Frigger v Trenfield (No 10) [2021] FCA 1500

Federal Court of Australia

Frigger v Trenfield (No 10) [2021] FCA 1500 File number: WAD 141 of 2019

Judgment of: JACKSON J

Date of judgment: 1 December 2021

Catchwords: BANKRUPTCY AND INSOLVENCY - application for declarations that various assets held in regulated superannuation fund and so not divisible among creditors - s 116(2)(d)(iii)(A) of the Bankruptcy Act 1966 (Cth) - principles as to when an asset is part of a fund - beneficial or remedial legislation - possible disposition of property after sequestration orders - purported dispositions ineffective - finding that assets not held in regulated superannuation fund - application dismissed SUPERANNUATION - meaning of 'regulated superannuation fund' in Superannuation Industry (Supervision) Act 1996 (Cth) (SIS Act) - finding that applicants' SMSF is a regulated superannuation fund - duties of trustees of self-managed superannuation funds (SMSFs) - failure to adequately distinguish SMSF assets and personal assets - purported contributions not compliant with SMSF trust deed - alleged contribution of residential property to SMSF in breach of s 65 and s 66 of the SIS Act - meaning of 'business real property' - contributions not effective and would have infringed SIS Act - failure to establish that claimed assets formed part of SMSF TRUSTS AND TRUSTEES - creation of express trusts - objective manifestation of intention - inferring intention - burden of proving existence of trust - lack of written evidence manifesting required intention - no reliable evidence of objective manifestation of intention before sequestration order - documents put before court deliberately altered by first applicant - mixing of trust funds and personal funds - significance of registration of 'trust receipts' on Personal Property Securities Register - whether notification of tax file number to financial institutions an objective manifestation of intention - uncertainty as to mechanism of contribution - uncertainty as to beneficiaries - no trust established over certain assets - construction of declarations of trust - lack of objective intention to transfer legal title to other trustees of SMSF - declarations effective to create separate trust, but not effective to contribute properties to SMSF BANKRUPTCY AND INSOLVENCY - administration of bankrupt estates - duties of trustee in bankruptcy - application for order removing trustee in bankruptcy - effect of bankruptcy on separate legal proceedings - claim that trustee not 'competent' to sign consent orders in separate proceedings by virtue of s 58(3) of the Bankruptcy Act - costs liabilities are debts provable in bankruptcy - s 58(3) only applies in respect of steps in proceedings commenced by creditors - successful appeal parties secured creditors due to security for costs - no proven loss or damage - claim relating to consent orders dismissed - alleged failure to take necessary steps in administration of bankrupt estate - inhibiting bankrupts' dealings with assets - allegation of improper purpose - allegations that trustee in bankruptcy gave false evidence - scope of trustee in bankruptcy's investigatory inquiries - allegation of collusion with third party - uncooperative and belligerent bankrupts - reasonable for trustee in bankruptcy to form view that it was not necessary to interview bankrupts - application for removal dismissed