Kimber v Owners Strata Plan No 48216

Link copied
Case Copied 37 min read

FEDERAL COURT OF AUSTRALIA

Kimber v The Owners Strata Plan No. 48216 [2016] FCA 1090

File number: NSD 562 of 2016
Judge: PERRY J
Date of judgment: 8 September 2016
Catchwords: PRACTICE AND PROCEDURE – summary dismissal –where amended application has no reasonable prospect of success.  
Legislation:

Bankruptcy Act 1966 (Cth) ss 30(1), 40, 41

Civil Procedure Act 2005 (NSW) s 101

Federal Court of Australia Act 1976 (Cth) ss 31A(2) 35A(1), 37P(6)

Bankruptcy Regulations 1996 (Cth) reg 4.02

Federal Court (Bankruptcy) Rules 2016 (Cth) r 2.02(3)

Federal Court Rules 2011 (Cth) rr 1.34, 16.02, 16.21, 16.59, 26.01

Cases cited:

AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68

Arifin v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCAFC 61

Banque Commerciale SA en Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279

Eliezer  v University of Sydney [2015] FCA 1045

Hamod v New South Wales [2011] NSWCA 375

Nugawela v Deputy Commissioner of Taxation [2016] FCA 578

Ruddock v Vadarlis (No 2) [2001] FCA 1865; (2001) 115 FCR 229
Date of hearing: 1 September 2016
Registry: New South Wales
Division: General Division
National Practice Area: Commercial and Corporations
Sub-area: General and Personal Insolvency
Category: Catchwords
Number of paragraphs: 74
Counsel for the Applicant: The applicant appeared in person
Solicitor for the Respondent: Mr D Radman, solicitor of Grace Lawyers Pty Ltd

ORDERS

NSD 562 of 2016
BETWEEN:

JANELLE MARY KIMBER

Applicant
AND:

THE OWNERS SP 48216 - "OWNERS CORPORATION"

Respondent

JUDGE:

PERRY J

DATE OF ORDER:

8 SEPTEMBER 2016

THE COURT ORDERS THAT:

1.The proceeding is dismissed pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth).

2.The applicant is to pay the respondent’s costs.

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


REASONS FOR JUDGMENT

PERRY J:

1         INTRODUCTION

[1]

2         EVIDENCE

[6]

3         BACKGROUND

[9]

4         CONSIDERATION

[33]

4.1      Matters not in issue

[33]

4.2      Relevant principles

[39]

4.3      Should the amended application be summarily dismissed?

[56]

4.3.1    The challenge to the costs order made by the Registrar on 4 May 2016

[58]

4.3.2    The remainder of the amended application

[59]

4.3.3    Is there any defect or irregularity apparent in, or is there other evidence of a basis for setting aside, the bankruptcy notice?

[68]

4.4      Are the deficiencies in the amended application incurable?

[72]

5         CONCLUSION

[74]

1.               INTRODUCTION

  1. The applicant, Ms Janelle Mary Kimber is the owner of Lot 110 in the Strata Plan No.48216.  The respondent is the Owners Corporation of Strata Plan No. 48216 (the Owners Corporation).

  2. On 4 May 2016, the Registrar dismissed Ms Kimber’s application to set aside a bankruptcy notice issued against her in respect of a judgment debt owed to the Owners Corporation. The Registrar also discharged an order made on 20 April 2016 extending the time for compliance by Ms Kimber with the requirements of the bankruptcy notice and ordered that Ms Kimber pay the Owners Corporation’s costs. 

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Kimber v Owners Strata Plan No 48216 and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2016] FCA 1090
Decision Date

CaseChat Overview and Summary

Ms Janelle Kimber, the owner of Lot 110 in Strata Plan No.48216, filed an amended interlocutory application seeking to challenge a bankruptcy notice issued against her and to contest other orders made by the Registrar of the Federal Circuit Court. The Owners Corporation of Strata Plan No. 48216, the respondent, filed a summary dismissal application, seeking that the amended application be struck out and the proceeding dismissed or, alternatively, that summary judgment be entered against Ms Kimber. The central issue before the Court was whether the amended application had any reasonable prospect of success and whether it should be dismissed for being vexatious and an abuse of process. The Court found that the amended application was ambiguous, likely to cause delay, disclosed no cause of action, and was vexatious. The claims made by Ms Kimber were vague and conclusory, with no evidence provided to support them. Consequently, the Court dismissed the proceeding under s 31A(2) of the Federal Court of Australia Act 1976 (Cth). Additionally, Ms Kimber was ordered to pay the respondent's costs.

In Kimber v Owners Strata Plan No 48216, the Court dismissed Ms Kimber's amended application for lack of prospect of success, ambiguity, potential for delay, absence of a cause of action, and vexatious nature. The Court found that Ms Kimber's claims were unsupported by evidence and were vague and conclusory. The proceeding was dismissed under s 31A(2) of the Federal Court of Australia Act 1976 (Cth), and Ms Kimber was ordered to pay the respondent's costs.

Orders

Orders of the court

1. The proceeding is dismissed pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth).

2. The applicant is to pay the respondent’s costs.

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

Background

Background to the litigation

Ms Kimber had also filed an earlier affidavit affirmed and filed on 20 April 2016. After the hearing, the Court received an email from Ms Kimber dated 5 September 2016 which indicated that she was acting on the erroneous assumption that she could rely in opposition to the summary dismissal application only upon one of the affidavits filed by her. Given that misapprehension and the oral submission by the Owners Corporation at the hearing to the effect that despite ample opportunities, Ms Kimber had not put forward any evidence to support her claims disputing the underlying debt to the Owners Corporation and thereby the judgment debt underlying the Bankruptcy Notice, the Court wrote to the parties to determine whether Ms Kimber in fact wished to rely upon both affidavits filed by her in the proceedings and to ascertain the position of the Owners Corporation. The Owners Corporation responded noting that the 20 April 2016 affidavit contained submissions and not evidence, but did not object to the Court receiving that affidavit provided the Court did not read any of the paragraphs or annexures relating to settlement discussions and mediation. Ms Kimber responded but did not indicate whether she wished to rely on the affidavit of 20 April 2016. Rather, she sought to make further submissions and adduce further evidence which I have not taken into consideration as no leave was granted for further submissions or evidence to be filed. In the circumstances, I have taken into account only Ms Kimber’s affidavit filed 30 May 2016 including the annexures thereto in evidence against the Owners Corporation’s motion. 3. BACKGROUND These proceedings originated in proceedings instituted by the Owners Corporation in 2009 in the Local Court of New South Wales against Ms Kimber for unpaid levies, interest and costs in the sum of $2521.58 (the Local Court proceeding). Default judgment was entered by the Local Court in the sum of $952.31 on 25 May 2009 (the Default Judgment). On 16 September 2013, Ms Kimber filed a notice of motion to set aside the Default Judgment. At the hearing of the notice of motion on 10 October 2013, the Local Court made orders setting aside the Default Judgment, requiring a defence to be filed within 28 days and for costs to be costs in the cause. The last of these orders meant that the party who was ultimately successful in the litigation would bear the other party’s costs of Ms Kimber’s notice of motion. The solicitors for the Owners Corporation in these proceedings, Grace Lawyers, were also the solicitors in the Local Court proceeding. Ms Kimber filed a defence in the Local Court proceeding on 7 November 2013 disputing service of the levy notices and that the Owners Corporation had not received the outstanding levies. She also denied any liability for the costs incurred by the Owners Corporation of recovery on the basis that the strata managing agent for the Owners Corporation was unreasonable and unprofessional and had caused the applicant personal and professional harm and loss. That defence was struck out on 13 December 2013 on application by the Owners Corporation and the parties were directed to amend the claim and defence.

Evidence

Evidence Before The Court

For the reasons set out below, I consider that Ms Kimber’s amended application suffers from all of these deficiencies and difficulties and the proceeding should be summarily dismissed under s 31A(2) of the Federal Court Act. Furthermore, in so far as Ms Kimber seeks to challenge the Registrar’s decision to dismiss the application to set aside the bankruptcy notice, she seeks to raise claims for which no evidence has been proffered before the Registrar or in this Court to support the vague and conclusory allegations of dishonest and other improper conduct made against the Owners Corporation and others. 2. EVIDENCE The Owners Corporation relies in support of the summary dismissal application upon the affidavit of Sylvia Quang sworn on 22 April 2016. Ms Quang is a solicitor at Grace Lawyers Pty Ltd which acts for the Owners Corporation. That affidavit sets out the evidence as to the basis for the bankruptcy notice, its service, the alleged act of bankruptcy, and the circumstances which led to the filing of a creditor’s petition in the Federal Circuit Court prior to the resolution of these proceedings. Ms Kimber relies in opposition to the motion upon her affidavit dated 4 April 2016 (but apparently affirmed on 19 May 2016) and filed on 30 May 2016. In addition, Ms Kimber indicated at the hearing that she wished to lead oral evidence from a member of the executive committee. No affidavit from the member had been filed in advance of the hearing and no notice had been given of the intention to seek to lead evidence from him. Ms Kimber explained that the evidence she wished to lead from the proposed witness was “about the accusations of my documents being ambiguous and vague.” The documents said to be “ambiguous and vague” in issue on the summary dismissal application are Ms Kimber’s pleadings. I ruled against permitting Ms Kimber to lead evidence from the proposed witness on the ground that it was a matter of looking at the documents on their face to determine whether or not they were ambiguous and vague, as the Owners Corporation contended, and not a matter for evidence. Such evidence would have been, in other words, irrelevant. Ms Kimber had also filed an earlier affidavit affirmed and filed on 20 April 2016. After the hearing, the Court received an email from Ms Kimber dated 5 September 2016 which indicated that she was acting on the erroneous assumption that she could rely in opposition to the summary dismissal application only upon one of the affidavits filed by her. Given that misapprehension and the oral submission by the Owners Corporation at the hearing to the effect that despite ample opportunities, Ms Kimber had not put forward any evidence to support her claims disputing the underlying debt to the Owners Corporation and thereby the judgment debt underlying the Bankruptcy Notice, the Court wrote to the parties to determine whether Ms Kimber in fact wished to rely upon both affidavits filed by her in the proceedings and to ascertain the position of the Owners Corporation. The Owners Corporation responded noting that the 20 April 2016 affidavit contained submissions and not evidence, but did not object to the Court receiving that affidavit provided the Court did not read any of the paragraphs or annexures relating to settlement discussions and mediation. Ms Kimber responded but did not indicate whether she wished to rely on the affidavit of 20 April 2016. Rather, she sought to make further submissions and adduce further evidence which I have not taken into consideration as no leave was granted for further submissions or evidence to be filed. In the circumstances, I have taken into account only Ms Kimber’s affidavit filed 30 May 2016 including the annexures thereto in evidence against the Owners Corporation’s motion. 3. BACKGROUND

Decision

Reasons for decision

The Local Court proceeding was heard on 7 May 2014. On that day the Court made orders dismissing Ms Kimber’s motion filed on 5 May 2014, refusing leave to file the statement of cross-claim, and found that there was no evidence to support her allegations, and no cause of action, against the strata managing agent and Grace Lawyers. Judgment was entered in favour of the Owners Corporation in the sum of $10,767.00, being comprised of $10,000 for recovery expenses plus $767.00 in costs pursuant to the Local Court scale (the Local Court judgment). The time to pay was 28 days. On 19 February 2016, Bankruptcy Notice BN 188465 was issued in respect of the Local Court judgment (the Bankruptcy Notice). The notice was addressed to Ms Kimber, identified the creditor as “The Owners – Strata Plan No 48216”, and set out the claims as follows: The notice included a schedule of post-judgment interest calculation pursuant to s 101 of the Civil Procedure Act 2005 (NSW) as follows: A copy of the judgment which formed the basis of the Bankruptcy Notice was attached to the Notice. The Bankruptcy Notice was served personally on Ms Kimber on 17 March 2016. An act of bankruptcy was allegedly committed 21 days later on 7 April 2016. On 18 April 2016, a creditor’s petition on behalf of the Owners Corporation was lodged online in the Federal Circuit Court. On the same day, but before lodging the creditor’s petition, Grace Lawyers conducted searches of the records of the Federal Court and Federal Circuit Court with respect to Ms Kimber. Those searches disclosed that no applications had been filed by Ms Kimber in relation to the Bankruptcy Notice. The creditor’s petition was accepted for filing on 19 April 2016 and listed for hearing in the Federal Circuit Court on 24 May 2016. Ms Kimber’s application to set aside the Bankruptcy Notice in the Federal Court was accepted for filing on 20 April 2016 and served on 21 April 2016. However, the application had been lodged for filing some time earlier on 5 April 2016. Due it would seem to an error in the title of the proceedings on Ms Kimber’s application, the application was not accepted for filing until 20 April 2016 when the title of the proceedings was corrected. The delay was unfortunate because, as Counsel for the Owners Corporation accepted, the Owners Corporation would not have lodged the creditor’s petition had Ms Kimber’s application been accepted for filing earlier and therefore been discovered by Grace Lawyers when they conducted their searches on 18 April 2016. It is clear that Ms Kimber felt some distress because the creditor’s petition had been lodged before her application was determined and this was one of the complaints which she raised in oral submissions. Nonetheless, the Owners Corporation properly accepted that they could not press the creditor’s petition until Ms Kimber’s application in this Court was finally resolved. Orders were also made on 20 April 2016 by the Registrar extending the time for compliance by Ms Kimber with the requirements of the Bankruptcy Notice to 4 May 2016 when the orders the subject of the amended application were made. While Ms Kimber raised an issue at the hearing before me as to why the extension was only until 4 May 2016, it is apparent that that date was selected because that was the day on which Ms Kimber’s application was listed before the Registrar for determination.

Ratio Decidendi

Legal Principle Established

The applicant, Ms Janelle Mary Kimber is the owner of Lot 110 in the Strata Plan No.48216. The respondent is the Owners Corporation of Strata Plan No. 48216 (the Owners Corporation). On 4 May 2016, the Registrar dismissed Ms Kimber’s application to set aside a bankruptcy notice issued against her in respect of a judgment debt owed to the Owners Corporation. The Registrar also discharged an order made on 20 April 2016 extending the time for compliance by Ms Kimber with the requirements of the bankruptcy notice and ordered that Ms Kimber pay the Owners Corporation’s costs. By an amended interlocutory application dated 11 July 2016 (the amended application), Ms Kimber appears to ask this Court to review the Registrar’s decision made on 4 May 2016 (albeit that only the costs order made by the Registrar is expressly challenged) and seeks a range of other orders which the Owners Corporation submits go well beyond the subject matter of the original application to the Registrar to set aside the bankruptcy notice and the power of this Court to make. By an application made orally on 27 July 2016 (the summary dismissal application), the Owners Corporation seeks orders that Ms Kimber’s amended application be struck out and the proceeding dismissed pursuant to s 37P(6) of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act). Alternatively, the Owners Corporation seeks summary judgment pursuant to s 31A(2) of the Federal Court Act. The Owners Corporation also seeks an order that Ms Kimber pay its costs. The orders sought are confirmed by the outline of submissions filed by the Owners Corporation on 11 August 2016. The basis on which the orders are sought are that the amended application “is ambiguous, is likely to cause prejudice, embarrassment or delay in the proceeding, discloses no cause of action and is an abuse of court process.” The Owners Corporation also alleges that the amended application is vexatious and contains scandalous allegations against it, its officers, officers of the Court and others. For the reasons set out below, I consider that Ms Kimber’s amended application suffers from all of these deficiencies and difficulties and the proceeding should be summarily dismissed under s 31A(2) of the Federal Court Act. Furthermore, in so far as Ms Kimber seeks to challenge the Registrar’s decision to dismiss the application to set aside the bankruptcy notice, she seeks to raise claims for which no evidence has been proffered before the Registrar or in this Court to support the vague and conclusory allegations of dishonest and other improper conduct made against the Owners Corporation and others. 2. EVIDENCE The Owners Corporation relies in support of the summary dismissal application upon the affidavit of Sylvia Quang sworn on 22 April 2016. Ms Quang is a solicitor at Grace Lawyers Pty Ltd which acts for the Owners Corporation. That affidavit sets out the evidence as to the basis for the bankruptcy notice, its service, the alleged act of bankruptcy, and the circumstances which led to the filing of a creditor’s petition in the Federal Circuit Court prior to the resolution of these proceedings.