [30] - [32] as follows:
   1. CONCLUSION

30. In light of the above:

(a) Kitay has not incurred and will not incur personal liability for legal costs.

(b) The bankrupt estates contain substantial assets exceeding $12,500,000.

(c) There are no admitted creditors entitled to claim from the estates.

(d) A prior security for costs order was ultimately unnecessary and should not have been imposed.

(e) The underlying bankruptcy notices were invalid, and Kitay has failed to explain material discrepancies.

(f) Kitay's appointment as liquidator was void an initio, meaning he has no standing to seek security for costs.

1. This application for security for costs is an abuse of process and should be dismissed.
2. I request that this appeal be listed for hearing without further delay, as the Appeal Book and written submissions are ready for filing.

1. As is obvious, while Mrs Frigger purported to respond to particular paragraphs of Mr John's first affidavit, some of her responses bore no apparent relationship to the paragraphs of Mr John's affidavit to which she referred.
2. With respect to the appellants' allegations in response to Mr John's first affidavit, Mr Kitay submits that he does not "directly" address each individual allegation but contends that "these are all matters which have been previously raised by Mrs [sic] and Mrs Frigger in the Annulment Application and various other proceedings, and rejected". I am inclined to accept this submission, on the basis of the matters traversed at [110] - [115] above.
3. Ultimately, the appellants contend that the appeal relates to "the integrity of sequestration orders and thus access to justice for bankrupts" and that, in order to ensure the "public confidence in the system", an arguable appeal must be heard on its merits without being "stifled with security for costs orders where there is no risk of non-payment".
4. As the appellants appear to be reventilating matters which have already been determined against them, I do not consider their submissions to be persuasive. The appellants have not provided evidence to support many of their contentions; thus, many contentions remain unsubstantiated. It is unlikely that granting Mr Kitay's security for costs application would in any way stifle the appeal. Consequently, with respect to the consideration of oppression, I conclude that this factor weighs in favour of granting Mr Kitay's application.
5. The appellants did not appear to make express submissions in relation to whether their impecuniosity arises out of conduct by the respondent against whom relief is sought.
6. In his submissions Mr Kitay acknowledges that the appellants' bankruptcy arose as a result of his actions and those of CAT in obtaining the Kitay judgment. Mr Kitay directed the Court to [107] - [126] of the Kitay judgment, in which the appellants established that they previously had, and continue to have, access to the assets in the Frigger Super Fund. On that basis, Mr Kitay asserts that the appellants "simply choose not to pay certain of their debts (particularly costs orders)" and submit that it is their conduct, not his, which has resulted in the present circumstances.
7. Mr Kitay's submissions are accepted, again especially in light of the history of the matters upon which the appeal rests and the evidence which points to the appellants' repeated attempts to retread arguments which have been raised and rejected multiple times.
8. With respect to the public interest and any other discretionary matters, the appellants submit as follows:

G. Public interest and other discretionary matters

1. After 6.5 years with Trenfield purportedly acting as trustee, no evidence has been adduced by her in the many legal proceedings to which she has volunteered as a party, impugning H. & A. Frigger Pty Ltd's mortgages over 3 residential properties. It is not a significant matter in respect of security. The only significant issue is whether Kitay risks not being repaid fees he pays to his solicitor if the appeal is unsuccessful. That issue was in Kitay's hands. He has deliberately chosen not to put on evidence of his liability, notwithstanding he is an officer of the court, and was required to give full and frank disclosure.

2. There is no "non-payment" of costs. The Appellants have a right to set-off any amounts purportedly owing to Kitay, against a substantial claim for damages, in circumstances where Kitay has failed to prove personal solvency.

(Emphasis in original and footnotes omitted.)

Public interest and other discretionary matters

1. No assertion is made that there is any relevant public interest which arises.

2. In this case, the following further significant matters arise, which are relevant to the exercise of the court's discretion:

   (a) the fact that Mr and Mrs Frigger have taken steps to put their assets out of the reach of their creditors. See Frigger v Kitay [2016] WASCA 173 at [63] in which the court found: "In our view, on the evidence referred to ..., the mortgages registered in favour of H and A Frigger Pty Ltd over [certain properties] had the effect, and is open to infer were done with the intention, of putting assets out of the reach of Mr and Mrs Frigger's creditors."

   (b) the fact of non-payment of cost orders by Mr and Mrs Frigger. In this case, as appears from the John Affidavit, Mr and Mrs Frigger have failed to pay at least the following costs awards made against them:

   (i) two costs awards made by Hill J (see [26] and [27] of the John Affidavit);

   (ii) the security for costs awarded by Colvin J (see [32] of the John Affidavit);

   (iii) the security for costs ordered by McKerracher J (see [29(a)] of the John Affidavit);

   (iv) the costs awarded by Charlesworth J (see [31] of the John Affidavit);

   (v) the costs awarded by Colvin J (see [28] of the John Affidavit); and

   (vi) the judgment debt which founded the Bankruptcy Notice was a costs award.

(Emphasis in original and footnotes omitted.)

1. I am not persuaded by the appellants' unsubstantiated allegations about Mrs Trenfield and Mr Kitay. They are not supported by evidence. I do not consider these matters to be those which fall within the public interest. I accept Mr Kitay's submission that there is no relevant public interest which would arise in this case. I accept Mr Kitay's submissions at [123] which are borne out by the evidence he has placed before the Court.
2. Given my preliminary view of the appellants' prospects of success on appeal, the risk that the appellants would be unable to satisfy any costs order made against them, that there is no evidence that the making of an order for security would stifle a reasonably arguable appeal, and that there are no matters of public interest which militate against the making of an order I am satisfied that an order for security for costs should be made. As to whether the appellants' impecuniosity arises out of the actions of the second respondent, I accept that while the appellants' bankruptcy arose by reason of Mr Kitay and CAT obtaining judgment against them, the appellants have persistently chosen not to pay their debts including costs orders. This therefore provides no basis to alter my conclusion. My conclusion is further fortified by the appellants' frequent litigation, their disregard for previous costs orders and security for costs orders, and their pattern of misrepresentation before the Court. In all the circumstances it is in the interests of justice that Mr Kitay's security for costs application should be granted.

1. There remains to be decided the quantum of security for costs which should be awarded. Mr Kitay seeks a security "in the amount of $30,000 for the costs of defending this appeal". In his submissions, Mr Kitay describes this quantum as "modest" and calculated "on the assumption of a one-day hearing". Mr John's first affidavit at [31] provides, as an example, the dismissal of proceedings in WAD492/2018 and consequential orders that the appellants pay fixed sum costs of $30,000: See Frigger v Kitay (No 3) [2020] FCA 650. Mr John's first affidavit also includes at [38] an analysis of the steps he considers will be necessary to prepare for and respond to the appeal. Since Mr John's first affidavit was sworn the appeal has been set down for one day in the November Full Court and Appellate Court sitting. Accordingly, the estimate of one day may be accepted as reasonable for the purpose of quantifying the security payable.
2. In the appellants' written submissions, they submit that a security of "$30,000 is excessive for a one-day appeal conducted largely on the record" and instead contend that "a reasonable estimate is $12,000-$15,000 inclusive of counsel" apparently referring to item 19.10 of the Federal Court Scale.
3. Taking account of the matters deposed to with respect to quantum by Mr John in his first affidavit I accept Mr Kitay's submission that the appropriate quantum of security which should be granted is $30,000. This is appropriate for a one-day hearing before the Full Court of the Federal Court of Australia.
4. I conclude, therefore, that the quantum for the security for costs application should be set at $30,000.

1. Mr Kitay seeks his costs of, and incidental to, the security for costs application on an indemnity basis to be fixed on a lump sum basis.
2. He relies upon s 43 of the Act, which confers upon the Court a wide discretion with respect to costs. Mr Kitay also refers to Re Wilcox; Ex parte Venture Industries Pty Ltd (No 2) [1996] FCA 1942; (1996) 72 FCR 151 at 152 as follows:

The circumstances under which indemnity costs will be ordered have been discussed in many cases in this Court and it is well established that the starting point for any consideration of an application for indemnity costs is that in the ordinary case costs will follow the event and the Court will order the unsuccessful party to pay the costs of the successful party, on a party and party basis, a basis which will fall short of complete indemnity. Nevertheless the court has an absolute and unfettered jurisdiction in awarding costs, although that discretion must be exercised judicially. So, indemnity costs may properly be awarded where there is some special or unusual feature in the case justifying the Court exercising its discretion in that way.

1. The Court may award indemnity costs in circumstances where it "takes the view that it was unreasonable for the party against whom the order is made to have subjected the innocent party to the expenditure of costs": Hamod v New South Wales (2002) 188 ALR 659; [2002] FCA 424 at [20], Cirillo v Consolidated Press Property Ltd (No 2) [2007] FCA 179 at [4].
2. Where a party has brought an action, and if properly advised would have realised they had no prospect of success, then the action "must be presumed to have been commenced or continued for some ulterior motive, or because of some wilful disregard of the known facts or the clearly established law": Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397; [1988] FCA 364 at 401; Flotilla Nominees Pty Ltd v Western Australian Land Authority (2003) 28 WAR 95; [2003] WASC 122 (S) at [9].
3. These principles apply to costs of an application for security for costs: See Hurst v Prasad (No 3) [2023] FCA 1174 at [123] - [134].
4. Mr Kitay submits that the following circumstances warrant the Court exercising its broad discretion to award indemnity costs in his favour:
   • The appellants have been subject to many orders for security for costs against them, despite unsuccessfully opposing such orders;
   • The appellants' continual opposition to such orders "in the face of such a suite of decisions requiring them to pay security for costs is unreasonable and cannot be justified";
   • Mr Kitay foreshadowed his intention to seek indemnity costs with respect to the security for costs application and that payment of those costs be a condition of the appellants' pursuit of the appeal on 6 January 2025, which constituted a "due and timely warning" of his intention to do so: See Huntsman Chemical Co Australia Ltd v International Pools Australia Pty Ltd (1995) 36 NSWLR 242 at 249;
   • There exist "no assets unencumbered or outside of the superannuation fund that could be available for the payment" of Mr Kitay's costs without relying upon the discretion of the appellants;
   • The appellants have "consistently declined to exercise" their discretion in the past to meet their costs orders and security for costs orders with assets contained within their superannuation fund; and
   • An order for security for costs in these proceedings was made below and it ought to have been "obvious that a form of security should have been offered when it was sought prior to the bringing of this application" and that, in combination with the "lack of merit" with respect to the appeal, the requirement for security for costs should have been conceded prior to the commencement of the security for costs application.
5. The appellants merely submit that there is "no basis for indemnity costs" and that they have "reasonable grounds to resist". Quite what those "reasonable grounds" are has not been explained by the appellants. Their position is that costs should be reserved or paid on a party/party basis in the cause.
6. Mr Kitay's submissions are accepted. As well as the unreasonable conduct referred to above, the appellants have engaged in a pattern of failure to pay costs orders and security for costs orders, even where assets from their superannuation fund are available to them to do so, and have strenuously opposed their obligations with respect to such orders. In light of such conduct, and the apparent lack of merit with respect to the appeal, I will order costs of the security for costs application be paid on an indemnity basis to be fixed on a lump sum basis.

I certify that the preceding one hundred and forty-four (144) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Meagher.