Re Aley, N.R. v Ex parte Wadkin Public Ltd Company

[1995] FCA 152

IN THE FEDERAL COURT OF AUSTRALIA     )
GENERAL DIVISION  )
   No. E 2020 of 1994
BANKRUPTCY DISTRICT OF THE           )
STATE OF QUEENSLAND                  )

RE:NAUSHAD RAHMAT ALEY

EX PARTE:WADKIN PUBLIC LTD CO

MINUTES OF ORDER

JUDGE MAKING ORDER:     Spender J

DATE OF ORDER:         5 January 1995

WHERE MADE:            Brisbane

THE COURT NOTES the banker's undertaking filed on behalf of Mr Aley on 5 January 1995.

THE COURT ORDERS THAT:

1. The trustee of the estate of Mr Aley hand to Mr Aley his passport on the following conditions:

(a)Mr Aley, prior to his departure from Australia, notify his trustee of his physical and postal address in Fiji;

(b)Mr Aley notify the trustee of the address of his wife in Fiji;

(c)Mr Aley will answer any correspondence from the trustee within 48 hours of receipt of that correspondence;

(d)Mr Aley will notify the trustee by facsimile of any change of address of himself or his wife prior to the change;

(e)Mr Aley will notify the trustee of any application for any passport or any citizenship application prior to such application;

(f)Mr Aley return to Australia on or before 1 May 1995;

(g)Mr Aley surrender in person his passport to the trustee by 4.00 p.m. on 4 May 1995;

(h)Mr Aley notify the trustee by facsimile of any arrival time and date into Australia and any departure time and date from Australia within 24 hours of any such arrival or such departure.

1. Costs of today be reserved. 

THE COURT FURTHER ORDERS THAT demand pursuant to the Banker's Undertaking be made to Westpac Banking Corporation forthwith on Mr Aley failing to comply with condition (d), (f) or (g) of these orders.

THE COURT GRANTS liberty to apply.

NOTE:     Settlement and entry of orders is dealt with in Rule 124 of the Bankruptcy Rules.

IN THE FEDERAL COURT OF AUSTRALIA     )
GENERAL DIVISION  )
  No. E2020 of 1994
BANKRUPTCY DISTRICT OF THE           )
STATE OF QUEENSLAND                  )

RE:NAUSHAD RAHMAT ALEY

EX PARTE:WADKIN PUBLIC LTD CO

CORAM:    Spender J
DATE:     5 January 1995
PLACE:    Brisbane

REASONS FOR JUDGMENT

This is an application by Naushad Rahmat Aley of VatulauLau, Ba Fiji for orders according to his application filed on 8 December 1994:

"I be granted permission to leave Australia to enable me to return to my wife in Fiji until the date which is two weeks after the birth of our child; "

and for other orders. 

The application has been before the court on two previous occasions and the evidence establishes that Mr Aley's present wife is expecting a child shortly.  The evidence suggests that at the end of 1994 she was some 24 weeks pregnant.  Medical evidence suggests that she is suffering some difficulties of a medical nature concerning her pregnancy, and the application of Mr Aley essentially is on compassionate grounds so as to permit him to attend on his wife and care for her pending the birth of their child.
Mr Aley is facing a charge under s. 272(c) of the Bankruptcy Act 1966 . It appears that section creates the offence of leaving Australia after a person becomes bankrupt and before he is discharged from bankruptcy without the consent in writing of the trustee of his estate. That matter is pending in the Magistrates Court at Brisbane, and no order that I make today is intended to in any way constrain that court in dealing with the matters before it.

There are a lot of matters of contention between Mr Aley and his trustee.  It is unnecessary to detail those matters.  What is clear is that a large measure of investigation of various transactions is necessary in the administration of Mr Aley's estate and the trustee is anxious for the assistance which Mr Aley is obliged to render under the Act in the administration of that estate.  On the other hand, the compassionate circumstances concerning his wife's pregnancy suggests that, if at all possible, he should be permitted to assist his wife pending the birth of their child.

I indicated earlier that I was minded to make orders which would permit that course to be followed but upon the provision of some sort of security.  On 5 January, Mr Aley filed an undertaking on behalf of Westpac Banking Corporation whereby the bank unconditionally undertakes to pay on demand up to $25,000.00, the demand being by the Registrar of the Federal Court and the trustee of Mr Aley's estate.  The
undertaking is unconditional and is to continue until notification has been received from the Registrar of the Federal Court and the trustee of Mr Aley's estate, that the sum is no longer required by them, or until the undertaking is returned to the bank, or until payment to the Registrar and trustee by the bank of the whole of the $25,000 or such part as the Registrar and trustee require.

The undertaking is in a form which is acceptable security for the performance by Mr Aley of his obligations in respect of his travel to Fiji.  The difficulty I have is that the Bankruptcy Act does not expressly deal with the question of a return by a trustee to a bankrupt of his passport.  It is curious, given the well-publicised events concerning those who recently have been spectacularly bankrupt and difficulties concerning overseas travel of at least one of them.

Section 77(a) relevantly provides:

"A bankrupt shall, unless excused by the trustee or prevented by illness or other sufficient cause:

(a)forthwith after becoming a bankrupt, give to the trustee:

(i)...

(ii)the bankrupt's passport, if any; "

The excuser by the trustee relates to the giving to the trustee of the bankrupt's passport.  It does not purport to authorise the trustee to give the passport back to the bankrupt. 
         Section 139ZU is found in Division 4C, whose heading is "Restriction on overseas travel by bankrupt".  Section 139ZU subsection 1 provides:

"A bankrupt who is liable to pay to the trustee a contribution under section 139P(1) or 139Q(1) is not entitled to leave Australia unless, on application made by the bankrupt, the Court has made an order granting the bankrupt permission to leave Australia. "

The rest of that provision seems to be confined in its application to bankrupts who are liable to pay to the trustee the contributions referred to in s. 139ZU(1).  Mr Aley is not such a bankrupt, and there does not therefore appear to be any provision requiring the court to make an order granting the bankrupt permission to leave Australia.  Section 178 provides:

"If the bankrupt, a creditor or any other person is affected by any act, omission or decision of the trustee, he may apply to the Court, and the Court may make such order in the matter as it thinks just and equitable. "

It is said here that Mr Aley sought from the trustee the return of his passport for the purpose of enabling him to be with his wife during her complicated pregnancy, and the trustee refused, and it is therefore competent for Mr Aley to approach the court pursuant to s. 178 for an order directing the trustee to hand over to the bankrupt his passport. 

Section 300 also has a possible application.  It relevantly provides:

"Where any difficulty arises in the application to a particular matter of the provisions of this Act [dealing with the transitional provisions], the Court may, on the application of an interested person, make such order as it thinks proper to resolve the difficulty. "

And s. 30, of course, is the general provision which relevantly provides:

"(1) The Court:

(a) ...

(b)may make such orders (including preparatory orders and orders granting injunctions or other equitable remedies) as the Court considers necessary for the purposes of carrying out or giving effect to this Act in any such case or matter. "

On the provision of the unconditional undertaking by Westpac Banking Corporation, I make the following orders: 

THE COURT NOTES the undertaking filed on behalf of Mr Aley by Westpac Banking Corporation on 5 January 1995.

THE COURT ORDERS THAT:

1.the trustee of the estate of Mr Aley hand his passport to him on the following conditions:

(a)Mr Aley notify his trustee of his physical and postal address prior to his departing Australia;

(b)Mr Aley notify the trustee of the address of his wife in Fiji;

(c)Mr Aley will answer any correspondence from the trustee within 48 hours of receipt of that correspondence;

(d)Mr Aley will notify the trustee by facsimile of any change of address of himself or his wife prior to the change;

(e)Mr Aley will notify the trustee of any application for any passport or any citizenship application prior to such application;

(f)Mr Aley return to Australia on or before 1 May 1995;

(g)Mr Aley surrender in person his passport to the trustee by 4 pm on 4 May 1995;

(h)Mr Aley notify the trustee by facsimile of any arrival time and date into Australia and any departure time and date from Australia within 24 hours of any such arrival or such departure. 

THE COURT FURTHER ORDERS THAT:

1.demand pursuant to the Banker's Undertaking be made of Westpac Banking Corporation forthwith on Mr Aley failing to comply with condition (d), (f) or (g) of these orders; 

2.costs of today reserved.

THE COURT GRANTS liberty to apply. 

I certify that this and the five (5) preceding pages are a true copy of the reasons for judgment herein of the Honourable Justice Spender.

Associate

Date: 5 January 1995

Mr Aley appeared in person. 

Counsel for the trustee:     Mr S. R. Eleftheriou   
instructed by:              Sly & Weigal

Date of Hearing:            5 January 1995