Frigger v Banning (No 12) [2022] FCA 347

Frigger v Banning (No 12) [2022] FCA 347

There was no sufficiently arguable basis for the claim that PSA did not exist or that enforcement of the costs orders would be an abuse of process. The evidence showed PSA was properly incorporated and registered. Any prejudice to the applicants was not material. The balance of convenience and risk of prejudice to the respondents outweighed the applicants’ interests. Therefore, the further extension of time to object to the cost estimate should be refused.

Parties
First Applicant: Angela Cecilia Theresa Frigger; Second Applicant: Hartmut Hubert Josef Frigger; First Respondent: Sandra May Banning; Second Respondent: Ann Marion Campbell-Smith in her capacity as Executor of the Estate of Donald Campbell‑Smith; Third Respondent: Professional Services of Australia Ltd (ACN 082 879 641); Fourth Respondent: Banning Holdings Pty Ltd (ACN 009 006 437)
Jurisdiction
Australia
Judgment Date
06 April 2022
Procedural Posture
Application/interlocutory / Determination of Application to Further Extend Objection Period for Cost Taxation Estimate
Outcome
Application for further extension of time to object to the taxation estimate is dismissed. Costs are reserved.
Legal Topics
Taxation of Costs, Permanent Stay of Cost Orders, Abuse of Process, Corporate Existence and Capacity, Directors' Authority, Company Incorporation
Practice and Procedure Commercial Law Corporations Law Insolvency Taxation of Costs Permanent Stay of Cost Orders Abuse of Process Corporate Existence and Capacity +2 more

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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 in her capacity as Executor of the Estate of Donald Campbell‑Smith

Second Respondent

Professional Services of Australia Ltd (ACN 082 879 641)

Third Respondent

Banning Holdings Pty Ltd (ACN 009 006 437)

Fourth Respondent

Procedural Posture

Application/interlocutory / Determination of Application to Further Extend Objection Period for Cost Taxation Estimate

Legal Issues

  1. 1 Whether to extend time for objecting to the taxation of costs pending determination of application for permanent stay of cost orders
  2. 2 Whether there is an arguable basis for abuse of process such that enforcement of the costs orders would be an abuse
  3. 3 Whether Professional Services of Australia Ltd existed or could properly receive costs

Ratio Decidendi

There was no sufficiently arguable basis for the claim that PSA did not exist or that enforcement of the costs orders would be an abuse of process. The evidence showed PSA was properly incorporated and registered. Any prejudice to the applicants was not material. The balance of convenience and risk of prejudice to the respondents outweighed the applicants’ interests. Therefore, the further extension of time to object to the cost estimate should be refused.

Court Disposition

Application for further extension of time to object to the taxation estimate is dismissed. Costs are reserved.

Orders

  • The application to further extend the date for objecting to the cost estimate given by Registrar Parkyn on 15 March 2022 is dismissed.
  • The costs of and incidental to the application are reserved.