Maxwell-Smith v Donnelly

REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) 1 This is an interlocutory application in an appeal. The appellants seek a stay of an order for the issue of a writ of possession of a property at Tura Beach, New South Wales, and a stay of a taxation. The primary judge stayed the issue of the writ of possession for 28 days from 31 October 2011: Maxwell-Smith v Donnelly (No. 3) [2011] FCA 1226. His Honour said that there was no justification for the grant of a stay of the order for possession but would order the suspension of its issue for 28 days to give Ms Maxwell-Smith a final opportunity to give vacant possession of the property, in accordance with his previous orders. As the primary judge said, Ms Maxwell-Smith was unlikely to part with possession unless forced to do so and that is why he saw no alternative to the issue of a writ of possession. 2 On 17 November 2011, Ms Maxwell-Smith, having just received the notice of listing of her notice of motion for today, faxed a letter from Bega. She said that she had prepared short submissions and an affidavit in support of the notice of motion but that due to her commitments for urgent surgery, she would not be able to attend the hearing today. The affidavit which she swore in support of the relief sought in the motion gave no basis at all for any of the orders that she sought in the notice of motion, namely, a stay of the order for possession, a stay of the taxation directed by the primary judge on 2 November 2011, an application to have her court fees waived or deferred, an application for the Registrar to assist her due to her's and her husband's financial hardships, and an application for pro bono assistance. Instead, the affidavit simply repeated assertions or allegations that previous decisions of single judges and Full Courts in her matters had done her husband and herself some injustice and her former trustee in bankruptcy had behaved so as to justify an inquiry into his conduct under s 179 of the Bankruptcy Act 1966 (Cth). Those allegations against the trustee have been either rejected or not been made the subject of an inquiry under s 179 despite Ms Maxwell-Smith's several requests for such a course to be followed. 3 Ms Maxwell-Smith asserted in her submissions that because there was only one creditor of the estates and that creditor had misused the Act in applying for a sequestration order in 2004, the current orders for the writ to issue and the taxation of costs should be stayed. She asserted that another reason for a stay was that the Full Court might find that his Honour made a mistake. The submissions asserted that the appellants were under great financial stress due to their medical treatments, that their only income was the age pension and that these factors also justified the making of the various orders that were sought in the notice of motion. The submissions asserted that Ms Maxwell-Smith was being treated in Canberra Hospital by a neurologist for urgent surgery on 30 November 2011 and that due to the need for tests of various kinds, she would not be able to attend today's hearing. No medical evidence has been provided in support of those assertions. 4 In my opinion, there is no evidentiary basis upon which to defer the coming into operation of the primary judge's order for a writ of possession to issue later this month, when his Honour directed it should do so. I am not satisfied that there is any ground to stay the order for taxation although, no doubt, it will be a matter for the trustee as to whether he wishes to engage in the process at this stage prior to the hearing of any appeal. I see no basis upon which I should exercise the discretion to waive, reduce or defer filing fees, that the Regulations have confided to the Registrar, there being no application before me to review a Registrar's decision. In my opinion, there is no ground to warrant, in the circumstances of this matter, assistance being given to the appellants to pursue yet another appeal in circumstances where the current appeal seeks to re-embark on a claim for an inquiry under s 179 of the Act. A previous Full Court has dealt with that claim and, but for one aspect, dismissed it: Maxwell-Smith v Donnelly [2006] FCAFC 150. Subsequently, Allsop J inquired into the remaining aspect and found no ground for criticism of the trustee: Maxwell-Smith v Donnelly (In the matter of Inge and Eugene Maxwell-Smith) [2007] FCA 894. 5 The trustee has incurred considerable costs. The primary judge found that Ms Maxwell-Smith, who effectively conducted the litigation on her husband's and her behalf, had never been open to discussions with the trustee because she was never willing to pay anything to him in respect of his entitlements. His Honour described the litigation in which he had been embroiled as a "torrent". He said that the appellants had had ample opportunity to enter into arrangements with the trustee aimed at facilitating either the mortgage or sale of their property, the subject of a possession order, but nothing had eventuated and Ms Maxwell-Smith was the person apparently still in possession of it. 6 There being no evidence before me of Ms Maxwell-Smith's medical condition, it only being the subject of an assertion in her submissions but not in an affidavit prepared on the same day, I am not prepared to defer the issue of the writ of possession. It will be a matter for the trustee as to whether he asks the sheriff in the circumstances to proceed. In my opinion, the motion filed on 7 November 2011 should be dismissed with costs. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.