REASONS FOR JUDGMENT
1 Section 272 of the Bankruptcy Act 1966 (Cth) (Bankruptcy Act) provides, materially:
A person who:
…
(1) (c) after he or she has become a bankrupt and before he or she is discharged from the bankruptcy, without the consent in writing of the trustee of his or her estate, leaves Australia or does an act preparatory to leaving Australia;
is guilty of an offence and is punishable, on conviction …. by imprisonment for a period not exceeding 3 years.
…
(2) The trustee may impose written conditions on a consent given for the purposes of paragraph (1)(c). If the bankrupt is liable to make a contribution to the trustee under section 139P or 139Q, the conditions may include conditions regarding the payment of that contribution.
(3) If the bankrupt contravenes any condition imposed by the trustee, the bankrupt is guilty of an offence and is punishable, on conviction, by imprisonment for a period not exceeding 1 year.
2 Mr Edmund Stuart Groves is a bankrupt. He became a bankrupt by order of the Federal Magistrates Court (now the Federal Circuit Court of Australia) (Federal Magistrates Court) made on 29 January 2013. That court's order specified that the date of the act of bankruptcy upon which the order was made was 14 September 2012. Messrs Scott and Robinson of PPB Advisory were appointed by the Federal Magistrates Court as the joint and several trustees of Mr Groves' bankrupt estate.
3 Mr Groves was then overseas. Earlier this year, and whilst still overseas, Mr Groves sought the consent of his trustees to leave Australia. In effect, he sought such consent in advance of his proposed journey to Australia for the purpose of giving evidence in two court proceedings. It will be necessary a little later in these reasons to refer in more detail both to those proceedings and to events which have transpired since Mr Groves first sought that permission.
4 For the moment it is necessary merely to record that, initially, Mr Groves' trustees took the view that it was neither possible nor appropriate for consent to be given while he was overseas. Later, and in response to the initiation of proceedings in this Court, they came to take the view that consent ought to be given but only on particular terms and terms which Mr Groves does not regard as reasonable.
5 The first of the trustees' decisions was conveyed by a letter sent to Mr Groves care of a Mr Pearce on 24 April 2013. That letter stated:
Section 272 of the Bankruptcy Act applies to a bankrupt leaving or doing an act preparatory to leaving Australia. You do not need permission to enter Australia.
It is not appropriate to consider an application to leave Australia until you are in Australia. I note that you will be required to attend a Public Examination in order to assist with the administration of your bankrupt estate.
The Passport Alert will not be removed. It does not prevent you from entering Australia.
6 That elicited an application to this Court for the review of the trustees' decision or alternatively, so it was put, failure to make a decision. In turn, the trustees, after an exchange of correspondence and while the review proceeding was extant, came to send a further letter, one of 30 April 2013, this time to solicitors acting on behalf of Mr Groves. It was in that letter that particular conditions were specified and for the first time allegations were made by the trustees as to what was said to be a lack of cooperation on the part of Mr Groves with them.
7 The parties have adopted what seems to me to be the quite sensible, pragmatic and, it must be said also, lawfully possible position of treating the present application as one which extends to the trustees' further decision, if it be that, of 30 April 2013. For that reason it is not necessary to dwell upon whether, viewed severally, the decision of 24 April 2013 should be regarded as one amenable to review, or for that matter, whether in that review the issues raised in the trustees' further letter of 30 April 2013 should be regarded as a separate decision or nonetheless relevant considerations in respect of the review of the decision of 24 April 2013.
8 The long and the short of it is that the Court is seized with an application for the review of a decision by the trustees only to consent to Mr Groves' departure from Australia on terms more particularly related in the letter of 30 April 2013.
9 Before turning in detail to those conditions and to other background facts, it is first necessary to set out some principles which attend an application for review of this nature.
10 The root authority is Re Tyndall (1977) 30 FLR 6, (Deane J). As to the provision which confers the jurisdiction to review trustees' decisions, s 178 of the Bankruptcy Act, his Honour concluded that the Court's jurisdiction was one of the widest possible discretion and not confined only to interfering with a trustee's act, omission or decision if the Court concluded that the trustee had acted absurdly, unreasonably or in bad faith. More particularly, and in the context of a consent by a trustee to leave Australia, Deane J's conclusion was that travel restrictions found in the Act were to be regarded as having the purpose of ensuring the proper administration of Australia's bankruptcy law and of bankrupt estates pursuant to that law. They were not in the nature of a penalty imposed upon a bankrupt by virtue of an inability to pay debts which had resulted in that person's bankruptcy. His Honour stated (at p 15):
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 to do so. Restrictions upon such 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.
11 One finds in some cases concerned with the review of trustees' decisions with respect to overseas travel consideration of proposals for employment overseas and, in turn, whether that would be in the interests of the administration of a bankrupt estate. It is trite to state that each case must be measured by reference to its peculiar facts. Further and more fundamentally, it is to be remembered that it is also a feature of our bankruptcy law that, in return for the forfeiture of property divisible amongst creditors and, these days, also in return for liability in ways for which the Act provides to make income contributions to the estate, bankruptcy frees a person from earlier liabilities and enables a person, initially subject to restrictions for which the Bankruptcy Act provides then, after discharge, more freely, to get on with business and personal life subject, enduringly of course, to the stigma, and it should be regarded as that, of having been a bankrupt.
12 The Bankruptcy Act, then, has the feature of enabling, subject to detailed provision for the administration of a bankrupt's estate and for division of property amongst a bankrupt's creditors and for the making in certain circumstances of an income contribution by a bankrupt to the estate, a fresh start by the bankrupt. It is just such a fresh start which forms the essence of Mr Groves' desires and also those of his wife, Ms Viryan Collins-Rubie. There are humane as well as commercial considerations to be taken into account in decisions of this kind for the reasons which I have just mentioned.
13 In Re Molina ex parte Wily [1995] FCA 1057, Tamberlin J made the point on p 5 that:
…, s 272(c) of the Act does not impose any specific constraints on the discretion of the trustee when deciding whether to consent to a bankrupt leaving Australia where the bankrupt is not liable to make a contribution. It is an open discretion but it must be exercised judicially and on grounds which can reasonably be considered relevant to such a decision as gleaned from a consideration of the Act.
[emphasis in original]
14 And then at p 6:
In contrast, where a bankrupt is liable to pay a relevant contribution, the Act is more stringent and requires that the Court itself must make an order granting permission for the bankrupt to leave the country before he can depart. It is not a matter simply for the trustee. The discretion is much narrower. The Court is prohibited, under s 139ZU, from granting permission in such a case unless it is satisfied that it is necessary for the bankrupt to leave Australia in order to continue to derive income or, that it is appropriate for compassionate reasons relating to death or serious illness of a close relative of the bankrupt to allow the bankrupt to leave Australia. Moreover, if any payments in respect of the contribution will fall due before the bankrupt proposes to return to Australia, the Court must be satisfied that those payments have been made or that appropriate arrangements to ensure the making of those payments have been made.
[emphasis in original]
15 Mr Groves is not subject to the strictures found in s 139ZU. It is necessary firmly to bear that in mind when considering his review application.
16 Lurking in the background, for judicial officers anyway, of applications of this kind is, at least in my case, the rhetorical question, "Will this be another Skase case? Will this be a case where a person subject to Australian insolvency laws defies those laws and chooses, perhaps in luxury, perhaps not, to live the life of a fugitive?" Skase was not a case which came up in this Court under the Bankruptcy Act, see: Australian Securities Commission v Christopher Charles Skase (unreported, Pincus J, 30 May 1991) (Skase). Rather, it was an application by the Australian Securities Commission, as the Australian Securities and Investment Commission was then known, under the provisions of the then s 573 of the Companies Code.
17 At the time when the Commission made its application in respect of Mr Skase, an application determined on 30 May 1991, he was then resident in Spain. The purpose of the Commission's application was to continue an order which had been made for the delivering up of Mr Skase's passport and, further, to continue an order prohibiting him from leaving Australia without the Court's consent. He had earlier left with permission. That permission was granted against the background of the spectacular insolvency towards the end of 1989 of a group of companies known as the Quintex Group. That group, as the Court's judgment records, at para 5, was to a considerable extent under the control of Mr Skase. Shortly before the corporate collapse there were some transactions which, as the Court noted also on p 2:
… would tend to give rise to a suspicion that an attempt was being made by [Mr Skase] to get rid of assets. It has been proved that as at the end of September 1989, shortly before the receivership of the Quintex Group, there was a substantial amount of money paid to discharge the liability on a Rolls Royce motor car given to a stepdaughter of [Mr Skase]. Apparently two such cars were given, and they were, shortly after the making of the gifts, shipped overseas.
To continue with the recitation of background facts in Skase on p 3:
In May 1990, a London property was transferred to Alexandra, a stepdaughter of [Mr Skase]. That is said to be worth over £200,000 and (without going into considerable detail) there is some reason to suspect that precautions were taken by [Mr Skase] against the possibility of his bankruptcy. In September 1990 a suit was instituted, in a sum in excess of a third of a million dollars against [Mr Skase]. In the same month [Mr Skase] failed to appear before Wylie D.C.J. in respect of a certain investigation. About the same time, [Mr Skase's] solicitor gave evidence which explained his difficulties in contacting [Mr Skase]. The solicitor did not, apparently, then have any contact telephone number and relied upon communications through [Mr Skase's] secretary and upon [Mr Skase's] telephoning the solicitor; it was then admitted that [Mr Skase] was at times hard to contact.
In November 1990, there was service of process on [Mr Skase] at a Magistrates Court hearing and some attempt, it appears, at evasion of that service. In December 1990, judgment was obtained by a bank in a sum of about $1.5M. against [Mr Skase]. The solicitor who acted for the bank in that matter has made an affidavit explaining that the solicitors for [Mr Skase] did not respond to facsimiles inquiring after [Mr Skase's] address. As it seems to me, it is [Mr Skase's] having made difficulties and (on the face of it) attempting to conceal his address, which has been, partly at least, the cause of this application's having been brought.
18 As I have already observed, these cases are necessarily factually specific. Having regard to some of the facts I am about to relate, some might see a degree of factual correspondence or at least an analogy in some circumstances pertaining to Mr Groves but there are very real differences. Further, the task of reviewing the trustees' decision is not one of comparing and contrasting it with circumstances arising under another Act in respect of another individual. The review must be conducted against the background of a decision in respect of Mr Groves and the background facts as they are revealed on the evidence presently to hand, which is much different to that which was before the trustees when the decisions of 24 April 2013 and of 30 April 2013 were made.
19 The biggest difference, and it is an eloquent one indeed for me, is that Mr Groves is physically present in Australia and was so at the time when his application finally came to be heard in court. Further, Mr Groves came to Australia at a time when, necessarily, he knew that his trustees were actively opposing his being given consent to leave Australia other than on terms which Mr Groves regarded as unreasonable. At the time when he came to Australia, he was under no obligation to come here. There was no date fixed for his public examination; much less had he been served with any summons under the Act to attend for public examination. Further, on the evidence, he came here for the purpose expressly of giving evidence in two court proceedings and, as it transpired, this proceeding also.
20 He was not subject to a subpoena from either the Supreme Court of Queensland, the Supreme Court of New South Wales, or for that matter this Court. He truly did come voluntarily and as I have stated, full in the knowledge that he may not have permission to leave. He necessarily knew that because, though this proceeding had been commenced prior to his departure for Australia, it had not been concluded in its hearing. Further, in the course of an adjournment of the hearing, opportunity was availed of by his solicitors to communicate with him in relation to hearing arrangements. I do not see that as the act of a man who is dismissive of his status as a bankrupt and of all the obligations entailed in that. There are other indications on the evidence of that attitude.
21 Mr Groves was made bankrupt, as I have stated, on 29 January 2013, while then overseas. That very day, and upon Mr Groves' express instructions, an Australian resident representative, Mr Pearce, who was (and remains) an accountant, expressly retained in advance by Mr Groves, made contact with the newly-appointed bankruptcy trustees. The day following, facilitated by Mr Pearce, a lengthy telephone conference occurred between one of the trustees, Mr Scott, Mr Pearce and Mr Groves. As a sequel to that, and as a necessary consequence of bankruptcy, the trustees sent to Mr Groves a statement of affairs for completion.
22 It is to be recalled in relation to that statement of affairs that it was completed by Mr Groves whilst he was abroad. I take that into account in terms of what is, undoubtedly, a degree of generality in some of the answers given. It is of course the case that modern communications greatly facilitate the communication of information across vast distances, and rapidly. Nonetheless, the statement of affairs was completed by Mr Groves necessarily without the benefit physically of being able to sit down with his chosen accounting expert, Mr Pearce. Further, and though perhaps surprisingly, the evidence in this regard is lacking in detail, it is necessary to record that Mr Groves' financial affairs were not uncomplicated. He was, as he related in his evidence, a director at one time of some hundreds of companies. Further, and again though the evidence was perhaps surprisingly somewhat sparse, he was a director of companies in the ABC Child Care Group which collapsed spectacularly some years ago.
23 Mr Groves sent back his statement of affairs to his trustees on 12 February 2013. There was a follow-up inquiry of him by way of a questionnaire from his trustees under s 77 of the Act. This, too, on the evidence was the subject of a prompt response by him, again via Mr Pearce.
24 Being overseas at the time Mr Groves could, if he was so disposed, just have treated Australia and his bankruptcy as a rather unpleasant memory from the very moment of his sequestration up to and including his evidence in this Court last week. I do not regard him as having done that. He has quite literally acted in ways that do not admit of any such conclusion.
25 In his affidavit, Mr Scott, at para 54 through to and including para 75, has set out the particular conduct which he says amounts to a failure on the part of Mr Groves to cooperate, having regard to answers given in the statement of affairs and to other evidence which is investigations to date have disclosed. These might be summarised as follows:
the payment on or about 14 September 2012 of the sum of $475,000 to Kanbeki Proprietary Limited (Kanbeki) of which Mr Groves' wife is director;
an alleged gift of what are described as the Poinsettia properties, having a value in all, so it is said, of some $3.4 million;
an alleged failure to provide information concerning various trusts;
an alleged failure to provide information concerning the Castle Development Group LLC;
an alleged failure to disclose the disposition of certain vessels and motor vehicles.
26 To each of these Mr Groves has, in turn, by affidavit made detailed reply. While his reply is not, in itself, a complete answer, it seems to me that particular dispositions which, at an early stage of investigation might give rise for concern, may well not be all that they seem in terms of giving rise to voidable dispositions. Each of the matters which I have mentioned are undoubtedly ones which might properly form the basis for further inquiry of Mr Groves, either informally or pursuant to s 77 or on public examination. The impression with which I was left was that Mr Groves was able to provide further information and was quite willing so to do in respect of these subjects.
27 Further, though understandably - because it must be remembered that these are transactions about which necessarily a trustee must know nothing at the time of appointment and must endeavour to understand the same with a view to gathering in the property of the bankrupt so as to divide it amongst creditors - the trustees' views were necessarily tentative. It is all too easy for suspicion to arise in circumstances where one's information base is limited and, for that matter, all too easy to be suspicious about those who are suspicious when one's information base is not limited in that way (or at least can be not limited if one has ready access to documents which have been under one's control). I put it this way on the basis that I do not consider in any way that the trustees have acted in bad faith or for that matter that Mr Groves has. It is just that in respect of the matters which I have mentioned they have approached each from different perspectives. I do not detect, as I have stated, any disposition on the part of Mr Groves to do anything other than to enhance as best he can his bankruptcy trustees' information base in respect of these matters.
28 It is necessary now to say something further about Mr Groves' and his wife's plans for the future and to their present circumstances. Ms Collins-Rubie is a successful businesswoman in her own right. She has interests in two English language colleges in Australia, situated on the Gold Coast. These, on the evidence, are profitable undertakings, profitable to the extent where, even to Mr Groves' recollection, she is able to derive an income of some $230,000 annually. It may be that this income is greater than that. It may be also that, with a little more inquiry, Mr Groves may have been able to establish a precise figure for his wife's income than the one specified in his statement of affairs. It seems to me that he was going upon a recollection made while overseas and, inferentially, discussion with his wife.
29 It is to be remembered in respect of persons in business, as opposed to wage and salary earners, that it can sometimes be difficult to predict from year to year what one's annual income is to be. Further, it is not, in respect of spouses in business or a profession at all unusual, at least in my experience, for the other spouse not to be completely familiar with the exact amount of a spouse's income. One is left merely with the impression that there is a good income there. What does flow from the knowledge that Mr Groves' wife has a good income is that it is readily explicable how it is that he came to Australia on a business class airfare. His wife was, undoubtedly, well able to afford the same and her evidence is that she paid for that.
30 The evidence discloses that Mr Groves and his wife have followed what one might describe as a peripatetic existence internationally over the last eight months or so. That has entailed (before bankruptcy) two return visits to Australia. One of these, notably, was so that Mr Groves might attend one of his children's graduations. The very strong impression which I have on the evidence is that Mr Groves is close to his children. Each of his children are Australian residents. They are each young adults. Whilst they are, of course, free to move abroad themselves, there is nothing on the evidence which suggests any plan on the part of each of them so to do. Mr Groves' wife, Viryan, is an Australian citizen. She has property herself on the Gold Coast. That is where Mr Groves proposes to live, or at least base himself, whilst he is in Australia.
31 Mr Groves holds a Canadian passport. He has never held an Australian passport although, necessarily, given his length of residence here, he must have secured rights of permanent residence. Given Mr Groves' ties with his children, I doubt very much whether he would wish to live the life of a fugitive from Australia's insolvency and criminal laws.
32 Of the two Supreme Court proceedings, one, as I have mentioned, is in the Queensland Supreme Court. The plaintiff in that proceeding is Mr Groves' former wife, Dr Le Neve Groves. Mr Groves is a defendant in those proceedings but the effect of his bankruptcy was, so far as he was concerned, to stay those proceedings against him and to render such claim as Dr Groves had against him to be nothing more and nothing less than a debt provable in his bankruptcy. There are other defendants in that proceeding. In a purely financial sense, bankruptcy put an end to Mr Groves' personal liability as far as the Queensland Supreme Court proceeding is concerned. He is, though, nonetheless volunteering to give evidence in the proceeding. Having regard to the issues on the pleadings in that case, which very much concern inter-relationships between Dr Le Neve Groves and Mr Groves, there may well be deeply personal reasons why he would wish nonetheless to give evidence. For all that, in a financial sense, for the reason which I have given, the case is no longer a threat to him.
33 The position so far as the New South Wales Supreme Court proceeding is concerned is even more remote from Mr Groves. He is not a party to that proceeding at all. Rather, on the evidence, the purpose of his giving evidence in that proceeding is so as to assist the insurers of the ABC group of companies who are, inferentially, standing behind a party to that proceeding. That, too, is eloquent in relation to Mr Groves' attitude to insolvency laws. He is disposed to attend voluntarily to assist an insurer of the company of which he was once director.
34 Mr Groves and his wife have plans to establish an English language college in Vancouver in Canada. Canada, of course, is a place where Mr Groves is entitled as of right as a Canadian citizen to live. Ms Collins-Rubie is, on the evidence, well-experienced in the conduct of just such a business. Their plans in that regard are necessarily at an aspirational stage, necessarily because of the uncertainty which hangs over whether Mr Groves would be able to live abroad. Both Mr Groves and his wife have been quite frank, in my view, as to their intention to set up permanent residence in Vancouver for that purpose. The Act does not forbid a bankrupt from living abroad and, it must be said, from living abroad permanently. Rather, what it requires is a consent informed by whether that will or will not assist in the administration of the estate.
35 It was doubtless open to Parliament, scarified by the Australia experience with respect to Mr Skase perhaps, to change our Bankruptcy Act. Skase, as I have mentioned, was a case that came up under our Corporations Law, but one might have thought if there were to be a concern concerning the limits of Australian sovereignty in relation to insolvency, that it would have resonated generally across corporations as well as bankruptcy laws. Instead, s 272 in its present form remains in the form in which it was materially at the time of Skase's case, subject only to the revision in respect of income contribution requirements. These, as I have said, are not material to Mr Groves.
36 Mr Groves has undertaken to return to Australia for the purpose of his public examination. His wife has undertaken to meet the cost of his so doing.
37 Impressions in the witness box are, of course, fleeting. Nonetheless, I thought each was quite genuine in giving their respective undertakings. Ms Collins-Rubie in particular, I thought, was under quite some emotional strain when she gave that undertaking and was well and truly conscious of its seriousness. I do not doubt that the consequence of the collapse of the ABC Group and Mr Groves' subsequent, personal bankruptcy have placed very particular strains on each of them. That they are still husband and wife, proposing to make a fresh start, attests to me not just the strength of a personal relationship but also give a degree of confidence with which I can act upon Ms Collins-Rubie's undertaking to fund her husband's return.
38 It is desirable, in my view, that Mr Groves and his wife know the date upon which any public examination of him will commence, prior to any departure from Australia. I therefore propose to direct the registrar to fix dates in that regard forthwith, after consultation with the trustees and Mr Groves and their respective representatives. As to dates, the trustees' initial view was that a public examination would not be possible until September. They have, on reflection, revised that to August. It does not at all surprise me in relation to an insolvency of some $23 million, against the background of a spectacular corporate collapse with many different directorships on the part of a bankrupt and doubtless many transactions, that trustees would need such time to investigate and make best use of a public examination. I envisage that the summons for the examination will be served on Mr Groves prior to any departure from Australia.
39 The question becomes should there be a departure before that examination or for that matter at all. Some might say it is not terribly long until August but it is a very long time indeed to be cooling one's heels in Australia when the alternative is an ability to commence future planning in a more concrete way in Canada. Mr Groves is proposed to be an employee of the English language college. The role which he can play would doubtless be limited by an Australian bankruptcy, if only in a practical way. Nonetheless, I can well understand why it is that Ms Collins-Rubie would wish to have the assistance of her husband.
40 It is put on behalf of the trustees that Mr Groves is a flight risk, in other words, that there is a risk of his becoming a fugitive from compliance with Australian insolvency laws, including, in particular, requirements to cooperate with his trustees and to attend for public examination.
41 It is said by some that the only certainties in life are death and taxes. Even the latter for some is perhaps not a certainty. It would be foolish therefore to conclude that there is no risk in relation to flight by Mr Groves. Further, at the time when the trustees formed their view, Mr Groves was not in Australia. There may be a risk but, at the risk of hindsight proving otherwise, I regard it as an acceptable risk.
42 The question then becomes whether or not to impose conditions, either of the kind promoted by the trustees or at all. The conditions promoted by the trustees were twelvefold, namely:
1. the bankrupt cooperate with the trustees during his time in Australia including attending a meeting with the trustees in their Sydney office on 4 June 2013 at 11 am;
2. the bankrupt undertake to return to Australia at any time in the future at the request of the trustees made on not less than 28 days notice and agrees to pay for all travel expenses and out of pocket expenses incurred in regard to any future attendances that may be required of the bankrupt in Australia;
3. the bankrupt provide four copies of airline tickets to and from Australia not later than 14 days before his anticipated departure date;
4. the bankrupt advise the source of funds for the travel to Australia, including copies of bank account statements and electronic transfer documentation evidencing the source of funds paid and received for the purpose of acquiring the airline tickets;
5. the bankrupt provides a detailed copy of his itinerary during his time in Australia including details of all flights booked, accommodation and all telecommunication addresses that he proposes to use during that period;
6. the bankrupt delivers his passport to the trustees for the duration of his stay in Australia;
7. the bankrupt advises the source of funds which the bankrupt proposes to use during the duration of his stay in Australia;
8. the bankrupt is to provide the trustees with reasonable notice before he intends to leave Australia so that the trustee can amend the passport alert allowing travel from Australia back to Canada. The trustees are prepared to be flexible on what constitutes reasonable notice;
9. the bankrupt undertakes to notify the trustees of any change of his residential address and telecommunication addresses within five business days of any change;
10. the bankrupt completes income contribution questionnaires and pays any assessed contributions;
11. as further security, the bankrupt provides to the trustees appropriate security in the amount of $AU500,000;
12. the trustees may revoke their consent by email address to an email account nominated by the bankrupt if there is any material breach by the bankrupt of any of the above conditions.
43 Those conditions were formulated in the trustees' letter of 30 April 2013, which was sent prior to Mr Groves coming to Australia. Obviously enough, not all of those conditions are now well adapted to Mr Groves being present in Australia. Of particular concern to Mr Groves was the security requirement. It is, of course, a little odd to impose upon a bankrupt a requirement to provide security, unless one recalls that, at the time, the trustees had a view about a particular disposition in relation to Kanbeki. Further, the trustees' fixing of an amount was informed by the costs that would attend the estate in endeavours abroad to secure assistance for Mr Groves' forced return in the event that he did not return voluntarily.
44 I can well understand why, having regard to the information then to hand, the trustees were of the view that a security of that amount was required. It is to be borne in mind as well that the trustees were not aware, or at least had not reflected upon, an ability on the part of Mr Groves' wife to fund overseas travel of which they were aware.
45 I have reflected long and hard upon whether some form of security ought to be imposed, perhaps by way of a performance bond, perhaps by way of a charging of property by Mr Groves' wife, which would then be forfeited in the event of a failure on the part of her husband to return. In the end and informed by a view which I have reached concerning Mr Groves and his wife, I have decided that it would not be appropriate to condition any consent as to departure upon the giving of a security. If, truly, there is a disposition to flee, then the amount of a security cast either in the sum mentioned by the trustees or perhaps in some lesser sum robustly calculated by reference to a cost of an application to a foreign court, might just be regarded as a price worth paying on the part of Mr Groves and his wife, if, indeed, there are more substantial assets sequestered abroad.
46 The end result then is that I am persuaded that there is good reason to overturn the trustees' decisions. In a sense, that persuasion arises from an overtaking of events, ie, Mr Groves physical presence, even though he knew he might not be able to leave, but the bases for that were already there prior to his coming to Australia. It is just that his physical presence here has confirmed what seems to me to be a disposition not to ignore Australian insolvency law.
47 The orders then that I propose to make are these:
1. The trustees' decisions of 24 and 30 April are set aside;
2. The trustees' are directed to consent to Mr Groves leaving Australia subject to the following conditions:
(i) Whilst in Australia Mr Groves cooperate with his trustees including attending a meeting with them at their Sydney office on 4 June 2013 at 11 am or such other place and time as might reasonably be fixed by the trustees after consultation with Mr Groves;
(ii) Mr Groves furnish to his trustees an undertaking signed by him to return to Australia at any time in the future at the request of his trustees made on not less than 28 days notice;
(iii) Ms Collins-Rubie furnish to the trustees a signed undertaking to meet the costs of Mr Groves' return airfares to Australia for that purpose and living expenses in Australia;
(iv) Mr Groves furnish four copies of airline tickets to and from Australia for the purpose of attending in response to any such requests made by the trustees not later than 14 days prior to the departure date for Australia as specified in the airline tickets;
(v) Mr Groves advise his trustees of the source or sources of funds for any such travel to Australia including any copy of electronic transfer or other payment documentation and of the bank account details used for the acquiring of such air travel;
(vi) Mr Groves notify the trustee of his residential address abroad and continue to notify the trustee of any change in that residential address;
(vii) Mr Groves maintain email and telephone addresses and numbers whilst abroad for the purpose of being contacted by his trustees and notify his trustees of any change in those address and numbers;
(viii) Mr Groves maintain in Australia an address for the services of notices upon him, either at a solicitor's office or at an accountant's office and notify his trustees of that address for service prior to his departing Australia;
(ix) Mr Groves accept service prior to his departure from Australia for his public examination if the trustees make application for his public examination;
(x) Mr Groves notify his trustees of his residential address, telephone number and email address whilst in Australia and of any change thereof within five business days of any change;
(xi) That he complete prior to departing Australia income questionnaires and pay any assessed income contributions prior to departing Australia.
48 Application has been made on the part of Mr Groves for an order for costs. The application was made in a way which recognised that there had been an evolving factual situation which confronted the trustees which, in turn, may have, so it was submitted, ramifications for whether costs would completely follow the event. The discretion as to costs is of course a general one, although one which must be exercised judicially, informed by the usual way in which the discretion is exercised, which is that costs follow the event. On behalf of the trustees, it was submitted also that there have been an evolving situation which made the trustees' position very difficult indeed.
49 The view that I have reached is that the end result was very much influenced by the evidence which Mr Groves came to give by affidavit and then by oral evidence, and the same in respect of his wife. The oral evidence components necessarily could not have been known to the trustees in advance of the commencement of the hearing but the affidavit evidence was. It is not necessary to, nor would it be appropriate, to reach any conclusion as to what might have been the fate of the application if, indeed, it had been heard whilst Mr Groves was abroad and perhaps subject to his being examined by telephone or video link from abroad, with the same applying to his wife.
50 The job of a trustee is difficult and onerous and requires the making of value judgments. It is to trustees, who are officers of courts exercising jurisdiction in bankruptcy, that day-to-day administration of estates is conferred. It is important that courts not second-guess trustees. There is, though, a review jurisdiction to be exercised and Mr Groves was perfectly entitled to engage that jurisdiction. The result of his engaging that jurisdiction is that I have set aside the trustees' decisions. I have done that though against a factual foundation different to that which confronted the trustees. Some of that factual foundation was nonetheless, revealed to the trustees by the time the hearing commenced. That then factual foundation did give cause for thought and ought, in my view, to have given cause for thought, about whether to press the case to hearing.
51 Given that, the view that I have reached is that Mr Groves ought to have his costs of the hearing of the review application on Thursday and Friday of last week and of attendance for judgment, but nothing more. That, in my view, will give due recognition to the change in the information base but also to a persistence on the part of the trustees in resisting the review application.
52 It is not part of my intention in awarding costs that the trustees be denied an indemnity from the funds under their administration in respect of costs. Further, and this needs to be made explicit, I do not wish it to be a sequel to the costs order that there be any element of triumphalism on the one part with Mr Groves or a disposition to find fault in the future on the part of the trustees. It is my earnest hope that the outcome will, on the one part, see a continuation of a disposition to cooperate by Mr Groves and, on the other part, a disposition by the trustees to act reasonably in the interests of the administration of his bankrupt estate. There will be orders accordingly.
I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.