Suhren v Cooper (Trustee)
[2025] FCA 251
•10 March 2025
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
Weiss v Official Trustee in Bankruptcy (1983) 1 FCR 40
Wotton v State of Queensland (No 5) [2016] FCA 1457
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 support of the grounds of opposition at least three days before the date fixed for the hearing of the Application or, with the leave of the Court, at the hearing. Given the urgency of the Application, and as Mr Suhren's counsel expressly indicated that he did not require compliance with r 2.06, I dispensed with compliance pursuant to r 1.34 of the Federal Court Rules 2011 (Cth), which applies by force of r 1.04(2)(a) of the Federal Court (Bankruptcy) Rules.
At the conclusion of the hearing, I dismissed the Application, and advised the parties that I would give my reasons on a later date. These are my reasons for dismissing the Application.
The relevant legislative provisions and applicable principles
If an undischarged bankrupt leaves Australia, or does an act preparatory to leaving Australia, without the consent in writing of the trustee of their estate, the bankrupt commits an offence. On conviction, such an offence is punishable by imprisonment for a period not exceeding 3 years: s 272(1)(c) of the Bankruptcy Act.
The respondent says that he has not refused to give Mr Suhren written consent. The respondent's position is that he will consider Mr Suhren's request for consent after Mr Suhren has provided certain information and documentation relating to his examinable affairs. However, nothing turns on the question of whether the respondent has refused to give written consent. This is because Mr Suhren seeks an order under s 90-15(1) of Sch 2 of the Bankruptcy Act. Under that provision, the Court 'may make such orders as it thinks fit in relation to the administration of a regulated debtor's estate'.
There is no dispute about the relevant principles to be applied. Applications for orders pursuant to s 90-15(1) of Sch 2, directing a trustee in bankruptcy to give consent in writing to an undischarged bankrupt to leave Australia require careful consideration to be given to all relevant circumstances. This is because a decision to refuse permission to an undischarged bankrupt to leave Australia affects the freedom of movement of a person to pursue their legitimate commercial or personal desires in circumstances in which they may not have committed or been charged with any offence: Re Tyndall; Ex parte Official Receiver (1977) 17 ALR 182 at 187 (Deane J).
As Deane J said in Re Tyndall (at 190-191):
Bankruptcy does not, of itself, involve any criminal offence. A citizen should be free to travel if and when his commercial activities or personal desires prompt him so to do. Restrictions upon such travel under the bankruptcy legislation must be seen as being aimed at insuring the proper administration of the bankruptcy laws and of bankrupt estates under such laws and not as a penalty imposed upon a citizen as a consequence of inability to pay debts leading to the making of a sequestration order ... In some cases the financial rewards to be derived by the bankrupt's estate from such overseas travel will clearly outweigh any inconvenience in the administration of that estate resulting from the bankrupt's departure from the jurisdiction.
Further, in Weiss v Official Trustee in Bankruptcy (1983) 1 FCR 40, Bowen CJ said (at 43):
I am conscious of the fact that the evidence revealed in his public examination suggests that he has committed various offences against the Bankruptcy Act 1966 (Cth) which have characteristics involving nondisclosure and concealment. However, these are matters to be litigated at the proper time. It is a basic principle that a resident of Australia is entitled to expect that he may travel freely notwithstanding the fact that he is a bankrupt provided it will not lead to his staying overseas in order to defeat or delay his creditors and provided it will not interfere with the due administration of his bankrupt estate (see Tyndall's case at 15). It is to secure the proper administration of bankrupt estates that bankrupts are required by the Bankruptcy Act 1966 (Cth) to give their passports to the trustee (par. 77(a)) and to obtain the permission of the trustee before travelling overseas (par. 272(c)). This interference with the travel of bankrupts is not for the purpose of punishing or expressing disapproval of them for offences or alleged offences against the Bankruptcy Act 1966 (Cth).
Applications such as the one made by Mr Suhren are generally dealt with by considering three issues: (1) whether the proposed overseas visit is genuine; (2) whether the bankrupt is likely to return to Australia; and (3) whether the bankrupt leaving Australia will hamper the administration of the estate: Re Hicks; Ex parte Lamb (1994) 217 ALR 195 at 198 (Heerey J). See also El-Hanania v Cull [2024] FCA 814 at [31]‑[32] (Katzmann J). Other potentially relevant issues have also been identified, including the extent to which the bankrupt has complied with their obligations under the Bankruptcy Act and whether the bankrupt has been candid in relation to the proposed travel including, for example, the funding arrangements pertaining to such travel: Tinkler v Melluish(Trustee); in the matter of Tinkler (Bankrupt) [2017] FCA 52 at [22] (Nicholas J).
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 Airport
o Returning: 23 February 2025, 23:55 arriving Perth International Airport
2. Destination:
o Malabo, Equatorial Guinea
3. 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.
The request for written consent was supported by a document titled 'Request for Permission to Travel Overseas Whilst Bankrupt'. Much of the information in that document mirrored what had been set out in Mr Carter's letter of 5 February 2025. However, it included an email address for Mr Suhren that had a domain name which suggested that he had a connection with an organisation by the name 'Munich Partners': [redacted]@munichpartners.com.au.
The respondent replied by email to Mr Suhren's request for written consent to leave Australia on 7 February 2025. In that reply, the respondent initially sought further information from Mr Suhren about the consulting agreement referred to in Mr Carter's letter, as well as information about the costs of his flights and accommodation for the proposed travel. Later that day, the respondent sent Mr Suhren an email in which he sought further information. In relation to some of the information requested, the respondent asserted that Mr Suhren had failed to provide that information despite being obliged to provide it after his last trip out of Australia. The respondent also said that he was unable to consider Mr Suhren's current travel request until certain identified issues had been resolved, and relevant documents sought had been provided.
Mr Suhren deposed that as the respondent did not provide written consent to the proposed travel by 10 February 2025, he had to 'push back' his travel plans.
In an email dated 28 February 2025, sent from the [redacted]@munichpartners.com.au email address, Mr Suhren updated his request for written consent to leave Australia. On this occasion Mr Suhren asked for permission to travel between 8 March 2025 and 24 March 2025. In that email, Mr Suhren said:
Please note that Esplanade's client is in the process of finalising the travel itinerary, which includes multiple locations. The initial segment of travel involves attendance at an energy conference alongside the Minister of Hydrocarbons and Mining Development of the Government of Equatorial Guinea in Houston, Texas, USA.
Once finalised, the ticketed itinerary will be provided to you. In the interim, please note that the first confirmed destination is Houston, Texas, where Mr. Suhren will be supporting and advising the Minister at the CERAWeek Energy Conference from 10‑14 March 2025.
In support of his request for written consent to leave Australia, Mr Suhren submitted a further 'Request for Permission to Travel Overseas Whilst Bankrupt'. This document was in almost identical terms to the previous document he submitted on 5 February 2025, except to the extent that the document reflected the change in proposed travel dates and provided that the destination countries were 'USA/Europe/Equitorial Guinea'.
On 4 March 2025, Mr Suhren sent a further email to the respondent, attached to which were bank statements relating to a company 'F&L Nominees Pty Ltd', which Mr Suhren said were provided further to the respondent's requests for documents and information. Mr Suhren also asked the respondent to give prompt attention to his request for written consent to leave Australia as he said the 'matter has now become urgent'.
Later on 4 March 2025, Mr Suhren, and then on 5 March 2025, his lawyers, wrote to the respondent in an effort to obtain the written consent required. Mr Suhren's lawyers invited the respondent to identify the information that had been requested from Mr Suhren that was then outstanding and to explain what was causing the delay in responding to Mr Suhren's request. Mr Suhren's lawyers also asked the respondent to explain his position by reference to the principles that guide decisions whether to give consent to an undischarged bankrupt to leave the country.
The respondent replied by letter that was emailed to Mr Suhren's lawyers on 6 March 2025. In that letter, the respondent relevantly said:
Mr Suhren has failed to comply with a number of requests for information and documents rendered to him by my office. A schedule of those requests, and the responses in purported but insufficient compliance, is attached.
I am entitled to refuse an application for permission to travel if a bankrupt's absence from Australia would interfere with my administration of their estate in a proper and efficient way. His repeated failure to properly comply with directions to provide information and documentation gives me cause to conclude that Mr Suhren's absence would do so.
Once Mr Suhren complies fully with my requests for information and documents, I would be willing to consider any subsequent application for permission to travel.
The two-page schedule attached to the respondent's letter identified various requests for information that had been made of Mr Suhren, and the respondent's more detailed view about the status of those requests. According to the schedule, information and documents concerning:
·the cost of airfares and accommodation for the proposed travel;
·the dates on which Mr Suhren had ceased to act as a director for various companies;
·the financial statements for all companies of which Mr Suhren is a current shareholder, for years ending 30 June 2022, 2023 and 2024;
·details about Mr Suhren's ANZ superannuation account;
·tax returns for 2023 and 2024; and
·Mr Suhren's interest in a unit trust and the issue of shares in a company called 'Wolfram Limited',
had either not been provided to the respondent or had only been partially provided.
Attached to Mr Suhren's affidavit is a reproduction of the schedule that was attached to the respondent's letter: Annexure 'FS 8'. In that schedule, Mr Suhren provided his response to each of the respondent's claims that he had not complied with requests for information and documents.
Mr Suhren also attached to his affidavit a copy of his 2024 Individual Tax Return, which was one of the documents that was referred to in the respondent's schedule of outstanding documents and information. That tax return appeared to have been signed by Mr Suhren on 7 March 2025, the same day he swore his affidavit in support of the Application.
According to Mr Suhren, he also asked his 'employer' to provide him with a letter to provide to the respondent in relation to his updated request for written consent to leave Australia. This letter, which was annexed to Mr Suhren's affidavit (Annexure 'FS 9'), purports to have been written by Mr Rodney Carter, but is unsigned. The letter is dated 10 March 2025. However, in his affidavit (that was sworn on 7 March 2025) Mr Suhren said that there was a 'mistake' in dating the letter.
Annexure 'FS 9' is in substantially the same terms as Mr Carter's letter dated 5 February 2025, although there are some important changes. It is convenient to reproduce the relevant parts of the letter:
We refer to our earlier communications, including my emails dated 10 December 2024, 1 January 2025, 23 January 2025 and 12 February 2025, regarding Mr. Suhren's request for approval to travel overseas. The previous request for approval has now been updated following your failure to approve the previous request.
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:
1. Travel Dates:
•Departing: 10 March 2025, 22:45 departing Perth International Airport
•Returning: 24 March 2025, 21:35 arriving Perth International Airport
2. Destination
•Houston (Texax) [sic], London (UK), Equatorial Guinea
3. Airfare & Accommodation:
•Airfare: booking and payment is the responsibility of Esplanade's client;
•Hotel: to be booked directly by Esplanade through its travel agent.
4. Income/Consultancy Fees for Mr. Suhren:
•Day Rate/Consultancy: A$500 per day (excluding weekends).
•Weekend Rate: A$250 per day (Saturday/Sunday)
•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.
Mr Suhren also attached to his affidavit correspondence with the respondent in 2023 that related to overseas travel Mr Suhren sought to undertake in or about June 2023: Annexure 'FS 10'. It is not clear on the evidence that is before me what travel Mr Suhren sought to undertake or whether his request for written consent was granted. However, by August 2023 Mr Suhren provided the respondent with a schedule setting out the documents and information the respondent was seeking from Mr Suhren at that stage, together with Mr Suhren's responses to those requests. I will return to aspects of this schedule, which formed part of Annexure 'FS 10', later in these reasons.
I have already mentioned that the respondent gave consent to Mr Suhren leaving Australia to go to Bali, Indonesia for a family holiday in November 2024. Mr Suhren attached to his affidavit email correspondence he had with the respondent on 5 February 2025 and 7 March 2025 in which he provided information and documents relating to that trip.
Mr Suhren deposed that it was 'imperative' for him to travel on behalf of Esplanade Consultancy Pty Ltd on the proposed overseas trip in March 2025 so that he could perform services for the clients of that company it has been contracted to perform. Attached to his affidavit were some documents relating to the first part of his proposed overseas trip in March 2025, to Houston, Texas. One of those documents (Annexure 'FS 14') was an 'agenda' of a meeting (the 'Project Helios Strategy Meeting') scheduled for 13 March 2025 between the management of Esplanade and the Minister of Hydrocarbons and Mining Development of the Republic of Equatorial Guinea. Mr Suhren says that the agenda was sent to him via WhatsApp, and that he forwarded the WhatsApp message via email to his lawyer, and then later attached the email to his affidavit.
Mr Suhren also attached what appears to be a screenshot of a conversation chain using WhatsApp. The content of the screenshot reads as follows, before it is cut off:
Meeting with HE Antonio OBURU ONDO and the GEPetrol Director General in Houston, Texas, USA:
Thurs 13th @10:30am
Venue to be advised closer to the date.
In relation to planning and strategy to enable Munich Partners to effectively engage with Equatorial Guinea to ensure the finalisation of negotiations and execution of the Engagement Agreement, I will not be travelling to Houston, Texas with MP.
I will be heading back into Equatorial Guinea as agreed with Malabo this afternoon to drive the political side of things with a strategy meeting with the Second Vice President of the Senate.
The real politicking is core to the final execution of the
It is not clear from Mr Suhren's affidavit, or from the screenshot of the WhatsApp conversation chain, who the parties to the conversation were, or what the date of the conversation chain was. Further, as the screenshot does not show the entire conversation chain, the context of the conversation is not clear. In that regard, Mr Suhren gave oral evidence at the hearing in which he confirmed that the screenshot does not depict the whole conversation, and that there were more messages that do not necessarily relate to the meeting. He explained that the screenshot was provided simply to show the meeting date and time.
As I have alluded to, counsel for Mr Suhren sought leave to adduce further evidence from his client at the hearing of the Application. Counsel submitted that the respondent had raised questions in his written submissions about the genuineness of Mr Suhren's proposed travel. Counsel argued that because that issue had never been raised with Mr Suhren before, it was necessary for him to address it by giving further evidence.
Counsel for the respondent did not object to Mr Suhren giving further evidence.
In his very brief evidence in chief, Mr Suhren explained that the purpose of the first leg of his proposed travel to Houston, Texas, was to meet the Minister for Mines and Energy Development of Equatorial Guinea. Mr Suhren said the Minister was speaking at the world's largest energy conference in the oil and gas sector, which he later explained was the 'S&P CERAWeek' energy conference in Houston. Mr Suhren explained that the government of Equatorial Guinea is looking to monetise their oil and gas assets for listing, and that a lot of their joint venture partners will be attending at that conference. He said that this presented as a unique opportunity to be introduced to the joint venture partners and to socialise, as Esplanade Consultancy was looking to become the lead manager in the process of listing and seeking debt for the government of Equatorial Guinea.
When I asked Mr Suhren to explain further what was anticipated would occur at the conference, he gave the following evidence:
So what aspect - is the Project Helios strategy meeting an aspect of that conference, or what is it?---No, it's really meetings around the conference. The conference is just used as a place where both the Minister for Equatorial Guinea is present, but also where their joint venture partners are, so ExxonMobil, who currently operate one of those production assets; then there's China National Oil Company, which operate another one of the production assets; Marathon Oil; ConocoPhillips. They all happen to be at that conference, so it's an opportunity for the Minister and the various joint venture partners to be introduced and for us to socialise the various paths to liquidity that the Government of Equatorial Guinea is currently contemplating.
Is it accurate to say that you are wanting to travel to attend at the conference or that you want to attend at some meeting which is being held because all the parties to that meeting happen to be at the conference?---It - the latter is true, so - yes.
All right. And so the agenda that's in that email is not the agenda of the conference, but the agenda of the offshoot or opportunistic meeting that's - - -?---That is the specific agenda for the meeting, yes.
Mr Suhren said that the next part of his proposed trip was to London, where he planned to stay for two days. He explained that he would be there to 'organise the data room' for all of the Equatorial Guinean oil and gas assets, which are currently held by a company in London. He said that the data room needs to be organised for several insurance providers so that they can provide insurance quotes 'as part of the debt process'. He said that the data room needs to be 'assessed as to what's in it and then reorganised suitable for those purposes'.
As to the last part of the trip, which Mr Suhren said was the longest part of his proposed travel, he said only that he proposed travelling to Equatorial Guinea 'to provide feedback and receive instructions from the government of Equatorial Guinea as to the various options that are going to be presented'.
Mr Suhren also indicated that it was a '5 to 10 billion dollar listing', and that Munich Partners was seeking to provide some expertise in relation to parts of the listing process in London.
In cross-examination, Mr Suhren confirmed that the arrangements as to his remuneration and travel costs would be the same for the proposed travel in March 2025 as those set out in Mr Carter's letter to the respondent dated 5 February 2025.
Mr Suhren was asked about his connection to Munich Partners. He accepted that the [redacted]@munichpartners.com.au was his email account, which he had been using as late as 7 March 2025. When asked to explain why he was using this email address, Mr Suhren gave the following evidence:
So can you explain to his Honour how it is that you come to be using a Munich Partner's email address?---I still do some consulting work for Munich Partners, or I'm looking to do some Munich Partners consulting work. It hasn't yet resulted in any paid work, but it's still the email address I use for professional purposes.
So can I characterise [the] current status of your arrangements with Munich Partners is that you're undertaking work for them, but you haven't as yet been paid?---No. I haven't undertaken any work. I'm looking to undertake some work. So we've been bidding - Munich Partners has put - put in a number of bids which, if successful, would result in my employment.
Mr Suhren then explained that although the agenda for the planned meeting in Houston referred to 'The management of Esplanade/MP', and that 'MP' was a reference to Munich Partners, insofar as his proposed travel was concerned, he had no involvement with Munich Partners.
Mr Suhren was then asked some further questions about the income he expected to receive for carrying out work for Esplanade Consultancy while engaged in the proposed travel. In that regard, he said that the only income he will receive for undertaking that work is the income set out in the letter from Mr Carter dated 5 February 2025. However, Mr Suhren then gave the following evidence:
You don't receive any contingent remuneration based on the success or otherwise of the work that you're doing during this trip?---Esplanade is hoping to be in a position to negotiate a success fee, but at this stage it's just a daily rate that has been negotiated by Esplanade with its client, and subsequently with me. So the - the - the intention is for Esplanade to receive a success fee, and for me to receive a portion of that, but those details, or those arrangements haven't been negotiated as yet.
But it's your understanding that in the event that there is success on the part of - sorry - Esplanade Consultancy in facilitating the relevant transaction, that you will likewise receive - that Esplanade Consultancy will receive remuneration of some kind, and you will likewise receive some remuneration?---That would be typical, you know, international business practices, but that would have to be approved by the government of Equatorial Guinea. So it still requires some time before any of those arrangements would have any real visibility.
But you're not suggesting to his Honour, are you, that they're not matters that you've discussed with Mr Carter?---No. Absolutely not. The - the intention is to - to - to negotiate it successfully for Esplanade and, conversely, then for myself.
Thank you, Mr Suhren. And have those arrangements in principle been agreed between you and Mr Carter?---No, they haven't. The - the principle has been agreed, but not the percentages or what it might look like. At - at this stage, you know, it's still securing the - the final engagement from the government of Equatorial Guinea which requires submissions, etcetera, and a path to be agreed, and then we can have some further clarity as to what, if any, success fee arrangement might look like.
And when you - just for the benefit of the transcript, when you say "principle", you're meaning the concept has been agreed, not a principal amount?---No. The concept. Yes.
Yes, yes. And would you accept that the rates that are - sorry, your daily rate is lower than what you might otherwise be paid in your experience in similar consulting roles?---It's certainly lower than I would have been paid were I not a bankrupt.
So are you saying that the rate has been adjusted because of your bankruptcy?---I suggest that has had part to do with the rate adjustment, yes.
And that rate adjustment has been a part of an arrangement as between you and Mr Carter?---Yes. Correct.
Yes. That is to lower your rate because you are currently a bankrupt?---No. It's - it's the - the reality that I can't hold a position of director, which ordinarily, you know, that - that is - that is - I would be expected to be employed to provide this consultancy engagement and carry a directorship with the company. That's one of the, you know, typical expectations you have of an engagement of this nature. So the - the rate that I'm receiving at the moment is lower than I would have received were I a director of a company that was undertaking the - the engagement directly for the principle.
But you would accept, wouldn't you, Mr Suhren, that Mr Carter is putting you forward as having significance and importance for Esplanade Consultancy in respect to this transaction, notwithstanding you are an undischarged bankrupt?---I agree. Yes.
Yes. And one of the - you accept, don't you, that one of the bases of your application is that it's only you that can attend, and your level of expertise is necessarily required in order to facilitate or possibly facilitate the transaction coming to fruition for Esplanade Consultancy?---I do.
Mr Suhren was then taken to the schedule of his responses to the respondent's requests for information and documents, which he provided to the respondent in August 2023, and which I have already referred to earlier in these reasons (Annexure 'FS 10'). Mr Suhren was asked about two items in that schedule with a view to establishing that, based on what Mr Shuren himself recorded in that schedule, the requests for information and documents in those items had not been complied with as at August 2023. Ultimately, Mr Suhren accepted that in relation to those items the information sought by the respondent had not been provided as at August 2023, but he said that the information had been provided subsequently.
One of the other items on the schedule referred to a request for copies of financial statements for companies in which Mr Suhren was or had been a shareholder. In his response that was recorded in the schedule, Mr Suhren said the statements had been requested but noted that the majority of the companies were not trading entities. Again, Mr Suhren accepted that this request was outstanding as at August 2023, but said that he believed that it had now been complied with.
Mr Suhren was taken to a search undertaken of the records of ASIC, which indicated that he had been, and in some cases appeared to continue to be, an officer and a shareholder of various different companies. As I understood his evidence, Mr Suhren has written to the companies that he believed were active to obtain their financial statements, but did not do the same in relation to companies he believed were not active, despite the fact the respondent had not drawn any such distinction in his request for the financial statements.
Mr Suhren was asked questions about the schedule of information he prepared for the purposes of the Application, which set out his responses to the respondent's requests for information (Annexure 'FS 8'). He was specifically asked about a request for copies of the financial statements for all companies of which he is a current shareholder, for the years 30 June 2022, 30 June 2023 and 30 June 2024. Mr Suhren accepted that the only information he had provided to the respondent were bank statements for a company called F&L Nominees Pty Ltd from 27 September 2023 to 27 September 2024. He then said that he thought that the bank account was still open, believed that the statements that had been provided were up to date, and said that if they were not then he would update them.
Annexure 'FS 8' suggested that Mr Suhren had not provided certain information relating to an ANZ superannuation account. Mr Suhren said that he had downloaded a statement from the Australian Taxation Office website and had tried to obtain further information from ANZ, but without success. Mr Suhren confirmed that his last communication with ANZ was in August or September 2024, via an online contact form to which he said he never received a response. He later agreed that the only information he has provided to the respondent about his superannuation is a copy of a document obtained from the Australian Taxation Office website.
Annexure 'FS 8' also refers to requests for income tax returns and assessments. Mr Suhren accepted that the respondent had not yet received copies of his 2022 and 2023 tax returns from him, and that he had only just recently provided the 2024 tax return to the respondent.
It was put to Mr Suhren that he attempted to travel overseas in May 2023, when he was stopped at the airport. Mr Suhren gave evidence that at that time he was not aware that he was not permitted to travel and thought he was only prohibited from undertaking overseas travel if the trustee held his passport. However, Mr Suhren accepted that he did not disclose that this had occurred in his affidavit in support of the Application.
Mr Suhren also accepted that the respondent gave consent to his travel to Bali, Indonesia in November 2024, and that he did travel on the condition that he would thereafter satisfy the respondent's requests for documentation and information. Although Mr Suhren did not accept that he has not provided all of the information requested by the respondent, he did accept that if he had not done so then he would not have complied with the conditions of his travel.
Mr Suhren was briefly re-examined. In that re-examination he confirmed that he did not have possession or custody of any of the books and records of companies of which he was a director since he was made bankrupt.
Having summarised the evidence, it is then necessary to deal with the question of whether an order should be made pursuant to s 90-15(1) of Sch 2 of the Bankruptcy Act directing the respondent to provide written consent to Mr Suhren leaving Australia under s 272(1)(c).
Should the respondent be directed to give written consent to allow Mr Suhren to leave Australia?
The parties made their submissions within a framework reflecting the three key issues identified in Re Hicks. In those circumstances it is appropriate that I deal with the question of whether an order should be made pursuant to s 90-15(1) of Sch 2 of the Bankruptcy Act within that same framework.
It is convenient to commence by recording what was not in issue.
The respondent did not contend that the proposed travel would interfere with the proper administration of Mr Suhren's bankrupt estate because there was a risk that he will abscond. The respondent accepted that Mr Suhren would be likely to return if he were to leave Australia with the respondent's consent. Presumably that is at least because Mr Suhren has established ties with Western Australia.
The respondent also did not suggest that if Mr Suhren were to leave Australia to undertake the proposed travel during the period of 10 March 2025 to 24 March 2025, the proper administration of Mr Suhren's estate would be impeded or hindered on that account alone. Given the relatively short period of time that Mr Suhren would be out of Australia, and in the absence of any evidence that the respondent requires Mr Suhren's presence in Australia during that time for reasons connected with the administration of his estate, that is unsurprising.
Both parties focused a great deal of their attention on the question of whether Mr Suhren had complied with his obligations under the Bankruptcy Act, and in particular his obligations under s 77. Most relevantly, Mr Suhren is required by s 77 of the Bankruptcy Act to give the respondent all books that are in his possession that relate to any of his examinable affairs, and to give the respondent such information about any of his conduct and examinable affairs as the respondent requires: s 77(1)(a)(i) and s 77(1)(ba).
However, the respondent did not rely on Mr Suhren's alleged failures to comply with his obligations under the Bankruptcy Act as a free-standing basis on which to submit that an order should not be made under s 90-15(1) of Sch 2 of the Bankruptcy Act. Instead, the respondent submitted that it was for Mr Suhren to persuade the Court that his proposed overseas visit is genuine. In that context the respondent submitted that there was cause for concern about whether Mr Suhren's proposed overseas visit is genuine because his failures to comply with his obligations to provide information and documents tended to demonstrate that he had an overall poor attitude towards the need for him to comply more generally with his obligations as a bankrupt under the Bankruptcy Act.
Ultimately, the genuineness of Mr Suhren's proposed visit to the United States of America, to the United Kingdom and then to Equatorial Guinea, between 10 March 2025 and 24 March 2025, crystalised as the critical issue for the Court to determine. Accordingly, it is that issue that I will now consider.
In submitting that the Court should not be satisfied that Mr Suhren's proposed travel is genuine, the respondent drew attention to evidence that Mr Suhren contravened s 272(1)(c) of the Bankruptcy Act by doing an act preparatory to leaving Australia, when he attempted to travel overseas in May 2023 without the respondent's written consent. It is convenient that I deal with that aspect of the respondent's case at the outset.
Mr Suhren accepts that he attempted to travel overseas without consent in May 2023. In his oral evidence, Mr Suhren explained that he believed that he only had to seek permission to travel out of Australia if the respondent held his passport at the time. He also said that he would not have travelled or have attempted to travel if he knew otherwise.
Mr Suhren's evidence was not challenged, and I accept it. I find that Mr Suhren attempted to leave Australia in May 2023 on the mistaken belief that he was entitled to do so. Accordingly, I do not think that his unsuccessful attempt to leave Australia without the respondent's written consent bears upon the question of whether Mr Suhren's proposed travel in March 2025 is genuine.
I do note, however, that Mr Suhren did not disclose in his affidavit that he had previously attempted to travel overseas without the respondent's consent. Mr Suhren offered no explanation for this omission. However, it was never suggested to Mr Suhren in cross‑examination that he deliberately omitted this information in order to conceal it from the Court. Accordingly, I also do not place any weight on the omission of this information from Mr Suhren's affidavit in determining whether his proposed travel is genuine.
As I have already said, by reference to Annexure 'FS 8' the respondent alleges that Mr Suhren has failed to comply with the respondent's requests to provide certain documents and information. The respondent then relies on that allegation to support his ultimate contention that Mr Suhren's proposed travel is not genuine. Before dealing with this aspect of the respondent's case, it is necessary to note that Mr Suhren denies that he has failed to comply with most of the respondent's requests. Mr Suhren's counsel made submissions that to the extent that Mr Suhren may not have provided information sought by the respondent, there was no utility in the requests for that information. He also contended that the respondent could obtain much of the information sought for himself, in any event.
Ultimately, the respondent relied on four specific allegations that Mr Suhren has failed to provide documents and information as required under s 77 of the Bankruptcy Act. I will deal with each of those allegations in turn.
Firstly, the respondent submitted that Mr Suhren failed to provide the 'precise costs of airfares and accommodation' in relation to his proposed travel. As I will shortly explain, the extent to which Mr Suhren has provided full disclosure of his proposed travel arrangements is an important factor in determining whether the Application should be allowed. However, I do not find that Mr Suhren failed to comply with his obligations to the respondent under the Bankruptcy Act in this specific respect. This is because, and as counsel for the respondent conceded, Mr Suhren would not know the 'precise' travel arrangements until they were booked and paid for.
Secondly, it was submitted that Mr Suhren failed to provide copies of the financial statements for all companies of which he is a current shareholder, for the years ending 30 June 2022, 30 June 2023 and 30 June 2024.
Mr Suhren's position is that he has not failed to provide copies of financial statements from any company of which he was a current shareholder because he had never received any such documents. He says that he requested those financial statements and had not received them but accepted that he had not provided evidence of having made those requests. He says that he had provided the bank statements for a company called F&L Nominees Pty Ltd and that, in effect, they were the only 'financial statements' he has in his possession.
Section 77(1)(a)(i) of the Bankruptcy Act obliges bankrupts to give to the relevant trustee in bankruptcy all books, including books of an associated entity of the bankrupt, that are in the possession of the bankrupt and relate to any of their examinable affairs. However, there is no evidence that any financial statements for the companies of which Mr Suhren is a current shareholder exist or, if they do exist, that they are in Mr Suhren's possession. Accordingly, based on evidence before me, I do not find that Mr Suhren failed to comply with any obligations under the Bankruptcy Act by failing to provide copies of the specified financial statements to the respondent.
Thirdly, it was contended that Mr Suhren failed to provide the account number, the account details, and a recent copy of the account statement for his ANZ superannuation account. However, Annexure 'FS 10' to Mr Suhren's affidavit establishes that in August 2023 Mr Suhren did provide the respondent with the member account number for his ANZ superannuation account, the date the account was opened and the fund name, when he gave the respondent a copy of information obtained from the Australia Taxation Office website. Accordingly, the only outstanding information or documentation in this particular respect is a recent copy of the account statement.
According to Annexure 'FS 8', to Mr Suhren's affidavit Mr Suhren has written to ANZ Superannuation seeking further information, which he had not yet received. In his oral evidence Mr Suhren explained that in August or September 2024 he 'wrote' to ANZ Superannuation when he went onto the ANZ website and attempted to update his address details. It is not clear from Mr Suhren's evidence whether he also requested a recent copy of his account statement when he visited the ANZ website. However, Mr Suhren said that he had not received any further information from ANZ Superannuation since then.
It is clear that Mr Suhren has not given the respondent a recent copy of the account statement for his superannuation. It follows that he has failed to comply with his obligations under s 77(1)(a) and/or s 77(1)(ba) of the Bankruptcy Act. However, it is important to appreciate that the first time the respondent actually asked Mr Suhren to provide a copy of a recent account statement was in February 2025, when Mr Suhren first sought permission to travel to Equatorial Guinea. Accordingly, Mr Suhren has only recently failed to provide this information.
Fourthly, the respondent submits that Mr Suhren has failed to provide copies of his income tax returns for the years ending 2022, 2023 and 2024. In his oral evidence, Mr Suhren appeared to accept that he had not provided the respondent with copies of his 2022 and 2023 tax returns. However, that evidence appears to be at odds with the information in Annexure 'FS 8', in which the respondent asserted that he had at least received a copy of Mr Suhren's 2022 tax return lodgement. What is clear is that Mr Suhren has now provided the respondent with a copy of his 2024 income tax return, albeit that this only occurred on or after 7 March 2025.
While the unexplained conflict in the evidence about the 2022 tax return means that I am unable to make any finding about whether Mr Suhren has provided the respondent with a copy of that return, I find that Mr Suhren has never provided the respondent with a copy of his 2023 tax return. I also find that Mr Suhren only very recently provided the respondent with a copy of his 2024 tax return, and then only when he sought the respondent's approval to leave Australia.
Accordingly, I find that Mr Suhren has in some respects failed to comply with his obligations under s 77(1)(a)(i) and/or s 77(1)(ba) of the Bankruptcy Act. However, having regard to the nature and extent of his demonstrated failures to comply with his obligations under the Bankruptcy Act, I am not persuaded that they establish that Mr Suhren has such a poor attitude to his general obligations under the Bankruptcy Act that bears to any significant extent upon the question of whether his proposed travel is for a genuine purpose.
Having dealt with the respondent's reliance on Mr Suhren's failures to comply with his obligations under s 77 of the Bankruptcy Act, in support of a contention that Mr Suhren has failed to establish that his proposed travel is genuine, it is necessary to deal with the balance of the respondent's contentions that the Application should be refused.
In essence, the respondent submits that the Court cannot be satisfied that all of Mr Suhren's proposed travel is genuine because he has provided little or no information about aspects of the proposed travel. The respondent says that the lack of information about the proposed travel gives rise to serious concerns about the genuineness of the travel, suggesting that a purpose of the proposed travel may be to acquire property that would otherwise be divisible amongst his creditors but would remain unknown to, and therefore beyond the reach of, the respondent.
Counsel for the respondent did accept that some of Mr Suhren's proposed travel may be genuine, and for the purposes stated by Mr Suhren. In that regard, counsel appeared to be specifically referring to Mr Suhren's proposed travel to Houston, Texas. However, counsel for the respondent submitted that it was not possible for the Court to be satisfied that the balance of the proposed travel was for genuine purposes. In that regard, counsel invited the Court to have particular regard to what he suggested was a lack of evidence about the latter part of Mr Suhren's proposed overseas travel and to the fact that certain information about that intended travel was only disclosed when Mr Suhren gave oral evidence at the hearing of the Application.
Counsel for Mr Suhren argued, on the other hand, that there was no reason to doubt the genuineness of the proposed travel and suggested that there was even some hope that the travel would generate income resulting in greater contributions to the creditors of the bankrupt estate.
As Mr Suhren said in his written submissions, the relevant principles applicable to the determination of the Application are uncontroversial. In that context, Mr Suhren submitted that those uncontroversial principles involved certain 'key questions', including the question of whether his proposed travel is genuine. Accordingly, it must have been apparent to Mr Suhren that it fell to him to provide sufficient information about his proposed travel to enable the Court to consider that issue. In any event, as it is Mr Suhren who asks the Court to exercise the discretion under s 90-15(1) of Sch 2, it is for him to satisfy the Court that it is appropriate to do so and to make an order compelling the respondent to provide written consent to him leaving Australia pursuant to s 272(1)(c).
Although it may be accepted that the precise travel arrangements may not be known to Mr Suhren until they are booked and paid for, he has not disclosed the details of any proposed flights or of any other proposed means of travel that he intends utilising, or any details of his proposed accommodation. There are also significant shortcomings in the evidence concerning what Mr Suhren actually intends doing while undertaking his proposed travel, particularly in relation to the travel he proposes undertaking after leaving the United States.
Annexure 'FS 3' to Mr Suhren's affidavit is an email he sent to the respondent on 28 February 2025. The subject of that email was 'Updated Travel Request/Approval Mr Suhren/28 Feb 2025'. Attached to the email was a form entitled 'Request for Permission to Travel Overseas Whilst Bankrupt', which Mr Suhren completed. The information in that form suggested the proposed travel was from 8 March to 24 March 2025. It also disclosed that Mr Suhren proposed travelling to 'USA/Europe/Equatorial Guinea', and that Esplanade Consultancy would be covering the cost of his airfares, accommodation, and a daily allowance.
However, there are no details in either Annexure 'FS 3', or in the form attached to that document, about the flights Mr Suhren proposed taking out of Australia, the flights he intended taking while in transit between the United States, Europe and Equatorial Guinea, or any flights he proposed taking to return to Australia. There is also no information about which of the many countries that comprise 'Europe' Mr Suhren intended travelling to, or his proposed accommodation at any of his intended destinations. Importantly, there is no information about what exactly Mr Suhren would be doing while he was in Europe or while he was in Equatorial Guinea.
Mr Suhren did say in Annexure 'FS 3' that the initial part of the proposed travel involved 'attendance at an energy conference alongside the Minister of Hydrocarbons and Mining Development of the Government of Equatorial Guinea in Houston, Texas, USA'. Mr Suhren also said that he would be 'supporting and advising the Minister at the CERAWeek Energy Conference from 10-14 March 2025'. However, Mr Suhren did not explain the role he was to play if he was permitted to travel while attending at the energy conference, beyond 'supporting and advising' a Minister of the Government of Equatorial Guinea. Significantly, it was only at the end of his oral evidence, when I asked Mr Suhren questions about his proposed travel to Houston, that it emerged that contrary to what he had previously said in Annexure 'FS 3', he was not in fact proposing to attend at the conference in Houston. Instead, Mr Suhren explained that the purpose of his proposed travel to Houston was to attend at a meeting, which involved parties who happened to be attending at the conference. As Mr Suhren described it in his evidence, 'it's really meetings around the conference', taking advantage of the fact the participants in the meeting were all going to be in Houston at the time.
Mr Suhren did not provide any explanation for what I regard was a significant difference between his oral evidence and what he had said in Annexure 'FS 3'. Mr Suhren also failed to explain why he had not accurately disclosed to either the respondent or to the Court the purpose of his proposed visit to Houston.
When Mr Suhren swore his affidavit on 7 March 2025, he annexed to that affidavit an unsigned letter from Mr Carter of Esplanade Consultancy Pty Ltd (Annexure 'FS 9'), the relevant parts of which I have reproduced earlier in these reasons. That letter revealed that Mr Suhren proposed leaving Perth International Airport on 10 March 2025 at 22.45, and that he intended returning on 24 March 2025, arriving at 21.35. However, the letter did not disclose the proposed flights out of or into Perth, any of the other flights Mr Suhren intended taking once he had left Perth, or the proposed accommodation at his various destinations. Further, and contrary to the request for permission to travel form that was attached to Mr Suhren's email to the respondent dated 28 February 2025 (Annexure 'FS 3'), Mr Carter's letter suggested that Mr Suhren's airfares would be paid for by an unidentified client of Esplanade Consultancy. Mr Carter's letter also contained information that Mr Suhren had a proposed destination of London in the United Kingdom (this may have been what the earlier reference to 'Europe' referred). This information had not previously been provided to the respondent.
Mr Carter's letter contained some vague assertions that Mr Suhren was the only person who could undertake the travel to fulfill Esplanade Consultancy's obligations under various unspecified 'client engagements abroad'. It also stated that Mr Suhren's presence in Malabo, the capital city of Equatorial Guinea, was 'essential to meet [unidentified] contractual obligations'. However, the letter largely leaves it to the reader to speculate about what this all really means. It also provided no details about how and when Mr Suhren intended travelling (presumably from Houston) to London and then to Equatorial Guinea, where Mr Suhren intended staying in either of those places, and what he intended doing there during his stay. Accordingly, at the commencement of the hearing of the Application, and based on the evidence relied on by Mr Suhren, the Court was effectively being asked to take it on faith that his proposed travel was genuine.
It was only when Mr Suhren gave oral evidence at the hearing of the application that he revealed that he wished to stay in London for two days, and that while in London he intended organising a 'data room'. Mr Suhren explained that the 'data room' was needed to enable various insurers to provide quotes for certain assets held for Equatorial Guinea, and that the data room needed to be 'assessed as to what's in it, and then reorganised suitable for those purposes'.
I found that Mr Suhren's evidence about his intended activities while in London was unsatisfactory.
As I have already noted, it was not until he gave oral evidence at the hearing of the Application that Mr Suhren disclosed for the first time how long he intended staying in London and what it was he intended doing while he was there. Of course, by the time Mr Suhren gave evidence it was too late for the respondent to carry out any meaningful investigations into the veracity of his account. Mr Suhren also appeared to obfuscate when he described in his evidence what he intended doing while in London, and I found that his evidence about this topic, which was unsupported by any other independent evidence, unconvincing.
Mr Suhren has had several opportunities to provide details of how he intends travelling to Equatorial Guinea, when he intends undertaking that travel, where he intends staying, and what he intends doing while in Equatorial Guinea. However, even though Mr Suhren described this final leg of his proposed travel to Equatorial Guinea as 'the longest part of the trip', the only evidence of substance that was adduced about this aspect of the proposed travel is the evidence Mr Suhren gave at the hearing of the Application. In that regard, Mr Suhren said only that once in Equatorial Guinea he would 'provide feedback and receive instructions from the government of Equatorial Guinea as to the various options that are going to be presented'. Precisely what this means and what it would involve are matters the Court was essentially left to speculate about.
The respondent also relies on Mr Suhren's evidence about the remuneration he says he expects to receive while travelling in support of his contention that the proposed travel is not genuine. According to Mr Carter's unsigned letter (Annexure 'FS 9'), Mr Suhren is to be paid A$500 per day (A$250 for Saturday and Sunday), together with a A$150 meals and entertainment allowance while he is away from Australia undertaking the proposed travel. The respondent submits that in circumstances in which Mr Carter's letter suggests that Mr Suhren's physical presence in Texas, London and Equatorial Guinea is critical, the relatively low-level remuneration he is to be paid is a reason to be sceptical about the genuineness of the proposed travel.
Although Mr Suhren's expected remuneration does appear to be quite modest, in the absence of any evidence about what a person in his position might expect to be paid, I do not place any weight on the respondent's submissions that the level of his remuneration is a further reason to be sceptical about the genuineness of the proposed travel. In any event, the logical connection between a low level of remuneration and the genuineness of the travel was not made clear to me.
The respondent also draws attention to the fact that it was revealed, for the first time when Mr Suhren gave evidence, and then only under cross-examination, that Esplanade Consultancy is hoping to negotiate a success fee and that it is intended that he would receive a portion of that fee should it be paid. In that regard, Mr Suhren explained that although he had talked to Mr Carter about the prospect that he would receive a portion of any success fee, the precise details had not yet been agreed. However, he also said in his evidence that while the amount of any success fee had not been agreed, the concept that he would receive a portion of any success fee had been agreed.
I do regard Mr Suhren's failure to disclose the fact that he had reached some form of agreement with Mr Carter that he would receive a portion of any success fee as significant. As an undischarged bankrupt, Mr Suhren must surely have appreciated the relevance of that information in the context of his request that he be permitted to travel overseas. His failure to disclose this information until he was cross-examined also gives me further cause for concern about the genuineness of his proposed travel.
As I have already explained, Mr Suhren was required to satisfy the Court that it should make orders under s 90-15(1) of Sch 2 'as it thinks fit'. However:
(a)Mr Suhren's failure to give full and frank disclosure about the first leg of his proposed travel to Houston;
(b)the lack of details and the unsatisfactory nature of aspects of Mr Suhren's evidence about what was to be involved in his proposed travel to London and then to Equatorial Guinea; and
(c)Mr Suhren's failure to disclose the fact that he had reached some form of agreement with Mr Carter about sharing in a success fee,
means that I am not persuaded that the proposed travel is genuine.
In those circumstances I conclude that it would not be 'fitting' for the Court to permit Mr Suhren to undertake the proposed travel by exercising the discretion conferred by s 90-15(1) of Sch 2.
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.
I certify that the preceding one hundred and three (103) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Vandongen. Associate:
Dated: 24 March 2025
0
6
3