Kitay, in the matter of Frigger [2018] FCA 817

Kitay, in the matter of Frigger [2018] FCA 817

The Court ordered a preliminary determination of whether there was reason to go behind the indemnity costs order because several grounds of opposition depended on going behind that order, and cross-examination of Mr Kitay on those matters would serve a purpose only if such a reason were first established. The requirement for Ms Shepherd and Mr Kitay to attend for cross-examination was dispensed with for the 5 June 2018 hearing because Ms Shepherd's evidence was formal and uncontentious, and Mr Kitay's potentially relevant cross-examination related to matters that would arise only if the Court decided to go behind the costs order. Dispensation was not justified for Mr Eastwood because his...

Jurisdiction
Australia
Judgment Date
29 May 2018
Procedural Posture
Creditor's Petition for Sequestration Orders / Interlocutory Determination of Applications to Dispense With Attendance of Deponents for Cross Examination and to Identify Preliminary Issues for the Hearing on 5 June 2018
Outcome
Orders made for the hearing of preliminary issues and for dispensation with r 29.09 in respect of the affidavits of Michelle Vivian Shephard and Mervyn Jonathan Kitay for the purposes of the 5 June 2018 hearing; dispensation for Mr Eastwood was not granted.
Legal Topics
["creditor's Petition" 'sequestration Orders' 'bankruptcy Notice' 'costs Order' 'cross Examination of Deponents' 'dispensation With Federal Court Rules' 'preliminary Issue' 'going Behind Judgment']
['practice and Procedure' 'bankruptcy and Insolvency'] ["creditor's Petition" 'sequestration Orders' 'bankruptcy Notice' 'costs Order' 'cross Examination of Deponents' 'dispensation With Federal Court Rules' 'preliminary Issue' 'going Behind Judgment']

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Procedural Posture

Creditor's Petition for Sequestration Orders / Interlocutory Determination of Applications to Dispense With Attendance of Deponents for Cross Examination and to Identify Preliminary Issues for the Hearing on 5 June 2018

Legal Issues

  1. 1 ['Whether the Court should dispense with the requirement under r 29.09 of the Federal Court Rules 2011 (Cth) that deponents attend for cross-examination before their affidavits may be used.' 'Whether the Court should determine as a preliminary issue whether there is reason for questioning whether there is really a debt pursuant to the indemnity costs order made by Master Sanderson on 12 June 2014.' 'Whether, if there is no reason to go behind the costs order, a sequestration order should be made in respect of the estates of each of Mr and Mrs Frigger.']

Ratio Decidendi

The Court ordered a preliminary determination of whether there was reason to go behind the indemnity costs order because several grounds of opposition depended on going behind that order, and cross-examination of Mr Kitay on those matters would serve a purpose only if such a reason were first established. The requirement for Ms Shepherd and Mr Kitay to attend for cross-examination was dispensed with for the 5 June 2018 hearing because Ms Shepherd's evidence was formal and uncontentious, and Mr Kitay's potentially relevant cross-examination related to matters that would arise only if the Court decided to go behind the costs order. Dispensation was not justified for Mr Eastwood because his...

Court Disposition

Orders made for the hearing of preliminary issues and for dispensation with r 29.09 in respect of the affidavits of Michelle Vivian Shephard and Mervyn Jonathan Kitay for the purposes of the 5 June 2018 hearing; dispensation for Mr Eastwood was not granted.

Orders

  • ['At the hearing on 5 June 2018 the Court do determine only the following questions: (a) whether there is reason for questioning whether there is really a debt pursuant to the order for indemnity costs made by Master Sanderson on 12 June 2014; and (b) if not, whether a sequestration order should be made in respect...