PAMAMULL v Miller (Foremans Trustees)

[2013] FMCA 112

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PAMAMULL v MILLER (FOREMANS TRUSTEES) [2013] FMCA 112

BANKRUPTCY – Application under s.178 of the Bankruptcy Act 1966 – refusal by Trustee to allow bankrupt to travel overseas.

Bankruptcy Act 1966, s.178

Applicant: VISHNO PAMAMULL

Respondent: GRAEME MILLER (FOREMANS TRUSTEES)

File Number: MLG 133 of 2013

Judgment of: Whelan FM

Hearing date: 18 February 2013

Date of Last Submission: 18 February 2013

Delivered at: Melbourne

Delivered on: 18 February 2013

REPRESENTATION

Counsel for the Applicant: In person

Counsel for the Respondent: In person

ORDERS

1. That the Application filed 4 February 2013 is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 133 of 2013

VISHNO PAMAMULL

Applicant

And

GRAEME MILLER (FOREMANS TRUSTEES)

Respondent

REASONS FOR JUDGMENT

(as revised from transcript)

1. This is an application under s.178 of the Bankruptcy Act 1966 (“the Act”), in which the Applicant, VISHNO PAMAMULL (“the Applicant”) seeks the Court to make orders permitting him to travel overseas when the Respondent the TRUSTEE IN BANKRUPTCY (“the Trustee”) has refused such permission. The Court under that provision has the discretion to make such orders as it thinks are just and equitable. Generally in considering these sorts of applications the Court has to weigh up two things. One is the general right of a citizen to travel, and the other is the interest of the creditors in preventing the bankrupt from absconding and the interest that society has in ensuring that there is an efficient administration of a bankrupt estate. Those are the competing interests that the Court needs to look at.

2. I have given consideration to the material that has accompanied the application and I have now had the benefit of the following:

   ·an additional letter from the Applicant’s brother;

   ·a document in which the Trustee has set out a chronology of events until today;

   ·the concerns that the Trustee has; and

   ·essentially the reasons why the Trustee when requested by the Applicant has refused the permission to travel.

3. In looking at competing interests in these matters the Court would generally take into account the following things.

Whether the proposed travel is for a genuine and legitimate reason.

1. The reasons given by the Applicant are twofold. One is to undertake certain rituals in relation to Hindu custom, to take ashes, and to spread them on the Ganges River in India, of two of his brothers who have sadly passed away in the last little while. I accept that there is a genuine reason for the Applicant to wish to attend to this ritual. I am not satisfied, however, that he is the only person who could undertake that ritual. Indeed the letter from the Applicant’s brother says that his brother has requested the Applicant to do this because he is more acquainted with the tradition and he travels to India frequently, but does not suggest that the brother himself would be unable to conduct that ritual.

2. The second reason that the Applicant has given is to seek medical attention. He says that he suffers from depression and there is no challenge to that, so that may well be the case. He also says that he has chronic back pain which he has suffered for years and that he wishes to seek treatment for both conditions. I am also not satisfied that treatment for either of those conditions would be unavailable in Australia and that while there may be some benefit of a financial nature in that such treatment might potentially, be cheaper in India, if the Applicant is in receipt of social security benefits, as he has indicated, then medical costs associated with treatment would also be subject in Australia to reduced fees.

Whether the bankrupt is likely to return to Australia as promised.

1. The Applicant says that he has family here - in particular he has grandchildren here – and he has a long relationship with Australia. He is obviously in receipt of social security benefits within this country. There are, therefore, good reasons for him to return. On the other hand, he did attempt to leave the country without permission at an earlier point in time, and he is proposing to be out of the country for a very long period of time. I think that there is a risk that the Applicant might not return if permission is granted for him to leave. Currently he does not have a permanent residence in Australia although he says he is on a waiting list for Housing Commission housing and while he does certainly have ties to the country I do not know that they would be sufficient to reassure me that there is no chance that he would not simply fail to return.

Whether the proposed travel will hamper the administration of the bankrupt’s estate.

1. This to me is a significant issue. The information that the Applicant has provided to the Trustee so far has not been adequate. He declared two unsecured creditors listing the petitioning creditor and after further requests advised that Mercedes Finance was also an unsecured creditor. The investigations of the Trustee have revealed a large number of other creditors that had not been revealed by the Applicant.

2. The Applicant had also failed to advise the Trustee that he had transferred a motor vehicle to his son during the five years prior to the bankruptcy, and that he had also transferred other amounts of money. After inquiries by the Trustee the Applicant advised that certain creditors had been paid in the 12 months prior to the bankruptcy. Those are issues which are all relevant and should have been declared to the Trustee without the need for the Trustee to investigate and to put these matters to him. While the Applicant has said, “when I have been asked I have responded”, that is not the issue. The onus is on the Applicant to ensure that full and frank disclosure is made right from the very beginning, and it does not appear to me that that has been the case.

3. I also need to take into account that potentially and it appears to be a prima facie case, there has been an offence committed against the Act in terms of the attempt by the Applicant to leave the country without the permission of the Trustee. 

4. For those reasons I am not satisfied that I should overrule the decision that the Trustee has made and allow the Applicant to leave the country as proposed on 25 February 2013. The Applicant has the ability to provide to the Trustee all of the relevant information and had he done so I suspect that the decision of the Trustee might have been slightly different.

5. He still has the opportunity to provide the information that is necessary and the Trustee needs, in order to appropriately administer the estate and to make further application at that point in time for permission to travel overseas, but in relation to a proposal to travel overseas, on 25 February this year and not return until August 2013, I am not satisfied that it would be an appropriate exercise of this Court’s discretion to allow the Applicant to do so. 

6. On that basis the application is dismissed.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Whelan FM

Date:  21 February 2013