Re Kirkland, John Sloane; Ex Parte Official Trustee in Bankruptcy [1997] FCA 684

Re Kirkland, John Sloane; Ex Parte Official Trustee in Bankruptcy [1997] FCA 684

The bankrupt was not entitled to payment of the Preserved Withdrawal Benefit at resignation, sequestration, or currently, as statutory and trust conditions for release were not satisfied. The rule in Saunders v Vautier does not apply in superannuation where statutory requirements restrict access.

Parties
Applicant: Official Trustee in Bankruptcy; First Respondent: John Sloane Kirkland; Second Respondent: TNT Superannuation Fund Pty Ltd
Jurisdiction
Australia
Judgment Date
25 July 1997
Procedural Posture
Bankruptcy / Final Judgment
Outcome
Application dismissed with costs, including reserved costs.
Legal Topics
Property Divisible Among Creditors, Preserved Withdrawal Benefit, Superannuation Fund Access During Bankruptcy
Bankruptcy Superannuation Property Divisible Among Creditors Preserved Withdrawal Benefit Superannuation Fund Access During Bankruptcy

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Parties

Official Trustee in Bankruptcy

Applicant

John Sloane Kirkland

First Respondent

TNT Superannuation Fund Pty Ltd

Second Respondent

Procedural Posture

Bankruptcy / Final Judgment

Legal Issues

  1. 1 Whether a Preserved Withdrawal Benefit under a superannuation fund is property divisible among creditors in bankruptcy
  2. 2 Whether the Official Trustee can call for immediate payment of the benefit under the rule in Saunders v Vautier

Ratio Decidendi

The bankrupt was not entitled to payment of the Preserved Withdrawal Benefit at resignation, sequestration, or currently, as statutory and trust conditions for release were not satisfied. The rule in Saunders v Vautier does not apply in superannuation where statutory requirements restrict access.

Court Disposition

Application dismissed with costs, including reserved costs.

Orders

  • The application be dismissed with costs, including reserved costs.