Le v Pascoe, in the matter of Le (Bankrupt)

[2000] FCA 540

FEDERAL COURT OF AUSTRALIA
Le v Pascoe, In the matter of Le (Bankrupt) [2000] FCA 540

RE TAN THANH LE
N7296 of 2000

WILCOX J
SYDNEY
18 APRIL 2000

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N7296 of 2000

IN THE MATTER OF THE BANKRUPT ESTATE OF TAN THANH LE

BETWEEN:	TAN THANH LE Applicant
AND:	SCOTT PASCOE Respondent
JUDGE:	WILCOX J
DATE OF ORDER:	18 APRIL 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for an order under s139ZU of the Bankruptcy Act 1966 be refused.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N7296 of 2000

IN THE MATTER OF THE BANKRUPT ESTATE OF TAN THANH LE

BETWEEN:	TAN THANH LE Applicant
AND:	SCOTT PASCOE Respondent

JUDGE:	WILCOX J
DATE:	18 APRIL 2000
PLACE:	SYDNEY

EXTEMPORE REASONS FOR JUDGMENT

1. WILCOX J: This is an application for an order under s139ZU of the Bankruptcy Act 1966. The applicant, Tan Thanh Le, is a bankrupt who is liable to pay to the Trustee a contribution under s139P(1) of the Act. He applies for an order permitting him to leave Australia in order that he may attend a conference styled “World Congress on Skin Resurfacing and Soft Tissue Augmentation” in Vancouver, Canada early next month. Apparently, this is one of several conferences or workshops which Dr Le wishes to attend in order to qualify him to sit for examinations in cosmetic surgery run by the American Academy of Cosmetic Surgery and scheduled for April 2001. Dr Le says it is a requirement for admittance to the examinations that an admittee has accumulated 150 points from attendances at various lectures and workshops.

2. Dr Le was made bankrupt last November.  He is, apparently, a qualified medical practitioner.  He has practised in Australia since 1982 and has been a “resident”, by which I assume he means a permanent resident, since 1985.  He is currently employed by Dr Ralph Bright, a medical practitioner, and receives a salary of about $38,000 per annum from which he makes a payment of $325 to the Trustee by way of contribution.

3. Dr Le says his practice involves cosmetic surgery techniques.  Apparently, however, he is limited in the work he can do by his lack of qualifications.  It is for that reason that he wishes to obtain the American diploma.  I can well understand this.  It seems Dr Le's purpose in attending the various conferences and workshops, and submitting himself to the examinations, is to achieve a qualification he does not currently hold.  No doubt this would improve his career prospects.

4. The difficulty, however, is that s139ZU(2) provides that the Court must not grant permission unless it is satisfied of one of two things. The second alternative is irrelevant; it involves compassionate reasons relating to the death or serious illness of a close relative of the bankrupt. Dr Le has to rely on the first alternative, which is framed in this way:

   “It is necessary for the bankrupt to leave Australia in order to continue to derive income.”

   The criterion is quite limited.  It does not cover the situation of a bankrupt proposing to leave Australia in order to improve his or her qualifications, and thereby derive a higher level of income in the future.  The relevant words are “continue to derive income”. 

5. It seems to me clear, on the evidence I have, that Dr Le has the ability to earn income in Australia as a medical practitioner in the future, as he has done in the past; it cannot be said that the purpose of his travel overseas is to enable him to continue to derive income.

6. As I pointed out to Dr Le, no general discretion is given to the Court.  I am bound by the limitations in the Act.  As Dr Le cannot bring himself within the words of the relevant criterion, the application must be refused.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated:             18 April 2000

Applicant appeared in person
Solicitor for the Respondent:	Maclarens Solicitors
Date of Hearing:	18 April 2000
Date of Judgment:	18 April 2000