Kimber v The Owners Strata Plan No 48216 - [2018] FCAFC 181 - FCAFC 2018 case summary — Zoe

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Kimber v The Owners Strata Plan No 48216

[2018] FCAFC 181

Federal Court of Australia (Full Court)|2018-10-18|Before: Derrington JJ, Flick J

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Source facts

Court

Federal Court of Australia (Full Court)

Decision date

2018-10-18

Before

Derrington JJ, Flick J

Source

Original judgment source is linked above.

Judgment (21 paragraphs)

[1]

The Amended Notice of Appeal be dismissed with costs.
The Interlocutory Applications filed by the Applicant on 15 April 2018, 24 May 2018, 25 June 2018, 10 July 2018 and 19 July 2018 each be dismissed with costs.
The cross-appeal be dismissed with no order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

[2]

FLICK J: 1 On 19 February 2016, a Bankruptcy Notice was issued against the Appellant in the present proceeding, Ms Janelle Kimber. 2 Ms Kimber filed an application to set aside the Bankruptcy Notice. On 4 May 2016, that application was dismissed by a Registrar of this Court. 3 An application seeking review of the orders made by the Registrar led to a Judge of this Court making an order that the time for compliance with the Bankruptcy Notice be extended to 3 April 2018. The orders and reasons for decision were published on 27 March 2018: Kimber v The Owners Strata Plan No 48216 (No 2) [2018] FCA 406. Order 2 was as follows: Pursuant to s 41(6A) of the Bankruptcy Act 1966 (Cth) extend the time for compliance with bankruptcy notice 188465 issued on 19 February 2016 to the applicant to 3 April 2018. Order 4 was as follows: The applicant pay 40% of the respondent's costs of the amended interlocutory application as agreed or assessed. A further Interlocutory Application was thereafter heard by the primary Judge. That was described by the primary Judge as "[i]n effect" an order seeking a further extension of time beyond that stated in Order 2 or a stay of Order 2. That application was dismissed on 3 April 2018. Reasons for decision were published on 19 April 2018: Kimber v The Owners Strata Plan No 48216 [2018] FCA 536. 4 A Notice of Appeal was filed on 28 March 2018. An Amended Notice of Appeal was then filed on 3 April 2018 and the Grounds of Appeal there set forth were as follows (without alteration): 1. The Extension Of Time to comply to a Bankruptcy Notice that does not allow time for conciliation or reasonable time to obtain the required professional assistance to address the order to comply to the bankruptcy notice or to accurately apply to set-off the debt with an accurate and valid cross-demand. 2. The applicant seeks urgent relief from the proceedings of a Court and a stay on the enforcement of the judgement of 27 March 2018 calling into question a) the extension of time to comply with an order b) the arguable errors in the judgement c) the court not going behind the judgement d) the protracted (combined) court proceedings 3. Order 4 of 27 March 2018 states "The applicant pay 40% of the respondent's costs of the amended interlocutory application as agreed or assessed" but Grace Lawyers solicitor has refused to provide these legal cost invoices for examination and claims made in the Interlocutory application are still relevant to Order 4 (below) in this Notice Of Appeal. Ms Kimber filed an Interlocutory Application on 15 April 2018 which sought a range of orders including (inter alia) for the "Attorney-Generals to urgently review" her Notice of a Constitutional Matter under s 78B of the Judiciary Act 1903 (Cth) (which was filed on 17 April 2018); a declaration that the Federal Court has jurisdiction for "the whole of a substantive matter"; and "[s]pecific relief by way of injunction and … mandamus … requiring officers of the Commonwealth to do or refrain from doing any act which infringes on the appellant's rights". 5 The appeal first came before me as the case management Judge to resolve the Interlocutory Application (or a foreshadowed Amended Interlocutory Application) on 8 May 2018. Ms Kimber appeared on her own behalf. That interlocutory hearing presented its own difficulties due in part to the way in which Ms Kimber sought to advance her case without having filed any evidence directed to the Interlocutory Application and in part due to the myriad of issues she sought to have resolved. It nevertheless resulted in directions being made for preparation of the appeal for hearing and for the preparation of a proposed Amended Interlocutory Application. Ms Kimber wished for the Attorneys-General to be given an opportunity to respond to her Notice of a Constitutional Matter. The directions then made, to accommodate that request, included the adjournment of the Interlocutory Application to 14 June 2018. That was a date chosen to accommodate the convenience of Ms Kimber. 6 As between the filing of the Notice of Appeal and the hearing of the appeal, Ms Kimber has filed a myriad of further Interlocutory Applications, including an "Interlocutory Application AMENDED" filed on 24 May 2018 amending the original Interlocutory Application filed on 15 April 2018. The matter came back before me as the case management Judge on a number of occasions before the hearing of the appeal. The timetable for the preparation of the appeal was extended on a number of occasions to accommodate Ms Kimber. The hearing of the Interlocutory Application did not proceed. The matter came back before the Court on an urgent basis on 25 June 2018. Again, the Interlocutory Application was not resolved and an order was made that all further Interlocutory Applications be stood over to the hearing of the substantive appeal before the Full Court. 7 Concurrence is expressed with the reasons of Barker and Derrington JJ, including the way in which their Honours resolved the Interlocutory Applications, the application for an adjournment, the Grounds of Appeal and the Cross-appeal.

[3]

The application for disqualification 8 Both prior to the commencement of the hearing of the appeal (including in correspondence with the Court) and during the course of the hearing of the appeal, Ms Kimber made an application that I disqualify myself from further participation in the hearing of the appeal. 9 Such an application, it may be accepted, must be "firmly established": Re JRL, Ex parte CJL (1986) 161 CLR 342 at 352 per Mason J, 364 per Wilson J, 371 per Dawson J. 10 The basis for the application in the present case was not, with respect, formulated with any degree of precision. But it was understood to be founded upon: what was perceived by Ms Kimber to be either a refusal or disinclination to entertain one or other of the series of Interlocutory Applications made prior to the commencement of the hearing of the appeal or the standing over of such applications for the consideration of the Full Court rather than resolving them as a single Judge; comments made during the course of case management hearings seeking to confine Ms Kimber to the issues of relevance to the appeal itself rather than by reference to an inquiry into the conduct of either the Respondent, the Manager of the Respondent or the solicitors retained by the Respondent; a refusal to make a direction for the use (for example) of a digital projector as a means of giving evidence or assisting in the presentation of evidence and a disinclination to make directions permitting the adducing of evidence going beyond that which was before the primary Judge; and directions made for the filing of the Appeal Book by the Respondent, rather than by Ms Kimber, albeit with further directions permitting Ms Kimber to file a Supplementary Court Book identifying any further documents she sought to bring to the attention of the Full Court. 11 The application for disqualification was rejected during the course of the hearing of the appeal. It was indicated that reasons for that decision would be delivered at the same time as judgment in the appeal itself. These are those reasons. 12 An understandable frustration on the part of Ms Kimber in being repeatedly reminded of the confined issues to be resolved on appeal is acknowledged. But should a reasonably informed bystander be asked whether the manner in which the case management hearings were conducted and whether the comments then made would give rise to a reasonable apprehension of bias, it is respectfully considered that the answer would be "No". A reasonably informed bystander would be informed by reference to (inter alia) the reasons for decision of the primary Judge whose decision was under appeal, the issues in need of resolution on appeal and the difficulties confronting a party seeking to adduce evidence in addition to that which was before the primary Judge: cf. Johnson v Johnson [2000] HCA 48 at [52] to [54], (2000) 201 CLR 488 at 507 to 509 per Kirby J. The reasonably informed bystander would view the procedural directions for the filing of the Appeal Book by the Respondent, rather than by an unrepresented Appellant, as an attempt to more efficiently ensure the appeal was ready for hearing and as an attempt to assist an unrepresented Appellant. 13 The existence of a reasonable apprehension of bias is to be tested, not by reference to the apprehension on the part of a litigant, but by reference to a more objective, reasonably informed bystander: Saxmere Company Ltd v Wool Board Disestablishment Company Ltd [2009] NZSC 72, [2010] 1 NZLR 35 at 46. Blanchard J there observed that: [10] … the matter is not to be tested by reference to the perhaps individual and certainly motivated views of the particular litigant who has made the allegation of bias and is endeavouring to influence a result or overturn a decision and is therefore the least objective observer of all. 14 Mere dissatisfaction on the part of a litigant as to procedural directions made to ready a matter for hearing does not, of itself, manifest any unwillingness on the part of the Judge who made those directions to thereafter approach the resolution of the substantive matters with a mind "open to persuasion": cf. Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17 at [105], (2001) 205 CLR 507 at 540 per Gleeson CJ and Gummow J.

[5]

Introduction 18 The appellant, Ms Kimber, appeals from a decision of Markovic J dated 27 March 2018, which concerned an application for the review of orders made by the Bankruptcy Registrar on 4 May 2016 in relation to an application to set aside a Bankruptcy Notice: Kimber v The Owners Strata Plan No 48216 (No 2) [2018] FCA 406 (Kimber (No 2)). The time allowed for compliance with that Notice had been extended to 4 May 2016 by an earlier order on 20 April 2016. The Registrar's orders of 4 May 2016 dismissed Ms Kimber's application to set aside the Notice and discharged the earlier order extending the time for compliance with it. 19 The Amended Notice of Appeal to this Court seeks relief in the way of: (a) The extension of time pursuant to s 41(6A) of the Bankruptcy Act 1966 (Cth) (Bankruptcy Act) to comply with the Bankruptcy Notice to accommodate the holding of a meeting of the respondent body corporate; (b) A stay of the enforcement of Markovic J's orders of 27 March 2018; (c) Further time for the appellant to obtain information so she might pursue a claim for a setoff or cross-demand; and (d) An order that the Court go behind the Local Court judgment and proceedings which resulted in the original judgment debt. 20 Subsequent to Markovic's J's decision, Ms Kimber filed a number of interlocutory applications which, in some respects, sought relief similar to that which had been asked of her Honour. For the purpose of identifying each interlocutory application, the date on which it was filed has been used. Where an interlocutory application was eLodged before 4.30pm on a business day, it was taken to have been filed on that day regardless of when it was accepted for filing: Federal Court Rules 2011 (Cth) r 2.25. Orders and relief were also sought against persons other than the respondent to the appeal which had issued the Bankruptcy Notice. Those applications were adjourned to the hearing of the appeal and some parts of them were agitated in the course of the hearing. They were: (a) An Interlocutory Application relating to a Constitutional matter under s 78B of the Judiciary Act 1903 (Cth) filed 15 April 2018; (b) An Amended Interlocutory Application filed 24 May 2018; (c) An Interlocutory Application filed 25 June 2018; (d) An Interlocutory Application filed 10 July 2018; and (e) An Interlocutory Application filed 19 July 2018.

[6]

General background 21 For the resolution of the matters which are the subject of appeal there is no need to set out the tortured history of this matter in any detail. To do so is likely to cause confusion rather than bring clarity. It sufficies to identify the following salient matters: (a) On 25 May 2009, the respondent being the Owners Strata Plan No 48216 (the Owners Corporation), which was and is the entity which operated the strata title development in which Ms Kimber resided, commenced proceedings in the Local Court (NSW) against Ms Kimber seeking the sum of $2,521.58 for unpaid levies, interest and costs. (b) Ms Kimber became aware of the proceedings once they were commenced but was concerned that in the proceedings she was being required to pay legal fees. (c) Judgment in default of appearance was entered against her on 25 March 2009 in the sum of $952.31. (d) On 10 October 2013, the Local Court ordered that the judgment be set aside. (e) Ms Kimber then filed a defence, although it was struck out. (f) Further iterations of the statement of claim followed and, eventually, the claim of the Owners Corporation related only to the amounts it expended in defending the application by Ms Kimber to set aside default judgment. (g) On 29 April 2014, Ms Kimber filed a further defence which also sought to join the managing agents engaged by the Owners Corporation, Strata Choice, and its solicitors, Grace Lawyers. (h) The Owners Corporation filed a Motion to strike out the amended defence and obtain judgment. Ms Kimber retaliated with her own Motion for leave to join the additional parties. (i) Both Notices of Motion were heard in the Local Court on 7 May 2014. Ms Kimber's application was dismissed. The Owners Corporation was successful and judgment was entered in its favour for $10,000 plus $767.36 for professional costs on the Local Court scale. (j) Ms Kimber prepared a Notice of Appeal from that decision, but did not proceed with it. (k) A Bankruptcy Notice was issued on 4 August 2014 and served on Ms Kimber on 2 September 2014 although it expired on 2 March 2015. (l) On 22 June 2015, Ms Kimber commenced proceedings in the New South Wales Civil and Administrative Tribunal (NCAT) against the Owners Corporation and Strata Choice. That litigation proceeded in that tribunal, and then in the Supreme Court of New South Wales, until 30 September 2016. In it Ms Kimber was unsuccessful and was ordered to pay the costs of the other parties. (m) Although from June 2014, Ms Kimber directed that payments she made to the Owners Corporation should be applied to payment of body corporate fees and levies, Strata Choice disobeyed that instruction and applied them to discharging the indebtedness arising from the Local Court judgment. This had the effect that when invoices or statements were delivered to Ms Kimber they showed that she had outstanding levies when, in fact, that was not the state of the accounts at all. That said, the identification of the amount which remained owing by her to the Owners Corporation was more or less accurate. (n) In February 2016, Strata Choice moved to correct its records and on 19 February it issued a second Bankruptcy Notice on behalf of Owners Corporation. Shortly thereafter, Ms Kimber notified Strata Choice that the Notice overstated the amount owing by her and she sought information as to how the amounts claimed were calculated. Thereupon, Strata Choice issued new statements to show the true state of the accounts. A lesser amount was shown to be owing and the indebtedness related to the Local Court proceedings identified. (o) On 5 April 2016, Ms Kimber lodged an application in this Court seeking, amongst other things, an order that the Bankruptcy Notice be set aside. Unfortunately, an incorrect title used on the document meant it was not accepted for filing until 20 April 2016. On that day a Registrar of the Court made an order pursuant to s 41(6A) of the Bankruptcy Act and r 3.03 of the Federal Circuit Court (Bankruptcy) Rules 2006 (Cth) extending the time for compliance with the requirements of the Bankruptcy Notice up to and including 4 May 2016. (p) As a result of the understandable delay by the Registry in accepting Ms Kimber's application for filing there was no indication that it had been filed until 20 April 2016. However, on 18 April 2016, Grace Lawyers for the respondent lodged a creditor's petition with the Federal Circuit Court. It was accepted for filing on 19 April 2016. Grace Lawyers was unaware of the existence of the application to set aside the Bankruptcy Notice. (q) The application to set aside the Bankruptcy Notice was listed before the Court on 4 May 2016 and the Registrar ordered: 1. The application filed on 20 April 2016 be dismissed. 2. The order made on 20 April be discharged. 3. The applicant pay the respondent's costs. (r) On 20 May 2016, Ms Kimber filed an application for review of those orders. However, on 8 September, the Owners Corporation obtained an order for the summary dismissal of that application pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth). That order was set aside by the Full Court in Kimber v The Owners Strata Plan No 48216 [2017] FCAFC 1090 and the matter was remitted for further hearing of the application to review the Registrar's orders. 22 The subject of this appeal is the decision of Markovic J in respect of Ms Kimber's application on remitter. The issues before her Honour were whether: (a) the Bankruptcy Notice ought to have been set aside because it was overstated; (b) the Court should go behind the Local Court judgment on which the Bankruptcy Notice was founded; (c) Ms Kimber had any valid offsetting claim; (d) the issuing of the Bankruptcy Notice amounted to an abuse of process; and (e) the Bankruptcy Notice was issued with appropriate authority from the managing agent and the executive committee of the Owners Corporation. These were all matters on which Ms Kimber failed, although the learned primary judge did further extend time for compliance with the Bankruptcy Notice. 23 Ms Kimber has filed a document in the appeal, which is said to be her submissions, although it is somewhat difficult to understand and does not directly address the issues referred to in the Notice of Appeal. She has filed a further document also said to be an outline of submissions. It consists of a copy of the judgment below with what can be described as commentary inserted in various places. Although in the course of her address Ms Kimber did not refer to each and every comment in that document, they have all been taken into account for the purposes of these reasons.

[7]

Application for an adjournment 24 When the appeal was called on for hearing Ms Kimber sought an adjournment for a period of three weeks. Various grounds were raised in support of the application although all were without any supporting evidence. The Court refused the adjournment and the reasons for that conclusion follow. 25 The first ground advanced by Ms Kimber in support of an adjournment was her claim that she did not have unfettered access to the Court's online portal such that she might have resort to the filed documents. Unfortunately, the submissions made in this respect were difficult to follow and did not clearly identify what document, or documents, she had been prevented from considering, or when and for how long that occurred. Ms Kimber tendered documents which appeared to be copies of screen shots of the Commonwealth Court Portal file for this matter. They were far from self-explanatory and did not indicate which documents were not accessible by Ms Kimber, or on what occasions. There was no identification of the relevance of the documents to the contentious matters on this appeal. In the absence of any sufficient evidence as to Ms Kimber's inability to access the Court file, or any detriment suffered as a result, this is not a sufficient ground for the granting of an adjournment. 26 Ms Kimber also claimed that she needed time to take action to prevent Grace Lawyers from continuing to act for the Owners Corporation. She submitted that the firm had been acting without authority from the Corporation and was not entitled to represent it. In response, the solicitors for the Owners Corporation read and filed an affidavit of Mr Marco Benedict Williams dated 30 July 2018, which contained the minutes of a strata committee meeting of the respondent held on 28 May 2018. He also tendered the minutes of an extraordinary meeting of the Owners Corporation held on 6 August 2018. Whilst Ms Kimber objected to the affidavit and presumably the tender of the minutes, they were clearly relevant to her assertion that the firm Grace Lawyers was acting without the authority of the respondent and her objection to their admission must be rejected. The minutes of meetings show that the firm was duly appointed and, indeed, resolutions were passed at the extraordinary general meeting ratifying any prior defect in the engagement of that firm. There is no basis for Ms Kimber's assertion that Grace Lawyers were not, or are not, authorised by the Owners Corporation to appear in this appeal. Ms Kimber's application for an adjournment on this basis cannot be sustained. 27 Ms Kimber further complained about the content of the Appeal Book and she asserted additional documents ought to have been included. Unfortunately, she was not able to identify why those further documents would be relevant to the issues on the appeal or what, if any, prejudice she would suffer by reason of their omission. This too is not an appropriate basis for granting an adjournment. 28 She further submitted that she required time to acquire further evidence to place before the Court which, so it was said, would contradict evidence given before the learned primary judge by a witness for the Owners Corporation. There was no evidence before this Court that the alleged additional material could not have been obtained for the purposes of the hearing, or why it was not obtained. There was no evidence to support an argument that this allegedly new evidence would be admissible on appeal, nor was there evidence to suggest the new material might be determinative of any issue in the proceedings. The assertion of the existence of additional evidence was not a sufficient basis for the granting of an adjournment. 29 Ms Kimber also claimed that she was not presently prepared to argue the appeal; that she required more time to ready herself; and, that she has been distracted by proceedings in other courts and in dealing with a Writ of Execution issued against her personal assets. None of these matters, nor any combination of them, constitute a sufficient ground to warrant the granting of an adjournment. This appeal has been set down in the ordinary manner and the parties have had some months' notice of the date for its hearing. Ms Kimber is aware of the issues which are relevant to the hearing and has, in fact, delivered two outlines of submissions. She was, evidently, prepared to advance the arguments she sought to agitate. 30 None of the grounds advanced by Ms Kimber in support of her application were sufficient of themselves to warrant the Court adjourning the hearing of the appeal, nor were they sufficient if taken together. As mentioned this appeal has been listed for hearing in the ordinary course and valuable Court time and resources have been allocated to it. In the consideration of any application for an adjournment, the Court must be mindful of its limited resources and the interests of other litigants who are anxious to have their matters heard. Adjournments are not granted merely because they are requested. Sufficient reason must be shown as to why a court date should be abandoned where all parties are afforded sufficient time to prepare. That has not occurred in this case and Ms Kimber's application for an adjournment of the hearing of the appeal should be refused. 31 It is relevant to observe that the hearing of the appeal proceeded as listed. When Ms Kimber was informed that would be the case she initially indicated she may not participate further and would withdraw. However, she did not do that. She remained at the Bar table and presented her arguments in a forceful and articulate manner. She was able to sustain a comprehensive discussion of the relevant issues over an extended period of time. In fact, after the rejection of her application for an adjournment which she argued for about one and a half hours she addressed the Court from 12.05pm to 12.48pm prior to the luncheon adjournment and from 2.14pm to approximately 3.25pm after lunch. She also made a substantial address in reply. Although during the course of making her submissions Ms Kimber appeared slightly distressed at times, she was able to quickly regain her composure and proceed unimpeded. She is to be complimented on her efforts in the presentation of her case. She is clearly a very intelligent and articulate person even though, not unnaturally, she is occasionally emotional in relation to the issues which are the subject of this litigation.

[8]

Other interlocutory applications 32 Ms Kimber also sought to agitate a number of interlocutory applications which were considered prior to the hearing of the appeal. A number of the issues the subject of the application for an adjournment were also elements of the other applications. 33 It should be noted that a recurring error in Ms Kimber's submissions was her assumption that, on the appeal, this Court could make any order which might alter the legal rights between herself, the Owners Corporation, and its solicitors. This Court is limited to the matters properly in dispute between the parties. In ADF15 v Minister for Immigration & Border Protection [2018] FCA 1099 Flick J summarised the position as follows: [11] The nature of an appeal to this Court, as is now well-established, is in the nature of a "rehearing" and is a jurisdiction to be exercised for the correction of error: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 at [20] to [21], (2001) 117 FCR 424 at 434 to 435 ("Branir"). In commenting upon Branir and other decisions of this Court, Griffiths, Kerr and Farrell JJ in Minister for Immigration & Border Protection v SZVFW [2017] FCAFC 33; (2017) 248 FCR 1 at 13 to 14 ("SZVFW") have helpfully summarised the position as follows: [40] It is important to now say something about the nature of the appeal. The appeal is brought under s 24 of the Federal Court of Australia Act 1976 (Cth). It is an appeal in the nature of a rehearing. This has important implications for the nature and scope of the appeal. It is well established that a rehearing is not a new hearing during which the original application is determined without regard to what happened in the Court below and without regard to its findings … [41] It is equally well established that the role of the Court on an appeal by way of rehearing is the correction of error. As Allsop J (as his Honour then was) emphasised in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd; (2001) 117 FCR 424 (Branir) at [21] in such a case there is a "need to show error on appeal". It is desirable to set out in full that paragraph from his Honour's judgment (noting that Drummond and Mansfield JJ agreed with it): However, this conclusion does not alter the need to show error on appeal. In Hamsher Beaumont J and Lee J identified the need for the demonstration of error in the trial judge's findings or conclusions and they expressed the view that the statements in Warren v Coombes; (1979) 142 CLR 531 (dealing with an appeal by way of rehearing) that an appellate court must not shrink from giving effect to its own conclusion were premised on a conclusion that the decision of the trial judge was wrong and should be corrected. [42] The need to identify appealable error in an appeal by way of rehearing and the incorrectness of an approach which simply invites the Full Court to consider the matter afresh and come to its own view, which appeared at least at one point to be the position advanced by the Minister, is reflected in the following passage from the joint judgment of Siopis, Gilmour and Katzmann JJ in Mesa Minerals Ltd v Mighty River International Ltd; (2016) 241 FCR 241 at [85] (which, notably, refers approvingly to Allsop J's observations in Branir): In effect, Mesa sought to re-run the case it lost below. Yet, the appeal is in the nature of a rehearing; it is not a hearing de novo. The Court's task is to correct error. The determination of the question of whether Mighty River was acting in good faith and the inspection was sought for a proper purpose was largely an evaluative one. The primary judge's decision is entitled to be given some weight. Where, as here, the nature of the issues is such that there cannot be said to be one truly correct answer, the availability of a different view or a preference for a different view, is unlikely to be sufficient: Branir v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [25] per Allsop J (as his Honour then was), Mansfield and Drummond JJ agreeing. As Allsop J went on to explain at [30]: The proper approach is not to ask the court to survey all the evidence, directed by the otherwise unassailable findings on credit, and to ask it to arrive at its own conclusions, without "essaying the necessary task of positively demonstrating that the trial judge was wrong"… It is not appropriate to treat the appeal as though it were a new trial on the evidence and constrained merely by the unassailable factual findings. Error must be demonstrated … The views and conclusions of the trial judge ultimately have to be shown to be wrong. They should not be laid to one side and a simple re-argument of the case take place. 34 The hearing of an appeal is not the occasion for an appellant to ventilate all of the matters in which they are in dispute with the respondent regardless of whether they form part of the issues arising in the matter before the Court. It is for the correction of error arising from the judgment appealed from and is confined to the issues which arise from that conclusion. To the extent that Ms Kimber sought to agitate matters not properly in issue between the parties, they have not been considered.

[10]

Amended Interlocutory Application filed 24 May 2018 38 By an Amended Interlocutory Application filed on 24 May 2018, Ms Kimber seeks a range of other relief. 39 First, she seeks a stay of Markovic J's orders made 27 March 2018 and 3 April 2018. The difficulty, however, is that no grounds for staying her Honour's orders have been disclosed. This is dealt with more fully in the discussion of the grounds of appeal. In any event, as the learned trial judge observed, it is unlikely Ms Kimber will derive any benefit from a stay. 40 Ms Kimber also seeks an order that she be entitled to inspect the tax invoices relating to the 40% costs order dated 27 March 2018 by the judge below. Her entitlement to see and consider such documents, if any, is a matter for the taxing process and it is inappropriate to make such orders on an interlocutory application in the appeal. There is no reason why any question involving the elements of the costs of the trial should impede the hearing of the appeal. 41 Ms Kimber also seeks an order that she be entitled to receive proof Grace Lawyers were validly engaged to conduct proceedings on behalf of the Owners Corporation. This matter has been considered above and the Court is satisfied Grace Lawyers are entitled to appear on behalf of the Owners Corporation. 42 Ms Kimber also seeks an order that she be provided with proof that Grace Lawyers were properly engaged in the Local Court proceedings in 2009. This issue was dealt with in the NCAT proceedings between Ms Kimber and the Owners Corporation. It was not considered by the learned judge below and ought not to be raised on appeal. Moreover, her Honour was not prepared to go behind the judgment of the Local Court, in which proceedings the costs were incurred, and it has not been demonstrated that her Honour's discretion was invalidly exercised. There is, therefore, no basis for questioning the legitimacy of the lawyers' appearance on behalf of the Owners Corporation. Additionally, Ms Kimber advances no evidence that the solicitors were invalidly appointed. She seeks time to investigate whether they were. That is no foundation for the making of the orders sought. 43 Ms Kimber further seeks an order that she be provided with the minutes of meetings confirming the solicitors acted without proper authority. Again, that is not a matter which is relevant to the subject of the appeal and it is unlikely such minutes exist. The affidavit of Mr Williams and the tendered minutes of the extraordinary meeting show the solicitors have, and did have, the relevant authority to act on behalf of the Owners Corporation. Again, Ms Kimber is merely seeking to ascertain whether she has some avenue to investigate her suspicions and no substantive basis exists for making any order in that regard. 44 Ms Kimber also seeks a stay on proceedings until the disputed legal right of Grace Lawyers to act is resolved. It is not apparent how any such relief could be relevant to the proceedings before the Court. Moreover, that issue is foreclosed by the findings of the learned judge below and the evidence adduced before this Court. It is also not relevant to the failure of Ms Kimber to comply with the Bankruptcy Notice. 45 Ms Kimber sought an order that there be a stay of the appeal pending an annual general meeting. This relief seems to be aimed at Ms Kimber's desire to persuade the members of the Owners Corporation not to pursue her in relation to the judgment of the Local Court. That is not a valid basis on which to delay the hearing of the appeal. In any event, an extraordinary meeting has recently occurred and it was resolved the action against Ms Kimber continue. There is no suggestion that, given any time, Ms Kimber might be able to persuade the members of the Owners Corporation not to continue to pursue her. This relief was sought from Markovic J on 3 April 2018 and was refused. There is no basis for revisiting that determination. 46 Further Ms Kimber seeks a period of 21 days to obtain what she says are full details of amounts payable so she may advance a setoff application in a cross-demand. It appears Ms Kimber seeks to ascertain if she can formulate a cross-demand. This issue was carefully examined by Markovic J in her reasons in Kimber (No 2) at [107] - [122]. Her Honour considered there was no evidence Ms Kimber had any setoff, cross-claim or cross-demand. Nothing has been identified which suggests that her Honour's decision was erroneous in any way. In any event, it is too late now to set up such a claim. The time for compliance with the Bankruptcy Notice has passed. 47 The other claimed relief in the interlocutory application is unintelligible and devoid of any substantive grounds. The interlocutory application filed on 24 May 2018 ought to be dismissed with costs.

[13]

Interlocutory Application filed 19 July 2018 55 Ms Kimber filed yet a further application on 19 July 2018. Again, the relief she seeks is misconceived and is not available on this appeal. Specifically, she seeks orders requiring members of the Owners Corporation to attend before the Court for the purposes of being questioned in relation to its operation and conduct. The specific purpose of such relief is not apparent although it appears that Ms Kimber wishes to assert the body corporate has not acted in the interests of its members in pursuing her such that those who have caused costs to be incurred in pursuing her should be required to pay them. 56 This Court has no jurisdiction to grant the relief Ms Kimber seeks as the conduct of which she complains is not part of the "matter" before this Court. If there exists a right to the relief, it arises by reason of the Strata Schemes Management Act 2015 (NSW) and proceedings in an appropriate court are required to enforce such a right. Whether such relief might be granted is not an issue in the appeal. Moreover, the relief sought would not alter the fact that Ms Kimber has committed an act of bankruptcy by reason of her non-compliance with the Bankruptcy Notice. 57 Ms Kimber also seeks that the appeal process be stayed or adjourned to allow her to pursue the holding of a general meeting of the respondent body corporate. As with the application for similar orders before Markovic J on 3 April 2018, no benefit could be derived by Ms Kimber from the making of such orders. In any event, the recent general meeting acted to approve the continuance of the proceedings against her. 58 Various orders are sought in this application in relation to a notice to admit and a notice to produce a document, however, the foundation for any relief in relation to those matters is not established by evidence nor is it supported by submissions in any way. In the absence of any indication as to its import such relief should be refused. 59 Vague and general relief is sought by asking the Court to reconsider its orders and role in the circumstances of this case. The nature of the relief sought is foreign to anything that might be provided by this Court in interlocutory proceedings or in the appeal. 60 Equally there is no merit in this interlocutory application and it too ought be dismissed with costs.

[15]

Extension of time in which to comply with the Bankruptcy Notice 62 The learned trial judge determined that it was appropriate in the interests of justice to extend the time for compliance with the Bankruptcy Notice up to and including the date seven days after the date of the delivery of judgment. That order was made pursuant to s 46(1A) of the Bankruptcy Act. It gave the appellant yet a further opportunity to pay the debt which was found to be owing by her and on which the Bankruptcy Notice was founded. It is apparent that Ms Kimber chose to forego the opportunity. 63 Ms Kimber has submitted that the time in which she might comply with the Bankruptcy Notice ought to be extended for a period which might allow her to put in place strategies so that she might avoid complying with it. She submitted that she intends to call a general meeting of the members of the Owners Corporation which might vote to cease recovery action, to negotiate a resolution of the claim or to seek assistance or bring a setoff or cross-claim. The learned judge below granted an extension of time in which Ms Kimber might comply with the notice and she did not do anything to avoid the consequences of non-compliance. 64 The Owners Corporation has submitted, and correctly so, that Ms Kimber has not identified any error in her Honour's reasons from which she concluded that the time for compliance with the Bankruptcy Notice should be extended for a period of seven days from the date of the orders. It is also correctly submitted that the power in s 41(6A) of the Bankruptcy Act to extend time is discretionary such that any consideration of its exercise by the learned primary judge necessitates the application of the principles stated by the High Court in House v R (1936) 55 CLR 499, 504 - 505. There the principles as to when an appellate court might interfere with the exercise of discretion by a first instance court were stated as follows: The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. 65 Here, Ms Kimber did not identify anything which might suggest the learned primary judge made one of the errors referred to above. In the circumstances of the extended litigation between the parties, which was mostly caused by Ms Kimber, it was entirely appropriate for the learned judge to briefly extend time for compliance with the notice so as afford Ms Kimber an opportunity to comply with it or take other steps to avoid its consequences and to re-enliven the efficacy of the notice. There is no warrant for questioning the exercise of the discretion in this respect. The matters taken into account by the learned judge below were entirely appropriate and the exercise of discretion by her Honour was as well. There is no merit in this ground. 66 It is also to be noted that on 3 April 2018 the learned judge below refused Ms Kimber's subsequent interlocutory application for a further extension of time within which to comply with the Bankruptcy Notice. Similarly, her Honour's exercise of discretion to refuse that request for an extension was without error.

[18]

Time to obtain details of a setoff or cross-demand 71 Ms Kimber also seeks a period of time of "less than 21 days, to obtain full details of amounts for the sum payable for a setoff application in a cross-demand that could not have been set up in the proceedings in which the judgment was obtained". This appears to be a desire for further time in which to ascertain information on which she might establish a cross-demand, however, given that time for compliance with the Bankruptcy Notice has elapsed, it is now too late to attempt to set up any cross-demand. The time in which Ms Kimber might have set up a cross-claim to avoid the consequences of non-compliance with the Bankruptcy Notice has long passed. 72 Even if there were some utility in giving Ms Kimber additional time, it must be kept in mind that the judgment debt supporting the Bankruptcy Notice arose on 7 May 2014, being some 4 years ago. Since that time Ms Kimber has not been able to identify or formulate any valid cross-demand despite many attempts to do so. That being so the Court cannot be satisfied that granting Ms Kimber any further time, on the assumption that there were grounds to do so, would assist her in her endeavour. 73 The learned trial judge dealt with this issue at [107] to [122] of her Honour's reasons and rejected the submission that any cross-demand existed. Her Honour concluded: [119] …in my opinion the evidence, when taken as a whole, amounts to no more than a bald assertion by Ms Kimber that she has an off-setting claim. The statement of claim, which names the Owners Corporation as well as a series of other parties as respondents, makes claims against those parties generally but does not plead any material facts on which it is said those claims are based. If not entirely incomprehensible, it is very difficult to understand. There is no evidence provided which would support the bare claims made. … [121] …The Local Court refused leave to Ms Kimber to file her cross-claim. The evidence also shows that Ms Kimber commenced a proceeding in NCAT, which she subsequently withdrew, in which she made similar allegations to those now alleged. [122] I am not satisfied that the alleged counter-claim is one which Ms Kimber could not have set up in the Local Court Proceeding as required by s 40(1)(g) of the Act. Indeed she attempted to do so but was unsuccessful in obtaining leave to file the claim. 74 Those conclusions are entirely apposite in the circumstances and no error has been shown in them. Even now the nature of any setoff or cross-demand remains obscure and Ms Kimber does not seek time to raise it, but to investigate whether she has such a claim. This ground of appeal must also fail.

[21]

Cross-Appeal 78 The Owners Corporation cross-appeals against the order for costs made by the learned trial judge. Her Honour had accepted that it had achieved substantial success on the central issue of the application, being whether the Bankruptcy Notice should be set aside. However, her Honour also held that two other important factors were relevant in concluding that an order that Ms Kimber pay all of the Owners Corporation's costs was inappropriate. First, was that there had been poor record keeping by the Owners Corporation and its agent. Their constant misstatements as to the reasons why the amount the subject of the notice was owing had created substantial confusion. Her Honour held that as the foundation of the claimed indebtedness was erroneous, as opposed to its quantum, it was not surprising that Ms Kimber had sought to set aside the notice. On that basis, her Honour was of the view that Ms Kimber was entitled to put the Owners Corporation to proof and should not to be required to pay the costs relating to that issue. Second, her Honour recognised that Ms Kimber had succeeded on the issue of overturning the Registrar's determination to set aside the earlier extension of time, although it was recognised this took up a relatively small period of time. It was, however, a significant matter. 79 For those reasons her Honour decided Ms Kimber ought to pay 40% of the respondent's costs of its application. 80 On its cross-appeal, the Owners Corporation rightly understands that any appeal from an order for costs is an appeal from the exercise of a discretion and the principles stated in House v R are applicable. It submits that the error of principle by the primary judge was that in the absence of any evidence of disentitling conduct on its part, there was no justification for it not obtaining an order that all of its costs be paid. It submitted that the order below was "unreasonable or plainly unjust" and this Court can infer there has been a failure to properly exercise the discretion. 81 In support of the above the Owners Corporation submitted in its written submissions that it was not afforded an opportunity to make submissions on costs or why there should be departure from the general rule that costs follow the event. That submission was founded on a false premise. The hearing before the learned judge occurred in the ordinary way with each party having the opportunity to adduce evidence and make submissions. The Owners Corporation was entitled to make submissions as to costs as part of its address to the Court and, if it thought appropriate, ask to be heard again on costs once judgment was delivered. There is no evidence that it did this. It is entirely misleading for it to submit to this Court that it was not given an opportunity to make submissions on costs. 82 Even though in its written submissions the Owners Corporation submitted it did not have an opportunity to make submissions on costs, at the hearing its solicitors acknowledged that it did, in fact, make written submissions on costs. That admission was entirely inconsistent with the written submission and reflects poorly on the litigant and its legal advisers. 83 By its written submissions the Owners Corporation sought to diminish the importance of the question of whether there were misstatements in the invoices delivered to Ms Kimber. Whilst it agrees that approximately 60% of the hearing time was spent on this issue, it asserts that given the Court's finding that there was no overstatement of the quantum of the debt there was no reason to depart from the ordinary rule in relation to costs. However, it is apparent from the primary judge's reasons that the initial cause of the disputation between the parties was the failure of the managing agent, Strata Choice, to apply payments received from Ms Kimber in accordance with her instructions so as to extinguish the appropriate indebtedness. That error meant the statements provided to her misstated the nature of her indebtedness. The failure of Strata Choice to comply with Ms Kimber's directions continued for a significant period of time and can be seen to have created much of the disagreement. The consideration of this issue consumed a significant portion of the duration of the hearing. 84 Her Honour observed that the incorrect appropriations of payments from Ms Kimber rendered it understandable that she was confused by the material she received both prior to and after service of the Bankruptcy Notice. The Owners Corporation submitted Ms Kimber must have been aware of her continued obligation to meet the indebtedness arising from the Local Court judgment. In this respect it contested her Honour's finding of fact that Ms Kimber was confused by the materials she received although, very little was identified in its submissions as to why that finding of fact was in error. Largely, it was merely an assertion that Ms Kimber must have been aware she had not paid any amount towards the Local Court judgment. However, that conclusion is to belittle the effect of its own documents which reflected that that debt was substantially diminished or paid off. The finding by her Honour that Ms Kimber may have been confused by the material provided to her on behalf of the Owners Corporation was not displaced. 85 In support of its argument the Owners Corporation sought to rely upon the well-known passage of Toohey J in Re Kimberly John Hughes v Western Australian Cricket Association (Inc) (1986) 19 FCR 10 (Hughes) where his Honour identified that, ordinarily, costs follow the event and a successful litigant receives his costs in the absence of special circumstances justifying some other order. His Honour did, however, note that where a litigant succeeds only on a portion of his claim, the circumstances may make it reasonable he bear the expense of litigating that portion upon which he had failed. Toohey J also identified that a successful party may bear the cost of issues on which he has failed. The Owners Corporation also relied upon that part of his Honour's reasons where he expressed cautious disapproval of applications to apportion costs. 86 In relation to that last point, it is relevant to note that in the 32 years since Hughes, much has changed in the nature of litigation and the obligations of litigants and practitioners in the area of ensuring that cases are heard expeditiously and with a minimum of expense. Legislative changes, such as ss 37N and 37M of the Federal Court Act 1976 (Cth), have the effect of requiring the parties to bring to Court for adjudication the real issues in dispute. Their failure to do so should have consequences and, at a minimum, a reduction in an entitlement to costs on issues which were unnecessarily agitated. In circumstances of that nature an apportionment of costs reflecting a litigant's success in relation to the real issues in dispute is appropriate: Stefanovski v Digital Central Australia (Assets) Pty Ltd (No 2) [2018] FCAFC 113. 87 Here, the Owners Corporation has submitted that the primary judge made no finding that might be relied upon for the costs orders which were made, specifically that it had engaged in anything wrongful or caused unnecessary expense. However, that is to set up a "strawman argument". Section 24 of the Federal Court Act confers a wide discretion on a judge in relation to the making of orders for costs. Whilst the general principle of the Australian adversarial system may well be that costs follow the event, it is far from a rigid rule. Whatever may be the continuing merit in the proposition that courts ought pause before making costs orders on an apportioned basis, there was no error in her Honour doing so on this occasion. Ms Kimber had some measure of success on important issues, including overturning the Registrar's order setting aside an earlier order for the extension of time for compliance with the Bankruptcy Notice and obtaining a further order for extension of time. It should be noted in this respect that the setting aside of the orders made on 20 April 2016 that time be extended for compliance with the Bankruptcy Notice occurred at the urging of the cross-appellant. Necessarily, the application to the Court below was required for the purposes of correcting that error. 88 Otherwise her Honour was correct to identify the transactional confusion caused by the agent of the Owners Corporation failing to implement Ms Kimber's directions as to the use of monies she paid. No sustainable argument to the contrary was advanced. 89 The Owners Corporation's submissions failed to identify any error of the type specified in House v R which might enliven the Court's jurisdiction to consider afresh the question of costs. There was no error that undermines the exercise of her Honour's discretion, either in principle or factual consideration. Although initially recognising the onerous task of succeeding on an appeal against the exercise of the discretion, the Owners Corporation eschewed that in favour of an argument which was effectively that this Court should exercise the discretion differently on the basis of the material. That is an impermissible approach. 90 In the result the cross-appeal ought to be dismissed. As there is nothing to indicate that Ms Kimber has incurred any relevant costs, there should be no order as to costs. I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Barker and Derrington.

Kimber v The Owners Strata Plan No 48216

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