Maxwell-Smith v Donnelly (No 3) [2011] FCA 1226

Maxwell-Smith v Donnelly (No 3) [2011] FCA 1226

No proper case for an inquiry under s 179(1) was made out. The trustee's registration of the Jindabyne property in his name had already been found to be normal and proper in earlier proceedings, and it was not necessary or desirable to inquire further into it. The trustee could not be fairly criticised for refusing to reconvey the Jindabyne property while relying on s 154(1)(b) to secure payment of his unpaid costs, charges and expenses. Because the applicants had not given vacant possession of the Tura Beach property and no arrangement for mortgage or sale had eventuated, a writ of possession should issue, but not for 28 days. There was no justification for a stay, and the earlier...

Jurisdiction
Australia
Judgment Date
31 October 2011
Procedural Posture
Bankruptcy Application Under S 179(1) of the Bankruptcy Act 1966 (cth) and Application for Writ of Possession / Judgment on Outstanding Application, Writ of Possession, Stay Application, and Variation Under the Slip Rule
Outcome
Application filed on 2 February 2011 dismissed in its entirety; writ of possession to issue after 28 days; stay application dismissed; earlier order varied to correct the property description.
Legal Topics
['trustee in Bankruptcy' 'annulment of Bankruptcy' 'revesting of Property' "trustee's Costs, Charges and Expenses" 'inquiry Into Trustee Conduct' 'writ of Possession' 'slip Rule' 'stay of Orders']
['bankruptcy' 'property' 'civil Procedure'] ['trustee in Bankruptcy' 'annulment of Bankruptcy' 'revesting of Property' "trustee's Costs, Charges and Expenses" 'inquiry Into Trustee Conduct' 'writ of Possession' 'slip Rule' 'stay of Orders']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Bankruptcy Application Under S 179(1) of the Bankruptcy Act 1966 (cth) and Application for Writ of Possession / Judgment on Outstanding Application, Writ of Possession, Stay Application, and Variation Under the Slip Rule

Legal Issues

  1. 1 ["Whether an inquiry should be ordered under s 179(1) of the Bankruptcy Act 1966 (Cth) into the trustee's conduct in causing the Jindabyne property to be registered in his name." "Whether an inquiry should be ordered under s 179(1) into the trustee's refusals to reconvey the Jindabyne property while his costs, charges and expenses remained unpaid." 'Whether a writ of possession should issue in respect of 8C Surf Circle, Tura Beach, New South Wales.' 'Whether there should be a stay of the order for possession.' 'Whether the earlier order for possession should be varied to correct 8B to 8C Surf Circle, Tura Beach.']

Ratio Decidendi

No proper case for an inquiry under s 179(1) was made out. The trustee's registration of the Jindabyne property in his name had already been found to be normal and proper in earlier proceedings, and it was not necessary or desirable to inquire further into it. The trustee could not be fairly criticised for refusing to reconvey the Jindabyne property while relying on s 154(1)(b) to secure payment of his unpaid costs, charges and expenses. Because the applicants had not given vacant possession of the Tura Beach property and no arrangement for mortgage or sale had eventuated, a writ of possession should issue, but not for 28 days. There was no justification for a stay, and the earlier...

Court Disposition

Application filed on 2 February 2011 dismissed in its entirety; writ of possession to issue after 28 days; stay application dismissed; earlier order varied to correct the property description.

Orders

  • ['The application filed on 2 February 2011 is otherwise dismissed.' 'Order 2 made by Nicholas J on 25 March 2011 be varied so as to substitute "8C" for "8B".' 'A writ of possession in respect of the property known as 8C Surf Circle, Tura Beach, New South Wales issue but not before 28 days from today.' 'The...