Kimber v Clark as trustee of the estate of Kimber

Case [2025] FCA 979

FEDERAL COURT OF AUSTRALIA

Kimber v Clark as trustee of the estate of Kimber [2025] FCA 979  

Appeal from: Kimber v Clark in his capacity as trustee of the property of Kimber (No 3) [2025] FCA 86
File number: NSD 298 of 2025
Judgment of: CHARLESWORTH J
Date of judgment: 20 August 2025
Catchwords: APPEAL AND NEW TRIAL – application for leave to appeal from three interlocutory orders – order summarily dismissing an application for annulment of a bankruptcy – bankruptcy brought about by debtor’s own petition – applicant unable to demonstrate any arguable appealable error affecting critical findings relating to delay and solvency – proposed appeal cannot succeed without showing error in those findings – proposed appeal from costs orders made upon dismissal of an interlocutory injunction application – applicant attempting to show an injunction ought to have been granted – no reasonable prospect of any appeal relating to costs succeeding – appeal not enjoying sufficient prospects to justify reconsideration of orders by a Full Court  
Legislation:

Bankruptcy Act 1966 (Cth) ss 116, 153B, 154

Federal Court of Australia Act 1976 (Cth) ss 24, 31A

Federal Court Rules 2011 (Cth) rr 16.01, 16.21, 26.01

Cases cited:

ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30

Australian Securities and Investments Commission v Cassimatis (2013) 220 FCR 256

Burgess v Minister for Immigration and Border Protection (2018) 259 FCR 197

Clark v Aravanis in their capacity as joint and several trustees of the property of Kimber v Owners Corporation SP48216 (No 2) [2021] FedCFamC2G 62

Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337

Isbester v Knox City Council (2015) 255 CLR 135

Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564

Kimber v Clark in his capacity as trustee of the property of Kimber [2022] FCAFC 198

Kimber v Clark in his capacity as trustee of the property of Kimber [2023] FCA 310

Kimber v Clark in his capacity as trustee of the property of Kimber (No 3) [2025] FCA 86

Kimber v The Owners Strata Plan No 48216 (No 2) [2018] FCA 406

Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2009) 178 FCR 401

Luck v University of Southern Queensland (2009) 176 FCR 68

Zoia v Commonwealth Ombudsman Department (2007) 99 ALD 229

Division: General Division
Registry: New South Wales
National Practice Area: Commercial and Corporations
Sub-area: General and Personal Insolvency
Number of paragraphs: 75
Date of last submission: Applicant:  7 August 2025
Date of hearing: 31 July 2025
Counsel for the Applicant: The Applicant appeared in person
Counsel for the Respondent: The Respondent filed a Submitting Notice

ORDERS

NSD 298 of 2025
BETWEEN:

JANELLE KIMBER

Applicant
AND:

ALEXANDER CLARK AND ANDREW ARAVANIS (JOINT AND SEVERAL TRUSTEES OF FOLIO 110/SP48216 THE ESTATE OF JANELLE MARY KIMBER)

Respondent

ORDER MADE BY:

CHARLESWORTH J

DATE OF ORDER:

20 AUGUST 2025

THE COURT ORDERS THAT:

1.The application is dismissed.

2.If so advised,…

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Kimber v Clark as trustee of the estate of Kimber [2025] FCA 979
Case
[2025] FCA 979
Decision Date

CaseChat Overview and Summary

The case of Kimber v Clark as trustee of the estate of Kimber involves an appeal against three interlocutory orders made in a bankruptcy proceeding. Ms Kimber sought to appeal the summary dismissal of her application for the annulment of her bankruptcy, the costs associated with the dismissal of her application for an interlocutory injunction, and an order denying her leave to appeal from those interlocutory orders. The court was required to determine whether Ms Kimber's application for leave to appeal had sufficient prospects of success, and whether the appeal could rectify any alleged errors in the interlocutory orders.

The court found that Ms Kimber, despite being self-represented and experienced in litigation, had failed to make a timely application for judicial disqualification due to apprehended bias. The court also found that Ms Kimber's allegations of misconduct by the Trustees and the Owners Corporation were not substantiated by sufficient evidence. The court concluded that there was no arguable error in the primary judge's findings regarding the delay and solvency of Ms Kimber's application for annulment, and that the proposed appeal could not succeed without showing error in those findings. The court also found that the proposed appeal from the costs orders made upon dismissal of the interlocutory injunction application did not have a reasonable prospect of success.

The court dismissed the application for leave to appeal, finding that the appeal did not enjoy sufficient prospects to justify reconsideration of the orders by a Full Court. The court also ordered that if the respondent wished to apply for costs, they were to do so within 21 days. The court did not make any order as to costs if no such application was made. The entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The application is dismissed.

2. If so advised, the respondent is to file and serve any application for costs within 21 days.

3. In the event that no application is filed in accordance with paragraph 2, there be no order as to costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Separately and discretely, it is plain from the history of the proceeding at first instance that Ms Kimber was an experienced litigant who was aware of her right to seek to have a judicial officer disqualified for apprehended bias. Indeed, she made an application that Perry J recuse herself, then withdrew the application for reasons that are not said to be related to any wrongdoing on the part of the Trustees or Perry J. Notwithstanding her status as self-represented litigant, I consider Ms Kimber’s failure to make and press an apprehended bias application at first instance, founded on facts then known, weighs against the exercise of discretion to now grant leave to appeal on grounds of apprehended bias expressly abandoned at first instance.Alleged erroneous application of summary judgment principles Next, Ms Kimber alleged that whilst Perry J correctly stated the principles guiding the Court’s power to award summary judgment, her Honour misapplied those principles when concluding that her action could not succeed. That argument proceeded from the premise that Perry J ought to have found that there was an adequate evidentiary basis to substantiate Ms Kimber’s allegations of wrongdoing by the Owners Corporation and the Trustees such that the annulment application ought to have been permitted to proceed to a trial in the nature of a wide-ranging enquiry into those issues. This complaint was inextricably connected with arguments that Perry J had failed to have regard to relevant evidence, including evidence of wrongdoing on the part of others. Ms Kimber submitted that each primary judge had failed to consider “serious misconduct allegations” as “valid legal argument” and instead treated them as “a personal grievance or beliefs”. That submission must also be rejected. By way of illustration, in the course of submissions on this application, Ms Kimber was invited to take the Court to the evidence upon which she relied to establish an allegation that Mr Clark had induced her to lodge the debtor’s petition in circumstances that were unconscionable. Her submissions were to the effect that Mr Clark had assured her that he would adjudicate (presumably in her favour) the judgment debt relied upon by the Owners Corporation in support of the creditor’s petition that was then on foot. It may be accepted that evidence in support of such an allegation may take the form of testimony, and that where there is a contest of credible testimony on a critical factual question, summary judgment would ordinarily not be ordered. Notwithstanding the opportunity provided to Ms Kimber, she was unable to identify evidence (including in the nature of testimony) to furnish arguable support for a finding that she was wrongly induced to present a debtor’s petition, of sufficient cogency that could withstand the Trustees’ summary judgment application. To the extent that the same allegation was made in the proceeding at first instance, it was properly characterised as scandalous or vexatious. At best, it may be a product of Ms Kimber’s subjective but incorrect understanding that the Trustee would assume the role of an advocate, advancing her interests over those of her creditors in the administration of her bankrupt estate. In large part her submissions were underscored by that incorrect assumption, amounting to a complaint that the Owners Corporation’s debt ought not to have been proved in the bankruptcy. The admission of that proof of debt has not been shown to be an act of wrongdoing on the part of the Trustees. To the contrary, the Trustees disputed the proof of debt, and later obtained the approval of Driver J for the settlement of that dispute. A Full Court dismissed Ms Kimber’s appeal from those orders. The circumstance that Ms Kimber was dissatisfied with the outcome of that process does not support a finding of wrongdoing on the Trustees’ part, nor does it provide an arguable basis for the annulment of the bankruptcy.

Ratio Decidendi

Legal Principle Established

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