Dunwoody v Official Receiver - [2005] FMCA 1634

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DUNWOODY v OFFICIAL RECEIVER

[2005] FMCA 1634

BANKRUPTCY – Trustee –Application for review of trustee’s refusal to permit bankrupt to travel overseas – relevant factors –discretion of Court – refusal to permit travel.

Bankruptcy Act 1966, ss.77, 139ZU, 178, 266, 272, 272(1)(c)

Bethune v Newman (1996) 19 ACSR 99
Cummins v Claremont Petroleum NL (1995) 185 CLR 124
El-Maghraby v Patterson [2003] FMCA 103
Grujin v Patteron [2002] FMCA 213
Hicks, Re; ex parte Lamb (1994) 217 ALR 195
Jackson Grose v The Official Receiver [2002] FMCA 239
Jatkar v Rambaldi [2003] FMCA 335
Luna v Pattison [2004] FMCA 237
Macchia v Nilat [2001] FCA 7
Mayger v Prentice [2000] FCA 99
McGoldrick v The Official Trustee in Bankruptcy (1993) 119 ALR 253; (1993) 47 FCR 547
Nguyen v Pattison [2004] FMCA 517
Tyndall, Re; (1977) 30 FLR 6
Wheeler, Re; ex parte Wheeler (1994) 54 FCR 166
Weiss v The Official Trustee (1978) 1 FCR 40

Applicant:

JOHN EARNEST DUNWOODY

Respondent:

OFFICIAL RECEIVER

File Number:

BRG391 of 2005

Judgment of:

Riethmuller FM

Hearing date:

14 October 2005

Date of Last Submission:

14 October 2005

Delivered at:

Brisbane

Delivered on:

16 November 2005

REPRESENTATION

Counsel for the Applicant:

In person

Solicitors for the Applicant:

Counsel for the Respondent:

Mr McLeod

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

That the application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRG391 of 2005

JOHN EARNEST DUNWOODY

Applicant

And

OFFICIAL RECEIVER

Respondent

REASONS FOR JUDGMENT

This is an application for the review of the respondent trustee’s decision of 26 April 2005 to refuse the applicant bankrupt permission to travel overseas.

Background

The applicant became bankrupt on 9 October 1998.
The applicant, in his outline, sets out that he lodged his statement of affairs at the same time as his debtor's petition. He was publicly examined on 20, 22 & 23 March 2000. Between 9 August 2003 and

8 August 2004 the applicant was incarcerated on a sentence of two years imprisonment for bankruptcy fraud pursuant to s.266 of the Bankruptcy Act 1966.
On 5 January 2005 the applicant requested that the respondent trustee consent to overseas travel on his part for the purpose of visiting his fiancée whom he had not seen since January 2000.
Following that request the trustee sought from the applicant advice as to the measures he would take to pay a contribution assessment liability debt of $48,527.23. The applicant responded stating:
…I will repay … by instalments when I obtain employment that provides me with more subsistence income.
My present carer's pension only provides a bare minimum of subsistence support. My fiancée anticipates paying for the cost of the air plane fare for me to visit her.
A decision was made by the trustee on 26 April 2005, including the trustee’s reasons, as follows:
Whilst the trustee notes your advised present circumstances and offer of future payments, the trustee will consent to your departure only on the condition that you pay the outstanding debt in full or secure the debt to the satisfaction of the trustee …
In imposing the above condition the trustee has had regard to the quantum of the unpaid debt which represents a significant outstanding liability to your estate, and the length of time in which the debt has remained unpaid.
The applicant appealed the contribution assessment of $48,527.23 by the trustee to the Inspector General and subsequently the Administrative Appeals Tribunal. The appeal was and dismissed on

17 January 2003. The applicant continues to dispute the basis upon which the trustee made the assessment.
The applicant’s case before the trustee was, in summary, that:
a)He has not seen his fiancée for some years;
b)His finacée is unable to travel to Australia due to commitments in caring for children with special needs;
c)He had provided information with respect to where he will be staying in the United States;
d)His return is assured because:
i)he will be travelling on a tourist visa and will have a return travel ticket paid for by his fiancée; and
ii)he will need to return to Australia as he is currently receiving a carer's pension as the carer for his aging mother who will be in respite care whilst he is away, and such respite care ceases after 28 days (in accordance with the entitlements of his mother from the Department of Veterans' Affairs).

The law

The relevant provision of the Bankruptcy Act1966 is s.272. Section 272 makes specific provision with respect to leaving Australia, although prescribes no specific matters that the trustee must have regard to in exercising his or her discretion under s.272(1)(c).

The section states:
Leaving Australia with intent to defeat creditors etc.
272(1) A person who:
(a)    within 6 months before the presentation of the petition on or by virtue of which he or she became a bankrupt, left Australia, or did an act preparatory to leaving Australia, with intent to defeat or delay his or her creditors; or
(b)    after the presentation of the petition on or by virtue of which he or she became a bankrupt and before he or she became bankrupt, left Australia, or did an act preparatory to leaving Australia, with intent to defeat or delay his or her creditors; or
(c)    after he or she has become a bankrupt and before he or she is discharged from the bankruptcy, without the consent in writing of the trustee of his or her 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.
(2) The trustee may impose written conditions on a consent given for the purposes of paragraph (1)(c). If the bankrupt is liable to make a contribution to the trustee under section 139P or 139Q, the conditions may include conditions regarding the payment of that contribution.
(3) If the bankrupt contravenes any condition imposed by the trustee, the bankrupt is guilty of an offence and is punishable, on conviction, by imprisonment for a period not exceeding 1 year.
The discretion exercised under s.272(1)(c) must be for the attainment of the purposes and objects of the legislation. The purpose and objects of the legislation must be ascertained from the Act as a whole.
In Nguyen v Pattison [2004] FMCA 517 I referred to the primary purpose of the Act, saying:
22. The primary purpose of the Bankruptcy Act is to provide a mechanism whereby a debtor's property can be taken and used to pay creditors, to the extent that there is a shortfall to allow the debtor to be freed from the burden of accumulated debts. The scheme is not intended to be punitive, although there must necessarily be punitive aspects to the legislation in order to provide appropriate incentives for bankrupts to comply with their obligations under the Act.
Section 77 provides for the general obligations of a bankrupt with respect to the administration of an estate:
Duties of bankrupt as to discovery etc. of property
77(1) A bankrupt shall, unless excused by the trustee or prevented by illness or other sufficient cause:
(a) forthwith after becoming a bankrupt, give to the trustee:
(i) all books (including books of an associated entity of the bankrupt) that are in the possession of the bankrupt and relate to any of his or her examinable affairs; and
(ii) the bankrupt's passport, if any; and
(b) attend the trustee whenever the trustee reasonably requires; and
(ba) give such information about any of the bankrupt's conduct and examinable affairs as the trustee requires; and
(bb) as soon as practicable after becoming a bankrupt, advise the trustee of any material change that occurred between the time the bankrupt lodged his or her statement of affairs and the time the bankrupt became a bankrupt; and
(bc) if a material change occurred later, advise the trustee of that change as soon as practicable after the change occurs; and
(c) attend a meeting of creditors whenever the trustee requires; and
(d) at each meeting of creditors at which the bankrupt is present, give such information about any of the bankrupt's conduct and examinable affairs as the meeting requires; and
(e) execute such instruments and generally do all such acts and things in relation to his or her property and its realization as are required by this Act or by the trustee or as are ordered by the Court upon the application of the trustee; and
(f) disclose to the trustee, as soon as practicable, property that is acquired by him or her, or devolves on him or her, before his or her discharge, being property divisible amongst his or her creditors; and
(g) aid to the utmost of his or her power in the administration of his or her estate.
(2) In this section:
"material change" means a change in the particulars contained in the bankrupt's statement of affairs, where the change could reasonably be expected to be relevant to the administration of the bankrupt's estate.
Pursuant to s.178 of the Act an application may be made to the Court for review of a trustee's decision when administering an estate. Section 178 provides:
Appeal to Court against trustee's decision etc.
178 (1) If the bankrupt, a creditor or any other person is affected by an act, omission or decision of the trustee, he or she may apply to the Court, and the Court may make such order in the matter as it thinks just and equitable.
(2) The application must be made not later than 60 days after the day on which the person became aware of the trustee's act, omission or decision.
On an application for review under s.178 the Court must exercise a broad discretion based upon the relevant facts and circumstances. It is clear that the Court has a very broad supervisory power.
The nature of the power provided to the Court under s.178 was discussed in some detail by French J in Macchia v Nilat [2001] FCA 7. In that case his Honour examined the statutory framework for the control of trustees in bankruptcy and discussed the powers of the Court pursuant to s.178, saying:
35. Sir Thomas Clyne chaired the Committee appointed by the Attorney-General of the Commonwealth to Review the Bankruptcy Law of the Commonwealth which reported in 1962. That report led to the enactment of the 1966 Act. The Committee apparently saw no significant difference between s 148 of the 1924 Act and cl 178 of the Bill scheduled to its Report that became s 178 of the 1966 Act. The report's commentary on the proposed new ss 178 and 179 and associated provisions were brief and appeared at par 253:-
"253 The Committee is of opinion that the existing provisions concerning control over trustees (sections 147-149) are generally satisfactory and recommends only minor changes in them, the details of which will appear from a perusal of clauses 177-179".
36. In spite of the Clyne Committee's reference to "minor changes" effected by the control provisions of the 1966 Act, the differences in wording between s 148 of the old Act and s 178 of the new were seen as "critical" by Deane J in Re Tyndall (1977) 30 FLR 6 at 9. No longer was it necessary for the applicant for relief to be "aggrieved" by the act, omission or decision complained of albeit that person must be "affected" by it. Nor was the court any more to be confined to considering first whether to "confirm, reverse or modify the act or decision complained of". The wording of s 178 was such "as to confer upon the court the widest possible discretion as to the appropriate order which should be made in the particular case" (10). It was no longer limited to those cases in which the trustee's decision was absurd or unreasonable or taken in bad faith. This expansive approach was moderated by the caveat that the court would follow well established policy under bankruptcy legislation that it "should not unduly interfere with the day-to-day administration of a bankrupt's estate by a trustee" (10). The earlier passing observation of Riley J in Re Alafaci; Registrar in Bankruptcy v Hardwick (1976) 9 ALR 262 at 267 that s 178 subjected the acts, omissions or decisions of the trustee to the control of the court by way of appeal, seems a little restrictive in the light of Re Tyndall. The width of the section was demonstrated in Re Stelnicki (1982) 62 FLR 430 when Cox J enjoined, for twenty eight days, the sale of property of a bankrupt who had a substantial surplus of assets over liabilities. Although it was not a case in which any error had been shown in the commercial judgment of the trustee, it was "just and equitable that the bankrupt have the opportunity to discharge the relatively small deficiency without further of his stock-in-trade being exposed for sale by auction".
37. The observations of Deane J about the width of the discretion under s 178 were approved by the Full Court in Re Dingle; Westpac Banking Corporation v Worrell (1993) 47 FCR 478 at 485. Nevertheless the Court emphasised that the powers under s 178, like those under s 30 of the Act are discretionary and:
"It should not be thought that the Court will always intervene."
The wide view was also approved by the Full Court in McGoldrick v Official Trustee in Bankruptcy (1993) 47 FCR 547 at 552-553. In that case s 178 was invoked to challenge a trustee's decision to lodge a notice of objection under s 149 as it stood prior to the coming into effect of the Bankruptcy Amendment Act 1991 on 1 July 1992. The former s 149 conferred on the bankrupt a right to seek a decrease of the statutory extension of the bankruptcy which was the consequence of lodgment of an objection. It did not provide any basis for challenging the objection itself. The Full Court held that s 178 was available for that purpose for objections lodged prior to 1 July 1992. Sections 149 and 150 amounted to a code in relation to the reduction of the statutory extension, but had nothing to say about review of the decision to make the objection. The new provisions, ss 149K to 149Q on the other hand, specifically covered the issue of reviewing a decision to lodge an objection. As noted earlier in the statutory framework, applications for such review have been able to be made to the Inspector-General or the Administrative Appeals Tribunal since July 1992. Although characterising these provisions also as a code, the Full Court expressly refrained from stating a view on whether there remained any place for s 178 in the review of a decision to object to a bankrupt's discharge (554).
38. Section 178 confers a "supervisory jurisdiction over the conduct of the trustee" - Cummings v Claremont Petroleum NL (1996) 185 CLR 124 at 133 (Brennan CJ, Gaudron and McHugh JJ). It confers a power to "in substance" review the decision of the trustee - McGoldrick at 556. The power is necessarily judicial - Re Wheeler; Ex parte Wheeler v Halse (1994) 54 FCR 166 at 170 (Lee J). In the latter case Lee J said that the Court could not, in an application under s 178, be asked to perform the administrative function of a trustee administering an estate in bankruptcy. It is given original jurisdiction, the exercise of which might entail "orders of a supervisory character in so far as the determination of questions of law raised by the application require those orders to be made" (169). The applicant "must show a ground on which the trustee's administration of the affairs of the bankrupt is to be reviewed". That proposition must be read with the generic concept of review in the original jurisdiction of the Court as one which can, according to context, enliven "the jurisdiction of the court in respect of the whole matter" raising issues of either or both law and fact - State of Western Australia v Strickland (2000) 99 FCR 33 at 49-50, citing inter alia, Re Tyndall. Some functions which are administrative in character when exercised by an administrator have the chameleon quality of becoming judicial when exercised by a court - Federal Commissioner of Taxation v Munro (1926) 38 CLR 153 at 175-9 (Isaacs J); R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1971) 123 CLR 361 at 363 (Kitto J); Cominos v Cominos (1972) 127 CLR 588 at 606 (Mason J). In relation to s 178 it is unnecessary, for the purpose of enlivening the court's jurisdiction, to find that the trustee has done anything wrong. His decision may, on the material before him, have been quite correct and reasonable - Gray v Clout (1990) 27 FCR 141 at 144 (Pincus J). On the other hand, it is not to the point that the judge who hears a review application might have acted differently - Healey v Prentice (No 2) [2000] FCA 1598 (Madgwick J). It is not necessary here to discern the outer limits of s 178 but rather to emphasise its importance in providing for wide ranging supervision by the Court of trustees who are appointed to administer the interests of bankrupts in the interests of creditors and, in so doing, to have regard also to the interests of the bankrupts - Haskins v Insolvency and Trustee Service Australia (Full Court, 3 October 1996, unreported).
The applicant bears the onus of proof in showing a ground upon which the trustee's administration of the affairs of the bankruptcy should be reviewed: see Bethune v Newman (1996) 19 ACSR 99 per R D Nicholson J at 102 to 103.
In ReTyndall (1977) 30 FLR 6 at Deane J said:
Once the matter is properly before the court, the court is, by the express words of section 178, empowered (and, as I have said, obliged) to make such order in the matter as it thinks just and equitable.
This is not, of course, to say that the court should either disregard the relevant decision of the trustee or ignore the well - established policy under bankruptcy legislation that the court should not unduly interfere with the day-to-day administration of a bankrupt’s estate by a trustee.
His Honour, at pages 14 to 15, went on to state:
It was only in recent years that the Commonwealth Bankruptcy legislation has made it an offence for a bankrupt to travel overseas without the consent of his trustee and has required a bankrupt to surrender his passport to his trustee once a sequestration order is made. Bankruptcy does not, of itself, involve any criminal offence. A citizen should be free to travel if and when his commercial activities or personal desires prompt him to do so. Restrictions upon such travel under the bankruptcy legislation must be seen as being aimed at insuring the proper administration of the bankruptcy laws and of bankrupt estates under such laws and not as a penalty imposed upon a citizen as a consequence of inability to pay debts leading to the making of a sequestration order …
The provisions of s. 77 (a) and s. 272 of the Act recognize that a bankrupt's legitimate desires to travel overseas must, in an appropriate case, be subordinated to what is necessary for the proper and efficient administration of his estate in bankruptcy and the administration of the bankruptcy law.
The comments of Deane J have been approved in a number of subsequent cases such as Weiss v The Official Trustee (1978) 1 FCR 40; Wheeler and Wheeler v Halse (1994) 54 FCR 166 and Ian Andrew McGoldrick v The Official Trustee in Bankruptcy (as trustee of the estate of Ian Andrew McGoldrick, a bankrupt) (1993) 119 ALR 253 (1993) 47 FCR 547.
The applicant relied upon a decision of Heerey J in Re Hicks; ex parte Lamb (Heerey J, 4 March 1994, VB1473 of 1993) where his Honour identified matters that would be usually relevant in determining such an application. Heerey J said:
I suggested to counsel for the trustee in argument that the following issues were, while not necessarily conclusive, nevertheless at the forefront of the matters to be considered in exercising my discretion:
(1) is the proposed visit genuine?
(2) is the bankrupt likely to return to Australia as promised?
(3) will the visit hamper the administration of the estate?

These criteria have been relied upon in a number of decisions of the Federal Magistrates Court: see, for example, Jackson Grose v The Official Receiver [2002] FMCA 239 at [27] – [28]; El-Maghraby v Patterson [2003] FMCA 103 at [13] and [15]; Jatkar v Rambaldi [2003] FMCA 355 at [13]; and Luna v Pattison [2004] FMCA 237.
Whilst the matters listed by Heerey J will usually be the significant factors, his Honour did not attempt to limit the matters that may be relevant in a particular case. For example, in Mayger v Prentice [2000] FCA 99 Giles J said:
When the Trustee comes to consider the position he would not, it seems to me, be restricted to the reasons which he outlines, namely business and compassionate reasons, although they are clearly very relevant. I do not propose to indicate a limit to the matters which a Trustee can take into account in exercising this discretion. Certainly foremost amongst them would be any legitimate claims it would have to the attention of the applicant during the period he would be away. In other words, if there is no pressing reason for the bankrupt to be in touch with the Trustee over this period, then that would be a cogent factor for the Trustee to take into account.
Some considerations will not be appropriate. For example, if the trustee was refusing consent solely for the purpose of punishing the bankrupt for past deeds that would, of course, be impermissible: see Mayger v Prentice [2000] FCA 99 and Grujin v Patterson [2002] FMCA 213.
The applicant pointed out that s.139ZU of the Act had formerly precluded a bankrupt from leaving Australia if they were liable to pay a contribution unless the court granted leave. That section was repealed by the Bankrupty Legislation Amendment Act, 2002 (Act No 131 of 2002). The Explanatory Memorandum stated (section 156):
Repeal of Division 4C of Part VI
Item 101 provides for the repeal of Division 4C of Part VI of the Act. That Division provides for a bankrupt who is liable to pay income contributions not to leave Australia without permission of the Court. It is proposed to transfer the primary decision making in relation to such matters from the Court to the trustee of the bankrupt estate: see the notes on item 185. By transitional provision item 222, the amendments made by this item will not affect the rights of bankrupts in relation to permission for overseas travel granted before commencement or sought before, but granted after, commencement.
It does not appear to me that the repeal of s.139ZU is a matter that assists in determining the matters relevant to the exercise of the discretion in this case.
The respondent argued that the application should be refused as the applicant was travelling for purely personal reasons, and not in an effort to improve his income earning. The respondent referred to comments of Lee J in Re Wheeler; ex parte Wheeler (1994) 54 FCR 166 where his Honour said:
22.Certainly it was relevant to a proper determination of the applicant's request for return of the passport to consider what prospect there was of an improvement in the earnings, or earning capacity, of the applicant. It would be necessary for the trustee to evaluate the chance that improvement in employment opportunities for the applicant may follow if the applicant's passport were returned to him for use in the manner described by the applicant. ... These were matters the trustee was obliged to consider when assessing whether the passport should be returned. The trustee may not have been satisfied by the material presented by the applicant that the applicant would improve his prospects of earning any income or that it was in the interests of the estate to provide the applicant with that opportunity but the trustee had to turn his mind to that question. Whether the prospect of a return to creditors would be improved if the passport were returned was a matter for the trustee to evaluate. As it was the trustee relied upon his earlier determinations on other submissions and made no fresh evaluation of the prospect of return to the estate in the circumstances set out by the applicant. The trustee appears to have done no more than decide that the applicant would continue to earn some income if return of the passport were refused. I am satisfied that such an approach by the trustee, leading to the decision to refuse to return the passport, did not constitute an adequate decision making process, and that ground to review the decision has been made out.
The respondent also referred to the comments of the High Court in Cummins v Claremont Petroleum NL (1995) 185 CLR 124 at 139 where the High Court said:
The Court would be unlikely to permit the bankrupt to pursue his personal interests, in so far as they are not coincident with the due administration of the estate by the trustee, at the expense of the creditors.
These comments must be seen in the context of the particular cases.

In Wheeler, the bankrupt relied upon an argument that the purpose of the travel was to improve his earnings. In Cummins the application was by a bankrupt against the trustee's decision not to lodge a notice of appeal in other commercial proceedings relating to the estate, and the comment was not made when considering s.178 (a point expressly made by Brennan CJ, Gaudron and McHugh JJ).
I do not accept that the travel must be for a purpose that assists in the administration of the estate. If the travel may hinder the administration, either by hindering contact with the bankrupt by the trustee, or allowing the bankrupt an opportunity to deal with assets that are held overseas and have not been recovered by the trustee, these would be relevant considerations against allowing travel. If the travel would allow the bankrupt to earn a greater income, and thus satisfy all or part of the debts this would be a relevant consideration in favour of allowing the travel. To deny travel simply because it is only being undertaken for compassionate reasons would be an improper exercise of the discretion as it results in a punitive application of the provisions. However, denial of permission to travel where a bankrupt is in default of his or her other obligations may be an appropriate method by which a trustee can encourage compliance by a bankrupt.

Exercise of the discretion

It is appropriate to identify and weigh up the factors that are, in this case, relevant in order to determine whether to make an order under s.178.
The purpose of the travel is for the applicant to visit his fiancée. Whilst the length of the period of the engagement by the applicant to his fiancée seems to be particularly long, the applicant was not cross-examined about such matters. In the circumstances I accept that this is a genuine purpose of the travel.
The care that the applicant's mother requires is a strong factor in favour of the applicant returning to Australia as promised.
Weighted against the applicant are the difficulties the trustee has had in the administration of his estate. The applicant has been imprisoned in the past with respect to his conduct relating to the bankruptcy. The applicant has not yet fulfilled his payment requirements for the assessment made with respect to his income assessment contribution.
Many submissions were made with respect to the income contribution assessment made for the 98/99 period. That matter has been the subject of appeals to the Inspector General and the AAT. The applicant says he has had no income of significance.
In support of the assessment the respondent points out that the applicant has an honour's degree in agricultural science, a master's degree in science in the field of toxicology and has undertaken studies towards a PhD. He had worked in the United States at universities and for various groups with respect to toxicity studies and environmental concerns, and later in Australia on energy conservation and environmental science projects.
The applicant returned to Australia in April 1986 to help his parents with a cane farm and won a land care award for his cane farming. From about 1995 he developed a soil and water quality testing business and has, in the past, introduced and marketed novel equipment for use in farming in Australia. The respondent points out that the applicant has extensive management and business experience. The respondent also provided copies of newspaper reports appearing in the Sugar Times, in April 2001 and July 2001, when the applicant was actively engaged in promoting agricultural machinery with a company, Lingo Enterprises Pty Ltd. One of these articles is a newspaper report about machinery introduced by Mr Dunwoody and the other, obviously an advertisement, with Mr Dunwoody clearly pictured in a photograph which forms part of the advertisement.
The amount of the income assessment contribution is not a matter in issue before me in this hearing, although was certainly challenged by the applicant. For the purpose of this determination it is not appropriate to attempt to look behind such income assessment contribution, and indeed there was not proper evidence (even from the applicant) upon which one could properly make an independent assessment the appropriateness of this income assessment contribution. That the applicant has not paid this contribution is relevant.
A further matter relevant to the exercise of the discretion is the circumstances in which funds were held by the applicant or under his apparent control at the time of the bankruptcy. It was said in argument by the applicant that his accountant was provided with a sum of approximately $367,346 and that he was unsure what the accountant did with that money. The trustee has annexed documents to an affidavit indicating that the money was placed into an annuity investment scheme in the Republic of Vanuatu for the benefit of a superannuation fund to which the applicant appeared to be connected.
The applicant maintained from the Bar table that he was unaware what had occurred with this money and that as he had become bankrupt he had not taken any steps to demand its return or information about it from the accountant. He took the view that it was not appropriate for him to actively pursue these funds now that he is a bankrupt. The funds are said to be held as superannuation payable as an annuity when the applicant attains 65 years of age. However, $123,992.00 was repaid to a company in Australia on or about 1 October 1998 at the direction of the applicant’s accountant. The trustee refers to a copy of a facsimile the applicant sent his brother on 20 December 1999 advising the current value of the annuity was in the order of $119,000. The applicant sent an email to his accountant on 22 December 1999 about his brother saying:
I do not know what his files contain in the way of hand written notes including his misunderstandings of events. With respect to written documents they do contain your two letters re Annuities and Mortgage Finance and my diagram. You asked me to get that diagram back from him. I was never able to pick it up but I did ask him to destroy the copy I sent him. My suspicion is that he didn’t.
Having regard to the matters referred to by the parties in their respective material and arguments I am not satisfied that the applicant would return to Australia as promised, particularly if he were able to access any of the funds that are offshore or if he received an opportunity to earn a significant income elsewhere in the world (notwithstanding his evidence with respect to his mother). I see no purpose in the travel that would assist in the administration of the estate. The applicant is currently in default with respect to payment of his contribution assessment. To be weighed against this is the compassionate basis of the travel.
In the circumstances of this case I am not satisfied that it would be just and equitable to make orders pursuant to s.178 to allow the applicant to leave the jurisdiction as requested by him.
I therefore dismiss the application.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Riethmuller FM

Associate:

Date: 16 November 2005