Maxwell-Smith v Donnelly

[2007] FCAFC 180

FEDERAL COURT OF AUSTRALIA

Maxwell-Smith v Donnelly [2007] FCAFC 180

COSTS – costs of trustee for inquiry into conduct of the trustee under s 129 of the Bankruptcy Act – no error in awarding costs to include remuneration, charges and expenses – additional submissions not considered by primary judge due to filing error – allegation of procedural fairness not established – appeal dismissed

Bankruptcy Act 1966 (Cth) s 179

Maxwell-Smith v Donnelly [2006] FCAFC 150 cited
Maxwell-Smith v Donnelly (in the matter of Inge and Eugene Maxwell-Smith) [2007] FCA 894 cited
Maxwell-Smith v Donnelly (in the matter of Inge and Eugene Maxwell-Smith) [2007] FCA 1097 cited
Maxwell-Smith v Max Christopher Donnelly (in the matter of Inge and Eugene Maxwell-Smith) [2007] FCA 1005 cited
Pantzer v Wenkart (2006) 153 FCR 466 cited

INGE MAXWELL-SMITH AND EUGENE MAXWELL-SMITH v MAX CHRISTOPHER DONNELLY

NSD 1180 OF 2007

BENNETT, EDMONDS AND FLICK JJ
23 NOVEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1180 OF 2007

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

INGE MAXWELL-SMITH
First Appellant

EUGENE MAXWELL-SMITH
Second Appellant

AND:

MAX CHRISTOPHER DONNELLY
Respondent

JUDGES:	BENNETT, EDMONDS AND FLICK JJ
DATE OF ORDER:	23 NOVEMBER 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.Leave is given to the parties to file and serve any written submissions on the order for costs of the appeal within seven (7) days.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1180 OF 2007

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

INGE MAXWELL-SMITH
First Appellant

EUGENE MAXWELL-SMITH
Second Appellant

AND:

MAX CHRISTOPHER DONNELLY
Respondent

JUDGES:	BENNETT, EDMONDS AND FLICK JJ
DATE:	23 NOVEMBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT

1. The history of this matter, as relevant to this appeal, may be shortly stated.

2. Proceedings were commenced in 2004 against the respondent (‘the Trustee’), who had been the trustee in relation to the bankruptcy of Mr and Mrs Maxwell-Smith.  The bankruptcy had been annulled.  Pursuant to a decision of the Full Court (Maxwell-Smith v Donnelly [2006] FCAFC 150), the primary judge conducted an inquiry under s 179 of the Bankruptcy Act 1966 (Cth) into the refusal of the Trustee to give permission to Mrs Maxwell-Smith to travel outside of Australia on or about 20 May 2004 (Maxwell-Smith v Donnelly (in the matter of Inge and Eugene Maxwell-Smith) [2007] FCA 894). In that inquiry Mr and Mrs Maxwell-Smith were represented by counsel, who appeared pro bono pursuant to a referral by the Full Court under O 80 r 4(1) of the Federal Court Rules.

3. The primary judge delivered reasons for judgment and proposed orders on 8 June 2007.  Those proposed orders were:

   (1)Having inquired into the conduct of the respondent trustee, Max Christopher Donnelly in relation to the matters…