Nasr v Dixon

1. The applicant pay the respondent's costs in the amount of $2,282.50 within 28 days of this order. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THAWLEY J: 1 On 6 July 2018, orders were made requiring the joint trustees in bankruptcy of the applicant's estate to give consent to the applicant departing Australia: Nasr v Dixon (Trustee), in the matter of Nasr (Bankrupt) [2018] FCA 1039. 2 The orders made on 6 July 2018 were made on the basis of certain undertakings given by the applicant and the applicant's solicitor, Mr Arraj. One of the undertakings given by Mr Arraj was that he would pay the filing fee associated with the application. 3 On 9 July 2018, the Court wrote to Mr Arraj asking him to pay the filing fee and to provide to the Registry a written application to regularise the proceedings. No response was received to this request. 4 On 13 July 2018, my Associate wrote to Mr Arraj indicating that an application should be provided to the Registry as had been requested and requiring that the filing fee be paid by no later than 16 July 2018, failing which the matter would be listed for a case management hearing on 17 July 2018. 5 Although the filing fee was paid on 13 July 2018, no application was provided to the Registry. It was, accordingly, necessary to hold a case management hearing on 17 July 2018. At that case management hearing, an order was made requiring the applicant to provide the application to the Registry by 19 July 2018, which subsequently occurred. Additional orders were made for the filing of submissions in respect of costs, to be determined on the papers. 6 The applicant's position was that the respondent (trustees) should pay the costs of 6 July 2018 on an indemnity basis. This was based on what was described as "the Respondent [sic] and their solicitor's misconduct and neglect". 7 The trustees' position was that the costs of 6 July 2018, the costs of the case management hearing on 17 July 2018 and the costs of the submissions in respect of costs should be paid on the ordinary basis in an amount calculated as follows: Attendance in Court on 6 July 2018 • Solicitor - $525.00 + GST = $577.50 • Counsel - $600.00 [+] GST = $660.00 Attendance in Court for case management hearing on 17 July 2018 • Solicitor - $450.00 + GST = $495.00 Preparation of submissions on costs - $500.00 + GST = $550.00 Total amount: $2282.50 8 For the reasons which follow, the applicant is to pay the respondent's costs in the amount of $2,282.50. 9 The applicant booked his travel to Lebanon on 20 July 2018. He was due to depart Sydney on 5 July 2018 but was prevented from boarding because he had not obtained the trustees' consent to leave Australia. Absent such consent, leaving Australia was an offence under s 272(1)(c) of the Bankruptcy Act 1966 (Cth), which provides: A person who: … (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; commits an offence and is punishable, on conviction, if the offence relates to the doing of a thing specified in paragraph (a) or (b), by imprisonment for a period not exceeding 5 years or, in any other case, by imprisonment for a period not exceeding 3 years. 10 The applicant had obtained, but not surrendered to the trustees, a new passport issued on 19 October 2016. 11 Having been prevented from departing Australia in the late evening of 5 July 2018, the applicant engaged a solicitor, Mr Arraj, to assist him. The applicant was provided with a deferral from his air carrier provided he could depart on the evening of 6 July 2018. 12 Mr Arraj contacted the respondent's solicitor at around 9 am on 6 July 2018 and sought the trustees consent to the applicant leaving Australia and indicated that, if consent was not given, an application would be made for urgent relief in this Court. 13 There was further communication between Mr Arraj and the representatives of the trustees over the course of the day which did not result in consent being provided. The applicant made the application to the Court shortly after 4 pm on 6 July 2018. 14 The necessity to make the application was almost entirely of the applicant's making. The applicant should have surrendered his new passport to the trustees: ss 77(1)(a)(ii) and 272(1)(c) of the Act. The applicant should not have booked, or given instructions to book, travel overseas without obtaining the consent of the trustees: s 272(1)(c) of the Act. The applicant should not have sought to leave Australia on 5 July 2018 without the trustees' consent. 15 There was no misconduct or neglect on the part of the trustees in declining to provide consent in the circumstances. Neither they, nor their solicitors, behaved otherwise than appropriately. 16 If the applicant had complied with his obligations under the Act and dealt appropriately and reasonably with the trustees it is unlikely that the application would have been necessary. 17 The applicant must bear the costs of the hearing on 6 July 2018, the case management hearing on 17 July 2018 and the trustees' submissions in respect of costs. The quantum of costs claimed by the trustees appears reasonable, assessed in both an itemised way and globally. Costs may be awarded in a lump sum under r 40.02(b) of the Federal Court Rules 2011 (Cth). 18 The applicant is to pay the respondents' costs in the amount of $2,282.50 within 28 days of this order. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Thawley.