Frigger v Banning (No 8) [2019] FCA 1319

Frigger v Banning (No 8) [2019] FCA 1319

Applicants, as bankrupts, were precluded from continuing the proceedings under the statutory stay provisions of s 60 Bankruptcy Act 1966 (Cth), except for claims for personal injury/wrong present at the time of bankruptcy (which were not present or adequately pleaded). The proposed statement of claim did not comply with prior court orders, advanced new claims, and repeated improper arguments. Leave to amend and add parties was refused; substitution of the deceased respondent by his executor was allowed.

Parties
First Applicant: Angela Cecilia Theresa Frigger; Second Applicant: Hartmut Hubert Josef Frigger; First Respondent: Sandra May Banning; Second Respondent: Ann Marion Campbell-Smith (as executor of the estate of Donald Campbell-Smith); Third Respondent: Professional Services Of Australia Pty Ltd (ACN 082 879 641); Fourth Respondent: Banning Holdings Pty Ltd (ACN 009 006 437)
Jurisdiction
Australia
Judgment Date
21 August 2019
Procedural Posture
Application / Interlocutory Application to Amend Statement of Claim, Add Respondents, and Substitute Executor for Deceased Party
Outcome
Application to file amended statement of claim and add respondents dismissed; executor substituted for deceased respondent; directions given for hearing dismissal application; costs ordered against applicants.
Legal Topics
Amendment of Pleadings, Joinder and Substitution of Parties, Statutory Stay in Bankruptcy, Compliance With Court Orders, Defamation, Malicious Prosecution
Practice and Procedure Bankruptcy and Insolvency Amendment of Pleadings Joinder and Substitution of Parties Statutory Stay in Bankruptcy Compliance With Court Orders Defamation Malicious Prosecution

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Parties

Angela Cecilia Theresa Frigger

First Applicant

Hartmut Hubert Josef Frigger

Second Applicant

Sandra May Banning

First Respondent

Ann Marion Campbell-Smith (as executor of the estate of Donald Campbell-Smith)

Second Respondent

Professional Services Of Australia Pty Ltd (ACN 082 879 641)

Third Respondent

Banning Holdings Pty Ltd (ACN 009 006 437)

Fourth Respondent

Procedural Posture

Application / Interlocutory Application to Amend Statement of Claim, Add Respondents, and Substitute Executor for Deceased Party

Legal Issues

  1. 1 Whether applicants (as bankrupts) can continue the proceedings and add new claims and respondents
  2. 2 Whether proceedings are stayed or abandoned under s 60 Bankruptcy Act 1966 (Cth)
  3. 3 Whether proposed statement of claim complies with prior court orders

Ratio Decidendi

Applicants, as bankrupts, were precluded from continuing the proceedings under the statutory stay provisions of s 60 Bankruptcy Act 1966 (Cth), except for claims for personal injury/wrong present at the time of bankruptcy (which were not present or adequately pleaded). The proposed statement of claim did not comply with prior court orders, advanced new claims, and repeated improper arguments. Leave to amend and add parties was refused; substitution of the deceased respondent by his executor was allowed.

Court Disposition

Application to file amended statement of claim and add respondents dismissed; executor substituted for deceased respondent; directions given for hearing dismissal application; costs ordered against applicants.

Orders

  • Application by applicants for leave to file proposed amended statement of claim and to add additional respondents is dismissed.
  • Applicants to pay respondents' costs of the application to be assessed if not agreed.