Federal Court of Australia

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

ORDERS

THE COURT ORDERS THAT:

The second and third prayers for interim relief in the originating application dated 7 March 2023

1.    The second and third prayers for urgent interim relief in the originating application dated 7 March 2023, by way of a stay of the execution of a writ of possession and the stay of a notice to vacate, be dismissed.

2.    The applicant pay the respondents’ costs of and incidental to the application for the stay of the execution of a writ of possession and the stay of a notice to vacate, including the hearings on 16 March 2023, 29 March 2023 and 31 March 2023.

3.    The costs ordered to be paid by the applicant in order 2 above be assessed on a lump sum basis by a registrar of the Court, for which the registrar is authorised to make such orders and arrangements as she or he sees fit.

4.    The stay of the execution of a writ of possession in order 1 made by Justice Perry on 16 March 2023 not continue, with immediate effect.

5.    No further application or other proceeding by the applicant relating to the execution of the writ of possession or the administration of the bankrupt estate of Janelle Mary Kimber be brought or accepted for filing by the Court, except by leave of the Court, and except for any application for leave to appeal from any of these orders.

THE COURT NOTES THAT:

6.    Upon the lifting of the stay in order 1 made by Justice Perry on 16 March 2023 by order 4 above, the Sheriff will not be impeded by any order of this Court from attending to execute the Writ of Possession issued on 31 January 2023 by the Federal Circuit and Family Court (Div 2) proceedings SYG 723/2021 with respect to the land known and described as Lot 110 in Strata Plan SP48216, Unit 110, 450 Pacific Highway, Lane Cove North.

THE COURT FURTHER ORDERS THAT:

Payments from the net proceeds of sale

7.    Upon the sale of the land known and described as Lot 110 in Strata Plan SP48216, Unit 110, 450 Pacific Highway, Lane Cove North (the property), the applicant pay from her share of the net proceeds of sale of the property and the respondent is authorised to deduct the following from the applicant’s share on settlement:

(a)    the respondent’s costs as assessed by a registrar in accordance with order 3 above;

(b)    any amounts added to the secured debt to the National Australia Bank Ltd between 1 December 2023 and the settlement date of the property;

(c)    the amount of any contributions that are due to the Owners Corporation SP48216 between 1 December 2022 and the settlement date of the property that are not paid.

8.    In the event there are insufficient proceeds from the applicant’s share of the proceeds of sale to pay the respondents’ costs referred to in order 6(a), then the respondents shall be authorised to pay such part of their costs from the fund available and pursue the applicant for the balance as they deem fit.

The hearing of the applicant’s originating application dated 7 March 2023 for annulment of her debtor’s petition

9.    By 4.00 pm on 28 April 2023, the applicant file and serve any further evidence in support of her originating application for annulment of her debtor’s petition.

10.    By the later of 4.00 pm on 5 May 2023, or 7 days from the service of the applicant’s further evidence, the respondents file and serve any evidence in reply.

11.    The hearing of the applicant’s originating application for annulment of her debtor’s petition be set down for hearing on a date to be fixed in consultation with the parties, with an estimate of one day.

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

REASONS FOR JUDGMENT

(Delivered ex tempore and revised from transcript)

BROMWICH J:

1    The applicant, Ms Janelle Kimber, became a bankrupt on 22 August 2019 upon her debtor’s petition being accepted by the Official Receiver. She was discharged from bankruptcy three years later, on 23 August 2022. The title in the home unit at Lot 110 in Strata Plan SP48216, Unit 110, 450 Pacific Highway, Lane Cove North that she purchased in 2004 was vested in the respondents, then her trustees in bankruptcy. This was subject to the proportion of its value she would retain upon its sale, pursuant to s 116(2)(g) of the Bankruptcy Act 1966 (Cth). On 7 September 2021, that proportion was determined to be 25% by Judge Driver: Clark and Aravanis in their capacity as joint and several trustees of the property of Kimber v Owners Corporation SP48216 (No 2) [2021] FedCFamC2G 62.

2    Also on 7 September 2021, Judge Driver made orders:

(a)    that Ms Kimber vacate the home unit within 21 days of the service of those orders, and, if that order was not complied with, granted leave to the trustees to issue a writ of possession;

(b)    for the distribution of the net proceeds of sale;

(c)    that Ms Kimber remove a caveat over the home unit within 7 days, and be restrained from lodging or causing to be lodged any further caveat, and if she failed to remove the caveat, authorising the registrar to sign a form of withdrawal of the caveat.

3    An appeal by leave from Judge Driver’s orders was dismissed by the Full Court (of which I was a member), subject only to some relatively minor changes to those orders: Kimber v Clark in his capacity as trustee of the property of Kimber [2022] FCAFC 198. By that time, by reason of Ms Kimber no longer being a bankrupt, the trusteeship was confined to that of being trustees of Ms Kimber’s property, relevantly the home unit, which is the capacity in which the trustees are respondents to this proceeding. It follows that Ms Kimber has exhausted her avenues for challenging directly the order to vacate or the issue of the writ of possession.

4    The orders made by Judge Driver were successively stayed pending the hearing and determination of the appeal and after that until 31 January 2023. As at that date, there was no impediment to the trustees taking steps to sell the home unit. A writ of possession was obtained that day, and a notice to vacate was issued on 6 February 2023, and posted to Ms Kimber, seeking to have her vacate the home unit by 17 March 2023, being the date when the writ was due to be executed.

5    On 7 March 2023, Ms Kimber filed an originating application commencing this proceeding, seeking an order under s 153B of the Bankruptcy Act that her bankruptcy be annulled upon the basis that her debtor’s petition ought not to have been presented or ought not to have been accepted by the Official Receiver. She also sought interim relief of a stay of the writ of possession and a stay of the notice to vacate, and also that until her application for annulment was determined, the trustees cease to act as trustees of the home unit. That is, she sought to have the writ and the notice that she could not now challenge, instead be stayed.

6    On 15 March 2023, the respondent filed an interlocutory application, with a supporting affidavit, seeking an order to strike out the application for annulment of the applicant’s bankruptcy, an order to disallow the applicant from making further applications relating to the administration of her estate under the Bankruptcy Act without leave, and an order that the applicant pay the respondents’ costs by way of a lump sum costs order. The supporting affidavit was apparently served on Ms Kimber by email before it was formally accepted for filing.

7    Ms Kimber’s interim application came before Perry J as duty judge on 16 March 2023. Her Honour stayed the execution of the writ of possession pending further order of the Court, and listed the hearing of the interim application for the two stays at 10.15 am on 28 March 2023. Thus the stay granted by her Honour was intended to be temporary in its effect until a final hearing of the application for the two stays could take place, as is made clear from a perusal of the transcript for that day. Her Honour at the same time also made orders for submissions by the trustees to be filed and served by 5.00 pm the next day, 17 March 2023 (which were complied with), and for Ms Kimber to file and serve submissions and any further evidence in reply by midday on 24 March 2023. Ms Kimber’s submissions were filed late on 24 March 2023, and replacement or further submissions were lodged for filing just before midnight that night, so under the rules of the Court, were filed the following Monday, 27 March 2023.

8    On Sunday, 26 March 2023, Ms Kimber lodged for filing a form of affidavit to supplement the affidavit filed with her originating application and in response to the affidavit filed by the trustees, with that affidavit and some of the annexures to that affidavit being provided on the morning of the hearing on 28 March 2023, and the balance of the annexures the night after that hearing. Those additional annexures, as with the prior annexures, were a mix of evidence and submissions in the form of annotations, both typewritten and handwritten.

9    The hearing of the application on 28 March 2023 ran all day until just before 6.00 pm, with only a half hour break. Nearly all of that time on that day was taken up by Ms Kimber, including cross-examining one of the Trustees, Mr Alexander Clark, for an hour and a half, and making oral submissions for over two hours. The trustees made oral submissions on aspects of the evidence and nature of the case during the day, and final oral submissions on the stays sought over about half an hour.

10    The point of spelling out the history of events above is to make it clear that Ms Kimber has had ample opportunity to make her case for the two stays that she sought on an urgent interim basis, both by evidence and by submissions. That is so even taking into account that she is not legally represented. She has been involved in many cases since at least 2016, at least 18 on my count, involving or related to her home unit and the Owners Corporation, her debts or her bankruptcy, including in the New South Wales Civil and Administrative Tribunal, the Local Court of New South Wales, the Supreme Court of New South Wales, the Federal Circuit Court of Australia, and its later manifestation as Division 2 of the Federal Circuit and Family Court of Australia, the Federal Court of Australia, and the Full Court of the Federal Court. She presents as being quite well versed in key aspects of bankruptcy and related law, and is both meticulous in her particular way and astute to pick up errors or misdescriptions of fact or law. She is no ordinary lay person as she is well versed in the history of events as she saw it, the documentary material upon which she relies, and key provisions of the Bankruptcy Act.

11    The trustees did not dispute the jurisdiction of the Court to grant the stays sought, but opposed them being made.

12    The principles applying to the grant of a stay, ordinarily applying to a process arising from success by a party to litigation, to preserve the status quo pending the outcome of an appeal, are well known. It is usually an extraordinary remedy, requiring exceptional circumstances, because it deprives a successful litigant of the benefit of the remedy obtained: Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681 per Brennan J at 684. It is even more extraordinary in the present circumstances outlined above.

13    The substance of Ms Kimber’s case for the stays, as revealed by teasing it out of her oral submissions, and not being at all clear in any of her evidence or written submissions, was that she apparently or in substance is asserting that she had at least an apparently viable case:

(a)    for the annulment of her bankruptcy; and

(b)    for that annulment to be a sufficient basis also for her this Court to grant an application, thus far not actually made in the originating application, to have the home unit vested in her under s 154(3) of the Bankruptcy Act.

Successfully establishing a sufficient prospect of success on obtaining the annulment alone would not suffice to grant the stays she sought; she also needed to establish a sufficient prospect of success in obtaining an order vesting the home unit in her.

14    After considering at some length Ms Kimber’s written and oral submissions, and all the evidence she has advanced, including the additional annexures to her 26 March 2023 affidavit provided after the day-long hearing on 28 March 2023, the substance of her case can be distilled into the following propositions:

(a)    her signing a debtor’s petition was driven by desperation arising from a complex set of circumstances involving serious misconduct by Mr Clark, members of the Owners Corporation and others, and also on the part of Judge Driver, including as to the debts that were relied upon which she continues to dispute, and the earlier bankruptcy notices which had not themselves resulted in her bankruptcy;

(b)    this included certain additional notes that she provided with her debtor’s petition not being sent with that petition to the Official Receiver, being an aspect of serious allegations of misconduct that she made against Mr Clark, which extended to allegations that he had failed in his duties towards her as a trustee;

(c)    the conduct she alleged was so serious that not only should this result in an annulment of her bankruptcy, but should also result in the vesting of the home unit in her.

15    Necessarily implicit in Ms Kimber’s case is the proposition that, had she not presented the debtors petition via Mr Clark, the extant creditors petition, which was only dismissed because of the acceptance of the debtor’s petition by the Official Receiver and resultant bankruptcy, would not and indeed could not, have proceeded to an order for sequestration. Beyond the allegations of impropriety addressed below, there was no separate foundation for that proposition. By reason of the conclusions I have reached about those allegations, addressed below, I readily infer that had the debtor’s petition not been presented, the most likely outcome was that the creditor’s petition would have resulted in the making of a sequestration order and thereby Ms Kimber’s bankruptcy in any event. That alone is a telling indicator against the discretion being likely to be exercised to annul the debtor’s petition.

16    It is noteworthy that the application for annulment of the debtor’s petition was not made until over three and a half years after it was presented, with no suggestion made by Ms Kimber that she had not been aware of the alleged circumstances upon which she now relies for a very considerable period of time, measured in years. Her explanation for this delay was that she believed that Mr Clark was going to make the application for annulment on her behalf. Despite the extensive, although meandering, cross-examination of Mr Clark, Ms Kimber did not come close to establishing any sound basis for her holding any such belief, no matter how genuine and heartfelt. The trustees rely upon that delay as an important discretionary reason for refusing relief by way of the stays sought if that point was reached. Had that point been reached, I would have been most unlikely to have exercised the discretion in Ms Kimber’s favour by reason of that delay, which was left without any satisfactory explanation.

17    Ms Kimber has fallen well short of establishing that she has any arguable prospect of obtaining an annulment of her bankruptcy, let alone the making of a vesting order under s 154(3) of the Bankruptcy Act, which is not pleaded in her originating application in any case, although it is clear enough from her written submissions that this is the ultimate relief she seeks, and indeed is almost certainly the whole purpose in bringing the substantive application. That is because the allegations of error and impropriety upon which she relies rise no higher than that – bare allegations – mostly based upon assertions made upon her subjective interpretation of documents and events, rather than the proper proof of the factual assertions upon which she relies. It simply will not suffice to annotate documents with comments, nor to seek as she did simply to go into the witness box and give some kind of narrative account of her allegations by reference to documents exhibited to her late affidavit of the kind that she made throughout the day from the bar table. Giving that kind of narrative explanation of documents and events under oath or affirmation would not have elevated into evidence what she said from being mere allegations and submissions. For that reason, she was not permitted to proceed in that way.

18    I suspect that many, if not most, of the allegations made by Ms Kimber were in fact without any existing proper foundation at all, despite her fervent belief in the truth of them, but I do not need to decide that this is so. It is enough that she has not adduced evidence in any coherent way, nor made any submissions, that satisfy me that she has any serious prospect of establishing any facts or circumstances that are capable of establishing any proper basis for either an annulment of her bankruptcy, nor the next step of vesting the home unit in her.

19    In any event, I am satisfied that it would not be in the interests of creditors, nor the due administration of justice, to grant the stays that Ms Kimber seeks. Delay in obtaining possession of the home unit and selling it will only further dissipate the assets available to creditors, noting that whatever view is taken of the likely price to be obtained, the shortfall will comfortably exceed it.

20    In reaching these conclusions, I am fully aware that the end result is inevitably going to be that Ms Kimber is no longer going to have her own place in which to live. While there is some evidence that she has relatives with whom she may be able to live for a time, there is no question that she is going to have difficulty in finding suitable ongoing accommodation. That is a terrible consequence of bankruptcy. But in my view it was inevitable. It was not an outcome that could properly be avoided in all the circumstances.

21    For completeness, it is important to make two further observations. The first is that the conclusions I have reached depend upon not applying any of the usual rules of evidence to Ms Kimber’s affidavit evidence, let alone any strict application. Instead that material has been assessed upon the basis of weight, which is meagre in terms of the serious allegations made. A great deal of that evidence was not in admissible form in the affidavits upon which she relied, and a proper basis for admission of many documents was not advanced. Moreover, many of the documents were marked up and annotated, apparently by Ms Kimber. Given the seriousness of the allegations upon which she relies, she should not presume that, if the trustee’s interlocutory application does not succeed, the judge who hears her substantive annulment application will be as accommodating in departing from the usual rules of evidence at a final hearing, as opposed to an interlocutory hearing. That includes formal admissibility at a threshold level, including potentially excluding evidence by reason of hearsay, conclusion, submission and relevance.

22    Secondly, as adverted to above, Ms Kimber placed great weight on two out of three pages of additional notes that she furnished with her debtor’s petition not being sent to the Official Receiver. I reach the following conclusions about that having happened. The two pages that were not furnished were of the same kind as the page that was furnished and arguably of less significance. The page that was provided referred to not owing certain legal costs being claimed by a creditor, and asserted duress due to the conduct of the then Federal Circuit Court. The latter pages that were not provided referred to duress due to the prospect of losing her home and alleging she had been maliciously targeted by the persons in control of the owners’ corporation, along with bias in the court system, and not facing a fair trial, and therefore appointing a trustee to address the threat of unliquidated costs claims. Thus the omitted pages, if anything, explained better her logic in proceeding with a debtor’s petition, and afford no clear or obvious sound basis for an annulment, either alone or in combination with the other material that Ms Kimber relies upon. I do not accept that there was anything nefarious in the additional two pages not being sent to the Official Receiver. Rather, I accept Mr Clark’s explanation in cross-examination of that omission being the result of an administrative error, an explanation that was not challenged in any of the cross-examination that followed.

23    Ms Kimber’s urgent interim application for the two stays must be dismissed with costs, and accordingly the stay order made by Perry J on 16 March 2023 must be lifted with immediate effect, and other consequential and procedural orders made.

Associate:

Dated:    31 March 2023