In the beginning of December 2021, the Federal Court has ruled that certain assets of two undischarged bankrupts were not held in their self-managed super fund (SMSF) so that the assets were divisible among the creditors of their bankrupt estates. I note this is a long judgement (751 paragraphs) covering many issues.
The facts were these.
- The applicants, Mr and Mrs Frigger, became bankrupt in July 2018.
- The trustee in bankruptcy maintained that all the property vested in the applicants at the relevant time was property divisible amongst their creditors.
- The applicants argued that certain disputed assets were held by their SMSF, including two bank accounts, a share portfolio and two residential properties.
- As such, the applicants sought to rely on s 116(2)(d)(iii)(A) of the Bankruptcy Act 1966 which provides an exception for “the interest of the bankrupt in…a regulated superannuation fund”.
The Federal Court ruled that the applicants had failed to establish that they held the disputed assets on the terms of the SMSF for beneficiaries of that fund.
- It followed that the applicants’ interests in the disputed assets were not part of their interests in any regulated superannuation fund for the purpose of s 116(2)(d)(iii)(A) of the Bankruptcy Act, and therefore were divisible among their creditors.
- The Court said there was no evidence that the applicants had recorded ownership of the disputed assets in their capacity as trustees of the SMSF.
- While the Court accepted that the bank accounts had received rental income in respect of the SMSF’s commercial properties (which were not in dispute), the applicants failed to establish that the bank accounts were held on trusts of the SMSF deed. [This seems a very contrary finding, as a trustee’s duties include receiving the income from its investments, unless the deed allowed otherwise, which seems very unlikely, given that it would represent a defacto benefit to the members – which could be in breach of the SIS standards preventing early payment of benefits (though, it seems that the beneficiaries were of retirement age). There were non-SMSF transactions and balances in the account, that complicated things, but not, I would have thought, allowed the rent from the SMSF’s investments, escape the SMSF trusts. I’ve extracted part of the Court’s reasons, below, that explain this decision.]
- The Court also ruled that a purported declaration in 2014 did not result in a contribution of the disputed residential properties to the SMSF.
- Further, the Court said any contribution of the properties to the SMSF would have breached s 66 of the SIS Act (and the trust deed) as the properties did not fall within the exception for “business real property”.
- Nevertheless, the Court found that the SMSF was a “regulated superannuation fund” for the purposes of the SIS Act and the Bankruptcy Act.
On the SMSF rent in the bank account issue, the Court’s approach can be seen in the following paragraphs, from it’s reasons.
329 To return to the question I posed above, as to whether the nature of the transactions in BW1 mean that the account should be characterised as an asset of the FSF, the answer to that question is ‘no’. While BW1 was used for many FSF transactions, it was also used for many transactions which were not related to the FSF or are unexplained. Assessed objectively, it was an account that was used for mixed FSF and non-FSF purposes. That assessment provides no substantial support for a contention that payments out of BW1 into other accounts are likely to be payments for the purposes of further trust investments. Given the way BW1 has been used, they could be for anything.
330 The upshot is that it is not possible to make a finding in a binary way as to whether BW1 was or was not an asset of the FSF. Although the applicants have not established that the account as a whole is an FSF asset, it does appear that it contains funds that are FSF funds. They are FSF funds in the sense that if, say, a new trustee of the FSF were to make a claim on the account as the repository for funds improperly mixed with non-FSF funds, it appears likely that the claim would be successful for some of the money in BW1. But it is impossible on the current state of the evidence and analysis to say what proportion of the funds would be recoverable by the trustee of the FSF in that hypothetical claim.
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
(Frigger v Trenfield (No 10) [2021] FCA 1500, Federal Court, Jackson J, 1 December 2021.) [LTN 6, 12/1/22]
[Tax Month – January 2022 – Previous 2021] 12.1.22