Federal Court of Australia
Frigger v Trenfield (No 2) [2021] FCA 1255
ORDERS
ANGELA CECILIA THERESA FRIGGER First Applicant HARTMUT HUBERT JOSEF FRIGGER Second Applicant | ||
AND: | First Respondent MERVYN JOHN KITAY Second Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. Without the leave of a court had and obtained, no person than a party to the proceeding or a legal representative of a party or an officer of a court may inspect or copy or publish in any way the Affidavit of Angela Frigger sworn on 30 June 2021, and filed in the Court on 1 July 2021.
2. The Applicants’ Interim Application filed 26 July 2021 be adjourned to a date to be fixed pending the outcome of the proceeding of the Supreme Court of Western Australia (COR 131 of 2021).
3. Liberty to apply, including liberty to apply to the Court to list the case for further case management on 2 clear business days’ notice.
4. Costs reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
(REVISED FROM TRANSCRIPT)
LOGAN J:
1 The adjournment application has been appropriately made, but also appropriately responded to, both by the trustee and Mrs Frigger in the sense that the appropriateness of adjournment has been appreciated. It has not been opposed. In the circumstances, I just propose to reserve the costs.
2 The reason why I am adjourning the application is that both in respect of the summary judgment application made by Mr and Mrs Frigger, and for that matter their substantive annulment application, one issue at large is whether or not there was a need for the liquidator first to have approval under s 477(2B) of the Corporations Act 2001 (Cth) (Corporations Act) in respect of the entering into, with solicitors, of costs agreements, which would extend for more than three months. It is by no means apparent to me that that is the only issue which would be relevant, either in respect of the summary judgment application or the substantive annulment application, but it is an issue.
3 Further, it may or may not be the case, either in the context of summary judgment or the substantive annulment application, that approval of a court exercising jurisdiction under the Corporations Act is a panacea in terms of the bankruptcy notice and the validity of the bankruptcy notice, which grounded the act of bankruptcy upon which sequestration was ordered. It is neither necessary nor desirable to embark on any consideration whatsoever of that subject today, much less whether, even if the point about absence of approval at the time is good, that would have any impact whatsoever on the validity of costs orders, which created a debt or debts, which grounded the bankruptcy notice. For the present, it is enough to recognise that a court of competent jurisdiction, namely, the West Australian Supreme Court is seized with an application by the liquidator, either for a declaration that approval was not – for a declaration that approval was not necessary or, alternatively, for approval and related nunc pro tunc provision under the Corporations Act.
4 In light of that recognition, the interests of justice emphatically favour an adjournment. I note that neither Mr and Mrs Frigger, nor the trustee in bankruptcy oppose that adjournment. That lack of opposition, with respect, was an appropriate course to take in the circumstances. It is for those reasons that I have made the adjournment order.
I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Logan. |
Associate:
