Federal Court of Australia

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

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

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

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

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

REASONS FOR JUDGMENT

CHARLESWORTH J

1    Ms Janelle Kimber became bankrupt on 22 August 2019 upon the acceptance of her own petition. The respondents, Mr Alexander Clark and Mr Andrew Aravanis, are the Trustees of her estate.

2    Ms Kimber was discharged from bankruptcy on 23 August 2022. She remains a regulated debtor.

3    Upon her bankruptcy, Ms Kimber’s interest in a Property situated at 110/450 Pacific Highway, Lane Cove North in New South Wales vested in the Trustees for the benefit of her creditors. The Trustees obtained a writ of possession and have sold the Property. The sale proceeds are presently held by the Trustees, subject to the preservation of a portion of protected monies ordinarily payable to Ms Kimber.

4    By an originating application filed on 7 March 2023 Ms Kimber sought an order under s 153B of the Bankruptcy Act 1966 (Cth) for the annulment of her bankruptcy. The application was expressed to have been made on the grounds that the debtor’s petition ought not to have been accepted by the Official Receiver “for the reason that [Ms Kimber] was always solvent and able to pay all valid debts”. As will be seen, Ms Kimber does not include in the phrase “valid debts” any money she owed to a strata corporation of which she was a once member, Owners Corporation SP48216.

5    The annulment application was accompanied by an urgent application for interlocutory relief by which Ms Kimber sought orders to stay the execution of the writ of possession and a notice to vacate the Property, obtained by the Trustees in earlier proceedings: Clark v Aravanis in their capacity as joint and several trustees of the property of Kimber v Owners Corporation SP48216 (No 2) [2021] FedCFamC2G 62, Driver J. The application for urgent interlocutory relief was dismissed by Bromwich J on 31 March 2023: Kimber v Clark in his capacity as trustee of the property of Kimber [2023] FCA 310 (Kimber (No 1)). His Honour made an order to the effect that the Trustees’ costs of the interlocutory application be paid from the sale proceeds, in an amount to be fixed by a Registrar (Costs Order).

6    On 17 February 2025, Perry J made an order summarily dismissing the annulment application (Dismissal Order): Kimber v Clark in his capacity as trustee of the property of Kimber (No 3) [2025] FCA 86 (Kimber (No 3)). Her Honour later fixed a sum for the purposes of the Costs Order (Fixed Sum Order).

7    Ms Kimber applies for leave to appeal from the Costs Order, the Dismissal Order and the Fixed Sum Order. To the extent that Ms Kimber requires an extension of time in which to commence an appeal from any one of those orders I will proceed on the basis that the application for an extension of time should be granted or dismissed (as the case may be) to the same extent as the leave application.

8    The Trustees are joined as respondents to the application. They did not participate at the hearing and have notified the Court that they submit to the outcome, save for any questions as to costs.

Reasons for the orders subject to leave to appeal

Dismissal Order

9    The Dismissal Order was made on the Trustees’ amended interlocutory application dated 5 December 2024. That application had originally sought an order striking out the annulment application in the exercise of the Court’s power under r 16.21 of the Federal Court Rules 2011 (Cth). The amendment was made in circumstances described by Perry J in Kimber (No 3) as follows:

20    At the case management hearing on 4 December 2024, I raised with the parties a concern that, while the respondent’s interlocutory application sought orders striking out the annulment application pursuant to r 16.21 of the FCR, the grounds articulated in the respondents’ submissions appeared to be more directed towards a summary dismissal application. If that was a correct characterisation of the application, I expressed the view that, as a matter of fairness to the applicant, this should be made clear on the face of the respondents’ interlocutory application. Accordingly, after counsel for the respondents confirmed that the interlocutory application was, in substance, a summary dismissal application, I made orders for the application to be amended so as to reflect the orders in fact sought by the respondents.

21    In accordance with orders dated 4 December 2024, the respondents filed the amended application for summary dismissal on 5 December 2024, seeking orders that the annulment application be dismissed pursuant to s 31A of the FCA Act and r 26.01 of the FCR.

10    The amended interlocutory application relevantly sought an order that the annulment application be summarily dismissed pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) (FCA Act) or r 16.01 of the Rules. The hearing of that application took place on 13 December 2024.

11    In Kimber (No 3) after listing the affidavits relied upon by the parties, Perry J set out the principles guiding the Court’s discretion under s 31A and r 26.01, observing that in either case, summary judgment may be given where an action has no reasonable prospects of success. Her Honour added that an order may be made under r 26.01 where the proceeding is frivolous, vexatious or an abuse of process.

12    Her Honour extracted the principles to be applied, including this illustration of their application drawn from Australian Securities and Investments Commission v Cassimatis (2013) 220 FCR 256:

47    Accepting there can be no ‘hard and fast’ rule about this, as a general principle, these authorities show that the moving party on an application for summary dismissal of the present kind is likely to succeed on its persuasive onus if it is able to demonstrate to the Court that the applicant’s success in the proceedings relies upon a question of fact that can be truly described as fanciful, trifling, implausible, improbable, tenuous or one that is contradicted by all the available documents or other materials. Conversely, as a general principle, it is unlikely to succeed where, on a critical examination of all the available materials, the Court is satisfied that there appears to be a real question of fact to be determined between the parties. This is more likely to be the case where the available materials include pleadings that raise factual disputes that can be truly described as significant, substantial, plausible or weighty. A real question of fact is also more likely to exist where the question/s of fact concerned is/are complex, eg involving numerous different events or transactions over a long period of time.

48    Similarly, as a general principle, the moving party on an application for summary dismissal is likely to succeed on its persuasive onus if it is able to demonstrate to the Court that the applicant’s success in the proceedings relies upon a question of law that is straightforward and confined, or is trite in the sense that it is well settled on authority, such that the question can be resolved summarily without the necessity for a full trial. On the other hand, the moving party would be unlikely to succeed if the Court is satisfied that the applicant’s success in the proceedings relies upon a question of law that is serious or important, or is difficult and therefore likely to require lengthy argument for its resolution, or involves conflicting authority, or is apparently arguable, yet novel.

13    Justice Perry went on to summarise the principles relevant to the Court’s discretion to annul a bankruptcy. As her Honour correctly observed, in the case of a person made bankrupt on his or her own petition, the bankruptcy may be annulled whether or not the person was solvent at the time that the petition was presented, although solvency may be a central issue in a case where there are unpaid creditors.

14    Her Honour went on to summarise the grounds Ms Kimber had advanced in support of the annulment application which in turn formed the basis of her opposition to the Trustees’ summary dismissal application. Upon the hearing of the present application Ms Kimber identified no error in that articulation of her position, conveniently distilled into eight propositions (Kimber (No 3) at [36]):

(1)    The annulment application is based predominantly on the fact that the debtor’s petition should not have been presented and received by the receiver because Ms Kimber was solvent and she was induced into making a debtor’s petition assisted by Mr Clark. As to her solvency, Ms Kimber relied upon BSF Partners’ report as to her solvency in March 2019 and submitted that there was no change in her circumstances between March 2019 and August 2019 when she presented the debtor’s petition.

(2)    Summary dismissal should be reserved for the clearest of cases, which this case was not. There are many significant unresolved complex factual and legal issues requiring a full hearing and there is a lack of evidence in support of the summary dismissal application. In addition to disputing facts in relation to her solvency, Ms Kimber denies the validity of the creditors’ claims and contends that a full hearing is necessary in order to explain why they are not valid. She contends that it is the Court’s role to investigate the legitimacy of the underlying debt especially where, as here, serious allegations of collusion, fraud and the like have been made.

(3)    There are also allegations against the trustee in relation to their administration of the estate, including that they have broken promises to look into the legitimacy of the debts, causing her extreme distress, and there has been trustee misconduct even in relation to ‘the formal documents’. In Ms Kimber’s submission, these allegations need to be looked into further. Further, she contends that a statement of claim had been filed on her behalf which had been completed under duress with the assistance of the trustee despite his fiduciary duty to protect her property.

(4)    The costs agreement between The Owners – Strata Plan No 48216 (Strata Owners) and Grace Lawyers was invalid and Ms Kimber did not have the opportunity to participate in the conciliation between Grace Lawyers and the lawyers for the trustees about costs.

(5)    There has been ‘[c]umulative prejudice … [with] judgment upon judgment upon judgment, getting misinformation’ and a failure to disclose or investigate critical evidence. Ms Kimber has also suffered from procedural barriers with many disadvantages in procedural terms leading to difficulties in presenting evidence and responding to proceedings.

(6)    With respect to the judgment debt in favour of the Strata Owners, Ms Kimber alleges as follows:

(a)    The ‘most vital thing that … needs to take place’ is for the Court to go behind the Local Court judgment which is ‘foundational’ and is ‘what everything else rests on’. As Markovic J dismissed the application to do so, the evidence has not been heard, no subpoenas have been issued and no witnesses have been called.

(b)    There is a public interest in going behind the judgment, as the recent Four Corners investigation into strata corporations illustrates.

(c)    There is a class of persons benefiting from intentionally pursuing a debt that is false, and the debt was based upon misrepresentations as to facts and omissions of fact.

(7)    To dismiss the matter summarily would breach procedural fairness. This is because Ms Kimber is unrepresented and part of her disability is that stress induces confusion which makes it difficult for her to present her case. Ms Kimber said that she needs a good amount of time to be organised and not focus on other things, and to have the opportunity to go through the evidence more fully by going through the affidavits and exhibits ‘one by one’.

(8)    The cumulative impact of these matters underscores the need for a comprehensive hearing.

(emphasis in original)

15    The primary judge concluded that the annulment application had no merit and that there was a clear case for summary judgment. Three reasons were given.

16    First, her Honour said that Ms Kimber had made allegations of wrongdoing on the part of the Trustees that were not supported by any “admissible or persuasive evidence” and that “did not rise above bare assertion, despite their seriousness”. Her Honour said that to that extent the material contained scandalous, vexatious and frivolous material and that allegations should not have been made (Kimber (No 3) at [38]).

17    Secondly, Perry J said that there was no reasonable prospect that the Court would exercise its discretion to annul the bankruptcy because:

(1)    Ms Kimber had not put forward evidence demonstrating that she was solvent at the time that the debtor’s petition was presented (Kimber (No 3) at [39(2)]);

(2)    a creditor’s petition on foot at the time that the debtor’s petition was presented would have been likely to succeed (Kimber (No 3) at [39(2)]);

(3)    Ms Kimber had sought an annulment without making any proposal to benefit her creditors or to address the Trustees’ remuneration and costs, in circumstances where the debts of the estate and the remuneration totalled more than $1 million (Kimber (No 3) at [39(1)]);

(4)    Ms Kimber’s submission that the Court could and should go behind certain judgments of the NSW Local Court (upon which an earlier creditor’s petition was based) could not succeed, including for reasons given by Markovic J in Kimber v The Owners Strata Plan No 48216 (No 2) [2018] FCA 406 when dismissing an application to set aside a bankruptcy notice on which that creditor’s petition was founded (Kimber (No 3) at [39(3)]);

(5)    to leave the creditors unpaid and the Trustees unremunerated would be contrary to the objects of the bankruptcy regime (Kimber (No 3) at [39(4)]);

(6)    the administration of the bankruptcy had been lengthy and complex in part because of the actions of Ms Kimber in making a large number of applications relating to it, such that it would be unfair to annul the bankruptcy and deprive the Trustees of remuneration;

(7)    Ms Kimber’s delay in bringing the annulment application was a significant factor, especially given that the bankruptcy had been brought about on her own petition and the particular debts of which she complained were many years old (Kimber (No 3) at [39(6)]); and

(8)    annulment would not result in any revesting of the Property in Ms Kimber as it had already been sold (Kimber (No 3) at [39(7)]).

18    Thirdly, the annulment application was an abuse of the Court’s processes for the additional reason that Ms Kimber’s allegations of error and wrongdoing rose no higher than bare allegations, based on her subjective interpretation of events and falling short of proof (Kimber (No 3) at [40]).

19    Justice Perry added that from the time of the dismissal of her interlocutory application, Ms Kimber had been on notice that her evidence had fallen well short of establishing that she had arguable prospects of obtaining an annulment of her bankruptcy, and yet she had continued to file irrelevant evidence. Accordingly, it would be fruitless to allow Ms Kimber an opportunity to amend her application (Kimber (No 3) at [41]).

Costs Order

20    The Costs Order followed from the dismissal of Ms Kimber’s urgent interlocutory application for an order staying the execution of a warrant for possession of the Property and its sale pending the outcome of the annulment application. That application was brought in a context where Ms Kimber had an entitlement to a 25% share of the sale proceeds in accordance with s 116(2)(g) of the Bankruptcy Act, as earlier adjudicated by Driver J in Clark. In the same proceeding, Driver J made orders on 7 September 2021 requiring Ms Kimber to vacate the Property within 21 days and to remove a caveat she had lodged on the title. Ms Kimber’s appeal from the orders of Driver J was dismissed by the Full Court: Kimber v Clark in his capacity as trustee of the property of Kimber [2022] FCAFC 198. Soon after the dismissal of the appeal, the Trustees obtained a writ of possession based upon Driver J’s orders. The Trustees issued a notice to vacate on 6 February 2023 and the annulment application (coupled with the interlocutory application for urgent relief) was commenced soon afterward. Interim relief was initially granted by Perry J pending the resolution of the application for an interlocutory injunction.

21    As I have mentioned earlier, Bromwich J dismissed the interlocutory injunction and the Costs Order followed that event:  Kimber (No 1). The Costs Order comprised the following:

…

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.

…

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) [sic], 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.

…

22    Ms Kimber commenced an application for leave to appeal from the orders of Bromwich J. She informed me that she withdrew that application because the Trustees executed the writ of possession and sold the Property before the leave application could proceed to a hearing.

23    On this application, Ms Kimber argued that the Costs Order was based on an erroneous disposition of her claim for interlocutory relief, that the relief ought to have been granted and no costs order should therefore have been made. The reasons of Bromwich J for dismissing the interlocutory application may be summarised as follows:

(1)    Ms Kimber’s submissions were to the effect that she had a viable case for the annulment of her bankruptcy and in that event the Property should vest in her under s 154(3) of the Bankruptcy Act;

(2)    to be granted a stay of the writ of possession and the sale of the Property it was necessary for her to establish sufficient prospects of success in obtaining the order vesting the Property in her;

(3)    the substance of Ms Kimber’s case could be distilled into the following propositions (Kimber (No 1), at [14]):

(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.

(4)    implicitly, Ms Kimber had asserted that if she had not presented the debtor’s petition, a creditor’s petition then on foot would not have resulted in her bankruptcy;

(5)    the annulment application was made more than three and a half years after the debtor’s petition was presented;

(6)    Ms Kimber had asserted that the delay was a result of her belief that the Trustees would make an annulment application on her behalf. However, the evidence presented by Ms Kimber (including by lengthy cross-examination of Mr Clark) “did not come close to establishing any sound basis for holding any such belief” and the delay was left without any satisfactory explanation;

(7)    Ms Kimber’s allegations of error and impropriety rose no higher than “bare allegations – mostly based upon assertions made upon her subjective interpretation of documents and events, rather than the proper proof of the factual assertions on which she relies”;

(8)    Ms Kimber had not been permitted to give a narrative from the witness box of her allegations of the kind she had given from the bar table, as that would not have elevated her allegations and submissions any further;

(9)    Ms Kimber had not adduced evidence in any coherent way or made submissions to establish that she had any serious prosects of establishing facts or circumstances sufficient to annul her bankruptcy or to support an order vesting the Property in her;

(10)    it was not in the interests of justice to grant the orders Ms Kimber had sought, including because delay in selling the Property would only serve to further dissipate assets available to creditors;

(11)    the circumstance that Ms Kimber would lose her place of residence if the orders were not made was a consequence of the bankruptcy regime that could not be avoided;

(12)    the conclusions reached did not depend upon the strict application of the rules of evidence. Whilst much of the evidence relied upon by Ms Kimber was in inadmissible form, it had nonetheless been assessed upon the basis of weight;

(13)    the evidence was given meagre weight given the seriousness of the allegations made; and

(14)    a specific allegation concerning the documents accompanying the debtor’s petition was rejected on the facts. On that topic, Bromwich J concluded (Kimber (No 1) at (22]):

… 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.

Fixed Sum Order

24    Following the dismissal of the annulment application, Perry J made an order fixing the respondents’ costs in the amount of $34,440.00.

25    The principal basis for challenging that order is that it was made for the purposes of the Costs Order which Ms Kimber asserts ought not to have been made. There was otherwise no cogent reasons put forward for challenging the lump sum sufficient to support a grant of leave to appeal to the Full Court from the quantification per se. The application for leave to appeal from the Fixed Sum Order will be dismissed as a consequence of the dismissal of the application for leave to appeal from the Costs Order.

The test on this appliccation

26    A judgment in the nature of summary dismissal is interlocutory in nature (see Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2009) 178 FCR 401 (at [43]), Luck v University of Southern Queensland (2009) 176 FCR 268, Graham J (at [14] – [16]), Rares J (at [101] – [109])), as is an order as to costs. In each case, leave to appeal is required:  FCA Act, s 24(1A).

27    The principles guiding the Court’s discretion to grant leave to appeal from an interlocutory judgment or order are well established. The relevant considerations include whether in all of the circumstances the decision is attended with sufficient doubt so as to warrant it being reconsidered by a Full Court and whether substantial injustice would result if leave to appeal were refused, supposing the decision to be wrong: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.

28    In the present matter I afford some weight to the circumstance that the Dismissal Order had the practical effect of bringing the proceeding at first instance to an end. Hence, whilst an order granting summary judgment is interlocutory in nature, the grant of leave would not fragment and disrupt the progression of an underlying action.

29    Speaking generally, on an application for leave to appeal from an order granting summary judgment, the refusal of leave to appeal may be more likely to cause substantial injustice. That is because there would be no further recourse available to the person affected by an order having the practical effect of preventing a claim from proceeding to trial and final judgment in the usual course. In my view, that consideration also influences the Court’s evaluation as to whether the decision sought to be challenged is attended with “sufficient doubt” so as to warrant it being reconsidered by a Full Court, sufficiency being a relative term. As French J said in Zoia v Commonwealth Ombudsman Department (2007) 99 ALD 229 a summary judgment is “final in substance and ordinarily the threshold to be crossed for obtaining leave to appeal against such a judgment is not high”. See also Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564.

30    I also bear in mind that whilst an application for leave to appeal may be decided by a single Judge, it remains open to recommend to the Chief Justice that the question of leave itself be referred to a Full Court for determination. In light of the reasons that follow I am satisfied that the appellate jurisdiction to grant or refuse leave is appropriately exercised by a single Judge. That is because I have discerned no arguable error in the conclusion of Perry J that the annulment application constituted an abuse of process both because it was fundamentally lacking in merit. The referral of the leave application to a Full Court would only serve to increase the costs of the administration of Ms Kimber’s bankrupt estate so eliminating any remaining chance of previously protected money being paid to her, and further delaying and diminishing the returns to her creditors.

The proposed grounds of appeal

31    Ms Kimber appeared self-represented on this application as at first instance. She was afforded the opportunity to file an amended proposed notice of appeal in advance of the hearing, so as to clarify which judgments and orders were appealed from and the grounds upon which each of them was challenged. The Court provided assistance to Ms Kimber to prepare books of documents upon which she relied and to ensure that the Court had before it at least the materials that were before Bromwich J and Perry J at first instance. Ms Kimber was permitted leave to refer to additional material of her choosing. I have proceeded on the basis that if leave to appeal were granted, she would apply to the Full Court for leave to adduce new evidence and possibly to adduce new arguments not previously raised.

32    Ms Kimber presented oral arguments over half a day and was permitted to file supplementary written submissions and other material after the hearing to ensure that she did not omit to mention anything she wished to say.

33    The above procedures were adopted in light of Ms Kimber’s status as a self-represented litigant and having regard to the circumstance that the Trustees (having submitted to the outcome) would not be put to additional expense by conducting the proceeding in that way. The Court is mindful of the high threshold that applied on the Trustees’ application for summary dismissal, coupled with the circumstance that for present purposes it is not necessary for Ms Kimber to positively demonstrate that her arguments on the proposed appeal would necessarily succeed.

34    Ms Kimber’s written materials reflect her status as a non-lawyer. I have interpreted those written materials and her oral submissions as generously as can appropriately be done in light of that status. There is no expectation that Ms Kimber express herself in legal language nor that the evidence upon which she relied at first instance necessarily be in admissible form. That is especially so with respect to factual subject matter that may be given by oral testimony rather than in affidavit form.

35    Having adopted that approach, and having considered the large body of material to which Ms Kimber referred, I am satisfied that the proposed appeal does not enjoy reasonable prospects of success.

Issues in the proposed appeal

36    For the most part, the arguments raised on this application were the same as those advanced before Perry J as summarised at [36] of her Honour’s reasons and extracted at [14] above. As I have mentioned, Ms Kimber did not take issue with the accuracy of that articulation of her case. Indeed when taken to it in the course of her submissions it became something of a checklist of matters she wished to raise and elaborate upon before a Full Court, should leave be granted.

37    The proposed grounds of appeal are contained in an amended draft notice of appeal filed on 8 July 2025. They are lengthy and need not be extracted in full. The issues raised by the grounds are dealt with under the headings that follow.

38    On the proposed appeal, Ms Kimber seeks orders setting aside the challenged orders and judgments. In addition, she seeks an order to the effect that the Trustees cease to act as trustees of her estate. Ms Kimber has no prospects of obtaining such an order from the Full Court, having sought no such relief at first instance.

The proposed appeal is without merit

39    In rejecting each of Ms Kimber’s arguments I am to be understood as concluding that the arguments do not enjoy sufficient prospects of success to warrant consideration by a Full Court, whether or not language of that kind is employed.

Alleged denial of procedural fairness

40    Ms Kimber contends that she was denied procedural fairness by virtue of the Trustees being permitted and encouraged to convert what was originally framed as a strike out application into a summary judgment application.

41    In considering that argument I have had regard to the requirement in r 26.01(3) of the Rules, requiring that an application for summary judgment be served not later than 14 days before the hearing. In the present case, the Trustees filed an interlocutory application that initially invoked the Court’s power to strike out a pleading. That application was amended on 5 December 2024 and the hearing occurred on 13 December 2024. Ms Kimber did not rely upon r 26.01(3) in her submissions but she did allege that she was not afforded a fair opportunity to prepare for the hearing.

42    The amendment of the Trustees’ application was limited to a matter of form and not of substance. The submissions and material upon which the Trustees relied made it abundantly clear that they sought more than the mere strike out of a pleading but rather asserted that the annulment application had no reasonable prospects of success and that it otherwise constituted an abuse of the Court’s processes. The effect of the amendment was to correctly identify the source of the jurisdiction to enter summary judgment. By the time of the amendment, Ms Kimber had filed a large body of material going to substantive factual matters and not merely deficiencies in “pleadings”. Following the amendment, she filed further submissions which were received and considered by Perry J. The assertion that Ms Kimber was substantially prejudiced by permitting the Trustees to amend the interlocutory application must be rejected.

43    Ms Kimber further asserted that the proceedings before Bromwich J were conducted in such a way as to deny her a fair opportunity to be heard. There appear to be three aspects to that complaint.

44    First, she alleged that she was disadvantaged by a defect in her computer that prevented her from filing documents. That complaint has no merit. It appears from the transcript that Ms Kimber was afforded an opportunity to list and hand up all of the materials upon which she relied in support of her own urgent interlocutory application. None of that material was rejected on the basis that it was provided late. To establish a breach of the rules of procedural fairness is not enough for Ms Kimber to assert that she found the Court’s processes and the short timeframes to be stressful, given that she had moved the Court for urgent orders to restrain a warrant based on possession orders made two years prior.

45    Secondly, Ms Kimber complained that she had not been permitted to give oral evidence in support of her interlocutory application in narrative form from the witness box. I discern from that aspect of her submissions that she was sufficiently sophisticated in her knowledge of court procedure to seek an opportunity to present her case in that way, and I discern no arguable appealable error in the refusal of that request. The reasons of Bromwich J are to the effect that the evidence that would have been given from the witness box would not have assumed any greater weight than that contained in Ms Kimber’s affidavits and would have amounted to a repetition of her subjective views and bare allegations. His Honour made it clear that the affidavit evidence had been received whether or not it was in admissible form and the case put forward by Ms Kimber had turned on questions of weight, not admissibility. His Honour’s decision not to permit Ms Kimber to give oral evidence was based upon his assessment of the manner in which she had presented submissions, including when asserting facts from the bar table. I discern no arguable error in his Honour’s conclusion that the evidence that would have been given from the witness box would not have been qualitatively different from the assertions of facts made by Ms Kimber as her own advocate.

46    Thirdly, Ms Kimber complained that she had been wrongly precluded from asking questions of Mr Clark in cross-examination related to his honesty. It has not been shown that rulings made by Bromwich J in the course of the cross-examination were incorrect. Moreover, in Kimber (No 1), his Honour described the hearing of Ms Kimber’s interlocutory application as proceeding over a full day, much of which was consumed by the cross-examination of Mr Clark. Demonstration of an incorrect ruling with respect to singular questions would not demonstrate that Ms Kimber was denied a fair opportunity to cross-examine the witness or to present her case more generally.

47    Ms Kimber’s written materials and oral submissions otherwise contained multiple references to the rules of procedural fairness being breached in a long history of legal proceedings other than in the proceedings in which the presently impugned orders were made. Those arguments do not justify the grant of leave for reasons subsumed in the paragraphs that follow.

Alleged failure to have regard to affidavits

48    Ms Kimber alleged that the reasons of Perry J disclose that her Honour listed only some of the affidavits upon which she relied and that there had been a failure to read additional affidavits upon which she had relied. That submissions cannot be sustained. Whilst it is true that the reasons for judgment make express reference to only some affidavits, the transcript discloses that a supplementary court book containing affidavits was received and read, as was an additional affidavit standing apart from that court book. On the present application Ms Kimber has not demonstrated an arguable case that the material was not in fact considered. In any event, the material upon which Ms Kimber relied for the most part does not address aspects of the reasons in Kimber (No 3) that are critical to the exercise of the discretion to grant leave to appeal, specifically relating to her financial position and delay.

Alleged failure to receive solvency report

49    In her written submissions, Ms Kimber alleged that Perry J wrongly denied her the opportunity to admit into evidence the report of a financial accountant relating to her financial situation. The reasons in Kimber (No 3) state that a report Ms Kimber had sought to rely upon related to her financial position in 2019 and so could not prove her solvency at the time that the debtor’s petition was presented. To the extent that the report was ruled inadmissible (which is unclear) there is no arguable error shown. Ms Kimber’s oral submissions concerning her solvency were based on an assertion that she could pay her “valid” debts, excluding from that description the debt forming the subject of the Owners Corporation’s petition.

50    Ms Kimber’s solvency at the time of the debtor’s petition was a question of significance on her annulment application for the very reason that she had made it so. Solvency was the ground for annulment put forward on the face of the originating application. In my view, Ms Kimber cannot succeed on an appeal to the Full Court unless she can show some compelling basis for the annulment of her bankruptcy in circumstances where her creditors will not be paid and the Trustees will not be remunerated. That was a singular and sufficient reason to dismiss the annulment application and is now a singular and sufficient reason to dismiss the application for leave to appeal.

Alleged apprehended bias

51    The test for apprehended bias is sometimes referred to as the “double might test”. It is whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the issue he or she is to decide: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, Gleeson CJ, McHugh, Gummow and Hayne JJ (at [6]); Isbester v Knox City Council (2015) 255 CLR 135, Kiefel, Bell, Keane and Nettle JJ (at [12]). See also ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30, Allsop CJ, Kenny and Griffiths JJ (at [35] — [36]). As I explained in Burgess v Minister for Immigration and Border Protection (2018) 259 FCR 197 (at [36]):

Judicial statements to the effect that an allegation of apprehended bias must be distinctly made and clearly established are not to be understood as altering the degrees of likelihood inherent in the test itself: see MZZXM v Minister for Immigration and Border Protection [2016] FCA 405 at [106] and the cases cited therein. Each ‘might’ in the double might test connotes a degree of likelihood that is lower than that which may be required by the civil standard of proof in an ordinary fact-finding context. It must nonetheless be shown that the reasonable lay observer might apprehend that the decision-maker might have a foreclosed mind. It is not sufficient to demonstrate that the observer may have ‘a vague sense of unease or disquiet’ on the question: Jones v Australian Competition and Consumer Commission (2002) 76 ALD 424 (Jones) at [100] (Weinberg J).

52    Ms Kimber alleges apprehended bias affecting the Dismissal Order in two respects.

53    First, Ms Kimber alleged that Perry J had proceeded to a decision on the summary judgment application having previously decided other proceedings against her. In and of itself, that is not a sufficient basis to support a conclusion of apprehended bias. Ms Kimber did not explain how the substance of the earlier judgment was related to the annulment proceeding in such a way as to preclude the same judicial officer from presiding. A similar complaint alleging apprehended bias against Bromwich J by virtue of his Honour’s involvement in an earlier proceeding must also be rejected as fundamentally without merit.

54    Secondly, it was alleged that the conduct of encouraging the Trustees to amend their interlocutory application gave rise to an apprehension that Perry J was assisting the Trustees to succeed in bringing her annulment application to an end. That argument does enjoy reasonable prospects of success, given that Perry J was plainly correct in characterising the interlocutory application as one that in substance sought an order for summary dismissal and not merely an order to strike out a pleading with no opportunity to replead.

55    Separately and discretely, it is plain from the history of the proceeding at first instance that Ms Kimber was an experienced litigant who was aware of her right to seek to have a judicial officer disqualified for apprehended bias. Indeed, she made an application that Perry J recuse herself, then withdrew the application for reasons that are not said to be related to any wrongdoing on the part of the Trustees or Perry J. Notwithstanding her status as self-represented litigant, I consider Ms Kimber’s failure to make and press an apprehended bias application at first instance, founded on facts then known, weighs against the exercise of discretion to now grant leave to appeal on grounds of apprehended bias expressly abandoned at first instance.

Alleged erroneous application of summary judgment principles

56    Next, Ms Kimber alleged that whilst Perry J correctly stated the principles guiding the Court’s power to award summary judgment, her Honour misapplied those principles when concluding that her action could not succeed. That argument proceeded from the premise that Perry J ought to have found that there was an adequate evidentiary basis to substantiate Ms Kimber’s allegations of wrongdoing by the Owners Corporation and the Trustees such that the annulment application ought to have been permitted to proceed to a trial in the nature of a wide-ranging enquiry into those issues. This complaint was inextricably connected with arguments that Perry J had failed to have regard to relevant evidence, including evidence of wrongdoing on the part of others.

57    Ms Kimber submitted that each primary judge had failed to consider “serious misconduct allegations” as “valid legal argument” and instead treated them as “a personal grievance or beliefs”.

58    That submission must also be rejected.

59    By way of illustration, in the course of submissions on this application, Ms Kimber was invited to take the Court to the evidence upon which she relied to establish an allegation that Mr Clark had induced her to lodge the debtor’s petition in circumstances that were unconscionable. Her submissions were to the effect that Mr Clark had assured her that he would adjudicate (presumably in her favour) the judgment debt relied upon by the Owners Corporation in support of the creditor’s petition that was then on foot.

60    It may be accepted that evidence in support of such an allegation may take the form of testimony, and that where there is a contest of credible testimony on a critical factual question, summary judgment would ordinarily not be ordered.

61    Notwithstanding the opportunity provided to Ms Kimber, she was unable to identify evidence (including in the nature of testimony) to furnish arguable support for a finding that she was wrongly induced to present a debtor’s petition, of sufficient cogency that could withstand the Trustees’ summary judgment application.

62    To the extent that the same allegation was made in the proceeding at first instance, it was properly characterised as scandalous or vexatious. At best, it may be a product of Ms Kimber’s subjective but incorrect understanding that the Trustee would assume the role of an advocate, advancing her interests over those of her creditors in the administration of her bankrupt estate. In large part her submissions were underscored by that incorrect assumption, amounting to a complaint that the Owners Corporation’s debt ought not to have been proved in the bankruptcy. The admission of that proof of debt has not been shown to be an act of wrongdoing on the part of the Trustees. To the contrary, the Trustees disputed the proof of debt, and later obtained the approval of Driver J for the settlement of that dispute. A Full Court dismissed Ms Kimber’s appeal from those orders. The circumstance that Ms Kimber was dissatisfied with the outcome of that process does not support a finding of wrongdoing on the Trustees’ part, nor does it provide an arguable basis for the annulment of the bankruptcy.

63    I conclude that there is no arguable basis to support a conclusion that Perry J mischaracterised some of Ms Kimber’s materials as containing vexatious and scandalous material insofar as it alleged wrongdoing on the part of the Trustees. I am reinforced in that view by the nature of the submissions made by Ms Kimber on the present application, including an entirely unsubstantiated allusion to the possibility that there may have been conspiracy between the Owners Corporation and the Trustees to defeat her interests in defending the creditor’s petition.

64    As for the alleged wrongdoing against the Owners Corporation, Perry J did not embark upon a factual enquiry into the very long history of disputes and litigation giving rise to a series of costs orders against Ms Kimber. Ms Kimber went bankrupt on her own petition at a time when the creditor’s petition was pending. In light of Ms Kimber’s failed attempts to have the bankruptcy notice underpinning the creditor’s petition side aside, there is no arguable error in the conclusion that Ms Kimber would been made bankrupt on the creditor’s petition had she not presented her own petition. In and of itself, that was a sufficient (indeed compelling) basis to enter summary judgment on the annulment application.

65    The allegation that the primary judge misapplied summary judgment principles is accordingly without sufficient merit to justify consideration by a Full Court.

Alleged “contaminated” judgments

66    There are many pages of submissions and multiple grounds of appeal relating to this topic. They are collectively to the effect that in the course of her disputes with the Owners Corporation (and later the Trustees) Ms Kimber had been the victim of fraud, malpractice, negligence and appealable error. Ms Kimber’s submissions are based on an assumption that the annulment application was an appropriate procedure by which all of those alleged wrongs could and should be investigated and put right. By way of example, she alleged appealable error on the part of Perry J consisting of a failure to hear evidence and arguments that “connected” the annulment application to previous related proceedings. Her submissions on that topic included attempts to go behind cost judgments forming the subject of a prior bankruptcy notice.

67    The difficulty with those proposed grounds is that Ms Kimber delayed bringing the annulment application for some years, notwithstanding that she was made bankrupt on her own petition and notwithstanding that the multitude of alleged prior wrongs are historic in their nature.

68    There is no challenge to Bromwich J’s factual finding that there was no reasonable explanation for the delay in bringing the annulment application, and it is apparent that the delay was also an important consideration supporting the Dismissal Order. There is nothing on the material before me capable of supporting a conclusion that either primary judge erred in concluding that Ms Kimber had no prospects of having her bankruptcy annulled in light of that unexplained delay, considered against the context of the multitude of prior proceedings in which Ms Kimber had complained of the same wrongs.

Procedural irregularities

69    There are a series of claims alleging procedural irregularities in a number of proceedings, however Ms Kimber has not demonstrated that any of them (if established) were productive of substantive unfairness in the particular proceeding in which the Dismissal Order, Costs Order or Fixed Sum Order were made.

Other complaints

70    In these reasons I have not directly addressed each and every argument advanced by Ms Kimber in support of her application for leave to appeal. It is not necessary to do so as I have identified critical obstacles to the grant of leave that have not been overcome. Of critical importance are the findings of Perry J that the creditor’s petition would inevitably have resulted in Ms Kimber’s bankruptcy even if she had not presented a debtor’s petition, coupled with the circumstance that she had put forward no proposal for the remuneration of the Trustees upon any annulment.

71    In circumstances where there is no arguable error affecting either of those critical findings any appeal to the Full Court is bound to fail.

72    The Costs Order and Fixed Sum Order were each incidental to Bromwich J’s earlier conclusion that the annulment application enjoyed no reasonable prospects of success. With respect, his Honour’s conclusion on that question was undoubtedly correct. It has not been demonstrated that Bromwich J made any arguable appealable error in dismissing the interlocutory injunction based on the material before him at that time. The introduction of new evidence on any appeal would not alter that finding.

No substantial injustice should the decisions be wrong

73    It remains necessary to ask whether substantial injustice would be suffered by Ms Kimber should the judgments subject to the application for leave to appeal be wrong.

74    In my view, there would be no injustice in the relevant sense. That is because Ms Kimber was given every opportunity in this proceeding to adduce evidence (including new evidence) upon which she wished to rely. I am satisfied that that material fairly represents the evidence upon which she would rely if her annulment application were to proceed to trial. The material for the most part is an invitation for the Court to revisit all of the judgments and orders made against Ms Kimber in the past. Two critical things are missing. First, there is no reasonable explanation for the delay in bringing the annulment application. Secondly, the evidence does not demonstrate wrongdoing on the part of Trustees so as to warrant an annulment without financial provision for their remuneration. Accordingly, even if there were appealable error justifying the setting aside of the Dismissal Order, there were, and remain, powerful discretionary considerations that in my view would justify the dismissal of the annulment application on its substantive merits at the conclusion of a trial in any event.

Orders

75    There will be an order dismissing the application for leave to appeal and requiring the respondents to make any application for costs within 21 days from the publication of these reasons for judgment. In the event that no such application is made, there will be no order as to costs and this matter will be treated as finalised.

Associate:

Dated:    20 August 2025