Frigger v Trenfield (No 10)

• Jurisdiction: Australia Federal only
• Court: Federal Court (Australia)
• Judgment Date: 01 December 2021
• Neutral Citation: [2021] FCA 1500
• Date: 01 December 2021

Federal Court of Australia

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

File number:	WAD 141 of 2019
Judgment of:	JACKSON J
Date of judgment:	1 December 2021
Catchwords:	BANKRUPTCY AND INSOLVENCY - application for declarations that various assets held in regulated superannuation fund and so not divisible among creditors - s 116(2)(d)(iii)(A) of the Bankruptcy Act 1966 (Cth) - principles as to when an asset is part of a fund - beneficial or remedial legislation - possible disposition of property after sequestration orders - purported dispositions ineffective - finding that assets not held in regulated superannuation fund - application dismissed ; SUPERANNUATION - meaning of 'regulated superannuation fund' in Superannuation Industry (Supervision) Act 1996 (Cth) (SIS Act) - finding that applicants' SMSF is a regulated superannuation fund - duties of trustees of self-managed superannuation funds (SMSFs) - failure to adequately distinguish SMSF assets and personal assets - purported contributions not compliant with SMSF trust deed - alleged contribution of residential property to SMSF in breach of s 65 and s 66 of the SIS Act - meaning of 'business real property' - contributions not effective and would have infringed SIS Act - failure to establish that claimed assets formed part of SMSF ; TRUSTS AND TRUSTEES - creation of express trusts - objective manifestation of intention - inferring intention - burden of proving existence of trust - lack of written evidence manifesting required intention - no reliable evidence of objective manifestation of intention before sequestration order - documents put before court deliberately altered by first applicant - mixing of trust funds and personal funds - significance of registration of 'trust receipts' on Personal Property Securities Register - whether notification of tax file number to financial institutions an objective manifestation of intention - uncertainty as to mechanism of contribution - uncertainty as to beneficiaries - no trust established over certain assets - construction of declarations of trust - lack of objective intention to transfer legal title to other trustees of SMSF - declarations effective to create separate trust, but not effective to contribute properties to SMSF ; BANKRUPTCY AND INSOLVENCY - administration of bankrupt estates - duties of trustee in bankruptcy - application for order removing trustee in bankruptcy - effect of bankruptcy on separate legal proceedings - claim that trustee not 'competent' to sign consent orders in separate proceedings by virtue of s 58(3) of the Bankruptcy Act - costs liabilities are debts provable in bankruptcy - s 58(3) only applies in respect of steps in proceedings commenced by creditors - successful appeal parties secured creditors due to security for costs - no proven loss or damage - claim relating to consent orders dismissed - alleged failure to take necessary steps in administration of bankrupt estate - inhibiting bankrupts' dealings with assets - allegation of improper purpose - allegations that trustee in bankruptcy gave false evidence - scope of trustee in bankruptcy's investigatory inquiries - allegation of collusion with third party - uncooperative and belligerent bankrupts - reasonable for trustee in bankruptcy to form view that it was not necessary to interview bankrupts - application for removal dismissed
Legislation:	Acts Interpretation Act 1901 (Cth) s 13 Bankruptcy Act 1966 (Cth) ss 5, 19, 30, 40, 52, 58, 60, 115, 116, 157, 179, Schedule 2 (Insolvency Practice Schedule (Bankruptcy)) ss 1-1, 90-15(3) Evidence Act 1995 (Cth) ss 46, 60, 138 Federal Court of Australia Act 1976 (Cth) s 21 Income Tax Assessment Act 1936 (Cth) ss 6, 202, 202A, 202B, Part VA Income Tax Assessment Act 1997 (Cth) ss 995-1, 292-85 Personal Properties Securities Act 2009 (Cth) ss 12, 150, 151 Superannuation (Excess Non-concessional Contributions Tax) Act 2007 (Cth) s 5 Superannuation Industry (Supervision) Act 1993 (Cth) ss 10, 17A, 19, 31, 34, 35AE, 35B, 36, 40, 42, 42A, 45, 52, 65, 66, 67, 120, 126J, 126K, Part 15 Superannuation Industry (Supervision) Regulations 1994 (Cth) regs 4.09A, 6.01, 6.18, 8.03, Schedule 1 Federal Court Rules 2011 (Cth) r 39.11 Insolvency Practice Rules (Bankruptcy) 2016 (Cth) rr 42‑10, 42-15, 42-30 Electronic Transactions (Queensland) Act 2001 (Qld) s 14 Property Law Act 1974 (Qld) s 199 Electronic Transactions Act 2011 (WA) s 10 Property Law Act 1969 (WA) s 20 Transfer of Land Act 1893 (WA) s 55 Rules of the Supreme Court 1971 (WA) O25, r 7
Cases cited:	Adsett v Berlouis (1992) 37 FCR 201 AMP Music Box Enterprises Ltd v Hoffman [2002] BCC 996 Associated Alloys Pty Limited v ACN 001 452 106 Pty Limited (in liquidation) [2000] HCA 25; (2005) 202 CLR 588 Atwill v Commissioner of Stamp Duties (1970) 72 SR (NSW) 415 Australian Securities and Investments Commission v Big Star Energy Ltd (No 3) [2020] FCA 1442; (2020) 389 ALR 17 Avel Pty Ltd v Multicoin Amusements Pty Ltd (1990) 171 CLR 88 Bahr v Nicolay (No 2) (1988) 164 CLR 604 Blatch v Archer (1774) 1 Cowp 63; (1774) 98 ER 969 Boensch v Pascoe [2019] HCA 49; (2019) 268 CLR 593 Borg v de Vries (Trustee), in the matter of the Bankrupt Estate of David Morton Bertram [2018] FCA 2116 Boscawen v Bajwa [1996] 1 WLR 328 Byrnes v Kendle [2011] HCA 26; (2011) 243 CLR 253 Caron and Seidlitz v Jahani and McInerney in their capacity as liquidators of Courtenay House Pty Ltd (in liq) & Courtenay House Capital Trading Group Pty Ltd (in liq) (No 2) [2020] NSWCA 117; (2020) 102 NSWLR 537 Carter Holt Harvey Wood Products Australia Pty Ltd v Commonwealth [2019] HCA 20; (2019) 268 CLR 524 Commonwealth v Fernando [2012] FCAFC 18; (2012) 200 FCR 1 Comptroller of Stamps (Victoria) v Howard-Smith (1936) 54 CLR 614 Conway and Insolvency and Trustee Service Australia [2002] AATA 1343; (2002) 72 ALD 791 Conway v Insolvency & Trustee Service Australia [2003] FCA 321 Conway v Insolvency & Trustee Service Australia [2003] FCA 943 Cook v Cook (1986) 162 CLR 376 Corin v Patton (1990) 169 CLR 540 Coshott v Coshott [2013] FCA 907 Coshott v Prentice [2014] FCAFC 88; (2014) 221 FCR 450 Department of Health v Arumugam [1988] VR 319 Devaynes v Noble (1816) 1 Mer 529; 35 ER 767 DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties [1980] 1...