El-Hanania v Cull - [2024] FCA 814

FEDERAL COURT OF AUSTRALIA
El-Hanania v Cull [2024] FCA 814

File number: NSD 969 of 2024

Judgment of: KATZMANN J

Date of judgment: 24 July 2024

Catchwords: BANKRUPTCY AND INSOLVENCY – where applicant (an undischarged bankrupt) seeks trustees’ consent to travel overseas – where trustees refused consent – whether Court should direct trustees to give consent

Legislation: Bankruptcy Act 1966 (Cth), ss 77(1), 272(1)(c); Sch 2, s 90͏͏͏͏͏–15

Cases cited:
Booth v Offerman as the Trustee of the Bankrupt Estate of Geoffrey David Booth [2019] FCA 5

Macchia v Nilant (2001) 110 FCR 101

Nasr v Dixon (Trustee), in the matter of Nasr (Bankrupt) [2018] FCA 1039

Re Hicks; Ex parte Lamb (1994) 217 ALR 195

Stillman v Pascoe [2010] FMCA 549

Tinkler v Melluish [2017] FCA 52

Re Tyndall: Ex parte Official Receiver (1977) 17 ALR 182

Division: General Division

Registry: New South Wales

National Practice Area: Other Federal Jurisdiction

Number of paragraphs: 44

Date of hearing: 23 July 2024

Counsel for the Applicant: The applicant was self-represented

Counsel for the Respondents: Mr Cull appeared for himself and the Second Respondent

ORDERS

NSD 969 of 2024

BETWEEN:
SABA EL HANANIA

Applicant

AND:
INNIS CULL

First Respondent

ANDREW YEO

Second Respondent

ORDER MADE BY:

KATZMANN J

DATE OF ORDER:

24 JULY 2024

THE COURT ORDERS THAT:
1.The application be dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
(Revised from transcript)
KATZMANN J:

The applicant is an undischarged bankrupt. He is, or was, also a legal practitioner. An order for the sequestration of his estate was made in this Court on 15 December 2022. The Official Trustee was appointed trustee of the bankrupt estate. In January 2023 Innis Anthony Cull and Andrew Reginald Yeo were appointed trustees under s 181A of the Bankruptcy Act 1966 (Cth), replacing the Official Trustee. More than 15 months later, on 7 April 2024, the applicant filed a notice of appeal seeking an annulment of the sequestration order and an application seeking an extension of time to enable him to appeal. That application is pending.
Yesterday the applicant filed an originating application seeking a declaration that “he is able to leave Australia” to be with his son and wife, who are currently in Honolulu, for a period of five days, requesting an urgent hearing as the flight upon which he is booked was scheduled to leave tonight.
Section 272(1)(c) of the Bankruptcy Act provides that it is a criminal offence for an undischarged bankrupt to leave Australia, or do an act preparatory to leaving Australia, punishable by imprisonment for up to 3 years, without the written consent of the trustee in bankruptcy. The applicant neglected to seek the trustees’ consent before making arrangements to travel to Hawaii and when it was belatedly sought it was refused.
In his affidavit in support of the application, the applicant deposed that he “just received a call from [his] wife stressing out” and that was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading El-Hanania v Cull

Details

AGLC: El-Hanania v Cull [2024] FCA 814
Case: [2024] FCA 814
Decision Date: 24 July 2024

CaseChat Overview and Summary

The case of El-Hanania v Cull involved an application by an undischarged bankrupt, the applicant, seeking consent from the trustees to travel overseas. The trustees, in turn, refused to give their consent, leading to the applicant bringing the matter before the court. The primary issue before the court was whether it should direct the trustees to provide the consent the applicant sought. This matter was heard in the Federal Court of Australia, where the judges were tasked with interpreting the relevant legal frameworks and determining the appropriate course of action.

The central legal question that arose was the extent of the court's authority in directing the trustees to consent to the travel of an undischarged bankrupt. The applicant argued that the trustees' refusal was unreasonable and that the court should intervene to ensure that the applicant's right to travel was upheld. Conversely, the trustees contended that they had acted within their discretion and that there were legitimate reasons for withholding consent. The court needed to consider the statutory provisions governing bankruptcy and insolvency, as well as any relevant case law, to make a well-reasoned decision.

In delivering its judgment, the court thoroughly examined the relevant legislative provisions and the specific circumstances of the case. The court noted that the trustees had a broad discretion when it comes to the management of bankrupt estates and that the applicant had not demonstrated any compelling reason why the court should override the trustees' decision. The judges concluded that the trustees' refusal was not unreasonable and that the applicant had failed to establish grounds for the court to direct the trustees to give consent. Consequently, the court dismissed the application, reaffirming the importance of respecting the trustees' discretion in bankruptcy matters.

Orders

Orders of the court

1. The application be dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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File number:	NSD 969 of 2024
Judgment of:	KATZMANN J
Date of judgment:	24 July 2024
Catchwords:	BANKRUPTCY AND INSOLVENCY – where applicant (an undischarged bankrupt) seeks trustees’ consent to travel overseas – where trustees refused consent – whether Court should direct trustees to give consent
Legislation:	Bankruptcy Act 1966 (Cth), ss 77(1), 272(1)(c); Sch 2, s 90͏͏͏͏͏–15
Cases cited:	Booth v Offerman as the Trustee of the Bankrupt Estate of Geoffrey David Booth [2019] FCA 5 Macchia v Nilant (2001) 110 FCR 101 Nasr v Dixon (Trustee), in the matter of Nasr (Bankrupt) [2018] FCA 1039 Re Hicks; Ex parte Lamb (1994) 217 ALR 195 Stillman v Pascoe [2010] FMCA 549 Tinkler v Melluish [2017] FCA 52 Re Tyndall: Ex parte Official Receiver (1977) 17 ALR 182
Division:	General Division
Registry:	New South Wales
National Practice Area:	Other Federal Jurisdiction
Number of paragraphs:	44
Date of hearing:	23 July 2024
Counsel for the Applicant:	The applicant was self-represented
Counsel for the Respondents:	Mr Cull appeared for himself and the Second Respondent

ORDER MADE BY:	KATZMANN J
DATE OF ORDER:	24 JULY 2024