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

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

The applicants failed to prove, at or before the date of their bankruptcy, any clear objective manifestation of an intention to treat the disputed bank accounts, share portfolio, or residential properties as assets of their SMSF in line with the trust deed and SIS Act requirements. The evidence (including balance sheets, returns, and trust documents) was unreliable, internally inconsistent, or prepared after bankruptcy, often self-serving, and some documents knowingly altered. The alleged contributions or trust declarations for residential properties were ambiguous, ineffective, and in breach of the SIS Act prohibition on acquiring residential property from members. No sufficient basis...

Parties
First Applicant: Angela Cecilia Theresa Frigger; Second Applicant: Hartmut Hubert Josef Frigger; First Respondent: Kelly-Anne Lavina Trenfield; Second Respondent: H & A Frigger Pty Ltd in its capacity as trustee of the Frigger Super Fund
Jurisdiction
Australia
Judgment Date
01 December 2021
Procedural Posture
Bankruptcy Application for Declarations and Orders / Judgment After Hearing
Outcome
Application dismissed
Legal Topics
Regulated Superannuation Fund Assets, Trust Asset Identification, Trustee in Bankruptcy Duties, SMSF Compliance and Asset Separation, Removal of Trustee in Bankruptcy
Bankruptcy and Insolvency Superannuation Trusts and Trustees Regulated Superannuation Fund Assets Trust Asset Identification Trustee in Bankruptcy Duties SMSF Compliance and Asset Separation Removal of Trustee in Bankruptcy

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Parties

Angela Cecilia Theresa Frigger

First Applicant

Hartmut Hubert Josef Frigger

Second Applicant

Kelly-Anne Lavina Trenfield

First Respondent

H & A Frigger Pty Ltd in its capacity as trustee of the Frigger Super Fund

Second Respondent

Procedural Posture

Bankruptcy Application for Declarations and Orders / Judgment After Hearing

Legal Issues

  1. 1 Whether specific assets (bank accounts, shares, properties) are part of a regulated superannuation fund (SMSF) and so not divisible among creditors under s 116(2)(d)(iii)(A) Bankruptcy Act 1966 (Cth)
  2. 2 Whether declarations of trust and contributions were effective to make assets part of the SMSF
  3. 3 Whether the SMSF is a regulated superannuation fund under the SIS Act

Ratio Decidendi

The applicants failed to prove, at or before the date of their bankruptcy, any clear objective manifestation of an intention to treat the disputed bank accounts, share portfolio, or residential properties as assets of their SMSF in line with the trust deed and SIS Act requirements. The evidence (including balance sheets, returns, and trust documents) was unreliable, internally inconsistent, or prepared after bankruptcy, often self-serving, and some documents knowingly altered. The alleged contributions or trust declarations for residential properties were ambiguous, ineffective, and in breach of the SIS Act prohibition on acquiring residential property from members. No sufficient basis...

Court Disposition

Application dismissed

Orders

  • 1. The application is dismissed.
  • 2. On or before 15 December 2021, the first respondent must file and serve written submissions on costs, including reserved costs, of up to three pages (excluding header).