Morgan v Dielos
[2007] FMCA 15
•12 January 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MORGAN & ANOR v DIELOS | [2007] FMCA 15 |
| BANKRUPTCY – Overseas travel − application for ex parte injunctive relief to restrain the respondent debtor from travelling overseas without leave of the court − where applicant informed by a third party of the respondent’s intentions to leave the Commonwealth − whether applicant has provided sufficient information to warrant injunctive relief. |
| Bankruptcy Act 1966, ss.30, 78 |
| First Applicant: | DAVID GLYNN MORGAN |
| Second Applicant: | DAVID OWEN WARD |
| Respondent: | DIMITRIOS DIELOS |
| File Number: | ADG145 of 2006 |
| Judgment of: | Raphael FM |
| Hearing date: | 12 January 2007 |
| Date of Last Submission: | 12 January 2007 |
| Delivered at: | Sydney |
| Delivered on: | 12 January 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr D. Morgan |
| Solicitors for the Applicant: | Morgan Ward Solicitors |
ORDERS
Application adjourned until 16 January 2007 at 2:15p.m Sydney time.
Applicants have leave to give short service of this application and to serve the Respondent with the application prior to 12 noon on
15 January 2007.
Liberty to apply without notice.
A copy of this order to be served with the application.
Costs reserved.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
ADG145 of 2006
| DAVID GLYNN MORGAN |
First Applicant
DAVID OWEN WARD
Second Applicant
And
| DIMITRIOS DIELOS |
Respondent
REASONS FOR JUDGMENT
There comes before me an application filed today for ex parte relief against a respondent, Dimitrios Dielos, who appears from an affidavit of David Alan Ward sworn today to have committed an act of bankruptcy by failing to comply with a bankruptcy notice seeking payment of the sum of $6,761.11.
Mr Ward is a partner with Mr Morgan in a firm of solicitors who acted on behalf of the respondent in relation to certain family law proceedings. The bill was not paid. After the bankruptcy notice had been issued, the respondent sought to have the Adelaide Magistrates Court judgment set aside in the Supreme Court of South Australia. He was unsuccessful. He was also unsuccessful in an appeal against that decision when leave was refused. It would appear from the affidavit that the bankruptcy petition, which had been held over because of the applications to the Supreme Court, is due to be heard by Registrar Christie on 22 January 2007.
The application which is before me today seeks an injunction restraining the debtor from leaving the Commonwealth of Australia without the approval of the court, the placement of the respondent’s name on the airport watch list and the arrest of the respondent should he attempt to leave the country. These are all very serious requests and whilst there is no doubt that pursuant to ss.30 or 78 of the Bankruptcy Act 1966 (“the Act”) this court would have power to make such orders in the appropriate case, one has to be very cautious before giving such relief. The right of a citizen to travel freely into and out of this country is one of the most important human rights.
The two paragraphs in the affidavit of Mr Ward which ground the application are paragraphs 30 and 31 which are in the following form:
“(30) I have been informed and verily believe that the respondent debtor may be planning to leave the Commonwealth of Australia and travel to Greece to reside.
(31) I have been informed and verily believe that the respondent debtor may travel prior to 22 January being the date that this matter is next before this honourable court. I have also been advised that the respondent debtor may have transferred money to Greece and if not proposes to transfer or take money to Greece.”
It will be readily seen that the person who gave the deponent this advice is not named, nor are more particulars of the advice itself provided, nor is the court given any assistance in judging the validity of the advice by reference to any connection between that person and the debtor. Mr Morgan, who appears on the application, tells me from the bar table that it was a child of the respondent who gave a third party the information, who then informed his partner of the advice. But that is hearsay and probably hearsay upon hearsay if the information had been given to Mr Morgan by Mr Ward.
The amount of the debt is not high. I accept what Mr Morgan says that the total amount which might appear on an amended petition would be around $12,000 and not the $6,761 in the bankruptcy notice. I know nothing more about the debtor’s financial position. I do not know whether he owns property in Australia or not. I do not know whether he has bank accounts in Australia or not. I do not know whether he has other obligations which he has not honoured.
I am not minded to grant the application as sought. I do not believe that I have sufficient information to make what amounts to draconian orders against a person who may be seeking to go on holiday before returning and facing his creditors or who may, as Mr Morgan suggests, be attempting to evade those creditors by leaving the country. There is just insufficient information provided. The probable inconvenience to the debtor far outweighs the possible benefit to the creditor that I know about, no other creditors having been advised to me.
What I am prepared to do, however, is to allow the applicants leave to give short service of this application upon the debtor whose address they say they are aware of. I will return the matter before me at 2.15p.m Sydney time on Tuesday next, 16 January 2007, when I hope that the debtor might be represented or at least make an appearance.
I will reserve the costs.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Raphael FM.
Associate:
Date:
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