Kivlinghon, M.J. v Pattison, P.A

[1994] FCA 53

S3 99

JUDGMENT No. ........ ,........ ,	I ........ ....	1	I
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IN THE FEDERAL COURT OF AUSTRALIA	)
VICTORIA DISTRICT REGISTRY	1 NO VB 3148 of 1991 r
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GENERAL DIVISION	1 l-

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BETWEEN:  WICHAEL JON KIVLINGHON

(Applicant)

AND :  PAUL ANTHONY PATTISON

Coram:	Ryan J
Place:	Melbourne
Date:	12 January 1994

EX TEMPORE REASONS FOR JUDGMENT

Rvan J: This is an application under s.178 of the ~ a n & ~ t c ~ Act seeking a review of a decision of the bankrupt's trustee not

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to consent to the bankrupt leaving Australia. The bankrupt is

57 years of age and has been requested to travel to the People's	i
Republic of China as a consultant to Midland Skin Exports Pty
Limited ("Midland"), a company controlled by one of the	r '
bankrupt's sons which has a prospect of concluding a contract for	b
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the export to that country of a very large number of animal	1 :

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skins. I

*

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The bankrupt has special expertise as a fellmonger and his	i
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participation is seen as being likely to enhance the prospects
of success of the negotiations because of his ability to advise	/ .
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the proposed Chinese purchasers on techniques of processing the
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skins which Midland hopes to sell into China.	Expertise like	I
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that of the bankrupt is not possessed by any officer or employee 1

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of Midland and it seems that the relevant expertise is otherwise	i
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available only from persons connected with competitors of Midland. It is accepted on both sides that under S. 178 the Court is required to exercise the relevant discretion for itself and is not confined to interfering with the trustee's decision, only if that decision is shown to have been vitiated by error; see for example Re Tyndall (1977) 30 FLR 6. That is not to say, however, that the Court should not take account of the trustee's decision as a factor relevant to the exercise by the Court of the discretion for itself.

The administration of the bankrupt estate of M r Kivlighon does not presently involve an investigation of his affairs and it is not suggested that the administration will be prejudiced by his absence overseas for a short time. Although the ANZ Bank, a major creditor of the bankrupt, has indicated to the trustee its opposition to his travelling overseas it has assigned no reason

I	for that opposition.
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In all the circumstances, taking into account the decision of the
trustee and having regard in particular to the bankrupt's
destination and the short duration of the proposed travel, I consider it an appropriate exercise of the discretion to grant permission for the bankrupt to travel to the People's Republic of China. I attach to that grant of permission the following conditions:
(l), that the travel by the bankrupt occur between 15 January and
1 February 1994.

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( 2 ) , that Midland permit the trustee by 14 January 1994 to sight a return air ticket confined to travel by the bankrupt to the People's Republic of China and return between those dates.

( 3 ) , that the bankrupt forthwith on his return deliver up to the

trustee any new passport which may be issued to him for the

purpose of the proposed travel.

I also consider it proper to make no order as to the costs of the

application to this Court. I shall reserve liberty to either party to apply on not less than 48 hours notice in writing to the other party.

I certify that this and the

preceding two (2) pages are a true copy of the ex tempore reasons for judgment of his Honour Mr Justice Ryan

Associate: Uw

Date :  %l & L 4 4 1 1