Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Frigger v Kitay (Liquidator) [2020] FCA 482 File number: WAD 549 of 2019
Judge: COLVIN J
Date of judgment: 15 April 2020
Catchwords: CORPORATIONS - application by plaintiff for orders to effect transfer of property to superannuation fund and for damages - where plaintiff is bankrupt member of fund - where corporate trustee of fund unable to obtain legal representation - whether there are special circumstances which permit plaintiff in capacity as beneficiary of fund to bring application - where no lack of willingness shown on part of trustee to bring application - whether reasonable basis upon which Court should exercise discretion to make orders under s 90-15 of Insolvency Practice Schedule (Corporations) - application dismissed BANKRUPTCY AND INSOLVENCY - where claim by bankrupts as former trustees of fund has been stayed by operation of s 60 of the Bankruptcy Act 1966 (Cth) - where counterclaim still on foot by liquidator of company claimed to be former trustee of fund - effect of statutory stay on counterclaim - effect of statutory stay on claims by new trustee of the fund PRACTICE AND PROCEDURE - where claims the subject of present application concern same issues raised by plaintiff in ongoing proceedings in Supreme Court - whether proceedings should be dismissed as abuse of process
Legislation: Bankruptcy Act 1966 (Cth) s 60 Insolvency Practice Schedule (Corporations) ss 90-15, 90-20 Trustees Act 1962 (WA) s 10 Federal Court Rules 2011 (Cth)
Cases cited: Alexander v Perpetual Trustees WA Limited [2004] HCA 7; (2004) 216 CLR 109 Aurel Forras Pty Ltd v Graham Karp Developments [1975] VR 202 Berryman v Zurich Australia Ltd [2016] WASC 196 Carna Group Pty Ltd v The Griffin Coal Mining Company [2019] FCA 1276 Century Insurance Ltd (in provisional liq) v The New Zealand Guardian Trust Ltd [1997] FCA 1020 Duckworth v Water Corporation [2012] WASC 30 Enviro Pak Pty Ltd v New Horticulture Pty Ltd [2013] FCA 306 Freeman v Joiner [2005] FCAFC 149 Fried v National Australia Bank Limited [2001] FCA 907; (2001) 111 FCR 322 Frigger v Banning (No 8) [2019] FCA 1319 Frigger v Banning (No 9) [2019] FCA 1611 Frigger v Kitay [No 15] [2019] WASC 384 Frigger v Trenfield (No 2) [2019] FCA 2009 Frigger v Trenfield [2019] FCA 1746 Frigger; in the matter of an application by Frigger [2019] FCA 1730 Garrett v Commissioner of Taxation [2015] FCA 665; (2015) 233 FCR 226 Hayim v Citibank NA [1987] AC 730 Henry v Henry [1996] HCA 51; (1996) 185 CLR 571 Johnson Tiles Pty Ltd v Esso Australia Ltd [1999] FCA 56 Kennon v Spry [2008] HCA 56; (2008) 238 CLR 366 McDonnell & East Ltd v McGregor [1936] HCA 28; (1936) 56 CLR 50 Mercedes Holdings Pty Limited v Waters (No 2) [2010] FCA 472; (2010) 186 FCR 450 Nugawela v Deputy Commissioner of Taxation [2018] FCA 1457 Pharm-a-Care Laboratories Pty Ltd v Commonwealth of Australia (No 12) [2012] FCA 289 Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 5] [2020] WASC 39 Sterling Pharmaceuticals Pty Ltd v Boots Company (Australia) Pty Ltd [1992] FCA 71; (1992) 34 FCR 287 TAL Life Ltd v Shuetrim [2016] NSWCA 68; (2016) 91 NSWLR 439 Termi-Mesh Australia Pty Ltd v Josu Manufacturing Pty Ltd [1999] FCA 1241 Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378
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