Clarke v Anthony Warner of CRS Warner Kugel
[2012] FMCA 134
•13 February 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CLARKE v ANTHONY WARNER OF CRS WARNER KUGEL | [2012] FMCA 134 |
| BANKRUPTCY – Overseas travel – where Trustee denied permission to travel – whether to grant application. |
| Bankruptcy Act1966 (Cth), ss.178, 272 |
| Applicant: | EILEEN CLARKE |
| Respondent: | ANTHONY WARNER OF CRS WARNER KUGEL |
| File Number: | SYG 281 of 2012 |
| Judgment of: | Raphael FM |
| Hearing date: | 13 February 2012 |
| Date of Last Submission: | 13 February 2012 |
| Delivered at: | Sydney |
| Delivered on: | 13 February 2012 |
REPRESENTATION
| The Applicant: | In Person |
| For the Respondent: | No Appearance |
ORDERS
On receipt in the registry of a written undertaking, signed by the applicant in the following form:
“I, Eileen Clarke, the applicant, undertake to the court that within two days of returning from Fiji on 20 February 2012, I shall hand my bankruptcy trustee the passport obtained by me in order to travel on 17 February 2012. I understand that by giving this undertaking that I shall be in contempt of court if I fail to abide by it, and that proceedings for such contempt could be brought against me by my trustee or by the court of its own motion.”
the applicant shall have leave, pursuant to ss. 178 and 272 of the Bankruptcy Act 1966 (Cth), to travel to Fiji on 17 February 2012, and return on 20 February 2012.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 281 of 2012
| EILEEN CLARKE |
Applicant
And
| ANTHONY WARNER OF CRS WARNER KUGEL |
Respondent
REASONS FOR JUDGMENT
There appears before me today Ms Eileen Clarke who tells me that she was made bankrupt in 2008. She is currently applying for leave to travel outside the jurisdiction for the purposes of attending her daughter’s marriage in Fiji on 19 February 2012. She requested the trustee’s consent in January 2012. She advised the trustee that her airfare and that of her 13-year old daughter, whom she would accompany, would be paid by a third party but the trustee declined his consent on the grounds that Ms Clarke had not complied with payment of “compulsory income contributions”.
It was also suggested by the trustee that Ms Clarke had told him that she was the owner of property in South Africa which had not been revealed on her Statement of Affairs. In a subsequent email to the trustee Ms Clarke denies owning property in South Africa.
This application was taken out urgently on 9 February 2012 and was served on that day. There is no appearance on behalf of the trustee.
In her affidavit in support of her application Ms Clarke tells that unless she and her younger daughter are allowed to attend the wedding, her older daughter will have no relations at the wedding. It appears that Ms Clarke’s marriage broke down some time ago and that her husband, or former husband, will not be attending the wedding either.
Ms Clarke, in an email to the trustee, has indicated that she will apply for a passport in order to attend her daughter’s wedding and, on receiving the passport, would hand it to the trustee, presumably on her return on 20 February 2012.
It seems to me that this application is one that should be granted; that the attendance at her daughter’s wedding is clearly an important family occasion and that it would be heartless to refuse permission, especially when the trustee has not come to the court to argue any different position. On the other hand, the court has to be satisfied that the promises made by Ms Clarke will be adhered to. Therefore, the court orders that on receipt in the registry of a written undertaking, signed by the applicant in the following form:
“I, Eileen Clarke, the applicant, undertake to the court that within two days of returning from Fiji on 20 February 2012, I shall hand my bankruptcy trustee the passport obtained by me in order to travel on 17 February 2012. I understand that by giving this undertaking that I shall be in contempt of court if I fail to abide by it, and that proceedings for such contempt could be brought against me by my trustee or by the court of its own motion.”
the applicant shall have leave, pursuant to ss. 178 and 272 of the Bankruptcy Act 1966 (Cth), to travel to Fiji on 17 February 2012, and return on 20 February 2012.
I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Raphael FM
Date: 28 February 2012
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