National Australia Bank Ltd v Norman [2009] FCAFC 152

FEDERAL COURT OF AUSTRALIA National Australia Bank Ltd v Norman [2009] FCAFC 152

BANKRUPTCY – orders for the administration of a deceased person's estate – vesting of the divisible property of the estate in the Official Trustee or registered trustee – what constitutes the divisible property of the estate – exclusion of property held in trust for another person CORPORATIONS – appeal against winding up order in respect of unregistered managed investment scheme – whether unregistered managed investment scheme within meaning of s 9 Corporations Act 2001 (Cth) – whether investors contributed money as consideration to acquire rights (interests) to benefits produced by the scheme – whether any of the contributions were to be pooled to produce benefits for the people who hold interests in the scheme – funds obtained by accountant, now deceased, for individual investment and deposited into trust account – monies not invested but misappropriated by accountant – no evidence of objective intention to make contributions to acquire benefits produced by a scheme – no evidence of objective intention that contributors monies were to be pooled to produce benefits for people who hold interests in a scheme – monies were not "to be pooled" – not a managed investment scheme – appeal allowed.

WORDS AND PHRASES – para (a)(ii) under definition of managed investment scheme in s 9 Corporations Act 2001 (Cth) – "to be pooled" – requires proof of objective prior intention that monies contributed are to be pooled in order to produce financial benefits for members who hold interests in the scheme – absent such objective intention mere deposit of monies from investors into trust account insufficient to meet statutory requirement that monies are to be pooled.

Bankruptcy Act 1966 (Cth), ss 116(2)(a), 156A, 244, 247A, 248(1) and (3) and 249 Corporations Act 2001 (Cth), ss 9 and 601EA-601EE, 601FC, 601FD, 601FE, 601HA Corporations Regulations 2001 reg 5C1.01 Federal Court Rules Order 6 rule 15, Order 9 rule 4 Federal Court (Corporations) Rules 2000 rule 1.3(2)