Mathai v Wong, in the matter of Mathai

[2005] FCA 632

FEDERAL COURT OF AUSTRALIA

Mathai v Wong, in the matter of Mathai [2005] FCA 632

BANKRUPTCY – appeal to Court against trustee’s decision to refuse permission to leave Australia – considerations to be taken into account in making an order under s 178 of the Bankruptcy Act – leave to travel granted on terms that a surety be provided

Bankruptcy Act 1966 (Cth), s 178

Re Tyndall; Ex parte Official Receiver (1977) 17 ALR 182, applied

IN THE MATTER OF MATHEW KERALAVAKAYIL MATHAI, A BANKRUPT

MATHEW KERALAVAKAYIL MATHAI v LOKE CHING WONG AS TRUSTEE OF THE PROPERTY OF MATHEW KERALAVAKAYIL MATHAI, A BANKRUPT
NSD 672 OF 2005

GYLES J
6 MAY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 672 OF 2005

IN THE MATTER OF MATHEW KERALAVAKAYIL MATHAI, A BANKRUPT

BETWEEN:	MATHEW KERALAVAKAYIL MATHAI APPLICANT
AND:	LOKE CHING WONG AS TRUSTEE OF THE PROPERTY OF MATHEW KERALAVAKAYIL MATHAI, A BANKRUPT RESPONDENT
JUDGE:	GYLES J
DATE OF ORDER:	6 MAY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The Applicant Mathew Keralavakayil Mathai attend before the Federal Court at Sydney at 10:15 am on 26 May 2005.

2.That Lucy Wee of Unit 5, 15–19 Longueville Road, Lane Cove 2066, enter into a recognisance in the sum of $10,000.00 as security for the attendance of the Applicant at the time aforesaid the said amount to be forfeited if the Applicant fails to attend.

3.The Applicant have leave to travel from Australia to Malaysia during the period 6 May 2005 to 26 May 2005.

4.There be no order for the costs of the Applicant of the Application.

5.The costs of the Respondent be costs in the administration.

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	NSD 672 OF 2005

IN THE MATTER OF MATHEW KERALAVAKAYIL MATHAI, A BANKRUPT

BETWEEN:	MATHEW KERALAVAKAYIL MATHAI APPLICANT
AND:	LOKE CHING WONG AS TRUSTEE OF THE PROPERTY OF MATHEW KERALAVAKAYIL MATHAI, A BANKRUPT RESPONDENT

JUDGE:	GYLES J
DATE:	6 MAY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application by a bankrupt pursuant to s 178 of the Bankruptcy Act 1966 (Cth) (the Act) for the review of the decision of the respondent trustee to refuse consent to the applicant leaving Australia. The applicant wises to be absent from Australia in order to return to Malaysia where he normally resides in order to carry out some professional duties and to gather information about his affairs to bring back to Australia with him. Without attempting to summarise the various positions taken by the parties the principal basis for the respondent’s refusal is that the respondent has a real concern that the applicant would not return to Australia if allowed to leave and relies upon the prima facie position that parties should not leave the country without consent.

2. This is a discretionary matter.  It is put by counsel on behalf of the respondent that I cannot be satisfied that there is any error involved in making that decision.  It is a practical decision for the respondent to make.  It is not simply a matter of the Court substituting the Court's own opinion for that of the respondent.

3. Counsel for the applicant bankrupt, and I do not endeavour to summarise all of the submissions that are made, relied upon the fact that this is a very unusual situation.  The applicant has been resident and carried on his business in Malaysia for very many years.  His family is in Australia.  He visits them or they visit him periodically.  He is now 71 years of age.  The bankruptcy notice was served upon him on a temporary visit to Australia.  He says that he did not receive notice of the ultimate sequestration order being made.  Whether that be right or wrong nothing much seems to have happened until fairly recently when he was on a visit to Australia per medium of a limited visitor's visa.  On attempting to leave Australia he was picked up by the Australian Federal Police on a watch list.  That has led to the current situation.

4. The applicant has now applied for annulment of the bankruptcy.  The respondent and the petitioning creditor are now obliged to file their evidence in that matter by 17 May 2005 and all of the parties are anxious that that proceeding take place as soon as possible.  In my opinion that is the most important aspect of this whole affair.  There has been a long history between the petitioning creditor and his wife on the one hand, and the applicant here on the other.  The sooner all this is sorted out the better.  If the annulment succeeds the practical position which will exist will be very much changed from that which exists at the moment.  At the moment the draconian provisions of the Act are applicable.

5. With that in mind I take the course of expediting the hearing of the principal matter to 26 May 2005 so that there is a relatively short time to get organised for that hearing.  Counsel for the applicant says that he has every reason to return to Australia, not just because of his familial ties but because of his desire to pursue the annulment application.  It is put that his status as a bankrupt in Australia will cause him considerable professional embarrassment in Malaysia.  I accept that that would be so.  I have not tracked down whatever the formal position is but I have no doubt that a person of a professional background who knows that he is bankrupt will be under an obligation to disclose that fact in various circumstances.

6. Therefore, although there is much to be said for both sides of the argument, I think that the appropriate course is to go some way towards allaying the legitimate concerns of the respondent by requiring that there be a surety for the return of the applicant if he is permitted to leave.  Whilst I agree that it is not appropriate for the Court simply to substitute its opinion for that of the respondent, it seems that the position which has now arisen requires, in the interests of justice, that the applicant be permitted go to Malaysia principally so that he can organise and order his affairs in order to come back and properly fight the annulment, and, if the annulment does not succeed, to carry out his obligations to the respondent.  I place some, but not a great deal of, weight upon the professional commitment of which he speaks.  The authorities to which reference has been made during argument, which stem from the decision of Deane J in Re Tyndall; Ex parte Official Receiver (1977) 17 ALR 182, are a sufficient basis for the orders that I propose to make.

7. My decision should not be seen as any criticism of the respondent.  The considerations put forward have been perfectly legitimate.  A wider question as to the conduct of the respondent raised tangentially by counsel for the applicant on various occasions is not something I propose to go into at the moment.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated:             20 May 2005

Counsel for the Applicant:	JT Johnson
Solicitor for the Applicant:	PH Legal
Counsel for the Respondent:	E Glover
Solicitor for the Respondent:	Douros Lawyers
Date of Hearing:	6 May 2005
Date of Judgment:	6 May 2005