Federal Court of Australia

Frigger v Bank of Queensland [2022] FCA 707

ORDERS

THE COURT ORDERS THAT:

1.    The application to vacate the dismissal of the interlocutory application lodged on 1 December 2021 be dismissed.

2.    Insofar as the same may be necessary, such oral application as was made by the applicants to impeach or question adherence by the second respondent of the terms of the undertaken given to the Court on 16 December 2021 in proceeding WAD278 of 2021 be dismissed.

3.    The costs of the second respondent of and incidental to the applications heard today, as fixed by a Registrar, form part of the second respondent’s costs of the bankruptcy.

4.    The applicants pay the first respondent’s costs of and incidental to the applicants’ applications heard today and on 8 December 2021, such costs to be fixed by a Registrar if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

LOGAN J:

1    As Colvin J recorded in Frigger v Trenfield (Application for Stay Pending Appeal) [2021] FCA 1605 (Frigger v Trenfield (Application for Stay Pending Appeal), at [4]:

On 1 December 2021, orders were made dismissing the application: Frigger v Trenfield (No 10) [2021] FCA 1500. The reasons were published following a hearing that occupied some 12 days. They are detailed and traverse a considerable amount of evidence concerning the disputed assets. In those reasons, the assets the subject of the application are referred to as the disputed assets and are described in the following terms at [2]:

(1)    two bank accounts with Bank of Queensland Limited, one of which holds more than $2.8 million (BOQ1), the other of which holds just over $50 (BOQ2);

(2)    shares held in a share portfolio (Main Portfolio) administered by the share broker, Commonwealth Securities Limited (CommSec); and

(3)    two parcels of residential land in suburbs of Perth, one in Bayswater (Bayswater Property) and the other in Como (Como Property, together the Residential Properties)."

2    These reasons for judgment must be read in conjunction with Colvin J’s judgment in Frigger v Trenfield (Application for Stay Pending Appeal) together with an earlier interlocutory judgment of mine, Frigger v Bank of Queensland [2021] FCA 1667 (Frigger v Bank of Queensland).

3    In WAD22/2021, the following orders were sought:

1.    An order restraining the respondent [that is the Bank of Queensland at that time] from transferring the funds into account number 22696479 to the application of the former bankruptcy trustee FTI-Consulting/Mrs Trenfield pending the resolution:

(a)    the resolution [sic] of WAD66/2021, and/or;

(b)    an appeal against the judgment of Jackson J from 1.12.21 in WAD141/2019.

2.    Orders: costs in the application.

[sic]

4    In WAD228/2021, this order was sought:

1.    An order restraining the respondent [at that stage CommSec] from transferring and/or transmitting and/or selling the shareholdings in share trading account 270815 pending:

a)    the resolution of WAD66/2021 and/or

b)    an appeal against the judgment of Jackson J from 1.12.2021 in WAD141/2019.

5    The, “judgment of Jackson J from 1.12.2021 in WAD141/2019” is his Honour’s judgment in Frigger v Trenfield (No 10) mentioned in the quote from the judgment of Colvin J to which I have already referred.

6    On 8 December 2021, in WAD225 and WAD228 of 2021, I joined the trustee in bankruptcy, Ms Trenfield, as a respondent party. I also, materially, dismissed the interlocutory applications to which I have referred. In so doing and as [7] of my judgment in Frigger v Bank of Queensland reveals, I made reference to a difficulty which seemed to be explanatory of an absence of both Mr and Mrs Frigger from attendance before the court on 8 December 2021, the return date of the interlocutory applications mentioned.

7    In essence today, Mr and Mrs Frigger seek that the dismissal orders be vacated on the basis that there was an adequate explanation for their absence that day and press for the restraints. Indeed, they do rather more than that in that they now seek particular orders including an order which would hold the trustee in breach of an undertaking recorded by Colvin J in his Honour’s judgment in relation to what one might term the “main portfolio of shares”.

8    A starting and perhaps end point in respect of the applications for restraints and other orders, however generously one views the applications made by Mr and Mrs Frigger, is the case to which Colvin J refers in [10] of his Honour’s judgment, namely Barngarla Determination Aboriginal Corporation RNTBC v District Council of Kimba [2019] FCA 1585, at [27] to [38]. His Honour, with respect, has there identified the general principles to be applied in considering whether to grant relief in the nature of an injunction or a stay pending an appeal. The long and the short of it, as his Honour recites at [10] of his judgment in Frigger v Trenfield (Application for Stay Pending Appeal), is “prima facie a successful party is entitled to the fruits of its success”.

9    At the moment, the funds in the Bank of Queensland are held by the Bank in an interest bearing account. There is not a whit of evidence that, pending the hearing and determination of the appeal, the trustee has any disposition whatsoever to dissipate those funds. Instead, the trustee's quite appropriate position is to await the outcome of the determination of the appeal against the orders made by Jackson J. As to those funds, there may very well be much more particular objections, as was put on behalf of the bank, in terms of whether there is any utility and was even on the 8th of December in the granting of restraints as transfers have already occurred. I prefer, however, to approach the matter on the basis of an understanding that what Mr and Mrs Frigger substantively sought by repeated reference to “restoration of the status quo” was a restoration of accounts other than to be in control of the trustee. That would be quite antithetical, in my respectful view, to the result before Jackson J.

10    The same may be said in relation to the “main portfolio of shares”. As far as I can see on the evidence, the trustee has been scrupulous to avoid breaching in any way, shape, or form, the terms of the undertaking that was given to Colvin J. All that has occurred is that the trustee, quite properly with respect, having regard to the outcome before Jackson J, has made the logical corollary assertion to interested parties that it would follow from the judgment that dividends which flowed in respect of the main portfolio formed part of the bankrupt estate, nothing more and nothing less.

11    It is also a view reasonably open, as was put on behalf of the trustee, that being generous as I have in relation to an understanding of what Mr and Mrs Frigger sought today was in effect to countenance an abuse of process having regard to the outcome before Colvin J which was to dismiss applications for injunctive relief.

12    It therefore only comes to this. I am not particularly persuaded at all that what has been put before me in evidence as to the predicament Mr and Mrs Frigger faced as at the 8th of December is a particular explanation from an absence from court. I rather thought Mr Frigger whose affidavit evidence was candid more or less acknowledged that he did have, had he cared to look, the knowledge that there was a court hearing on 8 December. For all too human reasons associated with what must have been, on any view, a very stressful time in his life, that particular fact which was there staring at him just seems to have passed him by.

13    Even, however, if I were disposed to accept that an explanation has been given, the long and the short of it is that Colvin J has already dealt with the question of whether or not there ought to be some form of restraint either in respect of moneys in Bank of Queensland accounts or the main portfolio. His Honour has dismissed that application. The trustee gave an appropriate undertaking in respect of the main portfolio. Insofar as today's proceeding could, being generous, be regarded as an application which seeks to impeach of question adherence to that undertaking, as I have indicated, there is no such breach revealed on the evidence, only a lawful assertion of a logical sequel to Jackson J’s judgment and the orders his Honour made.

14    For these reasons, therefore, the application to vacate the dismissal of the interlocutory applications filed on 1 December 2021 in WAD 225 and WAD 228 of 2021 is dismissed. Insofar as the same may be necessary, such oral application as was made by Mr and Mrs Frigger to impeach or question adherence by the trustee to the terms of the undertaking given to the court on 16 December 2021 is dismissed.

costs

15    In relation to costs, applications have been made by the trustee for an order that the costs of and incidental to the applications in WAD225 and WAD228 of 2021 form part of the costs of the administration of the bankrupt estate. Bank of Queensland has sought its costs personally and CommSec has likewise sought its costs personally although submitted that there was occasion for the awarding of such costs on an indemnity basis. As to those applications, Mr and Mrs Frigger accept that given the disposal of their applications it is appropriate that an order be made that the costs of the trustee of and incidental to the applications as fixed by a Registrar form part of the trustee’s costs in the administration of the bankrupt estate.

16    Mr and Mrs Frigger oppose the taxing of any costs orders in favour of either the Bank of Queensland or CommSec in respect of the hearing on the 8th of December. They accept, with respect appropriately, that as to the costs of and incidental to the 30th of May, costs would follow the event but not, in relation to CommSec, on an indemnity basis.

17    Whether or not to award costs at all is a matter for the exercise of a judicial discretion. I understand well the position of Mr and Mrs Frigger in relation to the costs of and incidental to 8 December 2021. Costs are not in any way punitive. They are compensatory. I say that because whilst I have voiced particular sympathy for the predicament in which Mr Frigger found himself as a sequel to his wife's temporary incarceration last year, there was as I have mentioned an answer sitting there on the face of documents notifying the hearing on 8 December. Costs were incurred by the Bank of Queensland and CommSec in attending that day. Recalling the compensatory nature of costs, my view is that the order for costs in respect of both the Bank of Queensland and CommSec should extend to the 8th of December 2021.

18    As I voiced in the course of an exchange in relation to the costs application by CommSec, I am not critical of CommSec for raising as an issue whether costs should be awarded to it on an indemnity basis. It is possible to view the steps taken, indeed, the very joinder of CommSec as an unnecessary step. But equally, I can see how it may have been appropriate to join both the trustee and CommSec. CommSec was entitled to attend and make submissions as to whether any relief ought to have been granted not just to file in effect a submitting appearance. In my view, the costs should be awarded on the usual party and party basis to CommSec rather than on an indemnity basis.

19    The orders therefore are that the applicants pay in WAD225/2021, the costs of and incidental to the application of the Bank of Queensland to be fixed by a Registrar if not agreed. I make a like order in favour of CommSec in respect of WAD228/2021.

Associate:    

Dated:    17 June 2022