Frigger v Trenfield (No 12) [2022] FCA 900

Frigger v Trenfield (No 12) [2022] FCA 900

The first respondent was entitled to recover lump sum costs from the applicants because she was legally liable for the costs under the retainer; the fact invoices were addressed and apparently paid by a third party (FTI Consulting) did not negate her liability; the costs agreement was not a void conditional agreement for the purposes of the Legal Profession Act 2008 (WA); GST was properly included in the award as the relevant party could not recoup input tax credits; and, after applying an overall 10% discount for appropriate factors including risk of misallocation and tax, the quantum of $406,269 in legal costs and $16,041.45 in disbursements (both inclusive of GST) was fair and...

Parties
First Applicant: Angela Cecilia Theresa Frigger; Second Applicant: Hartmut Hubert Josef Frigger; First Respondent: Kelly-Anne Lavina Trenfield; Second Respondent: H & A Frigger Pty Ltd in its capacity as trustee of the Frigger Super Fund
Jurisdiction
Australia
Judgment Date
03 August 2022
Procedural Posture
Costs Assessment / Post Judgment, Lump Sum Costs Assessment
Outcome
Costs assessed and awarded
Legal Topics
Quantum of Costs, Party Party Costs, Lump Sum Assessment, Indemnity Principle, Costs Agreements, Void Costs Agreement, Legal Profession Act 2008 (wa), GST in Legal Costs
Civil Procedure Insolvency Costs Law Quantum of Costs Party Party Costs Lump Sum Assessment Indemnity Principle Costs Agreements +3 more

Case Brief

Summary, issues, holding and outcome

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Parties

Angela Cecilia Theresa Frigger

First Applicant

Hartmut Hubert Josef Frigger

Second Applicant

Kelly-Anne Lavina Trenfield

First Respondent

H & A Frigger Pty Ltd in its capacity as trustee of the Frigger Super Fund

Second Respondent

Procedural Posture

Costs Assessment / Post Judgment, Lump Sum Costs Assessment

Legal Issues

  1. 1 Whether the first respondent is entitled to recover legal costs under the indemnity principle
  2. 2 Whether invoices to a third party (FTI Consulting) preclude recovery by the first respondent
  3. 3 Whether the costs agreement is void as a conditional costs agreement under s 287 Legal Profession Act 2008 (WA)

Ratio Decidendi

The first respondent was entitled to recover lump sum costs from the applicants because she was legally liable for the costs under the retainer; the fact invoices were addressed and apparently paid by a third party (FTI Consulting) did not negate her liability; the costs agreement was not a void conditional agreement for the purposes of the Legal Profession Act 2008 (WA); GST was properly included in the award as the relevant party could not recoup input tax credits; and, after applying an overall 10% discount for appropriate factors including risk of misallocation and tax, the quantum of $406,269 in legal costs and $16,041.45 in disbursements (both inclusive of GST) was fair and...

Court Disposition

Costs assessed and awarded

Orders

  • The first applicant is liable for the first respondent's legal costs of the proceeding up to and including 13 June 2019 in the sum of $13,813 (inclusive of GST).
  • The first applicant and second applicant are jointly and severally liable for the first respondent's legal costs of the proceeding thereafter in the sum of $392,456 (inclusive of GST).