FEDERAL COURT OF AUSTRALIA
Suhren v Cooper (Trustee) [2025] FCA 251
File number: WAD 70 of 2025 Judgment of: VANDONGEN J Date of judgment: 10 March 2025 Date of publication of reasons: 24 March 2025 Catchwords: BANKRUPTCY - application by bankrupt for court to exercise discretion to compel trustee respondent to provide written consent to bankrupt leaving Australia pursuant to s 272(1)(c) of the Bankruptcy Act 1966 (Cth) - whether applicant failed to comply with obligations under s 77 of the Bankruptcy Act 1966 (Cth) - whether applicant established that proposed travel is genuine - application dismissed Legislation: Bankruptcy Act 1966 (Cth) ss 77, 272, Sch 2 (Insolvency Practice Schedule (Bankruptcy)) ss 90-15, 90‑20
Federal Court (Bankruptcy) Rules 2016 (Cth) rr 1.04, 2.06
Federal Court Rules 2011 (Cth) r 1.34
Cases cited: Booth v Offerman as trustee of the bankrupt estate of Geoffrey David Booth [2019] FCA 5
El-Hanania v Cull [2024] FCA 814
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1
Re Hicks; Ex parte Lamb (1994) 217 ALR 195
Re Tyndall; Ex parte Official Receiver (1977) 17 ALR 182
Tinkler v Melluish(Trustee); in the matter of Tinkler (Bankrupt) [2017] FCA 52
Division: General Division Registry: Western Australia National Practice Area: Commercial and Corporations Sub-area: General and Personal Insolvency Number of paragraphs: 103 Date of hearing: 10 March 2025 Counsel for the Applicant: Mr L Christensen Solicitor for the Applicant: CX Law Counsel for the Respondent: Mr L Rowley ORDERS
WAD 70 of 2025 IN THE MATTER OF FREDERIK SUHREN (A BANKRUPT)
BETWEEN: FREDERIK SUHREN
Applicant
AND: NICHOLAS COOPER, TRUSTEE OF THE ESTATE OF FREDERIK SUHREN
Respondent
ORDER MADE BY:
VANDONGEN J
DATE OF ORDER:
10 MARCH 2025
THE COURT ORDERS THAT:
1.The application is dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
VANDONGEN J:
The applicant, Mr Frederik Suhren, is an undischarged bankrupt and the respondent is the trustee of Mr Suhren's bankrupt estate.
By an application filed late on 7 March 2025, Mr Suhren applied under s 90-20 of Sch 2 of the Bankruptcy Act 1966 (Cth), for orders in relation to the administration of his bankrupt estate, pursuant to s 90-15 of Sch 2. In effect, Mr Surhen sought orders directing the respondent to give consent in writing pursuant to s 272(1)(c) of the Bankruptcy Act enabling him to leave Australia on 10 March 2025 and to remain out of the country until 24 March 2025 (Application).
Due to the urgency of the matter, I heard the Application early on the morning of 10 March 2025.
The respondent was required by r 2.06 of the Federal Court (Bankruptcy) Rules 2016 (Cth) to file and serve a notice of appearance, a notice stating the grounds of opposition, and an affidavit in…
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- Suhren v Cooper (Trustee) [2025] FCA 251
- Case
- [2025] FCA 251
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CaseChat Overview and Summary
Suhren applied for the court to exercise its discretion to compel the respondent, Cooper, who was the trustee of Suhren's bankrupt estate, to provide written consent for Suhren to leave Australia. Suhren sought to travel to Malabo, Equatorial Guinea, for work purposes, from 11 February 2025 to 23 February 2025. The dispute hinged on whether Suhren had complied with his obligations under the Bankruptcy Act 1966 (Cth) and whether he had established that the proposed travel was genuine. This case was heard in the Federal Court of Australia.
The central legal issues were whether Suhren had failed to comply with his obligations under the Bankruptcy Act 1966 (Cth), and if he had demonstrated that his proposed travel was genuine. The court considered these issues in light of the statutory provisions and relevant case law. The court noted that the Bankruptcy Act 1966 (Cth) granted the court broad discretion to make orders in relation to the administration of a bankrupt's estate. The court was required to determine whether the proposed travel would affect the proper administration of the estate.
The court dismissed the application, finding that Suhren had not established the genuineness of his proposed travel. The court noted that the respondent had raised concerns about Suhren's failure to have a bank account and his undisclosed relationship with Munich Partners. Although the applicant's counsel argued for a reduced costs order due to the late raising of the genuineness issue by the respondent, the court indicated that it would provide the parties an opportunity to make written submissions on the costs issue if they could not agree.
The Federal Court of Australia dismissed Suhren's application for the court to exercise its discretion to compel the respondent to provide written consent for Suhren to leave Australia. The court found that Suhren had not established the genuineness of his proposed travel. The court also indicated that it would give the parties an opportunity to make written submissions on the costs issue if they could not reach an agreement.
The central legal issues were whether Suhren had failed to comply with his obligations under the Bankruptcy Act 1966 (Cth), and if he had demonstrated that his proposed travel was genuine. The court considered these issues in light of the statutory provisions and relevant case law. The court noted that the Bankruptcy Act 1966 (Cth) granted the court broad discretion to make orders in relation to the administration of a bankrupt's estate. The court was required to determine whether the proposed travel would affect the proper administration of the estate.
The court dismissed the application, finding that Suhren had not established the genuineness of his proposed travel. The court noted that the respondent had raised concerns about Suhren's failure to have a bank account and his undisclosed relationship with Munich Partners. Although the applicant's counsel argued for a reduced costs order due to the late raising of the genuineness issue by the respondent, the court indicated that it would provide the parties an opportunity to make written submissions on the costs issue if they could not agree.
The Federal Court of Australia dismissed Suhren's application for the court to exercise its discretion to compel the respondent to provide written consent for Suhren to leave Australia. The court found that Suhren had not established the genuineness of his proposed travel. The court also indicated that it would give the parties an opportunity to make written submissions on the costs issue if they could not reach an agreement.
Orders
Orders of the court
1. The application is dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
The issues referred to at [11] of these reasons should be understood as comprising a non‑exhaustive list of considerations that may be relevant to the exercise of this Court's discretion, depending on the circumstances of each case: Booth v Offerman as trustee of the bankrupt estate of Geoffrey David Booth [2019] FCA 5 at [17] (Robertson J). The Court's power under s 90-15(1) of Sch 2 is to make such orders 'as it thinks fit in relation to the administration of a regulated debtor's estate'. Accordingly, s 90-15(1) confers on the Court a very broad, although not unlimited, discretionary power: Wotton v State of Queensland (No 5) [2016] FCA 1457 at [1786] (Mortimer J, as her Honour then was), citing Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at [35] (Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ). The words used in s 90-15(1) suggest that the ultimate question for the Court, when asked to exercise the discretion conferred by that provision to make an order that a trustee in bankruptcy give written consent to a bankrupt leaving Australia under s 272(1)(c), is the extent to which the proposed travel may affect the proper administration of the bankrupt's estate.The evidence In support of his Application, which is 'for leave to travel overseas, for work, for the period from 10 March 2025 to 24 March 2024', Mr Suhren read an affidavit sworn by him on 7 March 2025. The respondent did not object to that affidavit being read. Mr Suhren deposed that the respondent had approved his requests for written consent to leave Australia on two previous occasions. The first occasion related to travel to Germany, from 9 September 2024 to 14 September 2024, for work purposes. The second occasion was in connection with travel to Bali, Indonesia, from 15 November 2024 to 20 November 2024, for a family holiday. According to Mr Suhren, on 5 February 2025 he requested that the respondent provide him with written consent to leave Australia so that he could travel to Malabo, in Equatorial Guinea, from 11 February 2025 to 23 February 2025 for work purposes. In support of his request for written consent, Mr Suhren relied on a letter dated 5 February 2025 and signed by a Mr Rodney Carter, the 'Founder & Director of Esplanade Consultancy Pty Ltd'. That letter was, relevantly, in the following terms:We refer to our earlier communications, including my emails dated 10 December 2024, 1 January 2025, and 23 January 2025, regarding Mr. Suhren's request for approval to travel overseas. We respectfully request your urgent consideration of this matter.As you are aware, I have recently experienced a serious health issue preventing me from undertaking international travel. In these circumstances, Mr. Suhren is the only individual able to replace me and fulfill Esplanade Consultancy Pty Ltd's obligations under various client engagements abroad. These engagements are critical to the employment and ongoing support of approximately nine staff, and consequently we deem Mr. Suhren's timely travel approval to be a matter of urgency.We confirm the following details:1. Travel Dates:o Departing: 11 February 2025, 17:30 departing Perth International Airporto Returning: 23 February 2025, 23:55 arriving Perth International Airport2. Destination:o Malabo, Equatorial Guinea3. Airfare and Accommodation:oCovered by Esplanade's client under a Consulting Agreement.o Precise costs are presently unknown to Esplanade Consultancy Pty Ltd.o Accommodation arranged at the Sofitel Presidential Palace, Malabo.4. Income/Consultancy Fees for Mr. Suhren:o Day Rate/Consultancy: A$500 per day (excluding weekends).o Weekend Rate: A$250 per day (Saturday/Sunday).o Meals/Entertainment Allowance: A$150 per day (all‑inclusive).As noted, this client engagement is of critical importance to Esplanade Consultancy Pty Ltd. Mr. Suhren's presence in Malabo is essential to meet contractual obligations, preserve key client relationships, and maintain the employment of our staff. We therefore request that you provide your approval for Mr. Suhren's travel on the dates specified.
Decision
Reasons for decision
The respondent relied on other aspects of the evidence in support of his contention that Mr Suhren had failed to establish that his proposed travel was genuine. In that regard the respondent relied on Mr Suhren's evidence that he did not have a bank account into which his expected remuneration could be deposited, and evidence that suggested that he had an undisclosed relationship with an entity called 'Munich Partners'. In the circumstances, it is unnecessary for me to deal with either of those aspects of the respondent's case.Conclusion The Application must be dismissed.Costs At the conclusion of the hearing of this matter, the respondent sought an order for costs. Counsel for Mr Suhren did not object, in principle, to an order being made that the respondent be entitled to his costs. However, counsel submitted that the respondent should only be entitled to 50% of his costs. Counsel contended that because the respondent did not put the genuineness of Mr Suhren's proposed travel into issue until shortly before the hearing of the Application, his entitlement to costs should be reduced. I indicated that before making any costs order, and in the event that the parties are not able to reach agreement about costs after reading these reasons, I will give the parties the opportunity to make brief written submissions about that issue.
Ratio Decidendi
Legal Principle Established
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