Do (Trustee), in the matter of Andrew Superannuation Fund v Sijabat [2023] FCAFC 6

Federal Court of Australia

Do (Trustee), in the matter of Andrew Superannuation Fund v Sijabat [2023] FCAFC 6 Appeal from: Sijabat in her capacity as joint and several trustee for the bankrupt estate of Do v Do in his capacity as a former joint trustee of the Andrew Superannuation Fund [2021] FedCFamC2G 353

File numbers: ACD 20 of 2022 ACD 21 of 2022

Judgment of: MARKOVIC, HALLEY AND GOODMAN JJ

Date of judgment: 13 February 2023

Catchwords: BANKRUPTCY AND INSOLVENCY – appeals from declarations and orders of the Federal Circuit and Family Court of Australia (Div 2) – whether the rebuttable presumption in s 128B(5) of the Bankruptcy Act 1966 (Cth) was established – where the phrase "business carried on by the transferor" is to be construed narrowly – whether, assuming the rebuttable presumption was established, the primary judge failed to consider whether the presumption was rebutted – where the primary judge did not consider whether the presumption had been rebutted – whether the primary judge failed to consider, and find, that the rebuttable presumption had been discharged – appeals allowed

Legislation: Bankruptcy Act 1966 (Cth) s 128B subs (1)(c), (2), (3),(5) Bankruptcy Legislation Amendment (Anti-avoidance) Act 2006 (Cth) Bankruptcy Legislation Amendment (Superannuation Contributions) Act 2007 (Cth)

Cases cited: Davies & Nicol as joint and several liquidators of Harris Scarfe Ltd v Chicago Boot Co Pty Ltd [2011] SASC 27; 82 ACSR 193 Ex parte Board of Trade; in Re Mutton (1887) 19 QBD 102 Lo Pilato v Kamy Saeedi Lawyers Pty Ltd (2017) 249 FCR 69 McMillan v Warner (trustee) [2022] FCAFC 20 Quickfund (Australia) Pty Ltd v Airmark Consolidators (2014) 222 FCR 13 Re Aarons; Ex parte the Bankrupt (1978) 33 FLR 2; 19 ALR 633 Re Lane (1909) 26 WN (NSW) 60 Re Nancarrow, an Insolvent [1916] SALR 198 Sandell v Porter (1966) 115 CLR 666 SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362