Kimber v Clark in his capacity as trustee of the property of Kimber (No 3) [2025] FCA 86

FEDERAL COURT OF AUSTRALIA Kimber v Clark in his capacity as trustee of the property of Kimber (No 3) [2025] FCA 86 File number(s):

Judgment of: PERRY J

Date of judgment: 17 February 2025

Catchwords: PRACTICE AND PROCEDURE – where applicant has filed an application for annulment of bankruptcy pursuant to s 153B of the Bankruptcy Act 1966 (Cth) – interlocutory application by respondents for summary dismissal under s 31A of the Federal Court of Australia Act 1976 (Cth) and r 26.01 of the Federal Court Rules 2011 (Cth) – whether annulment application fails to disclose a reasonable cause of action – whether annulment application constitutes abuse of process – application for annulment dismissed

Bankruptcy Act 1966 (Cth) s 153B Legislation: Federal Court of Australia Act 1976 (Cth) ss 31A, 37AO(4), pt VAAA Federal Court Rules 2011 (Cth) rr 16.21, 26.01

Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 Kimber v Clark in his capacity as trustee of the property of Kimber (No 2) [2024] FCA 1405 Kimber v Clark in his capacity as trustee of the property of Kimber [2023] FCA 310 Cases cited: Kimber v The Owners Strata Plan No 48216 (No 2) [2018] FCA 406 Oceanic Sun Line Special Shipping Co Inc v Fay [1988] HCA 32; (1988) 165 CLR 197 Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473 Shammas v Canberra Institute of Technology [2014] FCA 71 Symes v Holbrook [2003] FCA 96 Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378