Kimber v Clark in his capacity as trustee of the property of Kimber [2022] FCA 177

Kimber v Clark in his capacity as trustee of the property of Kimber [2022] FCA 177

Leave to appeal is granted only in respect of the quantification and prioritisation of the applicant's personal injuries award exemption under s 116 of the Bankruptcy Act, since there is a reasonable argument the calculation and reasoning for the 25% allocation was not properly explained. Otherwise, the applications for extension of time and further leave to appeal are refused, as there is no arguable error or substantial injustice relating to other issues raised.

Jurisdiction
Australia
Judgment Date
08 February 2022
Procedural Posture
Bankruptcy Appeal / Application for Leave to Appeal and Extension of Time
Outcome
Leave to appeal granted in part, otherwise dismissed; extension of time dismissed; partial costs order made; stay of certain orders pending appeal; referral for legal assistance ordered.
Legal Topics
['trustees in Bankruptcy' 'compromise of Claims' 'costs Orders in Bankruptcy' 'personal Injuries Exemption' 'property Divisible Among Creditors' 'extension of Time' 'leave to Appeal']
['bankruptcy and Insolvency'] ['trustees in Bankruptcy' 'compromise of Claims' 'costs Orders in Bankruptcy' 'personal Injuries Exemption' 'property Divisible Among Creditors' 'extension of Time' 'leave to Appeal']

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Procedural Posture

Bankruptcy Appeal / Application for Leave to Appeal and Extension of Time

Legal Issues

  1. 1 ["Whether there was error in acceptance of trustees' calculation of value of personal injuries award exempted from divisible property under s 116(2)(g) and (4) of Bankruptcy Act 1966 (Cth)" 'Whether the priorities for payment out of proceeds of sale were correctly determined' 'Whether the Federal Circuit and Family Court had power to make the 2019 costs order as a provable debt in bankruptcy' 'Whether there was arguable error in declining to recuse' 'Whether there were grounds to summarily dismiss further applications as vexatious']

Ratio Decidendi

Leave to appeal is granted only in respect of the quantification and prioritisation of the applicant's personal injuries award exemption under s 116 of the Bankruptcy Act, since there is a reasonable argument the calculation and reasoning for the 25% allocation was not properly explained. Otherwise, the applications for extension of time and further leave to appeal are refused, as there is no arguable error or substantial injustice relating to other issues raised.

Court Disposition

Leave to appeal granted in part, otherwise dismissed; extension of time dismissed; partial costs order made; stay of certain orders pending appeal; referral for legal assistance ordered.

Orders

  • ['The applicant is granted leave to appeal from declaration 2 and orders 6 and 11 of the orders made 7 September 2021.' 'Application for extension of time and leave to appeal filed 29 December 2021 otherwise dismissed.' 'Applicant referred to a lawyer for legal assistance under r 4.12(1) of the Federal Court Rules...