Frigger v Banning (No 9) [2019] FCA 1611

Frigger v Banning (No 9) [2019] FCA 1611

Because the applicants were pursuing a pending challenge to the sequestration orders and there was some prospect the challenge might succeed, it was not appropriate at that time to dismiss proceedings stayed by bankruptcy. However, given the long history of the proceedings, repeated failed attempts to plead a proper case, previous abuse of process findings, delay, and prejudice to the respondents, existing costs orders in favour of the respondents should be varied to make the costs assessed and payable forthwith. The respondents did not establish a sufficient basis for indemnity costs.

Jurisdiction
Australia
Judgment Date
26 September 2019
Procedural Posture
Application for an Order Dismissing Proceedings and Application for Indemnity Costs / Interlocutory Application in Stayed Proceedings Following Sequestration Orders Against the Applicants
Outcome
Respondents' application for dismissal adjourned; indemnity costs not ordered; existing costs orders varied to be assessed and paid forthwith; costs of the day reserved.
Legal Topics
['statutory Stay of Proceedings by Reason of Bankruptcy' 'dismissal of Proceedings' 'pending Challenge to Sequestration Orders' 'variation of Costs Orders to Be Assessed and Payable Forthwith' 'indemnity Costs' 'security for Costs']
['practice and Procedure' 'costs' 'bankruptcy' 'corporations and Corporate Insolvency'] ['statutory Stay of Proceedings by Reason of Bankruptcy' 'dismissal of Proceedings' 'pending Challenge to Sequestration Orders' 'variation of Costs Orders to Be Assessed and Payable Forthwith' 'indemnity Costs' 'security for Costs']

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Procedural Posture

Application for an Order Dismissing Proceedings and Application for Indemnity Costs / Interlocutory Application in Stayed Proceedings Following Sequestration Orders Against the Applicants

Legal Issues

  1. 1 ["Whether proceedings stayed by reason of the applicants' bankruptcy should be dismissed while the applicants were taking steps to challenge the sequestration orders." 'Whether existing costs orders in favour of the respondents should be varied so that costs be assessed and paid forthwith.' 'Whether an order for indemnity costs should be made.']

Ratio Decidendi

Because the applicants were pursuing a pending challenge to the sequestration orders and there was some prospect the challenge might succeed, it was not appropriate at that time to dismiss proceedings stayed by bankruptcy. However, given the long history of the proceedings, repeated failed attempts to plead a proper case, previous abuse of process findings, delay, and prejudice to the respondents, existing costs orders in favour of the respondents should be varied to make the costs assessed and payable forthwith. The respondents did not establish a sufficient basis for indemnity costs.

Court Disposition

Respondents' application for dismissal adjourned; indemnity costs not ordered; existing costs orders varied to be assessed and paid forthwith; costs of the day reserved.

Orders

  • ['All costs orders made to date in favour of the respondents in these proceedings be varied to provide for those costs to be assessed and paid forthwith.' "The respondents' application for an order dismissing these proceedings be adjourned to a date to be fixed after the determination of the application in matter...