Tinkler v Melluish (Trustee); in the matter of Tinkler (Bankrupt) (No 2)
[2017] FCA 792
•14 July 2017
FEDERAL COURT OF AUSTRALIA
Tinkler v Melluish (Trustee); in the matter of Tinkler (Bankrupt) (No 2)
[2017] FCA 792
File number: NSD 83 of 2017 Judge: NICHOLAS J Date of judgment: 14 July 2017 Cases cited: Tinkler v Melluish (Trustee); in the matter of Tinkler (Bankrupt) [2017] FCA 52 Date of hearing:
Determined on the papers Registry: New South Wales Division: General Division National Practice Area: Commercial and Corporations Sub-area: General and Personal Insolvency Category: No catchwords Number of paragraphs: 11 Solicitor for the Applicant: Mr SD Taylor of Taylor David Lawyers Solicitor for the Respondent: Ms K Rae of Bridges Lawyers ORDERS
NSD 83 of 2017 IN THE MATTER OF THE BANKRUPT ESTATE OF NATHAN LESLIE TINKLER
BETWEEN: NATHAN LESLIE TINKLER
Applicant
AND: JOHN MELLUISH AS THE TRUSTEE OF THE BANKRUPT ESTATE OF NATHAN LESLIE TINKLER
Respondent
JUDGE:
NICHOLAS J
DATE OF ORDER:
14 JULY 2017
THE COURT ORDERS THAT:
1.The respondent’s costs of the proceeding form part of the respondent’s costs and expenses of the administration of the applicant’s bankrupt estate.
2.There be no other order as to costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
NICHOLAS J:
On 3 February 2017 I made orders in this matter (inter alia) setting aside the respondent’s decision of 20 January 2017 refusing the applicant consent to travel to the United States of America (see Tinkler v Melluish (Trustee); in the matter of Tinkler (Bankrupt) [2017] FCA 52). It is now necessary to deal with the costs of the application.
The applicant submitted that costs should follow the event though he does not seek the costs of the application for abridgment of time made on 25 January 2017. In short, the applicant says that the application for relief was necessary and that it was successful. He says that the respondent’s arguments opposing the application were all rejected by the Court.
The respondent says that the appropriate order is that the applicant pay the respondent’s costs or, in the alternative, that the respondent’s costs of this proceeding form part of the respondent’s costs and expenses of the administration of the applicant’s bankrupt estate.
The respondent submitted that the “Request for Permission to Travel Overseas Whilst Bankrupt” submitted by the applicant on 13 January 2017 was inadequate to permit the respondent to make a determination as to the request. He says that the applicant was given an opportunity to provide further information in support of his request which the applicant elected not to provide.
The respondent rejected the applicant’s request by letter dated 20 January 2017 but indicated he would reconsider the request if further particulars and information were provided. On 23 January 2017 the respondent had a further conversation with a representative of the solicitors for the applicant in which he again outlined the information that was required in order for him to consider the request. The applicant commenced this proceeding on 24 January 2017 seeking, inter alia, a review of the decision to refuse the request.
I accept that the applicant failed to disclose information directly relevant to his request until after the commencement of the proceeding. He did not disclose the existence of a job interview in New York to the respondent or any detailed information regarding the applicant’s specific travel plans or how the travel would be funded. This information was first provided either in the applicant’s affidavit evidence or during his cross-examination. Further, the applicant was required to give certain undertakings (in addition to those which he initially proffered) prior to the relevant orders being made.
The circumstances of the case are unusual. The applicant ultimately obtained permission to travel overseas but the disclosures he made in support of his original request were in my view inadequate. He also sought to press first the respondent and then the Court to deal with his travel request on an urgent basis in circumstances that appeared to me to be quite contrived.
In my view the respondent’s refusal to grant the applicant permission to travel on the basis of the information provided to the respondent prior to the commencement of the hearing was justified. Of course, that is not to say that I think the respondent would have given the relevant permission if the applicant had provided further information earlier than he did. Subsequent events suggest otherwise. The respondent continued to oppose the application up to and including final submissions in which he argued for the imposition of various conditions that I refused to impose.
In the circumstances, I do not think it would be appropriate to deal with costs on the basis that they should follow the event. On the other hand, given that the respondent persisted in his opposition to the application up until its final determination, I do not believe it would be appropriate to order that the applicant pay the respondent’s costs.
In my view the appropriate cost orders are as follows:
·The respondent’s costs of the proceeding form part of the respondent’s costs and expenses of the administration of the applicant’s bankrupt estate.
·There will be no other order as to costs.
There will be orders accordingly.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas. Associate:
Dated: 14 July 2017
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