Cunningham (Trustee) v Gapes, in the matter of Gapes (Bankrupt) [2017] FCA 787

FEDERAL COURT OF AUSTRALIA

Cunningham (Trustee) v Gapes, in the matter of Gapes (Bankrupt) [2017] FCA 787 File number: QUD 858 of 2016

Judge: COLLIER J

Date of judgment: 13 July 2017

Catchwords: PRACTICE AND PROCEDURE – application for summary judgment under Federal Court of Australia Act 1976 (Cth) s 31A – whether respondent has more than a fanciful prospect of defending proceeding – no factual or evidentiary dispute to justify trial – legal principles clear BANKRUPTCY – where bankrupt was beneficiary of mother's will – where payment from mother's superannuation fund to her deceased estate – bankrupt had interest in residue of mother's estate – where no direct payment from superannuation fund to bankrupt – whether payment from third party deceased estate to wife of bankrupt was property divisible among creditors of bankrupt – whether bankrupt had interest in mother's superannuation fund as beneficiary of mother's will – whether money retained character of a payment from a superannuation fund after it was paid to deceased estate – Bankruptcy Act 1966 (Cth) ss 58, 116(2)(d)(iii), 116(2)(d)(iv)

Legislation: Bankruptcy Act 1966 (Cth) ss 31(1)(f), 58(1), 58(1)(b), 58(6), 116, 116(1), 116(2)(d)(iii), 116(2)(d)(iii)(A), 116(2)(d)(iv) Federal Court of Australia Act 1976 (Cth) ss 31A, 51A Superannuation Industry (Supervision) Act 1993 (Cth) Federal Court Rules 2011 (Cth) r 26.1 Succession Act 1981 (Qld) s 45(1)

Cases cited: Agar v Hyde (2000) 201 CLR 552 Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256 Carrigan v Honourable Senator Michaelia Cash [2017] FCAFC 86 Spencer v Commonwealth of Australia (2010) 241 CLR 118 Trustees of the Property of Morris (Bankrupt) v Morris (Bankrupt) [2016] FCA 846