Miao v Michell [2015] FCA 22

Miao v Michell [2015] FCA 22

Although the respondent's position was reasonable on the material before him, it amounted to a constructive refusal to consent to overseas travel. In the changed circumstances before the Court, the applicant had provided her residential address and Statement of Affairs, had given detailed evidence establishing genuine family reasons for a short trip, was likely to return for her appeal and was prepared to undertake to return on request, and the trip would not unduly impede administration of the estate. The trustee's decision was therefore set aside and consent to travel was directed subject to an undertaking and conditions.

Jurisdiction
Australia
Judgment Date
27 January 2015
Procedural Posture
Application for Review of a Trustee's Decision Under S 178 of the Bankruptcy Act 1966 (cth) Concerning Consent to Overseas Travel / Judgment on Application
Outcome
Application granted subject to undertaking and conditions; trustee's decision set aside.
Legal Topics
['review of Trustee Decision' "restriction on Bankrupt's Overseas Travel" 'trustee Consent to Travel' 'administration of Bankrupt Estate']
['bankruptcy'] ['review of Trustee Decision' "restriction on Bankrupt's Overseas Travel" 'trustee Consent to Travel' 'administration of Bankrupt Estate']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application for Review of a Trustee's Decision Under S 178 of the Bankruptcy Act 1966 (cth) Concerning Consent to Overseas Travel / Judgment on Application

Legal Issues

  1. 1 ["Whether the trustee's position amounted to a refusal or constructive refusal to consent to the applicant's overseas travel." "Whether the applicant's proposed overseas travel was genuine." 'Whether the applicant was likely to return to Australia.' 'Whether the proposed travel would hamper the administration of the bankrupt estate.' "Whether the trustee's decision should be set aside under s 178 of the Bankruptcy Act 1966 (Cth)."]

Ratio Decidendi

Although the respondent's position was reasonable on the material before him, it amounted to a constructive refusal to consent to overseas travel. In the changed circumstances before the Court, the applicant had provided her residential address and Statement of Affairs, had given detailed evidence establishing genuine family reasons for a short trip, was likely to return for her appeal and was prepared to undertake to return on request, and the trip would not unduly impede administration of the estate. The trustee's decision was therefore set aside and consent to travel was directed subject to an undertaking and conditions.

Court Disposition

Application granted subject to undertaking and conditions; trustee's decision set aside.

Orders

  • ['Upon the undertaking being given to the Court by the applicant to return to Australia at the request of the respondent (the trustee).' "The trustee's decision of 5 January 2015 be set aside." 'The trustee is directed to consent to the applicant leaving Australia and if in his possession to return her passport...