Official Trustee in Bankruptcy v Kirkland, John Sloane & Anor [1997] FCA 1506

IN THE FEDERAL COURT OF AUSTRALIA

TASMANIA DISTRICT REGISTRY TG 15 of 1997

ON APPEAL FROM A JUDGMENT OF A SINGLE JUDGE OF THE FEDERAL

COURT OF AUSTRALIA

BETWEEN: OFFICIAL TRUSTEE IN BANKRUPTCY

Appellant

AND: JOHN SLOANE KIRKLAND

First Respondent

TNT SUPERANNUATION FUND PTY LIMITED

Second Respondent

JUDGES: RYAN, EINFELD and FOSTER JJ

DATE OF ORDER: 22 DECEMBER 1997

WHERE MADE: MELBOURNE (hEARD IN HOBART)

MINUTES OF ORDER

THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The order made on 25 July 1997 be set aside and in lieu thereof: (a) it is declared that Article 10.5 of the Rules referred to in the trust deed made on 11 April 1969 between Thomas Nationwide Transport Limited and TNT Superannuation Pty Limited as amended is, to the extent that it provides for forfeiture of benefits if the person otherwise entitled thereto becomes bankrupt or insolvent before 1 July 1994, void; (b) it is ordered: (i) that the second respondent pay to the applicant within 28 days of this Order the Preserved Withdrawal Benefit including all accrued interest to which John Sloane Kirkland, ("the bankrupt") but for the sequestration order of 31 August 1993, would have been entitled pursuant to the said Rules; (ii) that the costs of the applicant and the second respondent including reserved costs be taxed as between solicitor and client and retained or paid as the case may be out of the estate of the bankrupt. 3. The costs of the appellant and the second respondent of and incidental to the appeal be taxed as between solicitor and client and retained or paid as the case may be out of the estate of the bankrupt. Note: Settlement and entry of orders are dealt with in Order 36 of the Federal Court Rules.