Re Wheeler: Ex parte Wheeler v Halse

per Deane J, in Re Tyndall Ex parte Official Receiver (1977) 30 FLR 6 at 10-11. The sequestration order was made on 13 October 1993 when the trustee was appointed. The Statement of Affairs showed assets of nil and liabilities of $1,073,821. The evidence discloses that the bankrupt has not delivered any property to the trustee, nor has he paid any money to him in respect of the estate. After the sequestration order was made, the applicant, as required by s 77(a)(ii) of the Act, surrendered his passport to the trustee. The applicant was a certified practising accountant and previously ran his own practice, which included lodging taxation returns for his, mainly Spanish speaking, clients. He was a registered tax agent until his bankruptcy. In April 1995 Mr Molina informed the trustee that he wished to travel to Spain to attend to a family matter associated with his father's death and he wished the trustee to release his passport. The passport, in the custody of the trustee, had expired and the applicant said that he had applied for a new one. The trustee now holds both his passports. The trustee called a meeting of creditors to obtain their opinion on the matter. The two creditors present at the meeting opposed the motion that the applicant be permitted to travel overseas and the trustee declined to release his passport. The applicant then applied to the Federal Court for release of his passport on what are essentially compassionate grounds. The affidavit of the applicant, dated 1 May 1995, discloses that he attended a creditor's meeting at the office of the trustee. At that meeting there was present a representative of the Australian Taxation Office, which is owed in excess of $200,000. Two other creditors, and the State Bank of New South Wales and Norbev Pty Limited had given proxies to the trustee. After some discussion the creditors' vote was against the proposal. It was indicated in a telephone conversation that Norbev Pty Limited, which is owed in the order of $1,800, was not prepared to consent. The reason advanced by the bankrupt in his affidavit of 1 May 1995 for seeking the return of his passport was that his father died on 30 March 1995 and he had expressed a wish to have all his family present while his ashes were scattered over the Mediterranean Sea near his home town of Malaga. The sister of the bankrupt lives in Spain but was in Australia in April and early May 1995, as a result of the death of the bankrupt's father. The mother and sister of the bankrupt were due to fly out of Sydney on 2 May 1995. The applicant said he intended to return to Spain and to remain there for about 4 weeks and then return to Australia. He stated that he has no assets and was currently employed as an accountant earning $100 per day, working 3 days per week. The costs of the trip to Spain, it was said, would be met by his sister. Principles It is clear that the discretion of the Court on an appeal pursuant to s 178 is conferred in the widest terms and the Court may make such order as it thinks just and equitable. The appeal is conferred not only on the bankrupt or creditors but also in respect of any other person "affected" by any decision of the trustee. The exercise of appellate jurisdiction under s 178 is not limited to reviewing conduct of the trustee which is "performed absurdly, unreasonably or in bad faith" and the broad wording of the section is not to be read down by reference to any such implied restrictions. See Re Wheeler: Ex parte v Halse (1994) 54 FCR 166. Furthermore, 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.