Advance Bank Australia Ltd v Nassar A

[1995] FCA 21

IN THE FEDERAL COURT OF AUSTRALIA )
  )
SOUTH AUSTRALIA DISTRICT REGISTRY )
  )
GENERAL DIVISION                 )    No. SB 1698 of 1994
  )
BANKRUPTCY DISTRICT OF THE       )
  )
STATE OF SOUTH AUSTRALIA             )

BETWEEN:

ADVANCE BANK AUSTRALIA LIMITED

Applicant

- and -

ABDO NASSAR
  First Respondent

- and -

KYM ALBERT WEIR
  Second Respondent

- and -

PETER JOHN BALNAVES
  Third Respondent

- and -

KENNETH W JOHNS
  Fourth Respondent

- and -

MR THOMAS G RODDA
  Fifth Respondent

EX TEMPORE REASONS FOR JUDGMENT

CORAM:    Branson J.
PLACE:    Adelaide
DATE:     23 January 1995

By an application dated 3 January 1995 Mr Abdo Nassar, currently a bankrupt, makes an application to the court that until his appeal against his bankruptcy is determined or until further order, his trustee, Mr Peter Macks, be restrained from communicating with any person other than the applicant and any former or current solicitors or accountants of the applicant and any person or agent of any person who voted against the composition under Part X of the Bankruptcy Act put at a meeting of creditors dated 6 September 1994.

This matter came on for hearing on 16 January 1995.  On that occasion Mr Nassar, who appeared without legal representation, advised the court that he is seeking to continue his business as an import/export agent and for that purpose is in contact with various persons within Australia and outside Australia.  His concern is that if his trustee contacts any of these persons ("the relevant individuals") his chances of continuing to do business with them may be destroyed.  He asserted that the relevant individuals are not familiar with the laws of Australia and may believe that Mr Nassar has been involved in criminal activity or has otherwise, as I understand him, come to the adverse attention of the Australian government.

On 16 January 1995 it became clear that Mr Nassar had not provided to his trustee a current statement of his affairs.  He agreed to do so to the extent that he was then able to do so and I suggested to him that in addition he advise Mr Macks, his trustee, of the names of the relevant individuals to whom he did not wish Mr Macks to speak.  It seemed to me that unless Mr Macks knew the identity of the relevant individuals he was in no position to consider whether or not he had a need to speak to them.  If he were aware of their identity he may have been able to assure Mr Nassar that he had no present intention of speaking to them.

I have been advised today that Mr Macks has not been given the names of the relevant individuals and no evidence has been placed before me as to their identity.  It appears that Mr Nassar may have offered informally to give the names to Mr Macks but only on the basis that he give an undertaking in advance not to contact them until the matter came on in court again.  Mr Macks was not willing to give such an undertaking.

Mr Cudmore appeared today for Mr Macks who had earlier been unrepresented.  Mr Nassar objected to Mr Cudmore appearing in this matter as Mr Cudmore had earlier been instructed with respect to Mr Nassar by Advance Bank, a creditor of Mr Nassar.  Mr Cudmore assured me that he has no conflict of interest in this matter and I have accepted that assurance.

It was submitted by Mr Cudmore that this application is not one which the court can entertain even if it is understood as an application for a stay of a sequestration order either in whole or in part.  Mr Cudmore pointed out that the creditor upon whose application the sequestration order was obtained is not a party to this application, nor has the application been taken out in the appeal against the sequestration order made by von Doussa J against Mr Nassar.

It seems to me that Mr Cudmore is probably correct in this submission, but there are, I consider, other reasons for rejecting the application.  First, the order sought is extremely wide: no justification has been shown for an order of such width.  Further, insufficient material has been placed before the court to satisfy the court that there is a need for any order of the kind sought by Mr Nassar.  I am still unaware of the identities of the relevant individuals and of the precise nature of their respective relationships with Mr Nassar.  No balancing of the need of the trustee to communicate with them against possible harm to Mr Nassar has been possible.

Moreover, the order sought by Mr Nassar is, in reality, an application for a stay of the sequestration order.  It is therefore appropriate to consider, so far as I am able on the material before me, the likelihood of success of any appeal against the making of a sequestration order.  I have had the benefit of reading the decision of von Doussa J dated 21 December 1994 in which the sequestration order was made.  It seems to me that there is no strong prospect of success of an appeal against that order.

In my view nothing has been put to me which suggests that my discretion in this matter, assuming contrary to Mr Cudmore's contention that I have one, should be exercised in Mr Nassar's favour.  In my view there is no reason why this bankruptcy, and any appeal against the sequestration order, should not follow the ordinary course.  The application is dismissed.

I certify that this and the      preceding pages are a true copy of the Ex Tempore Reasons for Judgment of Justice Branson.

Associate:

Dated:

Counsel for the trustee          :    Mr J M Cudmore
Solicitors for the trustee       :    Ward & Partners

Applicant  :    No appearance

First Respondent                 :    Appeared in person

Second to Fifth Respondents:     :    No appearance

Hearing Date  :    23 January 1995