Kimber v Clark in his capacity as trustee of the property of Kimber [2022] FCAFC 198

Kimber v Clark in his capacity as trustee of the property of Kimber [2022] FCAFC 198

The appeal failed because Ms Kimber did not establish substantive error by the primary judge. The evidence supported the conclusion that 25 per cent of the proceeds of realising the Unit could fairly be attributed to protected money from her personal injury damages award, and Ms Kimber had accepted or not challenged that figure before the primary judge. Section 116(4) required determination of the proceeds of realising the property, which permitted deduction of sale-related expenses before payment of Ms Kimber's protected-money share. No denial of procedural fairness or inadequacy of reasons was shown. Minor amendments were made to clarify the reliance on s 116(4), remove the word "net",...

Jurisdiction
Australia
Judgment Date
16 November 2022
Procedural Posture
Bankruptcy Appeal / Appeal From Orders Made by a Judge of the Federal Circuit and Family Court of Australia (division 2), Formerly the Federal Circuit Court of Australia, Pursuant to a Limited Grant of Leave
Outcome
Appeal otherwise dismissed; declarations and orders varied in minor respects; costs in relation to the appeal reserved until delivery of reasons and to be determined after further material.
Legal Topics
['administration of Bankrupt Estate' 'sale of Real Property' 'protected Money From Personal Injury Damages' 'property Divisible Among Creditors' 'priority Payments' 'procedural Fairness' 'costs']
['bankruptcy' 'insolvency' 'property'] ['administration of Bankrupt Estate' 'sale of Real Property' 'protected Money From Personal Injury Damages' 'property Divisible Among Creditors' 'priority Payments' 'procedural Fairness' 'costs']

Case Brief

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Procedural Posture

Bankruptcy Appeal / Appeal From Orders Made by a Judge of the Federal Circuit and Family Court of Australia (division 2), Formerly the Federal Circuit Court of Australia, Pursuant to a Limited Grant of Leave

Legal Issues

  1. 1 ['Whether the primary judge erred in declaring that Ms Kimber enjoyed a 25 per cent interest in the net proceeds following sale of the Unit by reason of protected money from a personal injury damages award.' 'Whether the primary judge erred in ordering the sequence of payments from the proceeds of sale of the Unit, including sale-related expenses before payment to Ms Kimber.' 'Whether the primary judge failed to give adequate findings and reasons or denied procedural fairness.' 'Whether the costs order made by the primary judge should stand.']

Ratio Decidendi

The appeal failed because Ms Kimber did not establish substantive error by the primary judge. The evidence supported the conclusion that 25 per cent of the proceeds of realising the Unit could fairly be attributed to protected money from her personal injury damages award, and Ms Kimber had accepted or not challenged that figure before the primary judge. Section 116(4) required determination of the proceeds of realising the property, which permitted deduction of sale-related expenses before payment of Ms Kimber's protected-money share. No denial of procedural fairness or inadequacy of reasons was shown. Minor amendments were made to clarify the reliance on s 116(4), remove the word "net",...

Court Disposition

Appeal otherwise dismissed; declarations and orders varied in minor respects; costs in relation to the appeal reserved until delivery of reasons and to be determined after further material.

Orders

  • ['The declarations and orders made by the primary judge on 7 September 2021 be varied as follows: Declaration 2 be varied to add after "s 116(2)(g)" the words "and s 116(4)".' 'The chapeau of order 6 be varied by deleting the word "net".' 'Order 6(e) be deleted.' 'Order 6(i) be varied by replacing "s 116(2)(g)" with...