Tuesday, 29 November 2011

The voluminous saga of Mr Donnelly's fees

The view from Surf Circle Road, Tura Beach.
FERRIER Hodgson’s veteran bankruptcy trustee Max Donnelly today instructed his solicitors to execute a writ of possession over the Tura Beach residence of Eugene and Inge Maxwell-Smith, a move that will potentially bring an end to a marathon seven-year battle over unpaid fees.

Max was appointed trustee in bankruptcy to the Maxwell-Smith estate in 2003 after the Jindabyne couple spent years refusing to pay a builder for what they believed were sub-standard renovations to their beachfront retirement bolt hole on Tura Beach's prestigious Surf Circle road.
In July 2004 the bankruptcies were annulled, with a judge declaring that the Maxwell-Smiths had been denied “procedural fairness”. But by then Max had been their trustee for nine months.

There are at least 17 judgements relating to the Maxwell-Smiths and the builder's debt which later landed with Max Donnelly. In his May 14, 2010 judgement Federal Court Justice John Nicholas said of the escalating debt dispute: “The picture painted by these numbers is alarming. The building dispute which culminated in Mr and Mrs Maxwell-Smiths’ bankruptcies concerned a sum that was but a tiny fraction of the amount now claimed by the trustee.

“Moreover, most of the amount claimed by the trustee relates to remuneration earned and disbursements incurred after Mr and Mrs Maxwell-Smiths’ bankruptcies were annulled.

“Mrs Maxwell-Smith contends, among other things, that these costs are the consequence of waste and recklessness by the trustee.

“Mr Donnelly, on the other hand, contends that his costs are the consequence of the querulous and uncooperative behaviour of Mr and Mrs Maxwell-Smith.”

You can read Justice Nicholas’s latest judgement here: The October 31, 2011 judgement

For his part Max has seen the courts reduce his estimated fees and expenses from $435,254.16 to $273,717.41.

He's also faced challenges to his conduct as trustee and been ordered to pay court costs for his own failed applications as he sought to recover the monies to which he asserts his entitlement.

The protracted dispute has also inconvenienced the Maxwell-Smiths. In early 2004 Eugene Maxwell-Smith told Max that he had a pilots license during a conversation in which he made a number of startling statements.

Max immediately placed the couple on a Ports Watch list with the Australia Federal Police. When Mrs Maxwell-Smith subsequently boarded a passenger ship with her three grandchildren - one wheelchair-bound - to take them on a holiday the Federal Police immediately escorted her and the grandchildren off the boat.

Max told SiN that in the wake of the October 31 judgement Mrs Maxwell-Smith applied to have an appeal heard in the new-year. 

Justice John Rares, who heard her application, declined to stay Justice Nicholas’s October 31 order that the writ of possession over the Tura Beach property come into effect after 28 days. 

He said he intends to sell the beachfront home, but only after the Bega Shire sheriff has ensured Inge Maxwell-Smith has departed. 

Luckily for Mrs Maxwell-Smith, her husband Eugene lives in a house with their children in Jindabyne so enforcement of the writ may in essence effect a family reunion.

Contact SiN

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