KITAY -v- FRIGGER [No 2] [2024] WASC 113 (10 April 2024)

For a party to have sufficient standing to seek and obtain the grant of declaratory relief it must satisfy a number of tests which have been formulated by the courts, some in the alternative and some cumulative. I shall formulate them in summary form as follows:

The proceeding must involve the determination of a question that is not abstract or hypothetical. There must be a real question involved, and the declaratory relief must be directed to the determination of legal controversies. The answer to the question must produce some real consequences for the parties.

The applicant for declaratory relief will not have sufficient status if relief is 'claimed in relation to circumstances that [have] not occurred and might never happen' or if the Court's declaration will produce no foreseeable consequences for the parties.

The party seeking declaratory relief must have a real interest to raise it.

1. Tottle J then considered when the cause of action for declaratory relief accrued and concluded that:[138]

[T]he right to sue for a mere declaratory judgment arises when the matters identified in the passages from Ainsworth and Aussie Airlines, to which I have referred above, come into existence. Those matters are: a real question, raised by a party who has a real interest in raising it and to which there is a proper contradictor, which question is not abstract or hypothetical and is directed to the determination of a legal controversy, and the answer to which must produce some real and foreseeable consequences for the parties, provided that the relief is not claimed in circumstances that have not occurred or may never happen. In other words, a cause of action for a mere declaration arises once a justiciable controversy comes into existence and it accrues to the person who has a real interest in raising it.

1. Tottle J expressed the view that because a declaratory judgment is a discretionary remedy, where there was a substantial elapse of time before an act was challenged, this may weigh against the grant of any relief, even if the limitation period had not expired.[139]
2. In my view, as a matter of judicial comity, I should follow this decision unless I consider it is plainly wrong, which I do not.
3. In this case, the first time that any question was raised by the defendants as to whether approval had been obtained by HSF for a costs agreement was on 22 May 2016. This query was in relation to a costs agreement dated on or about 10 August 2013.[140] Applications were not filed by the defendants until approximately July 2021.
4. In my view, from 22 May 2016, Mr Kitay was aware that the defendants had raised the question of whether court approval was required pursuant to s 477(2B) of the Act for entry into costs agreements. These proceedings were commenced within six years of 22 May 2016. On this basis, it is my view that the plaintiffs' action is not statute barred.

1. In the originating process, the plaintiffs (Mr Kitay and CAT) applied for declaratory relief, as well as orders, in the alternative, pursuant to s 477(2B) and s 1322(4)(a) of the Act, and s 90-15 of the Insolvency Practice Schedule (Corporations) (sch 2 to the Act) (IPS).
2. Specifically, the plaintiffs seek declaratory relief or retrospective approval of the agreements, as well as orders, in the alternative under s 1322(4)(a) of the Act, declaring that none of the retainers or agreements are invalid by reason of any failure to obtain approval under s 477(2B) of the Act prior to entry in these retainers or agreements. The plaintiffs also seek declaratory relief that steps in the proceedings set out in Order 16 of the originating process and various orders of both the Supreme Court and Federal Court are valid, effective and enforceable, and are not a nullity.
3. The defendants raised a number of objections to the relief sought by the plaintiffs, which I address below.

Does CAT have standing to seek any relief in these proceedings?

1. The defendants contend that CAT should not have been joined as a plaintiff to the proceedings as it was not a person who can apply for an order under s 477(2B) of the Act or s 90-15 of the IPS. I accept that CAT does not have standing to seek orders under these sections. However, this is not, in my view, a complete answer to this question.
2. Where declaratory relief is sought in respect of an agreement, each of the parties to that agreement is, in my view, a necessary party to the proceedings. In circumstances where there is an issue in the proceedings as to whether CAT is a party to these agreements or retainers, I consider that CAT is a proper party to these proceedings. To the extent it is a party to any agreement, it has standing to seek declaratory relief in relation to that agreement or retainer under s 25(6) of the Supreme Court Act 1935 (WA) (Supreme Court Act).
3. On this basis, I do not accept the defendant's submission that CAT should not have been joined to these proceedings or that it does not have standing to seek any relief.

Are the defendants properly joined to the proceedings?

1. The defendants contend they were not properly joined as defendants to these proceedings as no relief is claimed against either of them.
2. Counsel for Mr Kitay denied the defendants were not properly joined and submitted that it was appropriate for Mr and Mrs Frigger to have been joined to the proceedings. Two primary reasons were advanced for this. First, the relief sought in the proceedings, particularly the declaratory relief, addresses complaints that have been raised by Mr and Mrs Frigger in multiple proceedings. Second, it was necessary for the plaintiffs to join Mr and Mrs Frigger to these proceedings so that they are bound by any orders made in the proceedings. Counsel for Mr Kitay emphasised that Mr and Mrs Frigger could have chosen not to take an active role in the proceedings, but have not done so. Instead, they have filed affidavits and submissions, and participated in the final hearing.
3. I do not accept that the defendants were not properly joined to the proceedings or that it was necessary for the plaintiffs to seek specific relief against them or either of them in the proceedings. Given the relief sought and the complaints that have been made by Mr and Mrs Frigger in various applications in a number of proceedings, it was necessary for the plaintiffs to join Mr and Mrs Frigger to the proceedings to ensure they are bound by judgment or orders of the court.[141]

Can the plaintiffs seek declaratory relief in these proceedings?

1. In their submissions filed in support of the application, the plaintiffs relied on s 25(6) of the Supreme Court Act as the source of the court's power to make the declarations sought in the originating process.[142] After the defendants' raised an objection to reliance on this section (for the reasons set out at [173]), in their submissions in reply, the plaintiffs also sought to rely on s 90-15(1) and s 90-15(3)(a) of the IPS as a basis on which the court could make these orders.[143]
2. The defendants submitted that the plaintiffs had not, in their originating process, sought to invoke the jurisdiction of the court pursuant to s 25(6) of the Supreme Court Act. They contended the plaintiffs could not do so in an originating process filed under the Corporation Rules.
3. I do not accept this submission.
4. The requirements of an originating process under the Corporations Rules are set out in r 2.2(3). The requirements are that the originating process be in accordance with Form 2; identify each section of the Act or the Australian Securities and Commission Investments Act 2001 (Cth), or each regulation of the Corporations Regulations 2001 (Cth) under which the application is made; and state the relief sought. The originating process must also identify the parties and, at some level of generality, the claims made.[144]
5. The plaintiffs have done this. In the originating process, the plaintiffs have identified the relevant sections of the Act which require consideration and on which the application depends.
6. The courts have previously recognised that, in an originating process filed under the Corporations Rules, 'a superior court of record has plenary jurisdiction to make a declaratory order concerning contravention of the Corporations Act 2001 (Cth)', where the declaration will have utility, the question is real and not hypothetical, the applicant has a real interest in raising it and there is a proper contradictor.[145]
7. I do not consider this reasoning is restricted to contraventions of the Act, but extends to questions as to whether certain provisions of the Act apply in certain circumstances. In my view, this construction is open on the words used in the Corporations Rules and gives effect to the purpose of both the Corporations Rules and the Rules of the Supreme Court 1971 (WA) (Rules) more broadly that the court should not dismiss proceedings on technical grounds where the defect complained of has not caused any material prejudice or injustice. This construction is also consistent with the overriding obligation of the court in O 1 r 4A and r 4B of the Rules that disputes be resolved as quickly, inexpensively and efficiently as possible.
8. As was noted by Sifris J in Chen v Kornucopia Pty Ltd (No 1); Madgwicks v Efektiv Pty Ltd, albeit in the context of a winding up application:[146]

Opportunistic conduct (namely, procedural omissions or defaults by plaintiffs which cause no material prejudice to defendants, but which defendants take advantage of) must not be looked at favourably by the Court, especially in light of considerations of efficient civil procedure and the timely and just resolution of real issues which arise in winding up applications. (emphasis in original) (footnotes omitted)

1. In this case, it has been clear to the defendants from the commencement of the originating process that the plaintiffs sought declaratory relief in respect of each of the agreements. To the extent that such relief is sought under s 25(6) of the Supreme Court Act, I do not consider that the failure to specify this in the originating process has caused the defendants any material prejudice or injustice. From at least the filing of the plaintiffs' submissions on 8 November 2022, more than three weeks prior to the final hearing, the plaintiffs specified the basis on which the orders were sought. The defendants addressed this matter in their submissions filed prior to the hearing.
2. In any event, it is my view that the court has power to make the declarations sought under s 90-15 of the IPS, which is specifically referred to in the originating process.
3. Section 90-15 of the IPS allows the court to make 'such orders as it thinks fit in relation to the external administration of a company', including, pursuant to s 90-15(3)(a), 'an order determining any question arising in the external administration of the company'.
4. The courts have recognised that the s 90-15 is very broad in its scope. As was stated by Gleeson J in Re Hawden Property Group Pty Ltd (in liq) (ACN 003 528 345):[147]

The power under s 90-15 to 'make such orders as it thinks fit in relation to the external administration of a company' (s 90-15(1)) including 'an order determining any question arising in the external administration of a company' (s 90-15(3)(a)), is wider and accommodates the determination of substantive rights. Of course, the Court would not do so without affording potentially affected parties an opportunity to be heard. (citations omitted)

1. This decision has been endorsed by the NSW Court of Appeal in One T Development Pty Ltd v Krejci (in his capacity as liquidator of ENA Development Pty Ltd), who (after referring to the decision of Gleeson J) held that:[148]

There is no reason to doubt that the current form of the power extends to the determination of substantive rights, although that could only occur, as Gleeson JA observed, with necessary and proper parties being given an opportunity to be heard, and (it might be added) joined.

1. In this case, it is my view that all necessary and proper parties have been joined and given an opportunity to be heard as to whether the declarations sought should be made. On this basis, even if I am wrong in my conclusion that the court can make the declarations sought under s 25(6) of the Supreme Court Act in the absence of this section being referred to in the originating process, I consider I have power to make the declarations sought under s 90-15 of the IPS.
2. For the following reasons, I am satisfied that it is appropriate to make the declarations sought in [2] and [5] of the originating process.
3. First, I am satisfied that the defendants have raised an issue in multiple proceedings, as well as two previous proceedings, as to whether the plaintiffs require approval for entry into retainers and costs agreements with their legal advisors. On this basis, I accept there is utility in making the declarations sought and resolving this issue. I do not accept that the conduct of the plaintiffs in seeking to have this common issue resolved in one proceeding is, as was contended by the defendants, an abuse of process.
4. Second, the question of whether leave was required under s 477(2B) of the Act for entry into the retainers and costs agreement the subject of these proceedings requires examination of actual retainers and costs agreements. The originating process does not concern a hypothetical situation.
5. Third, I am satisfied that the plaintiffs have a real interest in raising this issue for determination in one proceeding. This ensures the matter is determined on a final basis. It is also consistent with the obligations under O 1 r 4A and 4B of the Rules (of which there are similar provisions in other courts) and with the obligation to dispose of the court's business efficiently and to maximise the efficient use of judicial resources.
6. Fourth, at the final hearing, the defendants appeared and made submissions opposing the application. For this reason, I accept that there is a proper contradictor.
7. In respect of the declaration sought at [4A] of the originating process, I do not consider a declaration in these terms should be made. As found by Colvin J, CAT was not a party to the Second HSF Costs Agreement. In so far as CAT was an applicant in the application for these orders, this is consistent with Mr Kitay exercising his power under s 477(2)(b) of the Act to engage solicitors to appear on both his and CAT's behalf. Given these matters, it is my view that leave was not required pursuant to s 477(2B) of the Act for HSF to obtain these orders on behalf of CAT.

Should orders be made under s 1322(4)(a) of the Act?

1. In this case, the plaintiffs sought orders that entry into the various retainers and agreements were not invalid by reason of the liquidator not having first obtained approval under s 477(2B) of the Act.
2. Similar orders were sought by these parties (in respect of a different costs agreement) before Charlesworth J in Frigger v Kitay (in his capacity as liquidator of Computer Accounting and Tax Pty Ltd (ACN 009 470 491) (in liq)) [No 2]. In that case, her Honour concluded these orders were not necessary on the basis that:[149]

The retrospective approval of the agreement necessarily has the legal effect that the agreement may validly operate on the contractual relationship between HSF and CAT.

1. I agree with her Honour's conclusion. For this reason, I do not consider that orders under s 1322(4)(a) of the Act are required.

Should declarations be made that the steps taken in various proceedings are not a nullity?

1. In [16] of the originating summons, the plaintiffs seek declarations that various proceedings in the Supreme Court as well as the Federal Court, including orders made by various judges of these courts, are 'valid, effective and enforceable, and are not a nullity'.
2. The plaintiffs say these declarations should be made because of the contentions made by the defendants in the various proceedings that the proceedings and formal court orders made are a nullity.
3. While I accept this contention has been made, for the following reasons, I consider there is no proper basis on which the defendants can advance the submission that any steps taken by HSF or Lenhoff & Hotz (or their predecessor firms) in the various proceedings are unauthorised or otherwise a nullity.
4. First, Mr Kitay as liquidator of CAT is an agent of CAT. He has the express power, pursuant to s 477(2)(b) of the Act, to appoint (that is, retain) solicitors to assist in commencing proceedings or defending any proceedings on behalf of CAT. Where a legal practice has been retained by Mr Kitay as liquidator of CAT, the retainer (and any costs agreement entered into between the legal practice and Mr Kitay as liquidator) authorises the legal practice to take steps in the proceedings on behalf of both Mr Kitay and his principal, CAT.
5. Second, Mr Kitay's ability to authorise solicitors to take steps in proceedings is not dependent on whether approval (if required) has been given under s 477(2B) of the Act for entry into the relevant agreement with the solicitors. This is because, as set out above at [76], any failure to obtain approval under s 477(2B) of the Act is only relevant to the question as to whether the liquidator can seek to recover the costs of the relevant solicitors from the company. It does not affect the existence of the agreement or have any impact on third parties, including both the solicitors and defendants in these proceedings.
6. Finally, orders that have been made by this court or the Federal Court, as superior courts, are valid and enforceable unless and until the orders are set aside.[150]
7. In these circumstances, I do not consider that declarations to the effect sought by the plaintiffs are required nor am I convinced that this court has power to make any declarations in respect of the validity of orders of the Federal Court.

1. The defendants raised a number of matters in their written submissions which are not relevant for determination in these proceedings. These included the question as to litigation funding which was said to have been received from Holborn Lenhoff & Massey and Eastwood Law, and an agreement entered into by Mr Kitay prior to his formal appointment as liquidator (but after his appointment as provisional liquidator).[151]
2. These issues are not relevantly raised on the originating process. Nor was an interlocutory process filed by the defendants which require consideration of these matters. Accordingly, I decline to do so.

1. For these reasons, I consider that the plaintiffs are entitled to the following relief:

(a) It is declared that Mr Kitay was not required to seek approval of the court under s 477(2B) of the Act to enter into the costs agreement with HSF dated 8 February 2010.

(b) It is declared that Mr Kitay was not required to seek approval of the court under s 477(2B) of the Act to retain HSF to act on his and (where relevant) CAT's behalf in advising him in relation to the conduct of the liquidation of CAT, in Supreme Court Action COR 2 of 2010, in Supreme Court Action CIV 2765 of 2010, or in relation to these proceedings.

(c) It is declared that Mr Kitay was not required to seek approval of the court under s 477(2B) of the Act to retain HSF to act on his and CAT's behalf in issuing a bankruptcy notice to the defendants, in Federal Court Proceedings WAD 428 of 2016, to issue a creditors petition to the defendants, or in Federal Court Proceedings WAD 616 of 2017.

(d) To the extent that Mr Kitay was required to seek the approval of the court under s 477(2B) of the Act to enter into the costs agreement with HSF dated 23 August 2019 and to retain HSF to act on his and CAT's behalf on the application to have Mrs Frigger committed for contempt and associated orders in Supreme Court Action COR 2 of 2010, approval for this agreement (and the associated retainer) be given nunc pro tunc from 23 August 2019.

(e) To the extent that Mr Kitay was required to seek the approval of the court under s 477(2B) of the Act to enter into the costs agreement with HSF dated 9 November 2020 and to retain HSF to act on his and CAT's behalf to defend the application by the first defendant to set aside the orders of Acting Master Chapman dated 17 January 2012 and Master Sanderson dated 15 May 2014, approval for the agreement (and the associated retainer) be given nunc pro tunc.

(f) To the extent that Mr Kitay was required to seek the approval of the court under s 477(2B) of the Act to retain Lenhoff & Hotz to act on his and CAT's behalf in Federal Court Proceedings WAD 40 of 2021, approval be given nunc pro tunc from December 2020 (the date on which Lenhoff & Hotz were first instructed by Mr Kitay).

(g) Pursuant to s 477(2B) of the Act, Mr Kitay's entry into the costs agreement with Lenhoff & Hotz dated 26 July 2021 (which is MJK14 to the confidential affidavit of Mr Kitay filed 3 August 2021) and the retainer of Lenhoff & Hotz to act for Mr Kitay and CAT in Supreme Court Action CIV 2765 of 2010 be approved, effective from 26 July 2021.

1. My preliminary view is that the plaintiffs have been the successful parties in this application and are entitled to an order that the defendants pay their costs of the originating process to be taxed if not agreed. However, prior to making any orders as to costs, I will hear from the parties.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

CITATION : KITAY -v- FRIGGER [No 2] [2024] WASC 113 (S)

HEARD : 10, 19 APRIL 2024, WRITTEN SUBMISSIONS 11, 12, 19, 23, 29, 30 APRIL 2024

COMPUTER ACCOUNTING AND TAX PTY LTD (IN LIQUIDATION)

Practice and procedure - Slip rule - Whether reasons should be amended - Turns on own facts

Practice and procedure - Orders to be made following publication of reasons for decision - Whether declarations sought by plaintiffs ought be made - Whether there is evidentiary basis for orders - Turns on own facts

Practice and procedure - Costs - Appropriate costs order following final hearing of originating process - Where plaintiffs did not succeed on obtaining all orders sought - Turns on own facts

Rules of the Supreme Court 1971 (WA) O 21 r 10, O 66 r 1

Supreme Court Act 1935 (WA) s 37

Order that defendants pay the plaintiffs' costs of the originating process

Amaca Pty Ltd v Hannell [2007] WASCA 158 (S)

Australian Conservation Foundation Inc v Forestry Commission of Tasmania [1988] FCA 144; (1988) 81 ALR 166

Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529

Frigger v Lean [2012] WASCA 66

Gray v Sirtex Medical Ltd formerly known as Paragon Medical Ltd [2009] WASC 126

How v Winterton (Earl) [No 4] (1905) 91 LT 763

Inpex Operations Australia Pty Ltd v AIG Australia Ltd [No 3] [2023] WASC 332 (S)

Kitay v Frigger [No 2] [2024] WASC 113

KSG Investments Pty Ltd v Open Markets Group Ltd (No 2) [2021] VSC 359

Lee v Plummer [2023] WASCA 178

May v Thomas [2014] WASCA 176 (S)

Pedro Perara‑Cathcart v R [2017] HCA 9; (2017) 260 CLR 595

Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 4] [2015] WASCA 253

State of Victoria v Sportsbet Pty Ltd (No 2) [2012] FCAFC 174

Strzelecki Holdings Pty Ltd v Jorgensen [2019] WASCA 96; (2019) 54 WAR 388

1. On 10 April 2024, I delivered my reasons for decision on the originating process in this matter.[152] At that time, given the defendants had not had an opportunity to consider the Reasons in detail, I agreed not to make orders either as to the relief sought in the originating process or the costs of the proceedings. Instead, orders were made for the filing of submissions in respect of both matters.
2. On 13 April 2024, the defendants filed an interlocutory process seeking amendments to three paragraphs of the Reasons and the proposed declaration set out in [204(c)] of the Reasons. Subsequently, on 23 April 2024, the defendants filed an amended interlocutory process, the details of which are set out below. Each of the amendments sought by the defendants concern the costs order of Master Sanderson on the plaintiffs' application in relation to the Confidential Affidavit.
3. For the reasons that are set out below, it is my view that:

(a) the date in [29] of the Reasons should be amended from 17 June 2014 to 12 June 2014, but the defendants' amended interlocutory process filed 23 April 2024 should otherwise be dismissed;

(b) orders should be made in terms of Orders 1 to 7 of the plaintiffs' minute of proposed orders filed 10 April 2024; and

(c) the defendants should pay the plaintiffs' costs of the originating process to be taxed if not agreed.

1. The defendants applied, pursuant to O 21 r 10 of the Rules of the Supreme Court 1971 (WA) (Rules), alternatively the inherent jurisdiction of the court, to amend [29], [111], and [116] of the Reasons to:

(a) amend the second sentence of [29] in relation to both the date of the orders (from 17 June 2014 to 12 June 2014) and the summary of the costs order;

(b) delete the second sentence of [111]; and

(c) delete the reference in the first sentence of [116] to CAT having obtained the benefit of costs orders, as well as the second sentence.

1. The defendants also requested that the court reconsider its preliminary view that it was appropriate to make a declaration that Mr Kitay was not required to seek approval of the court under s 477(2B) of the Corporations Act 2001 (Cth) (Act) to retain HSF to act on his and CAT's behalf in issuing a bankruptcy notice to the defendants, in Federal Court Proceedings WAD 428 of 2016, to issue a creditors petition to the defendants, or in Federal Court Proceedings WAD 616 of 2017.
2. In support of their interlocutory application, the defendants filed an affidavit of the first defendant. The affidavit annexed a copy of the transcript of Master Sanderson's oral reasons delivered 12 June 2014 for the order for costs on the plaintiffs' application in relation to the Confidential Affidavit.
3. The transcript records that at the conclusion of his oral reasons, Master Sanderson stated that:[153]

In my view, there is no question but that in this case the Frigger interests should pay the costs, including the reserved costs of the liquidator on a full indemnity basis, save insofar as those costs have been properly incurred. That will be the costs order.

1. Subsequently, on 17 June 2014, an order (prepared by the solicitors for the applicants) was extracted by the court. This order, which is signed by Master Sanderson, provides that:[154]

Angela Cecilia Theresa Frigger (Mrs Frigger) and Hartmut Frigger (Mr Frigger) should pay the costs, including the reserved costs of the Applicants on a full indemnity basis, save insofar as those costs have been properly incurred.

1. The defendants contend that the extracted orders do not reflect the reasons of Master Sanderson as recorded in the transcript and that the Reasons should be amended under O 21 r 10 of the Rules. The plaintiffs do not accept this is the case and say that, following the delivery of the oral reasons of Master Sanderson, the order to give effect to these reasons was subject to settlement through the 'usual process' of engrossing and extraction.
2. Order 21 r 10 of the Rules provides that:

Clerical mistakes in judgments or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the Court on motion or summons without an appeal.

1. The rule is referred to as the 'slip rule'. It reflects the inherent jurisdiction of the court to correct an error that arises from a slip or accidental omission. The general principles that govern the application of the rule were summarised by the Court of Appeal in Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 4] in the following terms:[155]

The cases in this and other comparable jurisdictions where similar rules of court exist establish a number of general principles which govern the application of the slip rule. First, the slip or omission which is said to have given rise to the error must be properly characterised as inadvertent or accidental - the product of oversight rather than afterthought. Second, the 'error' said to arise from the accidental slip or omission must be such that its correction does not require the exercise of an independent discretion nor is it a matter upon which a real difference of opinion might exist. (footnotes omitted)

1. I turn then to consider the specific amendments sought by the defendants and whether any amendment should be made under O 21 r 10 of the Rules.
2. The first amendments sought were in relation to the second sentence of [29] of the Reasons which states that:

On 17 June 2014, Master Sanderson ordered that Mr and Mrs Frigger pay the costs of the applicants (namely Mr Kitay and CAT) on an indemnity basis.

1. It is clear from the extracted order of Master Sanderson that the date of 17 June 2014 is the date the order was extracted by the court as opposed to the date the order was made. I accept the reference to 17 June 2014 in [29] of the Reasons is a clerical mistake and that this date should be amended to 12 June 2014.
2. I do not, however, accept that the other amendment sought by the defendants to [29] of the Reasons, which seeks to reflect the transcript of Master Sanderson's oral reasons and not the extracted order, can or ought be made under O 21 r 10 of the Rules.
3. Reasons delivered by the court are not enforceable by any party nor can a party appeal against reasons for decision. The decision of the court is contained in the order made by the court following publication of its reasons for decision for making the order or orders. An appeal is a statutory process against orders and is directed to the correction of the orders that have been made.[156]
4. Order 43 of the Rules sets out the requirements for the drawing up of judgments and orders. Relevantly, every order of the court is required to be drawn up by, at first option, the party having the carriage of the judgment or order,[157] and marked to show by whom it was made.[158] Until an order is drawn up, passed and entered in accordance with O 43 of the Rules, it is not perfected. Once an order of the court has been perfected, there is no jurisdiction to alter the order if it does not fall within one of the limited exceptions (such as the slip rule), except on appeal.[159]
5. At a hearing before me on 19 April 2024, the defendants confirmed they were not seeking to amend the extracted order of Master Sanderson under the slip rule.[160] Their application was limited to seeking amendments to the Reasons.
6. Given this concession, it is my view that the application by the defendants, which is based on a proposition that the summary of the extracted order of Master Sanderson in the Reasons contains a clerical mistake or error, cannot be maintained.
7. The extracted or perfected order of Master Sanderson refers to the obligation of Mr and Mrs Frigger to pay the costs of the 'Applicants' (and not the Applicant). The heading of this court document records there were two applicants, namely Mr Kitay in his capacity as liquidator of CAT and CAT. On this basis, I consider that on its proper construction, the extracted or perfected order of Master Sanderson reflects an order of the court that Mr and Mrs Frigger pay the costs of both Mr Kitay in his capacity as liquidator of CAT and CAT (as recorded in the heading of the document).
8. Accordingly, it is my view that the second sentence of [29] of the Reasons accurately summarises the order of Master Sanderson as extracted or perfected.
9. For similar reasons, the defendants' objections to [111] and [116] of the Reasons cannot be maintained and must also be dismissed.
10. The objection to [111] of the Reasons is in relation to the sentence which states:

In this regard, the defendants rely on the costs orders made in each of these matters to award costs to both Mr Kitay and CAT.

1. The objection to [116] of the Reasons is both in relation to the reference to CAT having received the benefit of costs orders, as well as the sentence stating:

The costs orders made in each of these applications reflect the fact that CAT was an applicant or defendant to the particular application.

1. These paragraphs accurately reflect not only the extracted or perfected costs order of Master Sanderson but also the costs orders made by the Federal Court in WAD 428 of 2016 that 'the applicants [Mr and Mrs Frigger] pay the respondents' [Mr Kitay in his capacity as liquidator of CAT and CAT] costs'. I do not consider any amendment to these paragraphs of the Reasons is required.
2. For these reasons, I propose to amend the reference to the date of the orders of Master Sanderson in [29] of the Reasons from 17 June 2014 to 12 June 2014. Otherwise, I consider that [1] of the defendants' amended interlocutory process should be dismissed.
3. The issue raised by [2] of the defendants' amended interlocutory process concerns what declarations should be made by the court consistent with the Reasons (as amended). I have addressed this below at [35] ‑ [40].

1. On 10 April 2024, the plaintiffs provided to the court and defendants a minute of proposed orders (Minute). The plaintiffs contend the following orders should be made by the court to reflect the Reasons:
   1. It is declared that Mr Mervyn Jonathan Kitay (Mr Kitay) was not required to seek approval of the court under section 477(2B) of the Corporations Act 2001 (Cth) (Act) to enter into the costs agreement with Freehills, as the predecessor firm to Herbert Smith Freehills (HSF) dated 8 February 2010 which is MJK1 to the affidavit of Mr Kitay sworn 3 August 2021 (Kitay Open Affidavit).
   2. It is declared that Mr Kitay was not required to seek approval of the court under section 477(2B) of the Act to retain HSF to act on his behalf and (where relevant) on behalf of Computer Accounting and Tax Pty Ltd (in Liquidation) (CAT) behalf in advising him in relation to the conduct of the liquidation of CAT, in Supreme Court Action COR 2 of 2010, including seeking the Confidentiality Orders described at paragraph 16 of the Kitay Open Affidavit, in Supreme Court Action CIV 2765 of 2010, or in relation to these proceedings.
   3. It is declared that Mr Kitay was not required to seek approval of the court under section 477(2B) of the Act to retain HSF to act on his and CAT's behalf in issuing a bankruptcy notice to the defendants, in Federal Court Proceedings WAD 428 of 2016, to issue a Creditors Petition to the defendants or in Federal Court Proceedings WAD 616 of 2017.
   4. To the extent that Mr Kitay was required to seek the approval of the court under section 477(2B) of the Act to enter into the costs agreement with HSF dated 23 August 2019 which is MJK3 to the Kitay Open Affidavit and to retain HSF to act on his and CAT's behalf on the application to have Mrs Frigger committed for contempt and associated orders in Supreme Court Action COR 2 of 2010, approval for this agreement (and the associated retainer) be given nunc pro tunc effective from 23 August 2019.
   5. To the extent that Mr Kitay was required to seek the approval of the court under section 477(2B) of the Act to enter into the costs agreement with HSF dated 9 November 2020 which is MJK15 to the Second Affidavit of Mervyn Jonathan Kitay dated 27 August 2021 and to retain HSF to act on his and CAT's behalf to defend the application by the first defendant to set aside the orders of Acting Master Chapman dated 17 January 2012 and Master Sanderson dated 15 May 2014, approval for the agreement (and the associated retainer) be given nunc pro tunc.
   6. To the extent that Mr Kitay was required to seek the approval of the court under section 477(2B) of the Act to retain Lenhoff & Hotz to act on his and CAT's behalf in Federal Court Proceedings WAD 40 of 2021, approval be given nunc pro tunc from December 2020 (the date on which Lenhoff & Hotz were first instructed by Mr Kitay).
   7. Pursuant to s 477(2B) of the Act, Mr Kitay's entry into the costs agreement with Lenhoff & Hotz dated 26 July 2021 (which is MJK14 to the confidential affidavit of Mr Kitay filed 3 August 2021) and the retainer of Lenhoff & Hotz to act for Mr Kitay and CAT in Supreme Court Action CIV 2765 of 2010 be approved, effective from 26 July 2021.
2. The defendants did not object to an order being made in terms of order 6.
3. In relation to orders 1, 2, 4, 5 and 7, only minor objections were taken by the defendants to the proposed orders. The defendants object to the inclusion of references to the evidence (for example, the specific exhibits of Mr Kitay's affidavit) in the orders. In their submission, this is unnecessary where the 'evidence appears in multiple affidavits of each party'. The defendants also object to any reference in the orders to Freehills being the predecessor firm to HSF, on the basis that this was not a matter raised for determination in these proceedings.
4. The plaintiffs say these orders essentially reflect the preliminary views expressed at [204] of the Reasons, as well as their substance. In their submission, the addition of references in the orders to the specific exhibits of the cost agreements, which are the subject of the orders, will reduce or remove any need to resort to the Reasons in order to understand the orders of the court.
5. I do not accept the defendants' objections to these proposed orders and, for the following reasons, consider that orders should be made in the terms proposed by the plaintiffs in orders 1, 2, 4, 5 and 7 of the Minute.
6. First, on my examination of the affidavits, the defendants' assertion that multiple copies of the costs agreements were adduced in evidence at the final hearing is not correct. Even if this were the case, it would, in my view, strengthen and not weaken the argument that the specific costs agreement the subject of each order should be identified. Given the history of litigation between the parties, it is important that the orders specifically identify the costs agreements which are the subject of these Reasons to remove any area of unnecessary disputation.
7. Second, the reference to Freehills as the predecessor firm of HSF reflects both the declaration sought in the plaintiffs' originating process, as well as the evidence of Mr Kitay.[161] No objection was taken by the defendants at the hearing to the evidence of Mr Kitay and in my view, it is too late to do so at this stage. There is an evidentiary basis for the declaration sought and this declaration ought be made.
8. In respect of order 3, the defendants submit that an order should not be in these terms. The basis for this submission was similar to the matters raised in their interlocutory application, namely that this does not reflect the orders of Master Sanderson. In addition to the matters raised in support of their interlocutory process, the defendants drew attention to the difference between the extracted order of Master Sanderson, which refers to the 'applicants' costs' and the taxing certificate, which refers to the 'applicant's costs'. The defendants contend the error in Master Sanderson's extracted order has been corrected by the subsequent order of Registrar S Boyle.
9. I also do not accept this submission and consider, for the following reasons, that an order should be made in terms of order 3 of the Minute.
10. First, I do not accept that, except for the reference to 17 June 2014 in [29] of the Reasons, there is any factual error in the Reasons.
11. Second, while there appears to be an inconsistency between the order of Master Sanderson and the costs certificate issued by Registrar S Boyle, this inconsistency cannot be resolved by the making of orders on this application. It is sufficient for me to observe that if there is an error in the extracted order of the Master, any error cannot be corrected by a taxing certificate issued by a Registrar. Any correction would need to be the subject of an application under the slip rule (if it is a clerical mistake or error), or on appeal.
12. Third, and in any event, order 3 of the Minute does not concern this application or order. The application in relation to the Confidential Affidavit is the subject of order 2 of the Minute. Order 3 of the Minute concerns various proceedings commenced in the Federal Court. The evidence before the court in respect of these applications is that both defendants were parties to these proceedings.
13. Fourth, the primary issue to which order 3 of the Minute is directed is whether Mr Kitay was required to seek approval of the court to retain HSF to act for him and CAT in respect of each of these matters. Having found this was not required (as set out at [117] of the Reasons), this declaration reflects that conclusion.
14. On this basis, I consider that orders should be made in terms of orders 1 to 7 of the plaintiffs' minute of proposed orders dated 10 April 2024.

1. The plaintiffs sought an order that the defendants pay their costs of the originating process as amended from time to time (together with reserved costs on 25 January 2022 and 9 September 2022) to be taxed if not agreed. Counsel for the plaintiffs submitted that they were the successful party on the application and that costs should follow the event.
2. The defendants' primary position was that they should not be required to pay the plaintiffs' costs of the originating process and sought an order that the first plaintiff should pay their costs fixed in the sum of $6,000. Three reasons were advanced for this submission. First, in the originating process, the plaintiffs, had not sought costs against the defendants but had sought orders for the costs of the application to be costs in the liquidation of CAT. Second, in respect of a number of the issues raised in the proceedings, the defendants' (and not the plaintiffs') submissions were accepted by the court. Third, the plaintiffs were seeking an indulgence from the court (in seeking orders to be made nunc pro tunc) and that, in these circumstances, should not be entitled to a costs order in their favour.
3. In any event, the defendants said that any order for costs should reflect the fact that the plaintiffs were not successful on all issues raised at the hearing.

1. Under s 37 of the Supreme Court Act 1935 (WA), the court has a wide discretion to award costs. While the discretion is broad, it is not unfettered and must be exercised judicially.[162]
2. The general rule is that costs should follow the event; that is, the successful party should recover their costs from the opposing party.[163] The rationale for this general rule is that where a party has unjustifiably brought another party before the court, that party should be liable to compensate the other in costs.[164] However, if a party's conduct either before or after the commencement of the litigation resulted in costs being unnecessarily or unreasonably incurred, the court may deprive that party of costs either wholly or in part and the court may order that party to pay the costs of an unsuccessful party either wholly or in part.[165]
3. It is incumbent on an unsuccessful party to satisfy the court that there are good reasons it should not pay the successful party's costs. As was noted by the Court of Appeal in Strzelecki Holdings Pty Ltd v Jorgensen:[166]

What constitutes 'success' in proceedings is to be determined by the reality of the circumstances involved in the case. The Court may depart from the general rule that costs follow the event and modify a costs order to take into account matters such as any unreasonable conduct of a generally successful party, or to the failure of that party on one or more specific issues. The exercise of the discretion in that way is recognised by a number of rules in the [Rules of the Supreme Court], together with the practice of the Court, and authority. So, for example, if the Court is of the opinion that the conduct of a successful party - either before or after the commencement of the litigation - has resulted in costs being unnecessarily or unreasonably incurred, the Court may deprive that party of costs, either wholly or in part, and it may further order that party to pay the costs of an unsuccessful party, either wholly or in part ...

Under O 66 r 1(3) RSC, where a party, though generally successful in an action, has, by the introduction of some issue or issues on which it has failed, increased the costs, the Court may order such party to pay the costs of such issue or issues. It is well-recognised that an order that a successful party recover only a portion of its costs, where it has not been wholly successful, should not be made as a matter of course, for at least two reasons. First, it is often the case that a successful party will not succeed on every issue raised. Secondly, to attempt, in every case, an analysis of which party was successful on which issue would add uncertainty and complexity to the outcome of litigation, and add to the time and cost of costs arguments. Consequently, the power to apportion costs in this way should only be exercised where there are discrete and severable issues on which the generally successful party failed, and which added to the cost of the proceedings in a significant and readily discernible way. Furthermore, while parties should be encouraged to consider carefully what matters they put in issue, justice may not be served if, by too ready a resort to deciding questions of costs according to success on particular issues, parties are dissuaded by the risk of costs from canvassing all issues which might be material to the decision in the case.

Where the Court decides, in the exercise of its discretion, to modify the usual costs orders to reflect the limited success of the successful party, that power will be exercised broadly, and as a matter of impression, and without any attempt at mathematical precision (which is likely to prove illusory in any event). That approach reflects the fact that it may be difficult to separate the factual and evidentiary substratum of different issues, the fact that some issues are more important than others, and the fact that some issues are subsidiary to others. (footnotes omitted)

1. Where a court does not accept all of a successful party's arguments at a trial, this does not, of itself, mean that it is appropriate to deal with costs orders on an issue‑by‑issue basis.[167] The court's discretion to render an award of costs by undertaking an assessment by reference to the issues that have been won or lost at trial should only be exercised in the clearest of cases.[168] The court's discretion to reduce costs for a successful party is approached as a matter of overall impression, without requiring any higher degree of mathematical precision.[169]
2. In assessing the success or failure of the parties on the issues in the proceedings, it is generally accepted that greater latitude is given to a successful defendant than a successful plaintiff. The rationale for this approach was explained by Burchett J in Australian Conservation Foundation Inc v Forestry Commission of Tasmania in the following terms:[170]

A party against whom an unsustainable claim is prosecuted is not to be forced, at his peril in respect of costs, to abandon every defence he is not sure of maintaining, and oppose to his adversary only the barrier of one hopeful argument: he is entitled to raise his earthworks at every reasonable point along the path of assault. At the same time, if he multiplies issues unreasonably, he may suffer in costs. Ultimately, the question is one of discretion and judgment.

1. The central and overriding principle is that of doing substantial justice to the parties. In approaching this task, the court is not required to tabulate the 'wins and losses', nor undertake an exercise of assessing the time spent or length of submissions, or reasons devoted to each of the issues.[171]
2. Order 66 r 1(4) of the Rules deals with the costs of proceedings where a defendant has been joined to proceedings so that they are bound by the judgment or order. Specifically, it provides that:

Where a plaintiff obtains a judgment or order against a defendant who has been joined in order that all parties interested in the lis shall be bound by the judgment or order, no order for costs shall be made against such defendant if he is not in default, or if he does not contest the plaintiff's claim, and has not made any claim or asserted any right in the lis, but in such case the Court may grant that defendant such sum for costs as will compensate him for expenses necessarily incurred by him and may in doing so exercise the powers hereinafter conferred on it to order costs out of any property or fund with or without a right of recourse against any other party to the action or matter.

1. In Civil Procedure: Western Australia, the commentators at [66.1.12] express the view that this order takes away the discretion of the court to award costs against a defendant joined in the circumstances set out in that subrule so as to ensure that all interested parties may be bound.[172]
2. Where costs have been reserved by the court, the position at general law is that the court had expressed no opinion as to how the costs should be borne at all.[173]

1. The first issue raised by the parties is who (if anyone) should be entitled to the costs of the originating process.
2. In the originating process filed 3 August 2021 (and in each of the amendments made to the originating process after that date), the costs order sought by the plaintiffs was:

The costs of the application be costs in the liquidation of CAT or otherwise be provided for.

1. This order reflects the usual costs order that is made on an application under s 477(2B) of the Act for approval for the entry into an agreement. This reflects the general position that these applications are generally made ex parte without any other party being heard as to whether orders should be made. In these circumstances, given the application is brought by the liquidator as a requirement of the Act, it is appropriate that an order be made that the costs form part of the costs in the liquidation of the relevant company.
2. In this case, the application was not heard ex parte as the defendants filed evidence and written submissions and made oral submissions at the hearing. On this basis, I do not consider the fact that orders for costs were not sought against the defendants in the originating process prevents the plaintiffs from now seeking this order.
3. While I accept the defendants were joined to the proceedings so that they were bound by the orders of the court (as set out at [169] ‑ [171] of the Reasons), this, of itself, does not mean that the plaintiffs are unable to obtain an order for costs against them. This is because, in my view, O 66 r 1(4) of the Rules does not apply to the defendants. On the text of this subrule, O 66 r 1(4) of the Rules only applies where a defendant who is joined so as to be bound to the outcome or orders does not contest the claim made by the plaintiffs. The purpose of this sub‑rule is to ensure that a defendant who does not participate in proceedings and effectively abides the outcome of the court's decision is not at risk for costs and is compensated for any costs they have incurred as a consequence of the plaintiff's desire to bind them to the outcome. In this case, as set out at [57], the defendants participated in the hearing and opposed the orders sought by the plaintiffs. Accordingly, it is my view that the defendants cannot rely on O 66 r 1(4) of the Rules, as they have both contested the plaintiffs' claim and asserted rights and claims in the matter.
4. In this matter, essentially two issues were raised for consideration: first, the circumstances in which a liquidator is required to seek approval under s 477(2B) of the Act to enter into an agreement (whether that agreement is a retainer or a costs agreement) and second, if required, whether approval ought be given nunc pro tunc. Because of matters raised by the defendants, it was also necessary for the plaintiffs (and the court) to address whether there was a distinction between a costs agreement and a retainer, and whether the claims of the plaintiffs were statute barred.
5. I accept that in respect of each costs agreement, a number of alternative orders were sought. However, the plaintiffs were ultimately successful in obtaining orders in respect of each of the costs agreements the subject of this application. None of the other issues raised by the defendants were resolved in their favour. On this basis, it is my view that the plaintiffs were the successful party on the application and, as such, are entitled to their costs of the application.
6. I do not accept that costs should be apportioned to reflect the different orders that have been made in respect of each of the costs agreements the subject of these proceedings. In my view, the consideration of these costs agreements were a consequence of the issues raised for determination in the application. In this respect, it is important to note that orders were made to approve entry into the third and fourth HSF Costs Agreement, without expressing a concluded view as to whether approval was required under s 477(2B) of the Act. The orders sought by the plaintiffs, which they did not obtain, did not involve discrete and severable issues that added to the costs of the application in a discernible way.
7. The plaintiffs also sought orders that the defendants pay the costs which were reserved on 25 January 2022 and 9 September 2022.
8. Both of these cost orders concerned the defendants' amended interlocutory process dated 17 December 2021. By this application, the defendants sought leave to re‑open the application for summary judgment to strike out certain paragraphs of the originating process in relation to the Second HSF Costs Agreement. The defendants were partially successful on this application, with orders being made on 9 September 2022 to strike out portions of these paragraphs. At the time, I reserved the costs of this application as I considered these costs may be impacted by the ultimate determination of the originating process.[174]
9. For two primary reasons, I consider that no order should be made in respect of these reserved costs. This, in effect, means that there will be no order as to the costs of this application.
10. First, ultimately, there was little overlap between the issues raised on the amended interlocutory process and those raised at the final hearing.
11. Second, this costs order reflects the outcome of the interlocutory application, namely that both parties had some success in relation to the application.

1. For these reasons, the orders of the court will be:

(a) the date in [29] of the Reasons will be amended from 17 June 2014 to 12 June 2014;

(b) the defendants' interlocutory process dated 13 April 2024 (as amended on 23 April 2024) should otherwise be dismissed;

(c) orders will be made in terms of orders 1 to 7 of the plaintiffs' minute of proposed orders dated 10 April 2024; and

(d) the defendants pay the plaintiffs' costs of the originating process (as amended) to be taxed if not agreed, including the costs of the interlocutory process dated 13 April 2024.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Defendants' submissions filed 22 November 2022 [33].

[3] Plaintiff's submissions filed 8 November 2022 [132] - [133]; ts 213.

[6] This is consistent with the position in respect of legal professional privilege as summarised by Wheeler J in Temwood Holdings Pty Ltd v Western Australian Planning Commission [2023] WASCA 112 [20].

[8] Computer Accounting & Tax Pty Ltd v Professional Services of Australia Pty Ltd [2008] WASC 133.

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

[10] Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 2] [2009] WASCA 183 (S) [13].

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

[12] Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 2] [2009] WASCA 183 (S) [21].

[13] Professional Services of Australia Pty Ltd & Anor (P47/2009).

[14] Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 3] [2011] WASCA 80 [2].

[15] Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [2010] WASC 38 [14].

[16] Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [2010] WASC 38 [17].

[17] Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [2010] WASC 38 [95]. Mr Kitay is now a principal of Worrells Solvency and Forensic Accountants (see Affidavit of Mervyn Jonathan Kitay filed 3 August 2021 [3]).

[18] In these reasons, I refer to both Freehills and Herbert Smith Freehills as HSF.

[19] Professional Services of Australia Pty Ltd (Administrator Appointed) v Computer Accounting and Tax Pty Ltd [No 3] [2010] WASC 93.

[20] Affidavit of Mervyn Jonathan Kitay filed 3 August 2021 [15].

[21] Affidavit of Mervyn Jonathan Kitay filed 3 August 2021 [16], [26].

[22] Affidavit of Mervyn Jonathan Kitay filed 11 October 2022, 'MJK22'.

[23] Affidavit of Mervyn Jonathan Kitay filed 11 October 2022 [5].

[24] Orders of Acting Master Chapman dated 17 January 2012.

[25] Affidavit of Mervyn Jonathan Kitay filed 11 October 2022, 'MJK23'.

[26] Affidavit of Mervyn Jonathan Kitay filed 11 October 2022 [9].

[27] Orders of Master Sanderson dated 15 May 2014.

[28] Affidavit of Mervyn Jonathan Kitay filed 27 August 2021, 'MJK17'.

[29] Affidavit of Mervyn Jonathan Kitay filed 3 August 2021 [37]; Affidavit of Mervyn Jonathan Kitay filed 11 October 2022, 'MJK25'.

[30] Affidavit of Mervyn Jonathan Kitay filed 11 October 2022 [14].

[31] Affidavit of Mervyn Jonathan Kitay filed 11 October 2022, 'MJK27'.

[32] Frigger v Kitay [2017] FCA 1278.

[33] Affidavit of Mervyn Jonathan Kitay filed 11 October 2022, 'MJK28'.

[34] Affidavit of Mervyn Jonathan Kitay filed 11 October 2022 [21] - [22].

[35] Kitay (in his capacity as liquidator of Computer Accounting & Tax Pty Ltd (in liq) v Frigger [No 2] [2018] FCA 1032.

[36] Affidavit of Mervyn Jonathan Kitay filed 3 August 2021 [12].

[37] Affidavit of Mervyn Jonathan Kitay filed 11 October 2022, 'MJK24'.

[38] Affidavit of Mervyn Jonathan Kitay filed 11 October 2022, 'MJK24', Notice and particulars of contempt [9] - [12].

[39] Affidavit of Mervyn Jonathan Kitay filed 11 October 2022 [12].

[40] Affidavit of Mervyn Jonathan Kitay filed 11 October 2022 [23] - [25], 'MJK29'.

[41] Affidavit of Mervyn Jonathan Kitay filed 3 August 2021 [53] - [55], 'MJK12'.

[42] Affidavit of Mervyn Jonathan Kitay filed 3 August 2021 [56] - [58]; Confidential affidavit of Mervyn Jonathan Kitay filed 3 August 2021, 'MJK14'.

[43] Affidavit of Mervyn Jonathan Kitay filed 3 August 2021 [58] - [60].

[44] Affidavit of Mervyn Jonathan Kitay filed 3 August 2021 [9] - [23], 'MJK4', MJK6', 'MJK7'; Affidavit of Mervyn Jonathan Kitay filed 27 August 2021 [12] - [19], 'MJK16'.

[45] Affidavit of Mervyn Jonathan Kitay filed 3 August 2021 [9].

[46] Affidavit of Mervyn Jonathan Kitay filed 3 August 2021 [10].

[48] Affidavit of Mervyn Jonathan Kitay filed 3 August 2021, 'MJK1'.

[49] Affidavit of Mervyn Jonathan Kitay filed 3 August 2021, 'MJK1' p 21.

[50] Affidavit of Mervyn Jonathan Kitay filed 3 August 2021, 'MJK1' cl 9.

[51] Affidavit of Mervyn Jonathan Kitay filed 3 August 2021 [25(a) - (f)].

[52] Affidavit of Mervyn Jonathan Kitay filed 3 August 2021 [27].

[53] Affidavit of Mervyn Jonathan Kitay filed 3 August 2021 [28].

[54] Affidavit of Mervyn Jonathan Kitay filed 3 August 2021 [30].

[55] Affidavit of Mervyn Jonathan Kitay filed 3 August 2021, 'MJK2'.

[56] Affidavit of Mervyn Jonathan Kitay filed 3 August 2021, 'MJK2' p 29 - 30.

[57] Affidavit of Mervyn Jonathan Kitay filed 3 August 2021, 'MJK2' p 27.

[58] Affidavit of Mervyn Jonathan Kitay filed 3 August 2021 [33].

[59] Affidavit of Mervyn Jonathan Kitay filed 3 August 2021, 'MJK8'; Re Computer Accounting and Tax Pty Ltd; ex parte Mervyn Jonathan Kitay in his capacity as liquidator of Computer Accounting and Tax Pty Ltd (in liq) [No 4] [2014] WASC 169.

[60] Affidavit of Mervyn Jonathan Kitay filed 3 August 2021 [38 (a) - (e)].

[61] Affidavit of Mervyn Jonathan Kitay filed 3 August 2021 [35].

[62] Affidavit of Mervyn Jonathan Kitay filed 3 August 2021, 'MJK3'.

[63] Affidavit of Mervyn Jonathan Kitay filed 3 August 2021, 'MJK3' p 39.

[64] Affidavit of Mervyn Jonathan Kitay filed 3 August 2021, 'MJK3' p 41.

[65] Affidavit of Mervyn Jonathan Kitay filed 3 August 2021 [43].

[66] Affidavit of Mervyn Jonathan Kitay filed 27 August 2021, 'MJK15'.

[67] Affidavit of Mervyn Jonathan Kitay filed 27 August 2021, 'MJK15' p 12.

[68] Affidavit of Mervyn Jonathan Kitay filed 27 August 2021 [20].

[69] Affidavit of Mervyn Jonathan Kitay filed 3 August 2021 [45].

[70] Affidavit of Mervyn Jonathan Kitay filed 3 August 2021 [47].

[71] Affidavit of Mervyn Jonathan Kitay filed 3 August 2021 [48].

[72] Affidavit of Mervyn Jonathan Kitay filed 3 August 2021 [56].

[73] Further amended originating process dated 5 October 2022 [14].

[74] Defendants' submissions filed 22 November 2022 [29] - [30].

[75] See for example defendants' submissions filed 22 November 22 [35].

[76] Wentworth v Rogers [2002] NSWSC 709 [17] - [18].

[77] Hancock Prospecting Pty Ltd v Hancock [No 3] [2016] WASC 423 [21]. See also Halliday v High Performance Personnel Pty Ltd (in liq) (formerly SACS Group Pty Ltd) [1993] HCA 13; (1983) 113 ALR 637, 639 and McKenzie v Director-General of Conservation and Natural Resources [2001] VSC 220 [54].

[78] Legal Profession Act 2008 (WA) s 282(2); Legal Profession Uniform Law (WA) s 180(2).

[79] Beach Petroleum NL v Abbott Tout Russell Kennedy [1999] NSWCA 408; (1999) 48 NSWLR 1 [208].

[80] Legal Profession Act 2008 (WA) s 268.

[81] Corporations Act 2001 (Cth) s 477(2)(a) and (b).

[82] Re GA Listing and Maintenance Pty Ltd (1994) 15 ACSR 308, 311.

[83] Re Naidenov, AJW Interiors and Constructions Pty Ltd (in liq) [2024] FCA 25 [118].

[84] Re Octaviar Ltd (in liq) [2015] NSWSC 1621; (2015) 110 ACSR 72 [22].

[86] Larussa v Carr (as Administratrix of the Estate of Larussa) [2024] WASCA 16 [59] - [60].

[89] McCabe, Re Sargon Capital Pty Ltd (Receivers and Managers Appointed) (in liq) [2023] FCA 345 [43]; Lewis (liquidator), Re Concrete Supply Pty Ltd (in liq) [2020] FCA 841; (2020) 145 ACSR 459 [17] - [20]; Frigger v Kitay (in his capacity as liquidator of Computer Accounting and Tax Pty Ltd (ACN 009 470 491) (in liq)) [No 2] [2020] FCA 497; (2020) 143 ACSR 655 [47] - [50]; Kitay (in his capacity as liquidator of Computer Accounting & Tax Pty Ltd (in liq) v Frigger [No 2] [177] - [183].

[90] Nezovic v Minister for Immigration and Multicultural and Indigenous Affairs [No 2] [2003] FCA 1263 (2003) 133 FCR 190 [52] (French J).

[91] Kitay (in his capacity as liquidator of Computer Accounting & Tax Pty Ltd (in liq) v Frigger [No 2] [178] - [180].

[92] Frigger v Kitay (in his capacity as liquidator of Computer Accounting and Tax Pty Ltd (ACN 009 470 491) (in liq)) [No 2] [50].

[93] Lewis (liquidator), Re Concrete Supply Pty Ltd (in liq) [20].

[94] Lewis (liquidator), Re Concrete Supply Pty Ltd (in liq) [9] - [11].

[95] Re Mudgee Dolomite & Lime Pty Ltd (in liq) (No 4) [2021] NSWSC 393 [51].

[96] Re Mudgee Dolomite & Lime Pty Ltd (in liq) (No 4) [49].

[97] Re Ralan Property Services Pty Ltd (Receivers and Managers Appointed) (in liq) [2023] FCA 738 [37].

[98] Re Naidenov, AJW Interiors and Constructions Pty Ltd (in liq) [93].

[99] The Bell Group Ltd (in liq) v Westpac Banking Corporation [No 10] [2009] WASC 107.

[100] Kitay as liquidator of ACN 009 009 072 Pty Ltd v Chaucer Syndicates Ltd (CRN 184915) as managing agents for Chaucer Syndicate 1084 [2021] WASC 450.

[101] Defendants' submissions filed 22 November 2022 [37] - [38].

[102] Kitay (in his capacity as liquidator of Computer Accounting & Tax Pty Ltd (in liq) v Frigger [No 2] [178].

[103] Affidavit of Angela Frigger filed 8 September 2021, 'AF8' p 79.

[104] Affidavit of Mervyn Jonathan Kitay filed 3 August 2021, 'MJK1' p 21 - 22 (cls 1, 4).

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

[106] Orders of Acting Master Chapman of 17 January 2012.

[107] Further amended originating process filed 5 October 2022 [4A].

[108] Affidavit of Mervyn Jonathan Kitay filed 3 August 2021 [31] - [33].

[109] Affidavit of Mervyn Jonathan Kitay filed 3 August 2021 [35].

[110] Affidavit of Mervyn Jonathan Kitay filed 3 August 2021 [36].

[111] Affidavit of Mervyn Jonathan Kitay filed 3 August 2021 [38].

[112] Affidavit of Angela Frigger filed 8 September 2021, 'AF33'.

[113] Re Computer Accounting and Tax Pty Ltd; ex parte Mervyn Jonathan Kitay in his capacity as liquidator of Computer Accounting and Tax Pty Ltd (in liq) [No 4] [2014] WASC 169.

[114] Affidavit of Mervyn Jonathan Kitay filed 11 October 2022, 'MJK27'.

[115] Frigger v Kitay [2017] FCA 1278.

[116] Affidavit of Mervyn Jonathan Kitay filed 11 October 2022, 'MJK28'.

[117] Kitay (in his capacity as liquidator of Computer Accounting & Tax Pty Ltd (in liq) v Frigger [No 2].

[118] Equuscorp Pty Ltd v Glengallen Investments Pty Ltd [2004] HCA 35, (2004) 218 CLR 471 [34].

[119] Affidavit of Mervyn Jonathan Kitay filed 11 October 2022, 'MJK29'.

[120] Stevenson v Zafra Pty Ltd [2021] WASCA 181 [288].

[121] Affidavit of Angela Frigger filed 8 September 2021, 'AF28'.

[123] Confidential affidavit of Mervyn Jonathan Kitay filed 3 August 2021, 'MJK14' (cl 3).

[125] Re Spedley Securities Ltd (in liq) (1992) 9 ACSR 83, 85 (Giles J); cited with approval in numerous authorities including recently in Re McDermott and Potts [2019] VSCA 23 [72].

[126] Deputy Commissioner of Taxation v ACN 154 520 199 Pty Ltd (in liq) [No 2] [2017] FCA 755 [22].

[127] Re 7 Steel Distribution Pty Ltd (in liq) (Receivers and Managers Appointed) [2013] NSWSC 669 [17].

[128] Pascoe; Re Matrix Group Ltd (in liq) [2011] FCA 1117 [14].

[129] Re Newtronics Pty Ltd [2007] FCA 1375 [26(4)].

[130] Pascoe; Re Matrix Group Ltd (in liq) [7].

[131] Deputy Commissioner of Taxation v ACN 154 520 199 Pty Ltd (in liq) [No 2] [27].

[132] Re Naidenov, AJW Interiors and Constructions Pty Ltd (in liq) [118].

[133] Hastie Group (in liq) v Multiplex (No 3) [2022] FCA 1280, (2022) 410 ALR 531 [108].

[134] Wyloo Metals Pty Ltd v Quarry Park Pty Ltd [2021] WASC 356.

[135] Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564.

[136] Aussie Airlines Pty Ltd v Australian Airlines Ltd [1996] FCA 813; (1996) 68 FCR 406.

[137] Aussie Airlines Pty Ltd v Australian Airlines 414.

[138] Wyloo Metals Pty Ltd v Quarry Park Pty Ltd [147].

[139] Wyloo Metals Pty Ltd v Quarry Park Pty Ltd [148].

[140] Affidavit of Angela Frigger dated 25 October 2022, 'AF1'.

[141] Templeton (Registrar of Titles (Vic)) v Leviathan Pty Ltd [1921] VicLawRp 113; [1922] VLR 90; (1921) 30 CLR 34, 70.

[142] Plaintiffs' submissions filed 8 November 2022 [114].

[143] Plaintiffs' submissions in reply filed 28 November 2022 [6], [13] - [15].

[144] Sydney Recycling Park Pty Ltd v Cardinal Group Pty Ltd (in liq) [2016] NSWCA 329 [76] (Bathurst CJ and Payne JA).

[145] Australian Securities and Investments Commission v Marco (No 6) [2020] FCA 1781 [106], [120].

[146] Chen v Kornucopia Pty Ltd (No 1); Madgwicks v Efektiv Pty Ltd [2019] VSC 756; (2019) 59 VR 305 [139].

[147] Re Hawden Property Group Pty Ltd (in liq) (ACN 003 528 345) [2018] NSWSC 481; (2018) 125 ACSR 355 [8].

[148] One T Development Pty Ltd v Krejci (in his capacity as liquidator of ENA Development Pty Ltd) [2023] NSWCA 120 [35].

[149] Frigger v Kitay (in his capacity as liquidator of Computer Accounting and Tax Pty Ltd (ACN 009 470 491) (in liq)) [No 2] [68] - [69].

[150] Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571, 590, 598 - 599.

[151] Defendants' submissions filed 22 November 2022 [44].

[152] Kitay v Frigger [No 2] [2024] WASC 113 (Reasons).

[153] Affidavit of Angela Frigger filed 13 April 2024, 'AF1' pages 3 - 4.

[154] Second affidavit of Mervyn Johnathan Kitay filed 27 August 2021, 'MJK17'.

[155] Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 4] [2015] WASCA 253 [28].

[156] Lee v Plummer [2023] WASCA 178 [42]; Pedro Perara‑Cathcart v R [2017] HCA 9; (2017) 260 CLR 595 [142].

[157] Rules of the Supreme Court 1971 (WA) O 43 r 1(2).

[158] Rules of the Supreme Court 1971 (WA) O 43 r 3(1).

[159] Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529, 530 (Barwick CJ), 539 (Gibbs J).

[161] Affidavit of Mervyn Jonathan Kitay filed 3 August 2021 [7(a)].

[162] Frigger v Lean [2012] WASCA 66 [53].

[163] Rules of the Supreme Court 1971 (WA) O 66 r 1(1).

[164] Gray v Sirtex Medical Ltd formerly known as Paragon Medical Ltd [2009] WASC 126 [62].

[165] Rules of the Supreme Court 1971 (WA) O 66 r 1(2).

[166] Strzelecki Holdings Pty Ltd v Jorgensen [2019] WASCA 96; (2019) 54 WAR 388 [50] - [52].

[167] State of Victoria v Sportsbet Pty Ltd (No 2) [2012] FCAFC 174 [8] (Emmett, Kenny & Middleton JJ).

[168] KSG Investments Pty Ltd v Open Markets Group Ltd (No 2) [2021] VSC 359 [8] (Nichols J).

[169] Amaca Pty Ltd v Hannell [2007] WASCA 158 (S) [6]; May v Thomas [2014] WASCA 176 (S) [5].

[170] Australian Conservation Foundation Inc v Forestry Commission of Tasmania [1988] FCA 144; (1988) 81 ALR 166, 169.

[171] Inpex Operations Australia Pty Ltd v AIG Australia Ltd [No 3] [2023] WASC 332 (S) [21].

[172] LexisNexis, Civil Procedure Western Australia, vol 1 (196-08-22).

[173] How v Winterton (Earl) [No 4] (1905) 91 LT 763, 765.

[174] ts 147 - 148 (9 September 2022).