Federal Court of Australia

Frigger v Trenfield (No 6) [2022] FCA 1233

ORDERS

THE COURT ORDERS THAT:

1.    The applicants’ interlocutory application dated 6 September 2022 is dismissed.

2.    The costs of the application are reserved.

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

REASONS FOR JUDGMENT

FEUTRILL J:

Introduction

1    The applicants (Mr and Mrs Frigger) made an interlocutory application dated 6 September 2022 for an order that the matter be re-allocated to another judge and listed for an expedited hearing. At the hearing of the application, Mr and Mrs Frigger clarified that the order sought was for an expedited hearing of the originating application and that it be heard by another judge if the docket judge to whom the matters is currently allocated is not available to hear the matter on an expedited basis.

2    For the reasons which follow, the application for an expedited hearing is dismissed. The costs of the application will be reserved.

Background

3    To place the present application into context, it is necessary to briefly describe the background and the procedural history of these proceedings.

4    On 11 July 2018, Colvin J made a sequestration order against the estates of each of Mr and Mrs Frigger upon petition for sequestration orders by the second respondent in this proceeding (Mr Kitay) and Computer Accounting and Tax Pty Ltd (in liq) (CAT): Kitay, in the matter of Frigger (No 2) [2018] FCA 1032 (Frigger Sequestration No 2). Mr Kitay made the petitions in his capacity as liquidator of CAT.

5    The petition were founded on a debt in an amount of $61,000.42 assessed upon a taxation of a bill of costs by a Registrar of the Supreme Court of Western Australia. That taxation took place pursuant to an order for indemnity costs made by a Master of that court. Mr and Mrs Frigger opposed the making of sequestration orders on a number of grounds all of which were rejected by Colvin J.

6    The order for indemnity costs was made in respect of an interlocutory application that Mr Kitay, as liquidator of CAT, had made in proceedings in the Supreme Court of Western Australia concerning the liquidation of CAT. The application was made against Mr and Mrs Frigger and the orders sought were for the delivery up of a confidential affidavit, to which Mrs Frigger had obtained access through inspection of the Supreme Court file, along with ancillary orders: Re Computer Accounting & Tax Pty Ltd (in liq); Ex parte Kitay [No 4] [2014] WASC 169. The firm, Herbert Smith Freehills, acted for Mr Kitay and CAT on that interlocutory application and on the costs assessment pursuant to the Master’s order for indemnity costs.

7    As part of the grounds upon which they opposed the application for sequestration orders, Mr and Mrs Frigger contended that, with respect to CAT, the costs agreement with HSF was unenforceable because it had not been approved pursuant to s 477(2B) of the Corporations Act 2001 (Cth). Colvin J found that: there was a valid and enforceable costs agreement between Mr Kitay, as liquidator of CAT, and HSF; Mr Kitay was liable for HSF’s fees on that agreement; and that agreement supported the existence of the debt that was the foundation for Mr Kitay’s petition for sequestration orders: Kitay Sequestration (No 2) at [128] – [138]. As to the question of whether approval was required for Mr Kitay to enter into a costs agreement with HSF, Colvin J said (at [178] – [183]):

178    It is common ground that no such approval was obtained in respect of the HSF terms of engagement concerning the conduct of the proceedings relating to the Confidential Affidavit. However, s 477(2B) only applies where a liquidator enters into an agreement on behalf of the company. It does not apply to agreements made by a liquidator personally in his capacity as liquidator. It is common for liquidators to seek legal advice as to the discharge of their responsibilities as liquidator.

179    Therefore, in the circumstances of the present case, no such approval was required because, as I have found, the agreement was between HSF and Mr Kitay. CAT was not a party to the agreement. In accordance with common practice, Mr Kitay engaged HSF in his capacity as liquidator of CAT. As Mr Kitay had been an applicant for orders based upon the Confidential Affidavit and he had prepared the affidavit in the discharge of his responsibilities as liquidator he was entitled to bring the application for orders as to the use of the Confidential Affidavit in his capacity as liquidator.

180    Accordingly, liability for the costs the subject of the indemnity costs order was incurred by Mr Kitay as liquidator, not by CAT. The application that was determined by Master Sanderson was brought by Mr Kitay. Orders were made on the application of Mr Kitay. Those orders provided for an order for indemnity costs in favour of both Mr Kitay and CAT as applicants in the substantive winding-up proceedings (being the proceedings in which the interlocutory application was made for orders concerning the Confidential Affidavit).

181    The bill of costs was presented by both Mr Kitay and CAT as the applicants. However, the only costs claimed in the bill were costs that had been incurred by Mr Kitay. The claim to the costs in the bill did not depend upon a claim that costs had been incurred by CAT. The indemnity costs order did not apply only to costs jointly incurred by Mr Kitay and CAT. It is an order in favour of each of them. No claim is advanced by the petitioning creditors that the costs that were assessed by Registrar Boyle were incurred by CAT. They rely upon the terms of engagement agreed between Mr Kitay and HSF.

182    Although the petition for sequestration orders is presented by both Mr Kitay and CAT, it is sufficient if Mr Kitay demonstrates that he is a judgment creditor in respect of the costs the subject of the assessment. For reasons I have expressed elsewhere in these reasons, he has done so.

183    Therefore, there is no merit in this ground.

8    In substance, Colvin J made findings to the following effect:

(a)    the parties to the costs agreement that was the subject of the order for indemnity costs (referred to as the Second HSF Costs Agreement) were Mr Kitay, as liquidator of CAT, and HSF;

(b)    Mr Kitay did not require approval pursuant to s 477(2B) of the Corporations Act to make the Second HSF Costs Agreement as it was made in his capacity as liquidator of CAT and not as agent for CAT; and

(c)    the Second HSF Costs Agreement covered the legal costs associated with representing Mr Kitay, as liquidator of CAT, in the interlocutory proceedings that resulted in the order for indemnity costs and assessment of those costs.

9    In August 2018, Mr and Mrs Frigger made an unsuccessful application in the Federal Circuit Court in PEG 409 of 2018 for orders annulling the sequestration orders. On 25 September 2018, Judge Vasta made orders dismissing the application for want of jurisdiction.

10    Thereafter, on 6 November 2018, Mr and Mrs Frigger made an application for an extension of time within which to appeal from the sequestration orders. On 4 December 2018, the respondents to that application made an application for security for their costs of defending that application. On 7 January 2019, Mr and Mrs Frigger made an interlocutory application seeking an order to the effect that the application for security for costs be dismissed. On 6 May 2019, McKerracher J made orders requiring the provision of security for costs and dismissing Mr and Mrs Friggers’ interlocutory application: Frigger v Kitay [2019] FCA 624.

11    On 30 May 2019, Mr and Mrs Frigger made a further interlocutory application by which they sought, amongst other things, to have the orders for security for costs set aside insofar as the orders required payment of security for the benefit of CAT. That application was later amended on 29 September 2019 to be an application to set aside the orders of 6 May 2019 altogether. That application was founded on a contention to the effect that HSF had no authority to act for CAT, including for the purposes of applying for security for costs, because Mr Kitay required approval under s 477(2B) of the Corporations Act to enter into a retainer with HSF as agent for CAT. On 1 July 2019, the respondents in those proceedings made an interlocutory application for self-executing orders dismissing the proceedings if the security ordered were not provided. On 28 August 2019, the respondents made an interlocutory application, in effect, requesting orders be made to the extent necessary to approve retrospectively a costs agreement between CAT and HSF and validating that agreement (the relevant costs agreement was not the Second HSF Costs Agreement). On 17 April 2020, Charlesworth J made orders dismissing the interlocutory applications of Mr and Mrs Frigger and, to the extent necessary, approving and validating the relevant costs agreement from 28 August 2018 and for self-executing orders dismissing the application for an extension of time if security were not provided on or before 15 May 2020: Frigger v Kitay (No 2) [2020] FCA 497.

12    Mr and Mrs Frigger have not provided the security. As a consequence, the proceedings for an application for an extension of time within which to appeal from the sequestration orders have been dismissed.

13    On 23 March 2021, Mr and Mrs Frigger filed an originating application in these proceedings. The application seeks an order annulling the sequestration orders of 11 July 2019 under s 153B of the Bankruptcy Act 1966 (Cth), alternatively an order setting aside the sequestration orders. The application also seeks orders that Mr Kitay and Mr John pay the costs, expenses and remuneration of their trustee in bankruptcy (Ms Trenfield) to be assessed and compensation for losses caused by the sequestration order. The respondents named in the originating application are Ms Trenfield, Mr Kitay and Mr John.

14    On 7 May 2021, Colvin J made orders, amongst others, requiring Mr and Mrs Frigger to file a statement of the grounds upon which the annulment of the bankruptcy is sought and a statement of the claims made against Mr John. On 12 May 2021, Mr and Mrs Frigger filed that statement of grounds.

15    On 28 May 2021, Mr John made an application, in effect, to remove him as a party to the proceedings and dismiss the claim against him. Mr John, as a solicitor and member of HSF, had acted in the proceedings that resulted in the order for indemnity costs and sequestration orders. On 31 May 2021, Colvin J made orders, amongst others, dismissing the application against Mr John: Frigger v Trenfield (Annulment Proceedings).

16    On 11 June 2021, Mr Kitay made an interlocutory application for security for his costs of defending these proceedings. On 13 July 2021, Colvin J made orders, amongst others, requiring Mr and Mrs Frigger to provide Mr Kitay with security for his costs in the sum of $25,000: Frigger v Trenfield [2021] FCA 792. Mr and Mrs Frigger provided the security so ordered.

17    On 16 June 2021, Mr and Mrs Frigger filed an amended statement of grounds of annulment. Grounds 1 – 5 and 7 are expressed as follows:

FIRST GROUND

1.    The judgment debt that founded the bankruptcy notices was a cost judgment in the interlocutory process of 23 November 2013 (the November 2013 Application) which sought to enforce the confidentiality order made in the January 2012 Application.

2.    The interlocutory process of 6 January 2012 (the January 2012 Application) was brought by Kitay pursuant to s 477 (2B) Corporations Act 2001. Orders were sought for Kitay. Orders were made for Kitay only. No orders were sought nor obtained in Computer Accounting & Tax Pty Ltd’s (CAT) name.

3.    CAT had no standing under s 477 (2B) Corporations Act 2001. CAT’s inclusion was a misjoinder and the January 2012 Application in respect of CAT was a nullity.

4.    As the confidentiality order in the January 2012 Application was for Kitay’s benefit only, only Kitay had standing to make the November 2013 Application to enforce that order. CAT had no standing in the November 2013 application and its inclusion was a misjoinder. The November 2013 Application in respect of CAT was a nullity.

5.    In the above circumstances, the consequential cost order in the November 2013 Application in favour of CAT was a nullity.

SECOND GROUND

6.    In the circumstances of the first ground, CAT’s application for a cost order in the November 2013 Application breached the indemnity principle.

THIRD GROUND

7.    David John had no retainer/cost agreement in respect of CAT in the January 2012 Application and November 2013 Application. The cost judgment in favour of CAT was a nullity on this additional ground.

FOURTH GROUND

8.    Colvin J found that CAT had no liability to pay costs pursuant to the retainer/cost agreement between Kitay and John (the Retainer/Cost Agreement).

9.    CAT’s application for a cost order breached the indemnity principle on this additional ground.

FIFTH GROUND

10.    The Retainer/Cost Agreement between Kitay and John did not include:

(a)    An application for bankruptcy notices against the applicants;

(b)    A petition for sequestration orders against the applicants;

11.    The processes were brought by John in breach of warranty of authority to act. The processes were nullities.

12.    Even if, which is denied, there was a verbal retainer for the above processes in respect of Kitay, there was no such agreement in respect of CAT, which required approval pursuant to s 477(2B) Corporations Act 2001.

…

SEVENTH GROUND

18.    On 28 May 2021 David John stated on oath in this proceeding neither he nor his firm Herbert Smith Freehills had direct retainers with Computer Accounting & Tax Pty Ltd and stated further on oath he represented CAT in the relevant proceedings on the instructions of Kitay given in the course of the Retainer/Cost Agreement.

19.    Such instructions constituted an agreement on CAT’s behalf pursuant to s 477(2B) Corporations Act 2001, being part of the scope of the Retainer/Cost Agreement, which agreement could not be entered into without court approval. On 5 June 2018 John made an oral application for such approval, which application was dismissed.

20.    In the above circumstances, the Retainer/Cost Agreement is a nullity and David John had no authority to:

(a)    file the January 2012 or the November 2013 Applications;

(b)    issue bankruptcy notices;

(c)    file creditors petition on behalf of Kitay and CAT.

21.    In the above circumstances, the bankruptcy notices are invalid.

18    On 26 July 2021, Mr and Mrs Frigger made an interlocutory application for, in substance, summary judgment. On 3 August 2021, Mr Kitay and CAT commenced proceedings in the Supreme Court of Western Australia against Mr and Mrs Frigger seeking certain declaratory and other relief (COR 131 of 2021). The orders sought included a declaration that Mr Kitay, and to the extent necessary CAT, did not require leave of the Supreme Court of Western Australia, pursuant to s 477(2B) of the Corporations Act, to enter into the Second HSF Costs Agreement and certain retainers, and alternatively for orders retrospectively approving and validating the Second HSF Costs agreement and certain retainers pursuant to ss 477(2B) and 1322(4)(a) of the Corporations Act.

19    On 18 August 2021, Mr Kitay sought and was granted an adjournment of the case management hearing listed for that day in these proceedings and of the application for summary judgment. Logan J made an order to the effect that the application of summary judgment was adjourned to a date to be fixed pending the outcome of the COR 131 of 2021. In giving reasons for his decision Logan J said as follows: Frigger v Trenfield (No 2) [2021] FCA 1255 at [2] – [4].

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.

20    On 20 October 2021, by letter to the associate of Logan J, Mr and Mrs Frigger made an interlocutory application for orders to vacate the order of 18 August 2021 by which the application for summary judgment was adjourned. On 4 November 2021, Logan J made orders dismissing the application to vacate the order for adjournment: Frigger v Trenfield (No 3) [2021] FCA 1471.

21    On 14 March 2022, Mr and Mrs Frigger filed an interlocutory application by which they sought orders, amongst others, to withdraw the summary judgment application and amend the originating application. On 14 March 2022, O’Sullivan J made orders granting leave to discontinue the summary judgment application. On 5 April 2022, Logan J made an order adjourning the application to amend to a date to be fixed. In his reason for decision Logan J said: Frigger v Trenfield (No 5) [2022] FCA 531 at [6] – [8]:

6    More substantively, on 18 August 2021, I made orders adjourning the applicant’s interim application filed on 26 July 2021 to a date to be fixed pending the outcome of proceeding COR131 of 2021 in the Supreme Court of Western Australia. Although the overlap is not complete, it is a noteworthy feature of the draft originating application that it has these features in common with the interim application filed on 26 July 2021, namely:

(i)    orders annulling the sequestration orders made on 20 July 2018: see paras 1(a) and 2 of the draft originating application, and para 4.2 of the interim application filed on 26 July 2021; and

(ii)    damages for losses allegedly caused by the second respondent; see para 3 of the draft originating application and paragraph 4.4 of the interim application filed on 26 July 2021.

7    It appears that proceeding COR131 of 2021 is yet finally to be determined in the Western Australian Supreme Court, although at least, as to some aspects, I was informed today that the relevant judge, Hill J, has reserved judgment. It was put, on behalf of the applicants by Ms Frigger, that a discrete issue might, nonetheless, be the subject of final hearing as proposed in the draft originating application. However, it is my firm view that that any such bifurcation issues would be antithetical to the interests of justice. It appears to me that the position is, in substance, no different to that which persuaded me in August last year to adjourn the interim application to a date to be fixed.

8    I therefore propose to adjourn for hearing on a date to be fixed the question as to whether or not leave should be given to the applicants to amend the originating application in terms of exhibit 1. In this regard, I note that the second respondent had, in any event, proposed to seek such an order. It was obviously desirable not to burden any of the parties, Mr and Ms Frigger included, with a separate hearing of that issue when it could be – and was – conveniently dealt with today.

22    The reserved decision of Hill J referred to in the passage above was delivered on 30 August 2021: Kitay v Frigger [2022] WASC 284. In COR 131 of 2021, amongst other things, Mr and Mrs Frigger had sought an order striking out parts of the originating application in those proceedings as an abuse of process on the grounds that the orders sought involved re-litigating issues that Colvin J had determined in Frigger Sequestration No 2. Hill J granted Mr and Mrs Frigger’s application to that extent on the ground that the originating application sought orders that dealt with the issues described in [8] above: Kitay v Frigger [2022] WASC 284 at [176] – [187].

23    Subsequently, Hill J granted the plaintiffs in COR 131 of 2021 leave to amend the originating application in a manner that excluded issues that had been determined in Frigger Sequestration No 2: Kitay v Frigger [2022] WASC 284 (S). The orders of Hill J and amended originating application in COR 131 of 2021 were in evidence before the Court. The amendments include amendments by which orders are sought for a declaration that Mr Kitay, and to the extent necessary, CAT did not require leave of the Supreme Court of Western Australia, pursuant to s 477(2B) of the Corporations Act, to retain HSF to act on behalf of the liquidator and (or) CAT to obtain certain orders in connection with the proceedings in which the orders for indemnity costs were made, alternatively for retrospective approval and validation of the retainers pursuant to ss 477(2B) and 1322(4)(a) of the Corporations Act. These proposed orders do not overlap with or rely on issues determined in Frigger Sequestration No 2 because the orders concern a retainer between CAT and HSF and not a costs agreement between those parties: Kitay v Frigger [2022] WASC 284 (S) at [15] – [17].

Application for expedition

24    On 6 September 2022, Mr and Mrs Frigger made an application for an order to list the ‘matter’ for an expedited hearing. That application was supported by affidavits of Mrs Frigger of 6 and 27 September 2022.

25    Ms Trenfield adopted a more-or-less neutral position regarding expedition. Otherwise, Ms Trenfield relied on her affidavit of 7 October 2022. In that affidavit Ms Trenfield explains the position that she has adopted in these proceedings and deposed that she would require time to prepare a report, for the assistance of the Court, if there were to be an order for an expedited hearing.

26    Mr Kitay opposed the application for an expedited hearing. He relied on an affidavit of Ms Olivia Carey de Koning, a solicitor in the employ of HSF, of 7 October 2022. That affidavit largely deposed to facts concerning COR 131 of 2021 many of which are included in the background summary above. Otherwise, the affidavit contains two facts of significance to the application for an expedited hearing. First, Hill J has made orders to the effect that there is to be a final hearing of the application in COR 131 of 2021 on 30 November 2022. Second, Mr and Mrs Frigger were discharged from bankruptcy on 26 July 2021. However, I also note that, while discharged from bankruptcy by operation of law, the relevant estates of Mr and Mrs Frigger remain vested in and under the control of Ms Trenfield as their trustee in bankruptcy for the time being under the provisions of the Bankruptcy Act.

27    In substance, Mr and Mrs Frigger submitted that the orders of Logan J of 18 August 2021 and 5 April 2022 by which, in effect, the proceedings were stayed pending the determination of COR 131 of 2021, should be varied or set aside under r 39.05(c) of the Federal Court Rules 2011 (Cth) on the ground that there has been a significant change in the circumstances that underpinned those orders. That change in circumstance is the orders of Hill J striking out and amending parts of the originating application in COR 131 of 2021. It is submitted that, as a consequence of those orders, there is no longer any overlap between the issues upon which Mr and Mrs Frigger rely in these proceedings and the issues raised in COR 131 of 2021.

28    In support of expedition, Mr and Mrs Frigger relied on Mrs Frigger’s affidavits and a written outline of submissions dated 30 September 2022. In summary, it is submitted that the Court should exercise its discretion to order an expedited hearing for the following reasons.

(a)    There is a need for despatch in dealing with matters in bankruptcy. That is particularly so where, as here, there is a contention that the bankrupts are solvent and there is an allegation that the bankruptcy is being used for debt collection.

(b)    As a consequence of the orders of Hill J in COR 131 of 2021, Mr Kitay has caused an unnecessary and unjustified adjournment and delay in the prosecution of the proceedings.

(c)    The proceedings are capable of being determined on documentary evidence and without witness examinations.

(d)    The issue of annulment or setting aside of the sequestration orders is capable of being determined separately and as a preliminary matter without the need to have a trial or hearing as to quantification and causation of damages or compensation.

(e)    Mr and Mrs Frigger have suffered and continue to suffer prejudice pending resolution of the proceedings of the following nature:

(i)    an inability, due to the stigma of the sequestration orders, to obtain credit or credit cards;

(ii)    loss of an ability to invest $7.5 million in superannuation funds in the ASX;

(iii)    six legal proceedings were stayed as a consequence of the sequestration orders that may be able to be revived;

(iv)    three claims in the Federal Court have been stayed pending resolution of these proceedings;

(v)    ongoing costs associated with the bankruptcy administration; and

(vi)    ongoing stress, embarrassment and loss of credit.

Applicable principles

29    In effect, the orders sought on the application for an expedited hearing would involve a reversal of the orders of Logan J made on 18 August 2021 and 5 April 2022. Although the Court has power under r 39.05(c) of the Rules to vary or set aside an interlocutory order, the principle of finality remains important. Therefore, the discretion to set aside interlocutory orders after entry should only be exercised in ‘exceptional circumstances’. Further, the Court should exercise caution in determining if exceptional circumstances exist: Professional Administration Service Centres Pty Ltd v Commissioner of Taxation [2012] FCAFC 180; (2012) 295 ALR 52 at [53]; Keynes v Rural Directions Pty Ltd (No 4) [2011] FCA 304 at [30]; Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543 at 549-552.

30    As to expedition, in accordance with s 37M of the Federal Court of Australia Act 1976 (Cth), the overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. Amongst other things, the overarching purpose includes the just determination of all proceedings before the Court, the efficient disposal of the Court’s overall caseload and the disposal of all proceedings in a timely manner.

31    Nonetheless, the Court has a broad discretion to order expedition of a proceeding. There are many factors that may be taken into account having regard to the overarching purpose referred to above. However, an order will not be made unless the Court is satisfied that it is in the interests of justice to make an order for an expedited hearing: Hird v Chief Executive Officer of the Australian Sports Anti-Doping Authority [2014] FCA 1090 at [19]-[22]. (Although Hird concerned an appeal, the principles are of general application: Ford, In the matter of Zhong Ao Zhi Hong Investment Holding Pty Ltd (Receivers and Managers Appointed) [2021] FCA 1375 at [13]).

32    The factors may include the extent to which a party to the proceedings will suffer some significant practical difficulty or irreparable loss or especially significant hardship (e.g., loss of livelihood, business or home) if a hearing does not take place at the earliest convenient time or by a particular date. Other factors include serious detriment to good public administration or to the interests of non-parties. The parties’ own conduct (i.e., the extent to which it has caused or contributed to delay) is also a factor: Hird at [19]-[22].

Disposition

33    During the course of the hearing Mr and Mrs Frigger identified four grounds upon which they rely for setting aside or annulment of the sequestration orders as follows.

(a)    It is alleged that the order of the Supreme Court for payment of the sum of $61,000.42 does not identify the judgment creditor and it is not signed by the Registrar of that court.

(b)    It is alleged that the Second HSF Costs Agreement was a sham and Mr Kitay did not, in truth, have a liability to HSF to pay legal fees.

(c)    It is alleged that the sequestration order was sought for collateral purposes of debt collection and to stifle litigation against the petitioners.

(d)    It is alleged, in support of the other grounds, that Mr and Mrs Frigger are solvent.

After identifying these grounds, it was submitted that there was no overlap between the issues raised in these proceedings and the remaining issues in COR 131 of 2021. None of these grounds, except the allegation of solvency, is a ground expressed in the original or amended statement of grounds referred to at [17] above.

34    It is unclear to what extent Mr and Mrs Frigger intend to abandon or further amend the statement of grounds of annulment to include and (or) confine the grounds to the four grounds referred to during the hearing. However, after the hearing, Mr and Mrs Frigger sent an email to my chambers attaching a document described as a ‘Substituted Statement of Grounds Orders 1 and 2 Amended Originating Application’. It identifies the four grounds which Mr and Mrs Frigger identified during the oral argument of the application. No application has been made or granted to formally amend the statement of grounds.

35    Notwithstanding their oral submissions and the document sent to my chambers, as matters stand, Mr and Mrs Frigger have not been granted leave to amend their originating process (as the hearing of this application has been adjourned) and they have not applied for or been granted leave to rely on a substituted statement of grounds of annulment in support of their originating process. Therefore, the grounds stated on the Court record and in accordance with the directions of Colvin J are the amended (or original) statement of grounds set out at [17] above. On the basis of those grounds, it is evident that there continues to be overlap between the grounds for annulment or setting aside the sequestration orders raised in these proceedings and the issues raised in COR 131 of 2021. The amended statement of grounds assert that the sequestration orders should be annulled or set aside on grounds that rely on an allegation that a retainer between HSF and CAT was required to be, but was not, approved pursuant to s 477(2B) of the Corporations Act. That issue is raised as part of grounds 1 – 3 and 7 and, by implication, as part of grounds 4 and 5 referred to at [17] above.

36    In any event, I am not satisfied on the face of the materials and the Court record as it stands that there is no overlap of the issues that are presently raised in these proceedings and the issues raised in COR 131 of 2021. Accordingly, I am not satisfied that there has been any material change in the circumstances which prevailed at the time Logan J made the orders of 18 August 2021 and 5 April 2022 by which, in effect, these proceedings were stayed pending determination of COR 131 of 2021. While I am not so satisfied, as there is an ambiguity and lack of clarity as to the grounds for annulment or setting aside the sequestration orders which Mr and Mrs Frigger now wish to advance in the event that the originating application is amended, I am prepared to assume for the purposes of the application (without deciding) that there are grounds to vary or set aside the orders of 18 August 2021 and 5 April 2022 and, thereby, deal with the substance of the application for an expedited hearing.

37    On that substantive issue – whether there should be an expedited hearing in these proceedings – I am not satisfied that it is in the interests of justice that there be an expedited hearing. The primary reason for that conclusion is that Mr and Mrs Frigger have not demonstrated that there is some practical difficulty or that there will be some irremediable loss or especially significant hardship if the proceedings are not determined at the earliest convenient time or before a particular date. None of the evidence upon which Mr and Mrs Frigger relies and none of the submissions made in support of the application identifies the existence of any prejudice of that nature or any other reasons why it would be in the interests of justice to expedite the hearing.

38    As to the submission that they are not able to obtain a credit card or credit, Mrs Frigger’s affidavit in support contains nothing more than bare assertion that they are unable to obtain a credit card. For example, there is no evidence of any unsuccessful attempts to obtain credit cards or credit following their discharge from bankruptcy in July 2021. There is no evidence that the absence of a credit card or credit has any material effect on Mr and Mrs Frigger’s financial circumstances or that if the sequestration orders were set aside or annulled there would be a change of those circumstances for the better. Further, there is no evidence that the absence of a credit card or credit will result in practical difficulty, irremediable loss or especially significant hardship if not obtained at the earliest convenience.

39    As to the submission that they have lost an ability to invest in a superannuation fund, the evidence does not support that submission. Mrs Frigger deposed that Ms Trenfield has frozen $7.5 million in superannuation assets which are the subject of an appeal in WAD 278 of 2021. Mrs Frigger deposed that they have suffered and continue to suffer significant loss of investment opportunities. That is bare assertion. Further, there is no evidence that there will be any practical difficulty, irremediable loss or especially significant hardship if the relevant assets are not ‘unfrozen’ at the earliest convenience or that a favourable outcome in these proceedings will result in such an ‘unfreezing’ of the relevant assets.

40    The assets to which Mrs Frigger apparently makes reference were the subject of an application by Mr and Mrs Frigger for declaratory and other relief in WAD 141 of 2019. In those proceedings, in substance, Mr and Mrs Frigger sought declarations to the effect that certain assets were assets of the Frigger Superannuation Fund and, as a consequence, were not assets available to Ms Trenfield as trustee in bankruptcy. Jackson J dismissed the applications and made findings to the effect that the assets in question had not been demonstrated to be assets of the Frigger Superannuation Fund rather than assets of Mr and Mrs Frigger personally: Frigger v Trenfield (No 10) [2021] FCA 1500 at [370], [458], [532]-[534]. If Mr and Mrs Frigger had received a favourable outcome in WAD 141 of 2019, it may have resulted in the ‘unfreezing’ of the assets the subject of the dispute in those proceedings. The judgment of Jackson J was the subject of an appeal in WAD 278 of 2021 heard in May and August 2022. The judgment of the Full Court is reserved. Therefore, any ‘unfreezing’ of the relevant assets turns on the outcome of the appeal in WAD 278 of 2021 and not the outcome of these proceedings.

41    Further, while the judgment of Jackson J is the subject of an appeal and reserved judgment, it is a judgment of the Court that must be taken to be correct and to stand unless and until it is set aside or varied on appeal. Therefore, the Frigger Superannuation Fund could not be subject to any prejudice alleged to flow from an inability of the trustees of that trust to deal with $7.5 million of assets that are not, on the findings of Jackson J, assets of that trust. To the extent that Mr and Mrs Frigger have personally suffered loss because they are not able to deal with the relevant assets as they are vested in and under the control of Ms Trenfield as a result of the sequestration orders, they claim, in these proceedings, to be entitled to compensation for such losses.

42    It follows that, there is no evidence of any irremediable loss resulting from an inability of any person to deal with the relevant assets if these proceedings are not heard on an expedited basis. In any event, the nature of the claim for compensation in these proceedings suggests that any loss is not irremediable.

43    As to the submission that there are six legal proceedings that may be reinstated, there is no evidence regarding those proceedings, the manner in which they were terminated, the manner in which they could be reinstated or any reason that the need for reinstatement is pressing. During oral submissions, Mrs Frigger accepted that if the proceedings are not able to be reinstated, then any loss flowing from that would be added to their compensation claim. Therefore, the existence of these potential claims provide no reason for expedition.

44    As to the submission that there are three other proceedings in the Federal Court that have been stayed pending the outcome of these proceedings, Mrs Frigger’s affidavit does not depose any facts about those proceedings. There is no evidence of the parties to them, the issues in the proceedings or the reason for stay of those proceedings. If there is an urgent need to deal with the claims in any of those proceedings, then it could and should be the subject of a separate application in each of those proceedings to lift the stay. Otherwise, there is no evidence before the Court on this application of any practical difficulty, irremediable loss, or especially significant hardship to any party to those proceedings consequent on a delay in the resolution of these proceedings.

45    As to the submission that there are ongoing costs of the bankruptcy administration, one of the orders sought on the application is that Mr Kitay is to pay for Ms Trenfields costs. Otherwise, there was no evidence of the magnitude of those costs or the extent to which delay of these proceedings, specifically, is likely to increase or contribute to those costs. It follows that such costs are not necessarily irremediable and the evidence does not establish that such ongoing costs will result in especially significant hardship if these proceedings are not resolved on an expedited basis.

46    As to the submission of ongoing stress and embarrassment, these are detriments to which, unfortunately, all litigants in the Court are subject to greater or lesser degrees. There is nothing in the affidavit material to suggest the litigation stresses and strains on Mr and Mrs Frigger are more acute than other litigants.

47    I also take into account that there was delay between the making of the sequestration orders and the commencement of these proceedings. However, that delay is, at least, in part explained by the failed attempts to set aside or appeal from the sequestration orders described in the summary of the background above. Put another way, Mr and Mrs Frigger were taking active steps to bring about the setting aside of the sequestration orders, but not in these proceedings, more-or-less from the moment the orders were made. Some allowance should be made for self-representation in that respect. I also take into account that, at least initially, Mr and Mrs Frigger appear to have agreed to the adjournment of the proceedings pending resolution of COR 131 of 2021 and later apparently changed their position and sought to set aside the orders of 18 August 2021. While I take these matters into account they are not significant reasons for refusing the application.

48    I also accept and take into account that, in general, matters involving bankruptcy should be dealt with due despatch. I do not consider that because these are proceedings to annul or set aside existing sequestration orders, rather than an original application for sequestration orders or an appeal from such orders, that the general principle does not apply. However, the general principle does not result in bankruptcy proceedings taking priority over all other proceedings in the Court. Likewise, I accept and take into account that the issues of compensation and quantification may be separated from the issues of setting aside and annulment and that the need for oral evidence in this case will be limited. However, while these are reasons for considering that the proceedings could be dealt with relatively expeditiously in the ordinary course of and in the application of normal case management principles, assuming that it is appropriate for the stay of these proceedings to be lifted, I do not consider that these are sufficient reasons alone for making an order for an expedited hearing in this case.

49    It follows that, taking all the above matters into account, the administration of justice does not require an expedited hearing of the proceedings even if the issues are narrowed such that there is no overlap between the issues in COR 131 of 2021 and the issues in these proceedings.

Conclusion

50    The interlocutory application dated 6 September 2022 is to be dismissed with costs reserved.

Associate:

Dated:    17 October 2022