CATCHWORDS Bankruptcy ~- Two trusteesof one estate - Whether consent of both required under s.272(c) Bankruptcy Act, 1966 s.272(c) DEPUTY COMMISSIONER OF TAXATION v. WILLIAM EDWARD ANDREW and PETER LEOPOLD CLYNE Beaumont, J. 23 February, 1984. Sydney. 4, vo ee eg Ty Ree ta ae Pe fT ae Be at TA, ee TS IN THE FEDERAL COURT OF AUSTVALLA GENERAL DIVISLON BANKRUPICCY DISTRICT Of Thi STATE OF NEW SOU'TH WALLS AND THE AUSTRALIAN CAPLTAL TERRITORY Ne. W838 and W929 of 1983 PETROS N : DEPULY COMMISSLONER OF 'TAXA'TLON Applicant AND: LGLLAM EDWARD ANDREW First Respondent AND: PELER LEOPOLD CLYNE Second Respondent ORDER Judge making order: Beaumont, J. Date order made: 23 february, 1984. Where made: Sydney THE COURT OPDERS THAT: be . Declare that. upon the true construction ot s.272(c) of the Bankruptcy Act, 1966 and in the events which have happened, the consent in writing of John Wiliiam O'Brien 1S required before the second respondent leaves Australia or does an act preparatory to leaving Australia. 2. Costs reserved. 3. Adjourn application tor mention on 8 March, 1984 at 9.30 a.m. IN HE FEDERAL COUR' OF AUSTRALIA GENERAL DIVISLON STALE OF NEW SOU WALES AND ) ) ) ) BANKRUPICY DISTRICT OF Wik ) ) ) ) ) THE AUSTRALIAN CAPIIMAL TERRITORY BETWcEN : DEPUTY COMMISSLONE? OF 'fAXAT ION Applicant AND: WLLLLAM EDWARD ANDREW First Respondent AND: PINLLR LLOPOLD CLYNE Second Respondent CORAM: Beaumont, J. DATED: 23 february, 1944. REASONS FOR JSUDGMEN'T Hy application dated 6 February, 1984, the applicant seeks, inter ajia, an order that the second respondent be restrained trom leaving Australia. in support ot the application, the applicant relies upon the provisions of s.272(c) of the Bankruptcy Act, L966: No. W838 and W929 of 1983 "A person who-- (c} after he has become a bankrupt and before he as discharged trom the bankruptcy, without the consent ' in writing of the trustee of his estate, leaves Australia, or does an act preparatory to leaving Australia, is guilty of an ottence and is punishable, on conviction, by aumprisonment tor a perlod not exceeding 3 years." The eartier history of this matt=r 1s described in the judgment of the Full Court (Bowen, C.J., St. John and Fisher, JJ.) of & l'sbruary, L984. Pursuant to applications made in that behalf by the second respondent, the iirst respondent, purporting to act under the provisions of s.2/2(c), consented to the second respondent''s leaving Australia for a period then specified. However, Mr. O'%rien, the trustee reterred to in the reasons for judgment of the Full Court, has not given any such consent. The parties have agreed that a preliminary point should now be determined in the application, namely, whether in the circumstances the consent of Mr. O'Hrien in writing LS required pricr to the second responaent Leaving Australia or doing an act preparatory to Leaving Australia. There appears to pe no authority on or even near ep. 3 the point. The second respondent retearre fay B argument to the reasoning ot Fisher, J. in Re vlose, a decision discussed in the reasons of the Full Court. However, that case was concernea with the question ct the appointment of a trustee or trustees and it 15 apparent that this decision can throw no light on the true constructicn of a provision such as s.2/2({c). The decision of the full Court was that, by torce ef law, each of the two trustees 1s a trustee ot the estate et the bankrupt. it must follow, in my opinion, that by applying a distributive construction of s.272(c), the consent of each trustee is required (ct. Skv v. Bodv (19/0) 92 W.N. (N.S.W.) 934). Alternatively, in my view, the same result is arrived at by application of s.23(b) of the Acts Interpretation Act, 1901. In the result, 1 declare that, upon the true construction ot s.2/2(c) ot the Bankruptcy Act, 1966 and in the events which have happened, the consent in writing ot John William O'braen 15 required belore the second respondent leaves Australia or does an act preparatory to leaving Australia. Jl reserve costs. | certify that this andthe 2 preceding Pages are a true copy of ihe reasons for judgment herein of The Honourable Mr Justice Beaumont. ce) _ 23 -2~R¢. ALodiste Dated