Deputy Commissioner of Taxation v Andrew, William Edward & Clyne, Peter Leopold

[1984] FCA 21

Re: DEPUTY COMMISSIONER OF TAXATION
And: WILLIAM EDWARD ANDREW and PETER LEOPOLD CLYNE
Nos. W838 and W929 of 1983
52 ALR 701
Bankcuptcy

COURT

IN THE FEDERAL COURT OF AUSTRALIA

GENERAL DIVISION
BANKRUPTCY DISTRICT OF THE STATE OF NEW SOUTH WALES AND THE AUSTRALIAN CAPITAL TERRITORY
Beaumont J.

CATCHWORDS

Bankruptcy - Two trustees of one estate - Whether consent of both required under s.272(c)

Bankruptcy Act, 1966 s.272(c)

HEARING

SYDNEY

#DATE 23:2:1984

ORDER

1. Declare that, upon the true construction of s.272(c) of the Bankruptcy Act, 1966 and in the events which have happened, the consent in writing of John William O'Brien is required before the second respondent leaves Australia or does an act preparatory to leaving Australia.

2. Costs reserved.

3. Adjourn application for mention on 8 March, 1984 at 9.30 a.m.

JUDGE1

By application dated 6 February, 1984, the applicant seeks, inter alia, an order that the second respondent be restrained from leaving Australia. In support of the application, the applicant relies upon the provisions of s.272(c) of the Bankruptcy Act, 1966:

"A person who--

...

(c) after he has become a bankrupt and before he is discharged from the bankruptcy, without the consent in writing of the trustee of his estate, leaves Australia, or does an act preparatory to leaving

Australia,

is guilty of an offence and is punishable, on conviction, by imprisonment for a

period not exceeding 3 years."

1. The earlier history of this matter is described in the judgment of the Full Court (Bowen, C.J., St. John and Fisher, JJ.) of 8 February, 1984.

2. Pursuant to applications made in that behalf by the second respondent, the first respondent, purporting to act under the provisions of s.272(c), consented to the second respondent's leaving Australia for a period then specified. However, Mr. O'Brien, the trustee referred to in the reasons for judgment of the Full Court, has not given any such consent.

3. The parties have agreed that a preliminary point should now be determined in the application, namely, whether in the circumstances the consent of Mr. O'Brien in writing is required prior to the second respondent leaving Australia or doing an act preparatory to leaving Australia.

4. There appears to be no authority on or even near the point. The second respondent referred in argument to the reasoning of Fisher, J. in Re Close, a decision discussed in the reasons of the Full Court. However, that case was concerned with the question of the appointment of a trustee or trustees and it is apparent that this decision can throw no light on the true construction of a provision such as s.272(c).

5. The decision of the Full Court was that, by force of law, each of the two trustees is a trustee of the estate of the bankrupt. It must follow, in my opinion, that by applying a distributive construction of s.272(c), the consent of each trustee is required (cf. Sky v. Body (1970) 92 WN (NSW) 934). Alternatively, in my view, the same result is arrived at by application of s.23(b) of the Acts Interpretation Act, 1901.

6. In the result, I declare that, upon the true construction of s.272(c) of the Bankruptcy Act, 1966 and in the events which have happened, the consent in writing of John William O'Brien is required before the second respondent leaves Australia or does an act preparatory to leaving Australia. I reserve costs.