Federal Court of Australia

Kimber v Clark in his capacity as trustee of the property of Kimber (No 4) [2025] FCA 509

ORDERS

THE COURT ORDERS THAT:

1.    Order 2 made on 31 March 2023 is corrected under rule 39.05(h) of the Federal Court Rules 2011 (Cth) so as to refer to 28 March 2023 in place of the reference to 29 March 2023.

2.    The costs referred to in order 2 of Kimber v Clark in his capacity as trustee of the property of Kimber [2023] FCA 310 are fixed in the lump sum of $34,440.00 (including GST).

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    This is an application by the respondents, Mr Alexander Clark and Mr Andrew Aravanis as trustees of the remaining property from the applicant’s former bankrupt estate (the trustees). The trustees seek assessment of the quantum of a lump sum costs order made against the applicant, Ms Janelle Mary Kimber, on 31 March 2023 by Bromwich J in Kimber v Clark in his capacity as trustee of the property of Kimber [2023] FCA 310 (the stay decision).

2    The issue for determination in the present case is narrow. On 7 March 2023, Ms Kimber filed an originating application seeking orders to annul her bankruptcy (the annulment application) and for interim stays of a writ of possession and a notice to vacate her home unit by 17 March 2023 when the writ was due to be executed. Ms Kimber’s annulment application was the latest in at least 18 proceedings involving her in various courts and tribunals since 2016 relating to her home unit and the Owners Corporation, her debts or her bankruptcy, as Bromwich J observed in the stay decision (at [10]). On 16 March 2023, I granted the interim stays and listed the matter for hearing before the duty judge on 28 March 2023. In the stay decision, Bromwich J, as duty judge, made orders lifting the interim stays. Bromwich J also ordered that Ms Kimber pay the trustees’ 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, and that the quantum of those costs be assessed on a lump sum basis. The issue before me is solely assessment of the quantum of the lump sum costs order already made by Bromwich J. While I acknowledge that Ms Kimber takes issue with prior decisions of this Court, there is no discretion in the present case to reopen any of the substantive issues that led to the grant of the lump sum costs order.

3    Having reviewed the parties’ evidence and submissions, I am satisfied that a lump sum costs order fixed in the sum of $34,440.00 (including GST) is appropriate.

2.    BACKGROUND

4    The background to the lump sum costs order is helpfully expanded upon by Bromwich J as follows at [1]-[9] of the stay decision:

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.

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.

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.

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.

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.

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.

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.

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.

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.

5    In addition to orders made on 31 March 2023 lifting the interim stays imposed by me, Bromwich J relevantly made the following orders:

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.

6    While order 2 above refers to a hearing on 29 March 2023, that is plainly an error arising from an accidental slip and I have accordingly corrected the order under rule 39.05(h) of the Federal Court Rules 2011 (Cth) so as to refer instead to 28 March 2023.

7    The trustees were initially content for a Registrar to determine the quantum of a lump sum costs order. However, at a hearing before a Registrar on 12 July 2023, Ms Kimber made an oral application for the matter be referred to a Judge of the Court. That application was allowed in accordance with s 35A(7)(b) of the Federal Court Act 1976 (Cth) and r 3.05 of the Federal Court Rules.

8    On 16 October 2024, I made an order that the trustees’ lump sum costs application be stood over for directions on 4 December 2024. However, at the case management hearing on 4 December 2024, the issue of the lump sum costs application was not raised. I note that the matter was initially listed on 4 December 2024 for the hearing of the application then on foot by Ms Kimber for me to recuse myself from hearing her matter. However, when Ms Kimber abandoned that application, that listing was instead maintained as a case management hearing for the trustees’ then application to strike out Ms Kimber’s annulment application.

9    By an amended interlocutory application dated 5 December 2024, the trustees sought an order that the annulment application be summarily dismissed pursuant to s 31A of the Federal Court Act and r 26.01 of the Federal Court Rules (summary dismissal application).

10    Subsequently, on 17 February 2025, I held that Ms Kimber’s annulment application was without any merit and made orders summarily dismissing her application pursuant to s 31A of the Federal Court Act and r 26.01 of the Federal Court Rules.

11    On 11 March 2025, the trustees’ solicitors wrote to the Court noting that the lump sum costs issue had not been dealt with at the case management hearing on 4 December 2024 or at the hearing of the summary dismissal application on 13 December 2024. The trustees requested that the lump sum costs application be listed for directions at a time suitable to the Court. The application was set down to be heard on 12 May 2025 following a case management hearing on 18 March 2025.

3.    EVIDENCE

12    The trustees relied on the Affidavit of Ms Daniela Rose Nasidenov dated 16 June 2023 (Costs Summary) on the question of the appropriate lump sum assessment. The following aspects of the Costs Summary were highlighted by the trustees.

(1)    The Costs Summary was prepared in accordance with the Federal Court Costs Practice Note and sets out the lump sum costs claimed by the trustees. The Costs Practice Note does not define precise categories of work which a Costs Summary must include. It only requires “a summary of the categories of the work fairly and reasonably incurred in the conduct of the litigation, including, an estimate (in percentage terms) of the proportion that each category of work constitutes of the total costs claimed”.

(2)    The Costs Summary also claims an uplift of 25% for the professional fees incurred in NSD207/2023.

(3)    The amounts for work completed by the trustees’ legal representatives appear to fall within the Federal Court Scale, National Guide to Counsel’s Fees and the Guide to Discretionary Items in Bills of Costs.

(4)    A bundle was tendered on 10 July 2023 including invoice schedules for professional fees in NSD207/2023 and in relation to implementing the stays ordered by me on 16 March 2023 of the execution of the writ of possession and notice to vacate issued by the Federal Circuit and Family Court of Australia (Div 2) in proceedings SYG723/2021. Those schedules relevantly colour-coded each time entry to reflect the category of work completed but were not otherwise altered. At the hearing, Ms Castle (as counsel for the trustees) noted that the amounts being claimed are less than the amounts actually incurred in both schedules. While the schedules totalled actual amounts of $28,547.64 (including the proposed 25% uplift) and $789.89, the amounts claimed by the trustees are less, being:

(a)    $26,331.65 (including the proposed 25% uplift) for NSD207/2023; and

(b)    $531.50 with respect to implementation of the stays relating to the writ and notice to vacate issued in SYG723/2021.

(5)    Ms Castle explained that the reason for the reductions in the amounts claimed is because the trustees had exercised discretion “in reducing and taking amounts out that aren’t considered fairly to fall within the scope of the order”.

(6)    The total figure for professional fees stated in the Costs Summary for both matters was $29,337.53 (including GST). At the hearing, however, Ms Castle clarified that the total should have been $26,863.15 (including GST). Ms Castle explained that this was because of an error in adding up the total amount claimed. As a result, the overall lump sum claimed is $41,553.87 (including GST and an uplift fee of 25%), and not $44,028.25 as initially claimed in the Costs Summary.

13    Ms Kimber relied on her Affidavit dated 24 April 2025 (Costs Response). The Costs Response was received on the same basis as Ms Kimber’s evidence before Bromwich J, namely, subject to weight. However, large parts of the Costs Response were in the nature of submissions which were in any event irrelevant to the extent that Ms Kimber sought to challenge the substance of earlier decisions. Her evidence also contained bare assertions of a scandalous nature. For example, at [16] of the Costs Response, Ms Kimber asserts:

It is neither fitting by law or conscience, for persons to have withheld from me all this time, monies protected by Bankruptcy Act 1966 s116 (2)(g) from me all this time, to pursue costs unreasonably, unfairly and unnecessarily incurred, reliant on false information about levies when none were owed and misleading presentations enabling conduct abusive of me personally and of NSW strata laws as to legal costs lacking due process assisted by procedural unfairness and incidents of apparent administrative and judicial bias.

14    For these reasons, I could not give the Costs Response any weight insofar as it sought to reagitate the merits of previous applications by Ms Kimber and made bald allegations concerning those applications and conduct by the trustees, their legal representatives and judicial officers. The Costs Response did not address the real issue to be determined in these proceedings, being whether the amount claimed in the Costs Summary in relation to the lump sum costs order of Bromwich J is fair and reasonable.

15    The Costs Response also included submissions to the effect that I could not bring an impartial mind to bear on the issues. To the extent to which these submissions might have been intended to support an application for me to disqualify myself from sitting, no written or oral application to that effect was made in circumstances where Ms Kimber’s earlier recusal application had been abandoned. In any event, no factor was identified which could lead me to assess the quantum of lump sum costs other than on its merits, let alone any logical connection articulated between any such factor and the apprehended deviation from deciding that question on its merits: see, eg, Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [8] (Gleeson CJ, McHugh, Gummow and Hayne JJ); QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 279 CLR 148 at [38] (Kiefel CJ and Gageler J), [67] (Gordon J), [194] (Steward J), [225] (Gleeson J).

4.    PRINCIPLES

16    Section 43 of the Federal Court Act confers a wide discretion on the Court with respect to the award of costs: Wills v Chief Executive Officer of the Australian Skills Quality Authority (Costs) [2022] FCAFC 43 at [20] (Logan, Griffiths and Perry JJ). This discretion must be exercised judicially, consistently with the purpose of the power and with regard to all relevant facts and circumstances: see, eg, Kazar (Liquidator) v Kargarian; In the matter of Frontier Architects Pty Ltd (in liq) [2011] FCAFC 136; (2011) 197 FCR 113 at [4] (Greenwood and Rares JJ); AOU21 v Minister for Home Affairs (No 2) [2021] FCAFC 212 at [7] (Griffiths, Mortimer and Perry JJ).

17    The purpose of awarding costs as a lump sum is “the avoidance of the expense, delay and aggravation involved in protracted litigation arising out of taxation”: see, eg, Innes v AAL Aviation Ltd (No 2) [2018] FCAFC 130 at [12] (Tracey, Bromberg and White JJ).

18    In fixing a lump sum, the Court “should be confident that the approach taken to estimate costs is logical, fair and reasonable”: Beach Petroleum NL v Johnson (No 2) [1995] FCA 350; (1995) 57 FCR 119 at 123 (von Doussa J). As von Doussa J proceeded to state, the Court therefore:

must be astute to prevent prejudice to the respondents by overestimating the costs, and on the other hand must be astute not to cause an injustice to the successful party by an arbitrary ‘fail safe’ discount on the cost estimates submitted to the Court.

19    However, a lump sum “is not the result of a process of taxation or assessment of costs” and “can only be fixed broadly having regard to the information before the Court”: Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213 at [22] (Giles JA); Beach Petroleum at 124 (von Doussa J). As such, “a much broader brush” is applied to assessing lump sums than that which would be applied on taxation: Harrison at [22] (Giles JA).

20    In Sandalwood Properties Ltd v Huntley Management Ltd (No 2) [2019] FCA 647, Colvin J stated:

There must be an appropriate basis for the Court to be able to make a judicial decision rather than a guess. Faux calculations that provide no real basis upon which to conclude that it is reasonable to assess a particular lump-sum as an appropriate amount to be paid pursuant to the Court's cost order do not suffice. The process requires that there be a proper foundation for the lump-sum assessment, taking account that there is a trade-off between the risk of injustice in forming a conclusion as to a lump-sum on limited information and the likely injustice that flows from the costs and delay involved in undertaking a detailed assessment.

5.    ASSESSMENT

21    While I accept Ms Kimber’s submissions that she labours under mental difficulties, her submissions were confused and difficult to follow. Despite repeatedly at the hearing seeking to assist Ms Kimber to focus upon the issue with which the Court was seized, Ms Kimber barely addressed that issue, instead largely making wide-ranging submissions challenging prior decisions including the original costs order which underpinned the judgment debt founding the bankruptcy, the orders made by Bromwich J in the stay decision, and, most recently, my orders summarily dismissing her annulment application. It is clear that Ms Kimber feels passionately that multiple injustices have occurred by the many judgments in which she has been unsuccessful, but those alleged injustices have repeatedly been found to lack any merit and do not bear on the question of which I am presently seized.

22    In this regard, I also note that the Costs Summary was filed on 16 June 2023 and the trustees’ submissions and tender bundle were filed on 10 July 2023, such that Ms Kimber had ample opportunity to consider the documents that address the real issue left for determination.

23    In circumstances where Ms Kimber did not clearly address the basis on which she disagreed with the quantum of the lump sum costs order sought by the trustees, I have carefully and critically considered the trustees’ evidence and submissions in order to ensure that the amounts claimed are fair and reasonable. For the below reasons, I consider that a lump sum of $34,440.00 (including GST) is fair and reasonable in the circumstances.

24    First, as Ms Castle submitted, the invoice schedules provided a transparent basis on which the Court could inform itself as to the type of work and amount claimed in light of its own experience. Having reviewed the schedules, I am satisfied that the costs claimed by the trustees are fair and reasonable in that the rates are broadly reasonable and the times claimed are reasonable for the work done. In line with the principles for the award of costs in a lump sum, it is not necessary for the Court to undertake a line-by-line assessment of the reasonableness of each item in the schedules such as would occur on a taxation. This is consistent with the “broad” approach applicable to the fixing of lump sum costs: Harrison at [22] (Giles JA); Beach Petroleum at 124 (von Doussa J).

25    Secondly, I also agree with the trustees that the amounts claimed by way of a lump sum did not warrant the expense which would be involved in engaging a costs expert. As Ms Castle submitted, this was an unfunded, relatively small bankrupt estate where the amounts claimed are modest. There are no unusual claims which might require further inquiry by way of a taxation. Rather, the fees are broadly in line with those set out in sch 3 of the Federal Court Rules.

26    Thirdly, with respect to costs relating to SYG723/2021, the trustees explained that no costs are claimed with respect to the application for the writ of possession or notice to vacate. Rather, the costs which the trustees seek to include in the lump sum costs order assessment are intended only to be those of and incidental to the application for the stays in this proceeding. Such costs comprise:

(1)    steps taken from 10 March 2023 in response to Ms Kimber’s application for stays of the writ of possession and the notice to vacate, being the date on which the trustees first had notice of Ms Kimber’s application for the stays (such as advising the Sheriff of the application); and

(2)    costs incurred in consequence of the decision by Bromwich J to lift the stays on 31 March 2023 until 17 April 2023 including updating the Sheriff and Senior Sergeant about the notice to vacate and re-arranging execution of the writ of possession and notice to vacate.

27    So understood, subject to one caveat, the costs therefore are properly characterised as incidental to the application for a stay and therefore as falling within the terms of the lump sum costs order made by Bromwich J. The caveat is that certain costs on 17 April 2023 after the writ of possession had been executed would appear to be costs of such a nature that they would have been incurred irrespective of the application for a stay and its ultimate outcome. As such, I would discount the amount claimed in this respect by $70.00 (including GST).

28    Fourthly, I have considered whether it is appropriate to apply a discount to the totality of the amount sought by the trustees by way of a lump sum. As Tracey J stated in Seafolly Pty Ltd v Madden (No 6) [2015] FCA 1369 at [38]:

The authorities establish that a discount should be applied to actual costs incurred by the party seeking a gross sum order. The discount is intended to take account, not only of the inevitable reduction in the amount awarded as a result of a taxation on a party/party basis, but also to recognise that no such taxation has occurred and that any estimate of its outcome is just that and that a further allowance may be necessary in order to ensure fairness to the party against whom the order is made. Both underestimation and overestimation are, to the extent possible, to be avoided.

29    (See also Broadway Plaza Investments Pty Ltd v Broadway Plaza Pty Ltd (No 3) [2021] NSWSC 1537 at [157] (Ward CJ in Eq).)

30    The amount of the discount to be applied is specific to the facts of a particular case. As Colvin J stated in Sandalwood at [14]:

The decided cases reveal considerable variation in the discount applied. Formulating the discount requires the court to bring to account factors in the circumstances of the particular case that may have affected the extent to which the costs incurred exceed that which is provided for by the nature of the costs order made. However, care must be taken with this approach because it is anchored in the actual costs incurred and the task in most instances is to assess a reasonable amount of costs on a party and party basis. There may be a concern that a party who has chosen to incur substantial costs in excess of those that might be incurred by a reasonable party in the same position acting prudently in its interests may recover an excessive costs award by a top down approach to assessment. This exposes the importance of the broad categories of costs as described in the costs summary which must be provided in support of the application (see below). By dividing the costs claimed into relevant categories the Court is able to check the quantum for particular kinds of work against amounts generally claimed under lump sum assessments and to apply principles of proportionality in a logical way.

31    While counsel’s fees for the hearing on 28 March 2023 were discounted due to counsel charging a flat rate of $5,000 plus GST, there is otherwise no indication in the Costs Summary that the trustees applied a discount. Further, although Ms Castle noted that amounts were discretionarily reduced if they were not considered fairly to fall within the scope of the order of Bromwich J, it does not appear that a discount was applied specifically to address the risks identified in Seafolly.

32    The trustees did, however, address the risk that their claim includes solicitor-client attendances. At the hearing before me on 12 May 2025, Ms Castle acknowledged that “some form of percentage reduction” would be available to address the possibility that some entries claimed by the trustees may relate to solicitor-client attendances, but did not submit that a particular percentage should be applied.

33    On balance, I consider that it is appropriate in the circumstances to apply a discount of 20%, with no discount applied to disbursements. The present facts are distinguishable from cases where a significant number of time entries recorded by solicitors are spent on “perusal”, “consideration” or “research”, such that a higher discount was justified: see, eg, Wide Bay Conservation Council Inc v Burnett Water Pty Ltd (No 9) [2011] FCA 661; (2011) 194 FCR 250 at [126]-[127] (Logan J). A 20% discount relevantly recognises the “inevitable reduction” that would have occurred on taxation in line with the approach in Seafolly, and also the risk identified by Ms Castle that some entries may include solicitor-client attendances. That discount, as applied to the total claim excluding the 25% uplift proposed by the trustees and disbursements, results in a total of $17,221.46 (including GST) for professional fees, and a total of $31,912.18 (including GST) for both professional fees and disbursements.

34    Finally, with respect to the uplift of 25% sought by the trustees, Ms Castle submitted, and I accept, that it is common in the Federal Court to add an uplift as a percentage for skill, care and responsibility. As sch 3 item 11 of the Federal Court Rules sets out, an additional amount may be allowed, having regard to all the circumstances of the case, including the following:

(a)     the complexity of the matter;

(b)     the difficulty or novelty of the questions involved in the matter;

(c)     the skill, specialised knowledge and responsibility involved and the time and labour expended by the lawyer;

(d)     the number and importance of the documents prepared and read, regardless of their length;

(e)     the amount or value of money or property involved;

(f)     research and consideration of questions of law and fact;

(g)     the general care and conduct of the lawyer, having regard to the lawyer’s instructions and all relevant circumstances;

(h)     the time within which the work was required to be done;

(i)     allowances otherwise made in accordance with this scale (including any allowances for attendances in accordance with item 1.1); and

(j)     any other relevant matter.

35    The proper approach to determining an uplift is “to weigh all of the considerations in item 11.1 to determine whether any allowance should be made at all”. This is a “fact sensitive” task: Schoneweiss v Fourth Force Pty Ltd (No 2) [2022] FCA 1489 at [116] (Charlesworth J). By way of guidance, and where an uplift is allowed, the Guide to Discretionary Items in Bills of Costs indicates that a percentage in the range of 0-15% is common for skill, care and responsibility.

36    In the present case, Ms Castle submitted that, while it was a matter ultimately for the Court to determine whether to allow any uplift and, if so, as to the appropriate amount, an amount of uplift should be allowed based on the taxing practice in this court. In her submission, an uplift of 25% was appropriate for professional fees in NSD207/2023 (excluding fees charged in relation to SYG723/2021). This was because of the urgency and factual complexity of the application for a stay, which was brought about for reasons including the following:

(1)    Ms Kimber’s interim application came before me as duty judge on 16 March 2023 and I made an order for the trustees’ submissions to be filed and served by 5:00pm the next day, on 17 March 2023, which was complied with.

(2)    It was necessary to consider extensive documentation from Ms Kimber, including an affidavit of over 300 pages filed by Ms Kimber on Sunday 26 March 2023 before the interlocutory hearing on 28 March 2023 and “further supporting evidence” which was not in proper form, as well as additional material on which Ms Kimber sought to rely produced by her only during the course of the hearing on 28 March 2023.

(3)    The hearing of the application on 28 March 2023 ran all day until just before 6:00pm with only a half-hour break.

37    I agree with Ms Castle’s submission that it was appropriate for Ms Naidenov to undertake significant work in the proceedings, notwithstanding her seniority and higher charge-out rate, given the complex and lengthy history of proceedings involving Ms Kimber relating to her bankruptcy and the property, and Ms Naidenov’s extensive experience in those prior proceedings.

38    I also accept Ms Naidenov’s explanation in the Costs Summary as to the appropriateness of an uplift fee in circumstances where it was necessary for Ms Naidenov to perform the work:

(1)    due to its urgency;

(2)    her experience in bankruptcy law;

(3)    her background in the many proceedings involving Ms Kimber; and

(4)    the fact that the “extensive” materials filed by Ms Kimber on short notice “could not be considered in a timely fashion in any meaningful way by other staff members”, including because that material was “prolix, confusing and contained scandalous allegations”.

39    These factors clearly establish the appropriateness in allowing some uplift so as to reflect the skill, care and responsibility involved in Ms Naidenov’s work in these proceedings. I do not accept Ms Kimber’s submission that there should be no uplift because the Court was in control of the urgency of the timetable. The annulment application filed on 7 March 2023 claimed urgent interim relief to stay the writ of possession and notice to vacate, despite the notice to vacate her home unit by 17 March 2023 being issued on 6 February 2023 and posted to Ms Kimber in order that the writ of possession could be executed.

40    One consideration that could potentially weigh in favour of a reduction in the proposed uplift of 25% is that the case was arguably not legally complex. While I accept that the matter was not legally complex, nonetheless, I am satisfied that the case was factually difficult because of the history of proceedings involving Ms Kimber and the prolix and confused nature of her material.

41    Other factors, however, suggest that a lower uplift would be appropriate. For example, to the extent that the uplift is justified by the need for Ms Naidenov to address the factual complexity of the matter, that complexity is met in part by the actual costs claimed at her higher charge-out rate: see by analogy Zafra Legal Pty Ltd v Harris [2021] FCA 441 at [140] (Banks-Smith J). Further, the 25% uplift appears to have been applied to all professional fees, including the work of a more junior lawyer (Ms Jocelyn Wale-Corey), and a legal secretary and licensed conveyancer (Ms Lonnon and Ms Black respectively). While the urgency of the matter might justify some uplift, the other justifications upon which the trustees rely are specific to Ms Naidenov’s experience in prior proceedings involving Ms Kimber and Ms Naidenov’s experience in bankruptcy law, and do not have the same application to other staff.

42    Having regard to the considerations set out in sch 3 item 11 and the facts before me, I agree that an uplift is appropriate in respect of the professional fees in NSD207/2023. However, in my view, that uplift should be limited to 15% rather than the 25% proposed by the trustees. That uplift is $2,527.84, which is 15% of the discounted professional fees in NSD207/2023 in the sum of $16,852.26.

6.    CONCLUSION

43    After reducing the claim with respect to SYG723/2021 by $70.00, and applying a 20% discount to the total amount claimed and a 15% uplift in respect of the professional fees in NSD207/2023, the total lump sum assessed is $34,440.00 (including GST). In all of the circumstances, I consider that this figure is fair and reasonable and I fix the lump sum costs payable by Ms Kimber in accordance with the orders of Bromwich J in that amount.

Associate:

Dated:    20 May 2025