Maxwell-Smith v Donnelly [2006] FCAFC 150

FEDERAL COURT OF AUSTRALIA

Maxwell-Smith v Donnelly [2006] FCAFC 150 BANKRUPTCY – appeal from decision not to order an inquiry under s 179(1) of the Bankruptcy Act 1966 (Cth) – threshold requirement before ordering an inquiry PRACTICE AND PROCEDURE – appeal from exercise of discretionary power Bankruptcy Act 1966 (Cth) s 179(1)

Maxwell-Smith v S & E Hall, in the matter of Maxwell-Smith [2004] FCA 840 referred to Maxwell-Smith v S & E Hall Pty Ltd [2003] FCA 953 referred to Maxwell-Smith v Donnelly [2005] FCA 332 reversed Adsett v Berlouis (1992) 37 FCR 201 referred to Moore v Macks [2006] FMCA 594 referred to House v King (1936) 55 CLR 499 referred to Re Tyndall; Ex parte Official Receiver (1977) 17 ALR 182 referred to Re Alafaci; Registrar in Bankruptcy v Hardwick(1976) 9 ALR 262 referred to EUGENE MAXWELL-SMITH AND INGE MAXWELL-SMITH v MAX CHRISTOPHER DONNELLY NSD 733 OF 2005 MOORE, NICHOLSON AND CONTI JJ 27 OCTOBER 2006 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALESDISTRICT REGISTRY NSD 733 OF 2005

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: EUGENE MAXWELL-SMITH

INGE MAXWELL-SMITH

APPELLANTS

AND: MAX CHRISTOPHER DONNELLY

RESPONDENT

JUDGES: MOORE, NICHOLSON AND CONTI JJ

DATE OF ORDER: 27 OCTOBER 2006

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be allowed in part. 2. The orders of the primary judge be set aside. 3. An inquiry be conducted under s 179 of the Bankruptcy Act 1966 (Cth) into the refusal of the trustee to give permission to the second appellant, Mrs Maxwell-Smith to travel outside Australia on or about 20 May 2004. 4. The application filed 2 December 2004 otherwise be dismissed. 5. The appeal otherwise be dismissed. 6. There be no order as to costs of 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