Federal Court of Australia

Kimber v Clark in his capacity as trustee of the property of Kimber (No 4) [2026] FCA 997

ORDERS

THE COURT ORDERS THAT:

1.    The appellant pay the first respondent’s costs fixed in the amount of $92,215.55.

2.    The appellant pay the costs of the costs application.

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

REASONS FOR JUDGMENT

BURLEY J:

1 INTRODUCTION

1    On 7 June 2023 the Full Court ordered that the appellant in the proceedings, Janelle Kimber, pay the costs of the first respondent (trustees) and second respondent (owners corporation), to be assessed on a lump sum basis by a Registrar of the Court: Kimber v Clark in his capacity as trustee of the property of Kimber (No 2) [2023] FCAFC 88 (Bromwich, Cheeseman and McEvoy JJ) (FFC costs judgment). The proceedings were referred to a Registrar of the Court who then made procedural directions for the filing of affidavit evidence in respect of the trustees’ costs. Ms Kimber then applied for the proceedings to be listed before a docket judge pursuant to s 35A of the Federal Court of Australia Act 1976 (Cth) (FCA Act), and the matter was referred to me. I have given two judgments since then: Kimber v Clark in his capacity as trustee of the property of Kimber (No 2) [2026] FCA 416 (March judgment) and Kimber v Clark in his capacity as trustee of the property of Kimber (No 3) [2026] FCA 757 (June judgment).

2    The FFC costs judgment followed the determination of a substantive appeal brought by Ms Kimber against the trustees and the owners corporation: Kimber v Clark in his capacity as trustee of the property of Kimber [2022] FCAFC 198 (Bromwich, Cheeseman and McEvoy JJ) (appeal judgment). The appeal judgment provides the background to the present application.

3    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, the trustees, filed an application in the Federal Circuit and Family Court of Australia (then the Federal Circuit Court of Australia) seeking orders relevant to the sale of a unit owned by Ms Kimber (appeal judgment at [6]).

4    Ms Kimber had partially acquired the unit with funds from an award of damages recovered from a personal injury claim (appeal judgment at [5]). As a result, a portion of the proceeds from the sale of the unit were protected from forming part of the bankrupt estate (appeal judgment at [8(a)]) pursuant to s 116 of the Bankruptcy Act 1966 (Cth).

5    The application by the trustees was made under s 90-15 of the Insolvency Practice Schedule (Bankruptcy), which is Schedule 2 to the Bankruptcy Act (appeal judgment at [6]). The case before the primary judge concerned in part, determining the portion of the proceeds of the sale of the unit that were protected monies. The primary judge ultimately determined that 25% of the proceeds were so reserved and that the trustees’ costs must be paid (appeal judgment at [8(a), (c)]). The primary judge also made orders giving effect to the disposal of the unit and the distribution of its proceeds. Ms Kimber appealed from that outcome. The Full Court substantively dismissed the appeal and invited submissions as to costs (appeal judgment at [45]).

6    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 Costs 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 (the property),

such costs to be paid out of the estate of the appellant in priority pursuant to s 109(1) of the Bankruptcy Act 1966 (Cth), and to 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.

7    In the course of its reasons, the Full Court in the FFC costs judgment said at [11]:

Ms Kimber further submits that a personal costs order is likely to deprive her of the benefit of her protected monies payment, as the costs of the Trustees would exceed this payment and frustrate the legislative intent of s 116(4) of the Bankruptcy Act to protect personal injury compensation monies. The response to that is that Ms Kimber, having been discharged from bankruptcy, decided to maintain this appeal. She cannot be heard to complain if she is required to compensate the respondents for their costs incurred in successfully defending her appeal. In those circumstances, it is appropriate that the ordinary rule is applied and accordingly that costs follow the event.

8    The trustees now seek an assessment, on a lump sum basis, of their costs of the appeal proceedings. They rely on two affidavits of Daniela Rose Naidenov, solicitor, dated 17 December 2025 and 25 June 2026, and two affidavits of Belinda Aoude, solicitor, dated 3 June 2026 and 25 June 2026.

9    Ms Kimber opposes the assessment of costs sought by the trustees and relies on affidavits that she has affirmed dated 5 January 2026, 1 May 2026 and 1 July 2026. Ms Kimber also filed an affidavit on 17 July 2026, a week after hearing in this matter, in which she wishes to “clarify matters raised at the costs hearing”. It appears to contain material which ventilates matters in respect of other proceedings, cross-references affidavits filed in other proceedings and continues to agitate issues otherwise settled before this Court and other courts. No leave was granted to rely on the affidavit, the trustees had no opportunity to respond to it, and its contents appear to be irrelevant to the present issue. Accordingly, I decline leave to Ms Kimber to rely on it.

10    Both parties filed written submissions in advance of the hearing. The trustees were represented by Ms Michelle Castle of counsel. Ms Kimber represented herself.

11    For the reasons set out below I assess the costs in the amount of $92,215.55 and order that it be paid by Ms Kimber within 28 days.

2 PRINCIPLES

12    The general power of the Court to award costs is found in s 43 of the FCA Act. Section 43(3)(d) contains an express power to “award a party costs in a specified sum”. In addition, r 40.02(b) of the Federal Court Rules 2011 (Cth) (the FCR) permits a party entitled to costs to apply for an order that costs “be awarded in a lump sum, instead of, or in addition to, any taxed costs”. 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: Beach Petroleum NL v Johnson (No 2) [1995] FCA 350; 57 FCR 119 at 120 (Von Doussa J). See also Paciocco v Australia and New Zealand Banking Group Ltd (No 2) [2017] FCAFC 146; 253 FCR 403 at [15] (Allsop CJ, Besanko and Middleton JJ); Innes v AAL Aviation Limited (No 2) [2018] FCAFC 130 at [12] (Tracey, Bromberg and White JJ).

13    The costs payable under the Costs Orders for the appeal proceeding are to be assessed on a lump sum basis. As the Costs Orders did not further describe the costs, they are to be assessed as costs as between party and party. This is defined in Sch 1 of the FCR as:

costs as between party and party means only the costs that have been fairly and reasonably incurred by the party in the conduct of the litigation.

14    In Innes the Full Court identified a number of matters relevant to the assessment of lump sum costs, the most relevant of which I paraphrase below:

(a)    although the Court may assess the costs on a lump sum basis, this does not preclude it from undertaking a close assessment of the costs relating to a particular issue or a particular category of costs, should the Court consider it appropriate to do so;

(b)    the discretion to award lump sum costs is unconfined and may be exercised whenever the circumstance is warranted; and

(c)    the Court is entitled to take into account the evidence that is before it; its own observations of the proceedings and the judge’s own assessment experience.

See Innes at [15]–[16], citing Paciocco at [18], [20] (Allsop CJ, Besanko and Middleton JJ) and Fewin Pty Ltd v Burke (No 3) [2017] FCA 694 at [10]–[14] (Markovic J).

3 THE TRUSTEE’S EVIDENCE

15    The trustees rely on the affidavit of Ms Naidenov dated 17 December 2025 (Costs Affidavit) in support of the assessment of costs which includes within it a costs summary. The following aspects of that affidavit and other evidence relied upon were emphasised in their submissions:

(1)    the costs summary was prepared in accordance with the Federal Court of Australia’s Costs Practice Note (GPN-COSTS) and sets out the lump sum costs claimed by the trustees. The trustees noted in their submissions that the Practice Note does not define precise categories of work which a costs summary must include, rather, 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 includes an uplift of 25% for the professional fees incurred in the appeal. Schedule 3, Item 11 of the FCR sets out that an additional amount may be allowed having regard to all the circumstances of the case, including: the complexity of the matter, the difficulty of the questions involved in the appeal, the skill, specialised knowledge and responsibility involved and the time and labour expended by the solicitor, the number and importance of the documents prepared and read, the value of the property involved, the general care and conduct having regard to all of the circumstances, allowances made in accordance with the scale of costs and the time within which the work was required to be done.

(3)    as to their application in this proceeding, the trustees justified the uplift with reference to:

(a)    work completed by the lawyers was in circumstances where they were unfunded, and the costs respondent was the appellant in the appeal proceedings;

(b)    a history of multiple proceedings involving the costs applicant and respondent is extensive and protracted (enabling the solicitor to develop intimate knowledge of the matters between the parties);

(c)    the costs agreements as between the parties and their clients being reached on a speculative basis (if the costs were to be recoverable from the realisation of the property.

(4)    a bundle was tendered as an exhibit at the hearing including the invoices rendered by the solicitors to the trustees with itemised costs. The costs are divided into colour coded categories of work completed: attendances, reading, preparing, delegation and research. The trustees drew attention to the fact that Ms Naidenov is experienced in bankruptcy law (having 20 years of experience in the bankruptcy and insolvency practice areas) and charges $550 per hour for her work, which is markedly less than the $650 per hour allowed by Sch 3 of the FCR.

(5)    the amount being sought is set out in the Costs Affidavit is the following amounts, inclusive of the 25% uplift and also GST:

(a)    Professional fees from 19 January 2022 to 8 June 2023 – $109,775.71;

(b)    Disbursements (including counsel’s fees) – $32,094.37.

(6)    the total amount claimed as a lump sum is $141,870.08.

4 MS KIMBER’S CHALLENGE TO THE COSTS ORDERS

4.1 Introduction

16    Ms Kimber presented a number of arguments which were variously directed to the contention that no costs should be paid or alternatively that the costs as assessed should be reduced. Insofar as those submissions sought to revisit matters that were ventilated before the Full Court or the subject of earlier proceedings, those submissions must be set to one side. This matter concerns the assessment of lump sum costs following an order from the Full Court awarding the trustees as such in respect of these proceedings.

4.2 Documentary production

17    Ms Kimber challenged the Costs Affidavit on the basis that insufficient documentary support had been provided by the trustees to enable it to be tested.

18    She first submitted that there was no costs agreement that had been signed between the solicitors and the trustees which would warrant any assessment of costs. She submitted that the only agreement that had been provided to her was unsigned and accordingly ineffective.

19    That submission must be rejected. A costs agreement was provided to the trustees on 20 January 2022 which was expressed to be effective from the date when the trustees provided instructions to the solicitors to act after receiving the costs agreement. I infer from subsequent time entries in the invoice for dates surrounding 20 January 2022 that instructions were received from their client in order to effect work, demonstrating that the costs agreement had been accepted.

20    Ms Kimber next submitted that there was no evidence that the trustees had paid any of the costs. This submission does not address the costs assessment question. It is immaterial whether the solicitors had or had not been paid on the invoices rendered. Furthermore, the costs agreement was subject to a successful outcome in the matter being achieved, which was defined as ‘any recovery of any monies into the bankrupt estate (included but not limited to the proceeds of sale of the property at Unit 110, 450 Pacific Highway, Lane Cove).’ A condition which has demonstrably been satisfied.

21    Ms Kimber thirdly submitted that various other documents ought to have been produced to her in advance of the hearing but were not.

22    The June judgment addresses an interlocutory application filed by Ms Kimber in which she sought orders for the production of various documents from the trustees. That application was met with partial success in that although I found that many of the documents sought were not relevant to the costs assessment I did find that Ms Kimber was entitled to the production of two classes of documents.

23    The first class was documents to be produced in accordance with [4.12] of the Federal Court Costs Practice Note (GPN-COSTS). The documents sought were source material verifying the costs and disbursements claimed. For convenience I repeat the relevant parts of the Practice Note:

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.

24    Given that Ms Kimber is self-represented, I considered that it was appropriate for those materials to be provided to her in advance of the hearing, and so directed: June Judgment at [17], culminating in the June Orders.

25    Finally, in her affidavit of 1 July 2026, Ms Kimber contends that the trustees have not complied with the June Orders. She includes a table of further documents that she submitted ought to have been produced.

26    Most of the documents in respect of which production is sought are either the subject of a ruling in the June judgment rejecting the application for them to be produced or are otherwise irrelevant to the present costs assessment. I address them in short form in the table below:

4.3 Delay in bringing the costs application

27    The documents identified in row 10 above concern the second class of documents identified in the June Orders. They concern the delay between the making of the Costs Orders on 7 June 2023 and the filing of a first affidavit in support of the application in November 2025. Implicit in Ms Kimber’s affidavits and submissions is the suggestion that by reason of that delay, the trustees are not entitled to a costs order in their favour.

28    The affidavit of Ms Naidenov of 25 June 2026 addresses the delay and states that there are no documents to produce in answer to the order for production.

29    I am satisfied with the explanation given by Ms Naidenov as to why the trustees did not approach the Court seeking to obtain an assessment of the costs of the proceedings prior to the filing of the November 2025 affidavit. In short, Ms Naidenov formed the view that Ms Kimber had only limited capacity to deal with applications before the court and that multiple other disputes between Ms Kimber and the trustees required attention prior to the present costs dispute.

30    Ms Naidenov says that she observed Ms Kimber to be at times, confused and distressed and has submitted to the Court during those times that she was only able to focus on one application at a time. She says that by Ms Kimber’s own admission, Ms Kimber has become extremely distressed and unable to function properly when, Ms Naidenov believes, the Court refuses to entertain her submissions. Ms Naidenov annexed a letter sent to the registry in proceedings NSD 207/2023 (2023 proceedings) in which Ms Kimber says:

“Justice Bromwich did not agree to adjourn the hearing, and I became extremely distressed and I was unable to function properly.”

31    In this regard, Ms Naidenov refers to the 2023 proceedings where multiple applications were before the court including: (a) an assessment of costs in favour of the trustees; (b) an application by Ms Kimber to annul her bankruptcy and, in that application, (c) an application by the trustees for summary dismissal of the annulment application; and (d) an application brought by Ms Kimber that the judge to whom the matters had been docketed, Perry J, to recuse herself.

32    Ms Naidenov gives evidence that Ms Kimber asked that the recusal application and the strike out application be heard on different dates. On 21 November 2024, Perry J made orders setting those applications down for hearing on separate dates in December 2024. Subsequently, Ms Kimber withdrew her recusal application and in February 2025, Perry J dismissed the annulment application.

33    The costs assessment remained on foot and was determined by Perry J on 20 May 2025: Kimber v Clark in his capacity as trustee of the property of Kimber (No 4) [2025] FCA 509.

34    Ms Kimber applied for leave to appeal from the decision of Perry J in relation to both the annulment order and also the costs. In addition, Ms Kimber sought leave to appeal from a decision of Bromwich J, dismissing an application for interlocutory relief restraining the execution of a writ of possession in relation to the unit. The application for leave in relation to each of these three matters was refused on 20 August 2025: Kimber v Clark as trustee of the estate of Kimber [2025] FCA 979 (Charlesworth J).

35    Ms Kimber then filed an application to set aside the orders of Charlesworth J, which application was refused on 19 September 2025: Kimber v Clark as trustee of the estate of Kimber [2025] FCA 1181 (Perram J).

36    Ms Naidenov explains that she elected to file the present application following the delivery of that judgment.

37    To the extent that Ms Kimber relies on delay as a basis for there being no costs awarded to the trustees, I reject that contention. The delay appears to have been produced as a result of ongoing litigation pronounced by Ms Kimber and the present application has been filed promptly following the conclusion of the most recent litigation: Wodrow v Commonwealth [2003] FCA 403; 129 FCR 182 at [16]–[17] (Stone J).

4.4 Abuse of process

38    Ms Kimber also challenges the making of any assessment of the costs of the appeal because to do so would, she submits, condone an abuse of process. In support of that submission she cites a number of authorities, including: Ridgeway v The Queen [1995] HCA 66; 184 CLR 19 at [32] (Gaudron J), Rogers v The Queen [1994] HCA 42; 181 CLR 251 at 286-7 (McHugh J), Jago v District Court (NSW) [1989] HCA 46; 168 CLR 23 at [24] (Brennan J), Walton v Gardiner [1993] HCA 77; 177 CLR 378 at [23] (Mason CJ, Deane and Dawson JJ) citing Hunter v Chief Constable of the West Midlands Police (1982) AC 529 at 536 (Diplock LJ).

39    Generally, an abuse of process will exhibit at least one of three characteristics, which have been set out in PNJ v The Queen [2009] HCA 6; 83 ALR 612 at [3] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ). Those characteristics are:

(a)    the invoking of a court’s processes for an illegitimate or collateral purpose;

(b)    the use of the court’s procedures would be unjustifiably oppressive to a party; or

(c)    the use of the court’s procedures would bring the administration of justice into disrepute.

40    The broad principle upon which Ms Kimber relies is that the proceedings should not be permitted on the basis that they have been brought for an improper purpose.

41    Although Ms Kimber does not identify the alleged purpose for which the proceedings were brought, the matters that she raised in submissions include (in summary):

(1)    a challenge to the initial appointment of the trustees;

(2)    allegations that the trustees failed to act in accordance with their duties during the administration of her bankrupt estate;

(3)    failures on the part of the trustees’ solicitors to include her in correspondence sent to the court;

(4)    allegations that the solicitors acted in a scandalous or improper manner;

(5)    allegations that the trustee’s present application for a costs assessment is futile because Ms Kimber has no assets, no resources and ill-health; and

(6)    failure to produce documents to enable her to conduct the defence of the assessment of costs.

42    In answer, the trustees submit that the reason for the present application is to ensure that the solicitors are able to recover some of their costs for the successful outcome of the appeal. They point out that Ms Kimber initiated the appeal and it is she who pursued it to final hearing. They refer to the affidavit of Ms Naidenov of 25 June 2026 where she deposes to the fact that there is in the solicitors’ trust account an amount of $56,748.12, the sum of which was preserved for Ms Kimber as protected moneys. In so doing, the trustees point out that by pursuing the costs assessment they are engaged in a legitimate attempt to recover costs paid as a result of their successful defence of the appeal.

43    I reject Ms Kimber’s submission that the trustees are engaging in proceedings that are an abuse of process. The fact is that it was Ms Kimber who initiated the appeal and whose failure to succeed in that appeal generated the Costs Orders. Many of the matters raised by Ms Kimber in her submissions concern stages of the proceedings that have long been in the past and cannot legitimately be reventilated in this application. For the reasons given in section 4.2, I reject the submission that the trustees have failed to produce documents relevant to the costs assessment. I also reject the submission, which is wholly without foundation, that the solicitors representing the trustees, and in particular Ms Naidenov, have acted in an improper manner. Finally, I reject the submission that the costs assessment is futile and ought not to proceed. Even if one assumes, without evidence, that Ms Kimber has no other assets, it is apparent that the trustee holds funds on account that may be utilised in the payment of the Costs Orders. It is not an abuse of process to seek an order for the recovery of those costs.

5 ASSESSMENT OF COSTS

44    The Costs Affidavit sets out the basis for the assessment of costs in accordance with the Practice Note. Although it is not required by the FCR or the Practice Note, in the June Orders, I ordered that the source materials verifying the costs and disbursements claimed in the Costs Affidavit be provided to Ms Kimber. Ms Aoude’s affidavit of 25 June 2026 sets out the invoices of counsel and the solicitors.

45    I have scrutinised the invoices, which provide a detailed breakdown of the costs time keeping conducted by the solicitors. The invoices are dated 24 November 2022, 14 March 2023 and 4 October 2023. Also included are the invoices of counsel dated 22 November 2022, and 24 December 2022. Invoices for disbursements (filing and printing) are also set out for 4 February 2022, 4 July 2022, 15 August 2022, 6 September 2022 and 4 October 2022.

46    After reviewing the invoices, I am satisfied that the costs claimed by the trustees are fair and reasonable in that the rates charged for the work done are broadly reasonable and the times claimed are reasonable for the work done. In this regard, I note that Ms Naidenov’s hourly rate is substantially lower than the scale costs permitted by Sch 3 of the FCR.

47    I also note that it is not necessary for the award of costs in a lump sum to undertake a line-by-line assessment of the reasonableness of each item as would occur in a taxation.

48    I do consider that it is appropriate to apply a discount to the totality of the amount sought by way of lump sum. That is because the award of costs by the Full Court was on a party and party basis. As a result, the trustees are not permitted to be awarded indemnity costs, which would cover the entirety of the costs, but rather a discount should be applied to the costs claimed to take account, not only of the inevitable reduction in the amount awarded as a result of a taxation on a party and 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: Seafolly Pty Ltd v Madden (No 6) [2015] FCA 1369 at [38] (Tracey J); Broadway Plaza Investments Pty Ltd v Broadway Plaza Pty Ltd; In the matter of Combined Projects (Arncliffe) Pty Ltd (No 3) [2021] NSWSC 1537 at [157] (Ward CJ in eq).

49    The amount of the discount to be applied is specific to the facts of a particular case. As Colvin J stated in Sandalwood Properties Ltd (Subject to a Deed of Company Arrangement) v Huntley Management Ltd (No 2) [2019] FCA 647 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.

50    After reviewing the invoices and having regard to the attendances, in my view an appropriate reduction is 35%.

51    Finally, with respect to the uplift of 25% sought by the trustees, I accept that it is common in proceedings commenced in the Federal Court of Australia to add an uplift as a percentage for skill, care and responsibility. Schedule 3, item 11 of the FCR sets out that an additional amount may be allowed having regard to all of the circumstances including:

(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.

52    In Kimber v Clark in his capacity as trustee of the property of Kimber (No 4) [2025] FCA 509 Perry J said at [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.

(Emphasis in original.)

53    As I have noted, the trustees submit that an uplift of 25% is appropriate. In this regard, I take into account that the appeal concerned a complex and little-explored area of bankruptcy law, being protected monies and the complexities arising from the intermingling of that money with other monies which vest in the trustees. Ms Naidenov is experienced in bankruptcy law (and has previous experience with Ms Kimber in related proceedings). There was difficulty in much of Ms Kimber’s material which contained allegations requiring a senior practitioner to review rather than delegate to a junior staff member.

54    Ultimately I accept that an uplift of 25% is appropriate in all the circumstances.

6 DISPOSITION

55    The total amount claimed by the trustees is $141,870.08, inclusive of the 25% uplift sought by the trustees which I have accepted and disbursements (including counsel’s fees). Accounting for a 35% discount, this brings the total amount I will award to the trustees of $92,215.55. I will order that Ms Kimber pay this amount and also pay the costs of the present application.

Associate:

Dated:    30 July 2026