Swan v Kerr

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SWAN v KERR [2007] FMCA 1215

BANKRUPTCY – Appeal against decision of trustee refusing permission for bankrupt to travel overseas – family commitments – inquest into the death of the bankrupt’s father – bankrupt previously travelling overseas with the consent of the trustee – public examination of the trustee revealing issues of concern to the trustee – imposition of income contributions by the trustee – non payment by the bankrupt – unresolved challenge to income contribution assessment – imposition of conditions on travel by the trustee – bankrupt living itinerant lifestyle – supported by friends and relatives – appeal dismissed.

Bankruptcy Act 1966 (Cth), s.178

Dunwoody v Offiical Receiver [2005] FMCA 1634
ReHicks; ex Parte Lamb (1994) 217 ALR 195

Applicant: RICHARD JAMES SWAN

Respondent: DAVID KERR

File Number: SYG2197 of 2007

Judgment of: Driver FM

Hearing date: 25 July 2007

Delivered at: Sydney

Delivered on: 25 July 2007

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent: Mr Spencer

Solicitors for the Respondent: Gadens Lawyers

ORDERS

1. The application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2197 of 2007

RICHARD JAMES SWAN

Applicant

And

DAVID KERR

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application under s.178 of the Bankruptcy Act1966 (Cth) (“the Bankruptcy Act”) appealing against a decision of the applicant's trustee in bankruptcy to refuse his permission for the bankrupt to travel to the United Kingdom to attend an inquest into his father's death. The application filed on 16 July 2007 is supported by an affidavit by the bankrupt, Mr Swan. Mr Swan also gave oral evidence under cross‑examination. Mr Swan also tendered a bundle of character references (exhibit A1).

2. The application is opposed by the trustee.  The trustee relies upon the affidavit of David Kerr filed on 23 July 2007 to which were exhibited a bundle of documents.  Mr Kerr was cross‑examined by Mr Swan on his affidavit. 

3. Relevantly, the background facts are that Mr Swan was bankrupted in 2005.  Shortly after being bankrupted he was permitted to travel overseas and returned.  He surrendered his passport to the trustee.  He sought permission to make a subsequent trip which, according to the evidence, might well have been permitted subject to conditions, but Mr Swan was unable to meet those conditions.  Mr Swan's father died in a fire in the United Kingdom on 3 March 2006.  He sought the trustee's permission to travel to the United Kingdom in order to attend an inquest into the death of his father and in order to provide support to his family.  That request was declined by the trustee unless Mr Swan could meet conditions, in particular relating to an income contribution obligation which Mr Swan had not met. 

4. Annexure F to the affidavit of Mr Kerr is a letter dated 12 January 2007 in which Mr Swan was informed by the trustee of the assessment of an income contribution liability of $29,826.90.  Mr Swan was required to…