Frigger v Banning (No 2) [2017] FCA 1639

Frigger v Banning (No 2) [2017] FCA 1639

The interlocutory application to stay delivery of judgment was dismissed because the applicants misconstrued Lean v Banning Holdings Pty Ltd [2017] WASC 353: that judgment dismissed an application against Banning Holdings Pty Ltd and did not hold that Banning Holdings Pty Ltd was disqualified from the benefit of the judgment by having only one director. The observations about possible costs consequences of an invalid resolution were not the holding contended for. In any event, the leave to appeal application required the Court to decide whether leave should be granted even if Banning Holdings Pty Ltd and Professional Services of Australia Pty Ltd had not opposed it.

Jurisdiction
Australia
Judgment Date
21 December 2017
Procedural Posture
Application for Leave to Appeal and Interlocutory Application / Judgment on Interlocutory Application Seeking to Stay Delivery of Judgment; Orders on Leave to Appeal Application
Outcome
The applicants' application for leave to appeal was dismissed; the applicants' interlocutory application dated 18 December 2017 was dismissed; costs were ordered against the applicants.
Legal Topics
['leave to Appeal' 'interlocutory Application' 'stay of Delivery of Judgment' 'corporate Resolutions' 'quorum' 'costs']
['commercial and Corporations' 'general and Personal Insolvency'] ['leave to Appeal' 'interlocutory Application' 'stay of Delivery of Judgment' 'corporate Resolutions' 'quorum' 'costs']

Case Brief

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Procedural Posture

Application for Leave to Appeal and Interlocutory Application / Judgment on Interlocutory Application Seeking to Stay Delivery of Judgment; Orders on Leave to Appeal Application

Legal Issues

  1. 1 ["Whether the applicants' interlocutory application should stay delivery of the judgment on their leave to appeal application." 'Whether Lean v Banning Holdings Pty Ltd [2017] WASC 353 supported declarations that resolutions by Banning Holdings Pty Ltd and Professional Services of Australia Pty Ltd to defend the leave to appeal application were void because a quorum could not be fixed by less than two directors.' "Whether alleged invalidity of the respondents' decisions to oppose the leave to appeal application affected the Court's determination of leave."]

Ratio Decidendi

The interlocutory application to stay delivery of judgment was dismissed because the applicants misconstrued Lean v Banning Holdings Pty Ltd [2017] WASC 353: that judgment dismissed an application against Banning Holdings Pty Ltd and did not hold that Banning Holdings Pty Ltd was disqualified from the benefit of the judgment by having only one director. The observations about possible costs consequences of an invalid resolution were not the holding contended for. In any event, the leave to appeal application required the Court to decide whether leave should be granted even if Banning Holdings Pty Ltd and Professional Services of Australia Pty Ltd had not opposed it.

Court Disposition

The applicants' application for leave to appeal was dismissed; the applicants' interlocutory application dated 18 December 2017 was dismissed; costs were ordered against the applicants.

Orders

  • ["The applicants' application for leave to appeal from orders 1, 2 and 3 of the orders of Barker J made on 8 March 2017 is dismissed." "The applicants' interlocutory application dated 18 December 2017 is dismissed." 'The applicants are to pay all of the costs and expenses of the respondents of and incidental to the...