Frigger v Trenfield (No 2) [2019] FCA 2009

Frigger v Trenfield (No 2) [2019] FCA 2009

The applicants failed to show that the respondents had no reasonable prospect of defending the claim that BOQ1 and BOQ2 were held on trust for the Frigger Super Fund. Although the evidence established a prima facie trail from BOQ1 and BOQ2 back to the Bankwest Retirement Advantage account, there was little more than assertion that that source account was itself held on the terms of the Frigger Super Fund, and there was an almost complete absence of objective manifestations of an intention that the relevant accounts were trust assets. The issues involved complex factual matters that should be resolved after discovery rather than on a summary judgment application. Particular discovery was...

Jurisdiction
Australia
Judgment Date
29 November 2019
Procedural Posture
Application for Summary Judgment and Application for Particular Discovery in Bankruptcy Related Proceedings Concerning Alleged Trust Assets of a Superannuation Fund / Interlocutory Applications
Outcome
The applicants' application for summary judgment was dismissed. The respondents' application for particular discovery was granted. Costs were reserved.
Legal Topics
['summary Judgment' 'particular Discovery' 'beneficial Ownership of Bank Accounts, Real Property and Securities' 'trust Property in Bankruptcy' 'self Managed Superannuation Fund Assets' 'abuse of Process']
['practice and Procedure' 'bankruptcy' 'trusts' 'discovery' 'superannuation'] ['summary Judgment' 'particular Discovery' 'beneficial Ownership of Bank Accounts, Real Property and Securities' 'trust Property in Bankruptcy' 'self Managed Superannuation Fund Assets' 'abuse of Process']

Case Brief

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Procedural Posture

Application for Summary Judgment and Application for Particular Discovery in Bankruptcy Related Proceedings Concerning Alleged Trust Assets of a Superannuation Fund / Interlocutory Applications

Legal Issues

  1. 1 ["Whether the respondents had no reasonable prospect of defending the applicants' claim that BOQ1 and BOQ2 were assets of the Frigger Super Fund and not divisible among creditors of the bankrupt estates." 'Whether the evidence objectively established that the funds in BOQ1 and BOQ2 were held on trust on the terms of the Frigger Super Fund trust deed.' 'Whether particular discovery should be ordered of documents concerning the source and ownership of funds in bank accounts, real properties and securities said to be assets of the Frigger Super Fund.' "Whether the respondents' application for discovery was brought for a collateral investigative purpose and amounted to an abuse of process." 'Whether r 20.13(3) of the Federal Court Rules 2011 (Cth) confined the discretion to order particular discovery under r 20.21.']

Ratio Decidendi

The applicants failed to show that the respondents had no reasonable prospect of defending the claim that BOQ1 and BOQ2 were held on trust for the Frigger Super Fund. Although the evidence established a prima facie trail from BOQ1 and BOQ2 back to the Bankwest Retirement Advantage account, there was little more than assertion that that source account was itself held on the terms of the Frigger Super Fund, and there was an almost complete absence of objective manifestations of an intention that the relevant accounts were trust assets. The issues involved complex factual matters that should be resolved after discovery rather than on a summary judgment application. Particular discovery was...

Court Disposition

The applicants' application for summary judgment was dismissed. The respondents' application for particular discovery was granted. Costs were reserved.

Orders

  • ["The applicants' application for summary judgment in respect of the orders sought at paragraphs 1 and 2 of the second amended originating application is dismissed." 'By 24 January 2020, save to the extent that a document has been annexed to an affidavit filed in the proceeding before the date of the order, the...