Maxwell-Smith v Donnelly (No 2) [2011] FCA 259

Maxwell-Smith v Donnelly (No 2) [2011] FCA 259

The trustee was not entitled to personal judgment against Mr and Mrs Maxwell-Smith because the relevant taxation was not under O 62 of the Federal Court Rules and his entitlement was an indemnity out of trust assets rather than a personal liability of the former bankrupts. The Court therefore made a declaration fixing the trustee's entitlements for the relevant period at $273,717.41, ordered vacant possession of the Tura Beach property to permit sale, directed further taxation of additional administration costs, and limited recovery of the trustee's costs of the Notices of Motion to 85%. The applicants' s 179(1) application was dismissed for all matters except the Jindabyne title deeds...

Jurisdiction
Australia
Judgment Date
25 March 2011
Procedural Posture
Bankruptcy Proceeding Concerning Trustee's Remuneration, Costs and Expenses and an Application Under S 179(1) of the Bankruptcy Act 1966 (cth) / Judgment Following Registrar's Report on Taxation and Hearing of the Applicants' 2 February 2011 Application
Outcome
Declaration made as to the trustee's entitlements; vacant possession and further affidavit and taxation orders made; no personal judgment entered against the applicants; s 179(1) application dismissed except as to the Jindabyne title deeds issue, which was stood over for directions.
Legal Topics
["trustee's Remuneration, Costs and Expenses" "taxation of Trustee's Costs, Charges and Expenses" "trustee's Right of Indemnity" 'vacant Possession for Sale of Property Forming Estate Asset' 'application for Inquiry Under S 179(1) of the Bankruptcy Act 1966 (cth)' 'abuse of Process' 'vexatious and Oppressive Proceedings']
['bankruptcy' 'civil Procedure' 'costs'] ["trustee's Remuneration, Costs and Expenses" "taxation of Trustee's Costs, Charges and Expenses" "trustee's Right of Indemnity" 'vacant Possession for Sale of Property Forming Estate Asset' 'application for Inquiry Under S 179(1) of the Bankruptcy Act 1966 (cth)' 'abuse of Process' 'vexatious and Oppressive Proceedings']

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Procedural Posture

Bankruptcy Proceeding Concerning Trustee's Remuneration, Costs and Expenses and an Application Under S 179(1) of the Bankruptcy Act 1966 (cth) / Judgment Following Registrar's Report on Taxation and Hearing of the Applicants' 2 February 2011 Application

Legal Issues

  1. 1 ["Whether judgment should be entered against the former bankrupts personally for $273,717.41 in respect of the trustee's remuneration, costs and expenses." "Whether a declaration should be made specifying the trustee's entitlements for the period 16 September 2003 to 21 May 2008." 'Whether the applicants should give vacant possession of the Tura Beach property to the trustee so it may be sold.' 'Whether further costs, charges and expenses of the trustee should be taxed by a Registrar as if in accordance with Pt 8, Div 4 of the Bankruptcy Regulations 1966 (Cth).' 'Whether the trustee could recover all costs of the Notices of Motion or only an adjusted percentage.' "Whether the applicants' 2 February 2011 application under s 179(1) of the Bankruptcy Act 1966 (Cth) was vexatious, oppressive or an abuse of process." 'Whether the complaint about refusal to return title deeds to the Jindabyne property should proceed to directions rather than be dismissed.']

Ratio Decidendi

The trustee was not entitled to personal judgment against Mr and Mrs Maxwell-Smith because the relevant taxation was not under O 62 of the Federal Court Rules and his entitlement was an indemnity out of trust assets rather than a personal liability of the former bankrupts. The Court therefore made a declaration fixing the trustee's entitlements for the relevant period at $273,717.41, ordered vacant possession of the Tura Beach property to permit sale, directed further taxation of additional administration costs, and limited recovery of the trustee's costs of the Notices of Motion to 85%. The applicants' s 179(1) application was dismissed for all matters except the Jindabyne title deeds...

Court Disposition

Declaration made as to the trustee's entitlements; vacant possession and further affidavit and taxation orders made; no personal judgment entered against the applicants; s 179(1) application dismissed except as to the Jindabyne title deeds issue, which was stood over for directions.

Orders

  • ["Declared that the trustee's entitlements to remuneration, costs and expenses of administration of the applicants' former bankrupt estates for 16 September 2003 to 21 May 2008 is $273,717.41." 'Ordered the applicants to give vacant possession of 8B Surf Circle, Tura Beach, New South Wales to the trustee or his...