Casella v Prentice

[2002] FMCA 48

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CASELLA v PRENTICE [2002] FMCA 48

BANKRUPTCY – Review of decision of Trustee of a bankrupt refusing release of passport.

Re Wheeler, Ex parte Wheeler v House (1994) 54 FCR 166

Bankruptcy Act ss 77(a)(ii) and 178

Applicant: DOMENIC CASELLA

Respondent: MAXWELL WILLIAM PRENTICE

File No: WZ 49 of 2002

Delivered on: 22 March 2002

Delivered at: Melbourne

Hearing Date: 22 March 2002

Judgment of: McInnis FM

REPRESENTATION

Applicant: Mr D Casella in person

Counsel for the Respondent: Mr Belyea

Solicitors for the Respondent: Clayton Utz

ORDERS

(1)That the application be dismissed.

(2)The applicant pay the respondent's costs pursuant to Order 62 of the Federal Court Rules to be paid out of the estate of the applicant.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

WZ 49 of 2002

DOMENIC CASELLA

Applicant

And

MAXWELL WILLIAM PRENTICE

Respondent

REASONS FOR JUDGMENT

1. This is an application by DOMENIC CASELLA (the applicant) which effectively is raised pursuant to section 178 of the Bankruptcy Act.  The complaint which is made by the applicant against MAXWELL WILLIAM PRENTICE (the respondent), in an application filed

   
   

   21 February 2002, that on 20 February 2002 is the respondent declined to release the applicant's passport to him for the purpose of employment related travel.  The applicant claims that the respondent's refusal to release his passport unless the applicant first provides to the respondent precise details of the person the applicant will meet whilst travelling, is unjust and inequitable and further adds in his application that he has provided the respondent with his proposed itinerary which he argues is sufficient in all the circumstances.

2. The respondent was appointed as trustee by a certificate of appointment dated 27 October 2000. 

3. The applicant relies upon an affidavit sworn by him on 21 February 2002.  In his affidavit and in submissions made before me this day, the applicant has made it clear - and there is no evidence to the contrary - that he is not a man who has any criminal convictions or otherwise has committed any offences.  He is a man who is, in his submissions and the material, genuinely endeavouring to obtain employment to assist him in gaining income for the purpose of supporting his wife and two teenage children.  He is presently receiving unemployment benefits through Centrelink and has indicated in the affidavit material to which I have referred, that he has an offer of employment with a company named Dalpine Pty Ltd of which Mr Angelo Kunievski is a director.

4. Mr Kunievski, in a letter dated 28 October 2001, addressed to the respondent, advised that he wanted to employ the applicant to assist him with setting up a fishing venture which in that letter he expected to commence within the next four to six weeks.  He indicates in that letter initial work would be require involving travel to the United Kingdom and that the applicant would also be required to travel to Singapore and Japan to help market the produce once set up.  The…