Frigger v Trenfield (No 3)

• Jurisdiction: Australia Federal only
• Court: Full Federal Court (Australia)
• Judgment Date: 24 March 2023
• Neutral Citation: [2023] FCAFC 49
• Date: 24 March 2023

FEDERAL COURT OF AUSTRALIA

Frigger v Trenfield (No 3) [2023] FCAFC 49

Appeal from:	Frigger v Trenfield (No 10) [2021] FCA 1500
File number:	WAD 278 of 2021
Judgment of:	ALLSOP CJ, ANDERSON AND FEUTRILL JJ
Date of judgment:	24 March 2023
Catchwords:	APPEAL AND NEW TRIAL – appeal – appeal by way of rehearing – errors of fact – advantage of primary judge – principles of appellate review. ; BANKRUPTCY AND INSOLVENCY – appeal from the decision of the primary judge in Frigger v Trenfield (No 10) [2021] FCA 1500 (primary judgment) – where the appellants made numerous challenges to the findings of the primary judge with respect to certain disputed assets – whether these disputed assets were contributed to the appellants’ self-managed superannuation fund, named the Frigger Superannuation Fund (FSF) such that they were trust property – whether the primary judge erred in finding that certain assets vested in the trustee in bankruptcy pursuant to s 58 of the Bankruptcy Act 1966 (Cth) (Bankruptcy Act) and were therefore divisible amongst the appellants’ creditors – whether the primary judge erred in finding that the appellants’ Bankwest Account No. 1 (BW1) was not a trust asset of the FSF – whether the primary judge erred in finding that the Bank of Queensland Account No. 1 (BOQ1) and Bank of Queensland Account No. 2 (BOQ2) vested in the first respondent in circumstances where the first respondent failed to identify which funds were deposited into BOQ1 and BOQ2 were funds that belonged to the appellants personally – whether primary judge erred in finding that the shares held by Commonwealth Securities Limited (CommSec) Share Trading Account Portfolio (Main Portfolio) in its custodial service vested in the first respondent – whether the primary judge erred by finding that the first respondent’s conduct in consenting to a payout of security of costs in the Supreme Court of Western Australia did not breach s 82 of the Bankruptcy Act – whether the primary judge erred by refusing to determine the appellants’ claims for losses caused by freezing the BOQ1 account and the Main Portfolio account which required the court to finally determine all controversies between the parties – where no error is detected in the primary judge’s reasoning. ; PRACTICE AND PROCEDURE – whether the primary judge failed to provide the appellants with procedural fairness – where the appellants claim that they were denied the right to know and to be given an opportunity to respond to the case presented against them – ground of appeal rejected in its entirety. ; SUPERANNUATION – relationship between superannuation and trust law – compliance with legislative and regulatory requirements – adequacy of documentation – finding of lack of merit in appeal grounds. ; TRUSTS AND TRUSTEES – whether the primary judge erred in finding that assets vested in the trustee in bankruptcy, in circumstances where the validity of the sequestration orders was being challenged in matter WAD 66 of 2021 – where the appellants claimed that the bankruptcy notices were invalid and that sequestration orders were a nullity – whether the primary judge erred in finding that the appellants had not established that BW1, BOQ1, BOQ2, the CommSec share portfolio and the two residential properties were assets of the FSF – whether the primary judge erred in refusing to grant relief in relation to the trustee’s consent to payments out of court – whether the primary judge erred by failing to remove the first respondent as trustee in bankruptcy – whether the primary judge erred in refusing to determine the claims for losses caused by freezing of BOQ1 and the CommSec share portfolio – where no error is found in the primary judge’s reasoning – held: appeal dismissed.
Legislation:	Bankruptcy Act 1966 (Cth) ss 19(1)(k), 30, 30(1)(b), 34A, 58, 58(1)(a), 58(3), 58(5), 77A, 82, 120, 121, 125, 129, 116(2)(a), 116(2)(d)(iii)(A), sch 2 s 90-15(3)(a) Corporations Act 2001 (Cth) ss 173(1), 173(3A) Corporations Regulations 2001 (Cth) reg 2C.1.03(c) Evidence Act 1995 (Cth) ss 46, 59, 60–64, 66A–75, 69, 69(3), 81–84, 87, 135, 136, 138, 140 Federal Court of Australia Act 1976 (Cth) ss 21, 22, 24(1E), 27, 37M Federal Court Rules 2011 (Cth) rr 1.34, 30.28, 36.57 Income Tax Assessment Act 1997 (Cth) ss 294-30, 295-85, 295-380, 295-385, 295-385(3), 295-385(3)(a), 295-385(4)(a), divs 291, 292, 294 Income Tax Assessment Regulations 1997 (Cth) reg 295-385.01(a)(i) Insolvency Practice Rules (Bankruptcy) 2016 (Cth) r 42-30(c) Rules of the Supreme Court 1971 (WA) ord 25 rr 1, 7 Superannuation (Excess Non-concessional Contributions Tax) Act 2007 (Cth) Superannuation (Excess Transfer Balance Tax) Imposition Act 2016 (Cth) s 294-30 Superannuation Industry (Superannuation) Regulations 1994 (Cth) regs 1.06, 6.01(2), 7.04(4), sch 7 Superannuation Industry (Supervision) Act 1993 (Cth) ss 3, 10, 17A, 19, 35AE, 35B, 35C, 65, 66(1), 103, 103(1), 104, 104A, 105, 253, 289, 289(2) Superannuation Industry (Supervision) Consequential Amendments Act 1993 (Cth)
Cases cited:	Agricultural & Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570 Aldi Foods Pty Ltd v Moroccanoil Israel Ltd (2018) 261 FCR 301 Allen v Roughley (1955) 94 CLR 98 Allesch v Maunz (2000) 203 CLR 172 Associated Alloys Pty Limited v ACN 001 452 106 Pty Limited (in liquidation) (2000) 202 CLR 588 Astbury v Astbury [1898] 2 Ch 111 Atwill v Commissioner of Stamp Duties (NSW) (1970) 72 SR (NSW) 415 Aussiegolfa Pty Ltd (Trustee) v Commissioner of Taxation (2018) 264 FCR 587 Australian Securities and Investments Commission v Big Star Energy Ltd (No 3) (2020) 389 ALR 17 Bahr v Nicolay [No 2] (1988) 164 CLR 604 Benjamin v GB Franchising Australia Pty Ltd [2011] ACTCA 26 Blanch v British American Tobacco Australia Services Ltd (2005) 62 NSWLR 653 Bosanac v Commissioner of Taxation [2022] HCA 34 Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 Byrnes v Kendle (2011) 243 CLR 253 Cashman v Kinnear [1973] 2 NSWLR 495 Caswell v Powell Duffryn Associated Collieries [1940] AC 152 CDJ v VAJ (1998) 197 CLR 172 CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194 Cock v Smith (1909) 9 CLR 773 Computer Accounting and Tax Pty Ltd v Professional Services of Australia Pty Ltd [2008] WASC 133 Coshott v Prentice (2014) 221 FCR 450 Coulton v Holcombe (1986) 162 CLR 1 Cowan v Scargill [1895] Ch 270 Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317 Duncan (as trustee for the bankrupt Estate of Garret) v National Australia Bank Ltd (2006) 95 SASR 208 Duralla Pty Ltd v Plant (1984) 2 FCR 342 Dwight v Federal Commissioner of Taxation (1992) 37 FCR 178 Eslea Holdings Ltd v Butts (1986) 6 NSWLR 175 Evans v European Bank Ltd (2004) 61 NSWLR 75 Film Bars Pty Ltd v Pacific Film Laboratories Pty...