O'BRYAN v Vince and Associates Pty Ltd
[2010] FMCA 897
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| O'BRYAN v VINCE & ASSOCIATES PTY LTD & ANOR | [2010] FMCA 897 |
| BANKRUPTCY – Applicant wishing to travel overseas – application to release passport. |
| Bankruptcy Act 1966, s.178 |
| City of Monash & Anorv O’Bryan [2008] FMCA 513 |
| Applicant: | DARRYL MARK O'BRYAN |
| Respondent: | VINCE & ASSOCIATES PTY LTD & ANOR |
| File Number: | MLG 1494 of 2010 |
| Judgment of: | Whelan FM |
| Hearing date: | 5 November 2010 |
| Date of Last Submission: | 5 November 2010 |
| Delivered at: | Melbourne |
| Delivered on: | 5 November 2010 |
REPRESENTATION
| The Applicant: | In person |
| The Respondent: | No appearance |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1494 of 2010
| DARRYL MARK O'BRYAN |
Applicant
And
| VINCE & ASSOCIATES PTY LTD & ANOR |
Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
In this matter the Applicant, Mr O’Bryan, has sought a number of orders, declarations and injunctions in relation to his bankruptcy. It became apparent however that Mr O’Bryan was essentially seeking the permission of the Court to leave the country on a two week holiday to Malaysia leaving on 5 December 2010, the Trustee in bankruptcy having refused his permission to do so.
In his submissions and affidavit of 22 October 2010, Mr O’Bryan canvassed a wide range of matters relating to the decision and Order of the County Court of 2007 giving rise to the debt which formed the basis for the creditor’s petition of 12 February 2008 and the decision of Burchardt FM of 7 April 2008 in which a Sequestration Order was made against him. Many of the matters were matters dealt with by Burchardt FM in his decision of 7 April 2008.[1]
[1] City of Monash & Anor v O’Bryan [2008] FMCA 513.
Mr O’Bryan notified the Court that he had appealed against that decision but was unsuccessful in his appeal.
On 25 September 2010, Mr O’Bryan wrote to the Insolvency and Trustee Service Australia notifying them that he had booked to leave Australia on a two week holiday with his 16 year old son on 5 December 2010.[2] Mr O’Bryan also produced to the Court, copies of airline tickets and an itinerary arranged by a travel agent.[3]
[2] Exhibit DOB6 to the Applicant’s affidavit.
[3] Exhibit DOB4 to the Applicant’s affidavit.
The letter from the Trustee (Mr Peter Vince) to Mr O’Bryan dated 7 October 2010 states that:
To date you have failed to lodge a Statement of Affairs and comply with my requests as Trustee. As such, I am unable to grant you permission to travel overseas.[4]
[4] Exhibit DOB7 to the Applicant’s affidavit.
Mr O’Bryan stated that his reasons for wishing to travel to Malaysia were that his 18 year old daughter was travelling to Malaysia to spend time with somebody she had only met on the internet. This was of grave concern to him and his family and he felt that he needed to be there to ensure her safety.
In relation to this application, the Court notes that the Applicant has not complied with the requirement of the Trustee to lodge a Statement of Affairs. His own language, both in the letter to the Insolvency and Trustee Service and in the submissions made to the Court indicate that he does not accept the validity of the Orders made by the Court or acknowledge the debt to the Creditor.
I further note that Mr O’Bryan’s daughter is an adult who has a return ticket to Malaysia and that Mr O’Bryan has described his purpose in travelling to Malaysia, both in the letter to the Insolvency and Trustee Service and to the Court as, ‘a holiday with his son’.
The power of the Court to override a decision of the Trustee is set out in s.178 of the Bankruptcy Act1966 (“the Act”). On what the Applicant has put before the Court, I do not believe that a case has been made out for this Court to exercise its discretion, contrary to the decision of the Trustee, to allow Mr O’Bryan to go overseas and to order the release of his passport for that purpose.
Mr O’Bryan is advised to comply with the requirements of the Trustee and, in particular, to lodge a Statement of Affairs with him.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Whelan FM
Date: 16 November 2010
0