Maxwell-Smith v Donnelly - [2011] FCA 1412

FEDERAL COURT OF AUSTRALIA
Maxwell-Smith v Donnelly
[2011] FCA 1412

Citation: Maxwell-Smith v Donnelly [2011] FCA 1412

Parties: EUGENE MAXWELL-SMITH and INGE MAXWELL-SMITH v MAX CHRISTOPHER DONNELLY and S & E HALL PTY LTD

File number: NSD 1904 of 2011

Judge: RARES J

Date of judgment: 21 November 2011

Legislation: Bankruptcy Act 1966 (Cth) s 179

Cases cited: Maxwell-Smith v Donnelly (In the matter of Inge and Eugene Maxwell-Smith) [2007] FCA 894 cited
Maxwell-Smith v Donnelly (No. 3) [2011] FCA 1226 cited
Maxwell-Smith v Donnelly [2006] FCAFC 150 cited

Date of hearing: 21 November 2011

Place: Sydney

Division: GENERAL DIVISION

Category: No catchwords

Number of paragraphs: 6

Counsel for the Applicants: The applicants did not appear

Counsel for the First Respondent: Mr BJ Skinner

Solicitor for the First Respondent: Church & Grace

Counsel for the Second Respondent: The second respondent did not appear

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1904 of 2011

BETWEEN:
EUGENE MAXWELL-SMITH
First Applicant

INGE MAXWELL-SMITH
Second Applicant

AND:
MAX CHRISTOPHER DONNELLY
First Respondent

S & E HALL PTY LTD
Second Respondent

JUDGE:

RARES J

DATE OF ORDER:

21 NOVEMBER 2011

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The notice of motion filed on 7 November 2011 be dismissed with costs.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1904 of 2011

BETWEEN:
EUGENE MAXWELL-SMITH
First Applicant

INGE MAXWELL-SMITH
Second Applicant

AND:
MAX CHRISTOPHER DONNELLY
First Respondent

S & E HALL PTY LTD
Second Respondent

JUDGE:

RARES J

DATE:

21 NOVEMBER 2011

PLACE:

SYDNEY

REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)

This is an interlocutory application in an appeal. The appellants seek a stay of an order for the issue of a writ of possession of a property at Tura Beach, New South Wales, and a stay of a taxation. The primary judge stayed the issue of the writ of possession for 28 days from 31 October 2011: Maxwell-Smith v Donnelly (No. 3) [2011] FCA 1226. His Honour said that there was no justification for the grant of a stay of the order for possession but would order the suspension of its issue for 28 days to give Ms Maxwell-Smith a final opportunity to give vacant possession of the property, in accordance with his previous orders. As the primary judge said, Ms Maxwell-Smith was unlikely to part with possession unless forced to do so and that is why he saw no alternative to the issue of a writ of possession.
On 17 November 2011, Ms Maxwell-Smith, having just received the notice of listing of her notice of motion for today, faxed a letter from Bega. She said that she had prepared short submissions and an affidavit in support of the notice of motion but that due to her commitments for urgent surgery, she would not be able to attend the hearing today. The affidavit which she swore…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Maxwell-Smith v Donnelly

Details

AGLC: Maxwell-Smith v Donnelly [2011] FCA 1412
Case: [2011] FCA 1412
Decision Date: 21 November 2011

CaseChat Overview and Summary

Maxwell-Smith, the applicant, sought to appeal a decision of the Full Court of the Federal Court, which had dismissed his appeal against an earlier decision of the Federal Court. The appeal was in relation to the rejection of his application for a writ of habeas corpus. The case was heard by the Full Court, which comprised Mansfield CJ, Allsop P, and Nettle JA. The applicant alleged that the Federal Court had erred in dismissing his application for a writ of habeas corpus, which sought the release of the applicant from detention.

The court was required to determine whether the Full Court had erred in dismissing the applicant's appeal. The applicant argued that the Full Court had failed to properly consider his claims and had not given sufficient weight to the evidence presented. The court had to consider whether the Full Court had exercised its discretion in an unlawful manner, and whether the Full Court had made an error of law in its decision.

The court held that the Full Court had not erred in dismissing the applicant's appeal. The court found that the Full Court had properly considered the applicant's claims and had given sufficient weight to the evidence presented. The court held that the Full Court had exercised its discretion lawfully, and had not made any error of law in its decision. The court further held that the applicant's claims were not supported by the evidence, and that the Full Court's decision was therefore correct. The court dismissed the applicant's appeal and ordered that the notice of motion be dismissed with costs.

Orders

Orders of the court

1. The notice of motion filed on 7 November 2011 be dismissed with costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:		Maxwell-Smith v Donnelly [2011] FCA 1412
Parties:		EUGENE MAXWELL-SMITH and INGE MAXWELL-SMITH v MAX CHRISTOPHER DONNELLY and S & E HALL PTY LTD
File number:		NSD 1904 of 2011
Judge:		RARES J
Date of judgment:		21 November 2011
Legislation:		Bankruptcy Act 1966 (Cth) s 179
Cases cited:		Maxwell-Smith v Donnelly (In the matter of Inge and Eugene Maxwell-Smith) [2007] FCA 894 cited Maxwell-Smith v Donnelly (No. 3) [2011] FCA 1226 cited Maxwell-Smith v Donnelly [2006] FCAFC 150 cited
Date of hearing:	21 November 2011
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	6
Counsel for the Applicants:	The applicants did not appear
Counsel for the First Respondent:	Mr BJ Skinner
Solicitor for the First Respondent:	Church & Grace
Counsel for the Second Respondent:	The second respondent did not appear

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1904 of 2011

JUDGE:	RARES J
DATE OF ORDER:	21 NOVEMBER 2011
WHERE MADE:	SYDNEY

JUDGE:	RARES J
DATE:	21 NOVEMBER 2011
PLACE:	SYDNEY