Kimber v Clark in his capacity as trustee of the property of Kimber (No 2) [2023] FCAFC 88

Federal Court of Australia

Kimber v Clark in his capacity as trustee of the property of Kimber (No 2) [2023] FCAFC 88 Appeal from: Clark and Aravanis in their capacity as joint and several trustees of the property of Kimber v Owners Corporation SP48216 (No 2) [2021] FedCFamC2G 62

File number: NSD 1373 of 2021

Judgment of: BROMWICH, CHEESEMAN AND MCEVOY JJ

Date of judgment: 7 June 2023

Catchwords: COSTS – question of costs reserved after appeal proceedings – where costs of proceedings before the Federal Circuit and Family Court of Australia (Division 2) are to be determined due to a costs order being set aside for clarity reasons – whether costs below should be to be paid out of the estate of the formerly bankrupt appellant in priority pursuant to s 109(1) of the Bankruptcy Act 1966 (Cth) – whether the respondents are entitled to costs from the appellant personally for the appeal proceedings – whether the second respondent was a non-party – whether costs should be assessed on a lump sum basis – held: costs awarded in favour of the respondents, to be paid out of the estate for the proceeding below, and personally for the appeal, both to be assessed on a lump sum basis.

Legislation: Bankruptcy Act 1966 (Cth) ss 116(4), 109(1) Federal Court Rules 2011 (Cth) rr 40.03, 40.04 Costs Practice Note (GPN-Costs) cl 4.1

Cases cited: Frigger v Trenfield (No 11) [2022] FCA 326 James George Turner v Official Trustee in Bankruptcy [1997] FCA 1505 Kimber v Clark in his capacity as trustee of the property of Kimber [2022] FCAFC 198. Life Therapeutics Ltd v Bell IXL Investments Ltd (No 2) [2008] FCAFC 158; 170 FCR 595 Sandvik Intellectual Property AB v Quarry Mining & Construction Equipment Pty Ltd (No 2) [2017] FCAFC 158