Frigger v Trenfield (No 9) [2024] FCA 1486

Frigger v Trenfield (No 9) [2024] FCA 1486

Given that the application for setting aside sequestration orders and annulment of bankruptcies failed, and applying the principle that costs follow the event under s 32 of the Bankruptcy Act and s 43 of the Federal Court Act, the respondents are entitled to costs out of the estates. The second respondent's costs should be paid with the same priority as the trustee's costs under s 109(1)(a) Bankruptcy Act. There is no sufficient reason to defer costs given the circumstances and existing authority.

Parties
First Applicant: Angela Cecilia Theresa Frigger; Second Applicant: Hartmut Hubert Josef Frigger; First Respondent: Kelly Trenfield; Second Respondent: Mervyn John Kitay; Prospective Respondent: Herbert Smith Freehills
Jurisdiction
Australia
Judgment Date
13 December 2024
Procedural Posture
Costs Application Following Unsuccessful Originating Application to Set Aside Sequestration Orders and Annul Bankruptcies / Post Judgment; Costs Orders
Outcome
Costs application allowed; interlocutory application dismissed
Legal Topics
Costs, Trustee in Bankruptcy, Sequestration Orders, Annulment of Bankruptcy
Bankruptcy Civil Procedure Costs Trustee in Bankruptcy Sequestration Orders Annulment of Bankruptcy

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Parties

Angela Cecilia Theresa Frigger

First Applicant

Hartmut Hubert Josef Frigger

Second Applicant

Kelly Trenfield

First Respondent

Mervyn John Kitay

Second Respondent

Herbert Smith Freehills

Prospective Respondent

Procedural Posture

Costs Application Following Unsuccessful Originating Application to Set Aside Sequestration Orders and Annul Bankruptcies / Post Judgment; Costs Orders

Legal Issues

  1. 1 Whether the respondents should be awarded costs from the bankrupts' estates following unsuccessful application to set aside sequestration orders and annul bankruptcies
  2. 2 Whether costs should be paid with the same priority as the trustee's costs under s 109(1)(a) Bankruptcy Act 1966 (Cth)
  3. 3 Whether the determination of costs should be deferred due to unresolved application against Trustee

Ratio Decidendi

Given that the application for setting aside sequestration orders and annulment of bankruptcies failed, and applying the principle that costs follow the event under s 32 of the Bankruptcy Act and s 43 of the Federal Court Act, the respondents are entitled to costs out of the estates. The second respondent's costs should be paid with the same priority as the trustee's costs under s 109(1)(a) Bankruptcy Act. There is no sufficient reason to defer costs given the circumstances and existing authority.

Court Disposition

Costs application allowed; interlocutory application dismissed

Orders

  • The first respondent's costs be paid out of the estates of the bankrupts.
  • The second respondent's costs be paid out of the estates of the bankrupts, with the same priority accorded by s 109(1)(a) of the Bankruptcy Act 1966 (Cth), the Trustee's costs.