Kimber v Clark in his capacity as trustee of the property of Kimber (No 2) [2024] FCA 1405

Federal Court of Australia

Kimber v Clark in his capacity as trustee of the property of Kimber (No 2) [2024] FCA 1405 File number(s): NSD 207 of 2023

Judgment of: PERRY J

Date of judgment: 4 December 2024

Catchwords: PRACTICE AND PROCEDURE –application for leave to issue a subpoena prior to hearing of interlocutory application for summary dismissal under s 31A Federal Court of Australia Act 1976 (Cth) – no apparent relevance of subpoena material to the substantive application or to defending the application for summary dismissal – oral application for adjournment of hearing of application for summary dismissal – obligation of the Court and the parties under ss 37N and 37M of the Federal Court of Australia Act 1976 (Cth) – application refused

Legislation: Federal Court of Australia Act 1976 (Cth) ss 31A, 37M, 37N

Division: General Division

Registry: New South Wales

National Practice Area: Commercial and Corporations

Sub-area: General and Personal Insolvency

Number of paragraphs: 11

Date of hearing: 4 December 2024

Counsel for the Applicant: The applicant appeared in person.

Counsel for the Respondent: Ms M Castle

Solicitor for the Respondent: Kerrs Law Pty Ltd

ORDERS NSD 207 of 2023

BETWEEN: JANELLE KIMBER Applicant AND: ALEXANDER CLARK & ANDREW ARAVANIS JOINT & SEVERAL TRUSTEES OF FOLIO:110/SP48216 THE ESTATE OF JANELLE MARY KIMBER Respondent

order made by: perry j DATE OF ORDER: 4 December 2024

THE COURT ORDERS THAT:

1. The applicant's application for leave to issue a subpoena, including in the amended terms indicated by the applicant at the case management hearing on 4 December 2024, is refused. 2. The respondents are granted leave to amend their interlocutory application, accepted for filing on 16 March 2023, to clarify that they seek summary dismissal under s 31A of the Federal Court of Australia Act 1976 (Cth) on or before 4pm on Thursday 5 December 2024. 3. The respondents are granted leave to amend their submissions filed on 1 November 2024 to the extent necessary to give the applicant proper notice as to the principles relevant to an application for summary dismissal on or before 4pm on Thursday 5 December 2024. 4. The applicant's oral application for an adjournment of the hearing on Friday 13 December 2024 of the respondent's application for summary dismissal is dismissed.