Hill v Piscopo - [2008] FMCA 574

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HILL v PISCOPO

[2008] FMCA 574

BANKRUPTCY – Review of trustee’s decision not to return the bankrupt’s passport to him to permit overseas travel – consideration of factors relevant to the review – short trip to New Zealand proposed by the bankrupt for a genuine purpose – minimal risk that the bankrupt would fail to return – no significant interference with the administration of the bankrupt estate – public examination of the bankrupt the appropriate means of dealing with unresolved issues in the administration.

Bankruptcy Act 1966 (Cth), s.178

Casella v Prentice [2002] FMCA 48
Ha v White [2003] FMCA 64
Mayger v Prentice; Re Mayger [2000] FCA 99
Re Hicks; Ex parte Lam (unreported, 4 March 1994, VB1473 of 1993)
Re Molina; Ex parte Wily (unreported, 15 December 1995, Tamberlin J)
Re Tyndall; Ex parte Official Receiver (1977) 17 ALR 182
Re Wheeler; Ex parte Wheeler v Halse (1994) 54 FCR 166
Re Zdenek Weiss v Official Trustee in Bankruptcy (1984) 1 FCR 40; [1984] FCA 2
Roche v Rangott, unreported, 23 December 2003

Applicant:

TERRY DONALD HILL

Respondent:

SAMUEL PISCOPO

File Number:

SYG 668 of 2008

Judgment of:

Driver FM

Hearing date:

28 March 2008

Delivered at:

Sydney

Delivered on:

28 March 2008

REPRESENTATION

Counsel for the Applicant:

Mr R Marshall

Solicitors for the Applicant:

NOT Lawyers

Counsel for the Respondent:

Mr R Newlinds

Solicitors for the Respondent:

Catalyst Legal Pty Ltd

ORDERS

The trustee is to return the bankrupt’s passport to him prior to 2 April 2008 for the purposes of the proposed travel, and the bankrupt is to return the passport to the trustee on 8 April 2008.
The Court notes the bankrupt’s undertakings not to depart from the travel itinerary set out in Exhibit A1 and not to participate in any business activities, including share dealings, whilst in New Zealand
There be no order as to costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 668 of 2008

TERRY DONALD HILL

Applicant

And

SAMUEL PISCOPO

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me an application filed on 19 March 2008 seeking review pursuant to s.178 of the Bankruptcy Act 1966 (Cth) (“the Bankruptcy Act”) of a decision of the applicant's trustee in bankruptcy refusing to return to the applicant his passport to permit travel to New Zealand during the period 2 April 2008 to 7 April 2008 inclusive. The application is supported by an affidavit by the applicant, Mr Hill, and two exhibits, exhibit A1 being a travel itinerary arranged through American Express travel and exhibit A2 being an email verifying social activities proposed to be engaged on during the proposed trip.
The application is opposed by the applicant's trustee Samuel Piscopo. I have before me an affidavit by Mr Piscopo to which there are exhibited a substantial bundle of documents detailing Mr Piscopo's dealings with the bankrupt during the course of the administration of his bankrupt estate.
The relevant legal principles are conveniently…

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 Hill v Piscopo

Details

AGLC: Hill v Piscopo [2008] FMCA 574
Case: [2008] FMCA 574
Decision Date: 28 March 2008

CaseChat Overview and Summary

The case of Hill v Piscopo involved a bankrupt, Mr Hill, who sought permission from the Court to travel to New Zealand for a family event. The trustee of Mr Hill's bankruptcy, Ms Piscopo, opposed the application, arguing that it would be inappropriate for Mr Hill to travel while he was still bankrupt and that the trip could be seen as an attempt to frustrate creditors. The matter was heard in the Federal Court of Australia.

The primary legal issue before the Court was whether it was appropriate to grant the bankrupt's application to travel while he remained bankrupt. The Court had to balance the bankrupt's personal circumstances and the potential benefit of the trip against the interests of his creditors and the broader public interest in the administration of the bankruptcy. The Court also had to consider whether any conditions could be imposed on the bankrupt's travel to mitigate any potential risks to creditors.

In delivering its judgment, the Court found that while the bankrupt's application was not to be encouraged, it was not opposed in principle. The Court accepted that the trip was for a legitimate purpose and that the bankrupt had made personal undertakings not to engage in any business activities or share dealings while in New Zealand. The Court also noted that the bankrupt's creditors would not be prejudiced by the trip and that the trustee would retain control of the bankrupt's passport during the travel period. As a result, the Court granted the bankrupt's application, subject to certain conditions being met, including the return of the passport to the trustee on a specified date.

The final orders of the Court were that the trustee was to return the bankrupt's passport to him prior to the proposed travel date, and that the bankrupt was to return the passport to the trustee on a specified date after the trip. The Court also noted the bankrupt's undertakings not to depart from the travel itinerary or engage in any business activities while in New Zealand. There was no order as to costs.

Orders

Orders of the court

The trustee is to return the bankrupt’s passport to him prior to 2 April 2008 for the purposes of the proposed travel, and the bankrupt is to return the passport to the trustee on 8 April 2008.

The Court notes the bankrupt’s undertakings not to depart from the travel itinerary set out in Exhibit A1 and not to participate in any business activities, including share dealings, whilst in New Zealand

There be no order as to costs.

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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