Kimber v Clark No 2 - Costs Quantum Proceedings

Original Word Document (72.3 KB) Federal Court of Australia

Kimber v Clark in his capacity as trustee of the property of Kimber (No 2) [2026] FCA 416

| File number(s): | NSD 1373 of 2021 |
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| Judgment of: | BURLEY J |
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| Date of judgment: | 23 March 2026 |
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| Catchwords: | PRACTICE AND PROCEDURE – referral of costs quantum proceedings to docket judge – admissibility of costs summary – order sought for production of trust account records – no application before the court – not appropriate to make further orders |
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| Legislation: | Bankruptcy Act 1966 (Cth) sch 2 s 90-15 |
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| Cases cited: | Kimber v Clark in his capacity as trustee of the property of Kimber (No 2) [2023] FCAFC 88 |
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| Division: | General Division |
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| Registry: | New South Wales |
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| National Practice Area: | Commercial and Corporations |
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| Sub-area: | General and Personal Insolvency |
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| Number of paragraphs: | 4 |
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| Date of hearing: | 23 March 2026 |
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| Counsel for the Appellant: | The Appellant appeared in person |
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| Counsel for the First Respondent: | Ms M Castle |
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| Solicitor for the First Respondent: | Kerrs Law Pty Ltd |

ORDERS

| | | NSD 1373 of 2021 |
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| BETWEEN: | JANELLE KIMBER

Appellant | |
| AND: | ALEXANDER DAVID CLARK AND ANDREW ARAVANIS IN THEIR CAPACITY AS JOINT AND SEVERAL TRUSTEES OF THE PROPERTY OF JANELLE MARY KIMBER, A REGULATED DEBTOR

First Respondent

OWNERS CORPORATION SP48216

Second Respondent | |

| order made by: | BURLEY J |
| DATE OF ORDER: | 23 mARCH 2026 |
THE COURT ORDERS THAT:

1. The application for an extension of time by the Appellant to review Orders 1, 2 and 4 of Registrar Segal’s Orders of 12 December 2025 is dismissed.

2. The application filed by the Appellant on 5 January 2026 is dismissed.

3. By 1 May 2026, the Appellant file any Costs Response affidavit in accordance with paragraphs 4.13 and 4.14 of the Costs Practice Note (GPN-COSTS), not exceeding seven pages in length.

4. By 15 May 2026, the Respondent file written submissions on the matter of quantum of costs limited to 10 pages.

5. By 5 June 2026, the Appellant file submissions in response limited to 10 pages.

6. The matter be listed for hearing on 10 July 2026 at 10:15am, for half a day.

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

REASONS FOR JUDGMENT

BURLEY J:

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, 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.

2 On 12 December 2025, a Registrar of the Court made directions for the filing of affidavit evidence and, on the application of Ms Kimber, for the proceedings concerning the quantum of the first respondent’s costs of the appeal to be referred for allocation to a docket judge.

3 On 23 March 2026, as the docket judge, I conducted a case management hearing. On that occasion I made directions for the filing of affidavits and set the proceedings down for hearing. During the course of the hearing, Ms Kimber sought, as direction 3 in her draft short minutes of order, an order that I make preliminary rulings going to the admissibility of a costs summary filed on behalf of the first respondent. I declined to make that order on the basis that this is a question for determination at the hearing. Ms Kimber also sought, as direction 4, an order pursuant to Schedule 2, section 90-15 of the Bankruptcy Act 1966 (Cth) for the production of certain trust account records by the first respondent. Prior to the provision by Ms Kimber of draft short minutes of order, no application was before the court in this regard. After making enquiries of counsel for the first respondent, I directed that the first respondent respond to requests for production of documents as communicated to them by Ms Kimber. Otherwise, I did not consider it appropriate to make further orders in this regard at the case management hearing.

4 These reasons are given following a request by Ms Kimber for an explanation as to why directions 3 and 4 of her proposed short minutes of order were not made. Whilst in my view those reasons are apparent from the transcript, I provide them separately to assist the parties.

| I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Burley. |
Associate:

Dated: 13 April 2026

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