Official Trustee in Bankruptcy v Trevor Newton Small Superannuation Fund Pty Ltd [2001] FCA 1267

FEDERAL COURT OF AUSTRALIA

Official Trustee in Bankruptcy v Trevor Newton Small Superannuation Fund Pty Ltd [2001] FCA 1267

bankruptcy – payments made to a superannuation fund – interests in superannuation funds excluded from property divisible among creditors by s 116(2)(d) of the Bankruptcy Act 1966 ("the Act") – difference between transfers of money into a superannuation fund and an interest in a fund – whether payments made at a time when bankrupt was aware he was insolvent are property divisible amongst his creditors – inference as to insolvency – what constitutes "consideration" for the purposes of s 121 of the Act – onus in relation to establishing existence of such consideration. Bankruptcy Act 1966 (Cth), ss 5(2), 5(3), 40(1)(g), 58, 115, 116(1), 116(2), 116(5), 120, 121(1), 121(2), 121(4), 121(5), 121(9), 129(4) Acts Interpretation Act 1901 (Cth), s 15AA NM Superannuation Pty Ltd v Young (1993) 41 FCR 182, referred to Mills v Meeking (1990) 169 CLR 214, cited Saraswati v R (1991) 172 CLR 1, cited R v L (1994) 49 FCR 534, applied Re Jury: Ashton v Prentice (1999) 92 FCR 68, applied Ashton v Prentice [1998] FCA 1464, referred to Official Trustee in Bankruptcy v Alvaro (1996) 138 ALR 341, cited PT Garuda Indonesia Ltd v Grellman (1992) 35 FCR 515, cited Barton v Official Receiver (1986) 161 CLR 75, applied In re Abbott [1983] Ch 45, cited Cook (Trustee), In the matter of Benson [2000] FCA 1777, followed

IN THE MATTER OF TREVOR NEWTON SMALL

OFFICIAL TRUSTEE IN BANKRUPTCY AS TRUSTEE OF THE BANKRUPT ESTATE OF TREVOR NEWTON SMALL v TREVOR SMALL SUPERANNUATION FUND PTY LIMITED (AS TRUSTEE OF THE TREVOR SMALL SUPERANNUATION FUND) ACN 074 496 692 & ANOR

N7761 of 2000

MADGWICK J

SYDNEY

6 SEPTEMBER 2001

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N7761 of 2001