Donnelly v Maxwell-Smith [2010] FCAFC 154

FEDERAL COURT OF AUSTRALIA

Donnelly v Maxwell-Smith [2010] FCAFC 154 Citation: Donnelly v Maxwell-Smith [2010] FCAFC 154

Appeal from: Maxwell-Smith v Donnelly [2010] FCA 474

Parties: MAX CHRISTOPHER DONNELLY v INGE AND EUGENE MAXWELL-SMITH

File number: NSD 630 of 2010

Judges: BENNETT, RARES AND MCKERRACHER JJ

Date of judgment: 16 December 2010

Catchwords: BANKRUPTCY AND INSOLVENCY – costs and expenses of administration –trustee's right to indemnity for costs, charges and expenses, including legal costs – orders by Full Court setting aside order that trustee's costs of proceedings be costs in administration of estate and in lieu ordering that there be no order as to costs – effect of Full Court orders deprived trustee of right to indemnity out of former bankrupts' estates in respect of those proceedings Held: appeal dismissed PRACTICE AND PROCEDURE – leave to appeal – appeal from decision of primary judge to remit to registrar question of what costs, charges and expenses would be allowed on a taxation – whether leave to appeal required – whether order final or interlocutory – principles governing grant of leave to appeal Held: leave to appeal required and refused

Words and Phrases: "no order as to costs"

Legislation: Bankruptcy Act 1966 (Cth) s 179

Cases cited: Adsett v Bertlouis (1992) 37 FCR 201 referred to Beddoe Donnes v Cottam [1893] 1 Ch 547 referred to Bienstein v Bienstein (2003) 195 ALR 225 applied Cachia v Haines (1994) 179 CLR 403 referred to National Trustees Executors & Agency Co of Australasia Ltd v Barnes (1941) 64 CLR 268 applied Oshlack v Richmond River Council (1998) 193 CLR 72 referred to Pantzer v Wenkart (2006) 153 FCR 466 referred to Re Hodgkinson [1895] 2 Ch 190 applied Re Luck (2003) 78 ALJR 177; 203 ALR 1 applied Trikas v Rheem (Australia) Pty Ltd [1964-5] NSWR 645 referred to Wentworth v Wentworth [2000] NSWCA 350 referred to