Maxwell-Smith v Donnelly

[2005] FCA 815

FEDERAL COURT OF AUSTRALIA

Maxwell-Smith v Donnelly [2005] FCA 815

BANKRUPTCY – Application for extension of time to file and serve notice of appeal – application granted

Federal Court Rules Order 52 sub rule 15(3)

EUGENE MAXWELL-SMITH & ANOR v MAX CHRISTOPHER DONNELLY
NSD 733 OF 2005

HELY J
8 JUNE 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 733 OF 2005

BETWEEN:	EUGENE MAXWELL-SMITH INGE MAXWELL-SMITH APPLICANTS
AND:	MAX CHRISTOPHER DONNELLY RESPONDENT
JUDGE:	HELY J
DATE OF ORDER:	8 JUNE 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The time within which the applicants may file and serve a notice of appeal from the decision of Wilcox J delivered on 21 March 2005 be extended up until Friday 1 July 2005.

2.The costs of this application be costs in the appeal.

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 733 OF 2005

BETWEEN:	EUGENE MAXWELL-SMITH INGE MAXWELL-SMITH APPLICANTS
AND:	MAX CHRISTOPHER DONNELLY RESPONDENT

JUDGE:	HELY J
DATE:	8 JUNE 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. I have before me an application for an extension of time to file and serve a notice of appeal lodged on behalf of the applicants by Mrs Maxwell-Smith.  An extension of time is sought to appeal against a decision of Wilcox J which was given on 21 March 2005 but which was apparently not published until 4 April 2005.  The decision only came to the applicants’ notice when they received a copy of the decision by mail some time in April 2005.

2. Mrs Maxwell-Smith originally requested that her case in support of the application for an extension of time should be dealt with in writing pursuant to Order 52 sub rule 15(3) of the Federal Court Rules.  Accordingly, in addition to her affidavit of 7 May 2005, Mrs Maxwell-Smith filed a written argument with the Court on 26 May 2005.  I had the matter listed for hearing this morning for the purpose of giving directions as to the future progress of the matter.  Mrs Maxwell-Smith appeared by telephone and Mr Skinner of counsel appeared for the respondent.

3. Mr Skinner told me that if I was satisfied, as I am, with the explanation given by Mrs Maxwell-Smith for the delay in instituting the appeal that he had nothing further to say in opposition to the grant of an extension of time for prosecuting that appeal.

4. In those circumstances I order that the time within which the applicants may file and serve a notice of appeal from the decision of Wilcox J given on 21 March 2005 be extended until Friday 1 July 2005.

5. I order that the costs of this application be costs in the appeal.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Associate:

Dated:             20 June 2005

Mrs Maxwell-Smith appeared by telephone
Counsel for the Respondent:	Mr Skinner
Solicitor for the Respondent:	Church & Grace
Date of Hearing:	8 June 2005
Date of Judgment:	8 June 2005