Frigger v Kitay (No 2) [2020] FCA 497

Frigger v Kitay (No 2) [2020] FCA 497

Herbert Smith Freehills had authority to act because Mr Kitay, as liquidator, could instruct solicitors and defend proceedings on behalf of CAT, and to the extent the costs agreement was one requiring approval under s 477(2B), retrospective approval was proper. There was therefore no basis to strike out the Notice of Address for Service or to set aside the security for costs orders. The applicants' non-compliance meant the proceeding was stayed, and a springing dismissal order was justified because the proceeding could not remain in stasis and the applicants had not shown inability to pay security. Annexure AF-1 was not admitted because it was irrelevant or, if relevant, should be...

Jurisdiction
Australia
Judgment Date
17 April 2020
Procedural Posture
Interlocutory Applications in a Proceeding Seeking an Extension of Time to Appeal From a Sequestration Order / Judgment on Interlocutory Applications
Outcome
Applicants' applications dismissed; costs agreement approved to the extent required; proceeding declared stayed; springing dismissal order made if security not paid by 15 May 2020; annexure AF-1 not admitted in evidence.
Legal Topics
['liquidator Powers' 'approval of Costs Agreement Under S 477(2 B) of the Corporations Act 2001 (cth)' 'authority of Solicitor to Act for Company in Liquidation' 'security for Costs' 'notice of Address for Service' 'stay of Proceedings' 'springing Order for Dismissal' 'improperly Obtained Evidence']
['corporations' 'practice and Procedure' 'bankruptcy' 'evidence'] ['liquidator Powers' 'approval of Costs Agreement Under S 477(2 B) of the Corporations Act 2001 (cth)' 'authority of Solicitor to Act for Company in Liquidation' 'security for Costs' 'notice of Address for Service' 'stay of Proceedings' 'springing Order for Dismissal' 'improperly Obtained Evidence']

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Procedural Posture

Interlocutory Applications in a Proceeding Seeking an Extension of Time to Appeal From a Sequestration Order / Judgment on Interlocutory Applications

Legal Issues

  1. 1 ['Whether the costs agreement with Herbert Smith Freehills required approval under s 477(2B) of the Corporations Act 2001 (Cth) and, if so, whether retrospective approval should be granted.' 'Whether Herbert Smith Freehills had authority to act for Computer Accounting and Tax Pty Ltd (in liquidation) and file the Notice of Address for Service and security for costs application.' "Whether the applicants' application to strike out the Notice of Address for Service should be dismissed." 'Whether the security for costs orders made on 6 May 2019 should be set aside under r 39.05 of the Federal Court Rules 2011 (Cth).' 'Whether the proceeding was stayed by non-compliance with the security for costs order and whether a springing order dismissing the proceeding should be made if security was not paid.' 'Whether annexure AF-1 to the affidavit of Mrs Frigger sworn on 16 August 2019 should be admitted despite confidentiality orders and s 138 of the Evidence Act 1995 (Cth).']

Ratio Decidendi

Herbert Smith Freehills had authority to act because Mr Kitay, as liquidator, could instruct solicitors and defend proceedings on behalf of CAT, and to the extent the costs agreement was one requiring approval under s 477(2B), retrospective approval was proper. There was therefore no basis to strike out the Notice of Address for Service or to set aside the security for costs orders. The applicants' non-compliance meant the proceeding was stayed, and a springing dismissal order was justified because the proceeding could not remain in stasis and the applicants had not shown inability to pay security. Annexure AF-1 was not admitted because it was irrelevant or, if relevant, should be...

Court Disposition

Applicants' applications dismissed; costs agreement approved to the extent required; proceeding declared stayed; springing dismissal order made if security not paid by 15 May 2020; annexure AF-1 not admitted in evidence.

Orders

  • ['This proceeding is stayed by the operation of paragraph 2 of the orders of 6 May 2019.' "The applicants' application for an order in terms of paragraph 1 of their interlocutory application dated 7 January 2019 (as amended on 29 September 2019) is dismissed." "The applicants' application for an order in terms of...