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Tyndall, in the matter of

Tyndall, in the matter of

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Case Copied 17 October 1977 21 min read

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Re TYNDALL (1977) 30 FLR 6
Bankruptcy

COURT

FEDERAL COURT OF AUSTRALIA

GENERAL DIVISION
Deane J.(1)

CATCHWORDS

Bankruptcy - Refusal of official receiver to allow bankrupt to travel overseas - Appeal against refusal - Considerations applicable on appeal - Bankruptcy Act 1966, ss. 77, 178, 272.

HEADNOTE

The applicant, a bankrupt, delivered his passport to the official receiver, as trustee of his estate, after the making of the sequestration order against his estate, as required by s. 77 of the Bankruptcy Act 1966. Later, the applicant sought permission from the official receiver to travel overseas on business assignments. The official receiver refused permission, and the applicant appealed to the Federal Court against the refusal, pursuant to s. 178 of the Act, which provides as follows: "If the bankrupt, a creditor or any other person is affected by an 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".

Held: (1) Section 178 of the Act confers the widest possible discretion as to the appropriate order in an application pursuant to the section, and the court is not confined to interfering with the trustee's act, omission or decision only if it is of the view that the trustee has acted absurdly or unreasonably or in bad faith.

Re Peters; Ex parte Lloyd (1882), 47 LT 64; Re A Debtor; Ex parte The Debtor v. Dodwell, (1949) Ch 236; Leon v. York-o-Matic Ltd., (1966) 1 WLR 1450; Re Carson; Ex parte Carson (1960), 19 ABC 108; Re Hall (1957), 20 ABC 21, referred to.

(2) Restrictions on travel under the bankruptcy legislation must be seen as being aimed at ensuring 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.

(3) On the facts, the application should be dismissed.

HEARING

Sydney, 1977, October 17. #DATE 17:10:1977

APPLICATION.

The material facts appear from the judgment.

A. M. Quirk, for the applicant.

P. D. Urquhart, for the official receiver.

Cur. adv. vult.

JUDGE1

October 17.

The following judgment was delivered.

DEANE J. The applicant, Theodore Valentine De Vere Tyndall, is a bankrupt. Pursuant to the provisions of the Bankruptcy Act 1966 ("the Act"), a sequestration order was made in respect of his estate on 13th April, 1976. The official receiver became, by virtue of the provisions of s. 160 of the Act, and has remained, the trustee of the applicant's bankrupt estate. Subsequent to the making of the sequestration order, the applicant, as required by the provisions of s. 77 (a) of the Act, delivered his current passport to the official receiver. As a result of the making of the sequestration order the applicant was, by reason of the provisions of s. 272 of the Act, constrained, under a maximum penalty of imprisonment for twelve…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1977] FCA 71
Decision Date: 17 OCTOBER 1977

CaseChat Overview and Summary

The case of Tyndall, in the matter of, involves an appeal against the decision of the official receiver to deny the bankrupt, Tyndall, permission to travel overseas. The dispute was heard in the Federal Circuit Court of Australia. The primary issue before the court was whether the official receiver had correctly exercised their discretion under the Bankruptcy Act 1966 in refusing the bankrupt's application to travel overseas. This involved an examination of the relevant statutory provisions, specifically sections 77, 178, and 272, and the appropriate considerations that should guide the official receiver's decision-making process.

The court needed to determine whether the official receiver had acted lawfully and reasonably in denying the application, considering the potential impact on the estate and the interests of creditors. The bankrupt argued that the refusal was unjust and not supported by the evidence. The court considered the statutory criteria and case law relevant to the exercise of discretion by the official receiver. It assessed whether the official receiver had appropriately balanced the bankrupt's right to travel with the need to protect the interests of creditors and the estate.

The court found that the official receiver had not erred in their decision. The reasoning provided by the official receiver was consistent with the statutory framework and took into account the necessary factors, including the financial circumstances of the bankrupt and the potential effect of the travel on the administration of the estate. The court upheld the official receiver's decision, affirming that the refusal was within the proper exercise of discretion. Consequently, the appeal was dismissed.

No further orders were made beyond the dismissal of the appeal.

Orders