Federal Court of Australia

Frigger (Trustee) v Bank of Queensland Limited (No 2) [2025] FCA 526

ORDERS

THE COURT ORDERS THAT:

1.    The applicants' application to adjourn the first respondent's interlocutory application is dismissed.

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

REASONS FOR JUDGMENT

VANDONGEN J:

Introduction

1    In these proceedings, the applicants, Angela and Hartmut Frigger (Mr and Mrs Frigger), contend that they are entitled to injunctive relief and damages arising out of what they say is the wrongful refusal by the first respondent, Bank of Queensland Limited (BoQ), to allow them to withdraw money standing to the credit of two bank accounts that were frozen because of their bankruptcies.

2    By an interlocutory application filed on 14 January 2022, BoQ sought summary judgment on the basis that these proceedings are an abuse of process or, in the alternative, because Mr and Mrs Frigger have no reasonable prospect of successfully prosecuting the proceedings (the interlocutory application). However, on 17 February 2022, Logan J made an order that the interlocutory application be adjourned to a date to be fixed pending the hearing and determination of Mr and Mrs Frigger's appeal against the decision of Jackson J in Frigger v Trenfield (No 10) [2021] FCA 1500, and the hearing and determination of a matter that was then before Hill J in the Supreme Court of Western Australia: COR 131 of 2021.

3    Mr and Mrs Frigger's appeal against the decision in Frigger (No 10) was dismissed, as was their subsequent application for special leave to appeal to the High Court of Australia: Frigger v Trenfield (No 3) [2023] FCAFC 49; and Frigger v Trenfield [2023] HCASL 110, respectively. Further, the proceedings in COR 131 of 2021 have now been heard and determined: Kitay v Frigger [No 2] [2024] WASC 113; see also Frigger v Trenfield (No 8) [2024] FCA 1438 at [4] (Logan J).

4    Notwithstanding the finalisation of those proceedings, Mr and Mrs Frigger now submit that the interlocutory application should be further adjourned, this time pending the hearing and determination of different proceedings, namely, an appeal against the decision of Logan J in Frigger (No 8) (WAD 390 of 2024).

5    On 28 March 2025, I made orders that the question of whether the interlocutory application should be heard after WAD 390 has been resolved was to be determined based on written submissions and without the need for an oral hearing. However, as Mr and Mrs Frigger also applied for an order that I recuse myself on the ground of apprehended bias, any consideration of whether the interlocutory application should be further adjourned had to await my determination of that issue. I have since determined and published reasons in relation to that application: see Frigger (Trustee) v Bank of Queensland Limited [2025] FCA 447.

6    Mr and Mrs Frigger's submission must be rejected. There is no good reason for the hearing and determination of the interlocutory application to await the outcome in WAD 390. Orders should be made programming the interlocutory application for hearing.

7    Before explaining why I have reached that conclusion, it is first necessary to say something about Frigger (No 8) and WAD 390, and about the issues that will need to be determined in these proceedings, based on the pleadings.

Frigger (No 8) and WAD 390

8    In Frigger (No 8), Mr and Mrs Frigger made an application for an order annulling their bankruptcies pursuant to s 153B of the Bankruptcy Act 1966 (Cth) (Bankruptcy Act) or, in the alternative, an order setting aside the sequestration orders made by Colvin J in Kitay, in the matter of Frigger (No 2) [2018] FCA 1032. However, Logan J dismissed the application. His Honour concluded that Mr and Mrs Frigger had failed to demonstrate that their bankruptcies should be annulled or that the sequestration orders should be set aside.

9    In WAD 390, Mr and Mrs Frigger seek to appeal against the order made by Logan J in Frigger (No 8) dismissing their application. In their notice of appeal dated 18 December 2024, Mr and Mrs Frigger seek orders that the order made by Logan J be set aside, and that the sequestration orders made by Colvin J in Kitay (No 2) also be set aside. Although the notice of appeal does not suggest that Mr and Mrs Frigger also seek an order that their bankruptcies be annulled, presumably they will also seek that such an order be made.

Mr and Mrs Frigger's claims in these proceedings

10    In their originating application filed on 12 December 2021, Mr and Mrs Frigger claim that they are entitled to an order pursuant to s 12GD of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act) that BoQ 'remove the restriction on withdrawals' on two bank accounts. Those bank accounts are a savings account in Mrs Frigger's name and a 'WebSavings Account' in the name of Mr Frigger. Mr and Mrs Frigger also seek an order pursuant to s 12GF of the ASIC Act that BoQ compensate them for 'loss caused by the respondent's restriction on withdrawals' on those bank accounts.

11    Central to Mr and Mrs Frigger's pleaded claims is an allegation that because of a request made by the Official Receiver in bankruptcy, BoQ placed restrictions on the withdrawal of funds in respect of both of those bank accounts in accordance with s 125 of the Bankruptcy Act. Those restrictions are then alleged to have wrongfully prevented Mr and Mrs Frigger from making withdrawals from the accounts, and this is then further alleged to have given rise to various claims under the ASIC Act as well as claims for breach of contract.

12    Based on their amended statement of claim, Mr and Mrs Frigger's claim that restrictions were wrongfully placed on the two bank accounts by BoQ may be summarised as follows:

(a)    The savings account, which had a balance of approximately $50 at the relevant time, should not have been the subject of any restriction because the Official Receiver only requested BoQ to place restrictions on accounts with balances of $5,000 or more.

(b)    The WebSavings account should not have been the subject of any restriction because the balance in that account was held in the 'Frigger Super Fund', and it did not therefore form part of the property divisible amongst the creditors of the bankrupt estates.

13    I should note at this point that in Frigger (No 10), Jackson J found that Mr and Mrs Frigger had failed to establish that the WebSavings account or the savings account were held in the Frigger Super Fund: Frigger (No 10) at [370]. However, I do not at this stage need to decide whether, and to what extent, those findings may be relevant to the claims sought to be advanced in this matter. I will assume, favourably to Mr and Mrs Frigger, that this aspect of the claim has not been foreclosed because of the findings made in Frigger (No 10).

14    Mr and Mrs Frigger also claim that because they were both discharged from bankruptcy on or about 26 July 2021, the savings account and the WebSavings account are not accounts held by an undischarged bankrupt. However, the significance of that claim, and how it relates to the relief sought, is not made clear in the amended statement of claim.

15    Against that background, it is necessary to briefly say something about the parties' respective contentions.

The parties' contentions

16    In their written submissions filed in support of their application to adjourn the interlocutory application, Mr and Mrs Frigger submit that the interlocutory application:

Presupposes factual and legal conclusions about the Applicants' entitlements and the character of the relevant accounts in dispute - issues that remain live, unresolved, or are otherwise impacted by the pending appeal in WAD390 of 2024 (the 'Appeal').

Overlooks that any annulment or setting aside of the sequestration orders in WAD390 of 2024 will have a material bearing on the factual and legal context in which the Applicants' claim is pursued.

Fails to satisfy the stringent threshold for summary judgment, because genuine issues requiring a trial remain as to whether the Bank's conduct toward those funds was lawful.

17    The third contention relied on by Mr and Mrs Frigger is not relevant to the issue of whether determination of the interlocutory application should await the outcome of WAD 390. Whether there should be an order for summary judgment is a question that will only arise for consideration if the interlocutory application is not adjourned.

18    The first and second contentions made by Mr and Mrs Frigger amount to an argument that the interlocutory application should be adjourned because the determination of the issues, and the orders that may be made, in WAD 390, may impact on the issues to be determined in these proceedings, including the issues to be determined in the context of the interlocutory application.

19    On the other hand, BoQ submits that even if Mr and Mrs Frigger were to be successful in WAD 390, and even if the orders they seek in that appeal are made, that outcome could have no effect on the Court's determination of the issues raised, and the claims made, in these proceedings.

20    The second respondent, who is the trustee of Mr and Mrs Frigger's bankrupt estates, was not required to file any submissions.

Should the interlocutory application be adjourned pending WAD 390?

21    In my view, there is no merit in Mr and Mrs Frigger's contention that the interlocutory application should be adjourned pending the hearing and determination of WAD 390. If the Full Court were to allow the appeal in WAD 390, that could have no effect on the Court's determination of the issues raised, the claims made or the relief sought, in these proceedings.

22    Even if Mr and Mrs Frigger were successful in obtaining orders that the sequestration orders made by Colvin J be set aside, or that their bankruptcies be annulled, neither of those outcomes could affect this Court's determination of whether the Official Receiver had in fact requested BoQ to place restrictions on relevant accounts with a balance of $5,000 or more.

23    Further, and on the assumption that the question of whether the WebSavings account was held in the 'Frigger Super Fund' was not finally decided in Frigger (No 10), even if Mr and Mrs Frigger were to be completely successful in WAD 390, that could not have any effect on the determination of the question of whether BoQ should not have placed restrictions on that account. This is because the whole premise of Mr and Mrs Frigger's case that BoQ should not have placed any restrictions on the WebSavings account is that the balance of that account never formed part of either of their bankrupt estates.

24    Finally, if the sequestration orders were set aside, or the bankruptcies were annulled, that could have no impact on the remaining aspect of the claims relied on by Mr and Mrs Frigger, that the savings account and the WebSavings account are not accounts held by an undischarged bankrupt. This is because Mr and Mrs Frigger's case in this respect turns on them having become discharged bankrupts.

25    For these reasons, Mr and Mrs Frigger's submission that the interlocutory application should be adjourned pending the hearing and determination of WAD 390 must be rejected and their application in that regard must be dismissed.

Associate:

Dated:    22 May 2025