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…
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- El-Hanania v Cull [2024] FCA 814
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- [2024] FCA 814
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CaseChat Overview and Summary
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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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