Federal Court of Australia

Frigger v Trenfield (Application to Amend) [2024] FCA 508

ORDERS

THE COURT ORDERS THAT:

1.    There be leave to the applicants to amend their amended statement of claim and their originating application in accordance with the reasons of the Court published on 16 May 2024.

2.    The applicants' interlocutory application (described as an interim application) for leave to amend filed 29 February 2024 is otherwise dismissed.

3.    Orders 1 and 2 of the orders made on 15 February 2024 are vacated.

4.    On or before 22 May 2024, the applicants do file and serve a minute of proposed re-amended statement of claim and a minute of proposed amended application in accordance with the reasons of the Court published on 16 May 2024.

5.    On or before 22 May 2024 each party do file and serve a minute of proposed directions programming the application to a final hearing.

6.    On or before 24 May 2024, the respondent do file and serve a schedule of any paragraphs in the minutes filed in accordance with order 4 of these orders which the respondent contends do not reflect the reasons of the Court published on 16 May 2023 and why.

7.    The matter be listed for case management at 10.15 am AWST on 27 May 2024 at which time it is proposed to make orders as to the proposed amendments, the costs of the application by the applicants for leave to amend and orders listing the application for final hearing.

8.    No further documents be filed in these proceedings unless (a) an order has been made requiring the document to be filed; or (b) leave of the case managing judge has been given to file the document.

9.    Any application for leave pursuant to order 8 may be sought by sending an email to the associate to the case managing judge with a draft of the document for which leave is sought together with short submissions of no more than three pages as to why leave should be given.

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

REASONS FOR JUDGMENT

COLVIN J:

1    Ms Kelly-Anne Trenfield is the trustee of the bankrupt estates of Mrs Angela Frigger and Mr Hartmut Frigger. They are prodigious litigants in this and other Courts. Mostly, they have acted on their own behalf. Amongst the concluded proceedings instituted by them is a claim brought against Ms Trenfield in which they alleged that certain assets formed part of the assets of the Frigger Super Fund and not part of their bankrupt estates. Those assets included shares held in a share portfolio (Portfolio) which, at the time of those proceedings, was administered by Commonwealth Securities Limited (CommSec). The final hearing of those proceedings was conducted by Jackson J. It occupied some 12 days. The proceedings were unsuccessful: Frigger v Trenfield (No 10) [2021] FCA 1500. An appeal brought by Mrs and Mr Frigger was dismissed on 24 March 2023: Frigger v Trenfield (No 3) [2023] FCAFC 49. On 3 August 2023, the High Court refused an application by Mrs and Mr Frigger for special leave to appeal and refused their application for an order the judgment in the proceedings be stayed: Frigger v Trenfield [2023] HCASL 110.

2    Pending the outcome of the proceedings before Jackson J, Ms Trenfield gave an undertaking to the Court in her capacity as trustee to take no steps to dispose of, transfer or otherwise deal with the shares held by CommSec in the Portfolio without first giving 30 days prior notice to Mrs and Mr Frigger. On 24 October 2023, Ms Trenfield was released from that undertaking: Frigger v Trenfield (Application for Release from Undertaking) [2023] FCA 1284.

3    Meanwhile, by fresh proceedings in this Court commenced on 7 June 2023 (New Application), Mrs and Mr Frigger sought orders (a) that Ms Trenfield cease to be the trustee of their bankrupt estates; (b) that she and her employer FTI Consulting (Australia) Pty Ltd (FTI) are not entitled to be reimbursed income or remuneration from those estates; (c) that she and FTI are personally liable for the costs of the proceedings before Jackson J, the appeal from his Honour's orders and the application for special leave as well as the costs of certain other proceedings in this Court concerning their bankrupt estates (Past Proceedings); and (d) that Ms Trenfield and FTI make good losses that the estates have sustained because of alleged breach of duty by Ms Trenfield.

4    The New Application was supported by a short statement of claim. It claimed that at all times Ms Trenfield was an employee of FTI, that at no time since her employment by FTI has she operated a separate business as bankruptcy trustee and that there was a clear conflict of interest between her duties as trustee and her duties as an employee of FTI. There was no other claim of breach of duty. Allegations were made about aspects of her employment that were alleged to bear upon whether Ms Trenfield could properly discharge her duties as trustee of the estates of Mrs and Mr Frigger. It was also alleged that 'purported remuneration' of Ms Trenfield was 'in truth and reality income of FTI' and that legal fees incurred and paid as disbursements were a business expense of FTI.

5    Those pleaded circumstances were relied upon to support two claims. First, that Ms Trenfield had breached certain statutory obligations 'by deriving, or attempting to derive, a profit or advantage, from the administration of the … bankrupt estates in circumstances where FTI is a related entity of [Ms] Trenfield'. Second, that the bankrupt estates had suffered or were likely to suffer loss or damage caused by those actions of Ms Trenfield. The alleged loss or damage was not otherwise particularised.

6    In short, the claims made rested upon allegations about the nature of the employment arrangements between Ms Trenfield and FTI. There were no allegations made as to the manner in which the estate had been administered or of any duty on her part beyond the alleged conflict between her duty to administer the estate and her duty as an employee. Nor were there any claims in relation to the administration of the Portfolio which, in any event, had been the subject of the undertaking not to deal with the shares that formed part of the Portfolio that was in place during the course of the proceedings determined by Jackson J and the subsequent unsuccessful appeal and special leave application.

7    On 24 November 2023, Mrs and Mr Frigger amended their statement of claim. Amongst other things, the amendments introduced the following allegations:

5A.    In the circumstances …, Trenfield is not a member of the firm known as FTI … within the meaning of sections 15-1 and 70-35(3) Insolvency Practice Rules (Bankruptcy) 2016.

5B.    On 3 July 2006 Trenfield was first registered as a bankruptcy trustee by the Inspector General, which registration was renewed during her FTI employment on 3 July 2015, 3 July 2018 and 3 July 2021.

5C.    Notwithstanding Trenfield is not a member of FTI, Trenfield informed the Inspector General that she is practising as a registered trustee as a member of FTI, and pursuant to section 15-1(e) Insolvency Practice [Rules] (Bankruptcy) 2016, FTI is included as Trenfield's firm in the Register of Trustees.

8    Significantly for present purposes, it may be noted that these new allegations made no claim about the circumstances in which Ms Trenfield obtained her registration as a trustee in 2006 or what she had communicated in support of her registration at that time. Rather, the allegations concerned what Ms Trenfield had told the Inspector General when renewing her registration in 2015, 2018 and 2021. Further, it was the allegation that Ms Trenfield was not a member of FTI that was relied upon to support the other claims made in the pleading (see paras 7-8 and 14-15).

9    Other amendments were made to introduce claims concerning the insurance arrangements that had been put in place as to liabilities incurred by Ms Trenfield as trustee. They culminated in a plea to the effect that Ms Trenfield did not take out such insurance (in para 15D).

10    Then, the following new claim was made (in para 15E):

In the circumstances of the matters in 5A-5C and 15D above, Trenfield obtained renewal of registration as bankruptcy trustee on 3 July 2015, 3 July 2018 and 3 July 2021 by fraud.

11    Again, it can be seen that the allegation that was made concerned the circumstances of the renewal of registration in 2015, 2018 and 2021. Further, it was only the allegation that Ms Trenfield had told the Inspector General that she was acting as a member of FTI that was advanced to support the allegation that Ms Trenfield's renewal of registration as a trustee was obtained by fraud.

12    The allegation as made in para 15E was then relied upon as the basis for a further allegation that all judgments in the Past Proceedings were obtained by fraud. That is to say, the alleged issues in relation to renewal of registration and insurance were said to infect the judgments and orders made in favour of Ms Trenfield in her capacity as trustee in each of the Past Proceedings.

13    A prayer for relief was added at the end of the amended statement of claim to the effect that judgment was sought setting aside all judgments and orders in the Past Proceedings. However, there was no application to amend the originating application at that time.

14    After that, I raised an issue as to whether FTI needed to be a party. Mrs and Mr Frigger then filed a proposed amended originating application in which those parts of the relief sought which were directed to FTI were removed. Amendments were also proposed to seek removal of Ms Trenfield as trustee 'ab initio' and for an order that she remove caveats that had been lodged over certain properties. A claim seeking an order that Ms Trenfield and FTI 'make good losses that [Mrs and Mr Frigger's] estates have sustained because of a breach of duty by [Ms Trenfield]' remained. However, it was amended to read:

Pursuant to section 30 Bankruptcy Act 1966 an order that the respondent and the respondent's employer FTI Consulting (Australia) Pty Ltd make good losses that the applicants' have sustained.

15    Of course, an amendment of that kind did not expand the basis upon which such an order was sought. That basis was still articulated in the amended statement of claim. As has been explained, the basis for the claim as articulated in that pleading was quite confined.

16    Ms Trenfield did not object to the proposed amendments and leave was given to file an amended originating application in the terms proposed. However, that leave was not utilised. Instead, Mrs and Mr Frigger now seek to make different amendments to the originating application and to further amend the amended statement of claim. In the course of the hearing of that application they confirmed that they do not seek relief against FTI. In those circumstances, no issue arises as to whether FTI should be joined as a party.

17    Prior to the bringing of the further application to amend, it had been the position of all parties that all relevant affidavit material had been filed and the matter was ready to be listed for a final hearing. Having regard to the nature of the relief sought, Ms Trenfield sought to have the final hearing listed as soon as possible because of the uncertainty created by the pendency of claims to the effect that she should be removed as trustee.

18    The applications to amend are opposed by Ms Trenfield principally on the basis that it will substantially expand the extent of the issues raised in the proceedings and is likely to delay the resolution of the existing claims which raise issues as to her authority to continue as trustee. In substance, it is said that the proposed amendments will introduce claims which seek to scrutinise the actions that have been taken by Ms Trenfield in the course of the administration of the estates to date as well as other matters that do not bear upon the issue that has been the focus of the proceedings since their inception and in respect of which the parties had indicated they were ready to proceed to a final hearing.

19    Although the proposed amendments to the originating application are opposed by Ms Trenfield, that is on the basis that the claims to relief should not be allowed to be expanded by means of amendments to the statement of claim which would introduce a raft of new issues as the basis for that relief of a kind that would fundamentally alter the nature of the proceedings and be likely to cause delay to and prejudice the prompt administration of the estates.

20    By the time of the hearing of the amendment application, the aspects of the proposed amendments to the statement of claim that were substantively opposed were as follows:

(1)    Amendments to introduce a new claim concerning the circumstances in which Ms Trenfield had obtained her original registration as a trustee in 2006 (paras 10-11).

(2)    Amendments to introduce a new claim to the effect that counsel for Ms Trenfield had engaged in 'sophistry and ambush' in failing to inform Jackson J (in the course of the earlier proceedings concerning the property of the estates) that Ms Trenfield was disqualified to be a trustee and had no assets vested in her as trustee (para 33).

(3)    Amendments to expand the reliance upon an existing claim that the cost orders obtained by Ms Trenfield in the Past Proceedings breached the 'indemnity principle' as a further basis for the allegation that the costs orders in those proceedings were obtained by fraud and are null and void (para 34).

(4)    Amendments to introduce a new claim that if Ms Trenfield had been validly appointed as trustee she had mishandled the funds of the estates, including by claiming that the shares that formed part of the Portfolio had vested in her as trustee and demanding that trading on the account by CommSec be frozen (paras 37-54).

(5)    An amendment to an existing claim that Ms Trenfield has not been independent of FTI since her appointment as trustee of the estates of Mrs and Mr Frigger to expand that claim to apply 'at no time since her registration as bankruptcy trustee' has she been independent of her employers Korda Mentha QLD and FTI (para 56).

(6)    The addition of the new claims as a further basis for claiming that loss and damage has been suffered and a change to that claim from an allegation of loss and damage to the estates to an allegation of loss and damage to Mrs and Mr Frigger (para 58).

(7)    Amendments to introduce a new claim that Mrs and Mr Frigger lost the opportunity to earn capital profits, dividends and interest on the Portfolio and other property determined by Jackson J to be property of their estates being administered in bankruptcy (paras 59-68).

(8)    The consequential inclusion of the new and amended claims as the basis for the application for an order by way of relief that the judgments and orders in the Past Proceedings made in favour of Ms Trenfield be set aside because that claim would now be advanced on the basis of the matters introduced by way of amendment as well as the existing claims - even though there was no actual amendment proposed to the terms of the claim to relief itself (para 69(a)).

21    It is not suggested by Mrs and Mr Frigger that the claims that they now seek to add could not be the subject of separate proceedings if properly pleaded. As has been explained, those new claims focus to a considerable degree upon what has occurred in relation to the Portfolio. As has been mentioned, during the course of the proceedings before Jackson J no steps were taken in relation to the Portfolio because Mrs and Mr Frigger claimed that the shares in the Portfolio were not assets of their bankrupt estates.

22    Further, this is not an instance where Ms Trenfield, in opposing the amendments, suggests that Mrs and Mr Frigger will be unable to bring proceedings (assuming them to be competent) in which they raise issues as to the administration of the bankrupt estates based upon complaints as to matters that are unrelated to the terms upon which Ms Trenfield is employed by FTI or the circumstances of her registration as a trustee.

23    Rather, the course for which Ms Trenfield contends is to confine the existing proceedings to the controversy presently addressed by them.

Outcome

24    For the following reasons, save in one limited respect (being the proposed addition of paras 10-11), the application to make each of the contested aspects of the proposed amendments should be refused. Mrs and Mr Frigger should be allowed a short period in which to bring in a minute of proposed re-amended statement of claim and a minute of amended application in each case confined to the matters in the existing minutes but excluding all those proposed amendments which have been refused by these reasons. Upon the Court being satisfied that the minutes meet that description then an order will be made allowing leave to amend in those terms. Otherwise, the matter should be listed for case management so that the application can be set down for hearing. There also should be an order that no further documents be filed in these proceedings by any party unless (a) an order has been made requiring the document to be filed; or (b) leave of the case managing judge has been given to file the document.

Relevant principles

25    The manner in which the Court's power to grant leave to amend a statement of claim ought to be exercised was described by Gilmour and Foster JJ in Caason Investments Pty Ltd v Cao [2015] FCAFC 94; (2015) 236 FCR 322 at [19]-[21] in terms which gave significance to each of the following aspects:

(1)    The power of the Court to grant or refuse leave must be exercised in the way that best promotes the Court's overarching purpose to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible.

(2)    The power is broad and has the remedial objective of ensuring that any defect in the pleadings is cured and that the real questions in the controversy are properly agitated and to avoid a multiplicity of proceedings.

(3)    The object of the Court is not to punish parties for mistakes made in the conduct of their case, but to correct errors with the result that a decision can be made on the real matters in controversy.

(4)    Leave to amend should be granted unless the proposed amendment is futile, such that the issue that is sought to be added is unlikely to succeed, the amendment is likely to be struck out or would cause substantial prejudice or injustice to the opposing party in a way that cannot be compensated by costs.

26    Usually, where fairness to other parties can be maintained, the Court will allow amendments to ensure that all of the substantive controversy between the parties is raised in a single proceeding. However, the Court is also concerned to avoid the prejudice that can arise from applications to amend and to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible: see, for example, the summary of the principles by Stewart J in Australian Competition and Consumer Commission v Productivity Partners Pty Ltd (trading as Captain Cook College) (No 2) [2020] FCA 863 at [6].

Separation of issues

27    In appropriate cases, the Court will determine some issues before others. This is done where one issue has reasons for urgency associated with its resolution or its determination has wider significance or is likely to enhance the prospects of resolution of the whole controversy by way of agreement. The modern approach to case management is also concerned to ensure that those issues which require more prompt disposition are advanced over others, to the extent that can be achieved.

28    In the present case, these matters have significance for how to approach the amendment application because, as has been explained, the case as presently formulated concerns whether, having regard to the employment terms of Ms Trenfield (and the circumstances of the renewal of her registration as trustee), she should be allowed to continue the administration of the estates and whether orders should be made to the effect that the administration was void ab initio. To the extent that orders to recover alleged loss and damage are sought, they are orders that are sought on the basis of alleged loss and damage to the estate arising from the administration of the estate by Ms Trenfield in circumstances where, so it is alleged, she should not have been the trustee by reason of an alleged conflict of interest created by the arrangements that she has entered into with FTI as her employer.

29    What is now proposed by Mrs and Mr Frigger is the addition of claims that concern the way in which the estates have been administered, particularly in relation to the Portfolio. If that course is allowed, it will open up a substantial new controversy that is likely to delay significantly the adjudication of the existing issues in the proceedings which issues concern whether, having regard to her remuneration and employment arrangements with FTI, Ms Trenfield should be allowed to continue the administration. Indeed, Mrs and Mr Frigger have brought an application for discovery which they seek to pursue if the amendment application is allowed. They have also provided an unsworn form of affidavit which indicates the type of additional evidence that they will seek to lead if the amendments are allowed. It appears from that document that they seek to complain about the conduct of the previous proceedings before Jackson J, various steps that have been taken in relation to the Portfolio, the consequences for the bankruptcy of a recent decision of the Supreme Court of Western Australia and the response by Ms Trenfield to communications in December 2018 by lawyers who were then acting on her behalf.

30    In those circumstances, the over-arching purpose of resolving disputes quickly, inexpensively and efficiently may mean that doing justice as between the parties requires the present proceedings to be confined to their existing scope. As has been explained, the controversy that has given rise to the current proceedings concerns whether the arrangements between Ms Trenfield and FTI (and the communications with the Inspector General concerning those arrangements when renewing her registration) are reasons why she should be removed as trustee. It will be a means by which that separate issue, which has significance for the ongoing administration of the estates, is resolved promptly. For that reason, it may be preferable to require the matters that Mrs and Mr Frigger seek to raise by way of amendment to be the subject of separate proceedings. Such a course may be more efficient than treating the present application which has reached a stage where it is ready for hearing to be substantially delayed to allow Mrs and Mr Frigger to treat it as a form of omnibus proceeding in which they can raise a shopping list of complaints that are only connected to the present proceedings in the sense that they are also directed against Ms Trenfield and concern their bankruptcy. That is to say, the subject matter that is sought to be introduced does not arise from the same factual matters and seeks to agitate what appear to be matters of controversy that are distinct from the existing subject matter of the proceedings.

Proposed new paras 10-11

31    As has been explained, Mrs and Mr Frigger seek to introduce new factual allegations about the circumstances in which Ms Trenfield obtained her initial registration in 2006. The proposed new allegations are to the effect that Ms Trenfield falsely stated the nature of her arrangements with her then employer and obtained her registration by 'deceiving the Commonwealth's Insolvency and Trustee Service'.

32    Ms Trenfield says that if the proposed allegations were allowed to be added they would require affidavit material to be prepared as to relevant events and circumstances in 2006 which occurred a substantial time ago. They also say that these matters occurred many years before her appointment as trustee of the estates of Mrs and Mr Frigger. Further, the circumstances of her initial registration are unlikely to bear upon whether the relief sought in respect of her continuation as trustee would be granted.

33    The allegations made are quite specific. The matters alleged to be relied upon to support them are specified in the proposed amendments. In my assessment they are of relatively narrow compass. They concern matters that bear a close relationship to the existing controversy. They are matters in the personal knowledge of Ms Trenfield. For those reasons, I will allow the proposed amendments.

Proposed new para 33

34    The proposed amendment introduces allegations about the way in which the proceedings were conducted before Jackson J. There has been an unsuccessful appeal by Mrs and Mr Frigger concerning the decision of Jackson J and an application for special leave to the High Court has been refused. In those circumstances, it would be an abuse of process to allow amendments that seek to complain about aspects of the way in which those proceedings were conducted. If indeed there is some form of complaint that seeks to impugn the regularity or enforceability of the orders of Jackson J then that should be properly formulated and particularised by separate proceedings confined to that issue. I express no view as to whether there is a proper basis for any such application save to say that the matters that are proposed to be introduced by way of amendment fall considerably short of a proper basis for an application of that kind which the courts, in the interests of finality, will countenance in only very limited circumstances.

35    For those reasons, I refuse the application as to proposed para 33.

Proposed amendment to para 34

36    In the existing pleading, Mrs and Mr Frigger make allegations to the effect that the cost orders obtained in the Past Proceedings breached the indemnity principle. The only pleaded basis for the claim that there was no obligation to pay the costs is to be found in allegations in the existing pleading concerning the circumstances of Ms Trenfield's employment by FTI. Therefore, as matters presently stand that allegation is supported by matters that are closely related to those that are relied upon to support the application for relief removing Ms Trenfield as trustee.

37    What is now proposed is the addition of the allegation that the costs orders breached the indemnity principle to the matters relied upon to support an existing plea that 'all the judgments and orders in [Ms Trenfield's] favour' in the Past Proceedings were obtained by fraud and are liable to be set aside.

38    As the pleading presently stands, the fraud as alleged by Mrs and Mr Frigger concerns Ms Trenfield's communications with the Inspector General in order to renew her registration as a trustee (and the additional plea that I propose to allow concerning the statements made at the time that the registration was first obtained). The proposed amendment would expand the controversy the subject of the existing proceedings to support the claim of alleged fraud as a basis to set aside the existing costs orders.

39    The proposed addition of the allegation concerning the indemnity principle lacks any pleading as to the material facts to support the claim that there was fraud. Therefore, it fails to conform with that most basic requirement as to any allegation of fraud.

40    For those reasons, I refuse the application to insert a reference to para 27 in para 34.

Proposed new paras 37-54

41    Mrs and Mr Frigger propose the addition of a whole new allegation about the way in which funds of their estates have been handled by Ms Trenfield since her appointment. There are separate procedures for complaining about the conduct of a bankrupt administration. The proposed new paragraphs would substantially expand the existing controversy. Given the stage of the existing proceedings, the discrete nature of the issues that are presently the subject of the proceedings, the considerable delay in any final hearing if the amendments were allowed and the absence of any suggestion that any proper complaint about the administration of the Portfolio could not be raised by separate proceedings, I am not persuaded that the amendment should be allowed.

Proposed amendment to para 56

42    The proposed amendment would seek to raise an issue as to whether Ms Trenfield has ever been independent from her employer whilst acting as a trustee. It would appear to do so on the basis of a claim that the present arrangements have been in place for many years, including as between Ms Trenfield and a party who is alleged to be her previous employer. There is no proposed plea as to what those arrangements were or to the effect that they were different in some way from the existing arrangements alleged to be in place as between Ms Trenfield and FTI.

43    Nevertheless, the proposed amendment if allowed would invite an inquiry, not only into the basis upon which Ms Trenfield obtained her registration, but also as to the arrangements that applied before she was trustee of the estates of the bankrupts. That is because it alleges that she was not independent from her previous employer 'Korda Mentha QLD'.

44    Mrs and Mr Frigger say that Korda Mentha QLD was taken over by FTI and that it is reasonable in those circumstances for the pleading to be advanced. Even if that be the case, the proposed amendment would open up inquiries into the precise arrangements that pertained prior to Ms Trenfield's appointment as trustee at a time when her arrangements were with another party.

45    Unlike the proposed new pleading concerning the circumstances in which Ms Trenfield obtained her registration, the amendment would not be confined to the position at a particular point in time. Instead, it would invite an inquiry into the arrangements that existed over a considerable number of years. Further, if it is the case, as Mrs and Mr Frigger allege, that the arrangements that have been in place between Ms Trenfield and FTI during the time she has had the conduct of the administration of their bankrupt estates mean that she is in a position of conflict then it is difficult to see what the circumstances that might have existed at some earlier time might add to their claim. On the other hand, if the present arrangements are determined not to give rise to any conflict then it is difficult to see why the fact that they may have been in place as between Ms Trenfield and Korda Mentha QLD in the past would provide some basis for relief.

46    In those circumstances, I decline the application as to para 56.

Proposed amendments to para 58 and proposed new paras 59-68

47    The existing plea at para 58 alleges that in the circumstances of the matters there pleaded (being reference to earlier paragraphs) the estates of Mrs and Mr Frigger have suffered or are likely to suffer loss or damage caused by Ms Trenfield's action or failure to comply with applicable regulatory provisions. What is proposed by way of amendment is a deletion of the reference to 'estates' and the inclusion of various paragraphs including the paragraphs about the Portfolio that have not been allowed.

48    The proposed amendments to para 58 are followed by amendments to introduce proposed new paras 59-68. They purport to explain why Mrs and Mr Frigger are alleged to have lost the opportunity to earn capital profits, interest and dividends on the Portfolio and other property determined Jackson J to be property of their estates. They include a proposed plea that denies the validity of the decision by Jackson J in the previous proceedings. There is also an attempt to advance allegations as to why the disputed property that was at issue in those earlier proceedings is not property of the bankrupt estates.

49    A new heading is proposed to be introduced to these claims being 'Loss of opportunity to earn capital profits, dividends and interest'.

50    Plainly, what is sought to be added by these amendments is a whole new case which, in substance, seeks loss and damage on the basis (contrary to the determination by Jackson J, undisturbed on appeal) that the Portfolio and other assets are not properly property of the estates being administered by Ms Trenfield.

51    There are many problems with these amendments. For present purposes it is sufficient to conclude that they seek to introduce a whole new controversy into the present application which, as has been explained, is confined to a case about whether Ms Trenfield should continue as trustee having regard to the terms agreed with FTI (and, by the amendments that will be allowed, the matters that she communicated as to the way in which she would practice at the time of obtaining her registration). For reasons I have given, I am not persuaded that these proceedings should be allowed to be expanded to introduce a new claim of that kind.

52    Accordingly, the proposed amendments will not be allowed.

The proposed expanded operation of para 69(a)

53    The objection to the expanded operation of para 69(a) does not arise because, for reasons I have given, I do not propose to allow amendments that will result in any such expanded operation. It follows also that the objections to the way in which the proposed amended application will apply also fall away.

Orders

54    As I have indicated, these proceedings have reached the stage where both parties have indicated that they are ready for final hearing. There will need to be orders that will allow for amendments to the statement of claim and the application that are consistent with these reasons. I will make orders for Mrs and Mr Frigger to file proposed documents to reflect these reasons and for Ms Trenfield to notify whether there is any objection to those amendments. If there is objection, I will rule on them on the papers based upon the submissions that have already been made and these reasons.

55    In order to ensure that these proceedings remain appropriately confined having regard to their subject matter, I will also make an order requiring leave before any document is filed by any party which has not been directed by the Court to be filed.

56    I will also list these proceedings for a case management hearing at which orders will be made to facilitate the final hearing of the application. At that time, I will also deal with the question of costs in respect of the application for leave to amend.

Associate:

Dated:    16 May 2024