Maxwell-Smith v Donnelly (in the matter of Inge and Eugene Maxwell-Smith) [2007] FCA 894

Maxwell-Smith v Donnelly (in the matter of Inge and Eugene Maxwell-Smith) [2007] FCA 894

The trustee's conduct was not open to legitimate criticism because Mrs Maxwell-Smith never sought consent to travel, gave no notice to the trustee despite opportunities on 18 and 19 May 2004, had not surrendered her passport, and the trustee was contacted unexpectedly by Federal Police rather than receiving a regular application from the bankrupt. In those irregular circumstances, the Re Tyndall considerations presupposing a proper request did not require the trustee to consent or to approach the matter only by considering estate administration, and there was no abuse of power, mala fides or miscarriage of discretion.

Jurisdiction
Australia
Judgment Date
08 June 2007
Procedural Posture
Bankruptcy Inquiry Under S 179 of the Bankruptcy Act 1966 (cth) Into the Conduct of a Trustee / Final Reasons and Orders After Inquiry Ordered by the Full Court Following an Appeal From Orders of Wilcox J Dismissing the Application for an Inquiry
Outcome
Inquiry completed; no basis found for criticism of the respondent trustee or his manager; applicants ordered to pay the respondent's costs of the inquiry.
Legal Topics
['trustee Conduct Inquiry' 'bankrupt Travel Overseas' 'consent of Trustee to Leave Australia' 'passport Surrender by Bankrupt' 'costs of Inquiry']
['bankruptcy' 'federal Court Procedure'] ['trustee Conduct Inquiry' 'bankrupt Travel Overseas' 'consent of Trustee to Leave Australia' 'passport Surrender by Bankrupt' 'costs of Inquiry']

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Procedural Posture

Bankruptcy Inquiry Under S 179 of the Bankruptcy Act 1966 (cth) Into the Conduct of a Trustee / Final Reasons and Orders After Inquiry Ordered by the Full Court Following an Appeal From Orders of Wilcox J Dismissing the Application for an Inquiry

Legal Issues

  1. 1 ['Whether the respondent trustee refused Mrs Maxwell-Smith permission to travel on or about 20 May 2004 and, if so, whether that refusal was appropriate in all the circumstances.' "Whether the trustee abused his power, acted mala fide, or misconceived his powers in relation to Mrs Maxwell-Smith's attempted cruise travel." "Whether the applicants should pay the respondent trustee's costs of the inquiry."]

Ratio Decidendi

The trustee's conduct was not open to legitimate criticism because Mrs Maxwell-Smith never sought consent to travel, gave no notice to the trustee despite opportunities on 18 and 19 May 2004, had not surrendered her passport, and the trustee was contacted unexpectedly by Federal Police rather than receiving a regular application from the bankrupt. In those irregular circumstances, the Re Tyndall considerations presupposing a proper request did not require the trustee to consent or to approach the matter only by considering estate administration, and there was no abuse of power, mala fides or miscarriage of discretion.

Court Disposition

Inquiry completed; no basis found for criticism of the respondent trustee or his manager; applicants ordered to pay the respondent's costs of the inquiry.

Orders

  • ["Having inquired into the conduct of the respondent trustee, Max Christopher Donnelly in relation to the matters in order 3 of the orders of the Full Court of the Federal Court on 27 October 2006 and finding no basis for criticism of the conduct of the said trustee or of his manager, Mrs Angela Margaret Gallucci,...