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…
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- AGLC
- Hill v Piscopo [2008] FMCA 574
- Case
- [2008] FMCA 574
- Decision Date
CaseChat Overview and Summary
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
1.
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.
2.
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
3.
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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