PIR Newsletter - June 2022

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The Personal Insolvency Regulator (PIR) is a quarterly newsletter from AFSA.

Introducing Tim Beresford

Tim Beresford started as AFSA’s Chief Executive in early May 2022. He is committed to ensuring AFSA delivers its promise to be a firm and fair regulator and a world-class government service provider. In his first few months as Chief Executive, he will be meeting with key stakeholders to understand the impact the agency has on people’s lives and the broader economy.

Previously, Tim has held the roles of Deputy CEO of the Australian Trade and Investment Commission (Austrade), Deputy Vice-Chancellor of Macquarie University and First Assistant Secretary of the Social Policy Division in Department of the Prime Minister and Cabinet. He has held Board positions in the past and is currently Chair of the Benevolent Society. Tim has significant leadership experience in the higher education, government, not-for-profit, financial services and professional services sectors. His areas of expertise include strategy, governance, public policy, change management and organisational design. Tim is a high-energy leader with a strong commitment to social justice.

AFSA’s library of exemplary behaviour case studies

As a firm and fair regulator, AFSA’s focus is to make compliance as easy as possible for everyone who uses our systems. We work closely with stakeholders to promote self-regulation and strengths-based regulation within the industry.

Compliance is extremely important for practitioners as it ensures a transparent, efficient system and provides the best outcomes for all stakeholders.

We have published a suite of case studies that reflect best practice in the insolvency industry. These case studies cover a range of practices including navigating complex issues, understanding client needs, enabling positive change and making mental health a priority.

Visit our website to read the case studies.

New resources for individuals and SMEs experiencing financial difficulty

We have developed two print-friendly resources to help individuals and small-medium businesses experiencing financial difficulty.

Bankruptcy: a fresh start

This brochure explains the personal insolvency options available to those with unmanageable debt or experiencing financial difficulty.

Is your business experiencing financial difficulty?

This booklet outlines how businesses can handle financial difficulty, the options available and how to seek help.

To view and download the resources, visit our website.

Providing the guidance you need

AFSA recently introduced changes to our insolvency guidance documents to make them easier to navigate and use (see article in our previous PIR newsletter). The main changes involved renaming guidance documents to make them easier to search and reference, merging some documents to avoid duplication, introducing search filters and developing an A-Z index with links to relevant guidance, forms and legislation.

As the changes have now been in place for a few months, we are keen to hear what you think. This will help us measure success and make further adjustments if needed. 

Please follow this link and complete the survey by Friday 15 July.

https://www.surveymonkey.com/r/FGN63HM

Thank you in advance for your feedback.

Have your say: AFSA’s seeking feedback on changes to IGPD13

The Inspector-General has recently made the decision to amend AFSA’s practice document Debt agreement administrators' guidelines to certification requirements (or IGPD13) to note a change of expectations with respect to debt agreement administrators’ certification duties for variations of debt agreements in the event of natural disasters and pandemics. AFSA welcomes feedback on this amendment.

To have your say, visit www.sandpit.afsa.gov.au

Official Receiver Notices: enhancements and process changes

AFSA recently worked on some updates to our Official Receiver (OR) Notices process to make it more user-friendly. This includes adding more options for methods of payment to further streamline the payment process. Please note that these updates went live on 1 June.

The previous “payment on account” system have now been phased out and users will be encouraged to either pay for notices at the time of application, or by use of a pre-paid account.

If you believe your volume use would justify an ongoing credit account, please contact us via ORNotices@afsa.gov.au to discuss your situation further.

Please note that due to the update, OR Notices previously submitted or saved in draft mode will no longer be available for access. 

Compositions involving joint and separate estates

One of AFSA’s functions is to monitor composition proposals for creditors, submitted by those who are bankrupt. Recent applications have failed to appropriately manage individual interests of joint and separate estates together with applicable remuneration in each estate.

Insolvency practitioners are reminded of the following key points:

  • while you can submit a joint composition, it is based on the provision that each group of creditors votes on the proposal, and it is passed by special resolution in each category. For details, please read Labocus Precious Metals Pty Ltd v Thomas [2007] FCA 1154 (2 August 2007)
  • expenses relating to the administration of estates must be fairly distributed by the trustee between the joint and separate estates including remuneration
  • failing to identify and appropriately account for joint and separate estates can have a material impact for stakeholders.

We also advise that section 6 of the Inspector-General Practice Direction Trustee remuneration notifications explains that the trustee’s obligation to send remuneration notifications is estate based. Section 6.2 states that it is acceptable for a trustee to send a joint report to creditors, with estate-based remuneration notices dealt with separately.

Updates from the ATO

Insolvency Practitioner lodgement of ATO approved Super Guarantee Charge (SGC) statement (NAT 9599)

The ATO has two approved methods for insolvency practitioners to lodge outstanding SGC statements.

The first is to lodge the SGC statement online form through the ATO online services for business. The form can be found in the Lodgements drop-down menu under Report & Forms.

The second method is the ATO approved excel SGC statement (NAT 9599). This is the ATO-recommended format for lodging outstanding SGCs. There are numerous benefits to using this form including automated calculations and faster processing times.

To ensure fast processing of SGC, please provide all required employee information and submit your statement through online service for business secure mail.

For more information, visit the ATO’s website.

Request for documents and self-service

The ATO can generally provide copies of the following information to a bankruptcy trustee or a trustee of a personal insolvency agreement:

  • statements of account
  • notices of assessment (pre-insolvency)
  • pre-insolvency BAS that has been lodged and processed
  • pre-insolvency tax returns that have been lodged and processed
  • director penalty notices
  • individual payment summary or income statements
  • relevant case notes (disclosure is assessed on a case-by-case basis. You will need to specify the event, transaction, or period you require case notes for, and detail the purpose they will serve in the liquidation or administration process).

Trustees of personal insolvency agreements are required to provide specific reasons for the request for information, including the purpose the information will serve in the administration process.  In some cases, the ATO may require a copy of the personal insolvency agreement before providing any information.

To request information a message may be sent via ATO online services for business by selecting “request for documents”, accessed in the mail option.

More information

To find out more about using ATO online services please email InsolvencyPractitionerServices@ato.gov.au

For general information, visit ato.gov.au/insolvency

Case notes

McMillan v Warner (Trustee) [2022] FCAFC 20

Background

In May 1995, Mrs and Mr McMillan purchased the Strathfield property for $320,000 as joint tenants. The purchase was partially funded by a $103,000 loan from the Commonwealth Bank (CBA loan agreement). The deposit of $32,000 was provided by a loan from Mrs McMillan’s mother. The court accepted that the balance of the purchase price for the Strathfield property was provided from the proceeds of a sale of another property the couple owned. That property had been purchased in March 1991 from the proceeds of the sale of two properties owned solely by Mrs McMillan.

As part of the financial arrangements to establish a Rolls Royce Bentley dealership, a bank loan included a “Guarantee Joint and Several unlimited as to amount” from both Mrs and Mr McMillan and a second registered mortgage over the Strathfield property. Later a further finance facility from St George Bank had another security over the Strathfield property and personal guarantees and indemnities from Mrs and Mr McMillan. These were stated to secure the “sum of the total amount owing for all facilities and other amounts” with no limits on the amounts to be secured. Mr McMillan executed a mortgage over the Strathfield property in favour of the St George Bank and that bank paid out the first bank’s loans. The next step was to enter a financing facility with Volkswagen Financial Services Australia Limited (VWFS) secured by a fixed and floating charge and collateral securities. The collateral securities were identified as:

Guarantee and Indemnity given by Brian Douglas McMillan, Classic Auto Search Pty Limited in its own right and as trustee for McMillan Family Trust in favour of VWFS dated on or about the date of this Charge.

By a transfer dated 25 May 2002, but executed sometime between 19 June 2002 and 8 July 2002, the ownership of the Strathfield property was transferred from the joint names of Mrs and Mr McMillan into the sole name of Mrs McMillan for a stated consideration of $1. On 18 July 2002, Mrs McMillan executed a mortgage over the Strathfield property in favour of the St George Bank recording Mrs McMillan as the sole mortgagor.

On 6 November 2018, a sequestration order was made against the bankrupt estate of Mr McMillan and the Trustee was appointed on that date over Mr McMillan’s bankrupt estate.

At first instance there was an allegation by the trustee of the bankrupt estate of Mr Brian McMillan (Trustee) that a transfer of his interest in the Strathfield property to his wife, the appellant, Mrs Karin Elisabeth McMillan, was void pursuant to ss 120 or 121 of the Bankruptcy Act 1966.

The primary judge found that the transfer by Mr McMillan of his interest in the Strathfield property in around May 2002 (property transfer) was void pursuant to s 121 of the Act because his main purpose in transferring the Strathfield property into the sole name of Mrs McMillan was either to prevent the property becoming divisible among his creditors, or to hinder or delay the process of making that property available for division among his creditors.

Analysis

The court began by noting that the predecessor provision to s 121(1) was expressed in terms of a “disposition of property … with intent to defraud creditors, not being a disposition for valuable consideration in favour of a person who acted in good faith…”. They noted that with reference to this provision, Brennan CJ and McHugh J in Cannane v J Cannane Pty Ltd (in Liq) (1998) 192 CLR 557; [1998] HCA 26 (Cannane) at [10] concluded:

… The critical term for present purposes is “with intent to defraud creditors” …. as the intent must accompany the disposition, it must relate to the effect of disposing of property then existing… if property is sold for an undervalue or is given away, that fact is relevant to the intent to be attributed to the disponor in disposing of the property… But disposition of property at an undervalue is only a fact from which, dependent on the surrounding circumstances, an inference of fraudulent intent may be drawn …

The court then contrasted the wording in the current provision which turns on the concept of “main purpose”, which is not defined in the Act, but which was taken to be similar to “dominant purpose” as used in the ITAA, drawing on the 6 principles in the decision of Sackville J in Prentice v Cummins (2002) 124 FCR 67.

The court noted that the primary judge found that although none of the individual particulars was sufficient to establish a main purpose of preventing the Strathfield property from being divisible among creditors or hindering or delaying the process of making the property available for creditors, once the “dots are joined” and the Main Purpose Particulars are considered “cumulatively or overall”, the conclusion is one that can “comfortably be reached”. [63]

The court adopted the language of the High Court in The Trustees of the Property of Cummins v Cummins (2006) 227 CLR 278; [2006] HCA 6 (Cummins) at [34] (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ) with respect to what was required to enliven s 121 of the Act:

What had been required for the trustees to succeed at trial was that the circumstances appearing in the evidence gave rise to a reasonable and definite inference, not merely to conflicting inferences of equal degree of probability, that, in making the August transactions, Mr Cummins had the “main purpose” required by the statute.

The court considered the appeal ground – failure to consider the point that there was no connection between creditors at the time of property transfer and bankruptcy. This related to the ‘temporal nexus’ line of argument; that no creditors arising from the Bentley and Rolls Royce dealership were creditors of the bankrupt estate so that no inference can be drawn that the bankrupt individual transferred his interest in the Strathfield Property to prevent his interest in the property being divisible among those creditors. This argument was accepted by the court which noted:

that is relevant to take into account in drawing inferences as to the purpose of a person in making a transfer of property. The weight to be given to the factor is inherently fact specific. [127]

and the court concluded that in the circumstances the ‘Bentley Dealership could [not] relevantly be characterised as a risky venture … we are satisfied that the absence of any temporal connection between the liabilities of Mr McMillan as at the time of the property transfer and the liabilities that ultimately led to his bankruptcy was a significant consideration that should have been given significant weight in any determination of the main purpose of the property transfer.’[128]

The court then considered the appeal ground concerning whether entry into the dealership was a risky venture. After an extensive review of the financial situation over time, the court concluded that the primary judge erred in finding that the entry into the Bentley dealership was a risky venture and erred in placing weight on that finding in drawing an inference that the main purpose contended for by the Trustee had been established. [175]

Conclusion on main purpose

The court emphasised that an inference that the main purpose of a bankrupt individual in making a transfer of property was to defeat their creditors must be a reasonable and definite inference, not merely one of a number of conflicting inferences with equal degree of probability: Cummins at [34].

While the evidence before the primary judge established, at least in general terms, that there was a gradual withdrawal by Mrs McMillan from the business operations of her husband, this did not provide a sufficient foundation for the drawing of a reasonable and definite inference of Mr McMillan’s main purpose in making the property transfer for the following 6 principal reasons:

  1. An equally compelling inference was that the making of the property transfer was attributable to financial advice provided about the “absence of financial separation between your personal situation and that of the business” and that it would be advisable for the purpose of dealing with potential financiers of the proposed business.
  2. There was no evidence that the creditor most affected by the property transfer, VWFS, unlike the Commonwealth Bank and the St George Bank, had requested or otherwise sought any security over the Strathfield property.
  3. Following the property transfer, the Commonwealth Bank remained a mortgagee of the Strathfield property and the net equity in the property was about $400,000.
  4. Continuation after the property transfer of the Regatta Road Guarantee from Mrs McMillan and the mortgage granted over the Strathfield property to support the $850,000 loan from the Commonwealth Bank to discharge the St George Bank facilities and provide working capital for McMillan Prestige Car Repairs.
  5. The financial and contextual evidence did not conclusively establish that the extension of Mr McMillan’s business operations was a hazardous or speculative business venture. Nor was it ever suggested by the Trustee that there was any doubt as to Mr McMillan’s solvency at the time of the property transfer.
  6. The significant elapse of time between the property transfer and the bankruptcy of Mr McMillan made the drawing of an inference that Mr McMillan’s main purpose was to prevent the Strathfield property from becoming divisible among his creditors or, was to hinder or delay the process of making that property available among his creditors, inherently problematic. [197-206]

Decision

The Court therefore decided that the primary judge did err in finding that the main purpose of Mr McMillan in making the property transfer was, in substance, to prevent, hinder or delay the Strathfield property from becoming divisible among his creditors.

Hence it ordered that the appeal should be allowed, and the orders made by the primary judge set aside. The Trustee was ordered to pay Mrs McMillan’s costs of the proceedings before the primary judge and this appeal.

Jang v Trustees of the Property of Lee (bankrupt) [2022] FCA 9

Background

This proceeding concerns a property (Gungahlin Property) in the Australian Capital Territory (ACT) which was purchased on 8 March 2017 by Sarah Eunju Lee (‘Sarah’) with 50% and Kan Kwai and Seung Jun Lee (Seung) with 25% each. Kan Kwai and Seung are married. 

Soon Ja Jang (‘Mrs Jang’), the applicant, was, at the time of the events the subject of this proceeding, the mother-in-law Sarah. Sarah was married to Mrs Jang’s son, Ji Soo Jang (‘Kyle’). 

Upon Sarah being made bankrupt, her share in the Gungahlin Property vested in the Trustees pursuant to s 58 of the Bankruptcy Act 1966 (Cth). However, Mrs Jang claimed an equitable interest by way of resulting trust over Sarah’s 50% interest in that property and to be registered on the title of the Gungahlin Property as a tenant in common in relation to her claimed 50% share in lieu of the Trustees.

Mrs Jang claimed that her interest arose from an oral express trust between her and Sarah. The central question for resolution was whether Mrs Jang had established the existence of the express oral trust.

Analysis

The court applied the principles in Calverley v Green (1984) 155 CLR 242 which considered whether the respondent, Ms Green, held her half share of a property on a resulting trust for the appellant, Mr Calverley. Justice Deane noted that the resolution of the appeal turned upon presumptions of equity applicable in determining the beneficial ownership of property which is purchased and transferred into the legal ownership of someone other than in accordance with their respective contributions to the purchase price. At 266-267 his Honour identified three relevant presumptions:

…The first is that … where a person pays the purchase price of property and causes it to be transferred to another or to another and himself jointly, the property is presumed to be held by the transferee or transferees upon trust for the person who provided the purchase money. The second can properly be seen as complementary of the first. It is where two or more persons advance the purchase price of property in different shares, it is presumed that the person or persons to whom the legal title is transferred holds or hold the property upon resulting trust in favour of those who provided the purchase price in the shares in which they provided it.

The third “presumption”, usually called the “presumption of advancement”, is not, if viewed in isolation, strictly a presumption at all. It is simply that there are certain relationships in which equity infers that any benefit which was provided for one party at the cost of the other has been so provided by way of “advancement” with the result that the prima facie position remains that the equitable interest is presumed to follow the legal estate and to be at home with the legal title or, in the words of Dixon C.J., McTiernan, Fullagar and Windeyer JJ in Martin v Martin, that there is an “absence of any reason for assuming that a trust arose”. “The child or wife has the legal title. The fact of his being a child or wife of the purchaser prevents any equitable presumption from arising” (quoting Ashburner’s Principles of Equity 2nd ed, 1933, p 110n).

In El-Debel v Micheletto (Trustee) [2021] FCAFC 117, the Full Court set out a summary of the relevant principles:

  1. A presumption of a resulting trust arises where one person provides the purchase price of property which is conveyed into the name of another person.
  2. In deciding whether a presumption of a resulting trust has been rebutted, the Court must reach a conclusion on the whole of the evidence.
  3. The presumption of a resulting trust may be rebutted by evidence which manifests an intention to the contrary but should not give way to slight circumstances.
  4. The extent of the beneficial interest of the parties arising by reason of a resulting trust must be determined when the property was purchased.
  5. It is the intention of the person who provides part of the purchase price that is relevant when considering whether the presumption may be displaced by contrary evidence.
  6. If part of the purchase price is provided by being borrowed on a mortgage, the presumption of a resulting trust is applied by treating the monies raised by the mortgage as a contribution by the person who is liable to repay that money.

The court noted that it was necessary for Mrs Jang to establish, on the balance of probabilities, the factual matters which are “necessary ingredients in [her] case. The existence of the alleged oral trust relies on a series of oral agreements. [154] Having considered the evidence as a whole, the court concluded that Mrs Jang failed to establish, on the balance of probabilities, the existence of an express oral trust (and thus the resulting trust) pursuant to which Sarah holds her interest in the Gungahlin Property on trust for her:

None of the evidence given by Mrs Jang, Sarah or Yun-Jong is supported by any objective documentary evidence showing, for example, the source of funds, the date of payment of funds to Sarah and by what means e.g., cash or electronic transfer or otherwise, the receipt of funds and the application of those funds to the purchase price for the Gungahlin Property. The evidence rises no higher than an assertion that some monies were paid to Sarah by Mrs Jang. That Mrs Jang intended, and in the case of money provided to Yun-Jong for transfer to Sarah told Yun-Jong, that those moneys were to be applied to the purchase of the Gungahlin Property is not sufficient to demonstrate that they were so applied. [172]

The court noted observations by McLelland CJ in Watson v Foxman (1995) 49 NSWLR 315 were relevant insofar as Mrs Jang’s cause of action is founded on the speaking of words. The words spoken “must be proved with a degree of precision sufficient to enable the court”, in this case, to be reasonably satisfied that any consensus reached was capable of forming a binding agreement and was intended by the parties to be legally binding. However, the court concluded that the evidence relied on did not meet that threshold. [178]

Further the court noted the complete lack of contemporaneous documents relied on by Mrs Jang to support the alleged agreement and, moreover, ‘those documents that were in evidence tell against the existence of the alleged agreement.’ [190]

Bringing the various points made about the evidence together the court’s summary was:

214: In light of the sparse evidence given by Mrs Jang and Sarah about the circumstances in which the alleged agreement was struck and its terms or, put in the way in which Mrs Jang contended, the intention to create an express trust, and the lack of any contemporaneous documents in support of the alleged agreement or intention or other reliable corroborative evidence, Mrs Jang has failed to establish her claim. I am not satisfied that there was any such agreement as alleged or intention to create a trust such that Sarah holds her half share in the Gungahlin Property on a resulting trust in Mrs Jang’s favour. 

Decision

Mrs. Jang failed to make out her case and to establish that Sarah holds her 50% interest in the Gungahlin Property on a resulting trust for her benefit. It follows that Mrs Jang’s amended originating application and amended statement of claim should be dismissed. As Mrs Jang has been unsuccessful she should pay the Trustees’ costs of the proceeding.

Frigger v Trenfield (No 10) [2021] FCA 1500

Background

The applicants in this proceeding, a wife and husband who at the time of the making of the application were undischarged bankrupts. The court observed that it was clear that the applicants, Mrs and Mr Frigger, aged in their 60s had, through investment, entrepreneurship or other means, accumulated substantial assets by the time they were declared bankrupt. Much of this decision canvasses the court’s consideration of the capacity in which they held some of those assets in relation to the applicants' self-managed superannuation fund (SMSF), the Frigger Super Fund (FSF).

The first respondent was their trustee in bankruptcy, Kelly Anne Trenfield. The second respondent, H & A Frigger Pty Ltd (HAF), is a former trustee of the FSF.

The court began by noting that the issues in this case may be divided into three groups. The first, and the focus of this case note, concerns whether certain assets are property divisible amongst the creditors of the bankrupt estates.[1] The court indicated that this would turn on whether the applicants held interests in the assets by way of their interests in the FSF. The assets in question (‘the disputed assets’), were:

  1. two bank accounts with Bank of Queensland Limited, one of which holds more than $2.8 million (BOQ1), the other of which holds just over $50 (BOQ2).
  2. shares held in a share portfolio (main portfolio) administered by the share broker, Commonwealth Securities Limited (CommSec).
  3. two parcels of residential land in Perth.

In summary, and for the purposes of this case note, the applicants sought declarations that BOQ1, BOQ2 and the residential properties were held in the FSF on trust for the beneficiaries of that fund, and so pursuant to s 116(2)(d)(iii)(A) of the Bankruptcy Act were not assets divisible among creditors; and sought various compensation orders for alleged detriment and losses occasioned by the trustee’s actions affecting the disputed assets.

The FSF was formed on about 1 July 1997 by the execution of a deed entitled 'Superannuation Trust Deed for a Self-Managed Fund for Frigger Super Fund' (FSF Deed). Its members, that is the beneficiaries of the trust, may have changed over time, but they always included the applicants.

The applicants' bankruptcies occurred when a sequestration order was made against their respective estates on 20 July 2018.

Analysis

When an asset is part of a fund

The first issue the court looked at was whether, as at the relevant date, the disputed assets were held in the FSF. The significance of that question stems from s 116(1)(a) of the Bankruptcy Act, which provides that, subject to the Act:

(a)        all property that belonged to, or was vested in, a bankrupt at the commencement of the bankruptcy, or has been acquired or is acquired by him or her, or has devolved or devolves on him or her, after the commencement of the bankruptcy and before his or her discharge

… is property divisible amongst the creditors of the bankrupt.

The court noted that the relevant date is 'the commencement of the bankruptcy', a concept that that the court explained by reference to the definitions in the Act.

The applicants relied on s 116(2)(d)(iii)(A) of the Bankruptcy Act as an exception to this general rule. It provides that s 116(1) does not extend to certain specified kinds of property, including:

 'the interest of the bankrupt in … a regulated superannuation fund (within the meaning of the Superannuation Industry (Supervision) Act 1993 [(Cth)])'. 

The ultimate question posed by the court was whether the applicants' interests in the assets were part of their interests in a regulated superannuation fund for the purposes of s 116(2)(d)(iii)(A) of that Act. More specifically, the court noted that “the truly contentious issue” was whether the disputed assets were assets of the FSF fund. And went on to summarise the law as allowing that:

“two assets may be subject to different trusts for the purposes of one law while at the same time part of the same fund for the purposes of another law. The concept of a fund is an instrumental one: whether or not two assets are part of the same fund depends on the purpose for which one is deploying the concept.” [122]

The court focused on the meaning of ‘fund’, looking first at judicial pronouncements. And then the court identified as a further source of relevant principles the legislation applicable in which the concept of 'fund' is deployed. 

The relevant statutes cited were the Bankruptcy Act and the SIS Act. The court stated that the “meaning of the concept must therefore be substantially informed by the context and purposes of those statutes”.[2] The court noted that it is clear that s 116(2)(d) of the Bankruptcy Act is beneficial or remedial legislation. In NM Superannuation Pty Ltd v Young (1993) 41 FCR 182 12 Burchett J concluded that:

This survey of authority, which is far from exhaustive, shows that provisions from which s 116(2)(d) derives have been consistently regarded as of a beneficial or remedial nature. That brings the provision within a well-known rule. It should not be construed in any narrower or more restrictive sense than its language would fairly allow. [at 185]

The court added that the principle is equally applicable to an interest in a superannuation fund but with the caveat that it must be a regulated superannuation fund, a stipulation which requires the purposes of the SIS Act to be considered:

That is detailed and prescriptive legislation which, as is apparent from the discussion of it given below, lays down specific requirements about the formation, constitution and administration of superannuation funds. It also lays down prescriptive rules about the eligibility of funds to fall within the term 'regulated superannuation fund'. [128]

However, other than proscriptions around a contribution for those aged over 65 the court concluded that “a review of the SIS Act discloses nothing that goes specifically to when an asset is, or is not, to be considered part of a regulated superannuation fund.” [131]

The third and final source of principles as to when an asset will be an asset of the FSF that the court considered was the FSF Deed itself. Having completed their conspectus the court then remarked that:

… the themes that emerge from these three sources [are that], the intention behind s 116(2)(d)(iii)(A) of the Bankruptcy Act is to encourage 'thrift' and 'provision for retirement, for old age, and against the possibility of bereavement bringing destitution or want upon a family', (to employ the terms used in NM Superannuation and Re Lin; Law v Lin (1960) 18 ABC 142 quoted above) by protecting the bankrupt's interests in certain assets from the claims of creditors. But it does so by incorporating a specific concept defined and employed in the superannuation legislation to ensure that the assets are managed, and their ownership is structured in a way which ensures that proper prudential standards are observed. [133]

The court then looked to benchmark what was cited as evidence against the principles relating to when assets are taken to be assimilated into a fund:

An asset does not become part of a fund unless and until it is contributed to the fund. At a minimum, an asset which is not cash will not be contributed until it has been transferred to the trustees of the fund and has become subject to the trusts for which the FSF Deed provides.  And in any event, there must be sufficient certainty about the content of any trust obligations attaching to the asset to permit the conclusion that it has become subject to the trusts of the FSF Deed and so part of the conglomeration of property in respect of which those trust obligations and corresponding rights exist. [134]

Conclusions

Having considered the evidence the court was satisfied that the FSF was at all material times a regulated superannuation fund for the purpose of s 116(2)(d)(iii)(A) of the Bankruptcy Act. [206]

Whether the specific disputed assets are part of the FSF - Conclusion regarding the Residential Properties

530: On their objective construction, the 2014 Declarations did not result in a contribution of the Residential Properties to the FSF. They did not express an intention to that effect and even if they had, it would have been illegal and the trustees of the FSF would have been required not to accept them. Instead, the 2014 Declarations constituted trusts over the residential properties on terms different to the terms of the FSF Deed. There is no suggestion that those separate trusts were separate regulated superannuation funds for the purpose of s 116(2)(d)(iii)(A) of the Bankruptcy Act. So the applicants' interests in the residential properties are not interests in any regulated superannuation fund for the purposes of that provision. [530]

Summary of conclusions and orders regarding the Disputed Assets

532: The applicants have not established that at any material time, either or both of them held the disputed assets - that is, BOQ1, BOQ2, the securities in the main portfolio, or the residential properties – on the terms of the FSF for beneficiaries of the FSF. Further, any contribution of the residential properties to the FSF would have breached s 66(1) of the SIS Act, so that if those properties had purportedly been contributed to the FSF they would nevertheless not have formed part of that fund.

533: It follows that the interests the applicants hold in the disputed assets are not part of their interests in any regulated superannuation fund for the purpose of s 116(2)(d)(iii)(A) of the Bankruptcy Act.

The court then made some final observations with respect to particular features of the arguments and claims adduced by the applicants:

If they did choose to arrange their affairs in the way they said they did, it was incumbent on them to manifest that choice objectively. They should have observed the numerous strictures which are found in the FSF Deed and the laws surrounding superannuation as to the keeping of records and keeping superannuation assets separate. They should have prepared balance sheets recording the holding of the disputed assets, and had those balance sheets independently audited, in a timely way. They should not have opened high interest 'Websaver' accounts which (according to them) did not permit a trust capacity to be recorded in the account name. Or if they did open accounts of that kind, they should have recorded their status as FSF assets clearly in a separate, contemporaneous document. They should not have used BW1 to run a business which was not an FSF asset. They should not have used BW1 to pay frequent personal expenses. They should not have used a share trading account which they had previously operated in their own personal capacities to acquire investments for the FSF. They should not have tried to contribute residential property to their SMSF. [535]

Decision

The Court therefore decided the applicants were not entitled to the declarations they sought; or removal of various caveats; or to any order requiring the first respondent to write to CommSec or ASX to seek the removal of the freeze on the securities in the main portfolio. And they were not entitled to compensation for any losses [534]. The application was dismissed.[3]

[1] The second group of issues concerned the costs orders made in previous proceedings. The third group of issues concerned the first respondent's conduct of the administration of the bankrupt estate.  The main question raised by the applicants was whether the first respondent should be removed as trustee of the applicants' bankrupt estates (the court did not accept that the trustee should be removed). 

[2] The court cited an excerpt from NM Superannuation Pty Ltd v Young explaining the rationale – which it emphasised was equally applicable to an interest in a superannuation fund was that: “Legislation of this kind views life insurance [superannuation] as a desirable provision for retirement, for old age, and against the possibility of bereavement bringing destitution or want upon a family; and it supports the availability of that provision by removing it from the reach of creditors upon a bankruptcy”. [126]

[3] Orders as to costs were determined in Frigger v Trenfield (No 11) [2022] FCA 326 – the headnote of which states ‘costs to follow usual rule – costs between parties distinguished from trustee in bankruptcy's right of indemnity from the bankrupt estate – order affirming trustee in bankruptcy's right of indemnity – no order as to extent of bankrupts' right of indemnity as trustees of self-managed superannuation fund – no order for indemnity costs’.