Clark and Aravanis in their capacity as joint and several trustees of the property of Kimber v Owners Corporation SP48216 (No 3)
[2021] FedCFamC2G 199
•27 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Clark and Aravanis in their capacity as joint and several trustees of the property of Kimber v Owners Corporation SP48216 (No 3) [2021] FedCFamC2G 199
File number(s): SYG 723 of 2021 Judgment of: JUDGE DRIVER Date of judgment: 27 October 2021 Catchwords: BANKRUPTCY – Application in a Case to set aside previous orders because of alleged fraud – Application in a Case summarily dismissed Legislation: Bankruptcy Act 1966 (Cth)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2001 (Cth)
Division: Division 2 General Federal Law Number of paragraphs: 12 Date of hearing: 27 October 2021 Place: Sydney Counsel for the Applicant: Mr J T Johnson Solicitors for the Applicant: Daniela Fazio Lawyers Pty Ltd Solicitor for the First Respondent: Mr D Radman of Grace Lawyers Pty Limited The Second Respondent appeared in person ORDERS
SYG 723 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ALEXANDER DAVID CLARK AND ANDREW ARAVANIS IN THEIR CAPACITY AS JOINT AND SEVERAL TRUSTEES OF THE PROPERTY OF JANELLE MARY KIMBER
Applicant
AND: OWNERS CORPORATION SP 48216
First Respondent
JANELLE MARY KIMBER
Second Respondent
ORDER MADE BY:
JUDGE DRIVER
DATE OF ORDER:
27 OCTOBER 2021
INTERLOCUTORY ORDERS:
1.The amended Application in a Case filed on 8 October 2021 is summarily dismissed.
2.There be no order as to costs of the amended Application in a Case.
3.No further application by Ms Kimber relating to the administration of her estate under the Bankruptcy Act 1966 (Cth) be accepted for filing by the Court, except by leave.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(Revised from transcript)JUDGE DRIVER:
On 7 September 2021, I made orders for the sale of property known as Unit 110, 450 Pacific Highway, Lane Cove in New South Wales. I was satisfied that those orders were necessary in order to advance the administration of the estate of Janelle Mary Kimber. Ms Kimber was a participant in those proceedings and had raised various other issues in an Application in a Case which I dismissed with no order as to costs.
At the same time, I dealt with an issue of Ms Kimber’s interest in the subject property. There was also an issue of costs due to the substantial creditor, the first respondent to these proceedings (the Owners Corporation), and on 10 September 2021, I dealt with orders in chambers, having given that opportunity on 7 September, to resolve an issue in dispute between the trustee and the creditor, as to outstanding costs.
On 4 October 2021, Ms Kimber wrote to the registry with a proposed Application in a Case, asking that the application be lodged under rule 17.05 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2001 (Cth) (Rules) for hearing by this Court other than by way of an appeal. Subsequently, an amended application in a case was filed on 8 October 2021.
In that application, Ms Kimber seeks orders from this Court setting aside or varying the orders that I made on 7 and 10 September 2021, on the basis that the orders were obtained by fraud. The application is thus made under rule 17.05(2)(b) of the Rules. The application is supported by an affidavit made by Ms Kimber on 20 October 2021. There are extensive exhibits to that affidavit, which Ms Kimber has referred to in oral submissions today.
The matter came before me today for first court date directions. I gave Ms Kimber the opportunity to address the Court which she did for approximately one hour, and I gave the opportunity for the representatives of the trustees and the substantial creditor, which they exercised relatively briefly.
I listened in vain for anything new from Ms Kimber, pointing to the allegation that the orders I made on 7 and 10 September were obtained by fraud. Rather, Ms Kimber sought to reagitate the long history of her dispute with the Owners Corporation, going back, as she noted, to 2013, and extending in some detail to bankruptcy proceedings against her in 2016 and 2018.
The present application is, in my view, nothing more than an attempt to continue the long‑standing dispute. In my view, Ms Kimber’s interests, as well as those of her creditors, would be best served by her cooperating with her trustees in the ongoing administration of her estate. It is noteworthy that Ms Kimber was bankrupted on her own petition. There is no doubt that significant debts are owing and need to be dealt with by the trustees. That was the point of the orders that I made on 7 and 10 September.
It would be disadvantageous, both to Ms Kimber and her creditors, for the matters which have already been litigated to exhaustion since 2013, to be further litigated. Regrettably, however, it is plain from Ms Kimber’s oral submissions that if she is not satisfied with the outcome of her latest application she anticipates taking further proceedings.
There is, in my view, no substance in the amended application in a case filed on 8 October 2021, and it should be dismissed summarily, I so order.
I have considered whether a costs order should be made. Ms Kimber’s previous Application in a Case dealt with on 7 September was dismissed with no order as to costs. The making of a costs order now would, in my view, simply provide a further issue for dispute. Accordingly, there will be no order as to costs following the relatively prompt dismissal of the current Application in a Case.
The question remains whether anything further needs to be done in order to prevent further unnecessary and vexatious proceedings. In my view, there does. The trustees need to be allowed to complete the administration on Ms Kimber’s estate. The dispute between her and the Owners Corporation should not be further agitated, at least in the context of the administration of the estate.
I will order that no further application by Ms Kimber relating to the administration of her estate under the Bankruptcy Act 1966 (Cth) be accepted for filing by the Court, except by leave.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver. Associate:
Dated: 29 October 2021
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