Kimber v The Owners Strata Plan No. 48216

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FEDERAL COURT OF AUSTRALIA

Kimber v The Owners Strata Plan No. 48216 [2017] FCA 364

Appeal from: Application for leave to appeal from: Kimber v The Owners Strata Plan No.48216 [2016] FCA 1090
File number: NSD 1689 of 2016
Judge: FARRELL J
Date of judgment: 7 April 2017
Catchwords: PRACTICE AND PROCEDURE – application for leave to appeal – where primary judge summarily dismissed application for review of a decision of Registrar not to set aside bankruptcy notice – whether primary judge’s decision is attended by sufficient doubt to warrant reconsideration by a Full Court – whether substantial injustice would result if leave were denied – where applicant seeks to challenge judgment debts forming the basis of bankruptcy notice – where applicant seeks to challenge bankruptcy notice pursuant to s 41(5) of the Bankruptcy Act 1966 (Cth) – leave granted in part
Legislation:

Bankruptcy Act 1966 (Cth) ss 41(2), 41(5)

Federal Court Act 1976 (Cth) s 31A, 35A(5), 35A(6)

Federal Court Rules 2011 (Cth) rr 35.13, 35.14

Strata Schemes Management Act 1996 (NSW) ss 76, 78, 79, 80
Cases cited:

AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68; (2016) 241 FCR 30

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

Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; (1991) 33 FCR 397

Hamod v New South Wales [2011] NSWCA 375

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

Owners – Strata Plan No 14120 v McCarthy [2017] FCA 242

Samsung Electronics Company Ltd v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238

Zdrilic v Hickie [2016] FCAFC 101

Date of hearing: 22 and 23 December 2016
Date of last submissions: 23 December 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: 50
Counsel for the Applicant: The Applicant appeared in person
Solicitor for the Respondent: Ms S Heimanis of Grace Lawyers

ORDERS

NSD 1689 of 2016
BETWEEN:

JANELLE MARY KIMBER

Applicant
AND:

THE OWNERS STRATA PLAN NO. 48216

Respondent

JUDGE:

FARRELL  J

DATE OF ORDER:

7 APRIL 2017

THE COURT ORDERS THAT:

1.The application for leave to appeal is granted but limited in substance to the ground of whether the primary judge erred in failing to consider whether the applicant had a reasonable prospect of success in her claim that bankruptcy notice BN 188465 was invalid having regard to s 41(5) of the Bankruptcy Act 1966 (Cth).

2.The application is otherwise dismissed.

3.The applicant file and serve a notice of appeal limited to the ground referred to in order 1 by 26 April 2017.

4.Costs of the application for leave to appeal be costs in the appeal.

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


REASONS FOR JUDGMENT

  1. Ms Kimber owns Lot 110 in strata plan 48216, a residential apartment on the north shore of Sydney.  She…

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Details
Case
[2017] FCA 364
Decision Date

CaseChat Overview and Summary

Kimber v The Owners Strata Plan No. 48216 involved an application by Ms Kimber for leave to appeal against the decision of a primary judge who dismissed her application for review of a decision of the Registrar not to set aside a bankruptcy notice. The case raised significant issues concerning the process of review of decisions of the Registrar and the criteria for granting leave to appeal. The primary issues were whether the primary judge's decision was attended by sufficient doubt to warrant reconsideration by a Full Court, and whether substantial injustice would result if leave were denied.

The primary judge dismissed Ms Kimber's application for review on the grounds that it was ambiguous, caused prejudice, lacked cause of action, and was an abuse of process. The primary judge also found that Ms Kimber's allegations against the Owners Corporation and others were conclusory and unsupported by evidence. The Full Court considered the principles relevant to the exercise of the discretion to grant leave to appeal, which included whether the primary judge's decision was attended by sufficient doubt and whether substantial injustice would result if leave were refused. The Full Court noted that the primary judge's decision was not clearly erroneous, but there was sufficient doubt to warrant reconsideration by a Full Court. The Full Court also found that substantial injustice would result if leave were denied, as Ms Kimber had a reasonable prospect of success in her claim that the bankruptcy notice was invalid under s 41(5) of the Bankruptcy Act 1966 (Cth).

The Full Court granted leave to appeal but limited the scope of the appeal to the issue of whether the primary judge erred in failing to consider whether Ms Kimber had a reasonable prospect of success in her claim that the bankruptcy notice was invalid. The Full Court also ordered that Ms Kimber file and serve a notice of appeal limited to the specified ground by a certain date and that the costs of the application for leave to appeal be costs in the appeal. The decision highlights the importance of clear and specific pleadings in legal proceedings and the need for careful consideration of applications for leave to appeal.

Orders

Orders of the court

1. The application for leave to appeal is granted but limited in substance to the ground of whether the primary judge erred in failing to consider whether the applicant had a reasonable prospect of success in her claim that bankruptcy notice BN 188465 was invalid having regard to s 41(5) of the Bankruptcy Act 1966 (Cth).

2. The application is otherwise dismissed.

3. The applicant file and serve a notice of appeal limited to the ground referred to in order 1 by 26 April 2017.

4. Costs of the application for leave to appeal be costs in the appeal.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The amended interlocutory application filed on 11 July 2016 considered by the primary judge contained 8 pages of material. The paragraphs were unnumbered. The following material appears on pages 2 to 3 (as written):I CLAIM THE RESPONDENT’S SOLICITORS HAVE AGAIN DENIED RELEVANT EVIDENCE IN COURT‘Where, a party is represented by competent and experienced lawyers and is opposed by a litigant in person, the party and its lawyers have a duty to assist the court to understand and give full and fair consideration to the submissions of the litigant in person. In particular such a party must refer the court to evidence in the proceedings that is relevant to those submissions”Serobian v Commonwealth Bank of Australia [2010] NSWCA at [42]‘Failure to provide information constitutes misleading or deceptive conduct where circumstances give rise to a reasonable expectation that if a relevant fact exists it will be disclosed to the other”Demagogue [Pty Ltd v Ramensky (1990) 39 FCR 31 at 41; 110 ALR 608 at 618] Gummow JThis precedent did not occur (again) on 4 May 2016 when the last Grace Lawyers solicitor [name] knew statements to be false, but still conscientiously argued against the ‘bona fide’ emails and addressee details that confirmed that the bankruptcy notice had been invalidated when the applicant had spoken to the strata manager, sending a ‘CC’ email to S Martin and all (available) strata committee members email addresses before 21 days on 1 April 2016 under Bankruptcy Act 1966 ss 41 (2) and (5) that related to the ‘overstated’ amount in the defective bankruptcy notice. 12 days later the ledger was dramatically altered (‘Jimmied to-fit’) the flawed bankruptcy notice.Evidence: Ledger 3 June 2106. Manager/Committee email 1 April 2016-Court email 6 April 2016Based on the relevant correspondence and on the ‘balance of probabilities’ I believe it is probable that [the Registrar’s] ‘irregular’ and unprofessional court conduct with me, his choice to ‘silently read’ evidence(s) handed up in court, his need for a ‘prompted response’ from the solicitor to the evidence and his use of irrelevant facts and ‘deliberations’ to try to justify a dismissal of a valid application, was because he had pre-decided that it was “in the court’s best interests” (and possibly the Registrar’s) to solve the complex legal implications of how to deal with the anomalous production of the ‘hybrid’ creditors petition SYG 931/2016 in the circuit court of 19 April 2016 issued as a result of the court’s administrative errors. A Statement of Reasons was formally requested by the applicant of the decision to dismiss, but this was refused by a duty registrar on behalf of [a named Registrar]. See Reasons To Order An Estoppel pg 4THE ORDER MADE BY REGISTRAR [NAME] ON 4 MAY 2016 FOR THE APPLICANT TO PAY THE RESPONDENT SOLICITOR COSTS SHOULD BE ANNULLED. THE APPLICANT’S COSTS SHOULD BE MET BY THE RESPONDENTS There does not appear to be a document which answers the description of “Ledger 3 June 2016” (on the assumption that 2106 is an error). There was, however, at pages 27 and 28 of the 30 May 2016 affidavit in an annexure marked “JMK 1” what purports to be a copy of the 1 April email and there is written at the top of the page “Email to “creditor” Section 41 Notifying the Creditor Re: overstated amount”. This document is described in a form of table of contents to annexure “JMK 1” as “S41(5) Email to the Owners”.

Decision

Reasons for decision

On 20 May 2016, Ms Kimber filed an interlocutory application seeking review of the Registrar’s decision. It was accompanied by an affidavit which she affirmed on 19 May 2016; it was accepted as filed on 30 May 2016. The affidavit comprises 471 pages, most of which are annexures. Many of the annexed documents have handwritten comments which appear to have been made by Ms Kimber. The annexures included Ms Kimber’s affidavit which was accepted as filed on 20 April 2016 and its annexures.The primary judge’s decision The primary judge noted that Ms Kimber’s application was ambiguous on the issue of whether Ms Kimber sought review only of the second order made by the Registrar on 4 May 2016 (relating to costs) or whether Ms Kimber sought review of all of the orders made by the Registrar on that day. Her Honour (at J[27]) also noted that:Ms Kimber sought other orders including an injunction against the strata management company for alleged negligence and unspecified dishonest and other conduct. However, the document … contains a very confused series of assertions and quotations, and it was not at all clear from the application precisely which orders made by the Registrar on 4 May 2016 were challenged and on what grounds. On 1 June 2016, a Registrar made orders including a grant of leave to Ms Kimber to file an amended interlocutory application to “seek review of all the orders made by [the Registrar] on 4 May 2016”. On 11 July 2016, Ms Kimber filed an amended application but the primary judge found that it did little to resolve the ambiguity. The Owners Corporation submitted that the other orders claimed in the amended application went well beyond the original application to the Registrar to set aside the bankruptcy notice and the power of the Court to make: J[3], [28]. The Owners Corporation sought to have Ms Kimber’s application struck out or summarily dismissed on the basis that the amended application was “ambiguous, is likely to cause prejudice, embarrassment or delay in the proceedings, discloses no cause of action and is an abuse of court process”. It also claimed that the amended application was vexatious and contained scandalous allegations against it, its officers, officers of the Court and others: J[4]. The primary judge accepted that the amended application suffered from all of those deficiencies and difficulties and that the preceding should be summarily dismissed under s 31A(2) of the Federal Court Act. Her Honour also found (at J[5]) that:… 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 or other improper conduct made against the Owners Corporation and others. The primary judge summarised the terms of the amended application filed on 11 July 2016 at J[29]-[32]. It is useful to set out the passages at [29] and [31]:29.... The amended application contained a preamble in which [Ms Kimber] asked the Court:…to assist to direct my case on a growing set of complex legal issues involving related matters that are in concurrently and presently in process in the Federal Court, Federal Circuit Court and the NSW Supreme CourtMuch needed relief from the oppressive circumstances of having multiple proceedings in multiple courts involving multiple parties and need to address court(s) errors took toll. I ask the Honourable Justice to decide to completely and finally determine ALL related matters by constitutional laws, to ‘reign in’ this controversy and to bring ALL matters together and deal with how an erroneous $154 set aside default created a $10000 judgement order, 2 bankruptcy notices and a creditors petition.(emphasis and errors in the original)…31.In the body of the amended application, Ms Kimber sought a number of orders which can be summarised as follows.(1)An order that the Registrar’s order on 4 May 2016 for Ms Kimber to pay the Owners Corporation’s solicitor’s costs be annulled and substituted by an order that the Owners Corporation pay Ms Kimber’s costs.(2)The joinder of parties to the proceedings, including the solicitors for the Owners Corporation, strata managing agents and members of the executive committee “to counter claim & cross claim or start vital ‘restoration’ proceedings”. These claims seem to be related to the request that the Federal Court “go behind” the judgment of the Local Court based on allegations which were described as scandalous by the solicitor for the Owners Corporation and appear to be the same claims which Ms Kimber had sought to raise in the Local Court proceeding in her proposed statement of cross-claim (see above at [11]–[13]).(3)An estoppel on the creditor’s petition before the Federal Circuit Court based upon (it would appear) the delay in the Federal Court accepting the application to set aside the bankruptcy notice for filing.(4)An order that these proceedings be “‘cross-vested’ with the power of accrued jurisdiction” — an order which seems to be related to the request in the preamble to the amended application for relief from multiple proceedings in multiple courts with multiple parties.(5)An injunction against the respondent’s solicitors and strata manager on the grounds that they continue to promote “immoral and illegal activities with no constitutional authorisation from Owners Strata Plan 48216”, have acted oppressively in issuing her with invoices for allegedly “false arrears”, and other allegations described by the Owners Corporation as scandalous.(6)An order that the Orders made on 20 April 2016 extending the date of compliance to 4 May 2016 not be discharged but that Ms Kimber be given additional time to submit further materials to “go behind the judgements”.

Ratio Decidendi

Legal Principle Established

The principles relevant to exercise of the discretion to grant leave to appeal are those adopted by the Full Court of this Court in Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; (1991) 33 FCR 397 at 398-400 and Samsung Electronics Company Ltd v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238 at [26]-[30]. In summary, they are:·whether the decision of the primary judge is attended with sufficient doubt to warrant it being reconsidered by a Full Court; and·whether substantial injustice would result if leave were refused, supposing the primary judge’s decision to be wrong.CONSIDERATION OF WHETHER THE PRIMARY JUDGE’S DECISION IS ATTENDED BY SUFFICIENT DOUBT TO WARRANT RECONSIDERATION BY A FULL COURT It is useful to note that neither party has suggested that the primary judge erred in her statement of the relevant principles to be applied to an application for summary dismissal under s 31A(2) of the Federal Court Act. Nor has any party suggested that the primary judge erred in her understanding that it was common ground that a review of a decision of a Registrar conducted under s 35A(5) and (6) of the Federal Court Act obliges the judge to conduct a hearing de novo of the application to set aside the bankruptcy notice. Owners Corporation submitted that both ground 2 of Ms Kimber’s application for leave and ground 1 of the proposed grounds of appeal fail to identify which findings of the primary judge are “manifestly unreasonable and unfair” or what the “errors of law” are or how the decision is “against the principles of constitutional, international laws and laws of natural justice” in relation to the power of a judge to “ensure fair conditions for a fair trial on the real issues”. It also submitted that Ms Kimber failed to identify to what evidence tendered to the Court and the Registrar insufficient weight was given as mentioned in paragraph a. of the grounds of the leave to appeal application. The bare claim that a decision is “manifestly unreasonable” or “manifestly unreasonable and unfair” and claims of similarly wide ambit are commonly understood to be emphatic disagreement with the outcome of a process rather than revealing of error by the primary judge. Recognising that Ms Kimber does not appear to have had any significant legal assistance in drafting the application for leave or the proposed grounds of appeal, it is necessary to look at the submissions lodged on 14 December 2016 and the material set out on pages 4 to 31 of the draft notice of appeal accepted for filing on 15 December 2016 for any particulars, taking into account the oral submissions which she made on 23 December 2016. In my view, paragraph a. of the grounds of the leave application should be taken to be the particulars of ground 2 of that application. From Ms Kimber’s submissions, there appear to be two matters which form the basis of Ms Kimber’s claim that insufficient weight was given to evidence tendered to the Court and the Registrar on 4 May 2016.