Recent Cases

Frigger v Trenfield (No 3) [2023] FCAFC 49 (24 March 2023) (ALLSOP CJ, ANDERSON AND FEUTRILL JJ)


Catchwords:


APPEAL AND NEW TRIAL – appeal – appeal by way of rehearing – errors of fact – advantage of primary judge – principles of appellate review.

BANKRUPTCY AND INSOLVENCY – appeal from the decision of the primary judge in Frigger v Trenfield (No 10) [2021] FCA 1500 (primary judgment) – where the appellants made numerous challenges to the findings of the primary judge with respect to certain disputed assets – whether these disputed assets were contributed to the appellants’ self-managed superannuation fund, named the Frigger Superannuation Fund (FSF) such that they were trust property – whether the primary judge erred in finding that certain assets vested in the trustee in bankruptcy pursuant to s 58 of the Bankruptcy Act 1966 (Cth) (Bankruptcy Act) and were therefore divisible amongst the appellants’ creditors – whether the primary judge erred in finding that the appellants’ Bankwest Account No. 1 (BW1) was not a trust asset of the FSF – whether the primary judge erred in finding that the Bank of Queensland Account No. 1 (BOQ1) and Bank of Queensland Account No. 2 (BOQ2) vested in the first respondent in circumstances where the first respondent failed to identify which funds were deposited into BOQ1 and BOQ2 were funds that belonged to the appellants personally – whether primary judge erred in finding that the shares held by Commonwealth Securities Limited (CommSec) Share Trading Account Portfolio (Main Portfolio) in its custodial service vested in the first respondent – whether the primary judge erred by finding that the first respondent’s conduct in consenting to a payout of security of costs in the Supreme Court of Western Australia did not breach s 82 of the Bankruptcy Act – whether the primary judge erred by refusing to determine the appellants’ claims for losses caused by freezing the BOQ1 account and the Main Portfolio account which required the court to finally determine all controversies between the parties – where no error is detected in the primary judge’s reasoning.

PRACTICE AND PROCEDURE – whether the primary judge failed to provide the appellants with procedural fairness – where the appellants claim that they were denied the right to know and to be given an opportunity to respond to the case presented against them – ground of appeal rejected in its entirety.

SUPERANNUATION – relationship between superannuation and trust law – compliance with legislative and regulatory requirements – adequacy of documentation – finding of lack of merit in appeal grounds.

TRUSTS AND TRUSTEES – whether the primary judge erred in finding that assets vested in the trustee in bankruptcy, in circumstances where the validity of the sequestration orders was being challenged in matter WAD 66 of 2021 – where the appellants claimed that the bankruptcy notices were invalid and that sequestration orders were a nullity – whether the primary judge erred in finding that the appellants had not established that BW1, BOQ1, BOQ2, the CommSec share portfolio and the two residential properties were assets of the FSF – whether the primary judge erred in refusing to grant relief in relation to the trustee’s consent to payments out of court – whether the primary judge erred by failing to remove the first respondent as trustee in bankruptcy – whether the primary judge erred in refusing to determine the claims for losses caused by freezing of BOQ1 and the CommSec share portfolio – where no error is found in the primary judge’s reasoning – held: appeal dismissed.