Raelene Vivian, suing in her capacity as the Deputy Commissioner of Taxation (Superannuation) v Fitzgeralds [2007] FCA 1602

FEDERAL COURT OF AUSTRALIA

Raelene Vivian, suing in her capacity as the Deputy Commissioner of Taxation (Superannuation) v Fitzgeralds [2007] FCA 1602

SUPERANNUATION – where contraventions of ss 62(1) and 65(1) of the Superannuation Industry (Supervision) Act 1993 (Cth) have been admitted – where declarations are sought that would reflect those admissions

CIVIL PENALTIES – consideration of the imposition of civil penalties pursuant to s 197(1) of the Superannuation Industry (Supervision) Act 1993 (Cth) - where the contraventions involved monies held in a self-managed superannuation fund being "stripped out" by the respondents who were the trustees of that fund - where those contraventions were deliberate and significant – consideration of other principles and factors relevant to the assessment of an appropriate penalty

FEDERAL COURT – ORIGINAL JURISDICTION – PROCEDURE AND EVIDENCES – parties – application for civil penalties pursuant to s 197(1) of the Superannuation Industry (Supervision) Act 1993 (Cth) – whether application should be brought in individual or official name of Registrar or delegate RAELENE VIVIAN, SUING IN HER CAPACITY AS THE DEPUTY COMMISSIONER OF TAXATION (SUPERANNUATION) OF THE COMMONWEALTH OF AUSTRALIA v ROBERT BURLEY FITZGERALDS & ANOR QUD318 OF 2007

LOGAN J

15 OCTOBER 2007

BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QUD318 OF 2007

BETWEEN: RAELENE VIVIAN, SUING IN HER CAPACITY ASTHE DEPUTY COMMISSIONER OF TAXATION (SUPERANNUATION) OF THE COMMONWEALTH OF AUSTRALIA

Applicant

AND: ROBERT BURLEY FITZGERALDS & ANOR

Respondent

JUDGE: LOGAN J DATE OF ORDER: 15 OCTOBER 2007

WHERE MADE: BRISBANE

THE COURT DECLARES THAT: 1. The respondents, as trustees of the Axent Group Superannuation Fund ("the Fund"), caused the Fund: (a) on 5 June 2001 to pay the first respondent the sum of $12,000 from the Fund without authorisation under the governing rules of the Fund; (b) on 13 June 2001 to pay the first respondent the sum of $23,000 from the Fund without authorisation under the governing rules of the Fund; and (c) on 29 June 2001 to apply the net proceeds of sale of the property belonging to the Fund at Unit 3 (Lot 2), 38 Jade Drive, Nerang, in the State of Queensland, as to $13,738.69 to the first respondent and as to $99,994 to William John Fletcher as the liquidator of Antrend Pty Ltd (in liquidation) in satisfaction of a claim made by him against the first respondent, and thereby contravened: (i) s 62(1) of the Superannuation Industry (Supervision) Act 1993 (Cth) ("the SISA") by failing to ensure that the Fund was maintained for one or more of the purposes set out in s 62(1), instead maintaining the Fund for the purpose or significant purpose of making payments to satisfy a claim made against the first respondent by a third party; and (ii) s 65(1) of the SISA by giving financial assistance using the resources of the Fund to a member of the Fund, namely the first respondent.