Federal Court of Australia

Kimber v Clark in his capacity as trustee of the property of Kimber (No 3) [2026] FCA 757

ORDERS

THE COURT ORDERS THAT:

1.    By 26 June 2026, the respondents provide to the appellant the source materials verifying the costs and disbursements claimed in the costs summary affidavit sworn by Ms Daniela Naidenov on 17 December 2025.

2.    By 26 June 2026, the respondents provide to the appellant and the Court a copy of any directions, requests for extension of time or communications to or from the Court relating to assessment of costs in these proceedings, made subsequent to 7 June 2023.

3.    The costs of the appellant’s interlocutory application dated 26 May 2026 be reserved.

4.    The appellant’s interlocutory application dated 26 May 2026 otherwise be dismissed.

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

REASONS FOR JUDGMENT

BURLEY J:

1.    BACKGROUND

1    These proceedings arise from Order 2 made on 7 June 2023 by the Full Court of the Federal Court in Kimber v Clark in his capacity as trustee of the property of Kimber (No 2) [2023] FCAFC 88 (Bromwich, Cheeseman, McEvoy JJ) (FFC costs judgment) which requires that the appellant, Janelle Kimber, pay the first and second respondents’ costs of the appeal proceedings, to be assessed on a lump sum basis by a Registrar of the Court. That costs order was made as a result of the outcome of a substantive appeal that was determined in Kimber v Clark in his capacity as trustee of the property of Kimber [2022] FCAFC 198 (appeal judgment).

2    The appeal judgment provides the background to the present application. Ms Kimber became a bankrupt on her own debtor’s petition on 22 August 2019. She was discharged from bankruptcy on 23 August 2022 (appeal judgment at [4]). On 28 April 2021, her trustees in bankruptcy (being the respondents, or present costs applicants) filed an application in the Federal Circuit and Family Court of Australia (then the Federal Circuit Court) seeking orders relevant to the sale of a unit owned by Ms Kimber (appeal judgment at [6]). Ms Kimber had partially acquired the unit with funds from an award of damages recovered for personal injury (appeal judgment at [5]). As a result, a portion of the proceeds from the sale were protected from the bankrupt estate (appeal judgment at [8(a)]). This outcome was pursuant to s 116 of the Bankruptcy Act 1966 (Cth) and the application was made under s 90-15 of the Insolvency Practice Schedule (Bankruptcy), which is Schedule 2 to the Bankruptcy Act (appeal judgment at [5]). The case concerned the portion of the proceeds that were protected. The primary judge determined a number of matters, including that 25% of the proceeds were so reserved and that the trustees’ costs be paid (appeal judgment at [8(a), (c)]).

3    The Full Court substantively dismissed the appeal and invited submissions as to costs (appeal judgment at [45]).

4    In the FFC costs judgment the Full Court declined Ms Kimber’s application for an order that there be no order as to costs, and made the following orders:

(1)    The appellant pay:

(a)    the first and second respondents’ costs of the application before the Federal Circuit and Family Court of Australia (Division 2); and

(b)    the costs and expenses of removing and disposing of any personal property on Unit 110, 450 Pacific Highway, Lane Cove in the State of New South Wales, being the whole of the land contained in Certificate of Title Folio Identifier 110/SP 48216,

such costs to be paid out of the estate of the appellant in priority pursuant to s 109(1) of the Bankruptcy Act and be assessed on a lump sum basis by a registrar of this Court.

(2)    The appellant pay the first and second respondents’ costs of the appeal proceedings, to be assessed on a lump sum basis by a registrar of this Court.

5    On 23 March 2026 I conducted a case management hearing and delivered brief reasons for declining certain orders sought by Ms Kimber: Kimber v Clark in his capacity as trustee of the property of Kimber (No 2) [2026] FCA 416.

6    The orders that I made included that Ms Kimber file any costs response affidavit by 1 May 2026, that the respondents (i.e. the costs applicants) file written submissions on the quantum of costs by 15 May 2026, and that by 5 June 2026 Ms Kimber file any submissions in response. The matter is listed for hearing on 10 July 2026.

7    Ms Kimber filed an affidavit dated 1 May 2026 in accordance with the orders of 23 March 2026.

8    On 20 May 2026 the respondents’ submissions on the quantum of costs were filed. Ms Kimber was granted a commensurate extension to file her submissions in response, which she did on 10 June 2026.

2.    THE INTERLOCUTORY APPLICATION

9    On 26 May 2026 Ms Kimber filed an interlocutory application seeking the following orders:

(1)    Leave to proceed with the interlocutory application on the papers;

(2)    “Conditional exclusion of late material”, being that the respondents’ submissions filed on 20 May 2026 be excluded from the material to be considered in the hearing unless the late filing of the submissions was explained and a number of “Requested Records” sought by Ms Kimber were provided by the respondents;

(3)    An order that the respondents produced the “Requested Records” within 14 days;

(4)    The “enforcement steps in relation to the Kerrs Costs Summary claim” be stayed pending compliance with any production order; and

(5)    Costs of the application be thrown away.

10    Requested order 1 concerns leave to proceed with the present interlocutory application on the papers. I directed that the respondents indicate whether they opposed determination on the papers, and if not that they file any affidavit in response or submissions in answer. The respondents indicated by email that they agreed it was appropriate for the application to be determined on the papers. On 9 June 2026 the respondents filed their submissions in response to the application, together with an affidavit in support given by Ms Belinda Aoude.

11    Requested order 2 seeks two orders. The first is exclusion of the respondents’ submissions of 20 May 2026. I refuse that order. Ms Kimber has been granted a commensurate extension to file submissions in response. The second is that the “Requested Records” be provided by the respondents. Order 3 similarly seeks production of the “Requested Records”.

12    The “Requested Records” sought by Ms Kimber, as specified in [28] of her affidavit, are:

(a)    a full financial statement for Folio 110/SP48216 including the trustees’ and solicitor’s trust account ledger entries of all payments, receipts, invoices, disbursements and distributions (dates and running balances) from the start of the trustees’ administration of Folio 110/SP48216;

(b)    taxation invoices and receipts supporting disbursements paid from Folio 110/SP48216 funds;

(c)    signed costs agreements or retainer letters justifying a 25% uplift speculatively charged; and

(d)    all NSW registry, Registrar or Chambers communications relating to the 17 November 2025 late-filing of NSD 1373/2021 costs materials almost 2.5 years out of time.

13    The request in (a) is misconceived. It is not sufficiently addressed to the subject matter of the present costs determination but rather the subject matter of the appeal.

14    However, the requests in (c), and potentially (b), do concern the present assessment of costs.

15    The Federal Court Costs Practice Note (GPN-COSTS) relevantly provides:

Material in Support

4.10    Unless the Court otherwise directs, no formal application for a lump-sum costs order is required. However, in cases where a lump-sum costs procedure is to take place, the Costs Applicant should file an affidavit in support of the lump-sum claim ("Costs Summary") in accordance with the timetable set by the judge. The Costs Summary should succinctly address the relevant matters set out in Part B of "Annexure A - Guide for Preparing a Costs Summary" and must also verify the matters set out in Part A of Annexure A.

4.11    The Costs Summary must be clear, concise and direct and not resemble a bill of costs in taxable form, nor should it contain submissions on the law. The intention of the lump-sum costs procedure is to streamline and expedite the determination or resolution of the quantum of costs question and not to replicate the taxation process.

4.12    Unless leave is given by the Court in advance of filing, the Costs Summary must not exceed 5 pages in length (omitting formal parts) or, in large or complex cases, no more than 10 pages. The Costs Applicant is not required to exhibit to the Costs Summary the source material verifying the costs and disbursements claimed. However, such material must be available at the costs hearing.

Material in Response

4.13    The Costs Respondent may file an affidavit responding to the matters raised in the Costs Summary ("Costs Response") in accordance with the timetable set by the judge.

4.14    Any Costs Response must be clear, concise and direct and briefly summarise the categories of any disputes arising in respect of the Costs Summary. The summary should not resemble formal costs objections (as prepared for a taxation of costs) nor contain submissions on the law. The Costs Response should make clear which of the costs issues arising from the Costs Summary are in dispute and which are not, and should not exceed 4 pages in length (omitting formal parts) or, in large or complex cases, no more than 8 pages.

Submissions

4.15    If the parties are given leave by the Court to do so, they may file short written submissions addressing the law as to costs on relevant issues in accordance with any timetable set by the Court. Unless leave is given by the Court in advance of filing, any submissions must not exceed 3 pages in length.

16    The costs summary affidavit of Ms Daniela Naidenov of 17 December 2025 in support of the lump sum assessment expresses that the deponent has read the Practice Note. The Practice Note provides that the source material verifying the costs and disbursements claimed in the costs summary affidavit must be available at the hearing: [4.12].

17    Ms Kimber wishes to be in possession of the materials relied upon in support of the costs summary affidavit in advance of the hearing. Given that she is self-represented, I accept that this is appropriate. Accordingly, I will direct that the respondents provide to Ms Kimber the materials verifying the costs and disbursements claimed as required to be provided in accordance with [4.12] of the Practice Note, not less than ten working days prior to the hearing of the costs application, being 26 June 2026.

18    Request (d) concerns the late filing of the costs summary affidavit. The costs order in the FFC costs judgment was made on 7 June 2023. The costs summary affidavit of Ms Daniela Naidenov was first made and filed on 17 November 2025, following which leave was granted by Registrar Segal to file an amended costs summary affidavit, which was sworn and filed on 17 December 2025.

19    In her affidavit of 1 May 2026, Ms Kimber notes the delay and that she was not asked to consent to what she considers to be the late filing of the costs summary affidavit, and foreshadows, in effect, that she will at the hearing seek orders dismissing the application for costs on the basis of this delay. I accept that an explanation of the procedural steps taken, or not taken, by the respondents pursuant to the costs order may be relevant to that application. Accordingly, I will require that the respondents produce to the Court and to Ms Kimber no later than ten working days before the hearing (that is, by 26 June 2026) a copy of all directions, requests for extension of time or communications to or from the Court relating to any application for assessment of costs made subsequent to the 7 June 2023 orders in the FFC costs judgment, excluding materials from after the affidavit of 17 November 2025 was filed.

20    Requested order 4 seeks a stay of enforcement of the assessment of quantum pending production of documents. I see no basis upon which that should be made.

21    Requested order 5 seeks for costs of the interlocutory application to be thrown away. I will reserve the question of costs of the application.

3.    CONCLUSION

22    I will order that the respondents, by 26 June 2026, produce to Ms Kimber the materials verifying the costs and disbursements claimed in the costs summary affidavit as required to be provided in accordance with [4.12] of the Practice Note, and produce to Ms Kimber and the Court a copy of any directions, requests for extension of time or communications to or from the Court relating to assessment of costs in these proceedings made subsequent to 7 June 2023.

Associate:

Dated:    17 June 2026