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 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

Legislation:

Acts Interpretation Act 1901 (Cth) s 13

Bankruptcy Act 1966 (Cth) ss 5, 19, 30, 40, 52, 58, 60, 115, 116, 157, 179, Schedule 2 (Insolvency Practice Schedule (Bankruptcy)) ss 1-1, 90-15(3)

Evidence Act 1995 (Cth) ss 46, 60, 138

Federal Court of Australia Act 1976 (Cth) s 21

Income Tax Assessment Act 1936 (Cth) ss 6, 202, 202A, 202B, Part VA

Income Tax Assessment Act 1997 (Cth) ss 995-1, 292-85

Personal Properties Securities Act 2009 (Cth) ss 12, 150, 151

Superannuation (Excess Non-concessional Contributions Tax) Act 2007 (Cth) s 5

Superannuation Industry (Supervision) Act 1993 (Cth) ss 10, 17A, 19, 31, 34, 35AE, 35B, 36, 40, 42, 42A, 45, 52, 65, 66, 67, 120, 126J, 126K, Part 15

Superannuation Industry (Supervision) Regulations 1994 (Cth) regs 4.09A, 6.01, 6.18, 8.03, Schedule 1

Federal Court Rules 2011 (Cth) r 39.11

Insolvency Practice Rules (Bankruptcy) 2016 (Cth) rr 42-10, 42-15, 42-30

Electronic Transactions (Queensland) Act 2001 (Qld) s 14

Property Law Act 1974 (Qld) s 199

Electronic Transactions Act 2011 (WA) s 10

Property Law Act 1969 (WA) s 20

Transfer of Land Act 1893 (WA) s 55

Rules of the Supreme Court 1971 (WA) O25, r 7

Cases cited:

Adsett v Berlouis (1992) 37 FCR 201

AMP Music Box Enterprises Ltd v Hoffman [2002] BCC 996

Associated Alloys Pty Limited v ACN 001 452 106 Pty Limited (in liquidation) [2000] HCA 25; (2005) 202 CLR 588

Atwill v Commissioner of Stamp Duties (1970) 72 SR (NSW) 415

Australian Securities and Investments Commission v Big Star Energy Ltd (No 3) [2020] FCA 1442; (2020) 389 ALR 17

Avel Pty Ltd v Multicoin Amusements Pty Ltd (1990) 171 CLR 88

Bahr v Nicolay (No 2) (1988) 164 CLR 604

Blatch v Archer (1774) 1 Cowp 63; (1774) 98 ER 969

Boensch v Pascoe [2019] HCA 49; (2019) 268 CLR 593

Borg v de Vries (Trustee), in the matter of the Bankrupt Estate of David Morton Bertram [2018] FCA 2116

Boscawen v Bajwa [1996] 1 WLR 328

Byrnes v Kendle [2011] HCA 26; (2011) 243 CLR 253

Caron and Seidlitz v Jahani and McInerney in their capacity as liquidators of Courtenay House Pty Ltd (in liq) & Courtenay House Capital Trading Group Pty Ltd (in liq) (No 2) [2020] NSWCA 117; (2020) 102 NSWLR 537

Carter Holt Harvey Wood Products Australia Pty Ltd v Commonwealth [2019] HCA 20; (2019) 268 CLR 524

Commonwealth v Fernando [2012] FCAFC 18; (2012) 200 FCR 1

Comptroller of Stamps (Victoria) v Howard-Smith (1936) 54 CLR 614

Conway and Insolvency and Trustee Service Australia [2002] AATA 1343; (2002) 72 ALD 791

Conway v Insolvency & Trustee Service Australia [2003] FCA 321

Conway v Insolvency & Trustee Service Australia [2003] FCA 943

Cook v Cook (1986) 162 CLR 376

Corin v Patton (1990) 169 CLR 540

Coshott v Coshott [2013] FCA 907

Coshott v Prentice [2014] FCAFC 88; (2014) 221 FCR 450

Department of Health v Arumugam [1988] VR 319

Devaynes v Noble (1816) 1 Mer 529; 35 ER 767

DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties [1980] 1 NSWLR 510

Domino Hire Pty Ltd v Pioneer Park Pty Ltd (in liq) [2003] NSWSC 496; (2003) 21 ACLC 1330

Duncan (as Trustee for the Bankrupt Estate of Garrett) v National Australia Bank Ltd [2006] SASC 239; (2006) 95 SASR 208

Electronic Rentals Pty Ltd v Anderson (1971) 124 CLR 27

Farrow Mortgage Services Pty Ltd v Winfield [1992] 2 Qd R 282

Federal Commissioner of Taxation v Commercial Nominees of Australia Ltd [1999] FCA 1455; (1999) 167 ALR 147

Federal Commissioner of Taxation v Commercial Nominees of Australia Ltd [2001] HCA 33; (2001) 179 ALR 655

Federal Commissioner of Taxation v Radnor Pty Ltd (1991) 102 ALR 187

Ferguson v Federal Commissioner of Taxation (1979) 26 ALR 307

Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 234 CLR 52

Foskett v McKeown [2001] 1 AC 102

Frigger v Banning (No 8) [2019] FCA 1319

Frigger v Kitay (No 2) [2020] FCA 497; (2020) 143 ACSR 655

Frigger v Trenfield [2019] FCA 1746

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

Frigger v Trenfield (No 4) [2020] FCA 797

Frigger v Trenfield (No 6) [2020] FCA 934

Frigger v Trenfield (No 7) [2020] FCA 1740

Frigger v Trenfield (No 9) [2021] FCA 652

Frigger, in the matter of an application by Frigger [2019] FCA 1730; (2019) 139 ACSR 329

Gore v Australian Securities and Investments Commission [2017] FCAFC 13; (2017) 249 FCR 167

Harding v Harding (1886) 17 QBD 442

Herdegen v Federal Commissioner of Taxation (1988) 84 ALR 271

In re Schebsman; Ex parte Official Receiver, the Trustee v Cargo Superintendents (London) Ltd & Schebsman [1944] Ch 83

Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22

Jones v Dunkel (1959) 101 CLR 298

JW Broomhead (Vic) Pty Ltd (in liq) v JW Broomhead Pty Ltd [1985] VR 891

Kauter v Hilton (1953) 90 CLR 86

Kennon v Spry [2008] HCA 56; (2008) 238 CLR 366

Kitay, in the matter of Frigger (No 2) [2018] FCA 1032

Korda v Australian Executor Trustees (SA) Limited [2015] HCA 6; (2015) 255 CLR 62

Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361

La Housse v Counsel [2008] WASCA 207

Latec Investments Ltd v Hotel Terrigal Pty Ltd (in liq) (1965) 113 CLR 265

Legal Services Board v Gillespie-Jones [2013] HCA 35; (2013) 249 CLR 493

Lock v Commissioner of Taxation [2003] FCA 309; (2003) 129 FCR 1

Meulman v OTC Ltd (1990) 96 ALR 223

National Australia Bank Ltd v Darroch [2010] NSWSC 1202

NM Superannuation Pty Ltd v Young (1993) 41 FCR 182

Official Trustee in Bankruptcy v Trevor Newton Small Superannuation Fund Pty Ltd [2001] FCA 1267; (2001) 114 FCR 160

Olsson v Dyson (1969) 120 CLR 365

Pilmer v HIH Casualty & General Insurance Ltd (No 2) [2004] SASC 389; (2004) 90 SASR 465

Re Armstrong (deceased) [1960] VR 202

Re Armstrong; Ex parte Gilchrist (1886) 17 QBD 521

Re Biposo Pty Ltd, Condon v Rodgers (No 3) (1995) 17 ACSR 730

Re Cozens [1913] 2 Ch 478

Re Global Finance Group Pty Ltd [2002] WASC 63; (2002) 26 WAR 385

Re Lauer; Corby v Lyttleton [2017] VSC 728

Re Lin; Law v Lin (1960) 18 ABC 142

Re Snowden (deceased) [1979] Ch 528

Russell v Scott (1936) 55 CLR 440

Sands Contracting Pty Ltd v Foodcorp (VIC) Pty Ltd [2020] FCA 1274

Sarkis v Moussa [2012] NSWCA 136; (2012) 262 FLR 359

Saunders v Deputy Commissioner of Taxation [2010] WASC 261; (2010) 80 ATR 549

Scott v Federal Commissioner of Taxation (No 2) (1966) 40 ALJR 265

Sheahan (liquidator) & Magill Constructions Holdings Pty Ltd (in liq) v Workers Rehabilitation & Compensation Corporation (1991) 56 SASR 193

T Choithram International SA v Pagarani [2001] 1 WLR 1

Technomin Australia Pty Ltd v Xstrata Nickel Australasia Operations Pty Ltd [No 4] [2014] WASC 405

Trident General Insurance Co Ltd v McNiece Bros Ltd (1988) 165 CLR 107

Trustees of the Property of Morris (Bankrupt) v Morris (Bankrupt) [2016] FCA 846

Vines v Djordjevitch (1955) 91 CLR 512

Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32; (2016) 241 FCR 121

Waters v Mercedes Holdings Pty Ltd [2012] FCAFC 80; (2012) 203 FCR 218

Wheatley v Kavanagh [2018] NSWSC 1359; (2018) 19 BPR 38,691

William Brandt's Sons & Co v Dunlop Rubber Co Ltd [1905] 2 AC 454

Young v Thomson [2017] FCAFC 140; (2017) 253 FCR 191

ZX Group Pty Ltd v LPD Corporation Pty Ltd [2013] VSC 542

Division:

General Division

Registry:

Western Australia

National Practice Area:

Commercial and Corporations

Sub-area:

General and Personal Insolvency

Number of paragraphs:

751

Date of last submissions:

24 May 2021 (applicants)

25 May 2021 (first respondent)

Date of hearing:

27-31 July 2020, 31 August 2020, 1-2, 7, 15 & 21 September 2020 and 27 November 2020

Counsel for the Applicants:

The applicants appeared in person

Counsel for the First Respondent:

Mr SD Majteles

Solicitor for the First Respondent:

Carles Solicitors

Counsel for the Second Respondent:

The second respondent did not appear

ORDERS

WAD 141 of 2019

BETWEEN:

ANGELA CECILIA THERESA FRIGGER

First Applicant

HARTMUT HUBERT JOSEF FRIGGER

Second Applicant

AND:

KELLY-ANNE LAVINA TRENFIELD

First Respondent

H & A FRIGGER PTY LTD IN ITS CAPACITY AS TRUSTEE OF THE FRIGGER SUPER FUND

Second Respondent

order made by:

JACKSON J

DATE OF ORDER:

1 DECEMBER 2021

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    On or before 15 December 2021, the first respondent must file and serve written submissions on the question of the costs of the proceeding, including any reserved costs, of no more than three pages in length (excluding header).

3.    On or before 12 January 2022, the other parties must file and serve any written submissions in reply, of no more than three pages in length (excluding header).

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Table of Contents

INTRODUCTION

[1]

Background

[12]

Description of the issues - disputed assets and the applicants' interests in the FSF

[21]

Terminology

[24]

BOQ1 and BOQ2

[29]

The CommSec Main Portfolio

[32]

The Residential Properties

[35]

Whether the FSF is a regulated superannuation fund

[40]

Description of the issues - the orders concerning costs in the Court of Appeal

[41]

Description of the issues - removal of the first respondent as the trustee in bankruptcy

[46]

THE WITNESSES

[50]

Angela Frigger

[51]

The altered St George Bank statement

[52]

The altered CommSec statement

[73]

Other matters concerning Mrs Frigger's credibility

[86]

Kelly-Anne Trenfield

[90]

FIRST GROUP OF ISSUES - ARE THE DISPUTED ASSETS PART OF THE FSF?

[96]

Principles

[96]

When a court will find that assets are held subject to a trust

[96]

When an asset is part of a fund

[120]

Questions of timing

[136]

Contextual matters

[145]

Terms of the FSF Deed

[157]

Management of the FSF

[174]

Who were trustees and members of the FSF at various times?

[178]

Is the FSF a regulated superannuation fund within the meaning of the SIS Act?

[198]

BW1

[211]

The first respondent's tracing of funds

[212]

The evidence about BW1

[221]

What can be inferred from the transactions in BW1

[295]

The applicants' tracing exercise

[304]

Other reasons advanced by the first respondent as to why BW1 is not a trust asset

[326]

Conclusions about BW1

[329]

BOQ1

[333]

Opening of BOQ1 and source of funds

[335]

Matters relied on by the applicants in connection with BOQ1

[340]

Notification of the FSF TFN

[348]

Conclusion regarding BOQ1 and BOQ2

[370]

The CommSec Main Portfolio

[371]

The parties' cases

[372]

Another necessary digression - an application to exclude evidence

[379]

The opening of the Main Portfolio

[385]

Contextual evidence about the purchase of shares in the Main Portfolio

[393]

Notation of the FSF in documents issued or kept by share registries and ASX

[407]

Notification of the FSF TFN

[416]

Conclusions regarding the Main Portfolio

[449]

The Residential Properties

[459]

The evidence as to the Residential Properties being held in the FSF

[463]

The effect of the 2014 Declarations

[482]

Breach of the SIS Act

[505]

Conclusion regarding the Residential Properties

[530]

Summary of conclusions and orders regarding the Disputed Assets

[532]

SECOND GROUP OF ISSUES - THE COURT OF APPEAL ORDERS

[537]

THIRD GROUP OF ISSUES - THE REMOVAL OF TRUSTEE IN BANKRUPTCY

[550]

Principles

[550]

The course of the administration of the bankrupt estates

[560]

The grounds for seeking the removal of the first respondent as trustee in bankruptcy

[575]

(1)    Failure to obtain or review information said to be relevant to the question of the capacity in which assets are owned

[582]

(a)    Failure to follow up BOQ for HSBC bank cheque (no date provided in Schedule 3)

[584]

(b)    Sends follow up letter to BOQ only after receiving notice of demand for loss from applicants (17 October 2018)

[591]

(c)    Failure to check BWA [Bankwest] bank statements (September 2018)

[594]

(2)    Failure to take steps required in the administration

[598]

(a)    Fails to prove alleged creditors (31 August 2018 until present)

[598]

(b)    Fails to offset applicants['] claims against alleged creditors (31 August 2018 until present)

[613]

(3)    Inhibiting the applicants' dealings with assets

[615]

(a)    Freezes BW1 account (September 2019)

[615]

(b)    Fails to acknowledge that BOQ1 and BOQ2 are FSF assets paras 12, 13, 15-16 (31 August 2018 until present)

[626]

(c)    Freezes [Main Portfolio] on the grounds listed in April 2019 [sic] above (September 2019)

[627]

(d)    Notifies CommSec that the securities in the Main Portfolio were assets divisible among the creditors of the bankrupt estates and making related claims to the Australian Financial Complaints Authority paras 26, 27, 28, 29, 30, 31, 32 (31 August 2018 until present)

[627]

(e)    Informs AFSA that the applicants failed to inform Commsec that they were acting on behalf of FSF and were trustees of FSF in 1998 in circumstances where: (a) the applicants were not trustees; (b) could not be trustees (August 2019)

[627]

(f)    Informs AFSA that the applicants had acted suspiciously in the administration of their estates and had hampered the respondent's administration (August 2019)

[627]

(g)    Freezes $6,500,000 of assets held by the applicants in their SMSF, without proving any alleged creditors, causing the applicants loss of more than $2,500,000 in lost earnings and capital gains (31 August 2018 until present)

[644]

(h)    Places a caveat on the Residential Properties paras 38, 39, 40, 43 (31 August 2018 until present)

[646]

(4)    Correspondence from first respondent to third parties of which the applicants complain

[649]

(a)    Send a letter to ATO attaching five documents, in an attempt to persuade the regulator the FSF should be declared an unregulated super fund (April 2019)

[649]

(b)    Sends an email on ATO business portal (which is for the exclusive use of FTI Consulting business with the ATO) to ATO attaching five documents, in an attempt to persuade the regulator the FSF should be declared an unregulated super fund (October 2019)

[649]

(c)    Sends an email on ATO website (which website is for the exclusive use of persons connected with SMSFs reporting unrectified contraventions) to ATO attaching five documents, in an attempt to persuade the regulator the FSF should be declared an unregulated super fund. On 15 November 2019 the ATO informed the respondent she has no legal right to obtain information about the FSF (4 November 2019)

[649]

(d)    Sends emails to share registry staff, disclosing the applicants['] tax file numbers (April 2020)

[667]

(e)    Sends emails to share registry staff, informing hundreds of people the applicants have attempted to 'circumvent' the [B]ankruptcy [A]ct (April 2020)

[669]

(5)    Giving false evidence

[670]

(a)    States on oath in this action she does not have bank statements for cheques drawn on BW[1] and paid into HSBC (June 2019)

[670]

(b)    States on oath in this action she does not have copy of HSBC bank cheque paid into BOQ3 in March 2018 (June 2019)

[679]

(c)    States on oath she is unable to trace the BOQ funds to assets held by the FSF when the tracing exercise had already been completed by [Official Trustee] in August 2018 (May 2020)

[680]

(6)    Signature of costs orders

[687]

(a)    Signs consent orders for indemnity costs and dismissal against the applicants in WAD 607, without becoming a party (September 2018)

[687]

(b)    Signs consent orders in CACV45/2016 without offsetting applicants claim against Kitay; applicants lose $25,000 (October 2018). See also paras 51 and 57 of applicants' written opening submissions

[701]

(c)    Signs consent orders in CACV56 and 62/2015 without: (a) Becoming a party in the action; (b) without [sic] offsetting applicants claim against Kitay; and (c) applicants lose $62,500 (October 2018). See also para 58 of applicants' written opening submissions

[701]

(7)    Collusion with Mr Kitay

[702]

(a)    Receives letter from Kitay['s] lawyer; accepts offer of pro bono assistance from Stephenson (October 2018)

[702]

(8)    Failure to interview the applicants

[708]

Conclusion on removal of the first respondent

[739]

Remuneration and costs

[747]

CONCLUSION

[750]

Schedule 1

Schedule 2

REASONS FOR JUDGMENT

JACKSON J:

INTRODUCTION

1    The applicants in this proceeding are Angela and Hartmut Frigger, a wife and husband who at the time of the making of the application were undischarged bankrupts. The first respondent is their trustee in bankruptcy, Kelly Anne Trenfield. The second respondent, H & A Frigger Pty Ltd (HAF), is a former trustee of the applicants' self-managed superannuation fund (SMSF), the Frigger Super Fund (FSF).

2    The issues in this case may be divided into three groups. The first concerns whether certain assets are property divisible amongst the creditors of the bankrupt estates. This turns on whether the applicants hold interests in the assets by way of their interests in the FSF. For some of the assets, the issue arises directly, because the applicants seek declarations that they do hold interests in those assets by way of the FSF. For other assets, while the applicants do not seek declarations to that effect, the issue still arises because they do seek orders that would be consequential on findings that the assets are part of the FSF. There is a related issue about whether the FSF is a regulated superannuation fund within the meaning of the Superannuation Industry (Supervision) Act 1993 (Cth) (SIS Act). The assets in question, which I will call the disputed assets, are:

(1)    two bank accounts with Bank of Queensland Limited, one of which holds more than $2.8 million (BOQ1), the other of which holds just over $50 (BOQ2);

(2)    shares held in a share portfolio (Main Portfolio) administered by the share broker, Commonwealth Securities Limited (CommSec); and

(3)    two parcels of residential land in suburbs of Perth, one in Bayswater (Bayswater Property) and the other in Como (Como Property, together the Residential Properties).

3    As will be seen, while not the subject of any of the declarations the applicants seek, it was also in issue whether a Bankwest Retirement Advantage account in Mrs Frigger's name (BW1) was an asset of the FSF.

4    The second group of issues concerns orders relating to costs that were made by the Court of Appeal of Western Australia. There are three relevant orders, each made in a different appeal. The first respondent consented to the orders in her capacity as trustee in bankruptcy of the applicants. The applicants seek declarations that the minutes of consent orders, and the orders that followed them, are 'incompetent', and claim losses they say they have suffered as a result of the orders.

5    The third group of issues concerns the first respondent's conduct of the administration of the bankrupt estate. The main question raised by the applicants is whether the first respondent should be removed as trustee of the applicants' bankrupt estates. There are also issues raised as to whether the court should order that the first respondent may not recover any costs or remuneration associated with the Bank of Queensland accounts, the Residential Properties and the costs orders in the Court of Appeal.

6    There is one other group of issues arising from the relief sought which I mention for completeness. It concerns whether the applicants are entitled to compensation in relation to losses said to have been caused by a hold placed on BOQ1 at the instigation of the first respondent and the applicant's inability to trade the shares in the Main Portfolio. For reasons published as Frigger v Trenfield (No 4) [2020] FCA 797, I ordered, in effect, that any hearing to establish and quantify those alleged losses would take place after delivery of this judgment, if the court determines that any of the relevant assets are indeed FSF assets.

7    The orders the applicants seek in this proceeding are sought under s 30 of the Bankruptcy Act 1966 (Cth) and s 90-15(3) of Schedule 2 to that Act, that is, the Insolvency Practice Schedule (Bankruptcy). Some of the orders are declarations which are sought in the alternative under s 21 of the Federal Court of Australia Act 1976 (Cth). In summary, the applicants seek:

(1)    declarations that BOQ1, BOQ2 and the Residential Properties are held in the FSF on trust for the beneficiaries of that fund, and so pursuant to s 116(2)(d)(iii)(A) of the Bankruptcy Act are not assets divisible among creditors;

(2)    compensation for losses the applicants say they have incurred as a result of the first respondent having placed holds or freezes on BOQ1;

(3)    an order requiring the first respondent to remove caveats she has placed on the Residential Properties and to pay any losses caused by the caveats;

(4)    declarations that the various consent orders and costs assessments in the Court of Appeal are 'incompetent' pursuant to s 58(3)(b) of the Bankruptcy Act;

(5)    compensation for losses resulting from the Court of Appeal costs orders and orders effectively requiring the first respondent to apply to that court to have the orders set aside;

(6)    orders disentitling the first respondent to remuneration and costs in relation to the above matters;

(7)    orders requiring the first respondent to write to CommSec and the ASX to remove a trading suspension on the Main Portfolio which appears to have been placed following a previous letter from the first respondent to CommSec, and requiring her to say that the securities in that account have not vested in her pursuant to s 58 of the Bankruptcy Act;

(8)    compensation for losses said to have been caused by the suspension of trading in the Main Portfolio;

(9)    an order removing the first respondent as the trustee in bankruptcy of the applicants' estates; and

(10)    costs.

8    The first respondent opposes all the orders sought.

9    HAF was joined as second respondent for reasons given in Frigger v Trenfield (No 6) [2020] FCA 934 (Frigger (No 6)). It has filed a submitting notice which is qualified, in the sense that it does not submit to any order or finding on three specified issues said to have been raised by the first respondent, namely: (a) HAF's role as trustee or former trustee of the FSF; (b) mortgages registered on the properties in Como, Bayswater and Applecross; and (c) whether or not the second respondent is named as a secured party in the Personal Properties Securities Register (PPSR). It will be necessary to make findings about the identity of the trustees of the FSF over time, including HAF, although it is not clear that those findings are either the result of issues raised by the first respondent or opposed by or adverse to HAF. Save for that, it will not be necessary to deal with the issues specified in HAF's submitting notice or to refer to HAF's position in the litigation separately to the position of the applicants; it is common ground that HAF's interests are identical to those of the applicants.

10    As prolific self-represented litigants, the applicants made a large number of contentions in their many affidavits and submissions. That proliferation of contentions was compounded by the changing nature of the positions they took in the case over time. It is not possible to address every one of those contentions in terms in these reasons. Where I have not addressed a submission that the applicants have made, it is because I do not consider it sufficiently cogent to warrant express mention.

11    For the following reasons the application will be dismissed.

Background

12    Before describing the issues in more detail it is convenient to set out some relatively uncontentious background to the applicants, the respondents and the FSF.

13    The applicants are husband and wife. There was little direct evidence as to their respective backgrounds. But records show that the first applicant, Mrs Frigger, is 68 years old (ACTF 151 - I will use this format to refer to the 18 affidavits of Mrs Frigger which the applicants put into evidence, which will be numbered in the order in which they were sworn and filed as set out in Schedule 1 to this judgment). Mrs Frigger is now retired, although the volume of litigation in which she and Mr Frigger have been personally involved in the last 13 or so years makes that an incomplete description of her working status. Before her retirement she worked as an accountant. She has a Bachelor of Accounting from the Western Australian Institute of Technology (now Curtin University). She qualified as a Certified Practising Accountant and is a Fellow of the National Tax and Accountants Association.

14    Mr Frigger is 66 years old (ACTF 153). He too is retired. During his working life he was an engineer. It is clear that through investment, entrepreneurship or other means, he and Mrs Frigger had accumulated substantial assets by the time they were declared bankrupt. Much of this case concerns the capacity in which they held some of those assets.

15    The FSF was formed on about 1 July 1997 by the execution of a deed entitled 'Superannuation Trust Deed for a Self-Managed Fund for Frigger Super Fund' (FSF Deed). Its members, that is the beneficiaries of the trust, may have changed over time, but they have always included the applicants.

16    The first trustee of the FSF was a company called Serenity Holdings Pty Ltd, which subsequently changed its name to Computer and Accounting Tax Pty Ltd (so, while there will occasionally be a need to use the former name, I will define it as CAT). It appears that CAT was trustee of the FSF until about July 2010 (KAT 4 para 66 - I will adopt a similar naming convention for the first respondent's affidavits as I have for those of the applicants - see Schedule 1). An order for its winding up in insolvency was made on 6 May 2010 (KAT 4 para 27). Mervyn Kitay is its liquidator (KAT 4 para 26).

17    When other persons or entities were, and were not, trustees of the FSF proved to be in dispute and has implications for the main issues in the proceeding. I will consider that question later.

18    The applicants' bankruptcies occurred when this court made a sequestration order against their respective estates on 20 July 2018: Kitay, in the matter of Frigger (No 2) [2018] FCA 1032. It is not necessary to describe the events leading up to the bankruptcy in any detail. At one time the applicants claimed that they had an appeal or other proceedings on foot which would have resulted in the setting aside or annulment of their bankruptcies. However by force of an order made by Charlesworth J on 17 April 2020, an application for an extension of time to appeal from the sequestration order was dismissed: Frigger v Kitay (No 2) [2020] FCA 497; (2020) 143 ACSR 655. Therefore the court proceeds on the basis that the applicants' attempts to appeal from or otherwise overturn the sequestration orders have been unsuccessful. There was a fresh application to annul the bankruptcies made after judgment was reserved. dismissed an attempt by the applicants, based on their application to annul, to have me stay judgment in this proceeding: Frigger v Trenfield (No 9) [2021] FCA 652. As at the date of this judgment, the annulment application had been neither granted nor dismissed.

19    The Official Trustee in Bankruptcy became the applicants' trustee in bankruptcy on the making of the sequestration order. On 31 August 2018 the applicant's creditors passed a special resolution appointing the first respondent and a partner in her firm, Paul Allen, as trustees in bankruptcy, in place of the Official Trustee, pursuant to s 157 of the Bankruptcy Act (KAT 1 paras 3-4, p 30). Mr Allen has since retired from that position (KAT 4 para 21), so the first respondent, Mrs Trenfield, is the applicants' sole trustee in bankruptcy.

20    That is about all that can be said that is uncontentious in this proceeding. I will now describe the issues between the parties in more detail.

Description of the issues - disputed assets and the applicants' interests in the FSF

21    The first group of issues concerns whether, as at the relevant date, the disputed assets were held in the FSF. The significance of that question stems from s 116(1)(a) of the Bankruptcy Act, which provides that, subject to the Act:

(a)    all property that belonged to, or was vested in, a bankrupt at the commencement of the bankruptcy, or has been acquired or is acquired by him or her, or has devolved or devolves on him or her, after the commencement of the bankruptcy and before his or her discharge

is property divisible amongst the creditors of the bankrupt.

As this indicates, the relevant date is 'the commencement of the bankruptcy', a concept that will be explained below.

22    The applicants rely on s 116(2)(d)(iii)(A) of the Bankruptcy Act as an exception to this. It provides that s 116(1) does not extend to certain specified kinds of property, including 'the interest of the bankrupt ina regulated superannuation fund (within the meaning of the Superannuation Industry (Supervision) Act 1993 [(Cth)])'. The applicants seek declarations that BOQ1, BOQ2 and the Residential Properties fall within this exception, and they also seem to rely on it in relation to the Main Portfolio (although a declaration under it is not sought in the originating application). So the central issue is whether the applicants hold beneficial interests in the disputed assets by way of their interests in the FSF. Since there is no question that between them they held substantial interests in the FSF, the key question is whether the disputed assets were assets of the FSF. Whether the FSF is a regulated superannuation fund within the meaning of the SIS Act is also in issue.

23    For completeness, I note that the applicants do not rely on s 116(2)(a) of the Bankruptcy Act. That section provides that s 116(1) does not extend to 'property held by the bankrupt in trust for another person'. The applicants seek no declaration that s 116(2)(a) applies in relation to any of the disputed assets. If they had, they would have faced the difficulty that the High Court has construed the provision to mean that if a bankrupt holds property on trust for herself along with other persons, that property will still vest in the trustee in bankruptcy under s 116(1), subject to the equities in favour of the other persons: Carter Holt Harvey Wood Products Australia Pty Ltd v Commonwealth [2019] HCA 20; (2019) 268 CLR 524 at [94]; Boensch v Pascoe [2019] HCA 49; (2019) 268 CLR 593 at [4], [88], [91], [93].

Terminology

24    Before going further it is necessary to make clear how certain terms are used in this judgment.

25    It was effectively common ground that the FSF is an express trust, since the FSF Deed did establish a trust. What is not clear is which assets are held on the terms of that trust. Nevertheless, I will speak of the FSF as an extant trust, on the assumption that it applies to at least some existing assets.

26    In these reasons I will refer to assets as being 'held in the FSF', 'FSF assets', 'an asset of the FSF', 'part of the FSF' or 'FSF funds' as shorthand for saying that the asset is one which is owned at law by persons who hold office as trustees of the FSF pursuant to the FSF Deed, with those trustees accordingly having powers and duties in respect of the asset under the FSF Deed to hold, use, apply and dispose of the asset for the benefit of the beneficiaries, who are identified as such in, or in accordance with, the FSF Deed.

27    The key question in relation to the disputed assets, though, is whether they are part of the fund that is the FSF. That is because s 116(2)(d)(iii)(A) of the Bankruptcy Act speaks in terms of the interest of the bankrupt in a fund. Doubtless if an asset meets the description in the preceding paragraph, it will be part of the FSF. However it will be necessary in these reasons to consider whether circumstances that fall short of that also mean that certain assets are part of the fund.

28    I now describe the particular issues that arise in relation to each of the disputed assets.

BOQ1 and BOQ2

29    The Bank of Queensland accounts are the first of the disputed assets which the applicants claim are FSF assets. In their written opening submissions, the applicants put their case on a narrower basis than appeared from the evidence they filed. They simply allege that the money in those accounts was originally earned by the FSF as rental income from a commercial property in Edward Street, Perth, and a property leased to Officeworks in Hobart. They say that the Hobart property was purchased in their names as trustees, and that there was a declaration of trust over the Edward Street property in 2009 and a registrar's caveat recording the trust lodged on the title. So the rental income from those properties is said to be income of the FSF.

30    The first respondent denies that the money in the Bank of Queensland accounts is held on trust. She points to the fact that BOQ1 is in Mr Frigger's name only, and BOQ2 is in Mrs Frigger's name. She submits that the onus is on the applicants to establish that there was, at any relevant time, an objective manifestation of the intention to hold those accounts on trust on the terms of the FSF, and that they have failed to discharge that onus.

31    While the applicants seek to put their case on a narrower basis than the issue as stated by the first respondent, in my view the applicants' submission is simply the particular manner in which they seek to establish the necessary objective manifestation of intention (as to which see [104] and following below). The ultimate issue is whether there was any such manifestation, having the result that the applicants hold beneficial interests in the accounts as part of their interests in the FSF as a regulated superannuation fund.

The CommSec Main Portfolio

32    The Main Portfolio was opened in the name of both of the applicants in 1998. The applicants concede that it was not opened by them in their capacities as trustees, since they were not trustees of the FSF at the time. But they rely on a variety of surrounding circumstances to allege that the shares that are currently held in the Main Portfolio were purchased in their capacity as trustees of the FSF.

33    The first respondent denies this and alleges that the applicants own the shares in the Main Portfolio in their personal capacities, with no division between legal and beneficial ownership. She relies on a number of circumstances to submit that at no time has there been any objective manifestation of an intention that the securities in the Main Portfolio were to be held by the applicants in their capacities as trustees of the FSF.

34    On 28 August 2019 the first respondent wrote to CommSec claiming that the securities in the Main Portfolio vested in her as trustee in bankruptcy of each of the applicants and were considered property divisible among the bankrupt estates' creditors (ACTF 55). The first respondent asked for a freeze on transactions in the portfolio. This has resulted in the account being locked (ACTF 57). The applicants thus frame the issue as whether they are prevented as trustees of the FSF from trading shares listed on ASX because of the sequestration order. However that merely describes a practical consequence for them if they fail to establish that the securities were assets of the FSF. The applicants accept that they must establish this in order to obtain the orders they seek in relation to the Main Portfolio.

The Residential Properties

35    Each of the Residential Properties have houses that are leased to tenants for rental income. For each of them, the name of the owner shown on the certificate of title is Angela Frigger. Mrs Frigger acquired the Bayswater Property before the establishment of the FSF. While she became the registered proprietor of the Como Property after the FSF was established, she did so at a time when CAT, and not either of the applicants, was trustee of the FSF.

36    The applicants say that Mrs Frigger contributed both properties to the FSF by means of written declarations of trust made on 1 July 2014 (2014 Declarations). I will examine the terms of those declarations when I resolve this issue below. The first respondent nevertheless disputes that the Residential Properties are assets of the FSF. She says that on the proper construction of the 2014 Declarations they do not have the result that the properties were held by the applicants in their capacities as trustees of the FSF. She also submits that there would be contraventions of the SIS Act arising from any contribution of the Residential Properties to the FSF which would make them invalid.

37    So the issue to be determined by the court is whether, having regard to those matters, the applicants have established that the Residential Properties are assets of the FSF.

38    The applicants, once again, describe the issue in a narrower way, as whether the first respondent has a caveatable interest in the Residential Properties. That is because the first respondent lodged an absolute caveat on each property on around 11 October 2018, claiming an interest as trustee in bankruptcy (KAT 4295). The interest claimed is the 'vesting in equity' in the first respondent (and Mr Allen) 'as joint and several trustees of the bankrupt estate of the registered proprietor in accordance with section 68 [sic 58] of the Bankruptcy Act 1966 (Cth)'.

39    As has been said, the applicants seek orders for the removal of these caveats, so the existence of caveatable interests is in dispute. But it is not a complete description of the issues. In any event, the first respondent submits that even if the properties are assets of the FSF, she still has a caveatable interest in them by reason of the vesting of those properties in her under s 58(1) of the Bankruptcy Act.

Whether the FSF is a regulated superannuation fund

40    The first respondent puts the applicants to proof of the status of the FSF as a regulated superannuation fund within the meaning of the SIS Act. As has been explained, that must be resolved in the applicants' favour for their interests in the FSF to fall outside the pool of property divisible among creditors of their bankrupt estates.

Description of the issues - the orders concerning costs in the Court of Appeal

41    The Court of Appeal orders sought to be impugned were made in three appeals. The first was an appeal which the applicants brought to which Mr Kitay was the respondent. The applicants were ordered to pay $25,000 into court as security for Mr Kitay's costs of the appeal, which they did. The appeal was unsuccessful and before they became bankrupts, the applicants were ordered to pay Mr Kitay's costs of the appeal on an indemnity basis (ACTF 1134). A certificate for the taxation of costs was issued on 18 September 2018 (ACTF1 p 138), after the sequestration order and a little over two weeks after the first respondent's appointment as the applicants' trustee in bankruptcy. The first respondent took no part in that taxation. The Court of Appeal taxed the costs in the sum of $85,363.90 (ACTF 1138). After that, at Mr Kitay's request, Mrs Trenfield signed a minute of consent orders for the payment of the $25,000 out of court to Mr Kitay. The Court of Appeal ordered accordingly.

42    The other two appeals can be dealt with together. The applicants brought them against a law firm, Clavey Legal. The applicants had paid sums into court as security for the costs of those appeals, totalling $62,500. The appeals were unsuccessful and in each, the applicants were ordered to pay Clavey Legal's costs. This occurred before the sequestration order. After the sequestration order, Mrs Trenfield signed minutes of consent orders fixing Clavey Legal's costs in the amount of the security that had been paid in, and authorising payment out. The Court of Appeal made those orders.

43    It was difficult to make out the basis for the applicants' claims about these events from their written submissions. But in oral opening it became clear that they have two complaints. The first is that they say that the costs liabilities were debts provable in the bankruptcy, which should have been dealt with in the course of the process of proving such debts. But instead of calling for proofs and adjudicating on them, the first respondent signed consent orders which led to the payment out of the amounts that had been paid in as security for costs. The applicants' second complaint is that the first respondent should not have consented to that payment out because the applicants had substantial counterclaims against Mr Kitay and Clavey Legal which more than offset the costs liabilities.

44    In oral submissions the applicants also made it clear that, while they seek declarations that the orders are 'incompetent', they do not ask this court to somehow reverse or override the orders made by the Court of Appeal. The reference to lack of competency is a reference to the wording of s 58(3) of the Bankruptcy Act, which provides that after a debtor has become a bankrupt, it is not 'competent' for a creditor to enforce any remedy against the person or the property of the bankrupt in respect of a provable debt. The applicants' principal claim is for a declaration that the first respondent acted contrary to her duties as trustee in bankruptcy and for compensation from the first respondent for losses they say they suffered as a result of the first respondent's signing of the consent orders.

45    The first respondent disputes the applicants' claims about the costs orders on several bases (many of which will not need to be addressed). She says that the claims are untenable.

Description of the issues - removal of the first respondent as the trustee in bankruptcy

46    The conduct of the first respondent on which the applicants rely in order to argue that she should be removed as their trustee in bankruptcy is, to some extent, her conduct in asserting control over the assets which the applicants say are assets of the FSF, or conduct which (broadly speaking) indicates a lack of acceptance of the applicants' claims in that regard.

47    There is also conduct associated with those issues, such as an asserted failure to follow up the Bank of Queensland to obtain a copy of an HSBC bank cheque which would have helped in the process of tracing funds back to BW1, and statements made in affidavits about those things which the applicants say are false. The applicants repeat their complaints about the first respondent signing consent orders in the Court of Appeal. In addition, the applicants rely on what they say were attempts by the first respondent to persuade the Australian Taxation Office (ATO) to treat the FSF as an 'unregulated super fund', incorrect statements made to the Australian Financial Security Authority (AFSA), and emails to share registries which they say disclosed their tax file numbers (TFN) and claimed that they had tried to circumvent the bankruptcy.

48    The applicants also rely on what they say are the first respondent's failures to interview them, to accept proofs of debt and to recognise offsetting claims that they had against certain creditors. There is also an allegation about collusion with Mr Kitay and his lawyers.

49    The first respondent disputes all of these allegations. For the most part she does so by reference to her position in relation to the issues about the ownership of the disputed assets and the Court of Appeal orders: if the applicants cannot establish their case in relation to those issues, then they will not establish that the first respondent's conduct in relation to those assets fell short of the standard to be expected of a trustee in bankruptcy. But the first respondent says that even if the applicants succeed in relation to those claims, her position was still reasonable, especially given what she says were constant difficulties in obtaining information about the matters in question, largely caused by an uncooperative and aggressive stance taken by the applicants themselves, as well as the unreliability of the information they did provide. The first respondent denies that she had any obligation to interview the applicants and says that, given their attitude, an interview would not have been useful. She says that there is no point in calling for proofs of debt unless and until it appears that a dividend will be paid out of the bankrupt estates.

THE WITNESSES

50    Before turning to determine the issues, I will make some observations about the witnesses. There were only two: Mrs Frigger and Mrs Trenfield. Each was cross-examined for some time. My general views about the reliability of their evidence are as follows.

Angela Frigger

51    I have already described Mrs Frigger's background and qualifications. It is necessary to say at the outset that I have concluded that she knowingly altered documents which she put into evidence, in order to create a false impression that the documents supported the applicants' case. I should explain at once why I have reached that conclusion, conscious of its gravity and the need for clear and cogent proof.

The altered St George Bank statement

52    The question of whether certain assets were held in trust on the terms of the FSF is central to this proceeding. Any matter tending to support a finding that the applicants intended that an asset be held on trust would support their case. Cases on trusts which I discuss below illustrate how simple steps such as referring to a trust in the name of a bank account can help establish that the account is held in trust.

53    Mrs Frigger's affidavit sworn 6 March 2019 (ACTF 1, filed with the originating application in this proceeding) annexed (at108) a bank statement from St George Bank. This was for an account with a number ending 718 (STG1). The statement is for the period 26 February 2017 to 7 July 2017 and shows an opening balance of $2,172,753.47, and withdrawals leaving a closing balance of nil. In this version of the bank statement, near the top of the first page, where one normally sees an account name, the following appears (I have redacted the street address):

54    The evidence in the body of affidavit ACTF 1 said nothing specifically about the bank statement. It was annexed as evidence of bank accounts from which money was withdrawn to open accounts with HSBC, which money then was said to have flowed into BOQ2 and then BOQ1.

55    Mrs Frigger annexed the same bank statement to an affidavit she swore on 20 April 2020 (ACTF 14371). I say it is the same because the account number and transactions are all identical. But in this affidavit, the statement has the following as the account name (once again with street address redacted):

56    The person described as 'Miss J Frigger' above is Jessica Frigger, who is the applicants' adult daughter. A third version of the bank statement came into evidence via Mrs Trenfield (Exhibit (Ex) 36). She gave evidence that she obtained that version from St George Bank, along with a statement for the same account for a prior period (transcript (ts) 513). It is effectively identical to the second version I have described. It shows Jessica Frigger as the account name, not Angela Frigger, and it does not mention the Frigger Super Fund.

57    In Mrs Frigger's affidavit ACTF 14 sworn on 20 April 2020, the second version of the St George bank statement is part of annexure AF11. The affidavit contains the following evidence about that annexure (the Michael Frigger mentioned in the quote is the applicants' adult son):

21.    Attached and marked AF11 are copies of bank statements of other websaver accounts held by Jessica Frigger and Michael Frigger, the other trustees/directors/members of the FSF. None of the short-term websaver bonus interest accounts allowed the inclusion of the words 'as trustee for the Frigger Super Fund' when it was first opened.

22.    Attached and marked AF12 are copies of other investments of the FSF. Each of these investments allowed me to include the words 'as trustee for the Frigger Super Fund' when it was first opened.

23.    In order to overcome the above problem, when each websaver account was opened, and I obtained internet access to the account, I logged in and checked if there was an additional 'name' field. I then input the words 'Frigger Super Fund' in the additional name field, sometimes called a 'Nickname' by some banks. This was in compliance with the regulator's direction that the trustees do all that is possible to properly identify an asset as belonging to the SMSF.

58    Then, in an affidavit which Mrs Trenfield swore on 22 May 2020 (KAT 4), she annexes some emails between her staff and Westpac Banking Corporation, of which St George Bank is a division. In the emails, which were sent in late September 2019 (KAT 4868ff), a staff member of FTI asked the bank for bank statements for STG1, giving the account number and saying that it was 'in the name of Angela Frigger'. To this the bank responded that the account was 'not held under Hartmut Hubert Josef Frigger and Angela Cecilia Therese Frigger'. This correspondence was referred to in paras 140-141 of KAT 4.

59    It appears that this prompted Mrs Frigger to change her evidence about the St George statement. In an affidavit sworn on 17 June 2020 (ACTF 18), she sought to explain a transaction listed in a spreadsheet she had sent to her first trustee in bankruptcy, the Official Trustee. This was a withdrawal of $1,800,000 from a Bank of Melbourne account. Mrs Frigger noted that St George Bank and Bank of Melbourne were both divisions of Westpac Banking Corporation. She said she had found a cheque butt showing that the $1,800,000 had been paid into a St George account. The cheque butt shows 'J Frigger ATF FSF' as the recipient. Mrs Frigger then said:

7.    I now remember I logged on to Bank of Melbourne website to obtain a copy of bank statements for the auditor. I obtained the bank statement that is in my affidavit of 6 March 2019 page 108 when I had logged on to the Bank of Melbourne. I believed the bank statement was for an account in my name. I filled in my details, without realizing that the statement in fact belonged to the account in Jessica Frigger's name.

8.    It was not until I prepared my affidavit of April 2020 that I found the hard copy of the St George Bank statement in Jessica Frigger's name. I still did not connect the two statements until I read the respondent's evidence in [140] [141].

9.    I confirm that the two BankWest cheques totaling $2,150,000 were paid into the St George Bank account in Jessica Frigger's name. I confirm I do not have page 1 of that account and am unable to obtain it from any source.

The 'bank statement that is in my affidavit of 6 March 2019 page 108' is the first version of the St George statement in ACTF 1, which shows Mrs Frigger as the account holder and refers to the FSF.

60    Mrs Frigger expanded on this explanation when she was cross-examined on the different versions of the St George bank statement (ts 431ff). She accepted that STG1, the account for the statement in ACTF 1, was not an account in her name. She said she put the words 'Frigger Super Fund' in the document. She was asked whether she 'logged on to this account'. At that point, she acknowledged that since the account was in Jessica Frigger's name, she would not have been able to log onto it. But she then said she 'accessed' (ts 432) it via the Bank of Melbourne's internet banking site. On questioning from the court, she said she logged on using her (Angela Frigger's) customer number. She claimed that when she logged on to the site, she saw three or four account numbers without any names. She said she 'got it [the statement] without any names on it'. She said 'I put my name on it and I put the Frigger Super Fund [sic] because I knew it was Frigger Super Fund funds … And I had completely forgotten that it was in - actually in Jessica's name'. She admitted to typing those details in herself.

61    On further questioning from the court, Mrs Frigger confirmed that she clicked on links for the account which downloaded the statement as a .pdf file. Her evidence was that there was no account name on that pdf. According to her, the place where the account name appears on all three versions of the statement in evidence was, when she downloaded it on this occasion, blank. She said she assumed that it was a statement in her name, because she had forgotten that it was in Jessica's name and she did not know that by logging in using her (Angela Frigger's) customer number she could get access to an account of Jessica's.

62    Mrs Frigger went on to say that she altered the document on her computer, that is, she did not print it out first and change the printed version, rather she used a pdf editor. She claimed that she did this when she was preparing documents for the audit for the FSF for the year ended 30 June 2017. The 'date audit completed' for that financial year as recorded by the auditor of the FSF was 16 March 2019 (KAT 4381), so if that is when the bank statement was downloaded and altered, that is likely to have occurred in early 2019, at around the same time that this proceeding was commenced and her affidavit ACTF 1 was sworn. The auditors of SMSFs are required to prepare their audit report within 28 days after the trustee of the fund has provided all documents relevant to the preparation of the report: Superannuation Industry (Supervision) Regulations 1994 (Cth) (SIS Regulations) reg 8.03. Mrs Trenfield has put into evidence screen shots of metadata for documents submitted to the auditors which also indicate it is probable that the audit took place in early 2019 (KAT 4 annexures 111, 113).

63    In affidavit KAT 4, Mrs Trenfield says in relation to STG1 that the 'same extract of the SG1 account was in the bundle of documents provided to me by Just SMSF Audits' (KAT 4 para 140). It is not abundantly clear whether she means the extract as doctored by Mrs Frigger, but I will proceed on the basis that she does.

64    Questions from cross-examining counsel confirmed that the second version of the statement, which is annexed to affidavit ACTF 14, was probably in Mrs Frigger's house at the time of the audit (in early 2019), because Jessica had given it to her. But Mrs Frigger said she did not find it until she came to prepare affidavit ACTF 14 in April 2020. Counsel put to Mrs Frigger that in fact, rather than obtain the first version of the bank statement from the Bank of Melbourne website, she photocopied the second version, which was in her possession, and cut and pasted her name and 'Frigger Super Fund' on top of it. She denied this. She sought to explain differences in the print resolution (see images above) by saying that she may have changed printers or perhaps printer cartridges (ts 437). She denied that she changed the statement and put it in affidavit ACTF 1 in order to convince the court that it was an account held in the FSF.

65    I do not accept Mrs Frigger's evidence that the St George bank statement she downloaded had no account name on it, and she mistakenly put her name on it, along with the reference to the FSF. It is an explanation proffered in an attempt to dispel the obvious inference arising from the different versions of the statement in evidence, that Mrs Frigger altered the document so that it no longer showed Jessica Frigger as the account holder, and then put it into evidence in an attempt to persuade the court that it was an asset of the FSF. The case of the applicants, apparent from ACTF 1, was that the flow of funds from STG1 and other accounts to BOQ1 indicated that the funds in BOQ1 were FSF funds (paras 17-19). Establishing that STG1 was an FSF asset was part of that case. That gave Mrs Frigger motive to present the bank statement of STG1 as if the account were an asset of the FSF.

66    It may be, as I have noted, that the same doctored version of the statement was given to the auditor of the FSF at the time of the audit of the 2017 accounts. If Mrs Frigger's initial motivation for altering the bank statement was for the purpose of giving it to the auditor, rather than the court, that would hardly excuse the behaviour. And timing is important here too: Mrs Frigger's evidence was that she altered the bank statement during the audit of the financial year ended 30 June 2017, which audit was completed on 16 March 2019. That means that she probably altered the statement at around the time she swore affidavit ACTF 1 on 6 March 2019. So when swearing that affidavit she cannot have overlooked the fact that she was putting a doctored bank statement into evidence.

67    For Mrs Frigger's explanation to be even remotely plausible, the court would need to accept that the version of the statement which, on her own evidence, she altered, did not have an account name on it. But bank statements issued by Australian banks to ordinary retail or commercial customers always have the name of the account holder on them. The court does not need to draw on common experience to reach that view. It is evident from the very large number of (apparently undoctored) bank statements adduced into evidence in this proceeding. They are issued by a range of different, well-known Australian banks. Having reviewed a large number of them, the court has not identified a single one that does not bear the account name.

68    More specifically, the version of the bank statement which the first respondent obtained directly from St George has the account name on it, as do numerous other bank statements that St George provided (KAT 4793ff). If the account name was missing, one of the basic functions of a bank statement for a bank account would not be fulfilled, namely to identify whose account it is. A reason why, in this one case, a downloaded bank statement might not have any account name on it, does not even occur to one, and no reason was proffered. In closing submissions, Mrs Frigger said that she could prove that downloading a bank statement which does not show an account name is something that can happen when a person is doing online banking (ts 935), and that she would return to that subject. But she never did.

69    It might also be thought to be unlikely that Mrs Frigger could access St George statements through the Bank of Melbourne website, but since the two banks apparently have the same BSB (Bank State Branch) numbers (ACTF 1 p 108; ACTF 18 p 9), I am prepared to accept that is possible. I do not accept, however, that Mrs Frigger could gain access to accounts of Jessica by using her (Angela Frigger's) login.

70    There are other reasons to find that Mrs Frigger's evidence on this point lacked credibility. During cross-examination on this subject she gave the evidence in the manner of someone piecing together past events. But her demeanour at those times was that of a person pretending to only just then remember the events. Throughout almost all of the rest of the proceeding, Mrs Frigger presented as a person of mental acuity who had a detailed recollection of everything to do with her and her husband's financial affairs. Her occasional lapses into vagueness appeared intended to obscure the fact that she had no good explanation for what she was being asked about.

71    Even if I were disposed to accept Mrs Frigger's evidence that she downloaded a bank account statement with no account name, that would not exculpate her. Even if she did not know that it was an account in Jessica Frigger's name, when she swore ACTF 1 she did know that the statement had no name on it (on her version of events), and she did know that it said nothing about the FSF. She knew that she had added a name and FSF notation to it, and she did not tell the court about any of that until she was forced to admit it in response to evidence adduced by the first respondent.

72    But, for the reasons given above, I find that the original bank statement which Mrs Frigger altered did have 'Miss J Frigger' as the account name. It follows, not only that Mrs Frigger deliberately altered the statement before she put it into evidence, but that the evidence she gave about the matter in (at least) her affidavit ACTF 18 and in cross-examination on the point was false.

The altered CommSec statement

73    The bank statement for STG1 is not the only altered document which Mrs Frigger put into evidence. She also annexed to affidavit ACTF 1 a 'Financial Year Summary' from CommSec showing the value of the Main Portfolio as at 30 June 2018 (annexure AF10). The portfolio is in the names of Mr and Mrs Frigger. The part of the document that is presently relevant appears as follows (ACTF 1 p 80):

74    It can be seen that under the account name is a line labelled 'Total Portfolio Value' and under that appears 'FRIGGER SUPER FUND'. In the body of the affidavit Mrs Frigger said that this annexure was an annual statement for a CommSec share portfolio from which dividends were paid which, the affidavit asserts, ultimately found their way to BOQ1.

75    In affidavits KAT 3 sworn on 11 September 2019 at paras 10-11 and KAT 4 sworn on 22 May 2020 at para 162, Mrs Trenfield deposed to having obtained documents from Just SMSF Audits which included the same CommSec statement for the financial year ending 30 June 2018. She annexed that version of the statement, which is indeed the same as the one annexed to ACTF 1, save that the words 'FRIGGER SUPER FUND' are missing from it. Mrs Trenfield also annexed copies of the equivalent documents for the financial years ending 30 June 2016 and 30 June 2017, neither of which had that notation on them (KAT 4 pp 923-962).

76    Mrs Frigger's initial response to that, in affidavit ACTF 8 sworn on 16 September 2019 (para 2), was to say: 'The reason why I added the words "Frigger Super Fund" (FSF) to the statement from Commonwealth Securities is because the regulator of that Fund, ATO, requires me to identify all documents that relate to the Fund'.

77    In affidavit ACTF 14 sworn on 20 April 2020, Mrs Frigger gave the following evidence (ACTF 14 para 10):

I refer to the notation 'Frigger Super Fund' on statements which I download from the Commsec website each year for the purposes of the external audit. Pursuant to directions of the regulator, the ATO, I inserted those words on the statements in order to identify the list of shares and its market value for the purposes of satisfying the external audit. By making such a notation, I did not intend to mislead anyone in relation to the beneficial ownership of the shares. I have long been aware from studying the Companies Act at university (1980) and being a registered agent with ASIC (1985) that beneficial ownership of shares is noted on the share scrip held by the company in its member share register.

One immediate difficulty with accepting this evidence is that the version of the statement obtained from the auditor does not have the notation 'Frigger Super Fund' on it.

78    Mrs Frigger was cross-examined about the CommSec statement (ts 423-426). She confirmed that she typed the words into the statement. Her evidence about how and when she did this was unsatisfactory. At first she appeared to be saying she edited the pdf in the same way as she edited the St George statement. But then her evidence changed to be that there was a way of inputting the words into CommSec's online platform. Again, she gave this later evidence with an unconvincing air of someone only then just recalling added detail.

79    Also, there are in evidence financial year summaries for a different CommSec account, in the name of Serenity Holdings Pty Ltd (i.e. CAT), which do refer to the FSF (Ex 28, Ex 44). In the financial year summaries for Serenity Holdings, that reference appears as follows:

80    In this financial year summary, the reference to the FSF appears where one would expect it to appear, as part of the account name. In the first extract provided above it appears in an odd unexplained spot under the line for 'Total Portfolio Value'.

81    It was put to Mrs Frigger that she had added the words 'Frigger Super Fund' to the Financial Year Summary for the Main Portfolio just before signing affidavit ACTF 1 of 6 March 2019. She said she could not remember. When questioned about why, if it was a regulatory requirement to add the words, they were not on the versions she gave to the auditors, she had no explanation (ts 423-426).

82    The first respondent submitted that I should infer that Mrs Frigger altered the CommSec statement attached to affidavit ACTF 1 so as to convince this court that it was an asset of the FSF from which dividends were earned that went into BW1. While this allegation was not squarely put to Mrs Frigger in those terms, it was put to her that she altered the statement just before swearing that affidavit and I am satisfied that it must have been obvious to her during cross-examination that it was being suggested that she did not alter it for the purpose of the external audit, but for the purposes of this proceeding. I am therefore satisfied that she was on notice that her evidence on the point was in contest, and that she had a proper opportunity to give any explanation she wished to give (ts 423-426).

83    But she had no plausible explanation. In closing submissions (ts 936) she sought to retract her evidence that she had inserted 'Frigger Super Fund' on the financial year summary for 2018 in order to identify the list of shares and its market value for the purposes of satisfying the external audit. She said 'what I was really meaning was I download documents for the purposes of the external audit'. This was a transparent attempt to revoke a previous explanation which, I infer, Mrs Frigger later realised would not help the applicants because, as I have said, the version of the document given to the auditor did not have 'Frigger Super Fund' written on it. This is an example of how Mrs Frigger changed her story so many times that it was impossible to believe anything she said unless it had sound independent corroboration.

84    I draw the inference the first respondent puts, namely that Mrs Frigger altered the CommSec statement shortly before annexing it to affidavit ACTF 1 with the intention of convincing the court that it was an asset of the Frigger Super Fund. The inference follows from the incentive that Mrs Frigger had to do so - to establish that a valuable portfolio of shares was held in the FSF - and the fact that the explanation she gave, that she added the words for the purpose of the external audit of the FSF, is belied by the fact that the version of the statement provided to the auditor did not have the notation on it. It follows that the evidence in Mrs Frigger's affidavit ACTF 14 which I quote at [77] above was false.

85    But once again, even if I did not draw the inference that Mrs Frigger did doctor the document with the purpose of misleading the court in her mind, that would not exculpate her. The fact would remain that she put a document into evidence which she had altered so as to say something which the original version of it, issued by an independent third party, did not say. She gave no evidence to the effect that she forgot or overlooked the fact that she had altered the document. Even if the stronger finding above is wrong, the alteration of the CommSec statement seriously impacts on Mrs Frigger's credibility.

Other matters concerning Mrs Frigger's credibility

86    Counsel for the first respondent referred in his closing submissions (supported by a written aide memoire) to many other reasons why Mrs Frigger should not be accepted as a credible witness. For example, she was cross-examined on evidence she gave in the hearing of the bankruptcy petition against her and Mr Frigger (ts 379-381). In the judgment of Colvin J after that hearing, Kitay, in the matter of Frigger (No 2) [2018] FCA 1032 at [184]-[185], his Honour referred to a statement Mrs Frigger made in an affidavit that approximately $80,000 in a St George account was an asset of the FSF (Ex 41; ts 379). At the hearing before Colvin J, she sought to resile from that, and said that in fact it was an asset she owned in her personal capacity. If so, that could permit it to be used to 'set-off' the debt that was the subject of the bankruptcy petition.

87    But in cross-examination in this proceeding, Mrs Frigger said that the statement she made to Colvin J was a mistake and the $80,000 was indeed an FSF asset (ts 380-381). She admitted that she had told Colvin J that it was a personal asset 'from the bar table and I was doing it in my desperation not to be put into bankruptcy' (ts 381 ln 25). She then tried to resile from that evidence, or at least qualify it, in re-examination in this proceeding (ts 469). She then attempted to give a further explanation in closing submissions which was, with respect, incomprehensible (ts 960-961). All this displays a readiness on Mrs Frigger's part to change what she tells the court in order to suit what she perceives to be her interests on the particular occasion. Whether prompted by desperation or not, this is by itself damaging to her credibility.

88    It is hardly necessary to multiply further examples here, although further problems with the credibility of Mrs Frigger's evidence will be described when the content of the evidence is assessed below. I need only comment on Mrs Frigger's demeanour in the witness box briefly, as it does not play a large part in my assessment of her credibility. I have already mentioned certain points at which she appeared unconvincing. But for the most part she gave her evidence with a forthright manner and with an appearance of having a sure grasp of specifics. On some occasions where she said she could not remember things, she was being asked about financial details which one would not ordinarily expect a witness to remember. On many occasions where she was challenged in cross-examination she became truculent and obstructive, but allowances need to be made for the fact that she had the mixed roles of witness, litigant and advocate for her own case.

89    Nevertheless, for the above reasons, and for others which will appear in the course of discussion of evidence below, I do not accept Mrs Frigger as a witness of truth. That conclusion has a serious impact on the applicants' case, as it was based entirely on her evidence. I cannot accept her evidence as true unless it is supported by independent evidence or the inherent probabilities of the situation. And the fact that Mrs Frigger is not above altering documents she provides to the court impacts on what can be treated as independent evidence. If a document came from the applicants, it must be treated with caution.

Kelly-Anne Trenfield

90    The first respondent, Mrs Trenfield, has a Bachelor of Business (Accounting) from the Queensland University of Technology and is a Chartered Accountant. She became a registered trustee in bankruptcy in 2006, a registered liquidator in 2007 and an official liquidator in 2008. She has been the trustee in bankruptcy of more than 200 estates (KAT 4 paras 11-18).

91    Mrs Trenfield appeared as a witness by video link from a courtroom in Brisbane. Mrs Frigger cross-examined Mrs Trenfield for some time.

92    There were occasions on which I considered that Mrs Trenfield could have been more forthcoming in her answers. For example, there was a line of questioning about when Mrs Trenfield could have obtained a copy of a cheque from an HSBC account paid into BOQ2, which helped with tracing the flow of funds to BOQ2. A letter from Bank of Queensland dated 17 October 2018 was put to Mrs Trenfield which said that the bank was unable to give her a copy of the cheque due to privacy reasons (ts 588; ACTF 3 annexure 1). It was put to her that this could have been overcome by asking Mrs Frigger to waive privacy with the bank (ts 590). But rather than accept this fairly straightforward proposition, Mrs Trenfield became argumentative with the cross-examiner (that is, Mrs Frigger) and would only concede that 'you can draw that conclusion from the documents' (ts 591). I will discuss the substance of her evidence on this matter below when I come to deal with the application to remove her as trustee in bankruptcy. The point for present purposes is that it was unhelpful of Mrs Trenfield not to accede to the simple proposition that she could have asked Mrs Frigger to waive the privacy concerns.

93    Mrs Frigger's aim in cross-examination appeared to be to convince the court that Mrs Trenfield is a thoroughgoing liar. But isolated examples of instances where Mrs Trenfield's evidence was unhelpful do not establish such a strong conclusion. They are equally explicable by an unwillingness to concede any point to a cross-examiner with whom she evidently has an antagonistic relationship.

94    The reality is that Mrs Trenfield's credibility was not central to the proceeding. She was not the party with the onus of proof and most of the contentious evidence concerned things the applicants did (or did not do) before her appointment. For the most part Mrs Trenfield relied on documentary evidence and, in contrast to Mrs Frigger, there was no reason to doubt that the documents she presented were what they appeared to be. To the extent that the applicants sought to impugn Mrs Trenfield's conduct as a basis for removing her as their trustee in bankruptcy, the outcome depended more on an objective assessment of that conduct than on any finding about the credibility of her evidence.

95    So while I had concerns that some of Mrs Trenfield's answers in cross-examination were unhelpful, that did not affect my overall view about her evidence. I will need to refer below to further specific allegations of giving false evidence which the applicants made against Mrs Trenfield. They are not made out. Generally she presented in the witness box as an experienced professional who gave straightforward and forthright answers to a large number of questions which were not always very relevant.

FIRST GROUP OF ISSUES - ARE THE DISPUTED ASSETS PART OF THE FSF?

Principles

When a court will find that assets are held subject to a trust

96    The first issue in the present case concerns whether the disputed assets are subject to an express trust. That term can be a misnomer, as an express trust can arise by implication from language used or other conduct. In Korda v Australian Executor Trustees (SA) Limited [2015] HCA 6; (2015) 255 CLR 62 at [5], French CJ said (some footnotes omitted):

It has rightly been observed that 'many express trusts are not express at all. They are implied, or inferred, or perhaps imputed to people on the basis of their assumed intent'. The American Law Institute's Restatement Third, Trusts uses the term 'trust' to refer to an express trust as distinct from a resulting or constructive trust and defines it as [§2]:

'a fiduciary relationship with respect to property, arising from a manifestation of intention to create that relationship and subjecting the person who holds title to the property to duties to deal with it for the benefit of charity or for one or more persons, at least one of whom is not the sole trustee.'

The seventh edition of Jacobs' Law of Trusts in Australia [(2006), p 44 [306]] offers the usefully succinct observation that the creator of an express or declared trust will have used language which expresses an intention to create a trust:

'The author of the trust has meant to create a trust, and has used language which explicitly or impliedly expresses that intention, either orally or in writing. The fact that a trust was intended may even be deduced from the conduct of the parties concerned but if there is any uncertainty as to intention, there will be no trust.'

97    On the subject of certainty, it is orthodox to refer to three certainties which are necessary before an express trust will be found to exist: certainty of intention to create a trust, certainty of the property that is its subject matter, and certainty of objects, that is, the beneficiaries: see Kauter v Hilton (1953) 90 CLR 86 at 97; and Associated Alloys Pty Limited v ACN 001 452 106 Pty Limited (in liquidation) [2000] HCA 25; (2005) 202 CLR 588 at [29] and more generally the discussion in Jacobs' Law of Trusts in Australia (8th ed, 2016) Chapter 5.

98    The fiduciary obligations which arise from the trust relationship can be described as being annexed to or impressed upon the property the subject of the trust: Re Lauer; Corby v Lyttleton [2017] VSC 728 at [90] (McMillan J). The question here therefore concerns whether the evidence establishes that the obligations on trustees set out in and arising from the FSF Deed are annexed to any of the disputed assets.

99    To constitute himself or herself a trustee, it is not necessary that a person should use precise words: Re Armstrong (deceased) [1960] VR 202 at 205. In Trident General Insurance Co Ltd v McNiece Bros Ltd (1988) 165 CLR 107 at 121 (Trident v McNiece), Mason CJ and Wilson J held (footnote removed):

the courts will recognize the existence of a trust when it appears from the language of the parties, construed in its context, including the matrix of circumstances, that the parties so intended. We are speaking of express trusts, the existence of which depends on intention. In divining intention from the language which the parties have employed the courts may look to the nature of the transaction and the circumstances, including commercial necessity, in order to infer or impute intention.

100    It is 'the outward manifestation of the intentions of the parties within the totality of the circumstances' which determines whether a trust has been created: Legal Services Board v Gillespie-Jones [2013] HCA 35; (2013) 249 CLR 493 at [119] (Bell, Gageler and Keane JJ). It may be, though, that this is only when the instrument said to create the trust is not a formal one. In Byrnes v Kendle [2011] HCA 26; (2011) 243 CLR 253 at [54] Gummow and Hayne JJ said (citation removed):

Where an express inter vivos trust respecting land or any interest in land is manifested and proved by some informal writing, or an express inter vivos trust of personalty is said to have been created by informal writing or orally, then a dispute as to the presence of the necessary intention, despite inexplicit language, is resolved by evidence of what the Court in Kauter v Hilton identified as '[a]ll the relevant circumstances'.

101    How clear must the expression of an intention to create a trust be? In Bahr v Nicolay (No 2) (1988) 164 CLR 604 at 618-619 Mason CJ and Dawson J said:

If the inference to be drawn is that the parties intended to create or protect an interest in a third party and the trust relationship is the appropriate means of creating or protecting that interest or of giving effect to the intention, then there is no reason why in a given case an intention to create a trust should not be inferred.

102    It would appear that in this passage their Honours were departing from what they had earlier described as the 'traditional attitude' that 'unless an intention to create a trust is clearly to be collected from the language used and the circumstances of the case the court ought not to be astute to discover indications of such an intention': see Bahr v Nicolay at 618, quoting from In re Schebsman; Ex parte Official Receiver, the Trustee v Cargo Superintendents (London) Ltd & Schebsman [1944] Ch 83 at 104. But in Byrnes v Kendle at [49], Gummow and Hayne JJ (French CJ agreeing (see [17])) described Mason CJ and Dawson J as having approved of that expression of the traditional attitude. That attitude is also reflected in the passage from Jacobs on Trusts which French CJ quoted in Korda: see also Kauter v Hilton at 97 quoted with approval in Gillespie-Jones at [116] and by Keane J in Korda at [204].

103    I will approach the evidence on the basis that, while the standard of proof remains the civil one of balance of probabilities, and while the manifestation of the necessary intention can be established by inference, that inference must be clear. As Gummow and Hayne JJ pointed out in Byrnes v Kendle at [56], questions of the construction to be placed on the words and actions of alleged settlors are apt to arise long after the event, and trusts may give rise to proprietary interests which affect third parties. Similarly, in Korda at [205] Keane J emphasised that the 'need for clarity as to the intention to create a trust and its subject matter is of particular importance in a commercial context where acceptance of an assertion that assets are held in trust is apt to defeat the interests of creditors of the putative trustee'. While his Honour was speaking in the context of a commercial trading trust, there is no reason to suppose the policy of the law is any different in relation to private superannuation funds, where the effect of relevant dealings may be to defeat both the interests of creditors (where trustees or beneficiaries become bankrupt) and the interests of the revenue of the Commonwealth.

104    It is clear that to speak of the necessary intention is to refer to an intention that has been manifested objectively. In Byrnes v Kendle at [55], after referring to 'all the relevant circumstances', in cases of inexplicit language, Gummow and Hayne JJ said (French CJ agreeing):

But the object of this evidentiary odyssey does not change, and the nature of the intention of the alleged settlor does not differ. The question, as Megarry J put it [In re Kayford Ltd (In liq) [1975] 1 WLR 279 at 282; [1975] 1 All ER 604 at 607], 'is whether in substance a sufficient intention to create a trust has been manifested'. The point was made by Lord Millett in Twinsectra Ltd v Yardley [[2002] 2 AC 164 at 185 [71]. See also Mills v Sportsdirect.com Retail Ltd [2010] 2 BCLC 143 at 158 [52]-[54]]:

'A settlor must, of course, possess the necessary intention to create a trust, but his subjective intentions are irrelevant. If he enters into arrangements which have the effect of creating a trust, it is not necessary that he should appreciate that they do so; it is sufficient that he intends to enter into them.'

See also French CJ at [17] and Heydon and Crennan JJ at [105]-[106], [114]. In these reasons I will need to refer to the objective nature of the inquiry often, and will often do so using the shorthand 'manifestation of intention' (an unattractive but necessary phrase: see Byrnes v Kendle at [57]-[58]).

105    The above principles are stated in terms of whether a trust has been created, not whether assets have become subject to an existing trust. But no different approach is required in the latter case. Indeed, the received view under Australian law is that when property is, in common parlance, 'contributed' to a trust, what technically occurs is the creation of a new trust over the property on the same terms as the pre-existing trust: see Atwill v Commissioner of Stamp Duties (1970) 72 SR (NSW) 415 at 426 (Mason JA); Kennon v Spry [2008] HCA 56; (2008) 238 CLR 366 at [229] (Kiefel J); Re Lauer at [99]. This supports the view that the approach to be taken to ascertaining the necessary objective manifestation of intention to make assets subject to an existing trust is the same as the approach taken where a new trust is created.

106    Obviously, the presence of an existing trust on the express terms of a written instrument can be a significant part of the factual matrix, which may make it easier to establish the necessary intention. That is reflected in JW Broomhead (Vic) Pty Ltd (in liq) v JW Broomhead Pty Ltd [1985] VR 891. The facts in Broomhead are instructive for the present case. The defendants were beneficiaries under a trust deed of which the plaintiff company was trustee. The plaintiff had been placed into liquidation, and the liquidator caused the plaintiff to bring proceedings against the defendants claiming that the plaintiff had operated its building business under the terms of the trust deed. If so, the defendants were potentially liable to indemnify the plaintiff for liabilities incurred in the course of the business. The defendants alleged that even if the plaintiff had been bound by the trust deed, 'the business never became part of the trust fund which the plaintiff held on the trusts of the deed' (at 893). That allegation was open because the trust deed did not refer to the business. The trust was established by a contribution of $50 (which was never employed in the business). The trusts were declared in the deed in respect of the $50 and investments into which it may be converted, and also investments derived from 'any moneys which may accrue or be added thereto' (see 926).

107    McGarvie J held that the plaintiff had 'by its conduct declared itself to be holding its building business on the trusts of the deed' (at 921). His Honour then set out the following principles (citations removed):

The plaintiff would hold its business on the trusts of the deed if by its words, or by implication from its conduct, it declared that it intended to do so.

One type of conduct which may amount to an implied declaration of trust by a trustee is adding property of his own to a trust fund of which he is trustee.

A declaration of trust by a person may be implied from entries made by him in his books of account and memoranda, and from his treating property as trust property.

108    Although there was never any express declaration that the plaintiff would hold the business on the trusts of the deed, McGarvie J inferred that from the date of a particular letter sent on behalf of the plaintiff which proposed that it would act as trustee, 'the plaintiff was continually declaring by its conduct that it held its business on the trusts of the proposed deed or the deed' (at 921). The conduct in question included writing to the Deputy Commissioner of Taxation informing him that the plaintiff had been incorporated to act as trustee of the trust. The conduct also included a meeting of members of the plaintiff company which was recorded in minutes noting that the plaintiff would be acting as trustee, opening a bank account for the company as trustee for the trust, including providing a copy of the trust deed to the bank, and the preparation and circulation of accounts which were headed with the name of the trust. In his Honour's view, this 'declaration' by conduct meant that the business had been made part of the trust fund. His Honour observed that it would be natural to treat both the initial $50 and the business 'as part of the one trust fund and artificial to do otherwise'.

109    As Broomhead demonstrates, the conduct relied on to create a trust need not necessarily be communicated to any particular person, such as proposed trustees or beneficiaries. However, although communication is not essential in deciding whether a settlor formed an intention to appropriate property to a trust, the absence of communication raises an inference against an intention to make such an appropriation irrevocable: Re Cozens [1913] 2 Ch 478 at 487. In any event, the intention does need to be manifested in some outwardly observable way. A subjective thought that an asset is held on trust is not enough.

110    La Housse v Counsel [2008] WASCA 207 is also instructive as to what can constitute the necessary manifestation of intention. There, the respondents' father had opened two bank accounts, each in the name of 'James Albert Counsel Trust for' his named respondent daughters. Initially, deposits of $50 were made into each account, and there were other transfers and deposits of small amounts. A few years later, Mr Counsel sold a house, and deposited approximately half of the proceeds into each account, that is $82,167.73 each. A few months later he withdrew nearly all that amount from each account to purchase another property. About a year after that, Mr Counsel died. There was a will leaving the new property to Ms La Housse. A dispute arose between her and Mr Counsel's daughters, who claimed that the property was held on trust for them and so could not be bequeathed to her.

111    The issues in the appeal resolved into the question of whether Mr Counsel intended, when he deposited the proceeds of sale of his previous house into the two accounts, that the resultant choses in action would be held on trust for his daughters: at [37]. The daughters contended that on a consideration of all the circumstances, the court should have inferred that Mr Counsel intended to create a trust in favour of them.

112    Pullin JA (Wheeler and Buss JJA agreeing), held that the daughters had to prove on the balance of probabilities that Mr Counsel intended to place himself under a personal obligation to hold the choses in action for their benefit: at [38]. That intention had to be determined as at the date on which Mr Counsel deposited the sums of $82,167.73: at [39]. Relying on Broomhead, Pullin JA found (at [42]) that it was 'significant that Mr Counsel paid his money into his daughters' accounts because conduct which may amount to an implied declaration of trust by a trustee is where a trustee adds property of his own to a trust fund of which he is trustee'. That, and other evidence of things said by Mr Counsel, led his Honour to the conclusion that Mr Counsel did intend to impose on himself the personal obligation to hold the money deposited for the benefit of his daughters.

113    Pullin JA expressed the burden of proof as lying on the daughters, who were the ones seeking to rely on the existence of the trust. With respect, that is consistent with other authority. Since a trust is a concept which imposes important obligations and confers important rights, the burden of proof lies on the person who contends that such a relationship has been established: Re Snowden (deceased) [1979] Ch 528 at 536 (Megarry VC); Herdegen v Federal Commissioner of Taxation (1988) 84 ALR 271 at 277 (Gummow J); Coshott v Prentice [2014] FCAFC 88; (2014) 221 FCR 450 at [80], [82].

114    In Saunders v Deputy Commissioner of Taxation [2010] WASC 261; (2010) 80 ATR 549 at [22] Kenneth Martin J summarised the position as follows (citations removed):

5.    Generally speaking, the legal onus of establishing that the intention to create a trust existed at the relevant time remains with the person asserting the existence of the trust.

6.    Where there is unambiguous use of language in a written instrument establishing a trust, the evidentiary onus will shift to a contradicting party to show that a trust does not exist through the establishment, if possible, of a contrary intention.

7.    The evidentiary onus falls upon the party seeking to show the contrary intention and strong evidence is required to do so.

115    The difficulty here is that while there is a written instrument unambiguously establishing the FSF as a trust, with the possible exception of the Residential Properties, there is no written evidence that, if accepted as true, manifests an express intention that the disputed assets are to be held on the terms of that pre-existing trust. In my view the principles as to the burden of proof apply to the intention to contribute assets to a trust in the same way as they do to an intention to create a trust.

116    The same placement of the burden of proof follows from the fact that the applicants seek declarations as to the existence of the trust over the relevant assets and as to their respective interests in the FSF. A party seeking a declaration has the burden of proof of any matter which is a necessary element of the declaration sought: Gore v Australian Securities and Investments Commission [2017] FCAFC 13; (2017) 249 FCR 167 at [28]-[29] (Dowsett and Gleeson JJ).

117    It follows that I do not accept a submission that Mrs Frigger made that, once the applicants had established a prima facie case, the onus shifted to the first respondent to disprove that assets were FSF assets (ts 895-896). In any event, as will be seen, the applicants did not establish any prima facie case that the disputed assets were subject to the trusts of the FSF Deed. It will be necessary to avert to this issue again during the discussion of the Residential Properties. But subject to that, the onus of proof rested on the applicants throughout.

118    For completeness I should mention certain authorities about the evidentiary use that can be made of acts by an alleged trustee subsequent to the date of the alleged declaration of trust. If the existence of an express trust is in issue, it may be against the interests of the alleged trustee to admit the trust. In those situations, evidence of subsequent acts which tend to show the existence of the trust will be admitted as admissions against, but not for, the alleged trustee's interests: see Herdegen at 276-277 (Gummow J) and authorities cited there. But the first respondent did not seek to apply that principle in the present case. The first respondent did submit that, save for statements against interest, subsequent statements of intention must be treated with caution: Wheatley v Kavanagh [2018] NSWSC 1359; (2018) 19 BPR 38,691 at [260] (Ward CJ in Eq). She also submitted, in effect, that Mrs Frigger's evidence was so lacking in credibility that I should only accept it as true if it is against her interest (ts 822). But they are different points.

119    The applicants submitted that somehow the principles I have summarised above do not apply to SMSFs because of requirements in the SIS Act which require trustees of such funds to keep accounting records and financial statements: s 35AE and s 35B. It may be accepted that the inclusion of an asset in such a record could be evidence that it is an asset of the FSF. It may also be accepted, as the applicants go on to submit, that the SIS Act does not require any express declaration of trust for an asset to be part of the FSF. But those propositions are just possible applications of the general principles I have outlined. The stipulations of the SIS Act do not displace the need to establish an objective manifestation of intention to create a trust.

When an asset is part of a fund

120    While the question of whether the applicants hold the disputed assets on trust is an important one, it is not the ultimate question raised by the applicants' claims. As I have said at [23] above, the applicants do not seek any declaration that the assets are 'property held by the bankrupt in trust for another person' within the meaning of s 116(2)(a) of the Bankruptcy Act, and I have also referred to the difficulties that cases such as Boensch v Pascoe would pose if the applicants did attempt to seek such a declaration. The ultimate question is whether the applicants' interests in the assets are part of their interests in a regulated superannuation fund for the purposes of s 116(2)(d)(iii)(A) of that Act.

121    Whether the FSF is a regulated superannuation fund, and whether the applicants have an interest in it, is considered below. But the truly contentious issue is whether the disputed assets are assets of that fund. On the case put by the applicants, only then will the applicants' interests in them be protected from the claims of the creditors of the bankrupt estates. For a superannuation fund which has been administered with attention to formalities and the requirements of the SIS Act and SIS Regulations, this last logical step may be uncontentious or even assumed. But as will be seen, the FSF has not been administered in that way.

122    There are three sources of the principles which will determine the issue in the present case. The first is judicial authority. I have already explained that, ordinarily, if an asset becomes subject to the terms of an existing trust, a new trust is in fact created, albeit on terms that are defined or described by reference to the terms of an existing trust. I have also referred to McGarvie J's view in Broomhead that it was natural to treat the initial asset of an express trust, and a business which subsequently became subject to that trust, as part of the one trust fund, and artificial to do otherwise. I do not see any necessary inconsistency between those two propositions. Two assets may be subject to different trusts for the purposes of one law while at the same time part of the same fund for the purposes of another law. The concept of a fund is an instrumental one: whether or not two assets are part of the same fund depends on the purpose for which one is deploying the concept.

123    In that regard, judicial pronouncements in similar legislative contexts can provide guidance. One influential statement is Windeyer J's discussion in Scott v Federal Commissioner of Taxation (No 2) (1966) 40 ALJR 265, of the phrase 'provident, benefit or superannuation fund established for the benefit of employees' in s 23 of what was then called the Income Tax and Social Services Contribution Assessment Act 1936 (Cth). That section exempted from income tax the income of a fund of the kind described in the key phrase. Since there was no definition of 'superannuation fund' in the Act, Windeyer J took the view that the meaning must depend on ordinary usage. In that context, his Honour held at 278:

In this connexion 'fund', I take it, ordinarily means money (or investments) set aside and invested, the surplus income therefrom being capitalized. I do not put this forward as a definition, but rather as a general description. The Act carries the matter somewhat further, because it (in ss. 66 and 82) suggests that a superannuation fund is made up of contributions. Doubtless a 'contribution' properly speaking has the sense of Dr. Johnson's definition: 'that which is given by several hands for some common purpose'. But in the sense that the word has in the Act, contributions to a superannuation fund may I think all be made by one hand, that of the employer. Ordinarily no doubt contributions, whether from one or more contributors, are amounts furnished from time to time; but I am not to be taken as saying that a superannuation fund could not be a single sum set aside for the purpose. I think it could be.

124    There is also guidance in Federal Commissioner of Taxation v Commercial Nominees of Australia Ltd [1999] FCA 1455; (1999) 167 ALR 147 (approved in Federal Commissioner of Taxation v Commercial Nominees of Australia Ltd [2001] HCA 33; (2001) 179 ALR 655 at [36]). While that was a case under the Income Tax Assessment Act 1936 (Cth) (ITAA 1936), it was decided after the enactment of the SIS Act and the Full Court took the definition of 'superannuation fund' in s 10 of the SIS Act into account: see [13]. The question in the case was whether changes to the terms of a superannuation fund were so extensive that it had become a different fund, so that it could not claim the benefit of income losses that had accrued before the changes. The Full Court (Lee, Emmett and Gyles JJ) held that it was not a different fund. In the course of so finding, their Honours said:

[50]    The approach of the [ITAA 1936] in relation to trusts is to direct attention to the trust property. 'Fund' when used in Pt IX must mean a 'stock or sum of money, especially if set apart for a particular purpose' (New Shorter Oxford Dictionary) or a 'stock of money or pecuniary resources': Macquarie Dictionary. The use of the term 'trust estate', which is not defined in the [ITAA 1936], is analogous to the use of the expression 'fund' as that expression is defined and used in Pt IX.

[51]    Neither refers to a legal person. Both terms must be taken to refer to the conglomeration of property in respect of which trust obligations and corresponding rights exist from time to time. Putting it another way, a trust estate or a superannuation fund will be that property the ownership of which is divided between trustee and beneficiary. The trustee will always be ascertainable. However, the class of beneficiaries, while identifiable, will not necessarily be closed and all beneficiaries may, of course, not be ascertainable.

[52]    The trust obligations of the trustee and the corresponding rights of the beneficiaries may vary from time to time, in accordance with law. Similarly, the property that is the subject of such obligations and rights will not be static. Parts of the property might be distributed so as to cease to be subject to trust obligations. Further property may accrue as income or by further settlement so as to become subject to obligations where previously that additional property was not.

[53]    However, at any given time it will be possible to identify the property that is the subject of the trust obligations and in respect of which the rights of beneficiaries exist

125    The second source of relevant principles is the legislation applicable here in which the concept of 'fund' is deployed. The relevant statutes are the Bankruptcy Act and the SIS Act. The meaning of the concept must therefore be substantially informed by the context and purposes of those statutes: cp Kennon at [229].

126    In that regard, it is clear that s 116(2)(d) of the Bankruptcy Act is beneficial or remedial legislation. The history of and policy behind the provision was reviewed by Burchett J, with whom O'Loughlin J agreed, in NM Superannuation Pty Ltd v Young (1993) 41 FCR 182 at 183-185. It is not necessary to quote the entire passage from NM Superannuation; the following excerpt from 183-184 will suffice:

The policy embodied in s 116(2)(d) of the Bankruptcy Act 1966 (Cth) (the Bankruptcy Act) is a policy which has been reflected in a number of provisions of statutes, both in Australia and overseas. Legislation of this kind views life insurance as a desirable provision for retirement, for old age, and against the possibility of bereavement bringing destitution or want upon a family; and it supports the availability of that provision by removing it from the reach of creditors upon a bankruptcy. In the report of the committee chaired by Clyne J (the Clyne report) which led to the enactment of the Bankruptcy Act, at para 156, it was stated:

It has been for many years the policy of Parliaments throughout Australia to give protection to policies of life insurance against the claims of creditors. This policy is now embodied in ss 92 to 94 of the Life Insurance Act 1945 (Cth). The protection given by that Act is, however, expressed to be subject to the Bankruptcy Act. The limited charge given by s 91(b) for the benefit of creditors appears to the committee to be a compromise that is difficult to justify and the committee recommends that, if a policy of life or endowment assurance has been in force for more than two years before the bankruptcy, neither the policy nor its proceeds should form part of the divisible property of the bankrupt and that, in such a case, there should be no charge in favour of the trustee in respect of any premiums paid.

In Re Lin; Law v Lin (1960) 18 ABC 142, a case involving s 91(b) of the Bankruptcy Act 1924 (Cth), which was in closely similar terms to those of the present s 116(2)(d), leaving aside the charge mentioned in the Clyne report, Clyne J said at 145:

The legislatures of Australia, of both Colony and State have passed many enactments relating to life assurance policies designed to encourage thrift and to enable persons to make provision for their dependants. The policy of these enactments was expressed in the form of affording protection of these policies against the claims of creditors. This protection varied in manner and extent. One of the first measures of this kind was the Life Assurance Encouragement Act 1862 of the colony of New South Wales. The protection given to life insurance policies against the claims of creditors by the various State enactments has now been superseded by the protection given to such policies by the Commonwealth Parliament.

127    At 185 Burchett J concluded that:

This survey of authority, which is far from exhaustive, shows that provisions from which s 116(2)(d) derives have been consistently regarded as of a beneficial or remedial nature. That brings the provision within a well known rule. It should not be construed in any narrower or more restrictive sense than its language would fairly allow.

128    While, at that stage, s 116(2)(d) only referred to policies of life insurance or endowment insurance, Burchett J's review is equally applicable to an interest in a superannuation fund: see Official Trustee in Bankruptcy v Trevor Newton Small Superannuation Fund Pty Ltd [2001] FCA 1267; (2001) 114 FCR 160 at [23] (Madgwick J); Trustees of the Property of Morris (Bankrupt) v Morris (Bankrupt) [2016] FCA 846 at [25]-[26] (Logan J). But s 116(2)(d)(iii)(A) of the Bankruptcy Act does not protect the interests of the bankrupt in any superannuation fund, even though that fund would, by definition, exist to provide for the retirement of its members. It must be a regulated superannuation fund, a stipulation which requires the purposes of the SIS Act to be taken into account. That is detailed and prescriptive legislation which, as is apparent from the discussion of it given below, lays down specific requirements about the formation, constitution and administration of superannuation funds. It also lays down prescriptive rules about the eligibility of funds to fall within the term 'regulated superannuation fund'.

129    The reasons for this are clear from s 3 of the SIS Act, which relevantly provides:

Supervision of certain superannuation entities

(1)    The main object of this Act is to make provision for the prudent management of certain superannuation funds, approved deposit funds and pooled superannuation trusts and for their supervision by [the Australian Prudential Regulatory Authority (APRA)], ASIC and the Commissioner of Taxation.

Basis for supervision

(2)    The basis for supervision is that those funds and trusts are subject to regulation under the Commonwealth's powers with respect to corporations or pensions (for example, because the trustee is a corporation). In return, the supervised funds and trusts may become eligible for concessional taxation treatment.

130    In other words, regulated superannuation funds are to enjoy concessional taxation treatment, but in return they must observe standards of prudent management.

131    The concept of a 'contribution' is also important here, as a superannuation fund is made up of contributions: see Scott above. The term is employed frequently in the SIS Act and SIS Regulations (and the FSF Deed). The legislation imposes detailed restrictions on the kinds of contributions that a regulated superannuation fund may accept in relation to a member, but the restrictions only apply after the member reaches the age of 65, which neither of the applicants had by 1 July 2014. Other than that, a review of the SIS Act discloses nothing that goes specifically to when an asset is, or is not, to be considered part of a regulated superannuation fund.

132    The third source of principles as to when an asset will be an asset of the FSF is the FSF Deed itself. It will be convenient to describe all its relevant provisions in one place below. Of particular significance here, though, is a requirement to be found in cl 33 that contributions may be made in cash, or by the transfer of assets in accordance with superannuation law.

133    To bring the themes that emerge from these three sources together, the intention behind s 116(2)(d)(iii)(A) of the Bankruptcy Act is to encourage 'thrift' and 'provision for retirement, for old age, and against the possibility of bereavement bringing destitution or want upon a family', (to employ the terms used in NM Superannuation and Re Lin; Law v Lin (1960) 18 ABC 142 quoted above) by protecting the bankrupt's interests in certain assets from the claims of creditors. But it does so by incorporating a specific concept defined and employed in the superannuation legislation to ensure that the assets are managed and their ownership is structured in a way which ensures that proper prudential standards are observed (see for example [151] below).

134    So the 'thrift' encouraged by s 116(2)(d)(iii)(A) of the Bankruptcy Act, and by the income tax concessions that apply to regulated superannuation funds, is thrift conducted in accordance with the many prescriptive requirements for prudent management that apply to such funds, as found in the SIS Act and elsewhere. With that in mind, and despite the beneficial approach to be taken to the interpretation of s 116(2)(d)(iii)(A), the assets of a regulated superannuation fund for the purposes of these statutes must be identified with regard to the explicit requirements of the superannuation fund trust deed itself. An asset does not become part of a fund unless and until it is contributed to the fund. At a minimum, an asset which is not cash will not be contributed until it has been transferred to the trustees of the fund, and has become subject to the trusts for which the FSF Deed provides. And in any event, there must be sufficient certainty about the content of any trust obligations attaching to the asset to permit the conclusion that it has become subject to the trusts of the FSF Deed and so part of the conglomeration of property in respect of which those trust obligations and corresponding rights exist.

135    The evidence addressed below will go to steps taken by the applicants which, conceivably, could have had the effect of contributing certain assets to the FSF. It is appropriate for the specific application of these broad principles to take place after consideration of that evidence.

Questions of timing

The relevant date for determining the status of the disputed assets

136    Section 116(1)(a) of the Bankruptcy Act, as quoted above, requires the identification of property that belonged to, or was vested in, the bankrupt 'at the commencement of the bankruptcy', or has been acquired or is acquired by the bankrupt, or has devolved or devolves on the bankrupt 'after the commencement of the bankruptcy and before his or her discharge'.

137    In s 5 of the Bankruptcy Act, 'the commencement of the bankruptcy, in relation to a bankrupt, means the time at which his or her bankruptcy is, by virtue of section 115, to be deemed to have commenced'. Section 115(1) in turn provides that, subject to an irrelevant exception, if a person becomes a bankrupt on a creditor's petition then 'the bankruptcy is taken to have relation back to, and to have commenced at, the time of the commission of the earliest act of bankruptcy committed by the person within the period of 6 months immediately before the date on which the creditor's petition was presented'.

138    Section 40(2) provides that a debtor 'becomes a bankrupt' on the making of a sequestration order. Section 58(1) relevantly provides that 'where a debtor becomes a bankrupt … the property of the bankrupt, not being after-acquired property' vests forthwith in the Official Trustee'. The 'property of the bankrupt', however, is relevantly defined in s 5(1) to mean the property divisible among the bankrupt's creditors, which points back to s 116(1), which speaks as at the commencement of the bankruptcy, not the date of the sequestration order.

139    Also relevant is s 58(2), which provides:

Where a law of the Commonwealth or of a State or Territory of the Commonwealth requires the transmission of property to be registered and enables the trustee of the estate of a bankrupt to be registered as the owner of any such property that is part of the property of the bankrupt, that property, notwithstanding that it vests in equity in the trustee by virtue of this section, does not so vest at law until the requirements of that law have been complied with.

140    In the present case it appears from the sequestration order itself that the relevant act of bankruptcy occurred on 8 November 2017 (Ex 41). I will take that as the date of commencement of the bankruptcy and so the date at which the property of the application that is divisible among the creditors of their bankrupt estates must be determined. Then, the applicants each became a bankrupt on 20 July 2018. Under s 5 of the Bankruptcy Act that is the date which the Act defines as 'the date of the bankruptcy'.

The effect of things done by the bankrupts after the sequestration order

141    It will not be necessary in these reasons to consider whether steps taken by the bankrupts between the commencement of the bankruptcy (8 November 2017) and the date of bankruptcy, that is, the sequestration orders (20 July 2018) were ineffective by reason of that timing. But the evidence addressed below will include evidence of steps taken by the applicants after the making of the sequestration orders (20 July 2018), which, conceivably, could have had the effect of contributing certain assets to the FSF. So it is necessary to consider whether post-sequestration dispositions of property by a bankrupt (which a contribution to a fund or declaration of trust would be: Comptroller of Stamps (Victoria) v Howard-Smith (1936) 54 CLR 614 at 621-622 (Dixon J) can take effect.

142    A bankrupt who purports to dispose of property in her name after she has been made bankrupt by order of the court is, at that time, dealing with property that does not belong to her. She holds, at most, a bare legal interest, and even that she holds for the benefit of the trustee in bankruptcy: National Australia Bank Ltd v Darroch [2010] NSWSC 1202 at [5]. That bare legal interest has no value: Farrow Mortgage Services Pty Ltd v Winfield [1992] 2 Qd R 282 at 285. On the face of things, the rule that a person cannot give what they do not have (nemo dat quod non habet) would apply: see Sheahan (liquidator) & Magill Constructions Holdings Pty Ltd (in liq) v Workers Rehabilitation & Compensation Corporation (1991) 56 SASR 193 at 209. So any purported declaration of trust which a bankrupt makes in respect of her property after the sequestration order has been made would be of no effect.

143    It is arguable that the nemo dat principle does not apply in cases which involve competition between two equitable interests: see ZX Group Pty Ltd v LPD Corporation Pty Ltd [2013] VSC 542 at [95]. But even so, the outcome would be the same in this case. If there are two competing equitable interests, the one with the better equity (merits) prevails, or if they are equal in merit, the one which is prior in time: Latec Investments Ltd v Hotel Terrigal Pty Ltd (in liq) (1965) 113 CLR 265 at 276. On both of those criteria, the interest of a trustee in bankruptcy in an asset under s 116(1) will prevail over the claim of a person who has taken an interest in the asset after the making of the bankruptcy order, with notice of the bankruptcy. That being so, the comprehensive equitable interest in an asset that has vested in the trustee in bankruptcy will leave no room for any suggestion that a subsequent interest in the same asset granted to the beneficiaries of the FSF after the making of the sequestration orders could make that asset part of the FSF.

144    So on either analysis, asserted contributions of assets to the FSF which occurred after the date of the sequestration order could not prevent those assets from vesting in the first respondent as trustee in bankruptcy. This will be relevant to some issues discussed below, such as the effect of the applicant's notification of the FSF TFN to certain share registries after they became bankrupts.

Contextual matters

145    I will now turn to consider relevant context around the FSF and the disputed assets which may help determine whether those assets were held on trust at relevant times, and as part of that fund.

146    Mrs and Mr Frigger were 44 and 42 respectively at the time of creation of the FSF and were 65 and 63 respectively at the time of the sequestration order (ACTF 1 pp 51, 53).

147    They are both professional people who, by the time of their bankruptcy had accumulated significant wealth. Much or all of that wealth had been accumulated through a combination of entrepreneurship and investment.

148    The disputed assets are all assets which are capable of being acquired, held and disposed of for investment purposes, such as cash deposited in high interest bank accounts, listed shares and other securities, and commercial and residential real property which is leased to rent-paying tenants (although, as mentioned, the first respondent alleges that any purported contribution of the Residential Properties to the FSF entailed certain contraventions of the SIS Act).

149    It will be seen that, to a significant extent, the dealings that surround the FSF meet Gummow J's description in Herdegen at 278 of 'private family dealings where some imprecision of thought and expression might perhaps be expected', and also to 'a pattern of business dealings each in legal form intended to follow those before it, with a resulting abbreviation in attention to detail'. If allowance is made for the private and family context of the FSF, that could make it easier for the court to discern the existence of a trust over disputed assets, despite the lack of formalities.

150    Against that, however, is the reality that, family dealings or not, the trust in question was situated in a complex and prescriptive web of laws intended to regulate matters such as the concessional tax treatment of superannuation contributions and income. This tends to speak against finding that assets were part of a trust: cp. Herdegen at 278. That is because in the context of that web of rules a failure to observe formalities, or even to express informally an intention to include an asset in a trust, supports an inference that the necessary intention was absent. Although the SIS Act does not displace any of the rules relating to the creation of trusts, its prescriptions enable complying regulated superfunds to obtain concessional tax benefits. Hence, one would expect a trust which has been purportedly created to obtain those tax benefits to comply with the rules which enable that to occur. A failure on the part of the relevant parties to comply with the rules may support the inference that no trust was thereby intended at all. That is all the more so where, as here, at least one of the putative trustees, Mrs Frigger, is a qualified accountant who holds herself out as having detailed knowledge of the relevant laws. While the 'family' nature of the FSF may lead the court to be less strict about any formalities required for an asset to be held on trust, the regulated nature of the FSF points away from any such relaxation of those requirements.

151    For example, s 34(1) of the SIS Act provides that each trustee of a superannuation entity must ensure that the prescribed standards applicable to the operation of the entity are complied with at all times. Section 31(1) permits the SIS Regulations to prescribe standards applicable to the operation of regulated superannuation funds and to trustees of those funds. Regulation 4.09A(2) contains the following prescribed standard:

A trustee of a regulated superannuation fund that is a self managed superannuation fund must keep the money and other assets of the fund separate from any money and assets, respectively:

(a)    that are held by the trustee personally; or

(b)    that are money or assets, as the case may be, of a standard employer-sponsor, or an associate of a standard employer-sponsor, of the fund.

This standard is also reflected in s 52(2)(g) of the SIS Act, which effectively implies into the FSF Deed a covenant to the same effect: see s 52(1).

152    It may be expected that the trustees of an SMSF wishing to comply with this requirement will be careful to ensure that any assets that are part of the fund are clearly identified as such. They would take steps to ensure that formal records of their ownership of fund assets note the trustee capacity in which they held the assets. They would not hold fund assets in the name of only one of the trustees where the trustees are individuals who are likely also to hold assets in a personal (non-trustee) capacity. And yet, almost without exception, assets said to be part of the FSF lack such clear identification, or any identification, as trust assets. Significant assets are held in the name of one or the other of the individual trustees only. Those circumstances tend to indicate that they are not FSF assets at all.

153    In the same vein, Mrs Frigger gave evidence that in managing and administering the FSF, she used certain guides published by the ATO. One of the guides she annexed, titled 'Ownership and protection of assets' contained the following passages (ACTF 18131):

You need to manage your fund's investments separately from the personal or business investments of members, including your own. This includes ensuring the fund has clear ownership of its investment assets.

To protect fund assets in the event of a creditor dispute, and prevent costly legal action to prove who owns them, assets should be recorded in a way that:

    distinguishes them from your personal or business assets

    clearly shows legal ownership by the fund.

Fund assets (other than money) should be held in the name of either:

    the individual trustees 'as trustees for' the fund

    the corporate trustee 'as trustee for' the fund.

The assets can't be held in the name of a trustee or a member as an individual.

An unavoidable restriction (such as state law) may prevent your SMSF from holding assets using the fund's name.

If assets cannot be held in the fund's name, ownership by the fund must be clearly established. You can do this by executing a caveat, or creating an instrument or declaration of trust to enable the fund to assert its ownership.

If possible, documents such as sale agreements should be executed in the name of the trustees 'as trustees for' the fund.

154    As will be seen, this guide largely describes what the applicants have not done in relation to the disputed assets. They have not observed the guidelines about clearly distinguishing assets from personal assets and recording the legal ownership of the fund. There is no evidence of them having recorded ownership in their capacity as trustees of the FSF at any time before the making of the sequestration order. They have not executed any instruments that clearly enable the fund to assert its ownership. The only formal instruments of any kind in relation to disputed assets are the 2014 Declarations over the Residential Properties and, as will be described, they are ambiguous and their effect is contestable. That the applicants did not comply with these guidelines supports an inference that the disputed assets were not part of the FSF.

155    I am conscious that the necessary manifestation of intention can be inherently difficult to prove, especially when dealings go back many years. An inability to prove that words were spoken does not necessarily support a firm finding that the words were not in fact spoken. But it is significant that in this case, apart from the 2014 Declarations, and some internet banking 'nicknames' which I will come to, the applicants have not pointed to any verbal statements of any kind, written or spoken, formal or informal, expressing an intention that the disputed assets be part of the FSF at relevant times. Their case is largely based on assertions in affidavits by Mrs Frigger of the existence of the necessary intention, and circumstantial evidence from which intention can (they say) be inferred.

156    As an example of that circumstantial evidence, Mrs Frigger's affidavit ACTF 2 sworn 8 May 2019 (para 5) refers to adverse tax consequences which would follow if the funds in BOQ1 were not part of the FSF and implicitly points to the improbability that '[m]y husband and I, both as trustees of the FSF and in our personal capacities have effectively lied in hundreds of income tax returns and annual returns since 1997 in relation to assets and income'. For reasons which should be obvious by now, that appeal to the court's belief in the honesty of Mrs Frigger, at least, is not persuasive.

Terms of the FSF Deed

157    It is necessary to summarise the FSF Deed in some detail because its provisions bear on several issues in the proceeding.

158    The FSF Deed is dated 1 July 1997. It established Serenity Holdings (i.e. CAT) as the initial trustee and Mr and Mrs Frigger as its initial members and hence beneficiaries (ACTF 110ff). I will make more findings shortly about the identities of the trustees and members of the FSF over time.

159    The title to the deed describes it as a self-managed fund. So does cl 1, which refers to the FSF as a self-managed superannuation fund under the SIS Act and is 'an indefinitely continuing superannuation fund'. The FSF is expressed to have been created for the sole or primary purpose of providing old age pensions and other benefits to members on their retirement: cl 2. The initial trustee is named as Serenity Holdings, and the fund is vested in the trustee: cl 3, Schedule 1 item 1. No other person (including a member) has any legal or beneficial interest in any asset of the fund except to the extent expressly stated elsewhere in the deed: cl 3. The trustee is required to manage the fund in accordance with the deed: cl 3.

160    The FSF Deed is to be interpreted so as to comply with superannuation law, and in particular, is to be construed so that the fund it establishes qualifies as a self-managed fund under superannuation law and qualifies for concessional treatment under the 'Tax Act' (which is undefined): cl 6. The trustee must not do or fail to do anything as trustee of the fund that would result in a breach of a law, including a superannuation law, or the fund ceasing to qualify as a self-managed fund under superannuation law or ceasing to qualify for concessional treatment under the 'Tax Act': cl 7.

161    The initial members of the fund are named as Mr and Mrs Frigger: cl 8 and Schedule 1. The trustee may not appoint a person as an additional member of the fund: cl 8. While that may cast doubt on the validity of the apparent subsequent addition of Jessica and Michael as members of the fund, the first respondent did not take that point and it is not apparent that anything turned on it. In any event, cl 9 seems to contemplate that there may be applicants for membership of the FSF. Under cl 14, when a member becomes disqualified from being a director of a corporate trustee of the fund, the member and the trustee must ensure that the member ceases to be a member of the fund within six months of the disqualification.

162    The FSF Deed contains detailed provisions about various accounts that the trustee must establish and the credits and debits to those accounts that may be made: c19-cl 27. These include an accumulation account for each member to which the trustee must credit, among other things, contributions made by a member, contributions made in respect of the member or a beneficiary of a member by an employer, and other contributions allowed under the deed and superannuation law that are made in respect of the member: see cl 20.1-cl 20.3.

163    There are provisions about the making of contributions. With the trustee's consent, a member may make any contributions to the fund that the member decides to: cl 30. Clause 33 provides:

A contribution to the fund must be made in the way the trustee directs. It must be made within the time specified by superannuation law. It may be made in cash, or by the transfer of assets in accordance with superannuation law. The only assets that may be transferred are those that are authorised investments under clause 45.

Clause 45 authorises investment in various classes of asset, including securities in a company incorporated anywhere, whether carrying on business in Australia or not, bank deposits and real or personal property.

164    Clause 36 provides that a trustee must not accept certain kinds of contributions, including a 'contribution that is not permitted by superannuation law'. If the trustee becomes aware that a contribution has been accepted in breach of that requirement, the trustee must refund the amount within any time specified by superannuation law, after making certain permitted deductions: cl 37. The trustee is authorised to reduce the benefits of the member to those which the member would have had if the contribution had not been accepted: cl 37. With the consent of the trustee and the member, any other person (including the spouse of the member and another member) may make contributions to the fund in respect of that member: cl 38.

165    I have just mentioned asset classes for authorised investments. The FSF Deed expands on this in a page headed 'Investment Strategy' that appears at the beginning of the document. This appears to have been made by the trustee pursuant to its obligation to formulate one or more investment strategies for the fund: cl 47. Clause 45 requires the trustee to invest assets of the fund that are not required for payment of benefits or other amounts under the FSF Deed in accordance with the current investment strategy, and the authorised asset classes. The 'Investment Strategy' says that the FSF will make investment decisions for the primary purpose of generating retirement benefits for members and secondly to comply with the investment rules of the SIS Act: item 1. The contributions received and other income of the FSF are to be invested in such a way as to maximise member returns having regard to the risk associated with holding the investment: item 2. There was to be appropriate diversification: item 3. The investment strategy was to ensure that the fund had the ability to pay benefits as members reached retirement: item 4. It noted that as the members of the FSF had approximately 20 years before they reached retirement age of 65, the FSF was able to invest in companies listed on the stock exchange which historically have shown the biggest increase in capital value, as opposed to investing in companies that pay large dividends: item 6. The investment strategy provides that the FSF was to hold between 30%-50% of assets in managed funds, in order to benefit from the investment strategy of professional fund managers: item 7. If sufficient funds were to become available the FSF was permitted to invest in real property, but not more than 30% of the total assets of the fund: item 8.

166    There are also provisions enabling members (or employers) to choose between different investment strategies (cl 49-cl 55), but there is no suggestion in the evidence that any member ever did this.

167    Pausing there, the evidence summarised below does not establish that the investments said to be part of the FSF (including both disputed assets and other assets which were not seriously disputed) came within these various guidelines. The balance sheets and annual returns below do not suggest that anything like 30%-50% of the fund's assets were in managed funds. The only investment which may have met that description is a reasonably modest investment in the Platinum Trust. Other than that, it is not possible to say whether the various assets said to be part of the FSF were acquired on a basis consistent with this strategy. So the applicants cannot point to compliance with the investment strategy found in the FSF Deed as support for their case that those assets are FSF assets.

168    Clause 46 prohibits the trustee investing in any investment that is forbidden by superannuation law. The trustee may sell, transfer or vary any investment at the trustee's absolute discretion: cl 48.

169    The FSF Deed contemplates a retirement age of 65: see FSF Deed 'Investment Strategy' item 6, cl 58. Mrs Frigger turned 65 on 28 April 2018 and Mr Frigger turned 65 on 18 May 2020 (ACTF 1 pp 51, 53). The trustee has obligations not to pay any 'preserved payment benefit' except in circumstances permitted by superannuation law, which include retirement after reaching the 'relevant preservation age': see cl 56 and cl 57. While these terms are not defined in the FSF Deed, 'preservation age' is defined in reg 6.01 of the SIS Regulations in a manner which corresponds to retirement age. So it is clear enough that a member of the fund may not receive benefits until he or she has retired after reaching retirement age, or on other relevant events such as total permanent disablement. With the trustee's consent, a member may also withdraw 'any part of the non-preserved amount in the member's accumulation account': cl 59. A member's benefit entitlement will vest in accordance with superannuation law and the trustee must cash or commence to cash it as soon as practicable after the member dies or the entitlement has vested, although if the member or beneficiary requests, the trustee may retain any part of a benefit in the fund: cl 59 and cl 62. There are detailed provisions about the payment of pensions: cl 66-cl 93. The trustee must obtain an actuarial certificate in accordance with superannuation law in relation to any pension it decides to pay: cl 67. If pensions are to be paid to a person the trustee must establish a pension account in the name of the person: cl 71.

170    There are provisions for payment of death, disability or retirement benefits. In the case of retirement benefits they must be paid in a lump sum representing the amount standing to the credit of the member's accumulation account or, in consultation with the member, that amount can be used to purchase one or more pensions or annuities: cl 104. The amount of the retirement benefit is the amount standing to the credit of the member's accumulation account: cl 104. With the consent of the member or beneficiary, the trustee may pay a benefit by transferring cash or by transferring investments of equivalent value: cl 117.

171    Section L of the FSF Deed is headed 'Trustee's powers'. It contains provisions which confer on the trustee the broad powers one would expect a modern trust deed to give to a trustee with responsibilities to invest and administer assets. They include all the powers that the trustee would have if they were the legal and beneficial owner of the assets: cl 124. They also include: the power to delegate (cl 126); to borrow money (cl 128.1, although note the restrictions on borrowing in s 67 of the SIS Act); to arrange insurance (cl 129); to transfer part of the fund to the trustee of an 'approved benefit arrangement' (cl 134); to transfer to a successor fund under superannuation law (cl 136); to transfer to an eligible rollover fund in accordance with superannuation law (cl 137); to transfer assets to a beneficiary rather than money (cl 138); and to receive transfers of assets from an 'approved benefit arrangement' (cl 139 - this term is not defined in the FSF Deed or the SIS Act or SIS Regulations).

172    The trustee has obligations as to the administration of the FSF. It must ensure that any money received by the fund is dealt with as soon as possible by either depositing it 'to the credit of the fund in an account kept with a bank, friendly society, building society, or other similar body chosen by the trustee': cl 140. Or the trustee may pay it to the credit of a relevant insurer or into the trust account of a lawyer, accountant or investment manager: cl 140. The trustee must comply with superannuation law and with any directions of the Regulator in relation to the fund: cl 143. The trustee must keep proper records and accounts of all money received by the fund and paid out by it: cl 146. It must arrange for annual returns and audits: cl 150, cl 151, cl 155.

173    The trustee has the power to appoint directors of a corporate trustee of the FSF (cl 165). Clause 166 provides:

The trustee may appoint the members of the fund as trustees in place of or in addition to the trustee by varying this deed. The trustee must do everything necessary to vest the fund in the replacement trustees and must deliver all records and other books to the replacement trustees.

There is a similar provision authorising the trustee to appoint a replacement corporate trustee: cl 167. The trustee is authorised to vary the deed prospectively or retrospectively 'by oral declaration, written resolution or deed': cl 174. There are limitations on that power so that it cannot be used to reduce the entitlements of members or to change the purpose of the fund so that it is no longer a superannuation fund: cl 175

Management of the FSF

174    Mrs Frigger's evidence, which I accept as inherently probable, is that from its inception she and Mr Frigger managed the FSF and made all investment decisions (ACTF 1 para 10; ACTF 18 para 23). I also accept her evidence that Mr Frigger has managed the Main Portfolio, although whether he did so as trustee of the FSF, or on behalf of the trustee(s), or on behalf of he and Mrs Frigger in their personal capacities, is a separate question. I also accept that Mrs Frigger, as a qualified accountant, managed all accounting records of the FSF, attended to the banking of income and capital, and prepared and sent out invoices to tenants of investment properties (whether FSF assets or not). Mrs Frigger procured the required annual audits of the FSF, although, as will be seen, there is no specific evidence of any audit having been conducted before the sequestration order. She attended to the filing of income tax returns (ts 223 ln 30, 228 ln 10).

175    Mrs Frigger gave evidence that since the commencement of the FSF on 1 July 1997, she and Mr Frigger took all steps to ensure that all their assets (other than their principal residence) would be held in the FSF to obtain various listed tax benefits (ACTF 1 para 7). That is at such a high level of generality that it can be given no evidentiary weight. I do, however, treat it as a submission that the desire to obtain those tax benefits increases the inherent probability that assets were made part of the FSF (as to which see below). But this says nothing about whether and how the intention for a specific asset to be part of the FSF was manifested.

176    Mrs Frigger then says in her affidavit ACTF 1 that she and Mr Frigger took certain steps to obtain those benefits (para 8). One step was to transfer a share portfolio to the FSF in 1997. She says this was done as an undeducted superannuation contribution with a value of $650,000 (ACTF 5 para 2). She no longer has documentary evidence of the transfer. In any event, this says nothing about the Main Portfolio held with CommSec, which was opened in 1998, or about the individual securities now held within that portfolio, more than 20 years later.

177    Another step the applicants are said to have taken is to make in specie contributions of certain properties in Perth and Armadale to the FSF in 2009. Another was to sell a BP service station business conducted from the Armadale property (BP Business) in 2016 and to contribute the sale proceeds to the FSF. None of these are disputed assets for the purposes of this proceeding.

Who were trustees and members of the FSF at various times?

178    I have mentioned that the question of who were the trustees of the FSF and who were its members at various times is potentially significant to the determination of substantive issues in the proceeding. So it is convenient to make findings about the identities of the trustees and members of the FSF before determining those issues.

179    The first piece of evidence bearing on the question is the FSF Deed itself. The first respondent did not suggest that the copy in evidence was other than authentic and what it appeared to be. So it establishes that the initial trustee of the FSF was CAT, and that its initial members were Mr Frigger and Mrs Frigger.

180    Next, there is a deed of amendment apparently dated 1 January 2008. Its effect purports to be that from that date, Mr and Mrs Frigger were appointed trustees of the FSF. It appears that this was in addition to CAT and not in place of it, as there is nothing in the document indicating that CAT had resigned or been removed. There is nothing to suggest that it did not have effect under cl 166 of the FSF Deed (quoted at [173] above) to make Mr and Mrs Frigger trustees of the FSF along with CAT (ACTF 157).

181    It is unlikely that this deed of amendment was signed on (or even about) 1 January 2008. That is because Mrs Frigger gave evidence in cross-examination to the effect that there had been an earlier deed of amendment signed on or about that date which also appointed Jessica and Michael as trustees, 'and then I found out that they didn't have to be trustees, so I did another deed of amendment saying only the two of us were appointed, because they didn't need to be trustees' (ts 394). It appears that the earlier version of the deed of amendment, which was not in evidence, was not in force for 'a long time' (ts 395). As dubious as the apparent backdating and retrospective change to the appointment of Jessica and Michael may have been, I accept that the intention of the trustee (who had the capacity to appoint - see description of FSF deed above) had by some time in 2008 been expressed so as to appoint Mr and Mrs Frigger only as additional trustees.

182    In cross-examination Mrs Frigger said that Jessica and Michael had later been appointed trustees of the FSF on 15 July 2010, when CAT was removed due to the winding up (ts 408). For reasons that are better explained below in the context of the evidence about the Residential Properties, I do not accept this.

183    Next, there are what purport to be minutes of a meeting of the FSF held on 1 July 2014 at which Hartmut, Angela, Jessica and Michael Frigger are all recorded as present. The capacities in which they were there are not stated. For reasons which, once again, are best given in the context of the evidence about the Residential Properties, I find that this document is not authentic and was prepared after 22 May 2020 for the purposes of submitting it as evidence in this proceeding.

184    There are members' statements in evidence covering the period 1 July 2015 to 30 June 2018 which record that Jessica Frigger and Michael Frigger were members from 1 January 2008 (KAT 4 pp 460, 466). They show that each of them had opening balances as at 1 July 2015, suggesting that they were also members in at least the financial year beginning 1 July 2014. These were received by Mrs Trenfield from the FSF's auditor and were not put into evidence by Mrs Frigger. There is nothing about the apparent circumstances of their preparation which suggests that any detail in them was fabricated.

185    There is an annual return of the FSF for 2016 in evidence which shows Angela, Hartmut, Jessica and Michael Frigger as members. Jessica and Michael each have an opening balance, suggesting that they were members from at least 1 July 2015, that being the start of the year covered by the annual return (KAT 4 pp 393-394). They are also shown as members in the 2017, 2018 and 2019 annual returns (Ex 39). However for reasons I will explain below, I do not accept the annual returns as reliable evidence of anything.

186    There are trustee declarations of the market value of various properties which purport to date from times in 2016, 2017 and 2019 (KAT 4 pp 427-438). These are only signed by Mrs and Mr Frigger as trustees. In cross-examination Mrs Frigger asserted that only two trustees were required to sign those declarations (ts 392). Nothing in the FSF Deed or the law of superannuation appears to back up that assertion. She appeared to concede that despite the dates they bear, these declarations were prepared by the fund auditor and sent to the applicants and signed by them in 2019 (ts 374-375). Since it is implicit in Mrs Frigger’s own evidence that the declarations did not list all the trustees of the FSF at any relevant time, they are not reliable evidence as to the identity of all the trustees.

187    On 20 July 2018, upon becoming bankrupts, by force of s 120(1)(b) of the SIS Act each of the applicants became a 'disqualified person' for the purposes of Part 15 of that Act. That meant that they could not longer be trustees of the FSF as a regulated superannuation fund: SIS Act s 126K(1)(a). There is a deed of amendment bearing the date 1 July 2018 which, according to Mrs Frigger's evidence, was executed on 21 July 2018 (the day after the sequestration order) (ts 208). The effect of this amendment is to remove each of Hartmut, Angela, Jessica and Michael Frigger as trustees and to appoint HAF in their place. But it purports to take effect as from 1 July 2018 (ACTF 159). Clause 174 of the FSF Deed does purport to empower the trustee to amend the deed retrospectively.

188    The authenticity and date of signature of this deed of amendment were not challenged and it is inherently probable that the applicants wanted to cease being trustees upon becoming bankrupt. The need to remove Jessica and Michael as trustees suggests they were appointed as trustees at some point before then. But there is no direct evidence of this, such as a deed of appointment. As I have explained, it appears that a document appointing them as trustees in 2008 was soon revoked. They were both minors at that time (see KAT 4 pp 460, 466).

189    Despite the terms of cl 14 of the FSF Deed (see [161] above) there is no suggestion that either of the applicants ceased to be a member of the FSF within six months of their bankruptcies. There was evidence that the interests of the applicants in the fund were placed into a forfeiture account pursuant to cl 118 of the FSF deed (ACTF 1 p 60). Clause 118 and cl 119 provide for a forfeiture account for any amount forfeited under the FSF Deed, including where a member becomes bankrupt. But it was not clear from the evidence what this has meant in practice. There is no basis for me to find that the applicants have not retained their respective interests as members of the FSF at all material times.

190    Evidently some time after the sequestration order the applicants realised that they were unable to act as directors of HAF given that it had been purporting to act as trustee of the FSF from 1 July 2018: see SIS Act s 126K(4) and Frigger, in the matter of an application by Frigger [2019] FCA 1730; (2019) 139 ACSR 329 at [5] (Re Frigger). That is because they applied for orders under s 126J(1)(b) that each of them was not a disqualified person in relation to HAF and the FSF, and the court made those orders on 21 October 2019: Re Frigger.

191    There is then a deed of amendment apparently dated 15 April 2020 which appointed Hartmut, Angela, Jessica and Michael Frigger as trustees in place of HAF (ACTF 1411).

192    In Frigger (No 6) at [24]-[25] I referred to evidence suggesting that Jessica Frigger and Michael Frigger ceased to be members on 5 June 2020. I infer that they ceased to be trustees at the same time.

193    What appear to be the results of a search of the Australian Business Register (ABR) for the FSF are in evidence (KAT 15 and ACTF 1 p 61). The search was obtained from the ABR on 3 October 2018. The following table summarises the trusteeship of the FSF according to the ABR over time.

Dates

Trustee(s)

15 Jun 2000 - 2 Dec 2004

Angela Frigger

Hartmut Frigger

2 Dec 2004 - 6 Jan 2008

CAT

6 Jan 2008 - 6 Jul 2010

CAT

Angela Frigger

Hartmut Frigger

6 Jul 2010 - 6 Jul 2016

Angela Frigger

Hartmut Frigger

6 Jul 2016 - 1 Jul 2018

Hartmut Frigger

Angela Frigger

Jessica Frigger

Michael Frigger

1 Jul 2018 and after

HAF

194    As for membership of the FSF, the ABR search shows that Mrs and Mr Frigger were members from 2 December 2004 and after, and that Jessica Frigger and Michael Frigger were also members from 6 July 2016 and after.

195    I do not, however, consider the ABR record for the FSF to be good evidence of its contents. According to Mrs Frigger, she was responsible for updating the ABR (ts 214), so its reliability is doubtful. In cross-examination she said that the 'ABR is absolutely correct' (ts 396). Yet in a subsequent closing written submission she and Mr Frigger said that the 'ABR register of associates is inaccurate and contradicts other evidence'. This is another example of Mrs Frigger's willingness to change what she told the court from time to time as she perceived the occasion suited. But it is the case that the dates as to membership in the ABR appear to be wrong, (see [193] above) since Mrs and Mr Frigger were plainly members before 2004, and the membership statements suggest that Jessica Frigger and Michael Frigger were members from before 6 July 2016 (or 1 July 2016).

196    I make the following findings on the basis of the above evidence:

(1)    CAT was a trustee of the FSF from its inception in 1997 until its winding up in 2010.

(2)    Mrs Frigger and Mr Frigger were trustees of the FSF from early 2008 until 21 July 2018, being the date on which Mrs Frigger said that the deed of amendment was executed (see further (4) below).

(3)    It is not possible to make a firm finding as to when Jessica Frigger and Michael Frigger first became trustees. As I have said, the 2008 deed of amendment in evidence does not mention them, the purported 2014 minutes are not authentic (see below), and only the deed of amendment of 1 July 2018 terminating their trusteeship provides any firm evidence that they were trustees. Mrs Frigger's oral evidence that they were appointed in 2008, when they were minors, is not reliable. But despite the general unreliability of the ABR, I find that Jessica and Michael were trustees from at least the date shown on it, 6 July 2016. There was no reason to doubt the implication made in the deed of amendment dated 1 July 2018 that they were trustees of the FSF at that time. If so, they must have been appointed at some time before 1 July 2018. Under s 17A(1)(d) of the SIS Act, each individual who is a member of an SMSF must also be a trustee of that fund, or a director of the fund's corporate trustee, if it is to meet the definition of an SMSF. Records that are reliable as to membership, such as the annual returns and membership statements indicate they were members from well before 6 July 2016. This makes it inherently likely they were appointed trustees by that time.

(4)    In point of fact, HAF was the sole trustee from 21 July 2018 until 15 April 2020. HAF's appointment was purportedly backdated to 1 July 2018 but there is no need in this proceeding to determine what effect that had, if any. For the purposes of this judgment, it is both sufficient and correct to proceed on the basis that HAF was not appointed in fact until 21 July 2018.

(5)    From 15 April 2020 until 5 June 2020, the applicants and both their children were trustees of the FSF. Jessica and Michael ceased to be trustees of the FSF on the latter date. The applicants have been the only members and the only trustees since that date.

(6)    The applicants have been members of the FSF from its inception on 1 July 1997 and at all times thereafter.

(7)    Jessica Frigger and Michael Frigger were members of the FSF from 1 January 2008 to 5 June 2020. While the evidence about the start and end dates of their membership is not substantial, there is no reason on the face of that evidence to doubt it: see the discussion of the member's statements above and see Frigger (No 6) at [24]-[25]. Those dates are inconsistent with the ABR search, but for the reasons I have given the ABR records for the FSF are not reliable.

197    I will now turn from these contextual and background matters concerning the constitution and management of the FSF to consider the threshold issue of whether the FSF was a regulated superannuation fund within the meaning of the SIS Act.

Is the FSF a regulated superannuation fund within the meaning of the SIS Act?

198    The first respondent put the applicants to proof on whether the FSF is a regulated superannuation fund within the meaning of the SIS Act, but did not advance any reason as to why it was not.

199    Under s 10(1) of the SIS Act, 'regulated superannuation fund' has the meaning given by 19, which relevantly provides as follows:

19    Regulated superannuation fund

Definition

(1)    A regulated superannuation fund is a superannuation fund in respect of which subsections (2) to (4) have been complied with.

Fund must have a trustee

(2)    The superannuation fund must have a trustee.

Trustee must be a constitutional corporation or fund must be a pension fund

(3)    Either of the following must apply:

(a)    the trustee of the fund must be a constitutional corporation pursuant to a requirement contained in the governing rules;

(b)    the governing rules must provide that the sole or primary purpose of the fund is the provision of old-age pensions.

Election by trustee

(4)    The trustee or trustees must have given to the Commissioner of Taxation [previously APRA] a written notice that is:

(a)    in the approved form; and

(b)    signed by the trustee or each trustee;

electing that this Act is to apply in relation to the fund.

Note:    The approved form of written notice may require the trustee or the trustees to set out the tax file number of the fund. See subsection 299U(1).

Election is irrevocable

(5)    An election made as mentioned in subsection (4) is irrevocable.

Trustee has power to make election despite anything in the governing rules etc.

(6)    The trustee or trustees have the power to make an election as mentioned in subsection (4) despite anything in the governing rules of the fund.

200    As for what is a 'superannuation fund', s 10(1) gives the following (partly circular) definition:

superannuation fund means:

(a)    a fund that:

(i)    is an indefinitely continuing fund; and

(ii)    is a provident, benefit, superannuation or retirement fund; or

(b)    a public sector superannuation scheme.

201    In Scott at 278, Windeyer J defined a 'superannuation fund established for the benefit of employees' as being 'a fund bona fide devoted as its sole purpose to providing for employees who are participants money benefits (or benefits having a monetary value) upon their reaching a prescribed age'. As noted above, his Honour approached the question as one of ordinary usage. His Honour's definition has been cited frequently since, but the term he was construing was limited to funds established for the benefit of employees, a limitation not found in the definition in the SIS Act.

202    In Meulman v OTC Ltd (1990) 96 ALR 223 at 237, Bryson J gave the term 'superannuation' a wide meaning, as follows:

Although the connotation is extremely wide, it is my view of the ordinary meaning of the word 'superannuation' and related words, that benefits are provided for the purpose of enabling or assisting an employee or office holder to give up work and retire from economic activity if he wishes to, on reaching an age where it is appropriate to do so or on reaching a state of health in which it is appropriate to do so.

203    I am satisfied that the FSF has at all material times been a superannuation fund. I have described relevant terms of the FSF Deed above. It describes the FSF as a superannuation fund. Its sole or primary purpose is expressed as the provision of old age pensions and other benefits to members on their retirement. It provides for the payment of lump sum benefits or pensions to members after they reach retirement age. There are numerous provisions which require compliance with laws regulating superannuation. There can be no doubt that it is a superannuation fund.

204    As for whether the FSF is a regulated superannuation fund, that depends on its compliance with the requirements in s 19(2) to s 19(4) of the SIS Act, as quoted above. It would appear that at all times the FSF has had a trustee: see s 19(2). At times the trustee has been a constitutional corporation (CAT or HAF - s 19(3)(a)) and in any event, as I have described, cl 2 of the FSF Deed provides for the sole or primary purpose of the FSF in terms that closely match s 19(3)(b).

205    As for the election required by s 19(4) of the SIS Act, there is in evidence a letter dated 25 September 2000 from APRA (which, at the time, was the entity to which the election had to be communicated) to the trustees of the FSF stating that for the year of income 1998/99, the FSF was a complying superannuation fund (ACTF 1 p 62). There is no reason to think that this document is anything other than what it appears to be. The notice was for the purpose of informing the Commissioner of Taxation how to treat the fund: SIS Act s 40, s 45(1). APRA did not need to issue similar notices for subsequent years, unless it gave notice that it was not a complying fund: s 45(1)(b). There is no evidence of any notice from APRA subsequent to the one dated 25 September 2000.

206    Pursuant to s 42A(1)(a) of the SIS Act, an SMSF will be a complying superannuation fund only if it is a 'resident regulated superannuation fund'. A resident regulated superannuation fund is defined as a regulated superannuation fund that is an Australian superannuation fund within the meaning of the Income Tax Assessment Act 1997 (Cth) (ITAA 1997): SIS Act s 10. Hence, the letter of 25 September 2000 is evidence of the view of APRA that in 2000, the FSF was a regulated superannuation fund. It can be inferred from this that the election required by s 19(4) of the SIS Act was given at some point. That election is irrevocable: s 19(5). There is no suggestion in the evidence that the terms of the FSF Deed changed at any material time. I am satisfied that the FSF is, and has at all material times been, a regulated superannuation fund for the purpose of s 116(2)(d)(iii)(A) of the Bankruptcy Act.

207    That is confirmed by an extract from the ATO's records dated 9 October 2018 and headed 'Super Fund Lookup', which records the fund type of the FSF as an 'ATO Regulated Self-Managed Superannuation Fund' and its status as 'Complying' (KAT 4 p 226). While Mrs Frigger was the source of that document, having sent it to the first respondent on 9 October 2018, there is nothing to suggest that it is not what it appears to be.

208    In my view, s 19 of the SIS Act contemplates that once a fund becomes a regulated superannuation fund, it will always have that status. An exception to this may be a fundamental change to the fund such as ceasing to have a trustee for a lengthy period of time, or ceasing to be a superannuation fund at all; for example if its governing rules are amended to provide for a principal purpose wholly unconnected with providing income to members on their retirement. But setting that aside, there are textual indications and policy indications evident from the Act as a whole which support the 'once and for all' view. In particular, s 19(1) of the SIS Act speaks in terms of whether subsections (2) to (4) have been complied with. Section 19(4) requires an election to have taken place, and s 19(5) provides that the election is irrevocable.

209    These are not by any means the only requirements in the SIS Act and other legislation with which a regulated superannuation fund must comply. Non-compliance with those other obligations may have consequences such as losing concessional tax treatment. There was controversy in the evidence and at trial as to whether the FSF had complied with various requirements, for example in relation to audits. But whether or not the FSF is now a complying superannuation fund (a term defined in the SIS Act, see s 42) does not bear on whether it is a regulated superannuation fund within the meaning of the SIS Act, and so on whether the applicants' interests in the fund are available for division among their creditors.

210    I will now turn from these contextual and threshold matters concerning the FSF to consider the central issues as to whether the specific disputed assets are part of the FSF.

BW1

211    The applicants seek no declaration that the Bankwest Retirement Advantage account BW1 is an asset of the FSF. That appears to be because there is no freeze on the account that inhibits their ability to deal with it. But it is relevant to consider whether BW1 is an asset of the FSF because the applicants claim that it was and is the main operating account of the FSF and, as I will explain soon, the first respondent accepts that the funds in BOQ1 can be traced back to BW1. Similarly, the applicants claim that the securities in the Main Portfolio were purchased using funds in BW1. So the question whether BW1 was an asset of the FSF bears on whether assets which are the subject of the claimed declarations are assets of the FSF.

The first respondent's tracing of funds

212    As will soon become apparent, since at least 2017, the applicants frequently moved large amounts of money between different accounts in their names. To appreciate the potential importance of establishing whether BW1 was an asset of the FSF, it is helpful to describe the exercise the first respondent has undertaken to follow these movements of funds from BOQ1 as far back as possible to their source.

213    In this and subsequent sections I will refer to this as a 'tracing' exercise. The applicants expressly relied on 'the rules of tracing and following' as set out in Foskett v McKeown [2001] 1 AC 102 at 130 (Lord Millett). With respect, that is misconceived, because as the passage relied on shows, those rules apply when property has been misappropriated and used to acquire other property. They determine when the beneficial owner of the first property may assert a proprietary remedy over the second property. They can also apply when that person seeks a personal remedy against a knowing recipient or knowing assistant: see Boscawen v Bajwa [1996] 1 WLR 328 at 334 (Millett LJ). The rules of tracing that have been developed in that context include various presumptions which can assist the beneficial owner to obtain redress in the often complicated factual circumstances which attend mixing of property. But no remedy of that kind is sought here and so a strict or mechanical application of the rules of tracing that have been developed, in particular the presumptions, would be out of place.

214    As a result, in the context of the present matter the term 'tracing' is used and the concept applied in a non-technical sense. Here, the question is ultimately one of fact as to whether the flow of funds supports the applicants' contention that moneys in particular bank accounts, which (they say) were assets of the FSF, retained that character after they were paid into other bank accounts, ultimately BOQ1. Ultimately, the applicants seek to contend that funds in certain bank accounts were (they say) FSF funds. So it should be inferred that they were trust funds when paid into different accounts. I accept that the concept of tracing described in Foskett v McKeown may provide useful guidance for assessing that factual contention, but application of particular rules and presumptions developed in a different context would be out of place.

215    In Frigger v Trenfield (No 2) [2019] FCA 2009 (Frigger (No 2)) at [17] I observed that if a trustee exchanges one asset for another, an intention that the latter asset is subject to the relevant trust may be more readily inferred. The first respondent accepts this, although she also submits that it would not be enough on its own in a situation where the applicants had reached retirement age, and so could also be inferred to have taken funds that had vested in them personally. But in practice both parties conducted their case on the basis that if BW1 was found to be a trust asset, that would be relevant to determining the ownership of funds which flowed from that account and ultimately into BOQ1. That is consistent with the principles I have summarised above as to when the court may infer the intention necessary for a trust to arise.

216    The first respondent has prepared a diagram based on bank statements in her possession which displays the flow of funds, which is attached as Schedule 2 to these reasons (KAT 4894, with account numbers redacted). It demonstrates that the funds presently in BOQ1 did flow through BW1, albeit most of it can be followed back further to STG1. Although the applicants complained about the length of time it took for the first respondent to acknowledge this, and they presented an alternative 'tracing' exercise described below, the applicants did not dispute the accuracy of the first respondent's schedule (ts 165). They presented their own tracing of the various withdrawals and deposits between different accounts which, although it started earlier in time (relevantly, from the time of a $1,800,000 deposit from BW1 into STG1 on 6 September 2016) was not materially different from the first respondents' analysis. As will be seen, however, the applicants sought to put a different interpretation on the movement of funds.

217    Mrs Trenfield's evidence was that she could not trace the funds back before April 2017 (KAT 4 para 153). On the basis that the funds cannot be followed back further than the accounts in the diagram, the following table summarises the ultimate source of the funds in BOQ1, as at 2 July 2018:

Source

$

STG1

2,187,582.06

Interest

68,512.47

A Frigger

200.00

Unknown

10,908.28

Officeworks Hobart rent

81,372.26

BW1 Other

171,022.41

Total

2,519,597.48

218    The entry for 'BW1 Other' needs to be explained. It represents the amount flowing into BOQ1 which cannot be identified as coming from another identified source outside the accounts shown in the diagram, such as interest or Officeworks rent. In fact, as the diagram shows, more than $171,022.41 flowed from BW1 to BOQ1. But since much of the funds in BW1 came from other accounts in the group, the balance of $171,022.41 is the amount that came into BW1 from apparently unknown sources and then flowed into BOQ1.

219    In saying this, I acknowledge that, for reasons soon to be described, the applicants' case was that the source of funds in BW1 was not unknown. Further, the applicants' case is that the $2,187,582.06 in STG1 can be traced back further to BW1 and, further still, to income generating assets of the FSF such as the Hobart and Edward Street properties. So on their case, the asserted characterisation of BW1 as an FSF asset is important.

220    I will now turn to the evidence as to whether BW1 was an asset of the FSF. The reader who has persevered this far should be warned: much of that evidence is simply a mess. That is especially so in relation to the balance sheets and annual returns. It is impossible to describe them in a tidy way. Ultimately, that is the point of the following section of this judgment: the balance sheets and annual returns are a morass in which no sure footing can be found.

The evidence about BW1

The details of BW1

221    BW1 is in Mrs Frigger's name. It is not clear when it was opened but it has been in operation at times when Mr Frigger, Jessica and Michael have been additional trustees of the FSF, and during a period when HAF was the sole trustee. There is an email from Bankwest to the first respondent saying that BW1 'is a sole account for Angela Frigger not opened as a Super fund or ATF Super fund' (KAT 4558). The bank statements (including copies which the bank provided direct to the first respondent, and so can be accepted as reliable) do have a box on them containing both Mrs Frigger's and Mr Frigger's name, along with a number labelled a 'PAN' for each of them, but these boxes were unexplained (KAT 246).

222    The respondent obtained from Bankwest screen captures of details held by the bank for each of the applicants. These show that as at the date on which Bankwest gave the screen captures, 17 September 2019, an 'account nickname' of 'Frigger Super Fund' had been assigned to BW1 (KAT 4 pp 488-489). Presumably one of the applicants did that, but there is no evidence as to when that occurred so I place no weight on it.

223    The account statements for BW1 make no reference to the FSF. It is true that Mrs Frigger annexed to affidavit ACTF 1 a statement for BW1 which does have a notation on it 'Account of: Frigger Super Fund' (p 112). That is different to numerous other statements for BW1 that the first respondent received direct from the bank, and which therefore can be accepted as reliable. Those statements say 'Account of: Angela Cecilia Therese Frigger' instead of 'Account of: Frigger Super Fund' (KAT 2 pp 46-66). It was not put to Mrs Frigger that she deliberately altered the statement attached to ACTF 1 for the purposes of this proceeding so I make no finding to that effect. But nor did she give any evidence as to the specific circumstances in which that notation appeared on that bank statement. I prefer the finding that is indicated by the numerous other statements for BW1, that the 'Frigger Super Fund' notation was not part of the name of the account. It follows that I accept that the bank statements do not refer to the FSF.

224    The evidence on which the applicants did rely in relation to whether BW1 is an asset of the FSF, and my comments on that evidence, are as follows.

Balance sheets

225    The applicants relied on various financial statements of the FSF as evidence of the assets which the fund held. As I have said, entries in accounts can be objective manifestations of an intention that an asset be held on trust: Broomhead at 921.

226    There is a balance sheet for the FSF as at 30 June 2019 which was signed by the applicants and apparently submitted to the auditor of the FSF (Ex 43). It is signed by the applicants, whose signatures bear the date 19 June 2020. It shows BW1, as well as all the other disputed assets, as assets of the FSF. Since it was obviously prepared by Mrs Frigger after the commencement of this litigation, it is likely to be self-serving.

227    I interpolate here that, as noted in Frigger (No 2) at [79], Mrs Frigger took objection to the description of documents as self-serving, as she understood it to mean that they were forged or otherwise fraudulent. But it does not necessarily mean that. Describing a document as self-serving is simply an application of the common sense principles which Banks-Smith J summarised in Australian Securities and Investments Commission v Big Star Energy Ltd (No 3) [2020] FCA 1442; (2020) 389 ALR 17 a[43]:

A court is plainly able to evaluate the weight or cogency of the material contained in documents and draw relevant inferences. For example, it is open to take into account the absence of any cross-examination or testing of the evidence. It is open to take into account the atmosphere or context in which a document is prepared that might cause it to be self-serving: Vitali v Stachnik [2001] NSWSC 303 at [12] (Barrett J). Also relevant is the nature of the document and whether it is a 'canonical business record' to which s 69 of the Evidence Act is directed or something created with, for example the purpose of persuasion: Australian Competition and Consumer Commission v Air New Zealand Ltd (No 7) (2013) 209 FCR 361; 301 ALR 392; [2013] FCA 83 at [23] (Perram J).

228    There is also an unqualified auditors' opinion on the 2019 balance sheet in evidence (Ex 37, Ex 38). The auditor opines that the financial report presents fairly the financial position of the fund. But I place little weight on that. The source of the auditor's information must have been Mrs Frigger, at a time when she was concerned to establish that all the disputed assets were FSF assets. Also, I doubt the thoroughness of the audits. I say that without intending to criticise the auditors. It would appear that the scope of their engagement was very limited. In a submission (contained in affidavit ACTF 2 sworn 8 May 2019 at para 5) Mrs Frigger said that the FSF 'is required to engage an independent auditor to verify all assets and income of the FSF in order for the fund to continue to be complying and obtain tax benefits'. But the evidence as to the modest fees charged by Just SMSF Audits suggests that no extensive audit of the basis on which assets were said to be part of the FSF was conducted. For example, the deduction claimed in the 2019 annual return for the FSF for auditors' fees was $440 (Ex 39). In 2016 it was only $330 (KAT 4 p 389). That makes it unlikely that the auditors conducted any thorough review and verification of the assets of the FSF.

229    In light of that, the fact of an unqualified audit report on the 2019 balance sheet cannot, with respect to the auditors, give the court any comfort that the balance sheet is correct. If the applicants are unable to establish to the court's satisfaction on the basis of all the evidence that the disputed assets are FSF assets, then it is difficult to know how they have convinced the auditors of that (if they did). It is not clear that the auditors had any evidence that is not before the court and if they did, the court could not rely on their hearsay opinion about it. The question of whether an asset is part of the FSF is a matter of the application of the law to the evidence and not a matter of accounting, so the audit report can add nothing to the court's own consideration of the issues. That is all the more so since nobody involved in the audit has given evidence.

230    The Residential Properties provide a good example of this. The applicants submit that they are FSF assets because of the 2014 Declarations. As the analysis conducted further below reveals, determining whether that is so involves both an exercise of construction of ambiguous words in the declarations, as well as consideration of the effect of the superannuation legislation. An auditor is unlikely to perform those exercises, and would not be expected to do so. If, then, the 2014 Declarations formed the basis of the auditor's satisfaction that the Residential Properties are FSF Assets (which is unknown), that simply would not assist the court in this proceeding.

231    The audits could, at least, establish that the balance sheets were prepared before a certain date, being the date of the audit report. That could help the applicants to resist the suggestion that the balance sheets were prepared after the sequestration order, and so were self serving. But it does not help the applicants here, because all of the audit reports in evidence are dated in 2019. Despite a submission from the applicants to the contrary, it is inherently likely that the auditors would prepare the audit report a short time after receiving the accounts to be audited. Section 35C(6) of the SIS Act and reg 8.03 of the SIS Regulations require an audit report for an SMSF to be given 28 days after the trustee of the fund has provided all documents relevant to the preparation of the report to the auditor. And it is inherently likely that the documents submitted for the audit were produced a short time before they were submitted. So it is likely that the balance sheets that were audited were generated after the sequestration order.

232    Moving on from the 2019 balance sheet, BW1 also appears to be shown as 'Retirement Advantage Account' in a balance sheet for the FSF as of June 2018 annexed to affidavit ACTF 1 (186). (For these balance sheets, and in the following section on annual returns, I will work back in time from the apparently most recent.) That affidavit gives no context for that balance sheet. Given that it is a balance sheet as at 30 June 2018, it is likely that it was prepared after the sequestration order of 20 July 2018, or at least at a time when sequestration was looming. So once again, it is likely to be self-serving.

233    Mrs Frigger produced another version of the balance sheet for June 2018 along with what she said was the auditor's report on it in her affidavit ACTF 18 (pp 12-22) (the same balance sheet appears in ACTF 14 p 367). This balance sheet purported to show that the FSF held different assets, of different values, to those assets listed in the balance sheet that was annexed to ACTF 1. The auditor's report, which is dated 17 June 2019, said that the auditor had audited a 'special purpose financial report of the Frigger Super Fund comprising: 1. Statement of financial position as at 30th June 2018 …'. This does not correspond to the title of the balance sheet, which is just 'Balance Sheet As of June 2018' and makes no reference to any special purpose. In any event, the audit report contained the following qualification:

The trustees did not provide all the required documents to complete the audit in a timely and professional manner. Specifically signed Trustee Declaration for Financial Statements, Engagement Letter, Member Applications, Rental Income evidence, sufficient documents to verify assets. This is a breach of s.35B of the [SIS Act].

234    This appeared twice, once under the heading 'Part A: Financial report' and once under the heading 'Part B: Compliance Report' (ACTF 18 pp 15, 18). The auditor thus notified contraventions to the ATO (p 23). In subsequent correspondence with Mrs Frigger, an employee of the auditor said that he believed that 'the contravention was for being unable to sufficiently identify all the assets of the fund. All assets and income streams need to be verified with adequate source documents as proof' (p 24). That qualification, in particular the lack of 'sufficient documents to verify assets', makes the auditor's report worthless for the purpose of establishing what the assets of the FSF are (quite apart from my other reservations about the audits).

235    I note in passing that the applicants submitted as part of written opening submissions that the trustees of the FSF did not receive any notice of contravention from the auditors in relation to identification of trust assets. That submission was false. Mrs Frigger submitted that correspondence from the auditor dated 23 October 2019 (ACTF 1824) indicated that there were no longer any unrectified contraventions by then (ts 151). But it does not do that; it says that the audit report 'has been closed off and was qualified as explained in the audit report'.

236    I do not place any weight on this version of the 2018 balance sheet as establishing the assets of the FSF as at 3June 2018.

237    BW1 is also shown as an asset of the FSF in a balance sheet as of June 2017 (ACTF 14365, KAT 4 p 414). Mrs Frigger's evidence was that this too had been audited. The auditor's report for that financial year is in evidence (KAT 4375), but with no balance sheet attached. There is a different version of the balance sheet for 2017 in evidence as well (KAT 4 p 415). Both versions appear to include accounts that may be BW1 as an asset of the FSF, but the values shown for the accounts differ widely between the two versions. In one of these balance sheets, BW1 appears to be shown as an asset only in Mr Frigger's allocated pension account. In the other balance sheet, there is an entry 'Retirement Advantage Account' in three different places; it is not clear whether all (or any) of these are BW1. According to Mrs Frigger, one of the balance sheets was only a 'working paper' (ts 355).

238    Regardless of which 2017 balance sheet is the correct one, the auditor's report for June 2017 is also heavily qualified, saying that the auditor had been unable to obtain independent confirmation of the fund's holding of 'Properties at Perth, Hobart & Bayswater; Investments in Platinum Trust; Term Deposits' representing approximately 63% of the FSF's assets (KAT 4376). A letter dated 16 March 2019 from the auditor to the trustees of the FSF goes further and also notes that 'requests were made for documents related to Trust holding, Term Deposits and Supporting evidence for the property valuations that have not been provided within the prescribed timeframe' (KAT 4 p 481). Mrs Frigger argued that the auditor's complaint here was only as to the timing of the provision of the documents, not about whether they were provided at all (KAT 4379; ts 144). But there is no evidence to support her argument that the auditor's complaint was just one about timing.

239    Also it can be inferred from the date of the audit, 16 March 2019, that the auditor was working from materials which Mrs Frigger supplied after the sequestration order and close to the institution of these proceedings. Given the heavy qualification of the audit and the lack of any clear link between the audit and a particular balance sheet in the evidence, and the concerns I have expressed about the scope of the audits, I place no weight on this audit report. It follows from that and from the competing versions of the 2017 balance sheet that I also place no weight on either of them.

240    Finally, there are two versions of a balance sheet as of June 2016 which the auditor provided to Mrs Trenfield (KAT 4 para 117; p411-412). These appear to have been the subject of an unqualified audit opinion dated 11 January 2019 (KAT 4476). That suggests that they were prepared and submitted to the auditor after the sequestration order was made. In cross-examination Mrs Frigger said that one of the versions was printed, at least, in early January 2019. In any event these balance sheets make no reference to BW1 as a trust asset. That is so, even though the bank statements for the account show a balance as at 30 June 2016 of $1,779,488.20 (KAT 4505). So these balance sheets tend to contradict the applicants' case as to BW1.

241    The applicants sought to counter this by referring to a balance sheet for 2017 which contained comparison figures for 2016 which do refer to BW1 (KAT 4416). But the purpose and time of preparation of that version of the 2017 balance sheet is uncertain, as is whether it was audited. It would appear that it is unlikely that it was audited, since it appears that the different balance sheet I have just described was audited (in 2019). There is no basis to prefer the comparison figures balance sheet to the apparently audited balance sheets just mentioned.

242    In any event, the comparison figures balance sheet shows various widely fluctuating balances for BW1 over 2016 and 2017, so it is difficult to know what to make of it. For example, while the balance of $1,779,488.20 appears in the 'Accumulation Phase Assets' account for 2016, by 2017 that balance is nil.

243    In the end, there is not a single balance sheet in evidence which can be reliably dated as having been produced before the sequestration order was made, that being a time after which, evidently, the applicants were concerned to establish that the disputed assets were part of the FSF. This means that there is no balance sheet in evidence which can be accepted to be untainted by that concern. That, together with the specific issues about the balance sheets I have just described, mean that the balance sheets are not reliable evidence of whether BW1 or any other assets were part of the FSF.

Annual returns

244    An annual return for the FSF for submission to the ATO is in evidence (Ex 39). The amount of the tax refund claimed in it appears to have been paid by the ATO in August 2020 (Ex 40), so I accept that this return was lodged with the ATO on the date that it bears, 12 August 2020. But the fact that it was evidently prepared some two years after the sequestration order and during these proceedings makes it potentially self serving and unreliable, at least in so far as its list of assets is concerned. There is nothing to suggest that the ATO has any regard to that list when determining whether to pay an income tax refund claimed, let alone that the ATO somehow verifies the list. I put no weight on this annual return.

245    The applicants relied on an annual return for the FSF for the year 2018, which appears to have been submitted to the ATO (ACTF 1187). This is a form with handwritten entries although, oddly, there is also one typewritten entry that appears to have been added to the pdf version of the return that appears in the affidavit (p 189). The document contains figures which, for some asset categories, are approximately equivalent in value to the assets in the balance sheet for that year which also appears in ACTF 1, but are otherwise unparticularised (ACTF 1186). The total value of assets shown is $8,758,779 (ACTF 1202). Cash and term deposits of $2,900,683 are shown, which is very approximately similar to the $2,979,708.24 total shown in the balance sheet for BW1, the BOQ account and a St George term deposit of $80,000. Listed shares are valued in this 2018 annual return at $2,521,581, significantly more than the $344,939 in the apparent annual return for the previous year (see below).

246    But apart from those discrepancies, the balance sheet for June 2018 in the same affidavit shows total assets of $12,493,388. An apparently audited balance sheet in Mrs Frigger's affidavit ACTF 18 sworn 17 June 2020 shows a similar figure of $12,452,614.11. In both cases, the figure shown is more than $3.5 million greater than the figure in the annual return. These wide variations cast doubt on the reliability of the annual return and the balance sheets alike.

247    There are other numbers for the value of the assets of the FSF in evidence which vary widely and do not enhance the reliability of the applicants' evidence. In a letter dated 17 August 2018 sent to the Official Trustee the applicants claimed that the assets of the FSF were worth $25 million (KAT 190). In cross-examination Mrs Frigger admitted that this amount as given to the Official Trustee was 'obviously wrong' (ts 279 ln 44). Later, however, she sought to explain it as a 'rule of thumb' calculation which included a figure of between $12 million and $13 million for the Hobart property based on a figure the applicants received from the real estate professionals CBRE (not a formal valuation) (ts 463, 472, 474). And yet, in a trustee declaration of the market value of the Hobart property as at 30 June 2018, which appears to have been given to the auditor in March 2019, the applicants said that it was worth $2,725,725 (KAT 4429). Also, one of the alleged balance sheets for that year values the Hobart property at $1,362,537.50 (ACTF 1 p 186).

248    The first respondent points to yet more reasons why the annual return for 2018 is unreliable. The handwritten version of that document that I have been discussing names a Maria Olivotto as the auditor (ACTF 1 p 188). In cross-examination, Mrs Frigger said that in fact that person never conducted an audit of the FSF and had not been engaged to do so (ts 257). She claimed, without any convincing explanation or rationale, that a different auditor had asked her to put Maria Olivotto's name on the annual return (ts 257). Also, significantly, there is another document in evidence purporting to be the annual return for 2018, but this one is comprised of entries in a computerised form, not handwritten entries on a paper form, and shows a different name for the FSF's auditor (KAT 4401). The total value of the assets of the FSF shown in this annual return is $12,493,386, about $3.7 million more than the amount shown in the handwritten version and closer to the balance sheets I have considered above (KAT 4407). Furthermore, the account details provided in this version of the annual return are not those of BW1; the account number matches a Citibank account that will be discussed further below in connection with the Edward Street property. But the document itself appears to show that it was prepared on 12 September 2018 (see KAT 4 p 401). That means that it was likely to have been prepared at a time after the sequestration order was made and so any weight to be put on it is diminished by the likelihood that it was self-serving.

249    Mrs Frigger sought to explain the different versions of the 2018 annual return that are in evidence by saying that when she prepared the handwritten version she was not sure whether to include certain assets but when she spoke to the auditor she was told she did need to include them (ts 463). This is vague and given my findings about Mrs Frigger's credibility I give it no weight. If anything, it only confirms that she was willing to change records as the occasion suited and to put potentially unreliable records before the court.

250    Also, the date on the handwritten 2018 annual return is shown as 18 July 2018, just before the sequestration order. But there is an email from Mrs Frigger to the Official Trustee dated 27 July 2018 in which she says she is 'currently working on the 2018 annual return' (KAT 140). Mrs Frigger had no good explanation for this in cross-examination and conceded that this version of the 2018 annual return may not have been the one she was going to lodge with the ATO (ts 272-274). That it was not tends to be confirmed by a submission that Mrs Frigger made in closing: that the different, typewritten version of the annual return in KAT 4 at p 401 had been submitted to the ATO because a refund in the amount shown on the annual return had been received before 27 September 2018 (which was the opening date of an ATO statement in evidence, Ex 40). But she was unable to produce evidence of the amount of the refund; while there are some bank statements for that Citibank account in evidence, none of them show any tax refund. So there is no way of knowing whether it corresponded to this version of the annual return. I do not accept Mrs Frigger's implicit assertion (in submissions and not under oath) that it did (see ts 930 and Ex 40).

251    For these reasons, and in the context of my view that Mrs Frigger is not a witness of truth, I place no weight on either the handwritten 2018 annual return, or the digital version.

252    There is an ATO SMSF annual return for the year 2017 in evidence (KAT 143; KAT 4153; ACTF 14107). It was submitted by Mrs Frigger to the Official Trustee on 27 July 2018 - that is, seven days after the sequestration order. In a covering email to the Official Trustee, Mrs Frigger said the annual return showed that as at 30 June 2017 the FSF had more than $2 million in cash and term deposits. She acknowledged in cross-examination that she submitted it to the Official Trustee in order to persuade him that BOQ1 should be unfrozen because it was an FSF asset (ts 258). It shows the account details of BW1 as the account for the destination of tax refunds for the FSF (KAT 144). It also shows under the heading 'Assets and liabilities' cash and term deposits of $2,085,456, although it does not break down where these deposits are held. That is much less than the total amounts shown in bank statements as at that time for St George, Bankwest and Citibank accounts appearing in a version of the balance sheet as at 30 June 2017 (KAT 4414). Also, the annual return shows a total value of assets of the FSF of $5,980,228, significantly less than other values which can be found in the evidence.

253    In any event, it is not clear that this annual return was ever submitted to the ATO, or if so, when. Mrs Frigger pointed to a tax refund received on 31 July 2018 (KAT 4 p 533) but that amount does not correspond to the refund amount in the return (KAT 4 p 159) which suggests that this version of the return was never lodged. It was provided to the Federal Circuit Court, in an affidavit dated 3 August 2018, in proceedings shortly after the sequestration order in support of an application for an injunction against the Official Trustee (ts 228; ACTF 14 p 107). In cross-examination in this proceeding, Mrs Frigger confirmed that this version of the annual return was true and correct as at the time of the affidavit (ts 229-231). But then she acknowledged that it was not the only version of the 2017 annual return that had been prepared and that it could have been wrong (ts 230-232). She sought to explain that she had not provided this copy of the 2017 annual return to the Federal Circuit Court for the purpose of establishing the balance of assets held, but solely to persuade it that BOQ1 should be unfrozen (ts 233, 258). She acknowledged that the 2017 annual return did not include the proceeds of the sale of the Armadale land and BP Business in which the FSF (she said) had an interest, and she said that the figure in the annual return for listed shares, $344,939, was not a true and accurate reflection of the value of the FSF's shares (ts 237-238; ts 285; cf. KAT 4941). In closing submissions Mrs Frigger said that this version of the annual return was 'an incomplete copy' (ts 934), even though she had submitted it to the Official Trustee to persuade it to remove the freeze on the bank accounts.

254    Also, the 2017 annual return says that the audit of the FSF had been completed on 25 August 2017 when, as has already been indicated, in fact the audit for that year was completed in March 2019 (see [62] above).

255    I therefore place no weight on the 2017 annual return as establishing that BW1 was an asset of the FSF as at 30 June 2017. Apart from its manifest unreliability, I also take account of the self-serving purpose for which Mrs Frigger provided it to the Official Trustee and the Federal Circuit Court.

256    Finally, there is in evidence an ATO SMSF annual return for the year ending 30 June 2016 (KAT 4386). The first respondent received this from Just SMSF Audits (KAT 4 paras 116-117). It shows the account details of BW1 as the account for the destination of tax refunds for the FSF (KAT 4387). It lists cash and term deposits of $3,177,000, listed shares of $931,114, and non-residential real property of $9,268,000 (KAT 4395). It does not break any of these numbers down so it is not possible to tell what accounts made up the cash balance. Also, the amount for cash and term deposits, curiously, is in a different font to the other amounts, suggesting that it may have been entered at a different time to those other amounts. So this annual return provides no clear evidence as to what were the assets of the FSF as at 30 June 2016.

257    While this annual return is undated, and the electronic lodgement declaration is unsigned, Mrs Frigger submitted that it was lodged with the ATO because the amount of the tax refund shown in it ($25,429) roughly corresponds to an amount received into BW1 from the ATO on 6 April 2017 ($26,300.50 - KAT 4 p 516). While the amounts differ, there was evidence that the ATO had subsequently refunded the difference ($871.50, see Ex 40) and there is no other apparent explanation for the receipt of that amount from the ATO. So I accept that this establishes that this annual return was lodged with the ATO some time before 6 April 2017. But that does not change my conclusion that, for reasons given in the preceding paragraph, it does not assist the applicants.

Applications to reopen

258    At this point I will make a necessary digression to give reasons for decision on two applications to reopen the applicants' case which were made in the course of the trial. I allowed one of those applications and dismissed the other, and said I would give reasons as part of these final reasons. This is as convenient a place as any to give those reasons, because the applications related to the financial statements and annual returns I have just discussed.

1.    Leave to reopen given on 7 and 9 September 2020

259    On 7 September 2020 I heard argument on an application by the applicants for leave to reopen their case to tender the following documents:

(a)    the balance sheet for the FSF for the year ended 30 June 2019;

(b)    the audit report on the FSF for the year ended 30 June 2019;

(c)    the annual return for the FSF for the year ending 30 June 2019;

(d)    an income tax statement of account dated 19 August 2020 that was issued by the ATO; and

(e)    a Citibank statement of account for 30 September 2017 to 31 October 2017.

260    I gave leave to reopen by orders made on 7 September and 9 September 2020. Ultimately, the application to reopen was not opposed in respect of any of the documents and they were admitted into evidence. It is therefore not necessary to give detailed reasons for the orders. I was satisfied that the documents were arguably relevant, for the purpose of establishing that BOQ1 (and BOQ2) were part of the FSF and that the TFN for the FSF had been notified to share registries before September 2019 (an issue that is relevant to the Main Portfolio and is discussed in detail below). I was also satisfied that procedural orders I made at the same time permitted the reopening to occur without undue disruption to the trial.

2.    Application to reopen heard on 21 September 2020

261    The applicants also made an application to reopen their case, and for leave to recall a witness under s 46 of the Evidence Act 1995 (Cth), which was heard on 21 September 2020. That was after counsel for the first respondent had delivered his oral closing submissions and on the same day on which Mrs Frigger made her oral closing submissions on behalf of the applicants. I dismissed the application on that day, for the following reasons.

262    The basis of the application was set out in an affidavit of Mrs Frigger sworn 17 September 2020. The application was made for these purposes:

(a)    to admit into evidence an account transaction list for the FSF which Mrs Frigger had obtained from the ATO Business Portal;

(b)    to admit into evidence a copy of the 2017 annual return for the FSF which, Mrs Frigger said, she had posted to the ATO as a paper return; and

(c)    to recall Mrs Frigger as a witness to respond to what she described as 'numerous false allegations of substantial wrongdoing against the applicants, which allegations effectively amounted to tax fraud'.

263    Some 40 such 'false allegations' were listed in the affidavit. The applicants evidently did not obtain a transcript of the hearing, and the list appears to have been prepared from Mrs Frigger's contemporaneous notes. So locating each of the 40 matters in the transcript would be an onerous task. It is not necessary to undertake it. I assume for the purposes of the application that it was accurate.

264    Fortunately, Mrs Frigger stated the essential basis of her application under s 46 more succinctly, in the following paragraphs from the affidavit:

6.    At no time during cross-examination was it put to me that:

6.1    No financial statements had been prepared by me for FSF prior to sequestration date;

6.2    All financial statements were prepared after sequestration date;

6.3    All annual returns were audited and lodged after sequestration date;

6.4    My husband and I decided after sequestration date what assets we would allege are trust assets and what assets are not;

6.5    The valuations of Hobart and Perth in June 2017 were falsely understated.

7.    I believe that in the above circumstances, the applicants are entitled pursuant to s 46 Evidence Act (Cth) to recall me as a witness to adduce the attached documents for the purposes of answering the respondent's false allegations of fraud against my husband and me.

265    I stated the principles applicable to an application to reopen a case in Frigger v Trenfield (No 7) [2020] FCA 1740 (Frigger (No 7)) at [20]-[24]. I will not repeat those principles here. Mrs Frigger submitted that the two documents she sought leave to introduce were relevant to the question of when the financial statements and annual returns were prepared. As is apparent from the preceding part of these reasons, that was an important issue. I was content to accept that the two documents were potentially relevant to it.

266    The application to reopen was nevertheless dismissed because the applicants had been on notice, from before the trial, that whether the financial statements and annual returns were reliable, and the possibility that they were prepared after the sequestration orders and so were unreliable, and the lack of any evidence as to when they were prepared or lodged, were all in issue.

267    Aspects of those issues were raised as early as the first interlocutory judgment in this proceeding: Frigger v Trenfield [2019] FCA 1746 at [46]-[47] (Frigger (No 1)). In view of the applicants' reliance on a balance sheet for the FSF as evidence that the Main Portfolio was an FSF asset, I noted that 'its status in the evidence is a document prepared by Mrs Frigger at an undisclosed time for an undisclosed purpose' and was 'an undated and unsigned document prepared by Mrs Frigger on an occasion and for a purpose that is undisclosed'.

268    The issue was then raised clearly and comprehensively in the first respondent's written opening submissions filed 12 July 2020, 15 days before the commencement of the trial. These said squarely that the financial statements were generally unreliable and should be given no weight for reasons that included that they were prepared by Mrs Frigger with no explanation as to when they were prepared and, further, were likely prepared after the sequestration order. It was clear that this submission extended also to the annual returns. It was further submitted that the financial statements and annual returns were full of inconsistencies and inaccurate information such that they cannot be relied on as accurate.

269    Then, Mrs Frigger was cross-examined extensively on the date of preparation and reliability of financial statements and annual returns (see e.g. ts 229, 232-238, 241, 247, 257, 259-261, 265 272-273, 278-279, 353, 363, 793-794).

270    There was simply no objective basis for the applicants to say that they did not appreciate until the first respondent's closing submissions that the date of preparation of the financial statements and annual returns, and their reliability, would be in issue. They had ample opportunity to adduce evidence going to those matters before they closed their case. As a result, this matter does not come within any of the four accepted (albeit non-exhaustive) categories where reopening is sometimes allowed, which Kenny J described in Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 at [24]: (1) where fresh evidence, unavailable or not reasonably discoverable before, becomes known and available; (2) where there has been inadvertent error; (3) where there has been a mistaken apprehension of the facts; and (4) where there has been a mistaken apprehension of the law.

271    Nor was there any other good reason why the interests of justice required reopening in this case. The applicants applied to do so before delivering their closing submissions, after the first respondent had delivered hers. It would be inimical to the administration of justice if applicants, after hearing the closing submissions of a respondent, and wishing to counter those closing submissions with further evidence which they could have adduced during their case, were to be given leave to reopen to do so, without very good reason. There was no such reason here. Also, if leave had been granted, that would have been likely to have resulted in further disruption to the trial as the first respondent would probably have needed to cross-examine Mrs Frigger (for a fourth time) and may have needed to subpoena more documents.

272    As for the application for leave to recall a witness under s 46 of the Evidence Act, s 46(1) provides (emphasis added):

The court may give leave to a party to recall a witness to give evidence about a matter raised by evidence adduced by another party, being a matter on which the witness was not cross-examined, if the evidence concerned has been admitted and:

(a)    it contradicts evidence about the matter given by the witness in examination in chief; or

(b)    the witness could have given evidence about the matter in examination in chief.

273    The matter about which the applicants sought leave to recall Mrs Frigger was the dates of lodgement of the financial statements and annual returns. The leave sought was for the specific purpose of admitting into evidence two documents about that matter. But in my view it was not a matter raised by the evidence of the first respondent. It was, as I have explained, a matter that was in issue from the beginning and that was raised by the applicants' own reliance on annual returns and balance sheets. In any event, as I have said, Mrs Frigger was cross-examined about that matter, so the precondition for the existence of the discretion emphasised above was not satisfied.

274    The reasons why I did not give leave to reopen are also reasons why, if the discretion had been enlivened, I would have exercised it against the applicants here. They knew, or should have known, from the start that the reliability of the annual returns and financial statements and the dates on which they were prepared and lodged were in issue. They had ample opportunity to adduce evidence on that issue. The reality is that they were seeking to plug a gap in their case which the first respondent highlighted in closing submissions. The requirement for finality in litigation is against granting leave to recall a witness in those circumstances.

275    As to the reference in Mrs Frigger's affidavit to the valuation of the Edward Street and Hobart properties, I have had no regard to the cross-examination and submissions about those matters for the purposes of these reasons. I formed the view that their only apparent relevance was to impugn Mrs Frigger's credibility, and there was no need to have regard to them in relation to that.

276    For those reasons, on 21 September 2020 leave to reopen the case and leave to recall Mrs Frigger under s 46 of the Evidence Act were refused.

PPSR registration

277    To return to consideration of the matters which, the applicants say, show that BW1 was an FSF asset: the applicants rely on documents which purport to contain the details of a registration on the PPSR under the Personal Properties Securities Act 2009 (Cth) (PPSA). The registration was apparently made on 10 October 2017. The secured party is shown as 'Frigger Super Fund'. The property that is subject to the apparent security interest is BW1. The grantors are Angela Frigger and Hartmut Frigger.

278    The nature of the security interest is not disclosed in the registration. In her affidavit ACTF 14 Mrs Frigger says that the secured interest is 'trust receipts'. That is an assertion which Mrs Frigger has made for the purposes of this proceeding; it does not appear from the PPSR entry itself. It is not easy to understand what it means in the present context. It is a term which Mrs Frigger appears to have taken from s 12(2)(g) of the PPSA, which lists 'trust receipt' as an example of a transaction that can provide for an interest in personal property that is a security interest, and so registrable under the PPSA. But there are two observations to be made about this. First, under s 12(2) a trust receipt is only a transaction giving rise to a security 'if the transaction, in substance, secures payment or performance of an obligation'. How any 'trust receipt' did so here is unclear. Second, the 'trust receipt' referred to in the provision is a specific type of finance and security transaction where, for example, a purchaser of personal property who has not paid for the property declares that he or she holds it on trust for the vendor until payment in full has been made: see Bruce Whittaker, Final Report: Review of the Personal Property Securities Act 2009 (Attorney-General's Department, Canberra, 2015) para 4.2.3.3.1.

279    The applicants submitted that the registration they made fell 'into the school of thought identified by Whittaker that trusts generally could give rise to a security interest with the beneficiary as secured party and the trustee as the grantor, on the basis that the beneficiary has an interest in personal property and its interest secures performance of the trustee's obligations'. But the Whittaker report does not say that; in fact, at para 4.2.3.3.2 it says:

Under a typical trust, the trustee's obligations are not secured by the beneficiary's beneficial interest - rather, those obligations are part of what identifies and gives substance to the beneficial interest. They are part of what makes up the beneficial interest, rather than being secured by it.

280    The explanation given by the applicants for the registration apparently effected in 2017 (an explanation given after the above problem was identified in Frigger (No 1) at [24]) is misconceived. Also, it is not clear how Mr Frigger can be a grantor of a security interest in respect of BW1, which is in the name of Mrs Frigger alone.

281    If anything, the apparent registration is adverse to the applicants' case, because it suggests that BW1 is not an asset of the FSF, but that the FSF has only a security interest in it. But in truth, the document just appears to be a misconceived attempt to record some sort of interest of the FSF in BW1. I accept that it may be inferred from the registration, assuming it is genuine, that as at 10 October 2017 the applicants had a wish to record some connection between BW1 and the FSF. But it falls short of any manifestation of an intention that BW1 be held by the applicants subject to the trusts established by the FSF Deed. In particular, it was not capable of recording that the applicants, or Mrs Frigger alone, held BW1 in their capacity as trustees of the FSF pursuant to the terms of the FSF Deed. Whatever the applicants thought they were going to achieve by lodging the registration, viewed objectively it simply does not have the meaning they now seek to ascribe to it.

Rental income from real properties

282    It will be recalled that the applicants sought to frame the question posed by their case as whether 'the funds in the Bank of Queensland accounts constitute rental income earned by Frigger Super Fund (FSF) from Hobart and Perth [Edward Street] properties'.

283    The first respondent expressed no opinion on whether the Hobart and Edward Street properties were held in the FSF (KAT 4 para 155). She did not contend that they were not.

284    The applicants put into evidence what appeared to be the contract under which they purchased the Hobart property (ACTF 1432). It appears to be dated 29 October 2014 and the names of the purchasers are shown on the contract as the applicants 'ATF Frigger Super Fund'. This is precisely the sort of objective manifestation of intention that is signally lacking in relation to most of the disputed assets. Despite my concerns about Mrs Frigger's credibility, the first respondent made no submissions that this sale contract document was false and there is nothing to indicate that it is anything other than what it appears to be. While I do not need to make a firm finding about the legal and beneficial ownership of the Hobart property, as it is not a disputed asset, I will proceed on the basis that it was at all times from its acquisition until its sale an asset of the FSF.

285    Similarly, there is evidence of a registrar's caveat dated 13 November 2009 over the Edward Street property lodged to protect the interest of the beneficiaries of a trust disclosed in a document described as the 'Frigger Super Fund Deed' (ACTF 14232). The registered proprietor was (and appears to remain) CAT (see ACTF 14441). No submission was made to me that the caveat was false. While I do not need to make a firm finding, as the matter was not seriously in dispute, I will proceed on the basis that the Edward Street property has at all material times been an asset of the FSF.

286    As for the rental income from those properties, Mrs Frigger gave evidence, once again at a high level of generality, that all income earned by the FSF was paid into BW1, that all allocated pensions were paid from the account, and that all surplus funds were withdrawn from it and deposited into accounts such as BOQ1 to earn higher interest (ACTF 1 para 12).

287    Mrs Frigger also gave slightly more specific evidence that moneys earned from specific sources, including rent from the Edward Street and Hobart properties, were contained in BOQ1 (ACTF 1 para 14). But it was clear from her submissions that what she was in fact purporting to describe was the source of income that was ultimately paid into BW1 (and then out if it, directly and indirectly into BOQ1).

288    Mrs Frigger's evidence was that the Edward Street property had two tenants who paid a total of $190,000 per annum in rent from December 2014 until the date of the affidavit, 6 March 2019 (ACTF 1 para 14(a)). She supported this with what appeared to be invoices issued to each of the tenants in February 2019 (ACTF 163). The invoices are headed 'H & A Frigger Pty Ltd Atf Frigger Super' and the payment instructions are to a Citibank account (not BW1) said to be in the account name 'Frigger Super Fund'.

289    There are a Citibank statement, and a fragment of another Citibank statement, in evidence which show the holders of that account as Mrs and Mr Frigger 'ATF FRIGGER SUPER FUND' (KAT 1160; see also ACTF 14372). These both date from 2018. The applicants did not specifically rely on this notation, although Mrs Frigger gave some general evidence which appeared to be to the effect that she was able to place the notation in the account name, somehow. But she gave no clear evidence as to when or how she added the notation (ACTF 14 para 22). Mrs Frigger was the ultimate source of both documents. It was not put to her that they too were doctored so I do not find that they were.

290    The applicants also adduced into evidence numerous copies of what appear to be invoices issued to Officeworks for rent for the Hobart property. The instructions for payment on the invoices are for payment into BW1 (save for one, which is for payment into an HSBC account in Mrs Frigger's name) (ACTF 14179-231 and see201). In cross-examination Mrs Trenfield accepted that rent payable on the Hobart property as shown on the invoices was in fact paid into BW1 (save for the one where it was paid to the HSBC account) (ts 570-571).

291    There is evidence as to the ownership status of another asset from which it is asserted rent was received by the FSF, namely the Armadale property. Mrs Frigger has annexed a lease of that land, in a form suitable for registration with Landgate dated 1 July 2009, which shows the lessor as CAT 'as trustee for the Frigger Super Fund' (ACTF 166). It is doubtful, however, that the Registrar of Titles would permit the lease to be registered in that form, as s 55(1) of the Transfer of Land Act 1893 (WA) (TLA) prohibits the Registrar from entering notice of any trust on any certificate of title. There was no evidence of when or why the notation 'as trustee for the Frigger Super Fund' was placed on this document. I place no weight on the notation.

292    There is also a deed of amendment of lease apparently signed and dated 8 April 2015 which appears to change the lessor to Mr and Mrs Frigger 'as trustees for the Frigger Super Fund' (ACTF 1 pp 69-71). I make no finding that the deed was effective to transfer the lease to them and there is no evidence indicating that they were registered proprietors by 2015. But if these documents were altered it would be a more elaborate forgery than the deliberate alterations to other documents I have found Mrs Frigger to have made. I will therefore proceed on the basis that the Armadale land was an FSF asset (whether CAT or the applicants were its registered proprietors or otherwise entitled to the proceeds of its sale is not necessary for me to determine in this proceeding).

293    I will describe below what appears from the statements for BW1 as to receipt of funds in respect of the Edward Street and Hobart properties. In summary, on the basis of those statements and the matters I have just described:

(1)    I proceed on the basis that both the Hobart property and the Edward Street property were assets of the FSF.

(2)    Much of the rent for the Edward Street property was paid into an account with Citibank which may or may not have been an asset of the FSF. But there is no evidence of where the funds went from there.

(3)    Some rent from the Edward Street property was paid into BW1.

(4)    Most of the rent from the Hobart property was paid into BW1.

294    So the applicants have made out this plank of their case, in part. BW1 received money which was paid as rent from some properties that for present purposes I take to be assets of the FSF. Although, as will be seen below, the evidence that 'rent' from the Armadale property made its way into BW1 is highly tenuous and I do not accept it. It still needs to be determined, however, where that money went, and what is to be inferred from that and all the other objective circumstances.

What can be inferred from the transactions in BW1

295    The first respondent submits that even if the rent earned on the Hobart and Edward Street properties was income of the FSF, and even if it was paid into BW1 as the applicants say, there were numerous withdrawals from BW1 which do not appear to have been payments made for FSF purposes. There were also numerous unexplained deposits into BW1, where there is no suggestion in the evidence that the source of funds was an asset of the FSF. This apparent mixing of FSF and non-FSF transactions in BW1 means that it is impossible to say that the funds which ultimately ended up in BOQ1 via BW1 are FSF funds.

296    It is necessary to consider the bank statements for BW1 in more detail in order to assess these submissions. But before doing so, I will digress briefly to describe the history of the BP Business, as many of the transactions in the bank statements are attributable to it. That history appears in submissions which Mrs Frigger filed in another in another proceeding, WAD 549 of 2019, that were annexed to an affidavit of 28 July 2020 which she relied on in support of an argument about objections to evidence in the course of the trial. While the affidavit was not formally admitted into evidence for the broader purposes of the trial, I will use it as the source of the basic history of the BP Business as I did not understand that history to be in dispute in this proceeding.

297    From 15 September 2008 until 30 June 2009 the applicants operated the BP Business from the Armadale property. At that time, they say, the business was in CAT's name. From 30 June 2009, it was no longer permissible under the SIS Act for the superannuation trustee to operate the business from the trust property. So from that time the applicants operated the business in their personal capacities, and executed a lease with CAT and (they say) paid rent to CAT as trustee. That was the position until 11 February 2016, when the sale of the property and business to a third party was completed. The business sale agreement for that transaction, which appears to be genuine, has a recital to the effect that Mr and Mrs Frigger are the legal and beneficial owners of the business (KAT 1 p 114).

298    To return to the bank statements for BW1, the statements for the period January 2016 to September 2019 are annexed to affidavit KAT 4 (p 492). A summary of the transactions they reveal follows, including my comment on the significance of the transactions for the purposes of this proceeding. The summary is not comprehensive, but it is indicative of the nature of most transactions.

299    The following categories of transactions appear to be related to the BP Business:

(1)    Payments from American Express - these are likely to be receipts of the BP Business.

(2)    Payments to E-Pay Australia and various other merchant fees - I infer that these are expenses of the BP Business.

(3)    Large payments to and from BP Australia, which are evidently connected with the BP Business.

(4)    Numerous payments from 'Business Fuel … Fleet Card', Motorpass, Motorcharge and 'FI Card Merchant Settlement' - I infer that these are receipts of the BP Business.

(5)    Payments for 'Wages' - I infer that these are payments to staff of the BP Business as there is no suggestion in the evidence that at the relevant time the applicants operated any other business employing staff.

(6)    Payments made for consumer items such as soft drinks, ice, milk and newspapers or magazines - the amounts involved are greater than would be required for household use, so I infer that these were items sold in the BP Business.

(7)    A payment labelled 'Synergy BP'.

300    As one would expect, transactions of the kind summarised above cease at around February 2016, when the sale of the BP Business apparently settled. Other categories of transaction not obviously related to the BP Business which can be observed throughout the period January 2016 to September 2019 are as follows:

(1)    Payments from Officeworks, which I infer are rent for the Hobart property.

(2)    Payments for land tax and, apparently, rates, on the Hobart property.

(3)    A very large receipt on 29 May 2019 labelled 'Hobart' - I infer that this is the proceeds of sale of the Hobart property.

(4)    Payments out to Mastercard or labelled 'Mastercard top up' - whether these are of a personal nature depends on the purpose for which the Mastercard was used. It does appear to have been used to pay land tax on the Hobart property, although as has been mentioned, Mrs Frigger also said in evidence that it was for personal expenses.

(5)    Rent from the Edward Street property - as I have indicated, I proceed on the basis that these were receipts from an asset of the FSF.

(6)    Payments apparently received for rent from various individuals, not otherwise explained.

(7)    Large receipts and payments that can be explained as part of the flow of funds which ultimately end up in BOQ1 (e.g. 10 October 2017 and 12 October 2017; cfKAT 4 p 894) - see the exercise depicted in Schedule 2 to these reasons.

(8)    Numerous payments to and from CommSec, some of which are very large. Some of these may be share purchases or the crediting of sale proceeds respectively. But there was no evidence to match them to particular share transactions. The applicants provided a table which did seek to match them, but Mrs Frigger conceded that this had been prepared by Mr Frigger, who did not go into evidence, and that there was no evidence permitting the CommSec withdrawals and payments to be matched to particular securities (ts 184-185, 302-303). I therefore do not take account of that table.

(9)    Payments, apparently to purchase securities, which are not labelled as payments to CommSec (e.g. $4,540.80 on 9 December 2016 for 'Boral share purchase options').

(10)    Numerous receipts for share dividends.

(11)    Payments and receipts apparently personal in nature, for example:

(a)    $139.00 to Proud Appliances Subiaco on 1 September 2016;

(b)    $158.26 to Aldi on 19 September 2016;

(c)    $49.00 from Medicare on 19 September 2016;

(d)    $40.00 to the Rhein Donau Club on 18 April 2017, labelled 'Hartmut Frigger'; and

(e)    $535.00 to WA Eye Specialists on 22 November 2018.

(12)    Payments to utilities. Some appear to be for properties in Western Australia (e.gpayments to Synergy and Alinta). Some are for internet, and so not apparently related to the role of lessor of any rental property. Others, for example those labelled 'Taswater' or 'Water Como', do appear to be related to the position of Mrs Frigger, or Mr and Mrs Frigger, as lessors.

(13)    Payments for 'Melville rates' - these appear to be of a personal nature.

(14)    Payments to Michael Frigger and Jessica Frigger. These appear to be of a personal nature, and occasionally they are labelled 'Gift' or 'Loan'. Mrs Frigger appeared to say in cross-examination that at least some of the payments to Michael were gifts but she could not remember what all the payments were for (ts 299-300). She said in closing submissions that payments to Michael were drawings of her pension (ts 926) but this was a mere assertion, unsupported by evidence. Jessica Frigger appears to have made loan repayments from time to time. There are also unexplained receipts which appear to be from Michael Frigger.

(15)    Interest on the funds in BW1.

(16)    Payments labelled 'FSF BAS' and 'FSF GST', which would appear to be tax instalments paid on behalf of the FSF.

(17)    Receipts from the Australian Taxation Office - presumably these are tax refunds. As I have said, the annual returns list BW1 as the destination account for FSF tax refunds and I have referred above to evidence that the amounts for some of these receipts roughly correspond to refund amounts shown in some of the annual returns. So I accept that some of these receipts were FSF tax refunds, although it is neither possible nor necessary to say which ones.

(18)    Legal fees to law firms and barristers.

(19)    A payment of $39,000 on 15 January 2018 labelled 'Security for costs'.

(20)    A payment on 11 June 2018 for transcript in matter WAD 607 of 2015 in this court.

(21)    Payments from Angela Frigger.

(22)    A debit for rent for a property at Kearns Crescent, Applecross - the purpose of this payment does not appear from the evidence.

(23)    A debit of $733.07 on 17 August 2016 labelled 'Frigger Super Fund'. It is not clear where those funds went.

(24)    Payments apparently to or from other individuals, whose connection with the applicants does not appear from the evidence.

(25)    Unexplained cash and cheque deposits and withdrawals.

301    The following broad observations can be made about these categories of transaction. First, BW1 was plainly the operating account for the BP Business until that business was sold in February 2016. It is common ground that the business was not an FSF asset. The applicants did not adduce any evidence of any outward manifestation of an intention to change the character of BW1 as a personal (non-trust) account after the BP Business was sold, for example a declaration that henceforth it would be held on trust for the FSF. Second, at all times BW1 was used to receive income of an investment nature, for example share dividends and rent from various properties. I have accepted that at least some of those properties were FSF assets. Third, BW1 was the destination and source of substantial payments which appear to have been part of the flow of funds between investment bank accounts, including BOQ1, which is depicted in Schedule 2 to these reasons. Fourth, there are some payments in the nature of tax instalments which, when they were made, were apparently labelled by the person who made them (presumably Mrs Frigger) as being for the FSF. And some FSF tax refunds were paid into the account. Fifth, BW1 was also used for personal expenses which on their face could not be expenses of the FSF. That use was not, however, so frequent as to suggest that the account was the main personal transaction account of Mrs Frigger or anyone else. The account appears to have been used to pay personal expenses only on an ad hoc basis. Sixth, there are large payments to and from CommSec which obviously relate to shares or other financial products but are otherwise unexplained. Seventh, there are payments by way of loan or gift to the applicants' children, which are not readily explicable as being for the purposes of the FSF. Eighth, there are many payments and receipts, including cash and cheques, the purpose, origin or destination of which are simply unexplained.

302    I conclude that BW1 was used as an account for the receipt of income of the FSF and tax refunds of the FSF and payment of expenses and other outgoings attributable to the FSF. But it was also used as the account for numerous other receipts and payments which were not connected to the FSF, or are simply unexplained.

303    I do not consider that this mixing of funds and purposes is necessarily fatal to the applicants' claim. While trustees generally are obliged not to engage in such mixing, a breach of that obligation by a trustee does not by itself cause the fund to lose its character as a trust fund. And, as I have said, the transactions of a personal nature are not so frequent as to compel the characterisation of BW1 as a wholly personal and not a FSF trust account. In the end, it is a question of fact arising from the applicants' case as to following the funds into BOQ1: does the nature of the transactions in BW1 mean that the account should be characterised as an asset of the FSF, so as to support a conclusion that the funds which were paid out of it and which found their way into BOQ1 were FSF funds? Before answering that question, though, it is necessary to consider an exercise purporting to trace FSF rental income which the applicants presented to the court.

The applicants' tracing exercise

304    By the time of their written opening submissions, the applicants placed considerable reliance on the results of their own 'tracing' exercise, based on transactions in BW1, in order to demonstrate that the funds which ended up in BOQ1 came from rental income from Officeworks Hobart and other real property which, they said, was indisputably held on trust. This seemed to be in support of a submission that rental receipts from tenants in Hobart and Perth between 1 January 2015 to 31 August 2019 of about $4.4 million was more than sufficient to account for the $2.8 million or so in BOQ1. It was broken up into 'bank reconciliations' for BW1 for five periods which together were said to span from 29 December 2014 to 30 June 2019. (As an aside, it is curious that, despite that start date, the first bank statement for BW1 that the applicants produced was an extract only which started from 31 December 2014 (ACTF 18 p 52). It is not clear whether there were transactions before that date which might have borne upon the question of what the 'opening balance' of $180,536.17 mentioned below was comprised of.)

305    It is only necessary to set out the reconciliation for the first of these periods, 29 December 2014 to 6 September 2016 (First Reconciliation), in order to explain and assess the applicant's approach. It is as follows (footnotes removed, emphasis in original):

(a)    Opening balance 29/12/15 [sic 2014]

$180,536.17

(b)    Rent BP service station

$211,750.00

(c)    Rent Officeworks

$1,354,604.29

(d)    Rent IMC

$139,958.29

(e)    Rent Matts Lunch Bar

$55,740.22

(f)    Rent Como

$19,360.00

(g)    Rent Bayswater

$43,560.00

(h)    Net share trading

$122,617.10

(i)    Dividends

$109,612.84

(j)    Interest

$40,176.44

(k)    J. Frigger - Clough super fund rollover/contributions

$21,628.90 (Total income $2,099,007.86)

(l)    St George deposit 6/9/16

-1,800,000.00

(m)    FSF expenses, pensions, other investments

-292,688.09

(n)    Closing balance 6/9/16

$186,855.94

306    This First Reconciliation thus concerns the $1,800,000 deposit into STG1 which, on the applicants' tracing exercise, is part of the ultimate source of funds in BOQ1. It purports to show that the $1,800,000 came from sources that were assets of the FSF, mostly but not entirely the rent from Officeworks Hobart. It seems designed to demonstrate that the subtotal of $2,099,007.86 is all attributable to income from such FSF sources, and that $1,800,000 from that subtotal amount was paid into STG1 on 6 September 2016, and the rest paid out in 'FSF expenses, pensions, other investments'.

307    For the following reasons, I do not accept that the First Reconciliation, or the four others like it, support the applicants' case.

308    First, the way the numbers in the table above are derived is entirely opaque. The bank statements for BW1 for the relevant period which were in evidence span some 20 months and contain thousands of transactions, which on their face vary greatly in character, source and or destination: see the summaries at [299]-[300] above (while these relate to bank statements from January 2016 to September 2019, the earlier ones are no different in that regard). For each of the BW1 account statements which include the transactions on which the reconciliation is apparently based, there are hundreds of thousands of dollars' worth of inflows and hundreds of thousands of dollars of outflows. The outflows were usually somewhat less than the inflows, meaning that a net balance accumulated over time which was then drawn on to make the $1,800,000 payment to STG1. It is impossible for the court to go through that many transactions to satisfy itself that the summary provided in the reconciliation is accurate.

309    The opacity is increased by evidence from Mrs Frigger that she in fact prepared the reconciliation on the basis of electronic transaction listings downloaded from Bankwest, which are not in evidence; not from the bank statements which are in evidence (ts 295-296). She said, 'The computer does the work, basically'. She appeared to be referring to the use of accounting software which she later said 'most likely is MYOB' (ts 329). This appeared to have involved some coding for transactions which Mrs Frigger entered (ts 304 ln 31). When cross-examining counsel asked whether he would be able to find the amounts which were totalled in the reconciliations for rent from a particular tenant (International Massage Centre) Mrs Frigger said 'I don't think you're going to be able to, because you just don't have the knowledge that I do' (ts 306-307). Mrs Frigger could not say whether she still had the relevant MYOB record on her computer (ts 335).

310    From the court's point of view, this reconciliation process is a black box. It is not possible to understand how many transactions of such disparate character have been condensed into the line items above. Given my concerns about Mrs Frigger's credibility, the court will not simply take her word for it.

311    Second, the first respondent presented certain calculations of her own in order to demonstrate that the First Reconciliation was unreliable. She tried to identify and add up all the transactions apparently involving CommSec which were shown in the bank statements from 31 December 2014 (not 29 December 2014 as the applicants assert) to 6 September 2019 (although the first respondent also included a transaction that took place on 8 September 2016). It adds up a large number of payments to and from CommSec which are shown in the bank statements for that period. The net flow of funds is $328,995.82 out of BW1 to CommSec. Yet, the First Reconciliation shows a net inflow from 'share trading' for that period of $122,617.10. Mrs Frigger sought to explain this in closing submissions by saying that the first respondent had left out of account 'five direct investments' made during the period of the First Reconciliation (ts 916), but she did not identify where they were in the thousands of transactions in the BW1 statements for the period.

312    The first respondent performed a similar exercise for payments to and from Michael Frigger which appear in the bank statements for the same period. There are about 140 of these, many labelled 'gift', showing a net outflow to Michael Frigger of $128,380.80. Once again, how that is consistent with the First Reconciliation is impossible to say. Mrs Frigger submitted that at least some of them were payments of 'my own money' (i.e. non-FSF) to Michael (ts 916-917). That further obscures where they fit into the First Reconciliation, which is ostensibly of FSF funds.

313    The first respondent similarly presented total outflows to Mastercard of $299,053.08. Mrs Frigger accepted in cross-examination that payments made to Mastercard during this period were for her personal expenses (ts 298), which she claimed were withdrawn from the FSF as her pension (ts 282). How that fits into the amount of $292,688.09 shown in the First Reconciliation, which is supposed to include 'FSF expenses, pensions, other investments' cannot be explained. Mrs Frigger sought to explain it in closing submissions by asserting that many of the payments were matched by corresponding contributions in by the applicants (ts 919). But she did not make that assertion good by reference to the BW1 statements that were in evidence. There is also no suggestion in the evidence that the detailed provisions of the FSF Deed about pensions to which I have referred were complied with in relation to the payment of this putative pension, including the establishment by the trustee of a pension account: see [169] above. It appears to be nothing more than an opportunistic explanation Mrs Frigger gave in closing submissions.

314    The first respondent also prepared a schedule of payments between 16 February 2016 and 6 September 2016 to a barrister and unexplained cheque payments totalling $67,152.65. She also prepared a schedule of share dividend receipts totalling $24,219.75; compare the applicants' figure of $109,612.84. Mrs Frigger asserted in closing submissions that there were many other dividend payments not called such in the bank statements, but did not identify what they were (ts 917). All this sheds significant doubt on the reliability of all of the applicants' reconciliations.

315    Mrs Frigger complained of unfairness in that these calculations were raised by the first respondent in its closing submissions without putting them to her in cross-examination, when they could have been explained (e.g. ts 920). But in the end the first respondent's calculations were submissions, based on numerical calculations, in response to numerical calculations such as the First Reconciliation, which the applicants put in their opening submissions. The onus was on the applicants to adduce the necessary evidence, and to explain how it supported the First Reconciliation. They did not do so; instead they effectively asked the court to accept their numbers on trust. There was no unfairness in the first respondent pointing out several ways in which, on the face of things, the applicants' submission did not match the evidence. Also, in the way the trial transpired, the applicants had six days between the first respondents' closing submissions and their own in which they could have prepared more specific submissions linking the First Reconciliation and the others to the evidence. They did not do so.

316    Third, as has been explained in the above analysis of specific transactions in BW1, for most of the period covered by the First Reconciliation, the account appears to have been used as the operating account for the BP Business, which was not an FSF asset. The applicants sought to make this consistent with their case that the account is an FSF asset. They said that the land from which the business operated was a trust asset, and net receipts into the account from the business were payments by way of rent to Mrs and Mr Frigger as owners of that land in their capacity as trustees of the FSF (ts 157, 286ff, 904). But that rationalisation is pure assertion from Mrs Frigger, a witness to whom I assign no credibility, without a scintilla of independent verification. And it too exacerbated the opacity of the underlying calculations: Mrs Frigger said in cross-examination that when she prepared the reconciliations (ts 295), 'I do a set off between what I think is BP's expenses and BP income. I do a set off between the two and I work out how much of rent we were required to pay and that is the amount that I've put into the reconciliation'. The court has no way of knowing how that set off was done, and will not rely on Mrs Frigger for its veracity.

317    Fourth, Mrs Frigger said that the reconciliations were based on a 'last-in first-out' rule of thumb (ts 156). By that I take her to mean that when a withdrawal of funds is made it is to be attributed as having been taken from the most recent deposits before it. Mrs Frigger suggested that this was 'an accounting thing' (ts 156) but, even if that is so, it does not assist the applicants, as the present issue involves the application of the law to the facts. As has been explained, in cases of 'tracing', as that word is commonly understood in the context of legal and equitable remedies, presumptions of that kind are often applied, so as to make it possible, for example, to identify the equitable interest of a claimant such as the beneficiary of a defaulting fiduciary. I say presumptions 'of that kind', but the last-in first-out presumption seems to be unknown to the law of tracing in Australia: see the summaries of the principles in Re Global Finance Group Pty Ltd [2002] WASC 63; (2002) 26 WAR 385 at [93]-[120] (McLure J) and Caron and Seidlitz v Jahani and McInerney in their capacity as liquidators of Courtenay House Pty Ltd (in liq) & Courtenay House Capital Trading Group Pty Ltd (in liq) (No 2) [2020] NSWCA 117; (2020) 102 NSWLR 537 at [10]-[18] (Bell P, Bathurst CJ and Macfarlan JA agreeing); see also the Hon J Edelman, 'Understanding Tracing Rules (2016) 16(2) Queensland University of Technology Law Review 1 at 11-12. The 'first-in first out' presumption in Devaynes v Noble (1816) 1 Mer 529; 35 ER 767 (commonly described as Clayton's Case) is mentioned in these summaries, albeit it has been criticised in Australia and not often followed in more recent cases: see Global Finance at [108], [112]. But neither McLure J, Bell P, nor Edelman J in his Honour's journal article mention any 'last in first out' rule.

318    One must be careful not to take that too far. As has been emphasised, this is not a case of tracing in aid of legal or equitable proprietary remedies. In the end, the character of any given sum of money as an FSF asset, or not, depends on the objective characterisation of whether it is impressed with the necessary trusts based on all the circumstances. But it remains the case that how the application of a 'last-in first-out' rule might assist with that characterisation is not explained. The opacity of the reconciliations which I have already mentioned further obscures the point of adopting that rule, if indeed it was adopted.

319    Those four matters persuade me that the First Reconciliation is not at all reliable. The court can only conclude that the same must be said of the other four reconciliations, given that the opacity of the 'reconciliation' process which Mrs Frigger appears to have undertaken does not permit any of them to be verified independently. The applicants' reconciliations do not support their case.

320    I reach that conclusion without taking any account of another submission the first respondent made based on alleged inconsistency between the First Reconciliation and the profit and loss statement for the FSF for the financial year ended 30 June 2016 (ts 862). I accept Mrs Frigger's submission to the effect that the cash amounts in the First Reconciliation cannot be usefully compared with the profit and loss report produced for tax purposes (KAT 4413; ts 918). But the inconsistencies between the cash shown in the First Reconciliation and the cash transactions in the BW1 statements have not been satisfactorily explained, when the onus was on the applicants to do so.

321    There are two other problems which only relate to the First Reconciliation and the one that follows it. As I have said, the First Reconciliation is concerned with establishing the source of a payment of $1,800,000 into STG1. One problem with this is that STG1 is an account in the name of Jessica Frigger and, aside from the doctored statement for that account, the only evidence of any specific intention that those funds be held by Jessica on trust for the beneficiaries of the FSF on the terms of the FSF Deed is a cheque butt produced by the applicants on which Mrs Frigger appears to have written that the payment of $1,800,000 on 6 September 2016 was paid to 'J Frigger ATF FSF @ St George Bank' (ACTF 18 p 8).

322    It was not put to Mrs Frigger in cross-examination that this cheque butt was a forgery. But nor did Mrs Frigger give any evidence to say when she entered that note on the cheque butt (ACTF 18 paras 5-9,8). Nor was there any evidence of any objective communication from Mrs Frigger to Jessica Frigger of an intention that Jessica should somehow hold the funds as trustee for the FSF, nor any evidence of an objective communication to anyone else. Nor was there any evidence of Jessica's consent to do so. I put no weight on the cheque butt. So there is no clear evidence that the funds paid out to Jessica Frigger on 6 September 2016 retained their character as trust funds. That is also relevant to the reconciliation the applicants present for the second of their five periods, which purports to show the source of funds for a $350,000 deposit into STG1. Further, the cheque butt for that deposit does not refer to the FSF. These problems with STG1 are not relevant to the subsequent reconciliations.

323    The other problem specific to the First Reconciliation is that the withdrawal of $1.8 million cannot be attributed entirely to rental income from the Hobart and Edward Street properties, because according to the First Reconciliation itself, during the relevant period of 31 December 2014 to 6 September 2016 there had not been rental income of that amount from those properties. The total for rent from those properties shown in the First Reconciliation is only $1,550,302.80. Also, between 1 January 2015 and 1 January 2016 alone there were other debits from BW1 usually exceeding $500,000 per month. The applicants did not establish any basis, whether in fact or in law, on which the court can conclude that the rental income that was received into BW1 in this period somehow accumulated in its own silo, untouched by the ongoing frequent withdrawals during this period, until (in the case of the First Reconciliation) $1,800,000 was withdrawn on 6 September 2016 and paid into STG1. In those circumstances it is not possible to discern from the evidence around BW1 any objective intention on the part of the applicants that the $1.8 million paid into STG1 was to be attributed to the rental income from the Hobart and Edward Street properties.

324    The applicants provided a schedule to their aide memoire entitled 'Table 1 - Tracing FSF Rental Income to BOQ and Shares Portfolio', filed in support of closing submissions, which purported to be a 'colour coded tracing of Frigger Super Fund income' (Tracing Table). This was an attempt to present the applicants' reconciliations in a different form. The numbers in it were, however, different to the figures in the reconciliations discussed above. For example, the Tracing Table eliminated, or at least did not refer to, amounts for the rent on the Armadale property ('Rent BP service station') and on the Residential Properties, and 'Net share trading' and other amounts which appeared in the First Reconciliation. The running 'Bankwest Balance' shown in the Tracing Table does not match any balances in the applicants' reconciliations, or any balances in the BW1 bank statements themselves. It appears that the applicants have simply eliminated or ignored all the various kinds of transactions appearing in the bank statements as described above that do not suit their purpose of establishing that the money that came out of BW1 was money that came in as FSF income. The Tracing Table does not improve the reliability, or comprehensibility, of the applicants' tracing exercise.

325    Nevertheless, the applicants submitted in their aide memoire that in cross-examination Mrs Trenfield effectively conceded the correctness of their reconciliation (Table 3 item 13). They appeared to be referring to the following passage (ts 576):

And so, in January 2016, there were some deposits from BP, and those deposits probably ended in about the middle of February when the BP service station business was sold. Fine. So, did you add up the funds that came through from BP for that short period of time - about six weeks?---Not from recollection, no.

Why not?---Well, as again, our position has been that there is such a mix of funds and we're not the holder of all of the source documents, that then be some inferences gained from analysis of bank statements, but that the owner of the account is best placed to do that exercise.

This was not a concession that the applicants' reconciliations were correct. It was merely a statement that the holder of the account is likely to be best placed to add up deposits from the BP Business because they will have access to the source documents.

Other reasons advanced by the first respondent as to why BW1 is not a trust asset

326    The first respondent points to other circumstances surrounding BW1 which, she says, speak against it being an asset of the FSF.

327    The first respondent points out that the account was operating for many years, including during periods where CAT was trustee of the FSF and the applicants were not. Mrs Trenfield gave uncontradicted evidence that she received bank statements for BW1 going back to 2005. I have found that CAT was trustee at that time until 2010. So this submission is correct.

328    The first respondent also says that the applicants had reached retirement age by July 2018, when BOQ1 was opened, so withdrawals from their superannuation fund accounts (if that is what they were) could equally be explained as the vesting of funds in them rather than transfers to further 'trust accounts'. That submission is also correct. In July 2018 Mrs Frigger was 65 and Mr Frigger was 63. It was open to them to draw 'preserved benefits' from the age of 55: see SIS Regulations reg 6.01(2) (definition of 'preservation age'), reg 6.18 and Schedule 1 (conditions of release of benefits). Mrs Frigger's evidence was that allocated pensions were paid from BW1, although there was no evidence of the amounts, or documentation such as resolutions of the trustees or the actuarial certificate required by cl 67 of the FSF Deed. I have described above the provisions of the FSF as to retirement benefits, which contemplate that they can be paid as a lump sum. There is no particular indication in the evidence that they were paid out on that basis. But I accept that, viewed objectively, the possibility of lump sum benefit payments to the applicants as an explanation of payments out of BW1 further erodes the applicants' case that the money paid out retained its character as funds of the FSF.

Conclusions about BW1

329    To return to the question I posed above, as to whether the nature of the transactions in BW1 mean that the account should be characterised as an asset of the FSF, the answer to that question is 'no'. While BW1 was used for many FSF transactions, it was also used for many transactions which were not related to the FSF or are unexplained. Assessed objectively, it was an account that was used for mixed FSF and non-FSF purposes. That assessment provides no substantial support for a contention that payments out of BW1 into other accounts are likely to be payments for the purposes of further trust investments. Given the way BW1 has been used, they could be for anything.

330    The upshot is that it is not possible to make a finding in a binary way as to whether BW1 was or was not an asset of the FSF. Although the applicants have not established that the account as a whole is an FSF asset, it does appear that it contains funds that are FSF funds. They are FSF funds in the sense that if, say, a new trustee of the FSF were to make a claim on the account as the repository for funds improperly mixed with non-FSF funds, it appears likely that the claim would be successful for some of the money in BW1. But it is impossible on the current state of the evidence and analysis to say what proportion of the funds would be recoverable by the trustee of the FSF in that hypothetical claim.

331    It is not necessary to make a binary finding, however, because the applicants seek no declaration that BW1 was an FSF asset. In substance, their case about BW1 is that it is so closely associated with the FSF that the payments out of it are to be characterised as payments of FSF funds. For the reasons I have given, they have not made that out. In summary:

(1)    BW1 was in Mrs Frigger's name alone. Although she was a trustee of the FSF for most of the relevant period, at no time was she the sole trustee, so at no time did the account name correspond to the identity of the trustees of the FSF. She confirmed in cross-examination that she was aware of the need for trust assets to be held in the name of the trustee (ts 217). So the fact that BW1 is in her name speaks against any actual intention on her part that it was an FSF asset, let alone any objectively manifested intention to that effect.

(2)    The alleged status of BW1 as a trust asset was never stated in the account name as shown on bank statements. 'Frigger Super Fund' was used as an account 'nickname' from an indefinite point of time, so, as I have said, I place no weight on that. No communications with Bankwest informing it of the account's alleged trust status were put into evidence. Nor was there any evidence of such communications with any other person. There is no reliable evidence of any written or oral statement predating this proceeding to the effect that BW1 was part of the FSF.

(3)    The balance sheets and annual returns relied on are wholly unreliable and can be given no weight. The audit reports do not enhance the reliability of the balance sheets.

(4)    The PPSR registration does not assist the applicants.

(5)    BW1 has been used for a variety of purposes, which does not support any inference that money paid out of it retained its character as trust money. The account has been open since at least 2005 and there is no evidence that it was used for FSF purposes from that time. Until February 2016, it was used as the operating account for a business that was not an asset of the FSF, namely the BP Business. There is no evidence of any specific event or circumstance which changed its character to a trust account after that time.

(6)    While BW1 did receive rental income which I take to be FSF income, it received income from many other sources and was used as the paying account for a variety of purposes. As I have explained in detail, that rental income has not been persuasively traced to any particular funds that found their way to BOQ1.

(7)    Large payments out of BW1 could be transfers of FSF funds but, assessed objectively, they could equally be lum sum payments of benefits to the individual applicants in their personal capacities.

332    I will now turn to what the evidence says more directly about BOQ1.

BOQ1

333    It will be recalled that BOQ1 is in Mr Frigger's name only. The account name shown on the bank statements makes no mention of the FSF or of any trust. Nor is there any separate instrument, such as a declaration of trust, which objectively and expressly manifests an intention that Mr Frigger would hold the account on trust.

334    Most of the funds in BOQ1 came from BOQ2, with all of that money (approximately $2.5 million) having come in turn from another Bank of Queensland account (BOQ3). Those funds were deposited into BOQ2 and withdrawn (save for $50) on the same day, 2 July 2018 (KAT 4583). Mrs Frigger's evidence is that the bank told her that it was necessary to open BOQ2 because it was not possible to transfer funds directly to BOQ1 from BOQ3 (ACTF 4 para 3). As curious as that is, nothing appears to turn on it, and since the amount of money remaining in BOQ2 is negligible I will refer to that account rarely in these reasons.

Opening of BOQ1 and source of funds

335    The evidence in ACTF 1 (para 5) is that BOQ1 was opened on 2 July 2018 by a transfer of the balance of approximately $2.5 million from BOQ2 which had been held in Mrs Frigger's name for the preceding four months. Bank statements in evidence do not bear this out, as BOQ2 was also opened on 2 July 2018. However those funds were in BOQ3, also in Mrs Frigger's name, since that account was apparently opened on 1 March 2018 (KAT 4 p 587), so nothing turns on the inaccuracy.

336    A document headed 'Current Account Authority' dated 2 July 2018 is in evidence (KAT 214). The Official Trustee obtained it from the Bank of Queensland so it can be accepted as genuine. Its function appears to be to give signing authority for BOQ1 with specimen signatures to the bank. Mr Frigger appears to have signed it. The form makes provision for other signatories but Mrs Frigger is not a signatory. In the signature box there is a space for the signatory to state 'Official position if applicable'. It is blank; Mr Frigger has not noted any position as trustee. But I do not place weight on that, as the box can be interpreted as asking what position the individual signatory holds in a relevant corporate entity. This is only a signing authority; it is likely that there was a separate account opening form (whether paper or completed online), but it is not in evidence. Mrs Trenfield refers in one of her affidavits to 'the application form' for BOQ1, but she appears to be referring to the Current Account Authority form (KAT 4 para 158(a); KAT 214).

337    The applicants assert that it was not possible to add the words 'trust' or 'trustee' to the account opening names (ACTF 14 para 21). This appears to be intended to support a submission that they did all they could to comply with their obligations under the SIS Act to keep fund assets separate, such as the prescribed standard referred to in [151] above. But they have provided no independent verification of that assertion and I do not accept it.

338    Also in evidence annexed to ACTF 1 (pp 99ff, 122) are what appear to be printouts of account details available via an internet banking facility for BOQ1 and BOQ3. These have 'Frigger Super Fund' in account details and account names, even though the bank statements for the same accounts, covering the periods in which the printouts were apparently produced, do not (see KAT 4 pp 291, 585; ACTF 1 p 100). I infer that the internet banking facility provided by Bank of Queensland permits users to enter account 'nicknames' which then show up on internet banking pages which can be printed. There is an email from an officer of the Bank of Queensland to the first respondent which supports that inference by saying that for BOQ1 the account name 'has been manually changed by Mr Frigger' and 'is not the true legal title used to open the account'. While the applicants objected to reliance on this email as annexed to an affidavit of Mrs Trenfield (i.e. KAT 4 para 79), they themselves put it into evidence in an affidavit which Mrs Frigger swore on 1 April 2020 (ACTF 1365). In any event, there is no evidence of when the nickname was added or changed to make reference to the FSF. So these nicknames do not establish any objective manifestation of intention before the date of the bankruptcy. As explained above, acts after that date such as noting the FSF as an account nickname are likely to be self-serving evidence of intention, and so unreliable. To the extent that it is suggested that the nickname is an objective manifestation of intention after that date, on principles explained above that could not have effect as a contribution of any property to the trust that is the FSF.

339    After the opening deposit of approximately $2.5 million, a further $300,000 was deposited into BOQ1 on 24 July 2018 (KAT 4 p 289). This came from BW1 (KAT 4 p 532).

Matters relied on by the applicants in connection with BOQ1

340    The applicants rely on the tracing principles that have been mentioned above, in order to say that there were numerous transactions by which funds were taken out of BW1, and deposited into web saver accounts paying bonus interest for short periods of four to six months. They say that the funds eventually found their way into BOQ1 without ever losing their character as trust funds. I have already described how the first respondent accepts that all the funds in BOQ1 can be traced from BW1. But on the findings I have made about BW1, that fact is not an objective circumstance leading to an inference that the funds were FSF funds when they were paid out of BW1 or, if they were, that they retained that character from the point at which they were paid out. Also, there was no apparent compliance with the requirement of the FSF Deed to ensure that any money received by the FSF is dealt with as soon as possible by depositing it 'to the credit of the fund' in a suitable account: cl 140 and see [172] above. That is a circumstance connected with the transfer of funds to BOQ1 and other accounts which points away from them being FSF funds.

341    The applicants also rely on general evidence about their subjective intentions in executing an investment strategy of shifting funds from account to account to obtain temporary concessional high interest rates. Those contextual matters do not help the applicants to discharge their onus of proving the necessary manifestation of intention. At [99]-[103] above I considered whether an observation made by Mason CJ and Wilson J in Trident v McNiece required any relaxation of the traditional reluctance of the courts to find the existence of a trust relationship in the absence of clear language. I concluded that it did not, but even if that is wrong, their Honours still spoke in terms of what the language used by the parties conveyed.

342    Here, there is no such language at all. Merely pointing to surrounding circumstances which are arguably consistent with a trust on the terms of the FSF existing over BOQ1 is not enough. Nothing about the investment strategy described by the applicants necessitates that it was carried on by them in their capacities as trustees of the FSF. It is a strategy which would also make sense if the applicants executed it for their own personal benefit, not as trustees.

343    The applicants refer to what they say is the improbability of any suggestion that they, as retired persons, would have absolute legal and beneficial ownership of $2.8 million, rather than hold it in a superannuation fund. The applicants' case thus amounts to an argument that the strategy makes more sense if BOQ1 is an asset of the FSF, because that is more tax effective. But the asserted tax effectiveness of characterising an asset as a trust asset cannot, by itself, justify characterising it that way. It falls short of the 'commercial necessity' which, in Trident v McNiece at 121, Mason CJ and Wilson J said could support an inference or imputation of the necessary intention. The question of whether an asset is a trust asset is often significant because of its tax implications: see e.g. Herdegen. To find that tax implications by themselves entail the existence of a trust would be to reverse the logic of the situation.

344    There is also the balance sheet as of June 2018 annexed to affidavit ACTF 1 (186) which shows an asset of approximately $2.5 million as 'BOQ websavings'. This cannot have been BOQ1 or BOQ2, neither of which had been opened by then. It may refer to BOQ3. But I have explained above why I place no weight on this balance sheet.

345    The applicants say that the ATO treated the bank accounts as part of the FSF in its capacities as both regulator of regulated superannuation funds and as tax collecting agency, and afforded concessional tax treatment to the FSF. But even if the ATO did give the FSF concessional tax treatment, the evidence does not establish that this was linked to income from any of the Bank of Queensland accounts. And even if it did, there is no suggestion that the ATO somehow verified any claim that income from those accounts was FSF income.

346    In any event, as has been explained, the applicants had reached retirement age by 2018 and so conceivably could have drawn on funds in the FSF for their own personal benefit. Mrs Frigger said in cross-examination that 84% of the assets of the FSF were 'non-concessional, so at any point in time, my husband and I can withdraw 84 per cent of that - of that fund' (ts 416). So the opening of BOQ3, BOQ2 and BOQ1 can be sensibly explained by a hypothesis which does not require those accounts to be trust assets. The court cannot reach any clear inference based on the inherent probabilities as to how the applicants might have arranged their affairs.

347    As a result, I find that the applicants have not discharged their onus of establishing that on 2 July 2018, when BOQ1 was opened in Mr Frigger's name and the initial deposit was made, the account was an asset of Mr Frigger held in his capacity as trustee of the FSF.

Notification of the FSF TFN

348    The findings I have just made are, however, not the end of the matter. The applicants also relied on an email dated 13 July 2018 sent from Mr Frigger (apparently using Mrs Frigger's email address) to the Bank of Queensland. The email has the account number for BOQ1 in the subject heading. The text in the body of the email is (ACTF 1104):

Dear Sir/Madam:

Please be advised that my tax file number for the above account is [redacted - FSF TFN].

Kind regards.

HARTMUT FRIGGER

349    While an affidavit sworn by Mrs Frigger was the source of the above email, it was not put to her that it was false or altered in any way, and nor has the first respondent submitted that it should not be taken to be what it appears to be. I accept that Mr Frigger did email the bank in those terms on 13 July 2018.

350    The applicants also asserted in submissions that the TFN for the FSF had been notified on other accounts which participated in the flow of funds, but there was no evidence of that, or at least no evidence that was admitted for the purpose of establishing that. There is an email chain between the staff of the Bank of Queensland and staff of the first respondent in evidence which relates to this notification by Mr Frigger and also the notification of a tax file number by Mrs Frigger in respect of BOQ2 and BOQ3 (KAT 4 pp 590-600). However the applicants objected to the admission of that email chain as a business record and in the end it was admitted under s 60 of the Evidence Act solely for the purpose of establishing Mrs Trenfield's state of mind, and not as to the truth of the matters contained in it. So I take no account of that email chain for present purposes. A similar ruling was made in relation to another email chain concerning an HSBC bank account (KAT 4 p687-688).

351    The applicants made it clear in their submissions that they considered the email of 13 July 2018 to be significant, but they did not clearly explain what its significance was. In an opening written submission they merely said that 'The notification of the FSF-TFN on 13 July 2018 was primary identification of FSF asset'. In oral closing submissions, Mrs Frigger referred to the email as a piece of evidence that was one of two 'indicia' that BOQ1 (among other assets) was a trust asset (ts 898). The other indicium she mentioned at that time was 'that the secondary name allowed on these kinds of accounts was the Frigger Super Fund'. By this she was referring to the account nickname entered for BOQ1 on Bank of Queensland's internet banking site, which I have described above.

352    It was not clear whether this was a submission that the email of 13 July 2018 was merely said to be evidence of the necessary intention having been held and manifested at the earlier time of opening the account, or whether it was said to be an objective manifestation of intention which itself was operative to make BOQ1 an asset of the FSF from 13 July 2018. It is likely to be the former, since the very premise of the applicants' case was that BOQ1 was an asset of the FSF from the time it was opened. If that is the submission, I do not accept it. I have found no real evidence of any objectively manifested intention before 13 July 2018 that BOQ1 should be held on trust on the terms of the FSF. BOQ1 was opened on 2 July 2018 and the initial deposit of $2,519,597.42 was made on the same day. The notification of the FSF TFN is not so contemporaneous with those transactions that it can be considered part of them. It is therefore (at best) evidence of intention subsequent to the acquisition of the asset (by Mr Frigger), which must be treated with caution: Wheatley v Kavanagh at [260].

353    The need for caution becomes even more acute when one recognises that the notification occurred a mere seven days before the sequestration order was made. The petition had been heard on 5 June 2018 and a hearing also took place on 11 July 2018, at which Colvin J dismissed an application by the applicants to reopen the hearing of the petition and to stay delivery of reasons (Ex 41 paras 3, 194). So the email of 13 July 2018 was sent to the Bank of Queensland at a time when the applicants are likely to have been concerned to do whatever they could to protect their assets against the possibility that they would become bankrupt. It is likely to have been self-serving in the sense that it was motivated by a desire to create evidence that the account and the money in it had been assets of the FSF from before the presentation of the bankruptcy petition. I do not accept the email of 13 July 2018 as evidence of any prior objectively manifested intention that BOQ1 or the money in it should be held on the trusts of the FSF.

354    The other possibility is that the email of 13 July 2018 was itself operative to make BOQ1 part of the FSF when it was not before. But if that was the applicants' case, they did not articulate how the email could have that effect. The first respondent did not make any submissions on the basis of such a case, and it would arguably be unfair to her to determine the matter on that basis. Nevertheless, accepting that the applicants are self-represented, I infer that their contention on that possible alternative case is a broad one that, by telling Bank of Queensland that the TFN for the FSF was the TFN for BOQ1, Mr Frigger was manifesting an intention that BOQ1 become an asset of the FSF.

355    To understand what was conveyed by Mr Frigger's conduct in sending the email of 13 July 2018, it is necessary to understand what a TFN is under the relevant legislation, as that provides the objective framework within which the notification of a TFN must be construed. Part VA of ITAA 1936 makes provision for TFNs. A TFN is a number for which a person may apply to the Commissioner for Taxation: s 202B(1). In that regard, 'person' includes a person in the capacity of trustee of a trust estate: s 202A, definition of 'person'. The many objects of Part VA listed in s 202 indicate that, in broad terms, one of the main purposes of providing for TFNs is to permit the ATO to match income tax returns to other information it receives, in order to ensure that all taxable income of a person is declared: see in particular s 202(a).

356    It can be inferred that CAT applied for the FSF TFN when it was trustee of the FSF, so that TFN is the TFN for persons acting in the capacity of trustee of the FSF. Putting all this together, by saying in the 13 July 2018 email that 'my tax file number for the above account' is the TFN for the FSF, Mr Frigger was telling the Bank of Queensland that future interest income from the money in the account would be properly attributed as income of the FSF. Implicit in that is a statement of intention that the money is or will be an asset of the FSF.

357    However, as the first respondent repeatedly pointed out, BOQ1 was in Mr Frigger's name alone, but he was not the sole trustee of the FSF at the relevant time. 13 July 2018 was before the appointment of HAF as trustee of the FSF, which in point of fact occurred on 21 July 2018, albeit it then purported to be retrospective to 1 July 2018. The legal effect of Mr Frigger's email, if any, must be assessed in the matrix of facts that existed at the time it was sent. Based on the evidence of the deed of amendment dated 1 July 2018 (which was made on 21 July 2018), as at 13 July 2018 the trustees of the FSF were Hartmut Frigger, Angela Frigger, Jessica Frigger and Michael Frigger.

358    That introduces uncertainty because it means there were numerous different ways in which Mr Frigger could have given effect to the intention which can be implied from the email of 13 July 2018. Since it has not been established that BOQ1 was an asset of the FSF before that email, to give effect to that intention Mr Frigger needed to contribute it to the fund. To speak in terms of 'contribution' is to use the parlance of both the FSF Deed, and of the SIS Act and SIS Regulations, in the context of which the deed was clearly drafted: see also the discussion beginning at [131] above, in particular the quote from Scott at 278.

359    The provisions of the FSF Deed concerning contributions are described at [163] above. The consent of the trustee for members to make contributions was required (cl 30 and cl 38). There is no evidence of that consent here but it can safely be assumed that it would have been forthcoming. Similarly, while a contribution must be made in the way the trustee directs (cl 33), and there was no evidence of any direction here, I will assume that a suitable direction would have been made.

360    Clause 33 also provides, however, that a contribution to the FSF 'may be made in cash, or by the transfer of assets in accordance with superannuation law'. While the use of the word 'may' suggests permission, that sentence is preceded by two sentences saying how contributions 'must' be made (see [163] above), so the provision as a whole is laying down mandatory requirements. So to contribute the funds in BOQ1, the contribution would need to be made in cash (say, by the transfer of the funds from BOQ1 into an existing FSF bank account) or by transfer of the asset, that is the account, in accordance with superannuation law. The FSF Deed does not permit a member to make a contribution simply by declaring himself trustee of an asset, even if he is already a trustee of the FSF.

361    It follows that for BOQ1 to be contributed to the FSF, all the trustees of the FSF must have an ownership interest in it. Otherwise the asset would not be part of the fund of which they are acting as trustees. It would not have been transferred to them as contemplated in cl 33. Any intention to contribute an asset to the fund, viewed objectively in the context of the FSF Deed, must incorporate an intention for that transfer to occur.

362    Viewed objectively, there were several ways in which Mr Frigger could have intended to give effect to the requirement that BOQ1 be transferred. He could have declared himself alone as trustee over BOQ1 with immediate effect, with one of the terms of the trust being an obligation to assign BOQ1 to himself along with all the other trustees to be held on the terms of the FSF. Or he could have effected the assignment immediately and simultaneously with the declaration of trust. Or he could have intended to make the necessary assignment at some later time.

363    Of course, raising that many possibilities involves reading a lot into a simple email which notified a TFN against an account. That is the problem. While the email may well express an intention in broad terms that BOQ1 is to be an asset of the FSF, it is too broad for the objective observer to understand how that was to be achieved, consistently with the FSF Deed and the complex web of laws surrounding the FSF as a regulated superannuation fund with multiple trustees. That being so, the email does not manifest with the clarity required by the authorities any intention which had the immediate effect of contributing BOQ1 to the FSF.

364    The uncertainty does not end there. I have described provisions of the FSF Deed which govern the amount that a member may withdraw on relevant events such as retirement. That depends on the amount standing to the credit of the member's accumulation account: cl 104. That in turn depends on the extent to which contributions have been made in respect of the member: cl 20.3. It was open to Mr Frigger to make a contribution of BOQ1 not just in respect of himself, but also in respect of other members of the FSF, his wife and children: cl 38. The email of 13 July 2018, of course, says nothing about the members for whom the 'contribution' is made. That uncertainty is fundamental. It means that even if there was an expressed intention for BOQ1 to become subject to the trusts of the FSF Deed, it would be unclear for whose benefit it is to be applied, by way of credit to members' accumulation accounts. That is uncertainty of objects, one of the 'three certainties' required for the creation of any trust. For reasons I have explained, that uncertainty would also be fatal to a contention that there was a contribution to an existing trust.

365    Further, in view of the uncertainty about the necessary transfer to the trustees, there would be no transfer, even in equity. BOQ1 is a debt owed by, or a chose in action held against, the Bank of Queensland: see Russell v Scott (1936) 55 CLR 440 at 450-451. If there was an immediate intention to assign BOQ1 to all the trustees of the FSF, Mr Frigger would have needed to give it effect to it by complying with the requirements for statutory assignment of such an asset that are found in s 199(1) of the Property Law Act 1974 (Qld) or s 20(1) of the Property Law Act 1969 (WA) (the proper law of the bank account is unknown, but nothing turns on that because the statutory provisions are in substance the same). Assuming that the bank's terms and conditions permitted such assignment (which is also unknown), that would require an absolute assignment by writing under the hand of Mr Frigger, of which express notice in writing has been given to the bank. Even if legislation about electronic transactions can help supply the requirement for signature (see Electronic Rentals Pty Ltd v Anderson (1971) 124 CLR 27 at 42, but see further Electronic Transactions Act 2011 (WA) s 10 and Electronic Transactions (Queensland) Act 2001 (Qld) s 14), the ambiguity of the email means both that the requirement for an expression of an intention to assign, and the requirement for express notice to the debtor (the bank), are missing: see William Brandt's Sons & Co v Dunlop Rubber Co Ltd [1905] 2 AC 454 at 462.

366    So Mr Frigger had not done everything that was necessary for him to have done to transfer the legal title to BOQ1: Corin v Patton (1990) 169 CLR 540 at 559, 582. As the first respondent submitted, if a voluntary transfer is intended to create a trust, the transfer must have occurred for the trust to be constituted. To the extent that any contribution of BOQ1 here was a voluntary gift (that is, for no consideration) it was ineffective to pass an interest to the assignees, even in equity: Olsson v Dyson (1969) 120 CLR 365 at 368, 375-376, 380, 386, 394; cf. T Choithram International SA v Pagarani [2001] 1 WLR 1, a case where the necessary intention was expressed much more clearly than Mr Frigger's email of 13 July 2018, and which in any event in this jurisdiction cannot supplant the authority of the two High Court cases just cited (see Cook v Cook (1986) 162 CLR 376 at 390). Being apparently voluntary, any purported contribution by Mr Frigger was revocable prior to the time when the requirements for the gift were satisfied: Harding v Harding (1886) 17 QBD 442 at 444. It would have been open to the first respondent to revoke it upon Mr Frigger's legal and equitable interests in BOQ1 vesting in her as trustee in bankruptcy on 20 July 2018. The email of 13 July 2018 was ineffective in equity to contribute BOQ1 to the FSF.

367    In summary, any case which the applicants might have sought to articulate based on the email of 13 July 2018 having effect as a contribution of BOQ1 to the fund would have foundered at several points. It was unclear whether the contribution was to be effected by transfer to the trustees of the FSF apart from Mr Frigger, and if so how that was to occur. Any such transfer would not have taken effect in equity. And, all that aside, the email could not have resulted in the creation of a trust on the terms of the FSF in respect of BOQ1, because there was no certainty as to who the beneficiaries in respect of that particular property were. So it did not have the result that BOQ1 became part of the conglomeration of property to which those trust obligations were annexed: see Commercial Nominees. On the principles I have articulated, each of these problems meant that BOQ1 would not have become part of the FSF.

368    As I have indicated, the applicants did not articulate any submissions in relation to any of these matters. I have considered them for the purpose of seeking to discern the possible legal content of a case that has been put to the court by non-legally qualified, self-represented litigants. No coherent case can be discerned. The email of 13 July 2018 does not advance the applicants' position.

369    As a result of the evidentiary ruling I mentioned above, there is no evidence of any similar notification of any TFN for BOQ2.

Conclusion regarding BOQ1 and BOQ2

370    The applicants have failed to establish that either of BOQ1 or BOQ2 were held on the trusts of the FSF Deed, or had otherwise been contributed to the FSF as at 20 July 2018, the date of their bankruptcy, or any time before then. It is not relevant to make a finding as at the commencement of the bankruptcy, as neither account existed then.

The CommSec Main Portfolio

371    The Main Portfolio is an account that the applicants held in their names with CommSec. It appears that its purpose was to enable CommSec, as a stockbroker, to buy and sell securities on instructions from the applicants and to record, against the account, holdings of the securities thus acquired. As at 30 June 2018, shortly before the sequestration orders, the securities held in the Main Portfolio in this way were valued at just over $2.5 million (KAT 4 p 896).

The parties' cases

372    At the beginning of the proceeding, the applicants asserted (by way of Mrs Frigger's affidavit ACTF 1) that dividends from the Main Portfolio were moneys that were earned by the FSF (para 14(f)). For reasons I have already made plain, I put no weight on general assertions of this kind coming from Mrs Frigger.

373    The applicants rely on a number of more specific matters in order to contend that the shares in the Main Portfolio were held in their capacity as trustees of the FSF by the commencement of the bankruptcies. Several of them are the same as the matters on which findings have been made in relation to BOQ1, so they can be addressed briefly. Those are as follows:

(1)    The funds used to buy securities in the Main Portfolio came from rental and interest income of the FSF, that is, from BW1. As I have indicated, it does appear that funds used to purchase shares in the Main Portfolio came from BW1. But for reasons I have given, there is nothing about the character of that account which establishes that those funds were necessarily assets of the FSF. There is nothing further in the evidence which indicates that when funds were taken from BW1, that was for the purpose of acquiring investments for the FSF.

(2)    Financial statements for the FSF for the years ending 30 June 2016, 30 June 2017 and 30 June 2018 and associated minutes of meetings of the trustees, and auditors' reports on the financial statements. The balance sheets as of June 2017 and June 2018 annexed to KAT 4 and ACTF 1 respectively show a 'Comsec [sic] Share Portfolio' as an asset, with a value in 2018 nearly the same but not identical to the value shown in the Financial Year Summary provided by CommSec as at 30 June 2018. I have explained why those financial statements and audit reports are not reliable evidence of any intention on the part of the applicants before the bankruptcy that the assets listed in them were assets of the FSF. There is also a 2016 balance sheet I have mentioned above (KAT 4411) which shows a 'ComSec [sic] Share Portfolio' with a total value of $931,114. It is not possible to link that by evidence to the Main Portfolio which, some two years later, had a value of over $2.5 million (especially where, as will appear below, there was another CommSec share portfolio in the name of the former trustee of the FSF).

(3)    Annual returns for the FSF which are said to have been lodged with the ATO as regulator of the FSF as an SMSF. The handwritten annual return for 2018 shows 'Listed shares' as an asset in an amount which is precisely the same as the amount shown in the Financial Year Summary for that year, that is $2,521,581 (ACTF 1 p 202). The digital version of the 2018 annual return also shows 'Listed shares' as an asset, but with a value of $2,516,326 (KAT 4 p 407). As with the balance sheets, I have explained already why the annual returns are not reliable evidence of any relevant matter. It is also notable that the putative annual return for 2017 which I have mentioned above shows a much lower balance for 'Listed shares', of $344,939 (KAT 1 p 58; KAT 4 p 168; ACTF 14 p 122). Mrs Frigger claimed in cross-examination, and without explanation, that this figure was simply wrong, despite the fact that it appeared in an annexure to one of the affidavits that she had put into evidence (ts 238). In re-examination she sought to explain that it was a figure for the wrong asset but her identification of that asset (a bank account in CAT's name) was unconvincing (ts 462).

(4)    A PPSR registration over shares apparently dated 10 April 2014. It is not materially different to the PPSR registration apparently for BW1, which is described at [276] above. The grantor is Mrs and Mr Frigger, the secured party is the FSF and, once again, in her affidavit ACTF 14 Mrs Frigger asserts that the nature of the security interest is 'trust receipts' (ACTF 14168; see also ACTF 53). The first respondent produced her own PPSR search showing HAF as another secured party in addition to the FSF (KAT 4 pp 1166-1167). But I do not need to resolve the apparent differences between the two searches. Either way, for reasons I gave in relation to BW1 the PPSR entries do not advance the applicants' case.

Mrs Frigger explained the PPSR registration in oral submissions as a 'date stamp so that there was proof of - at a specific point in time where the - it was established in the form of a declaration of trust that the [portfolio number] or the HIN number of - in our name held shares for the Frigger Super Fund' (ts 187). But the PPSR entry does not refer to the portfolio number or the holder identification number (HIN) for the Main Portfolio. In both the version provided by the applicants and that provided by the first respondent, the PPSR registration refers to a different 'Comsec [sic] share portfolio No'. That number appears elsewhere in the evidence on what purport to be buy confirmations issued by CommSec in respect of the purchase of certain shares. It appears under the heading 'Contract Comments' without other explanation (ACTF 6 pp 2-6). Mrs Frigger said in cross-examination that it was 'a client number' (ts 803). Even if I accept that evidence, and accept that the documents are authentic, that does not link the PPSR registration to the Main Portfolio.

374    The applicants also made a written opening submission, supported by a table attached to their submission, to the effect that numerous receipts into and payments out of BW1 were attributable to the sale and purchase of securities in the Main Portfolio. But the evidence supporting that was apparently in an affidavit sworn by Mr Frigger which the applicants ended up deciding not to put into evidence. In any event, given the mixed character of BW1, even if transactions in that account were attributable to transactions in the Main Portfolio, that would not help the applicants establish that the securities in the Main Portfolio were FSF assets.

375    The applicants also rely on evidence as to the following matters which are specific to the Main Portfolio:

(1)    the current shareholdings in the Main Portfolio were purchased by the applicants at times when they were trustees of the FSF;

(2)    the applicants say that the securities are registered with the relevant share registries as being held as trustees of the FSF and documents such as security transfer forms are said to confirm that; and

(3)    the applicants say that the TFN for the FSF has been notified to the share registries in respect of the shares in the Main Portfolio.

376    In response to the applicant's case in relation to the Main Portfolio, the first respondent relies on a number of matters to submit that there has not been any objectively manifested intention to hold the shares that are presently in the Main Portfolio as part of the FSF. She relies on the circumstances existing at the time of opening the share trading account that is the Main Portfolio, namely that, it was not opened by the applicants in their capacity as trustees, they were not in fact trustees of the FSF at that time, and the then corporate trustee had opened a different share trading account in that capacity with CommSec.

377    I will consider the issues raised by the parties' competing contentions under the following headings:

(1)    The opening of the Main Portfolio.

(2)    Contextual evidence about the purchase of the shares in the Main Portfolio.

(3)    Notation of the FSF in documents issued or kept by share registries and ASX.

(4)    Notification of the FSF TFN.

378    But before I do that, another digression is necessary.

Another necessary digression - an application to exclude evidence

379    Another application made during the course of the trial which remains undetermined relates to Exhibits 44 and 45. These documents were tendered by the first respondent and admitted subject to resolution of an objection by the applicants. As it turned out, Exhibit 44 is the only one of the two that I have potentially found it necessary to refer to for the purposes of these reasons. It is the financial year summary as at 30 June 2019 for a CommSec account in the name of Serenity Holdings which I have described above. So it is convenient to determine the point here.

380    The first respondent obtained both documents from the auditors of the FSF. The auditors provided them (and other documents) in response to a letter dated 3 September 2020 from the first respondent. I gave the relevant excerpt from that letter, and described the circumstances surrounding it, in Frigger (No 7) at [7]-[9]. In order not to make this already long judgment longer, I will not describe all that again here. In summary, the first respondent said in the letter that she was asking for the documents pursuant to s 129(1) and s 77A of the Bankruptcy Act. The applicants say that this was false and an abuse of power because in fact the first respondent required the documents for the purpose of this litigation. They seek the exclusion of Exhibits 44 and 45, obtained as a result of the letter, under s 138(1) of the Evidence Act, on the basis that the documents were obtained improperly or in consequence of an impropriety.

381    It is sufficient for present purposes to refer the reader to selected passages of Frigger (No 7) which contain discussion of the principles relevant to determine the present objection, namely:

(a)    the terms and relevant effect of s 138(1): at [15], [33];

(b)    the scope of the trustee's powers under s 129(1) and, most pertinently, s 19AA and s 77A of the Bankruptcy Act: at [11]-[13];

(c)    my view that the dichotomy on which the applicants rely, between investigating in the course of the bankruptcy and obtaining evidence for use in litigation, is not sound and that, generally, use of the trustee's investigative powers for the purposes of litigation is permissible as long as it does not give the trustee an improper forensic advantage: at [34]-[38]; and

(d)    my view that in this case, the first respondent has not gained any improper forensic advantage in obtaining Exhibits 44 or 45: at [38].

382    Frigger (No 7) was an application to reopen the applicants' case after judgment was reserved and it was not necessary or appropriate to determine the application to exclude Exhibits 44 and 45 at that time. But it does follow from the reasons I expressed there that in so far as the objection to those documents is based on s 138, it is not well founded. The applicants have not established that it was improper for the first respondent to obtain the documents by relying on her investigative powers, even if she had the purpose of using the documents in this proceeding. There is no basis to think that she obtained any improper forensic advantage: see Frigger (No 7) at [40]. To the extent that there is any suggestion that she concealed the latter purpose from the auditor, it cannot stand in the face of what appears to be a covering email for the letter from the first respondent's staff to the auditor saying (emphasis in original): 'Given the impending court hearing on 7 September 2020, we would appreciate a response as soon as possible.'

383    The applicants also objected to the exhibits on the grounds of relevance. I accept that Exhibit 45 is irrelevant; I have had no occasion to refer to it for the purposes of this judgment. But for reasons that appear in my substantive discussion of the below, Exhibit 44 is relevant to the question of whether the securities in the Main Portfolio are FSF assets. That also negatives another basis of objection that the applicants raised, namely that the document was introduced solely in order to impugn Mrs Frigger's credibility: see Evidence Act s 102. While it does impact on Mrs Frigger's credibility (as to which see [79] above), it is also relevant and admissible for another purpose. See also Frigger (No 7) at [45].

384    For those reasons, the objection to Exhibit 44 is overruled but the objection to Exhibit 45 is upheld and it will be removed from the record of evidence for the purposes of the trial of the proceeding.

The opening of the Main Portfolio

385    It will be recalled that the Main Portfolio is in the name of the applicants. There is nothing on the face of any document issued by CommSec to indicate that the shares in the Main Portfolio are assets of the FSF. Of course I exclude, in that regard, the Financial Year Summary as at 30 June 2018 which Mrs Frigger altered as described above in my findings about her credibility. Without the added notation, that document gives no indication that the shares are held in any capacity as trustee. It records a particular HIN as being assigned to the account name. It shows a large number of buy and sell transactions, the holding of shares with a total market value of over $2.5 million, and the receipt of substantial dividends. But none of that is evidence that the securities held and income earned are assets and income of the FSF.

386    Mrs Frigger acknowledged in her oral opening submissions that 'the Bank of Queensland accounts and the CommSec shares, do not have the words "as trustee for the Frigger Super Fund" included in the title to those assets' (ts 197). But she said that where the applicants were able to 'include' those words, they did. She also gave evidence in her affidavit ACTF 8 sworn 16 September 2019 that whether the shares were held beneficially or not was irrelevant to CommSec, and only the name of the registered owner is shown, and the applicants do not inform CommSec if the shares are held beneficially or not (ACTF 8 para 3).

387    The first respondent put the account opening form for the Main Portfolio into evidence (KAT 347). It is date stamped as having been received in December 1998. The applicants are the joint account holders. Contrary to Mrs Frigger's apparent implication that the applicants could not note their capacities as trustee on the account, there is a space on the form for the name of any superannuation fund, family trust or person under the age of 18 on whose behalf the account is intended to be operated.

388    That the space is blank on this form is unsurprising, as in 1998 CAT, and not the applicants, were the trustees of the FSF. Consistently with that, Mrs Frigger confirmed in cross-examination that she and Mr Frigger opened the Main Portfolio account as a platform to trade shares owned by them personally (ts 409 ln 26). But the facility to note a superannuation fund on the form is inconsistent with Mrs Frigger's apparent suggestion that this could not be done.

389    I have already referred to Mrs Frigger's evidence that in about 1997 the applicants transferred a share portfolio to the FSF. Given that the Main Portfolio was not opened until December 1998, any such shares that were transferred did not become part of the Main Portfolio at the time of that transfer. They were probably transferred into the name of the then trustee, Serenity Holdings Pty Ltd (i.e. CAT).

390    Such scant evidence of any specific transfer as now exists tends to confirm that. It is comprised of two off-market share transfer forms for particular shares that are dated 28 July 1999. They are transfers from the applicants, with the same HIN as the Main Portfolio, to 'Serenity Holdings Pty Ltd (Frigger Super Fund)', having, of course, a different HIN. These forms are isolated and presented without context, and are from 1999, not 1997, but they tend to confirm what one would expect to be the case if there was a transfer to the FSF in its early years as Mrs Frigger claims: it would be a transfer from the applicants in their personal capacities to the then trustee of the FSF, CAT (ACTF 8 pp 14-16). If anything, this suggests that when shares were contributed to the FSF, they were transferred out of the Main Portfolio.

391    Consistently with that, Mrs Frigger was inclined to accept in cross-examination that the share portfolio to which these transfers were made was 'held by CommSec in the Serenity Holdings [CAT] trading account' (ts 410-411 - she said 'I think so'). I infer from this that at that time, CAT had its own CommSec portfolio which it was operating as trustee of the FSF. I have already referred (at [79]-[80] above) to a different portfolio, in the name of Serenity Holdings Pty Ltd which, as will be seen, was in existence from at least 2014 through to 2019.

392    So, plainly, whatever securities were in the Main Portfolio were not held on trust when it was opened. There may have been securities held in the FSF from that time, but at least initially they were held under a different name. If there was ever a manifestation of an intention to hold the securities in the Main Portfolio on trust, that must be found in evidence about events subsequent to the opening of the account.

Contextual evidence about the purchase of shares in the Main Portfolio

393    In order to establish that the shares now in the Main Portfolio are assets of the FSF, the applicants point to no express statement, such as a declaration of trust, nor any one event, such as a wholesale transfer of CAT's share portfolio to them as trustees. What they say is that the shares in the Main Portfolio were all purchased after 2008, when they became trustees of the FSF. But of course, the fact that an asset is acquired by persons who happen to be trustees of a trust does not by itself mean that it is acquired by those persons acting in that capacity.

394    Mrs Frigger's evidence in her affidavit ACTF 8 (para 14) was that when she and Mr Frigger became the trustees for the FSF in 2008, they used the Main Portfolio to trade shares for the FSF, because they were the registered holders under the Main Portfolio. That evidence is at a very high level of generality and given my views about Mrs Frigger as a witness, I do not accept it. It fails to explain why, from 2008 until 2010, the shares were not traded in an account held jointly with CAT, as that company was still a trustee of the FSF during that period. And it does not take account of the fact that in 2018 and 2019, the applicants continued to trade shares using the Main Portfolio, that is, using their own names, after they ceased to be trustees of the FSF, and HAF took their place. To the extent that buying shares in the applicants' names was consistent with the contention that they were doing so as trustees, it became inconsistent with that, once they were no longer the trustees.

395    Mrs Frigger gave evidence seeking to explain that apparent inconsistency. That evidence changed over time. First, in affidavit ACTF 5 sworn 6 September 2019, she said that, since the sequestration order, Mr Frigger actively traded the portfolio and purchased new shares in the new trustee's name, in 'order to avoid unnecessary losses by forced sales' (ACTF 5 para 5). It is unclear what this means or why any share trades Mr Frigger may have conducted since the freeze are said to have any connection with the FSF. There was no evidence of any trade conducted in the name of HAF (who was the sole trustee at the time), let alone a trade made through the Main Portfolio (I deal briefly below with a suggestion that HAF had its own share trading account, on which suggestion I place no weight). Counsel for the first respondent tried to obtain clarification of the statement from Mrs Frigger in cross-examination but her answers were not coherent (ts 787-789).

396    The position put forward in ACTF 5 is further complicated by another statement in ACTF 14 sworn 20 April 2019 at para 11, where Mrs Frigger refers to the passage in para 5 of ACTF 5 quoted above, and says 'in that statement I mixed up two separate Commsec Share Portfolios which my husband actively trades'. She then sought to modify the explanation for the ongoing trading in the Main Portfolio as follows (errors in original):

16.    As I understand trust law, the object of FSF was to accumulate savings for members retirement. The accumulated funds vested in my husband and me when we reached preservation age of 55 years and we became entitled to all monies held in our allocated pensions which we could transfer to a small APRA provider, if we so wished.

17.    After sequestration date of 20 July 2018, I spoke to the regulator (the ATO), who advised me that we had 6 months to withdraw our allocated pensions and transfer to another APRA provider. However, because we are appealing the sequestration order on the grounds inter alia the bankruptcy notices are void, the ATO advised the 6-month period would begin to run when the appeal had been resolved.

18.    I also spoke to the auditor of FSF and became aware of section 206G Corporations Act 2001. Consequent on orders made by this Honorable Court on 21 October 2019, the issue in [17] above no longer applies.

19.    During the period after sequestration, consequent on the matters in [16]-[18] above and because we were not sure whether the appointment of H. & A. Frigger Pty Ltd as corporate trustee was valid, my husband continued to purchase additional shares in [the Main Portfolio] in our names. We also needed to keep that trading account separate because it was held in the 'accumulation' phase pursuant to changes in superannuation law on 1 July 2017, whereas the second Commsec trading account is held in the 'retirement' phase.

20.    Once the orders of this Honourable Court were made on 21 October 2019 allowing us to manage the Company and declaring we were not disqualified under the SIS Act, we were in a position to transfer [the Main Portfolio] into the Company's name as the new trustee. However, we were unable to do so because of the respondent's freeze on the trading account.

397    I do not accept this hearsay evidence of Mr Frigger's reasons for continuing to trade in his and Mrs Frigger's names after the sequestration order. For one thing, as I regrettably need to keep repeating, I do not consider Mrs Frigger to be a witness of truth. More specifically, there is no reason given for doubt about whether the appointment of HAF as trustee was valid. And none of the matters averted to provide any coherent reason why the substitution of HAF as trustee in place of the applicants would disturb any of the arrangements the applicants apparently wished to preserve.

398    If the shares in the Main Portfolio truly were assets of the FSF, there was over a year between HAF becoming trustee on 21 July 2018 and the freezing of the Main Portfolio on 28 August 2019 (KAT 3 p 42), to transfer the shares to HAF and to open a new share trading account in its name as trustee of the FSF so as to manifest the necessary intention in respect of newly acquired securities. Even if the applicants needed to obtain leave to manage HAF, which they eventually did obtain in October of 2019 (see [190] above), that process took a little under eight weeks. That purchases and sales continued to occur in the Main Portfolio for over a year after the applicants ceased to be trustees of the FSF points away from a finding that the Main Portfolio was an asset of the FSF. It certainly does not support any inference that it was an asset of the FSF as at the commencement of the bankruptcy on 8 November 2017.

399    The position is clouded further by the existence of the second CommSec trading account in Serenity Holdings' (CAT's) name discussed above, and possibly a third account (mentioned below). As to the second account, there are in evidence two CommSec financial year summaries for it, one as at 30 June 2015 and the other as at 30 June 2019 (Ex 28, Ex 44 - an extract of this later one is reproduced at [79] above). That different account is in the name of Serenity Holdings Pty Ltd, the former trustee of the FSF, and has a notation '<FRIGGER SUPER FUND ACCOUNT>' under the account name in each of the financial year summaries. The HIN in both is the same HIN for Serenity Holdings Pty Ltd shown on the off-market share transfers I described at [389] above.

400    The first financial year summary, from 2015, was provided by the applicants in discovery (ts 242). It shows a portfolio value of nil and only two transactions during that financial year, being the sale of shares in AMP Ltd for approximately $9,000 in December 2014, and the payment of dividends on those shares in September 2014 of approximately $200.

401    The other financial year summary, for 2019, was obtained by the first respondent from the auditor of the FSF, which received it from Mrs Frigger (ts 773). Mrs Frigger gave evidence in cross-examination that the fact that there were share trades shown against this account was somehow the result of a mistake by CommSec (ts 770). But how CommSec could have made the mistake, when it was presumably acquiring and selling shares on instruction from the applicants (probably Mr Frigger) was never explained. I do not accept that any of the share trades shown in this financial year summary for this account are the result of any mistake by CommSec.

402    In cross-examination, Mrs Frigger seemed to accept that shares had been sold in the name of this account in 2014, after Serenity Holdings Pty Ltd, by then called CAT, had gone into liquidation in 2010. Her evidence was that the account was not in the control of the liquidator in 2014 (ts 245). The obvious inference, which I make, is that Mr and Mrs Frigger still had control of the account and were using it for share trades both in 2014 and 2019 (and possibly at other times).

403    That there was this separate active CommSec account, and that it was clearly identified as an FSF account, speaks against the applicants' case that the purchase of shares in the Main Portfolio after 2008 in their own name was in their capacities as trustees. The fact that both of the financial year summaries in evidence for Serenity Holdings Pty Ltd contain the notation '<FRIGGER SUPER FUND ACCOUNT>' (these not evidently having been added to the documents by Mrs Frigger - see [79] above) confirms that it was possible to indicate in the account name that the account was held in the FSF.

404    Again, this is contrary to Mrs Frigger's implication in evidence I have mentioned above that this was not possible. The first respondent also put into evidence information from CommSec's website indicating that if an account is opened for an SMSF it will be necessary to 'open the account as an Individual Trustee or Company Trustee' (KAT 41057). I find that it was possible for the applicants to have operated a CommSec share trading account which recorded their capacities as trustees.

405    And yet there is no evidence that they ever did so in respect of the Main Portfolio. That suggests that the shares in the Main Portfolio were not assets of the FSF. The objective observer sees two accounts with CommSec, one of which is in the name of the former trustee of the FSF with a note that it is a 'Frigger Super Fund Account' and the other, which is in the names of Mr and Mrs Frigger, with no such notation. The latter account continues to be actively traded after the account holders cease to be the trustees of the FSF, and no attempt is made to transfer the securities to the new trustee, HAF. (While the same can be said of the account in the name of Serenity Holdings, that is explained by the fact that Serenity/CAT, by way of its liquidator, did not know about the account or at least did not know that it was being used for trades.) The objective observer would be likely to conclude from this that the account in Serenity Holdings' name contains assets of the FSF, and the second does not. Indeed, if the 'Serenity Holdings' account was not an FSF account, it is difficult to understand why Mrs Frigger gave the financial year summary for 2019 to the FSF auditor.

406    In the passage from ACTF 14 quoted above Mrs Frigger makes reference to a 'second Commsec trading account'. In cross-examination, she appeared to indicate that this was in fact a third CommSec account, in the name of HAF (ts 775). No CommSec financial year summary or other document confirming the existence or details of this third account was in evidence. Given the lack of any documentation confirming the details of his third CommSec account, I place no weight on it as support for any party's case.

Notation of the FSF in documents issued or kept by share registries and ASX

407    Mrs Frigger's affidavit evidence was that although CommSec did not record beneficial ownership of shares, it was recorded in each listed company's share registry (ACTF 8 paras 3, 14). Her evidence was that each company is required under the Corporations Act 2001 (Cth) to keep a member's share register and that those registers record whether the member holds the shares beneficially (ACTF 8 para 4). She said that for 'each shareholding listed on the Commsec statement, at the time of purchase my husband or I completed a form showing FSF as the beneficial owner and its tax file number' (ACTF 8 para 5).

408    However, remarkably in light of having given this evidence, the applicants produced not one record obtained from any share registry which showed that the trustee capacity in which the applicants say they hold the shares was noted on the register for any securities or otherwise recorded by the share registry in respect of any securities. The sole 'example' they produced of a form said to show FSF as the beneficial owner and its tax file number contains the FSF TFN but says nothing about beneficial ownership (ACTF 8 p 5 - I will return to this in the section on TFN notifications below).

409    Nor did the applicants produce anything from the ASX's Clearing House Electronic Sub-register System (CHESS) for the settlement of share transactions (see ACTF 8 para 3). There were, for example, no holding statements or share certificates (see ts 899).

410    The applicants were in a position to produce that evidence, and did not. That engages the principle often traced to the judgment in Blatch v Archer (1774) 1 Cowp 63 at 65; (1774) 98 ER 969 at 970. In Coshott v Prentice at [80]-[81] the Full Court summarised that principle as follows:

… In this regard, reliance may properly be placed upon the principle tracing back to the remarks of Lord Mansfield in Blatch v Archer (1774) 1 Cowp 63 at 65 that 'all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted'. As Hodgson JA (with whose reasons Beazley JA agreed) explained in Ho v Powell (2001) 51 NSWLR 572 at [14]-[15]:

[I]n deciding facts according to the civil standard of proof, the court is dealing with two questions: not just what are the probabilities on the limited material which the court has, but also whether that limited material is an appropriate basis on which to reach a reasonable decision.

In considering the second question, it is important to have regard to the ability of parties, particularly parties bearing the onus of proof, to lead evidence on a particular matter, and the extent to which they have in fact done so.

(citations omitted)

Thus, where the evidence relied upon by a party bearing the onus of proof does not itself clearly discharge the onus, the failure by that party to call or give evidence that could cast light on a matter in dispute is relevant to determining whether the onus is being discharged: Hampton Court Ltd v Crooks (1957) 97 CLR 367 at 371 (DixoCJ); Shalhoub v Buchanan [2004] NSWSC 99 at [71] (Campbell J). This principle is therefore wider than that in Jones v Dunkel (1959) 101 CLR 298. As Austin J in Australian Securities and Investments Commission v Rich (2009) 236 FLR 1 explained at 93 [440], '[w]hereas Jones v Dunkel reinforces an inference drawn against the party who has not called evidence, to the effect that the evidence would not have assisted that party's case, Blatch v Archer leads either to the drawing of such an inference, or to some other assessment of the weight of evidence, unfavourable to the party against whom the principle is applied' (emphasis added).

411    Here, despite the applicants' assertion that their alleged trustee capacity was recorded by share registries, they have produced no documentary evidence containing any such record. They sought to explain that in closing submissions by saying that the holding statements for securities were only available through the CommSec website, which they said they could not access because the account had been frozen (ts 899). But while CommSec had suspended trading in shares on the Main Portfolio, the evidence that this prevented the applicants from accessing information about their securities (whether with or without the assistance of a subpoena in this proceeding) was an assertion by Mrs Frigger (ts 184, ACTF 5 p 7), unsupported by independent documentary verification, and I do not place any weight on it.

412    In any event, the applicants have produced emails from share registries which show that the registries remained willing to give them information about their holdings despite the bankruptcies and any freeze on the Main Portfolio. If the registries had recorded that the securities were held in a trust capacity, the applicants could have obtained evidence of that. But Mrs Frigger just said that 'for some reason or other, we have never been able to get proof of that' (ts 900). If such proof existed, it would have been in the applicants' power and in their interest to produce it to the court. I infer that they have not produced that documentary proof because it does not exist.

413    That inference is further supported by the limited relevant documents that are in evidence. There is correspondence from ASX in relation to the HIN for the Main Portfolio notifying that the holder had been locked on CHESS because of notification of the bankruptcy (ACTF 5 p 8). This just refers to the applicants' names, with no mention of any trust. So it appears that ASX's records for that HIN, showing the holders as Mr and Mrs Frigger, made no mention of the FSF. There is also email correspondence to the first respondent from a share registry which administers securities held in the Main Portfolio, Advanced Share Registry, which says that 'the name Frigger Super Fund does not appear anywhere in the registered name' (KAT 41105). I consider that correspondence further below when I deal with notification of the FSF TFN to the share registries. There are also a handful of buy confirmations issued by CommSec in respect of the purchase of securities by the applicants which make no mention of the FSF, but do refer to the applicants in their personal capacities (ACTF 6).

414    Also, the first respondent submitted, and in closing submissions Mrs Frigger accepted (ts 901) that the name on any holding statement issued to the applicants for securities in the Main Portfolio would be the same as the name shown for that HIN on that CommSec account. From that it follows that those documents, such as holding statements for securities, do not mention the FSF. Mr Frigger conceded that in closing submissions (ts 901).

415    This aspect of the applicants' case - that the trustee capacity in which securities were held was expressly notified to or recorded by share registries or ASX or CHESS - is without foundation.

Notification of the FSF TFN

416    There is evidence that the TFN of the FSF has been notified to share registries. The applicants relied on correspondence with certain share registries which they conducted in 2019 and 2020, evidently for the purposes of this proceeding. The correspondence was aimed at establishing that the applicants had notified the TFN for the FSF to the share registries in respect of securities held in the Main Portfolio. The first respondent made her own inquiries of various share registries and has also produced correspondence with them about TFNs notified against holdings.

417    I have already considered the potential significance of the notification of a TFN in relation to BOQ1. The same considerations would apply in relation to holdings of securities. The notification of a TFN for the FSF could be a manifestation of an intention that income earned from the securities be income of the FSF, from which it could follow that the securities are to be FSF assets. I will return to that subject after describing what emerges from the correspondence with share registries about the FSF TFN, which was produced by both parties. It will also be necessary to consider the applicants' reliance on the annual returns as demonstrating that the FSF TFN had been notified. The warning to the reader given above in relation to the balance sheets and annual returns is repeated here: the evidence is a mess which cannot be described in a tidy way.

1.    Advanced Share Registry

418    The applicants rely on email correspondence with Advanced Share Registry which indicates that the TFN for the FSF has been notified to that registry for the HIN associated with the Main Portfolio (ACTF 88; ACTF 14177). But that correspondence does not indicate when the FSF's TFN was notified to the registry.

419    Mrs Frigger asserted in examination-in-chief that Mr Frigger notified the TFN for the FSF to Advanced Share Registry as soon as possible after each share purchase was made. But her source for that assertion was Mr Frigger, who did not provide any evidence, so the first respondent objected to the assertion as hearsay and the objection was upheld (ts 206-207).

420    Correspondence with Advanced Share Registry which the first respondent has put into evidence indicates that the first time any TFN was notified to the registry was 7 May 2019 (KAT 4 pp 1105-1106).

421    Also, according to an email chain from Advanced Share Registry adduced by the first respondent, the name 'Frigger Super Fund' and the ABN for the FSF do not appear anywhere in the 'registered name' (KAT 41105). Mrs Frigger submitted that these things only applied to a particular holding for a security with ticker code GRR, not to all securities held via Advanced Share Registry (see MFI 1). I do not consider that is so; another in the same chain (dated 1 May 2020 time stamp 1.59 pm AWST) is responding to questions about the account as a whole. It says:

Further to your email below, please find attached transaction history of all holdings under the HIN stated in your letter reflecting the acquisition date.

The only Tax File Number quoted for the holding was on 7 May 2019 which is the same as the number 3(C) in your letter [i.e. the FSF TFN].

Banking instructions are recorded only of the holding in GRR. On 7 May 2019 banking details were updated via our website with an account name Bankwest.

422    It appears from Mrs Frigger's own correspondence with Advanced Share Registry that the TFN is associated with the HIN, that is, the identity of the security holders, not with individual security holdings. In light of that, and read in context, the TFN mentioned in the second paragraph of the email just quoted is the TFN for the account as a whole and the use of 'holding' in the singular in that paragraph is probably just a typographical error. But if I am wrong about that, there would still be no evidence of when the FSF TFN was notified to Advanced Share Registry, other than for GRR. And GRR is not listed as a security held in the Main Portfolio in the Financial Year Summary as at 30 June 2018 provided by the applicants in ACTF 1 p 80, suggesting that it was acquired after the date of the sequestration order.

2.    Automic Group

423    Mrs Frigger has put into evidence a page from the web site of the share registry Automic Group which she apparently downloaded on 12 September 2019 at 4.32 pm. It seems to show a TFN with the last three digits of the TFN for the FSF (ACTF 810). But this document does not link that TFN to any particular account name or HIN (or any particular securities).

424    The first respondent's correspondence with Automic shows that for many securities administered by that firm, this TFN was provided on 12 September 2019, and for others Automic was unable to say when it was provided because 'data was transitioned to us by the previous registry' (KAT 41078).

425    Mrs Frigger could not say in evidence when those transitions occurred (ts 206 ln 32). She did give oral evidence to the effect that the previous share registry was Advanced Share Registry and that Mr Frigger had provided the FSF TFN to them 'as soon as possible' after the shares were purchased (ts 206). But as I have already said, that was inadmissible hearsay.

426    The applicants submitted that the fact that the FSF TFN was provided to Advanced Share Registry for some of the shares previously means that the 'implication' that it was provided on 12 September 2019 cannot be made out (see MFI 1). But it is not an implication: the email from Automic says in terms that 12 September 2019 is the date on which the FSF TFN for the other holdings was provided.

427    Mrs Frigger gave oral evidence-in-chief on that point, to the effect that she knew that the details that had been provided to Automic in September 2019 were only changes of bank details, not changes of the TFN (ts 207 ln 11). But that is not what Automic's email says, and in view of Mrs Frigger's lack of credibility as a witness I prefer the evidence sourced from Automic. Also, the timing of the notification, close to the freeze that resulted from the first respondent's letter of 28 August 2019 to CommSec, suggests that it was not just about bank details.

428    In her affidavit ACTF 8 at p 5, Mrs Frigger produced a form purporting to be a notification to what appears to be a share registry, Security Transfer Australia, of the TFN of the FSF for holdings of a particular security (code TLG). I have mentioned this form above (at [408]). mention it again here because that security is now administered by Automic (see KAT 41078). The HIN on the form is the same as the Main Portfolio. But the form is an unsigned and undated computer printout. I place no weight on it. Even if I did, there is no specific evidence as to when the notification apparently embodied in the form was given to Security Transfer Australia.

3.    Boardroom Pty Ltd

429    The correspondence between Mrs Frigger and Boardroom Pty Ltd was inconclusive. Boardroom indicated to her neither what TFN was notified in respect of the relevant securities, nor when (ACTF 14 pp 170-173). Similarly, Boardroom did not tell the first respondent what TFN was shown against the relevant holdings. However, Boardroom did tell the first respondent that all the TFNs had been 'updated by the [i]nvestor on the 14th of September 2019' (KAT 41081).

4.    Computershare Investor Services Pty Ltd

430    In an email to Mrs Frigger dated 24 March 2020, Computershare Investor Services Pty Ltd confirmed that a number of security holdings, which are listed, 'have a Superfund Tax File Number (TFN) and Australian Business Number (ABN) recorded' (ACTF 14174). The last three digits of each of those numbers is given and they correspond to the last three digits of the FSF's TFN and ABN respectively. However that email does not say when the FSF TFN and ABN were notified.

431    In correspondence between the first respondent and Computershare, the registry indicated that the 'tax details' for several security holdings were recorded on 14 September 2019 (KAT 4 pp 1115, 1117, 1120, 1127). The various pieces of correspondence do not identify precisely what is meant by 'tax details', although they all advise that either a TFN or both a TFN and an ABN were recorded on the respective securities on that day. Mrs Frigger asserted that the correct interpretation of the correspondence from Computershare was that the TFN but not the ABN was changed on that date, but the term 'tax details' is broad enough to encompass both the TFN and ABN.

432    For one security, a TFN was added on 12 February 2020 (KAT 41112). For another, a TFN seems to have been added on 1 April 2011 (KAT 41124), but that security is not on the list of securities with the FSF TFN which Computershare provided to Mrs Frigger, so there is no reliable evidence that it had the FSF TFN at any time. Computershare consistently advised the first respondent that for security reasons it does not retain the TFN or ABN numbers after receiving them (KAT 4 pp 1112, 1115, 1117, 1120).

433    That makes the purported email from Computershare to the applicants which I have mentioned a few paragraphs above (ACTF 14 p 174) quite odd. For in April 2020, Computershare told the first respondent that it did not keep TFNs, and yet in just the previous month it was able to tell the applicants that the specific TFN for the FSF was recorded against a large number of securities and furthermore, Computershare somehow knew that this TFN (and an ABN supposedly recorded) was 'a Superfund Tax File Number (TFN) and Australian Business Number (ABN)'. I prefer to base my findings on the email which Computershare sent to the first respondent in April 2020, which said in effect that it did not know what TFN had been notified to it.

434    So, there is no reliable evidence that the FSF TFN was added to any security holding administered by Computershare, and to the extent that any TFN had been supplied, the evidence is that this occurred on 14 September 2019 or 12 February 2020, that is, after the date of the sequestration order.

5.    Link Market Services Ltd

435    The applicants rely on a letter from Link Market Services dated 29 January 2020 confirming that the TFN for the FSF was, at the time of the letter, recorded against the HIN for the Main Portfolio with the TFN type being noted as 'trust' (ACTF 14176). But the letter does not say when that TFN was recorded, or which securities it was recorded against.

436    The first respondent has also produced a letter from Link Market Services confirming that the TFN noted against all shareholdings was the one for the FSF (KAT 4 p 1100). Link has also given the first respondent a pdf containing screen shots indicating that for most of the securities, the TFN was updated on 16 September 2019 (KAT 4 pp 1095-1097, 1084). For others, the TFN appears to have been added at different dates, which are also after the making of the sequestration order (OZL, ZEN, MNS).

437    For four security holdings in the Main Portfolio (ASX, BLD, IPL, KCN) as at 8 November 2017, however, the TFN appears to have been notified on 3 July 2017, which is both before the commencement of the bankruptcy and before the date of the sequestration order. For two more (MVI, SDA) it was notified on 19 February 2018, before the date of the sequestration order but after the commencement of the bankruptcy.

6.    Withholding tax, franking credits and capital gains tax

438    In closing submissions, the applicants relied on the treatment of tax on dividends of securities shown in some of the annual returns listed above as confirmation that the FSF TFN had been notified to share registries before the making of the sequestration order. The basis of the submission was not clear. At one point it appeared to be that if the FSF TFN had not been notified to any share registries by September 2019, the share registries would have been required to withhold 50% of the dividends as tax and the FSF would have needed to claim part of that back in its 2019 annual tax return, which it did not (ts 724-726). At another point, it appeared to be that franking credits would not have been claimable if the FSF TFN had not been notified, so the fact that they were claimed and resulted in refunds from the ATO shows that the TFN had been notified (ts 938ff).

439    Mrs Frigger asserted that a claim of franking credits in an annual return for the ATO, and the payment of a refund in an amount reflecting that claim, meant that the TFN for the FSF had necessarily been notified to share registries. This appeared to be based on a submission that the refund reflected concessional tax treatment which had been accorded to the FSF as a superannuation fund and, it was said, which would not have been accorded to it if the FSF TFN had not been notified to the share registries. But she did not provide any support for the asserted connection between notification of the FSF TFN to share registries and the recognition of concessional tax treatment by the ATO. Also, the inferences that can be drawn from the payment of a refund on a claim would depend on the source of the dividends and the basis on which the claim was calculated. There may be a need to assess how potentially complex provisions of the taxation legislation, and ATO practices, apply to the claims. No evidence beyond the summary numbers in the annual returns were provided. No legislative provisions or ATO practice documents were cited. No foundation for the asserted proposition has been established. The court cannot simply take Mrs Frigger's word for it.

440    Also, only in the case of the 2016 annual return was the starting point for the factual basis of the submission made out. That is, only in the case of that return have the applicants established that franking credits in a certain amount were claimed and that the ATO has paid a refund in accordance with the claim: see [256] above. I call that the starting point because it will be recalled that the applicants' case was that they notified the FSF TFN to share registries for each individual security when it was acquired. If that is so, then to make this submission out they would, in addition, need to establish which securities contributed to the franking credit in the particular year. If they included securities that were held in the Main Portfolio as at the making of the sequestration order, then the factual foundation for the submission might be made out in respect of those securities. But the applicants made no attempt to demonstrate which securities that were in the Main Portfolio as at 30 June 2018, if any, contributed to franking credits in the year ended 30 June 2016.

441    For the other financial years where there are annual returns in evidence, there is no annual return which has been confirmed as the one that was lodged with the ATO (2017 annual return, see [252] above) or there is both no confirmed lodged return and no evidence of the refund (2018 annual return, see [249] above).

442    As for the 2019 annual return that was put into evidence after the close of the applicants' case (Ex 39), even assuming it does establish that the FSF TFN was notified in respect of dividend income for the year ending 30 June 2019 that is covered in it, that is consistent with the FSF TFN having been notified after the date of the sequestration order.

443    To the extent that the submission was that if no TFN had been notified, then the share registries would have withheld 50% of dividends payable, when in fact they did not, that only establishes that a TFN had been notified to the registries; it does not say which TFN was notified. Since, on the evidence above, there was no indication that the share registries were aware that the shares were (allegedly) held in the applicants' capacity as trustees of the FSF, there is no reason to think that the registries specifically needed the TFN of the FSF to be notified before determining that withholding tax need not be deducted. So it could have been any TFN. That is not mere speculation; the correspondence with the share registries above shows that for at least some of them, the TFN notified was changed to the FSF TFN sometime in 2019.

444    The applicants submitted that if the TFN notified against a security had been changed, that would be a 'CGT event', that is, an event triggering liability for capital gains tax, and that the ATO would have acted on that (in some unspecified way), and the fact that it has not so acted means that the TFN was not changed during the relevant period. But they pointed to no statutory or policy basis for the submission.

445    I do not accept that the franking credits claimed and tax refunds received by the FSF, or the absence of any claim to a refund of withholding tax, or the asserted absence of any CGT event, establish that the FSF TFN had been notified to share registries in respect of the securities in the Main Portfolio, at any particular time, or at all. I prefer the direct evidence coming from the share registries that is canvassed above.

7.    Summary regarding TFN notifications

446    To summarise the above evidence about notifications of the TFN to the various share registries, I find that for four of the securities in the Main Portfolio administered by Link Market Services, the TFN for the FSF was notified before the commencement of the bankruptcy, that is, before 8 November 2017. For two more securities administered by Link, it was notified after the commencement of the bankruptcy but before the making of the sequestration order. For all other securities, whether administered by Link or by the other share registries, the FSF TFN was either notified after the making of the sequestration order, or there is no reliable evidence about whether it was notified and, if so, when.

447    Mrs Frigger asserted in submissions that listings of share transactions or share holdings attached to emails between the first respondent and share registries were missing from the evidence, so that a Jones v Dunkel inference should be drawn about their contents (Jones v Dunkel (1959) 101 CLR 298; ts 186). It is true that certain share listings or transactions listings appear to have been emailed to the first respondent and are not in evidence (see Boardroom KAT 4 p 1081, Link Market Services KAT 4 p 1086, Advanced Share Registry KAT 41106). But even if I were to draw a Jones v Dunkel inference about that missing evidence, the effect of the inference is only that the evidence would not assist the first respondent's case. That is not the same thing as an inference that the evidence which was not adduced would have been adverse to the first respondent's case: Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361 at [63]. Furthermore, the rule cannot be used to fill gaps in the evidence, or to convert conjecture and suspicion into inference: Jones v Dunkel at 313; Commonwealth v Fernando [2012] FCAFC 18; (2012) 200 FCR 1 at [115]-[117]. As Fullagar J pointed out in Department of Health v Arumugam [1988] VR 319 at 330:

If all that is proved, by inference or otherwise, in the absence of explanation, is less than all the elements of proof required for the complaint to succeed, neither a total absence of explanation nor a non-acceptance of an explanation can by itself provide an element of proof required. It can enable already available inferences to be drawn against dishonest explainers with greater certainty, but that is all.

448    So it is difficult to see what would follow from a Jones v Dunkel inference in this situation. To the extent that the first respondent is putting any affirmative case, at its highest it would be a case that the share registries did not record the trustee capacity in which the securities are allegedly owned. A list of shareholdings or of share transactions which does not help the first respondent to establish that case will not necessarily support the negative of the case; that is, it will not show that the registry does have a record of the trustee capacity somewhere. So any Jones v Dunkel inference drawn against the first respondent in these circumstances would not take matters very far.

Conclusions regarding the Main Portfolio

449    To summarise the above, the only reliable evidence potentially capable of indicating that there was an objective manifestation of intention that the securities in the Main Portfolio were held on trust, and/or were part of the FSF, was the evidence about the notification of the FSF TFN to the share registries. The contextual evidence suggests that the securities were not held on trust, in particular the evidence I have described to the effect that the Main Portfolio was not opened to trade shares for the FSF, that it continued to be used to trade after the applicants ceased to be trustees of the FSF, and that there was a second CommSec account in the name of the FSF which was active in 2019.

450    The applicants' submissions as to the significance of the notification of the FSF TFN in relation to the Main Portfolio were different to their submissions in relation to BOQ1. It will be recalled that they maintained that the fact that the securities in the Main Portfolio were held by the FSF was recorded in the ownership registers for each of the shares. In closing submissions, in response to a question from the bench as to where the evidence of that was, Mrs Frigger said (ts 900):

The evidence that the share registry holds the ABN of the Frigger Super Fund attached to the shares, the evidence that the share registry holds a tax file number for the Frigger Super Fund, and that is - I can tell you where that evidence is, your Honour. [Mrs Frigger referred to the correspondence with share registries described above]. And they were all emails that the respondent received from the share registries telling her that the tax file number for the Frigger Super Fund is what is held against every single share that they hold. The beneficial ownership is something that is just added when you buy a share.

And for some reason or other, we have never been able to get proof of that. We were - other than giving it in evidence that that is what we put it in. That is what my husband puts in when we buy a share. But we have never been able to get a hard copy to present to the court

451    So the applicants appeared to rely on the TFN as support for their submission that the ownership registers for the various securities, as maintained by the share registries, recorded that the securities were held by the applicants in their capacities as trustees of the FSF. They appeared to submit that this was a result of Mr Frigger notifying the FSF TFN (and ABN) to the registries at the time of acquisition of each security. I have already indicated that there is no admissible direct evidence of that latter contention. But it appears that the applicants say that operated as a declaration of trust at the time of acquiring the securities.

452    Where there is no evidence that the FSF TFN for a security was ever notified to the registry, the applicants have failed to discharge their onus of proof in relation to that matter. Where the evidence is that it was notified after the making of the sequestration order, the notification provides no support for the contention that the ownership register recorded that the security was held for the FSF at any time before the date of the sequestration order. Further, it cannot support any case to the effect that there was an objective manifestation of the necessary intention before that date, whether evidenced by some notation in the ownership registry or otherwise. By the time of the sequestration order, the notifications were plainly self-serving, and not reliable evidence that there had been any manifestation of intention held before the bankruptcy. And as I have explained above, any such manifestation of intention occurring after the sequestration order could have no effect.

453    As for the handful of FSF TFN notifications which do appear to have occurred before the date of the sequestration order, there is no evidence as to when the securities against which the TFN was notified were acquired, so the applicants have not established that the notifications were contemporaneous with the acquisitions. So those notifications do not support the applicants' case that the necessary intention was expressed to the share registries on acquisition. Nor do they show that the share registries recorded the trustee capacity in which the shares were allegedly held, at any time. The evidence summarised above indicates that the share registries did not know that the TFN given to them was the TFN for the FSF in particular, or for any superannuation fund. The applicants have not made out their case that notifications of the FSF TFN establishes that the share registries did record that the securities were held by the applicants in their capacities as trustees of the FSF.

454    The applicants articulated no case that notifications of the FSF TFN subsequent to acquisition of the securities (but before the date of the sequestration orders) were manifestations of intention that were themselves effective to make the securities part of the FSF as declarations of trust or contributions. After all, their case was that this happened on acquisition. As with BOQ1, the whole tenor of the case was that the securities had been part of the FSF from acquisition. So it would be unfair to the first respondent to resolve the case on any different basis.

455    Unlike the email of 13 July 2018 from Mr Frigger to the Bank of Queensland, there was no evidence of what the communications making the notifications said. And, any such case would have suffered from the same conceptual difficulties that I have outlined in relation to BOQ1. As with BOQ1, these stem from differences between the registered holders of the securities (that is, the applicants) and the identities of the trustees of the FSF at the relevant time, as well as uncertainty about the beneficiaries for whose benefit any contribution is made.

456    I have found that Jessica Frigger and Michael Frigger were trustees of the FSF at least from 6 July 2016 until 5 June 2020. With the exception of one notification on 1 April 2011 (KAT 4 p 1124), all of the FSF TFN notifications were made during that period. So in order to give effect to any intention to contribute the shares to the FSF that may have been apparent from the FSF TFN notifications, it would have been necessary to transfer the securities into Jessica and Michael's names as well as the names of the applicants. It is not possible to discern with any certainty from the bare fact that the FSF TFN was notified to a share registry on a particular date when and how that transfer was to occur. In the case of that notification, the onus of establishing that Jessica and Michael were not trustees at that time would be on the applicants, and they have not discharged it.

457    In any event, Jessica and Michael were members of the FSF at all material times up to 5 June 2020, giving rise to the same uncertainty of objects I have described in connection with the notification of the FSF TFN to Bank of Queensland. That is, it was uncertain for whose benefit the shares were to be contributed. And to the extent that any contribution which might result from the notifications was an imperfect gift for no consideration, it gave no equitable interest in the securities to the beneficiaries of the FSF. Consistently with the construction of s 116(2)(d)(iii)(A) of the Bankruptcy Act and the SIS Act articulated above, the bare fact of notification of a TFN cannot, in these circumstances, supply the clear manifestation of intention that would be necessary to effect a contribution to the FSF.

458    I conclude that the applicants have failed to establish that any of the securities in the Main Portfolio were held by them on trust on the terms of the FSF, or in any event contributed to and part of the fund known as the FSF, as at the commencement of the bankruptcy or at any other time.

The Residential Properties

459    The issues surrounding the two Residential Properties are the same and they can be dealt with together.

460    The Bayswater Property, a residential property on Union Street, Bayswater is one of the assets claimed to be part of the FSF. Mrs Frigger is the registered proprietor and has been since 8 July 1998 (KAT 4211).

461    Mrs Frigger is also the registered proprietor of the other property claimed to be an asset of the FSF, the Como Property, being a residential property in Cale Street, Como (KAT 4214). She became registered proprietor on 16 June 1980.

462    Mrs Frigger's evidence was that she bought the Como Property with her own funds in 1980 and the Bayswater Property with her own funds in 1985 (ACTF 2 para 6). It is unclear why Mrs Frigger only became the registered proprietor of the Bayswater property in 1998. On 7 April 2014, a mortgage over each of the Residential Properties was granted to HAF. The evidence does not disclose why.

The evidence as to the Residential Properties being held in the FSF

463    The principal pieces of evidence in favour of a conclusion that the Residential Properties are held in the FSF are the 2014 Declarations. The declaration for the Bayswater Property is in the following terms (ACTF 1 p 180):

This declaration of trust ('the Agreement') is effective 1 July 2014:

BETWEEN:    Angela Cecilia Theresa Frigger ('the Trustee'), Accountant, of [redacted by court] Applecross 6153 in the State of Western Australia

AND:     Hartmut Hubert Josef Frigger and Angela Cecilia Theresa Frigger ('the beneficiaries') both of [redacted by court] Applecross 6153 in the State of Western Australia

The Trustee declares that the Land situated at [redacted by court] Bayswater WA 6153 being Lot 2 on Strata Plan 34790 and being the whole of the land in Certificate of title Volume 2138 Folio 254 and registered in the name of the Trustee is held in trust on behalf of the beneficiaries.

The Powers of the Trustee over the Land is [sic] contained in the Trust Deed of the Frigger Super Fund dated 1 July 1997.

IN WITNESS WHEREOF each party to this instrument has caused it to be executed at Applecross in the State of Western Australia on the date indicated above.

It appears to have been signed by Mrs Frigger, who is stated as signing as trustee, by Mr and Mrs Frigger in their capacity as beneficiaries, and by a third person in the capacity of witness. No date is given for when it was signed. Mrs Frigger's evidence was that this happened a few days after the date from which it is stated to be effective, 1 July 2014 (ts 390). The apparent witness to the declaration did not give evidence in this proceeding.

464    The 2014 Declaration for the Como Property is identical save for the different details of the land (ACTF 1 p 181). Each of these declarations bears what appears to be the stamp of the Office of State Revenue showing that it has been assessed for nominal stamp duty.

465    The 2014 Declarations are not notified in any caveat lodged against either property (KAT 4 p211, 214). There is no other caveat connected with or notifying any interest of the FSF. Mrs Frigger gave evidence that the original 2014 Declarations were lodged with Landgate (ts 391-392) but there was no other evidence of that.

466    Mrs Frigger's first affidavit ACTF 1, to which the 2014 Declarations are annexed, gives no background or context about them at all. In a later affidavit sworn 17 June 2020 (ACTF 18) she says that the properties were contributed to the FSF 'as in specie transfers' with no consideration being paid. It is asserted that they have 'been treated as part of the estate by the regulator' since 1 July 2014 (para 22). Save for the 2014 Declarations and certain purported minutes of a meeting of the FSF which I will turn to shortly, there is no documentary evidence supporting any of these general statements by Mrs Frigger and I place no weight on them beyond what can be derived from the declarations, which speak for themselves.

467    In closing submissions counsel for the first respondent said that I should find 'that the authenticity of those declarations itself is doubtful' (ts 866). But that was the first time in the proceeding that this was squarely put. It was not said in opening submissions or in any affidavit. Mrs Frigger was cross-examined about matters which could go to the authenticity of the 2014 Declarations, but that cross-examination was quite gentle. She was referred to apparently identical Office of State Revenue stamps on the two declarations which also appeared to have an identical signature or initials within it. Perhaps counsel could have gone on to put to her that they were apparently identical because she had falsely added them to the 2014 Declarations. But he did not. And there was no other cross-examination apparently directed to the authenticity of the declarations. To find that the 2014 Declarations were prepared for the purposes of this proceeding and falsely produced to the court as having been made in 2014 would be serious. It was never put to Mrs Frigger that this is what occurred and I am not satisfied that this allegation was sufficiently apparent to her from cross-examination or any other matter. So I will proceed on the basis that the declarations of trust were executed by the applicants on or about the date they each bear, namely 1 July 2014.

468    Mrs Frigger also put into evidence a document purporting to be minutes of a meeting of the Frigger Super Fund on 1 July 2014 (ACTF 18 p 130) (2014 Minutes). Those recorded as present are Hartmut, Angela, Jessica and Michael Frigger. In cross-examination Mrs Frigger gave evidence that at that time, in 2014, each of them was a trustee of the FSF and a member of the FSF. She said that to the extent that the Australian Business Register only recorded the children as becoming trustees and members in 2016, that was wrong (ts 398). The 2014 Minutes record the following resolution:

1.    Pursuant to clause 30 Trust Deed dated 1 July 1997, the following in specie contributions are accepted on behalf of Hartmut and Angela Frigger:

(a)    Business real property situated at [redacted by court] Union Street, Bayswater being the whole of the land in certificate of title volume 2138 folio 254

(b)    Business real property situated at [redacted by court] Cale Street, Como being the whole of the land in certificate of title volume 1498 folio 911[.]

469    The authenticity of this document was squarely in issue. In cross-examination it was put to Mrs Frigger that she created it after the proceedings were commenced (ts 407). Counsel for the first respondent pointed out that the 2014 Minutes were not put into evidence at the same time as the 2014 Declarations; that is, the 2014 Minutes were not in Mrs Frigger's first affidavit ACTF 1 filed with the originating application on 12 March 2019. She put the 2014 Minutes into evidence in a much later affidavit, ACTF 18 sworn 17 June 2020. Also, the 2014 Minutes had not been discovered prior to that date, despite an order having been made on 29 November 2019 requiring the applicants to discover, among other things, all documents evidencing the beneficial owner of the Residential Properties. Cross-examining counsel pointed out that the 2014 Minutes were only put into evidence after Mrs Trenfield said in her affidavit KAT 4 sworn on 22 May 2020 that the 2014 Declarations purport to declare a trust only for Mr and Mrs Frigger, not for the members of the FSF (para 193). He also pointed out to Mrs Frigger that the phrase 'business real property' is a curious one to use in the 2014 Minutes. In fact, the properties both contain houses which are leased to residential tenants, and there is no evidence of any commercial activity being conducted on the premises.

470    Mrs Frigger volunteered that she had read in an affidavit of Mrs Trenfield that residential property could not be held in an SMSF (ts 406). Counsel pointed out that in affidavit ACTF 18, a few pages after the minute document was annexed, Mrs Frigger annexed a guidance note published by the ATO called 'SMSFR 2009/1 - Self Managed Superannuation Funds: business real property for the purposes of the Superannuation Industry (Supervision) Act 1993' which describes concessional tax treatment that is given to contributions of business real property to superannuation funds. On the basis of those matters he put to Mrs Frigger that after becoming concerned about the effectiveness of the 2014 Declarations upon seeing Mrs Trenfield's affidavit of 22 May 2020, Mrs Frigger did some research and created the 2014 Minutes and put them into evidence. Mrs Frigger denied this and said again that they had been created on 1 July 2014 (ts 407).

471    I am, once again, conscious that any finding that Mrs Frigger did deliberately create the 2014 Minutes for the purposes of putting them into evidence is a serious one and that it is a matter of which I should be firmly persuaded if I am to make a finding to that effect. The accumulation of circumstances summarised in the previous two paragraphs, along with Mrs Frigger's history of producing altered documents to the court in this proceeding, does so persuade me.

472    Also, Mrs Frigger's credibility on the subject was not assisted by her sudden recollection in cross-examination, after it was pointed out that Jessica and Michael Frigger were trustees apparently appointed by the deed of amendment dated 15 April 2020, that they had actually been appointed on 15 July 2010 when CAT was removed as trustee because of its liquidation (ts 407-408). She had earlier confirmed that the ABR extract reflected updates provided by her and was correct as to the effective date of appointment as trustees (ts 214-215). That extract (as at 3 October 2018) shows Jessica and Michael as trustees only from 6 July 2016 to 1 July 2018 (ts 215). She had also said that they were appointed in January 2008 (ts 208, 215). Mrs Frigger's constantly changing evidence about these various dates was strongly indicative of improvisation in the witness box to suit her case, rather than any attempt to tell the truth. I therefore discount the 2014 Minutes as evidence of anything.

473    I note that Mr Frigger appears to have signed the 2014 Minutes in the capacity of chairman. He did not go into evidence so none of this was put to him, meaning it would not be fair to make any finding that he colluded with Mrs Frigger to produce false evidence to the court. I do not make any such finding; whether it is in fact his signature, and if so the circumstances in which he signed the minute document, are simply unknown.

474    Moving on to other evidence about the Residential Properties, there are various balance sheets for the FSF which show them as assets of the FSF. I have explained above why I place no weight on the balance sheets. The first respondent pointed out that the properties are shown as 'accumulation phase' assets in most of the balance sheets, meaning they are not allocated to particular members of the FSF, whereas under the 2014 Declarations the beneficiaries were only the applicants (not Jessica and Michael, who were also members). But given the general unreliability of the balance sheets, I place no weight on that.

475    The annual return for 2018 shows residential real property in an amount which is quite different to the values for the Residential Properties shown in the balance sheet (ACTF 1 pp 186, 202). The annual return does not establish that they are trust assets.

476    There are 'Trustee Declaration[s] of Market Value of Assets' for the Residential Properties (and other properties) as of 30 June 2018, which Mr and Mrs Frigger appear to have signed on 29 March 2019 and given to the auditor of the FSF (KAT 4 pp 428, 430). Given that they post-date the sequestration order, they cannot be taken as reliable evidence of the existence of a trust over those properties.

477    There were similar market value declarations as of 30 June 2016 and 1 June 2017 in the possession of the auditor (KAT 4 pp 431-432, 435-436). These are signed by the applicants and next to the signatures the typewritten date 30 June 2016 or 1 June 2017 appear (as the case may be). But there is no independent evidence confirming that these were in fact the dates on which they were signed and, given that the audit reports for the year ending 30 June 2016 and 30 June 2017 were each prepared in 2019 (KAT 4 p366-371, 376-381; and see [239] above), they are likely to have been provided to the auditor after the sequestration order.

478    That is confirmed by the dates of minutes of meetings of the trustees of the FSF that were also in the auditor's possession (KAT 4 pp 469, 472), which record that the trustees 'deliberated on the market value of each investment on the financial statement' for the 2016 and 2017 financial years. Both of those minutes are dated 7 January 2019, indicating that the auditor was auditing documents provided in early 2019, after the making of the sequestration order.

479    The first respondent has not conducted any significant investigations into the facts surrounding the Residential Properties (KAT 4 para 189). But she did receive a document entitled 'Trustee Declaration of Market Value of Assets as at 1 June 2017' for Edward Street Perth from Just SMSF Audits, in Microsoft Word format (KAT 4 p 1190). While it contained signature images for the applicants purportedly dated 3 June 2017, metadata shows that the file was only created on 8 February 2019 and last modified on 13 February 2019, both times by Mrs Frigger (KAT 4 p 1192). A spreadsheet held by Just SMSF audits purporting to show various disputed assets as assets of the FSF was created on the same date (KAT 4 p 1196). The creation of the documents on that date would be consistent with the apparent date of the audit (16 March 2019) of the 2017 financial year accounts for the FSF and the dates of the minutes, as referred to above (KAT 4 pp 1192, 1194, paras 190-193). I conclude that the trustee declarations of market value are not reliable evidence of any objective manifestation before the sequestration order of an intention that the properties are part of the FSF.

480    Mrs Frigger gave evidence that rental income earned from the Bayswater Property was 'earned by FSF' (ACTF 1 para 14(d)). She annexed an ownership statement apparently issued by a real estate agent showing rent and other income and outgoings for the period 1 August 2018 to 1 September 2018 (ACTF 172). It shows payments having been made to BW1 and a Citigroup 'Ultimate Business Saver' bank account. The statement makes no reference to the FSF. I do not accept Mrs Frigger's general and unsupported evidence about the purpose for which the rent was earned.

481    Mrs Frigger's evidence is also that rent for the Como Property is money 'earned by FSF' (ACTF 1 para 14(e)). ACTF 1 annexes as evidence of that a form of lease which shows the name and address of the owner as 'Angela Frigger atf Frigger Super Fund' (p 74). The lease appears to be for four months commencing on 11 July 2018. But the form is unsigned and undated. That, together with my view about Mrs Frigger's credibility, means that I do not accept it as evidence of anything. And, I do not accept her general evidence about the rent on the Como Property.

The effect of the 2014 Declarations

482    In summary, the only reliable evidence potentially capable of establishing an objective manifestation of intention that the Residential Properties were to be held on trust as part of the FSF are the two written 2014 Declarations.

483    Whether the 2014 Declarations did have that effect depends on their proper construction and then the application of that construction to the circumstances in the context of the FSF Deed and the requirements of the SIS Act.

484    In construing the 2014 Declarations, the following passage from the judgment of Gummow and Hayne JJ in Byrnes v Kendle (at [49]) should be borne in mind (footnotes removed):

In Bahr v Nicolay [No 2] Mason CJ and Dawson J approved of the expression of the 'traditional attitude' by du Parcq LJ that 'unless an intention to create a trust is clearly to be collected from the language used and the circumstances of the case, I think that the court ought not to be astute to discover indications of such an intention'. In the present case there was no degree of informality, the trust being manifested and proved by deed using the technical term 'upon trust'. Accordingly, to adopt what was said in Associated Alloys

'This is not one of those cases where the language employed by the parties for the transaction is inexplicit so that the court is left to infer the relevant intention from other language used by them, from the nature of the transaction and from the circumstances attending the relationship between the parties.' (Footnote omitted.)

485    At [17] French CJ agreed with a passage from Gummow and Hayne JJ's judgment that included these observations and quoted with approval the following passage from The Law of Trusts by G Thomas and A Hudson (2nd ed, 2010) at 1495 [58.04]:

In circumstances in which there has been an express trust declared over land, the terms of that trust will be decisive of the parties' equitable interests in land, in the absence of any fraud, undue influence, or duress. [Footnote omitted.]

486    So the view of most of the judges in Byrnes v Kendle seems to be that where there is a formal trust document, the construction of that document depends entirely on its text. Heydon and Crennan JJ took what may have been a broader view, holding (at [102]) that the 'rules for the construction of contracts apply also to trusts'. It is possible, then, that their Honours took the view that contextual matters could be taken into account where the language of formal declarations of trust, though not 'inexplicit', is nevertheless ambiguous. But as explained below, even if contextual matters are taken into account here, the result is the same. So it is not necessary to decide whether their Honour's views were indeed different to those of French CJ, Gummow and Hayne JJ.

487    Also relevant is Korda at [208] where Keane J said, relying on the passage of Gummow and Hayne JJ in Byrnes v Kendle quoted above, that the 'language of the relevant documents is not to be strained to discover an intention to create a trust of the broad scope for which [the respondent] contends'.

488    In each of the declarations of trust here, the technical language of the creation of a trust is used, in self-described 'instruments' expressed in legal language and formally signed and witnessed. The intention of Mrs Frigger in executing them as settlor and trustee is to be found in the language in each of the declarations, albeit it will be seen that a reference in that language to the FSF Deed necessarily requires the provisions of that deed to be taken into account as well.

489    The applicants appeared to submit that on the proper construction of the declarations, Mrs Frigger holds the properties as trustee for the FSF beneficiaries. But the first respondent submitted that the declarations should be construed to mean that the properties would be held by Mrs Frigger on trust for both her and Mr Frigger as beneficiaries, and that there is nothing in the language of the declarations to suggest that it was intended that the properties would be held by Mr and Mrs Frigger in their capacities as trustees of the FSF for the benefit of the beneficiaries of the FSF. What, then, is to be collected from that language (which can be found at [463] above)?

490    First, there is a clear indication of intention to constitute Mrs Frigger as trustee of the properties, with herself and Mr Frigger as the beneficiaries of the trust(s). The first respondent did not suggest that the 2014 Declarations should be construed otherwise. As noted above, in Saunders, Kenneth Martin J said that where there is unambiguous use of language in a written instrument establishing a trust, the evidentiary onus will shift to a contradicting party. But while the language of the 2014 Declarations is unambiguous in expressing the intention to create a trust, it is ambiguous as to the terms of that trust. In any event the concept of a shifting evidentiary onus does not help much in the present context. The issue is a legal one of the construction of a written instrument.

491    Second, the 2014 Declarations appoint Mrs Frigger, and no one else, as the trustee of the properties. There is no indication of any requirement or intention to transfer any legal title in the land to any other person who will also act as trustee. There is no requirement to transfer the properties into the names of any of the other trustees of the FSF, whether immediately by force of the instrument itself, or at some later time. Given that cl 33 of the FSF Deed requires a contribution to be made, relevantly here, by way of transfer, the absence of those requirements in a formal trust declaration is significant. That is so whether, at the time of the declarations, the additional trustee of the FSF was Mr Frigger only, or Jessica and Michael as well.

492    Third, the beneficiaries are expressed to be Mrs Frigger and Mr Frigger and not Jessica and Michael as well. The first respondent sought to make much of this apparent disparity between the beneficiaries named in the 2014 Declarations and the membership of the FSF, especially in cross-examination (see ts 399ff). But with respect, that has no significance by itself; as has been explained, the FSF Deed contemplates that a particular member or members may take the benefit of the contribution of a given asset to the exclusion of other members. If Mrs Frigger was contributing the properties to the FSF for the benefit of herself and Mr Frigger, and not Jessica or Michael, that would be consistent with the FSF Deed.

493    Fourth, in their terms and on their face, each of the 2014 Declarations purports to create a new trust. They do not speak in terms of contributing to or adding to any existing trust. They do not say that the properties are to be contributed to the FSF. They do not say that the properties are to be held by Mrs Frigger, or anyone else, in her capacity as trustee of the FSF. Subject to the point addressed in the next paragraph, they do not say that the properties are to be held on the terms of the FSF. They do not say that the beneficiaries take their interest(s) as members of the FSF. And they do not provide that the properties are to be held for the purposes of the FSF, in particular the purpose of providing pensions for members, which is essential for it to be a superannuation fund. Given that the 2014 Declarations are formal legal documents, these absences are significant.

494    Fifth, the only place where the declarations mention the FSF or the FSF Deed is in the provision stating that the 'Powers of the Trustee over the Land is [sic] contained in the Trust Deed of the Frigger Super Fund dated 1 July 1997'. This does not say in terms that the property is to be held on the terms of the FSF Deed. It only refers to the powers contained in that deed, not the obligations. The distinction between the powers of trustees and the trusts imposed on them is a fundamental one, even if the dividing line is not always clear: see G Thomas, Thomas on Powers (2nd ed, 2012) at [1.40] and the authorities cited there. It is the annexation of trust obligations to a conglomeration of property which makes the conglomeration a 'fund' in the sense articulated in Commercial Nominees (see above at [124]). While referring to powers alone could be consistent with a broader intention that the properties be held on all the terms of the FSF, it is also consistent with an intention to use the provisions of the FSF which confer powers on the trustees as a convenient way to define the powers of Mrs Frigger alone as trustee of separate trusts.

495    The reference to the FSF Deed in the declarations makes it necessary to consider the provisions of that deed at this point. What are the 'powers' to which the declarations refer? A power is an individual personal capacity of the donee of a power to do something: Re Armstrong; Ex parte Gilchrist (1886) 17 QBD 521 at 531. In the context of trust law, a power is an authority to take a step which affects rights and obligations. In the context of a trust this can include administrative powers such as powers of sale and investment and dispositive powers or powers of appointment: see Jacobs' Law of Trusts [16-10], [20-02]-[20-03].

496    The most straightforward answer to the question 'what powers?' is that the 2014 Declarations refer to the powers conferred by the provisions of the FSF Deed collected under the heading of section L 'Trustee's powers' which I have summarised at [171] above. It could also include the powers of appointment I have described at [173] as these fall within the usual understanding of the powers of a trustee that are necessary to administer a trust. But that would be inconsistent with the use of the phrase 'Powers of the Trustee over the Land'. That phrase indicates that the powers conferred are those which permit dealings with 'the Land'. It is a narrower phrase than, say, 'powers in relation to the Land'. And it does not seem to include wider powers under the FSF Deed, such as powers of appointment.

497    A broader answer to the question 'what powers?' would involve combing through the FSF Deed to identify each term which confers on the trustee a discretion or an ability to do something. An even broader answer would also include the powers that are implicit in obligations, in that a requirement to do something necessarily authorises that it be done. But I do not consider that either of those broader answers would be sensible ones. They are inconsistent with the wording just mentioned and they introduce too much uncertainty as to the content of the powers conferred, and start to stretch the natural meaning of the term 'powers' so as to encompass different things such as discretions and obligations. Subject to one qualification, the powers in the more confined list in section L of the FSF Deed are broad enough and easy enough to identify to supply the powers that a trustee of the Residential Properties would need to act effectively in that capacity.

498    The qualification is that there are a few references in those powers to concepts specific to superannuation funds (see references to approved benefit arrangements in cl 136 and cl 139 and the reference to superannuation law and an eligible rollover fund in cl 137). But for the most part, the powers I have identified are capable of applying to a trust over real property that is not a superannuation fund. The uncertainty can be resolved by reading an intention that the powers be identified and applied mutatis mutandis when transferred from the context of the FSF Deed to the context of the 2014 Declarations.

499    The first respondent submitted that far from assisting the applicants, the reference in the 2014 Declarations to the powers of the FSF Deed provided support for the first respondent's construction. That is because, were it intended that the properties form part of the FSF, there would have been no need to identify the powers of the trustee in relation to the properties because those powers would have been contained in the trust deed. I would not go as far as that, but I do consider that, if there had been an intention to make the assets part of the FSF, the 2014 Declarations could be expected to have said so in a less elliptical way.

500    Taking all this into account, I consider that the preponderant intention manifested by the language of each declaration as a whole is to create a trust over the relevant property that is separate to the FSF. The reference in the declarations to the powers contained in the FSF Deed is not to be elevated to an expression of an intention that the properties be held for the purposes of the FSF, on the terms of the FSF Deed, so that, in some entirely unexpressed way, they will end up being held by the trustees of the FSF. That would be to strain the language to find a trust of a broader scope than the words of the declaration express.

501    If, contrary to the principles I have stated above, the context of the making of the 2014 Declarations is to be taken into account, that would not assist the applicants' case here. There is no evidence of the circumstances in 2014 which led the applicants to execute the declarations. Mrs Frigger gave evidence in cross-examination that she wanted to make in specie contributions of the properties on behalf of herself and her husband but that is general evidence of her subjective intention, which is irrelevant. Objectively it can be collected, of course, that at the time of the 2014 Declarations Mr and Mrs Frigger were husband and wife and members of the FSF. But those matters do not necessarily indicate that Mrs Frigger was likely to have wished to contribute the properties to the FSF. It is possible that one spouse would wish to declare a separate trust in favour of another spouse to acknowledge, for example, financial or other contributions the second spouse has made to the property or to the relationship. Also, a contribution as large as two residential properties may have exceeded the cap that applied to non-concessional contributions and so have been liable under the Superannuation (Excess Non-concessional Contributions Tax) Act 2007 (Cth) s 5 to taxation at the highest marginal tax rate: see ITAA 1997 s 292-85.

502    An important matter of context is the first respondent's submission that the contribution of this property to the FSF was in breach of the SIS Act. For reasons it is convenient to express in the next section of this judgment, I accept that submission. That is a strong objective indication against any intention to contribute the properties to the FSF.

503    I therefore conclude that each of the declarations of trust created a trust over the Residential Properties respectively, each with Mrs Frigger as trustee and Mr and Mrs Frigger as beneficiaries. But they were not trusts where Mrs Frigger held the properties in any capacity as trustee of the FSF, or for the purposes of the FSF, or otherwise on the terms of the FSF Deed save in so far as it defines the powers of Mrs Frigger to deal with the Residential Properties.

504    Consistently with the construction of s 116(2)(d)(iii)(A) of the Bankruptcy Act and the SIS Act which I have articulated above, there is therefore no sense in which it can be said that the Residential Properties became part of the FSF for the purposes of that section. The 2014 Declarations evince no intention that the assets are to be held for the purposes and subject to the obligations of the FSF Deed. Nor do they display any intention that the properties were to be transferred to the trustees of the FSF, as required in order for them to be contributed to the FSF in accordance with the requirements of the FSF Deed, including the explicit requirement of s 33 that for a contribution to the fund to be made, it must be made in cash or in transfer of assets.

Breach of the SIS Act

505    The first respondent further submitted that if the alleged contribution of the Residential Properties to the FSF had taken place, it would have breached s 65 and s 66 of the SIS Act. Section 65 prohibits a trustee of a regulated superannuation fund from lending money to a member or a relative of a member or providing any other financial assistance to a member or a relative of a member using the resources of the fund. Section 66 prohibits the intentional acquisition of an asset from a member of the fund. Both prohibitions are subject to certain exceptions.

506    It is convenient to start with s 66. Section 66(1) and s 66(2) provide as follows:

Acquisitions of certain assets from members of regulated superannuation funds prohibited

Prohibition

(1)    Subject to subsection (2), a trustee or an investment manager of a regulated superannuation fund must not intentionally acquire an asset from a related party of the fund.

Exception - acquisitions of business real property and listed securities

(2)    Subsection (1) does not prohibit a trustee or investment manager acquiring an asset from a related party of the fund if:

(a)    the asset is a listed security acquired at market value; or

(b)    if the fund is a superannuation fund with no more than 6 members - the asset is business real property of the related party acquired at market value; or

(c)    the trustee of a regulated superannuation fund acquired the asset under a merger between regulated superannuation funds; or

(d)    the asset is an asset of a kind which the Regulator, by legislative instrument, determines may be acquired by:

(i)    any fund; or

(ii)    a class of funds in which the fund is included.

Other exceptions in s 66(2A) and s 66(2B) are not presently relevant.

507    'Related party' includes a member of the superannuation fund: s 10. 'Asset' means any form of property (including money): s 10. Section 66(5) contains the following definitions specific to s 66:

acquire an asset does not include accept money.

business includes any profession, trade, employment, vocation or calling carried on for the purposes of profit, including:

(a)    the carrying on of primary production; and

(b)    the provision of professional services;

but does not include occupation as an employee.

business real property, in relation to an entity, means:

(a)    any freehold or leasehold interest of the entity in real property; or

(b)    any interest of the entity in Crown land, other than a leasehold interest, being an interest that is capable of assignment or transfer; or

(c)    if another class of interest in relation to real property is prescribed by the regulations for the purposes of this paragraph - any interest belonging to that class that is held by the entity;

where the real property is used wholly and exclusively in one or more businesses (whether carried on by the entity or not), but does not include any interest held in the capacity of beneficiary of a trust estate.

508    There is no separate definition of 'acquire'. In the context in which it appears in s 66(1) the word has been held to mean:

'obtain' or 'gain' or 'receive' and 'acquisition' has a corresponding meaning. The expression 'acquire' is a word of common usage and does not have a technical meaning. The Oxford English Dictionary, 2nd ed (1989), defines 'acquire' as meaning:

1    To gain, obtain, or get as one's own, to gain the ownership of (by one's own exertions or qualities).

2    To receive or get as one's own (without reference to the manner), to come into possession of.

Lock v Commissioner of Taxation [2003] FCA 309; (2003) 129 FCR 1 at [42] (Goldberg J). The specific exclusion from the concept found in s 66(5) of accepting money confirms that the concept is to be understood as a broad one.

509    On any view, ownership of the Residential Properties was not transferred at law. But to say that a declaration of trust by a settlor in favour of herself as trustee falls outside the meaning of 'acquire' because it does not involve a transfer would be to open up an obvious way in which s 66 of the SIS Act could be avoided, and so would not be a sensible way of reading the provision. It is not necessary to read it that way; if the 2014 Declarations were effective to make the properties part of the FSF, then it must follow that the trustees of the FSF, acting in that capacity, have 'acquired' an interest in the properties, being acquisition of an ‘asset' within the meaning of s 66(1). This follows from the breadth of the definition of 'asset', and the ordinary meaning of the word 'acquire'.

510    In any event, cl 33 of the FSF Deed relevantly requires a contribution to the FSF to be made 'by the transfer of assets in accordance with superannuation law' (see [360] above). So for a contribution of the properties to have been effective, they must have been transferred to the trustees, acting in that capacity. If, as the applicants assert, there were in specie contributions of the Residential Properties, the transfers were of an equitable interest of some kind. It is not necessary to specify the nature of the interest when none was articulated by the applicants (or the first respondent). The point is that if the transaction does not answer the description of an acquisition by one or more trustees of the FSF acting in that capacity, then it could not have had the result of making the asset part of the FSF.

511    The first respondent submitted that the applicants had not proved that the Residential Properties fell within the definition of 'business real property', that being a potentially relevant exception in s 66(2)(b). Was the onus of proving that matter on the applicants? That is a question of statutory interpretation. It must be determined as a matter of substance: Avel Pty Ltd v Multicoin Amusements Pty Ltd (1990) 171 CLR 88 at 119 (McHugh J). The question is whether the matter in question is part of the total statement of the obligation, or whether it is in the nature of an excuse or justification: Avel at 119; Vines v Djordjevitch (1955) 91 CLR 512 at 519-520. If the purpose of the legislation is to lay down a principle of liability which is intended to apply generally, and then to provide for some special grounds of excuse, justification or exculpation depending upon new or additional facts, the onus of proving those facts will lie on the party seeking to rely on them: Vines at 519-120. If the form or structure of the legislation does not give definite guidance on the question of burden of proof, it may be significant that the matter is peculiarly within the knowledge of one party or easier for that party to prove: Waters v Mercedes Holdings Pty Ltd [2012] FCAFC 80; (2012) 203 FCR 218 at [19].

512    Section 66(1) is expressed as a general prohibition. An intentional acquisition of an asset from a related party of the fund is prohibited. There is scope for an acquisition of that kind to circumvent the policy behind the SIS Act of encouraging people to provide for their retirement. For example, an acquisition of an asset from a member by a superannuation fund at a price greater than its market value can mean that the member has effectively drawn on the fund before retirement. The general prohibition contained in s 66(1) helps to prevent the policy of the legislation being defeated that way.

513    But at s 66(2)(a) to s 66(2)(c) the legislature has seen fit to refer to particular kinds of transactions that are not prohibited. They depend on the existence of specific facts, such as whether the asset is a listed security and whether it is acquired at market value: s 66(2)(a). It is also significant that s 66(2)(d) gives the regulator a broader power to provide for further exceptions. That cannot sensibly be understood as an inherent part of the prohibition in s 66(1), which tends to confirm that the other exceptions in s 66(2) are not either.

514    This construction of s 66 is further confirmed by the headings to s 66(1) ('Prohibition') and s 66(2) ('Exception - acquisitions of business real property and listed securities'). They form part of the legislation: Acts Interpretation Act 1901 (Cth) s 13; and see e.g. Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32; (2016) 241 FCR 121 at [41].

515    In light of those matters I do not consider that the fact that s 66(1) is expressed to be subject to s 66(2) means that the matters in s 66(2) are incorporated as part of the prohibition. They are excuses or justifications for what would otherwise be prohibited. So the onus of establishing that any contribution of the Residential Properties to the FSF was a contribution of business real property at market value rested on the applicants.

516    It is true that this issue arises in the context of the interpretation of the FSF Deed and in the context of the first respondent's defensive argument that any potential breach of the SIS Act meant that any transfer to the FSF was ineffective. In other words it does not arise in the perhaps more conventional context of the regulator or another person seeking remedies for breach of s 66(1), where one would expect the onus to rest on that position. But that does not make any difference to the placement of the onus. The issue as to whether the contribution alleged by the applicants breached s 66(1) was squarely raised in the first respondent's opening written submissions (this matter not having proceeded on pleadings). So, as a matter of the proper construction of the statute, the onus of proving that there was a contravention of s 66(1) fell on the first respondent as did also, perhaps, the 'evidentiary onus' referred to in Saunders. If the onuses were discharged (and they were), then the onus of proving that the transaction came within an exception in s 66(2) fell on the applicants.

517    Not only have the applicants not discharged their onus, I consider that on the balance of probabilities the exception in s 66(2)(b) does not apply. The question posed by that provision is whether the Residential Properties were each 'business real property of the related party acquired at market value'. The 'related party' in this case is Mrs Frigger as the member from whom, on this hypothesis, the properties were acquired. So when the definition of 'business real property' in s 66(5) is expressed to be 'in relation to an entity', the entity in question is Mrs Frigger (s 10 defines 'entity' to include an individual). The test is to be applied at the time immediately before the FSF acquired the properties from Mrs Frigger.

518    It may be doubted that the interest transferred by Mrs Frigger to the FSF would fall within para (a) of the definition of 'business real property', which refers to 'any freehold or leasehold interest of the entity in real property'. Under the 2014 Declarations the freehold in the properties remained with Mrs Frigger, albeit subject to the obligations imposed in equity by reason of the trusts: see the discussion in DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties [1980] 1 NSWLR 510 at 519-520.

519    But putting that aside, it would be necessary for the applicants to prove that the Residential Properties were, in 2014, 'used wholly and exclusively in one or more businesses', whether carried on by Mrs Frigger or not. There is nothing to suggest that the occupants of the properties used them for any business. They were residential properties (ACTF 1 paras 14(d) and (e)). But were the properties used wholly and exclusively in a business carried on by Mrs Frigger and/or any other persons?

520    The definition of business given in s 66(5) of the SIS Act is similar to that found in s 6 of the ITAA 1936 which in turn incorporates the definition in s 995-1 of the ITAA 1997 (bold and italics in original): 'business includes any profession, trade, employment, vocation or calling, but does not include occupation as an employee'. In Ferguson v Federal Commissioner of Taxation (1979) 26 ALR 307, Bowen CJ and Franki J summarised the principles applicable to determining whether an activity was carried on as part of a business as follows (at 311):

Section 6 of the Income Tax Assessment Act defines 'business', stating that it includes any profession, trade, employment, vocation or calling, but does not include occupation as an employee. This does not afford much assistance in the present case. It is necessary to turn to the cases. There are many elements to be considered. The nature of the activities, particularly whether they have the purpose of profit-making, may be important. However, an immediate purpose of profit-making in a particular income year does not appear to be essential. Certainly it may be held a person is carrying on business notwithstanding his profit is small or even where he is making a loss. Repetition and regularity of the activities is also important. However, every business has to begin, and even isolated activities may in the circumstances [be] held to be the commencement of carrying on business. Again, organization of activities in a business-like manner, the keeping of books, records and the use of system may all serve to indicate that a business is being carried on. The fact that, concurrently with the activities in question, the taxpayer carries on the practice of a profession or another business, does not preclude a finding that his additional activities constitute the carrying on of a business. The volume of his operations and the amount of capital employed by him may be significant. However, if what he is doing is more properly described as the pursuit of a hobby or recreation or an addiction to a sport, he will not be held to be carrying on a business, even though his operations are fairly substantial.

521    In ACTF 18 para 22, Mrs Frigger said that she and her husband have, since 1985, conducted a business of investment in real property, and that the Residential Properties were part of that business. But that is a conclusionary assertion by her and for reasons I need not restate, I place no weight on it. Furthermore, it is contradicted by an email from the applicants to the first respondent dated 24 October 2018, in which the applicants stated that they 'do not operate any business. We are both retired' (KAT 4 p 261). It is therefore necessary to look more closely at what the evidence discloses about potentially relevant property assets and how they were used.

522    Mrs Frigger's evidence in ACTF 1 (para 7) was that since the commencement of the FSF on 1 July 1997, she and Mr Frigger took all steps to ensure that their assets would be held in the FSF, other than their principal residence. While I have found in relation to several specific assets that this did not occur, it follows from this evidence that all the assets of the applicants which might be used in a business are disclosed by the evidence in this proceeding.

523    It may be accepted that, trust assets or not, they are assets that were held for the purpose of financial gain. But that does not necessarily mean that they were held as part of a business; the activity of investing may or may not be carried on as part of a business: see e.g. Federal Commissioner of Taxation v Radnor Pty Ltd (1991) 102 ALR 187. In that case, Hill J (Sheppard and Gummow JJ agreeing) held (at 205) that ultimately, the question is a question of fact and degree, a question of impression.

524    As at 2014, Mrs Frigger held the two Residential Properties in her name. I will assume, favourably to the applicants, that these could have been part of a wider business of property investment carried on with others. On that assumption, there were two other investment properties (Edward Street, Perth, and the Armadale property on which the BP Business was conducted) which appear to have been originally held in CAT's name as trustee for the FSF. The Hobart Property was not purchased until October 2014, in the applicants' names 'ATF Frigger Super Fund'. It would appear that all four properties held as at July 2014 were tenanted, albeit the Armadale property (it is claimed) was tenanted by the applicants. It may be accepted that rent was charged regularly to tenants of each of the properties, other than the Armadale property; I have not accepted evidence that the rent owing by the applicants was partially or wholly satisfied by receipts from the service station business, but the fact that this evidence was put forward at all shows that arrangements as to the rent on that property were likely to be haphazard.

525    While these were all no doubt investments carried on for financial gain, no business of property investment carried on by Mrs Frigger emerges from this evidence. Patently, these activities lacked system and organisation. Some were carried on by Mrs Frigger, some by both of the applicants, and some may have still been in the name of CAT. The activity of investing in real property was not carried on with any degree of repetition or regularity. The record keeping of the applicants as disclosed in this case was not what one would expect of a business; I refer in particular to the conflicting annual returns and financial statements produced, the qualified audit reports, and the fact that the financial statements for the years 2016 to 2018 (at least) all appear to have been produced for audit in early 2019. As at 1 July 2014, Mrs Frigger only held two modest residential properties in her own name, so it could not be said that investing in real property was her vocation or profession; while Ferguson shows that this is not determinative, it is still relevant.

526    I find that the Residential Properties were held as investments, but not as part of any business of property investment or any other relevant business. They were not 'business real property' for the purposes of s 66(2)(b) of the SIS Act. In view of this conclusion it is not necessary to consider whether they were 'acquired at market value' for the purposes of that provision.

527    The conclusion is significant for at least two reasons. First, as I have already said above, it supports a construction of the 2014 Declarations that they do not express an intention that the properties were to be part of the FSF. The court will not lightly draw an inference or make an assumption of illegal conduct by a party so that the party could rely upon that illegal conduct to make out its case: Coshott v Coshott [2013] FCA 907 at [42], approved in Coshott v Prentice at [43]. So to the extent that ambiguity in the 2014 Declarations poses a choice between a construction that leads to illegality and one that does not, the latter construction is objectively preferable. A breach of s 66(1) of the SIS Act is an offence punishable by imprisonment of up to one year: s 66(4). Objectively, it is unlikely that Mrs Frigger wished to expose herself to that penalty by contributing the Residential Properties to the FSF.

528    Second, the illegality of any contribution of the Residential Properties to the FSF means that they could not have become part of the FSF, even if the 2014 Declarations did state an intention for that to occur. Under cl 36 and cl 37 of the FSF Deed, the trustees of the FSF were bound not to accept any contribution 'not permitted by superannuation law' and to refund it if they became aware of the breach: see [164] above. Any asset contributed in a way which engages those obligations could not be said to ever become part of the fund, because it would be required to be disgorged. So any interest in the asset would not be part of an interest in an SMSF for the purposes of s 116(2)(d)(iii)(A) of the Bankruptcy Act: see Coshott v Coshott at [43].

529    In view of these conclusions, it is not necessary to consider the first respondent's further argument that the SIS Act rendered the contributions ineffective for illegality. Nor is it necessary to consider the first respondent's argument that if the Residential Properties were part of the FSF there would also be breaches of the prohibition on financial assistance in s 65 of the SIS Act. The first respondent's submissions in that regard were based on the existence of mortgages of the Residential Properties to HAF, but there was no evidence about the liabilities which those mortgages secured or the circumstances in which the mortgages were granted.

Conclusion regarding the Residential Properties

530    On their objective construction, the 2014 Declarations did not result in a contribution of the Residential Properties to the FSF. They did not express an intention to that effect and even if they had, it would have been illegal and the trustees of the FSF would have been required not to accept them. Instead, the 2014 Declarations constituted trusts over the Residential Properties on terms different to the terms of the FSF Deed. There is no suggestion that those separate trusts were separate regulated superannuation funds for the purpose of 116(2)(d)(iii)(A) of the Bankruptcy Act. So the applicants' interests in the Residential Properties are not interests in any regulated superannuation fund for the purposes of that provision.

531    It follows that the applicants' interests in the Residential Properties did vest in the first respondent on the date sequestration orders, and she does have the interests she claims in the caveats she lodged over the Residential Properties. That makes it unnecessary to consider her alternative argument that even if the Residential Properties did become part of the FSF, she still had a caveatable interest because Mrs Frigger's interest as trustee vested in the first respondent.

Summary of conclusions and orders regarding the Disputed Assets

532    The applicants have not established that at any material time, either or both of them held the disputed assets - that is, BOQ1, BOQ2, the securities in the Main Portfolio, or the Residential Properties - on the terms of the FSF for beneficiaries of the FSF. Further, any contribution of the Residential Properties to the FSF would have breached s 66(1) of the SIS Act, so that if those properties had purportedly been contributed to the FSF they would nevertheless not have formed part of that fund.

533    It follows that the interests the applicants hold in the disputed assets are not part of their interests in any regulated superannuation fund for the purpose of s 116(2)(d)(iii)(A) of the Bankruptcy Act. As I have explained at the beginning of this judgment, the applicants do not claim that any of the disputed assets were prevented from vesting in the first respondent because they were 'held by the bankrupt in trust for another person' for the purposes of s 116(2)(a). So the interests they held vested in the first respondent pursuant to s 58(1)(a) of the Bankruptcy Act, those interests being: Mr Frigger's interest in BOQ1 as the account holder; Mrs Frigger's interest in BOQ2 as the account holder; the applicants' interest in the securities in the Main Portfolio as the registered holders of those securities; Mrs Frigger's interest in the Residential Properties as beneficiary of the trusts created by the 2014 Declarations and Mr Frigger's interest as a beneficiary of those trusts, and the interests which, at law, Mrs Frigger held by reason of her status as registered proprietor of the Residential Properties (albeit the first respondent will not become registered proprietor unless and until the transmission of the properties to her is registered under the TLA - see s 58(2) of the Bankruptcy Act).

534    The applicants are therefore not entitled to the declarations they seek. They are not entitled to removal of the caveats. They are not entitled to any order requiring the first respondent to write to CommSec or ASX to seek the removal of the freeze on the securities in the Main Portfolio. They are not entitled to compensation for any losses (although it will be necessary to return to that in connection with a different issue, at [615] below).

535    It is worth making a broader point here. I will assume for the moment that the applicants genuinely believe that the disputed assets are FSF assets. As has been explained, their subjective beliefs are irrelevant in the eyes of the law. If they did choose to arrange their affairs in the way they said they did, it was incumbent on them to manifest that choice objectively. They should have observed the numerous strictures which are found in the FSF Deed and the laws surrounding superannuation as to the keeping of records, and keeping superannuation assets separate. They should have prepared balance sheets recording the holding of the disputed assets, and had those balance sheets independently audited, in a timely way. They should not have opened high interest 'Websaver' accounts which (according to them) did not permit a trust capacity to be recorded in the account name. Or if they did open accounts of that kind, they should have recorded their status as FSF assets clearly in a separate, contemporaneous document. They should not have used BW1 to run a business which was not an FSF asset. They should not have used BW1 to pay frequent personal expenses. They should not have used a share trading account which they had previously operated in their own personal capacities to acquire investments for the FSF. They should not have tried to contribute residential property to their SMSF.

536    Perhaps those strictures are inconvenient. No doubt it is all too easy when administering the affairs of a family superannuation fund to disregard them. If that is what the applicants did, they must bear the consequences. Any recognition, by the law, of an asset as a superannuation fund asset would affect numerous third parties, including the revenue of the Commonwealth and, here, the creditors of bankrupt estates. So the strictures that come with that recognition, as inconvenient as they may be, need to be observed.

SECOND GROUP OF ISSUES - THE COURT OF APPEAL ORDERS

537    The applicants complain about the first respondent's conduct in relation to costs orders in three proceedings in the Court of Appeal of Western Australia. I have described the issues and the uncontested facts above. The applicants say that the first respondent should not have signed any consent orders for the payment out of amounts paid into court as security for costs, and should not have consented to the fixing of the amount of costs in the two appeals brought against Clavey Legal. It appears that what the applicants say the first respondent should have done instead was to prevent the costs claims from proceeding to taxation, on the basis of the statutory stay in proceedings in respect of provable debts under s 58(3) of the Bankruptcy Act, and she should have subsequently dealt with the costs claims in the course of calling for and adjudicating on proofs of debt.

538    The applicants claim that in wrongly failing to take that second course, the first respondent caused the applicants to suffer losses equal to the amounts so paid out, because, they say, they had claims against the successful respondents in those proceedings which would have more than offset the costs liabilities.

539    The first respondent raised a number of points in answer to these claims; it is enough to describe two of them. The first is that s 58(3) of the Bankruptcy Act neither prevented the successful respondents from pursuing costs claims against the applicants nor prevented them from obtaining the payment out of the security for costs. Section 58(3) provides:

Except as provided by this Act, after a debtor has become a bankrupt, it is not competent for a creditor:

(a)    to enforce any remedy against the person or the property of the bankrupt in respect of a provable debt; or

(b)    except with the leave of the Court and on such terms as the Court thinks fit, to commence any legal proceeding in respect of a provable debt or take any fresh step in such a proceeding.

However s 58(5) provides that nothing in s 58 affects the right of a secured creditor to realise or otherwise deal with his or her security.

540    It is true that the applicants' liabilities for the costs of the appeals were provable debts: see Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 234 CLR 52 at [67]. But the appeals were not proceedings commenced by a creditor in respect of a provable debt; they were proceedings commenced by the Friggers. The reference in s 58(3)(b) of the Bankruptcy Act to taking any fresh step in such a proceeding is a reference to a fresh step in a proceeding commenced by a creditor: Sarkis v Moussa [2012] NSWCA 136; (2012) 262 FLR 359 at [54] (Beazley JA). So whatever steps the successful respondents took to have the court quantify their entitlements to costs were not stayed by s 58(3).

541    Further, the first respondent submitted that the successful respondents in each appeal had an equitable charge or lien over the amounts that had been paid in as security for costs. That is correct: see Pilmer v HIH Casualty & General Insurance Ltd (No 2) [2004] SASC 389; (2004) 90 SASR 465 at [70], [113(3)]; Duncan (as Trustee for the Bankrupt Estate of Garrett) v National Australia Bank Ltd [2006] SASC 239; (2006) 95 SASR 208 at [39]-[43], [55]-[56]; Technomin Australia Pty Ltd v Xstrata Nickel Australasia Operations Pty Ltd [No 4] [2014] WASC 405 at [23]. Pursuant to s 58(5) of the Bankruptcy Act, s 58(3) did not affect the rights of the successful respondents to realise or otherwise deal with their securities. So the applicants' contention that the costs liability or the security for costs should have been dealt with as provable debts in the bankruptcies is incorrect. The manner in which the parties and the Court of Appeal dealt with the costs orders and the security for costs was not 'incompetent' for the purposes of s 58.

542    Mrs Frigger submitted orally that 'Conway v Insolvency Trustee Service' was authority for the proposition that a party that has the benefit of an order for security for costs only becomes a secured creditor once costs are taxed or agreed (ts 946). But she gave no citation for that case. There are three decisions which have that name, one of the Administrative Appeals Tribunal and two of this court: Conway and Insolvency and Trustee Service Australia [2002] AATA 1343; (2002) 72 ALD 791; Conway v Insolvency & Trustee Service Australia [2003] FCA 321; and Conway v Insolvency & Trustee Service Australia [2003] FCA 943. It is impossible to extract that proposition from any of those decisions.

543    In any event, the true position appearing from the authorities cited above is that, while the party who has the benefit of an order for money to be paid into court is not entitled to payment out of the money until the claim is established, the party becomes a secured creditor with a charge or equitable lien before that time: see e.g. Pilmer at [70]; Duncan at [40].

544    The first respondent's second submission to be considered here was that there was no evidence of any loss suffered. I accept that. Even if the first respondent's conduct in relation to the costs orders was somehow a breach of statute or other duty actionable by the applicants, or gives rise to an entitlement to compensation under s 90-15(3)(e) of the Insolvency Practice Schedule, the applicants have provided no persuasive evidence that the conduct has caused them loss or damage. The claimed losses are equal to the amounts of security for costs that were paid out to the successful respondents. Order 25 r 7 of the Rules of the Supreme Court 1971 (WA) provides:

Where money has been paid into court as security for costs and the action has been finally disposed of, the amount of the security shall be paid out to the party for whose security it was furnished to the extent pro tanto that costs are due from the securer to such party, and the Principal Registrar shall pay out the security accordingly unless the Court has otherwise ordered, and the balance (if any) shall be refunded to the securer without the necessity for any special order.

545    This means that the successful respondents were entitled to have the money paid out of court unless the Friggers (or the first respondent acting as their trustee) established that the Court of Appeal should have ordered otherwise: see Technomin at [10]. The only matters which the applicants advance as a reason why any order otherwise should have been made are the offsetting claims they say they have or had against the successful respondents. But the onus of proving loss or damage in this case is on the applicants, and they have provided no evidence which might lead the court to conclude that there were, in fact, valuable offsetting claims, so that loss has been suffered here. In any event, this court is not the venue to run an argument that the Court of Appeal should have ordered otherwise.

546    It is not enough for the applicants to say, as they have, that the existence of the claims means that the money should not have been paid out of court until the claims were determined. It would not even be enough for them to establish that the Court of Appeal would have accepted the alleged offsetting claims as a sufficient basis to refrain from ordering payment out of the security for costs until the claims were determined. This would only have delayed the ultimate outcome.

547    Rather, on the case they advance, the applicants need to establish, as facts on the balance of probabilities, that the outcome would have been judgment in the offsetting claims in their favour in sums sufficient to offset the costs liabilities in their entirety (or at least reduce them below the amounts paid as security). Unless that outcome was achieved, orders paying the security out to the successful respondents were inevitable. The applicants would also have to establish that this outcome would have resulted in a surplus, or a larger surplus, payable to them personally after all the claims of creditors in their bankrupt estates were satisfied. They made no attempt to do so.

548    There is a further conceptual flaw in the applicants' case. Even if there were valuable offsetting claims, the effect of a set off would still be to discharge the costs liabilities in return for the valuable consideration (on the hypothesis) of a reduction in the amount of the applicants' claims. If the claims are sound and the successful respondents are solvent, then the consideration provided on the set off hypothesis would have the same value to the respondents as the money which was in fact paid out as security for costs. Comparing the two outcomes demonstrates no net loss to the applicants. It would only do so if the set off is, in fact, less valuable because the applicants would not have been able to recover 100 cents in the dollar from the other parties in the Court of Appeal proceedings, something of which there is no evidence.

549    The applicants are not entitled to the orders they seek declaring the consent orders and costs assessments in the Court of Appeal to be 'incompetent' pursuant to s 58(3)(b) of the Bankruptcy Act, or the consequential orders requiring the first respondent to pay compensation and to apply for the costs orders to be set aside. The claims for those orders will be dismissed.

THIRD GROUP OF ISSUES - THE REMOVAL OF TRUSTEE IN BANKRUPTCY

Principles

550    The principal relief the applicants seek in relation to this group of issues is an order under s 90-15(3)(b) of the Insolvency Practice Schedule that the first respondent cease to be the trustee of their bankrupt estates.

551    Section 90-15 of the Insolvency Practice Schedule is as follows:

90-15    Court may make orders in relation to estate administration

Court may make orders

(1)    The Court may make such orders as it thinks fit in relation to the administration of a regulated debtor's estate.

Orders on own initiative or on application

  (2)    The Court may exercise the power under subsection (1):

  (a)    on its own initiative, during proceedings before the Court; or

  (b)    on application under section 90-20.

Examples of orders that may be made

(3)    Without limiting subsection (1), those orders may include any one or more of the following:

(a)    an order determining any question arising in the administration of the estate;

(b)    an order that a person cease to be the trustee of the estate;

(c)    an order that another person be appointed as the trustee of the estate;

(d)    an order in relation to the costs of an action (including court action) taken by the trustee of the estate or another person in relation to the administration of the estate;

(e)    an order in relation to any loss that the estate has sustained because of a breach of duty by the trustee;

(f)    an order in relation to remuneration, including an order requiring a person to repay to the estate of a regulated debtor, or the creditors of a regulated debtor, remuneration paid to the person as trustee.

Matters that may be taken into account

(4)    Without limiting the matters which the Court may take into account when making orders, the Court may take into account:

(a)    whether the trustee has faithfully performed, or is faithfully performing, the trustee's duties; and

(b)    whether an action or failure to act by the trustee is in compliance with this Act and the Insolvency Practice Rules; and

(c)    whether an action or failure to act by the trustee is in compliance with an order of the Court; and

(d)    whether the regulated debtor's estate or any person has suffered, or is likely to suffer, loss or damage because of an action or failure to act by the trustee; and

(e)    the seriousness of the consequences of any action or failure to act by the trustee, including the effect of that action or failure to act on public confidence in registered trustees as a group.

Costs orders

(5)    Without limiting subsection (1), an order mentioned in paragraph (3)(d) in relation to the costs of an action may include an order that:

(a)    the trustee or another person is personally liable for some or all of those costs; and

(b)    the trustee or another person is not entitled to be reimbursed by the regulated debtor's estate or creditors in relation to some or all of those costs.

Orders to make good loss sustained because of a breach of duty

(6)    Without limiting subsection (1), an order mentioned in paragraph (3)(e) in relation to a loss may include an order that:

(a)    the trustee is personally liable to make good some or all of the loss; and

(b)    the trustee is not entitled to be reimbursed by the regulated debtor's estate or creditors in relation to the amount made good.

Section does not limit Court's powers

(7)    This section does not limit the Court's powers under any other provision of this Act, or under any other law.

552    In Borg v de Vries (Trustee), in the matter of the Bankrupt Estate of David Morton Bertram [2018] FCA 2116 at [21]-[33], White J reviewed the background to the introduction in February 2017 of this provision in the Insolvency Practice Schedules which became part of the Corporations Act and the Bankruptcy Act respectively. Relevant points that emerge from his Honour's helpful survey are as follows:

(1)    The statutory predecessor to the power to remove a trustee in bankruptcy found in s 90-15(3)(b) was former s 179(1) of the Bankruptcy Act. That section required a two stage approach: first, as to whether an inquiry into the conduct of the trustee was warranted and then, if so, whether after that inquiry the trustee should be removed from office or other orders made. But s 90-15 does not mandate any two stage approach, and the power to remove a trustee is not subject to conditions such as proof of error, misfeasance, negligence or other poor conduct: at [21]-[22], [24].

(1)    Under s 179(1), the court generally took the view that it should not interfere unduly with the day-to-day administration of a bankrupt's estate by a trustee. For example, it would not interfere with the trustee's commercial decisions unless it was shown that they were perverse or clearly wrong: at [23].

(2)    The introduction of the Insolvency Practice Schedules created common rules for personal and corporate insolvencies. One effect of the change is to align the provisions for removal of a trustee in bankruptcy more closely with those for the removal of a liquidator. So the authorities concerning the removal of liquidators found in previous s 503 of the Corporations Act and its predecessors are helpful in the exercise of the power of removal of a trustee in bankruptcy under90-15: at [25]-[26], [28].

(3)    Under previous503, it was necessary to 'show cause' why a liquidator should be removed. In substance, s 90-15 of the Insolvency Practice Schedule also contemplates removal on cause being shown: at [28]. While that requires some ground for removal to be established by evidence, it is not a narrow concept. As Austin J said in Domino Hire Pty Ltd v Pioneer Park Pty Ltd (in liq) [2003] NSWSC 496; (2003) 21 ACLC 1330 at [58] (quoted in Borg v de Vries at [31]):

It is open to the applicant for removal to point to any conduct or inactivity on the liquidator's part that provides a basis for the conclusion that he or she should be removed, ranging from moral turpitude, to bias or partiality, lack of independence, incompetence or other unfitness for office.

(4)    The authorities on liquidators indicate, however, that 'the power to remove and replace a liquidator was not confined to circumstances of demonstrated error or shortcomings by a liquidator. Instead the power was exercised by reference to the interests of the liquidation': at [28]. That includes the interests of everyone concerned in the liquidation, bearing in mind the purpose for which the liquidator was appointed: see [29]-[30].

(5)    At [33], White J concluded his survey of the background to s 90-15 as follows:

I conclude that the approach in the corporations cases to503 and its predecessors is apposite in relation to the removal and replacement of the trustee in bankruptcy under ss 90-15 and 90-20 of the Bankruptcy Schedule. The Court should exercise the power to remove and replace a trustee in bankruptcy in a manner which best advances the interests of the bankruptcy, having regard to the objects of the Bankruptcy Act. Having regard to1-1(2)(b) of the Bankruptcy Schedule, the proper interests of the creditors of the bankrupt will be an important consideration.

Section 1-1(2)(b) states one of the objects of the Insolvency Practice Schedule as being 'to regulate the administration of regulated debtors' estates to give greater control to creditors'.

553    A court should be cautious, however, in making a decision to remove a trustee in bankruptcy. In AMP Music Box Enterprises Ltd v Hoffman [2002] BCC 996, Neuberger J said in the context of the provision in England providing for the removal of a liquidator (at 1001):

It should not be seen to be easy to remove a liquidator merely because it can be shown that in one, or possibly more than one, respect his conduct has fallen short of ideal. So to hold would encourage applications under108(2) by creditors who have not had their preferred liquidator appointed, or who are for some other reason disgruntled.

This was adopted in Sands Contracting Pty Ltd v Foodcorp (VIC) Pty Ltd [2020] FCA 1274 at [81] (McKerracher J). The same considerations apply to the removal of a trustee in bankruptcy.

554    While the interests of the insolvency administration as a whole are the touchstone of any exercise of power under s 90-15, breaches of duty by the trustee will be relevant. Certainly, alleged breaches of duty are the focus of the application here. What, then, are the duties against which the trustee's conduct must be assessed?

555    A trustee in bankruptcy must act to the standard expected of an officer of the court, given that his or her acts or omissions are, in general, reviewable by the court. 'That is because the statutory office of a trustee in bankruptcy is a public one that reposes considerable statutory powers in the trustee to enable him or her to carry out the public duty to administer the bankrupt's estate according to the Act': Young v Thomson [2017] FCAFC 140; (2017) 253 FCR 191 at [115] (Siopis and Rares JJ).

556    Because the trustee is exercising a fiduciary power, he or she has a duty to do so honestly (i.e. in good faith), to act upon genuine consideration, and not to act irresponsibly, capriciously or wantonly. The trustee must exercise the relevant power with due consideration for the purpose for which it was conferred and not for some ulterior purpose. A professional trustee should be particularly careful to act strictly within the line of the trustee's duty: Young v Thomson at [110]-[111].

557    It is also helpful to set out the following long passage from Adsett v Berlouis (1992) 37 FCR 201 at 208-209, as it is Full Court authority (Northrop, Wilcox and Cooper JJ, who quoted with approval from a judgment of Smithers J), and it states very fully the standard of conduct which the law expects of a trustee in bankruptcy (most citations removed):

A trustee appointed in relation to a bankrupt becomes trustee of the bankrupt's estate. The trustee is bound to administer that estate in accordance with the Bankruptcy Act and Bankruptcy Rules. The trustee has a dual function: first, to administer the estate in the interests of the creditors and the bankrupt; secondly, to exercise, as a public duty and for the public welfare, certain powers given, and duties imposed, under the Act. The conduct of the trustee is subject to the supervision of the court and a trustee in bankruptcy has historically been regarded as an officer of the relevant court. A trustee in bankruptcy who acts for remuneration is under a duty of care greater than that of a gratuitous trustee. The trustee is required to bring reasonable skill to the performance of his or her duties.

A trustee under the general law must exercise judgment so as to save the estate unnecessary expenditure of money. A trustee in bankruptcy is in no different position. The discharge of a public duty imposed by the Act is to be performed conformably with the requirements of that duty, but also conformably with the trustee's obligation to administer the estate in such a manner as to maximise the return from estate assets, and thereby to maximise satisfaction of the creditors' claims and any possible surplus for the bankrupt. We adopt, as a correct statement of the duty of a trustee and the proper manner of its performance, the words of Smithers J in Mannigel v Aitken (1983) 77 FLR 406 at 408-409:

In the case of bankruptcy the trustee is in charge of the assets of the bankrupt and those assets are to be applied for the benefit of the creditors and if there be any surplus for the benefit of the bankrupt. It is clear that the minimum standard required of the trustee is that he shall handle the assets with a view to achieving the maximum return from the assets to satisfy the claims of the creditors and to provide the best surplus possible for the bankrupt. Obviously a great deal of discretion and judgment is required to be exercised by the trustee. It was said by Rogerson J in Re Ladyman (1981) 55 FLR 383 at 394-396 that the standard of conduct required of the trustee will ordinarily be the standard required of a professional man and perhaps higher. The learned judge referred to 'the high standard of conduct required of trustees'.

In Re Brogden; Billing v Brogden [1888] 38 Ch D 546 Lord Justice Fry said (at 571):

'A trustee undoubtedly has a discretion as to the mode and manner, and very often as to the time in which or at which, he shall carry his duty into effect. But his discretion is never an absolute one. It is always limited by - the dominant duty - the guiding duty of recovering, securing and duly applying the trust fund; and no Trustee can claim any right of discretion which does not agree with that paramount obligation.'

Where an order is sought that the trustee be removed and to make good the losses suffered by the estate, it must be established that the trustee has been guilty of a breach of duty to act 'diligently and prudently in regard to the business of the Trust'. See Riley J in Re Alafaci; Registrar in Bankruptcy v Hardwick (1976) 9 ALR 262 at 285.

According to Halsbury's Laws of England (3rd ed), Vol 38, p 967, a trustee must take all reasonable and proper measures to obtain possession of the trust property and to get in all debts and funds due to the trust estate, and to preserve it, and to secure it from loss. He must take reasonable precautions to see the property is not stolen or lost by default. The Trustee is bound to execute the trust with fidelity and reasonable diligence and ought to conduct its affairs in the same manner as an ordinary prudent man of business would conduct his own affairs. But beyond this he is not bound to adopt further precautions. It was said by their Honours Dixon CJ, McTiernan and Windeyer JJ in [Elder's Trustee and Executor Co Ltd v Higgins (1963) 113 CLR 426] that:

'We are not to judge what the trustee then did or failed to do by the light of later events… The duty of the trustee was to exercise due diligence, care and prudence in the conduct of the business, bearing in mind the need to preserve the capital of the estate… The argument that the trustee having, it was said, exercised a discretion, its conduct is now unchallengeable is sufficiently answered by a passage from the judgment of Fry LJ in Re Brogden … Whether or not one calls [the trustee's action] an exercise of discretion, the question remains was it the act of a prudent trustee.'

558    Other expressly stated objects of the Insolvency Practice Schedule are to ensure that any person registered as a trustee has an appropriate level of expertise and behaves ethically: s 1-1(1)(a) and (b). There is also a large number of specific duties imposed on trustees in bankruptcy by statute. They relevantly include:

    determining whether the estate includes property that can be realised to pay a dividend to creditors (Bankruptcy Act s 19(1)(b));

    taking appropriate steps to recover property for the benefit of the estate (Bankruptcy Act s 19(1)(f));

    administering the estate as efficiently as possible by avoiding unnecessary expense (Bankruptcy Act s 19(1)(j));

    exercising powers and performing functions in a commercially sound way (Bankruptcy Act s 19(1)(k));

    acting honestly and impartially in relation to each administration (Insolvency Practice Rules (Bankruptcy) 2016 (Cth) (Bankruptcy Practice Rules) r 42-10(1);

    not making or signing a document that the trustee knows, or ought reasonably to know, is false or misleading in a material particular (Bankruptcy Practice Rules r 42-10(2)); and

    taking care to ensure that all communications, including reports (whether issued personally or by delegation) are accurate and do not omit or obscure information required to be included or relevant to users of the communication (Bankruptcy Practice Rules r 42-15(2)).

559    It is also relevant in this proceeding that, under the Bankruptcy Practice Rules, the trustee must undertake preliminary inquiries and actions at the start of each administration, including:

    obtaining and reviewing the statement of affairs of the regulated debtor (Bankruptcy Practice Rules42-30(b));

    if necessary, interviewing the regulated debtor to clarify any matters in the statement of affairs (Bankruptcy Practice Rules42-30(c));

    identifying and making an assessment of realisable assets that could be expected to provide a return to creditors or contribute to the payment of the costs and fees of the administration (Bankruptcy Practice Rules42-30(d));

    determining the likelihood of whether the estate of the regulated debtor includes property that can be realised to pay a dividend to creditors (Bankruptcy Practice Rules42-30(f));

    if the trustee has a genuine reason for believing that the bankrupt may not have disclosed an interest in real or other registered property - conducting appropriate searches for such property (Bankruptcy Practice Rules42-30(g));

    if information so obtained shows that the bankrupt has not made full and true disclosure of his or her interest in property, making inquiries of third parties about the information (or if further inquiries are not made, explaining to the creditors why they were considered unnecessary) (Bankruptcy Practice Rules42-30(h)); and

    if the trustee considers that there may have been antecedent transactions, making inquiries of third parties to identify those transactions (Bankruptcy Practice Rules r 42-30(i)).

The course of the administration of the bankrupt estates

560    It will be necessary to turn below to consider each of the matters which, the applicants claim, warrant the removal of the first respondent as the trustee of their bankrupt estates, in light of these general principles and specific obligations. Before doing so, however, it will be helpful to give a brief account of what the evidence reveals about the course of the administration as a whole, in order to provide context to the individual allegations (I will refer to it as an administration in the singular, as neither party drew any relevant distinction between the two bankrupt estates). That will involve some repetition of details that have already been mentioned in preceding parts of this judgment.

561    The applicants became bankrupt on 20 July 2018. The Official Trustee was appointed as their trustee in bankruptcy (KAT 4 para 22).

562    On 25 July 2018 the Official Trustee sent a standard letter to Australian banks requesting a hold on any bank account in the names of the applicants with a balance of more than $5,000. This included letters to Bankwest and Bank of Queensland (KAT 4 paras 35-36, pp 143, 146).

563    The applicants each gave a statement of affairs dated 25 July 2018 to the Official Trustee (KAT 4 para 33, pp 101, 122). These disclosed two legal actions with Mr Kitay and a separate legal action with other persons in this court, being proceeding WAD 607 of 2015 (WAD 607) (KAT 4 pp 104, 125). A balance attributed to the FSF was disclosed as $2,762,864 in Mr Frigger's statement of affairs and '$3,029,40' (a digit at the end appears to be missing) in Mrs Frigger's statement of affairs (KAT 4 pp 110, 131). There was no separate disclosure of any bank accounts or any real property other than the applicants' home. Debts totalling nearly $6 million were said to be owing to the applicants by Mr Kitay and other persons (KAT 4 pp 112, 133). $2,450,050 was said to be owing to HAF, secured by a mortgage over the home (KAT 4 pp 114, 135). Unsecured creditors of $272,598 were disclosed (KAT 4 pp 115, 136), who seemed to have arisen from various legal actions.

564    It appears that the letters to the banks resulted in freezes being placed on BW1 and BOQ1. Correspondence and telephone calls between Mrs Frigger and the Official Trustee ensued in which Mrs Frigger sought that the accounts be unfrozen on the basis that they were assets of the FSF (KAT 4 pp 149-177). On 27 July 2018 the Official Trustee asked the banks to remove the freezes on those accounts but on 30 July 2018 it reversed that request in relation to BOQ1 and asked that the freeze on that account stay in place (KAT 4 pp 180, 182, 190). From 31 July until the replacement of the Official Trustee at the end of August 2018 there was further correspondence with Mrs Frigger about the freeze on BOQ1 (KAT 4 pp 195-197). It will be necessary to consider this aspect of the matter in more detail below.

565    Mrs Trenfield and Mr Allen of FTI Consulting replaced the Official Trustee on 31 August 2018 (KAT 4 paras 3-4). This occurred as a result of a resolution of creditors (KAT 1 p 27). Mrs Frigger alleged in closing submissions that this happened on Mr Kitay's recommendation (ts 884) but she could refer to no evidence establishing that, and the minutes of the meeting show that the proposal that Mrs Trenfield and Mr Allen be appointed trustees in bankruptcy was put forward by an officer representing the Official Trustee (KAT 1 p 30). Mrs Trenfield did have discussions with representatives of the Official Trustee and with Mr Kitay shortly before her appointment (KAT 4 para 31).

566    The Official Trustee gave a number of documents concerning the administration to the first respondent. These included the statements of affairs and documents about BW1, BOQ1 and BOQ2 (KAT 4 paras 33-34).

567    According to Mrs Trenfield, her initial investigations were limited because there was an application on foot to annul the bankruptcies (KAT 4 para 59). The Federal Circuit Court dismissed that on 25 September 2018 (KAT 4 para 61). Nevertheless, in August and September 2018 Mrs Trenfield did engage in correspondence with Bankwest and with the Bank of Queensland, seeking information about the relevant accounts (KAT 4 paras 74-80). She did not initially investigate in relation to any shares as none had been listed in the statements of affairs (KAT 4 para 97).

568    On 21 September 2018, the first respondent lodged caveats over the Residential Properties (KAT 4 p 295). She also lodged a caveat over the applicants' home in Applecross, because of information which, she said, supported an inference that the mortgage to HAF that was granted over that property may have been granted to put it out of reach of creditors (KAT 4 paras 93-94).

569    On 12 October 2018 the first respondent issued a report to creditors (KAT 4 p 230) saying that, having obtained some comfort that the bankruptcies would not be annulled, she had recommenced her investigations into the bankrupts' affairs (KAT 4 p 232). Mrs Frigger sent her an email on 15 October 2018 saying that she would rely on that statement for the purposes of a claim for damages under the Insolvency Practice Schedule (KAT 4 p 242).

570    On 16 October 2018, HAF sent a letter to the first respondent making demand for losses said to be consequent on the freeze on BOQ1 for a 'total daily loss' of $377.80 (ACTF 1 p 131).

571    In early November 2018 the applicants applied for an extension of time in which to appeal against the sequestration orders. The first respondent says that this led her to temporarily put her investigations on hold because she did not consider that it would be in the interests of creditors to incur costs 'in circumstances where there was a possibility that the bankruptcies may not proceed' (KAT 4 paras 98-99).

572    In December 2018 and January 2019, solicitors acting on behalf of the applicants engaged in correspondence with the first respondent demanding that BOQ1 be unfrozen (ACTF 1 pp 123-127, 129-130).

573    The applicants commenced this proceeding on 12 March 2019. According to Mrs Trenfield, she considered the material filed in support (i.e. affidavit ACTF 1) but thought it not sufficient for her to reach a properly informed view that the assets claimed to be part of the FSF were in fact trust assets (KAT 4 para 109). The first respondent subsequently conducted a range of investigations into assets claimed to be assets of the FSF. It is not necessary for the purposes of this part of the judgment to detail all of them. They are described elsewhere in the judgment where relevant, for example the tracing exercise which resulted in the diagram annexed at Schedule 2 to these reasons.

574    The court accepted Mr Allen's resignation (consequent on his resignation from FTI) on 13 March 2020 (KAT 4 paras 20-21).

The grounds for seeking the removal of the first respondent as trustee in bankruptcy

575    Against that background, the basis on which the applicants seek the removal of the first respondent as their trustee in bankruptcy can now be described. That is not a straightforward task, though, because this matter did not proceed on pleadings, and Mrs Frigger's numerous affidavits contained a large number of complaints against the first respondent. However the trial proceeded on the basis that the applicants would be confined to the matters said to justify the first respondent's removal that were set out in their written opening submissions. This was raised by the court at the commencement of the trial and in closing submissions.

576    Schedule 3 to the applicants' opening written submissions lists the allegations in mostly chronological order and also has at the end a group of particulars which are cross-referenced to paragraphs in the body of the submissions. It is convenient to group all the allegations as follows. Save for the items that are italicised, the wording in each item under the numbered headings is the applicants' wording in Schedule 3, and the months given are attributed to the allegation in that schedule. The italicised items are my summary of the further allegations that the applicants make by cross-reference to paragraphs in the body of the submission. There is also an additional item (8) for reasons explained under that item. All the numbered main headings are my own.

(1)    Failure to obtain or review information said to be relevant to the question of the capacity in which assets are owned:

(a)    Failure to follow up BOQ for HSBC bank cheque (no date provided in Schedule 3).

(b)    Sends follow up letter to BOQ only after receiving notice of demand for loss from applicants (17 October 2018).

(c)    Failure to check BWA [Bankwest] bank statements (September 2018).

(2)    Failure to take steps required in the administration:

(a)    Fails to prove alleged creditors (31 August 2018 until present).

(b)    Fails to offset applicants['] claims against alleged creditors (31 August 2018 until present).

(3)    Inhibiting the applicants' dealing with assets:

(a)    Freezes BW1 account (September 2019).

(b)    Fails to acknowledge that BOQ1 and BOQ2 are FSF assets paras 12, 13, 15-16 (31 August 2018 until present).

(c)    Freezes [Main Portfolio] on the grounds listed in April 2019 [sic] above (September 2019).

(d)    Notifies CommSec that the securities in the Main Portfolio were assets divisible among the creditors of the bankrupt estates and making related claims to the Australian Financial Complaints Authority paras 26, 27, 28, 29, 30, 31, 32 (31 August 2018 until present).

(e)    Informs AFSA that the applicants failed to inform Commsec that they were acting on behalf of FSF and were trustees of FSF in 1998 in circumstances where: (a) the applicants were not trustees; (b) could not be trustees (August 2019).

(f)    Informs AFSA that the applicants had acted suspiciously in the administration of their estates and had hampered the respondent's administration (August 2019)

(g)    Freezes $6,500,000 of assets held by the applicants in their SMSF, without proving any alleged creditors, causing the applicants loss of more than $2,500,000 in lost earnings and capital gains (31 August 2018 until present).

(h)    Places a caveat on the Residential Properties paras 38, 39, 40, 43 (31 August 2018 until present).

(4)    Correspondence from first respondent to third parties of which the applicants complain:

(a)    Send a letter to ATO attaching five documents, in an attempt to persuade the regulator the FSF should be declared an unregulated super fund (April 2019).

(b)    Sends an email on ATO business portal (which is for the exclusive use of FTI Consulting business with the ATO) to ATO attaching five documents, in an attempt to persuade the regulator the FSF should be declared an unregulated super fund (October 2019).

(c)    Sends an email on ATO website (which website is for the exclusive use of persons connected with SMSFs reporting unrectified contraventions) to ATO attaching five documents, in an attempt to persuade the regulator the FSF should be declared an unregulated super fund. On 15 November 2019 the ATO informed the respondent she has no legal right to obtain information about the FSF (4 November 2019).

(d)    Sends emails to share registry staff, disclosing the applicants['] tax file numbers (April 2020).

(e)    Sends emails to share registry staff, informing hundreds of people the applicants have attempted to 'circumvent' the [B]ankruptcy [A]ct (April 2020).

(5)    Giving false evidence:

(a)    States on oath in this action she does not have bank statements for cheques drawn on BW[1] and paid into HSBC (June 2019).

(b)    States on oath in this action she does not have copy of HSBC bank cheque paid into BOQ3 in March 2018 (June 2019).

(c)    States on oath she is unable to trace the BOQ funds to assets held by the FSF when the tracing exercise had already been completed by [Official Trustee] in August 2018 (May 2020).

(6)    Signature of costs orders:

(a)    Signs consent orders for indemnity costs and dismissal against the applicants in WAD 607/2015, without becoming a party (September 2018).

(b)    Signs consent orders in CACV45/2016 without offsetting applicants claim against Kitay; applicants lose $25,000 (October 2018). See also paras 51 and 57 of applicants' written opening submissions.

(c)    Signs consent orders in CACV56 and 62/2015 without: (a) Becoming a party in the action; (b) without [sic] offsetting applicants claim against Kitay; and (c) applicants lose $62,500 (October 2018). See also para 58 of applicants' written opening submissions.

(7)    Collusion with Mr Kitay:

(a)    Receives letter from Kitay['s] lawyer; accepts offer of pro bono assistance from Stephenson (October 2018).

(8)    Failure to interview the applicants:

I will also consider one further allegation against the first respondent, as it was articulated in an affidavit (ACTF 7 para 7(a)), made again in oral opening submissions (ts 170) and was the subject of cross-examination and closing submissions. That is, that the first respondent should have interviewed the applicants soon after her appointment as their trustee in bankruptcy on 31 August 2018.

577    I will now proceed to consider each of these allegations. For some, the issues have already been resolved by the findings made and conclusions reached in preceding sections of this judgment. For others, it will be necessary to consider evidence which has not yet been addressed.

578    The task of assessing that evidence has been made more difficult than it might have been by the fact that it appears that the applicants did not obtain access to the transcript of the trial. So they have only described what they say is relevant oral evidence, without saying where it can be found. Locating it in some 1,000 pages of transcript, about 180 pages of which was the oral evidence of Mrs Trenfield under cross-examination, has not always been easy. And there were over 3,000 pages of affidavit evidence relied on by both parties, which have also not been easy to navigate.

579    It is not the role of the court to comb through all that material in order to try to work out for itself which of it is relevant to each of the above allegations. If potentially relevant evidence has not been referred to in the closing submissions of the applicants (or, for that matter, in any submission of the first respondent) in a way that enables the evidence relied on to be readily identified, then the court has not had regard to it.

580    However it does not follow that every piece of evidence that the applicants have referred to in closing submissions is relevant. The applicants' closing included a written aide memoire and responsive submissions they were given leave to file. The aide memoire, in particular, contained a Table 3 which was a collection of wide ranging criticisms of Mrs Trenfield's evidence (broken into 34 items), for the most part conducted without regard to the grounds for her removal articulated in Schedule 3. Where those criticisms can be discerned to be relevant to one or more of those grounds, I have had regard to them. But other than that, I have not considered it appropriate to address every one of those criticisms where they have not been linked to the basis on which the applicants opened their case. That is especially so where, as I have said, the lack of transcript references often made the task of identifying the evidence referred to difficult or impossible.

581    In considering each of the allegations separately, the court must not lose sight of the fact that the question is whether, having regard to the circumstances as a whole, the removal of the trustee would be for the general advantage of persons interested in the bankruptcy: see Re Biposo Pty Ltd; Condon v Rodgers (1995) 17 ACSR 730 at 734. It will be necessary to return to that broad question at the end in light of the findings made.

(1)    Failure to obtain or review information said to be relevant to the question of the capacity in which assets are owned

582    These alleged failures are said to be breaches of s 19 of the Bankruptcy Act. In fact, s 19 contains a number of duties. The applicants do not say which ones are breached here. I have listed the potentially relevant ones at [558] above. It would appear that s 19(1)(b), requiring the trustee in bankruptcy to determine whether the estate includes property that can be realised to pay a dividend to creditors, is potentially relevant.

583    But the applicants do not need to establish a breach of a specific statutory obligation in order to support their application for the removal of the first respondent as trustee in bankruptcy. The duties of the trustee are broader, as set out above. It may be accepted that, generally, if it becomes known to the trustee in bankruptcy that information is available which will shed light on whether an asset is divisible among creditors, the trustee should take reasonable steps to obtain that information within a reasonable time. Other than temporary circumstances such as a possible appeal against the sequestration order, the first respondent does not rely on any extenuating circumstance which might qualify that general proposition, such as a lack of funding.

(a)    Failure to follow up BOQ for HSBC bank cheque (no date provided in Schedule 3)

584    The only evidentiary reference in submissions to this allegation is an item in Table 3 covering evidence which the first respondent gave in cross-examination, which the applicants say involved obfuscation. I have referred to this above when assessing the credibility of Mrs Trenfield as a witness, as an example of when she was unforthcoming in the witness box (see [90]ff above). The applicants appear to consider it important because this cheque was a link in the chain of transfers which joined BOQ1 to BW1.

585    There appears to be a complaint about this issue and matters surrounding it in one of Mrs Frigger's earlier affidavits (ACTF 4 para 9). But the complaint was largely based on matters said to be contained in an affidavit of Mrs Trenfield sworn 28 June 2019, which was not in evidence (ts 99). It is therefore not possible to understand the basis of that particular complaint.

586    On 16 October 2018 the first respondent sent an email to Bank of Queensland asking questions about accounts with that bank (KAT 4 pp 277-278). One of those questions concerned the source of a payment of $2,501,229.70 into BOQ3. The bank responded in a letter dated 17 October 2018 (ACTF 3 att 1) saying that the amount was comprised of payments including '$1,995,443.08 on 01/03/2018 we have been unable to locate the deposit slip associated with his transaction, we will continue to attempt to locate. Our system indicates this was a Cash & Cheque Deposit'. It appears that in fact it was a deposit of a cheque from an HSBC account (see Schedule 2 to these reasons, notation '$1,995,443.08 01/03/2018'). In the same letter the bank also responded to a request for documentary evidence of the deposit by saying 'We are unable to supply copy of cheque due to privacy reasons'. However it is not clear whether this refers to the HSBC cheque, or a different cheque from a Bankwest account which had been deposited into BOQ3, or both cheques.

587    In cross-examination, Mrs Frigger put to Mrs Trenfield that she could have received 'that information', that is, a copy of the HSBC bank cheque, in October 2018 (ts 560). Mrs Trenfield said that FTI were advised by Bank of Queensland that they were not able to trace that amount, and that FTI did not receive a copy of that cheque until 17 or 18 July 2019. Mrs Frigger returned to the subject in her cross-examination of Mrs Trenfield the following day (ts 588-591). The tenor of her questions was to suggest that the bank's privacy concerns could have been overcome if the first respondent had obtained a waiver from Mrs Frigger (the named account holder for BOQ3) and that this could have been done before July 2019. Mrs Trenfield pointed out that in the covering email for the letter of 17 October 2018 the bank said that they had been unable to locate the source of one of the deposits (KAT 4 p 277); in the context of the letter this must have been referring to what turned out later to be the HSBC cheque for $1,995,443.08. Mrs Frigger referred to a letter from her to the Bank of Queensland dated 10 July 2019, asking for a copy of the cheque (ACTF 3 att 5). It is not clear how, exactly, that induced the bank to send a copy of the cheque to the first respondent, but from the proximity of the dates it can be inferred that it did.

588    This evidence does not establish any shortcoming in the first respondent's conduct as trustee in bankruptcy. It does appear that the HSBC bank cheque was ultimately provided to the first respondent after Mrs Frigger addressed the privacy concern. But as at October 2018, the bank had told the first respondent that it could not locate the source of that deposit and would keep trying to locate the deposit slip. It was reasonable in those circumstances for the first respondent not to seek a privacy waiver from Mrs Frigger, since the bank has said that the cheque or deposit record had not been located anyway.

589    It follows that I do not accept the applicants' characterisation of Mrs Trenfield's evidence on the point in cross-examination as obfuscatory. There is no evidence that the first respondent was ever told that the cheque had been located until the copy of the cheque was sent to her in July 2019, for reasons that remain unclear. To say that the she should have chased the bank for a cheque which it said it could not find would be either a counsel of perfection or a counsel of futility, and there is no evidence that it would have made any difference as to when a copy of the cheque became available.

590    Also, as I have indicated, the implicit basis of the applicants' apparent view that obtaining the HSBC cheque was important is that it was a link in the tracing of funds from BW1 to BOQ1, which would establish that the latter account was an FSF asset. For the reasons stated in the sections of this judgment dealing with BOQ1 and BW1, the applicants have not made that basis out.

(b)    Sends follow up letter to BOQ only after receiving notice of demand for loss from applicants (17 October 2018)

591    The applicants did not expand on this allegation in either closing submissions or Table 3.

592    The 'notice of demand for loss' would appear to be a letter from HAF dated 16 October 2018 which is mentioned above (ACTF 1 p 131). The identity of the 'follow up letter' from the first respondent to Bank of Queensland is less clear. As has been mentioned, the first respondent did send an email to the bank on the same day asking detailed questions about accounts in the names of the applicants that were held with the bank. It is not clear that this was prompted by HAF's demand of 16 October 2018. Nor is it clear why the timing of this query is said to be a breach of duty or to reveal any other shortcoming in the first respondent's administration of the estates. The first respondent sent standard letters to all major Australian banks after her appointment at the end of August 2018 and had correspondence with Bank of Queensland about BOQ1 in September. The correspondence in October 2018 seems just to have been a continuation of that process.

593    This complaint has not been properly articulated and has not been made out.

(c)    Failure to check BWA [Bankwest] bank statements (September 2018)

594    This complaint also was not developed further in closing submissions or in Table 3. It is unclear what it is referring to. It is dated September 2018 in Schedule 3, so it may be a reference to a complaint made in the applicants' written opening submissions (para 16(i)) that from September 2018 the first respondent had Bankwest statements permitting her to trace cheque withdrawals from BW1 to other relevant accounts.

595    What is said to follow from that is not made clear. But the submission, and many of the applicants' complaints, seem to be premised on the idea that once the tracing exercise is completed, it becomes obvious that BOQ1 is an FSF asset, so that the funds should be immediately given back to the control of the applicants as trustees. The implication appears to be that it was negligent, or worse, for the first respondent not to complete the tracing exercise as soon as she could, including by reference to the statements for BW1.

596    But as Schedule 2 shows, the tracing exercise was far from straightforward. It was bound to take time to complete it and to make sure that it was substantiated by statements for all the relevant accounts. The first respondent explained in affidavit KAT 4 that she did not do further work on the statements when she received them in September 2018 because at that time, the applicants were seeking to have the sequestration order set aside (para 77). The first respondent appears to have developed an early version of Schedule 2 by August 2019 (KAT 4 para 150). And, more fundamentally, as the above reasons demonstrate, even when the exercise was completed, that did not compel the conclusion that BOQ1 is an FSF asset.

597    This poorly articulated complaint has not been made out.

(2)    Failure to take steps required in the administration

(a)    Fails to prove alleged creditors (31 August 2018 until present)

598    According to Table 3 (item 28), the applicants' complaint here was that, while in her main affidavit (KAT 4 paras 214-215) Mrs Trenfield deposed only to 'her state of mind of potential creditor claims … she is not willing to quantify them at this point in time'.

599    The applicants say that Mrs Trenfield says she had received notifications of creditor claims, but they were not fully quantified and that Mrs Trenfield had failed to adduce supporting evidence. According to the applicants, the first respondent has admitted that there is no proof of debt by Mr Kitay, the liquidator of CAT. They also say that the Official Trustee had adjudicated the value of the creditors at $430,000 at a creditors' meeting, so that the first respondent was failing to act commercially by freezing '$7,700,000 of assets'.

600    The figure of $430,000 seems to be derived from the minutes of a meeting of creditors of the bankrupt estates held on 31 August 2018 (KAT 1 p 28). That was the meeting at which creditors voted to replace the Official Trustee with Mrs Trenfield and Mr Allen. The minutes record creditors which appear to have put proxies or powers of attorney in at individual values given for each creditor, which add up to $431,161.06. However, the minutes record that the amounts are 'Accepted value for voting rights only'. It is only a record of the amounts, admitted for voting purposes, of creditors who chose to attend the meeting in person or by proxy. It is not a comprehensive adjudication of the claims of all creditors. Amounts accepted for purposes of voting only at an early stage in the administration cannot be given weight as any sort of firm adjudication by the trustee in bankruptcy of the final admitted amount of the creditors' actual claims. Those amounts have plainly been superseded by subsequent proofs or notifications to Mrs Trenfield. I put no weight on the figure of '$430,000'.

601    The evidence that Mrs Trenfield gave about creditors of the estates (KAT 4 paras 213-216) was to the effect that there were some $3.24 million of unsecured creditor claims (excluding HAF's claim for $2,450,050, which is by a party associated with the applicants and is claimed to be secured). That figure emerged from a 'current creditors' list maintained for the bankrupt estates' and proofs of debt received from creditors. Mr Kitay was by far the largest creditor, as he was claiming approximately $2.65 million. But Mrs Trenfield said that she expected actual creditor claims to be much greater than those amounts, because several creditors had advised during telephone calls that they had not yet quantified their claims and did not wish to incur time and costs in doing so until it is known whether there is likely to be a dividend.

602    The criticism the applicants make (if that is what it is) that Mrs Trenfield is only referring to her state of mind in her affidavit KAT 4 is not entirely fair. In fact, she was limited to relying on certain paragraphs of the affidavit as evidence of her state of mind after an evidentiary objection by the applicants to those paragraphs.

603    But nothing turns on that. It is true that the first respondent did not adduce supporting evidence as to the creditor claims. But there is no reason to think that her evidence that persons claiming to be creditors have notified her of claims in those amounts was fabricated.

604    The applicants' real complaint seems to be that the first respondent should have investigated and adjudicated creditor claims, along with the applicants' offsetting claims, and that, if she had, she would have concluded that there were no net claims, so she (or a trustee in bankruptcy acting 'commercially') would not have frozen any of the assets of the applicants or the FSF. In closing Mrs Frigger submitted the Official Trustee only identified creditors of $430,000 and when the claims which the applicants make against various creditors are set off, there are 'nil creditors'. She also submitted that in December 2018 solicitors acting for the FSF suggested that some money could be put aside in respect of possible creditor claims and the parties could negotiate a settlement (ts 238-239).

605    Mrs Trenfield's evidence in cross-examination was that adjudicating on proofs had not become necessary (ts 662). She said that Mr Kitay's claim was a 'notification' which may have been an 'informal proof of debt' but she could not recall. She then said she did not believe that there was a proof of debt, but 'I believe that he [has] notified of that claim' (ts 662).

606    Mrs Trenfield explained that all the creditor claims were estimates because the likelihood of a dividend was unknown (ts 662). She said she had not investigated Mr Kitay's claim, but 'I know that there is a claimed counterclaim and an offset to what Mr Kitay is claiming and that will be considered closely if there is a point in time that there is an adjudication' (ts 664). She said she would have to adjudicate on those claims when formal claims are lodged and it was her usual practice to do that when there is a likelihood of a dividend (ts 664). Her evidence was that her usual practice was that she did not incur costs in formally calling for proofs of debt and adjudicating on them until there are funds in the bankrupt estates with which to pay a dividend (KAT 4 para 216). The applicants' counterclaims (for example, against Clavey Legal) would be 'fully considered at the time [of] full adjudication of claims' (ts 667).

607    Mrs Trenfield's evidence on this point accords with common sense, and the cross-examination did not undermine it. It is elementary that an insolvency administration is unlikely to expend substantial resources in investigating and adjudicating creditor claims if there are no assets with which to pay any dividend to creditors. That would be a waste of resources. So the first steps are likely to be to identify and secure assets and then to value them and otherwise assess how likely they are to be realised.

608    After all, there is an obvious time imperative for investigating assets and, if necessary, preventing their dissipation ('freezing' them) before investigating creditor claims. If an asset is not identified and steps are not take to secure it as soon as practicable, it may be lost forever. Creditors' claims, in contrast, will not be lost if they are not adjudicated right away. And adjudicating them may take some time, by which point the assets may be gone. The applicants' submission that creditors' claims should be adjudicated and then assets frozen reverses the usual and sensible order of events.

609    As for the solicitors' correspondence from December 2018, this refers to letters passing between the first respondent and Morgan Alteruthemeyer Legal Group (MALG), acting for HAF as trustee of the FSF. By letter dated 12 December 2018, MALG sought release of the funds in BOQ1 (ACTF 1 p 123). On 14 December 2018 the first respondent replied saying that certain questions she had asked the applicants remained unanswered, and that because of their 'ongoing efforts to appeal the sequestration of their estate', she had received legal advice to minimise all work until the appeal is heard (ACTF 1 pp 124-125). MALG responded on 14 January 2019, disputing the first respondents' need for the information requested and asserting that 'the bankruptcy concerns a sum of $61,000.42 and you have frozen $2.8 million in an account when you have no evidence that it is anything other than Fund assets' (ACTF 1 p 127). The letter suggested that a commercial resolution to the problem may include 'the isolation of a sum representing your potential fees and the bankruptcy sum to be held in trust while releasing the balance to our client' (ACTF 1 p 127). On 18 January 2019 the first respondent replied with a letter saying that the position regarding the advice she had received to minimise legal work pending the result of the appeal remained unchanged (ACTF 1 p 129). But the letter also said that there was insufficient evidence that BOQ1 was an asset of the FSF, and asked why MALG said that the bankruptcy concerns a sum limited to $61,000.42. The first respondent noted that the statements of affairs included creditor claims of $272,598 and that the first respondent was 'aware of unsecured creditor claims totalling $499,313 with a number of creditors already expressing their intention to submit further claims should recoveries be made'.

610    There is no basis in the evidence to find that this last view expressed by the first respondent was other than genuinely held at the time, nor that it was not reasonably based. To her knowledge, creditor claims notified have ultimately exceeded the $2.8 million in BOQ1 which was the subject of the correspondence with MALG. There is no evidence of any reply to the first respondent's letter from MALG providing the explanation sought, or from the applicants or HAF.

611    In my view the suggestion from MALG was not a concrete proposal for the resolution of the dispute between HAF and the first respondent on which the first respondent could have, or should have, acted. It was a suggestion premised on the contention that the bankruptcy only involved $61,000.42 so, as a commercial proposal it was hardly compelling. While that figure was evidently a reference to the debt on which the bankruptcy petition was based (see Ex 41, para 2), it does not take into account the likelihood of other creditor claims; claims which have, in fact, emerged. The first respondent replied to the suggestion asking about the basis of the contention that the bankruptcy was limited to $61,000.42 and pointing out the likelihood of other creditor claims. That did not foreclose further negotiation.

612    The applicants have not established that the first respondent has acted other than reasonably in taking no steps to investigate and adjudicate on creditor claims at this point in the administration, or in her response to MALG's suggestion in the letter of 14 January 2019. This complaint is not made out.

(b)    Fails to offset applicants['] claims against alleged creditors (31 August 2018 until present)

613    Mrs Frigger submitted in closing that even if the court were to find that BOQ1, BOQ2 and the Main Portfolio were not assets of the FSF, the applicants would still be able to maintain their claim for damages from the first respondent consequent on her freezing of those assets. That is said to be because the Official Trustee only identified creditors of $431,000 and when the claims which the applicants make against various creditors are set off, there are 'nil creditors'. I have already explained why I put no weight on that figure. But in any event, there is no basis in the evidence to conclude that the alleged offsetting claims on which the applicants rely are well founded. As I have already noted, the existence of a claim in another proceeding does not establish that the claim has any merit. There is no evidence that begins to discharge the applicants' burden of proof in that regard.

614    The applicants have not made out this complaint. It follows that, since I have decided that they have not established that BOQ1, BOQ2 or the securities in the Main Portfolio are assets of the FSF, they have no good claim against the first respondent for any losses that may have been occasioned by the 'freezing' of those assets.

(3)    Inhibiting the applicants' dealings with assets

(a)    Freezes BW1 account (September 2019)

615    The applicants did not develop this claim in any submissions, including their Table 3. Presumably their complaint is that the account is an asset of the FSF, and so not divisible among creditors of the bankrupt estate, and so should not have been 'frozen'.

616    It will be recalled that in the section of this judgment concerning the ownership status of the disputed assets, I said it was not possible to make a finding in a binary way as to whether BW1 was or was not an asset of the FSF, and it was not necessary to do so because the applicants sought no declaration on the subject. For two reasons, it is not necessary to make any such finding for the purposes of this part of the judgment either.

617    First, there is no evidence that the first respondent ever did 'freeze' BW1. It appears from Schedule 3 that this is said to have occurred in September 2019. But it is entirely unclear to what the applicants are referring. On 25 July 2018, the Official Trustee originally wrote to Bankwest, after becoming the applicants' trustee in bankruptcy, requesting a restriction on the withdrawal of funds from any account with a cash balance of $5,000 or greater. (KAT 4 p 143). But after representations and complaints from Mrs Frigger, the Official Trustee wrote to the bank on 27 July 2018 requesting that it remove the stop for the account (KAT 4 p 180).

618    It does not appear that the first respondent took any step after her appointment to restore that stop. There was correspondence between Bankwest and the first respondent in September 2019 as part of the first respondent's investigations, but no freeze was requested in that correspondence nor was any freeze implemented. Indeed, Mrs Frigger cross-examined Mrs Trenfield as to why the account had not been frozen and Mrs Trenfield explained it was because, by the time she was appointed, the balance was under $5,000 (ts 580-581).

619    Second, even if there had been any freeze on BW1, such a freeze would have been appropriate. I have explained how the account seems to have been used as the source and destination of various funds which may or may not have been FSF funds. For example, it appears to have been the destination of dividends and sale proceeds for securities in the Main Portfolio, which the applicants have not established were FSF assets. So it would have been reasonable for the respondent to have sought a stop on the account until the question of how much of the money in the account was FSF funds, and how much was not, could be determined.

620    It is appropriate to mention at this point that at item 12 of Table 3, the applicants say that at the trial I asked Mrs Trenfield about four transactions shown on a BW1 bank statement which appeared to relate to the BP Business, and asked her why she had not asked the applicants about those transactions, and Mrs Trenfield said that she did not accept that it was her job to do so. But while I did ask that question (ts 574), I asked it in order to clarify a line of questioning Mrs Frigger had been trying to run in cross-examination. It did not reflect any suggestion on my part that the first respondent should have investigated the transactions.

621    Also at item 12 of Table 3, the applicants say that when it was pointed out to Mrs Trenfield that the Official Trustee had unfrozen BW1 'because determined [sic] it was an FSF asset', she said that the decision was based on a bank statement that had been falsely altered to refer to the FSF. Table 3 appears to say that this is false evidence, because the relevant copy of the statement for BW1, in an affidavit which an officer of the Official Trustee, Ty Maher, swore in Federal Circuit Court proceedings, does not refer to the FSF. I will consider this allegation, on the basis that it is potentially relevant to Mrs Trenfield's credibility.

622    However, a full examination of the relevant passages from the transcript shows that the applicants' submission does not establish that Mrs Trenfield gave false evidence. The subject came up when Mrs Trenfield said in cross-examination that she believed there were 'a number of documents which do not portray what is accurate or true' (ts 532). By that she evidently meant documents supplied by the applicants. Mrs Frigger then asked her to specify which documents she believed did not provide an accurate and true picture of the claims the applicants made in the proceeding. Mrs Trenfield mentioned the statement for St George account STG1, which I have found that Mrs Frigger deliberately altered. She then said that a bank statement for BW1 had also been altered.

623    Mrs Frigger asked her which Bankwest statement had been altered. Mrs Trenfield replied that she believed that was within the Federal Circuit Court affidavit of Mr Maher which has been mentioned in these reasons. But then, in response to the next question, Mrs Trenfield corrected herself, saying that 'I know that there's a bank statement - may actually not be - it might actually be in the applicant's affidavit - need to - but it is those abnormalities that' (t533). The court adjourned for lunch at that point and after the luncheon adjournment Mrs Trenfield said that the bank statement she referred to was in Mrs Frigger's affidavit ACTF 1 p 112. That is the bank statement I refer to at [223] above. I have not found that the statement was altered, as that was not put to Mrs Frigger in cross-examination. But nor have I found that it was not altered.

624    None of this reveals that Mrs Trenfield gave false evidence. She initially, and tentatively working from memory, identified the potentially altered statement as being in Mr Maher's affidavit. But she immediately corrected that, and confirmed after the adjournment that she was referring to a bank statement in Mrs Frigger's first affidavit which is indeed different to numerous other bank statements for BW1.

625    The applicants have not made out these complaints.

(b)    Fails to acknowledge that BOQ1 and BOQ2 are FSF assets paras 12, 13, 15-16 (31 August 2018 until present)

626    I have concluded that the applicants have not established that BOQ1 and BOQ2 were FSF assets. Those accounts are in the names of Mr Frigger (BOQ1) and Mrs Frigger (BOQ2) respectively. Since the applicants have not discharged their practical and legal onus of establishing that the accounts are held in any trust capacity, the first respondent is entitled to treat those accounts as assets divisible among the creditors of the bankrupt estates. It follows that the first respondent was under no obligation to acknowledge that they were FSF assets. This complaint has not been made out.

(c)    Freezes [Main Portfolio] on the grounds listed in April 2019 [sic] above (September 2019)

(d)    Notifies CommSec that the securities in the Main Portfolio were assets divisible among the creditors of the bankrupt estates and making related claims to the Australian Financial Complaints Authority paras 26, 27, 28, 29, 30, 31, 32 (31 August 2018 until present)

(e)    Informs AFSA that the applicants failed to inform Commsec that they were acting on behalf of FSF and were trustees of FSF in 1998 in circumstances where: (a) the applicants were not trustees; (b) could not be trustees (August 2019)

(f)    Informs AFSA that the applicants had acted suspiciously in the administration of their estates and had hampered the respondent's administration (August 2019)

627    These allegations all relate to the stop which the first respondent procured in relation to transactions on securities in the Main Portfolio. It is convenient to consider them together.

628    According to Mrs Trenfield she did not initially conduct investigations into any shares (KAT 4 para 97). But details of the Main Portfolio were given in affidavit ACTF 1 sworn 6 March 2019 and claimed to be an asset of the FSF. As described above, this included a copy of the financial year summary for the year ending June 2018 for the Main Portfolio, which I have found Mrs Frigger deliberately altered by adding the notation 'FRIGGER SUPER FUND' to it.

629    But later, on 28 August 2019, the first respondent sent a letter to CommSec which relevantly said (errors in original) (KAT 3 p 39):

I understand the Bankrupts may, in their personal capacity may hold the following shares portfolio with CommSec:

Account Number:    [Main Portfolio account number]

Account Name:    Mr Hartmut Frigger + Mrs Angela Frigger

Please note pursuant to Section 58(1)(a) and Section 116 of the Bankruptcy Act 1966 (the Act) these shareholdings vests in the Trustee in Bankruptcy and are considered property divisible among the Bankrupt Estate's creditors.

Given the time lapsed since my appointment I note the Bankrupts' may have acquired additional shares to their portfolio. Please be advised these shares are defined as after-acquired property pursuant to Section 58(1)(b) of the Act and likewise, vest in the Bankrupt Estate.

On this basis, please:

1.    Suspend all shares transactions effective as at 28 August 2019;

2.    Establish a new portfolio in the name of Mr Hartmut Frigger & Mrs Angela Frigger (Bankrupts) for my control; and

3.    Arrange for all shareholding in the Bankrupts' names and the account above to be transferred to the new portfolio.

630    It seems that the reference in the applicants' complaint 3(c) to 'grounds listed in April 2019 above' is an error and it should refer to a letter which the first respondent sent to the Australian Financial Complaints Authority (AFCA) on 27 September 2019 (see item 11 of Schedule 3 to the applicants' written opening submissions, which refers to August 2019 and a letter to 'AFSA', both of which references seem erroneous).

631    The letter was sent in response to a complaint against CommSec which the applicants lodged with AFCA on 4 September 2019 (ACTF 10 p 3). The applicants sought the lifting of the freeze on the Main Portfolio that CommSec applied after receiving the letter of 28 August (as to which see KAT 3 p 44). The first respondent's letter to AFCA relevantly said (ACTF 11 p 11, annexure AF2; all errors and bolding in original):

I understand the Bankrupts only made the complaint against Commonwealth Securities Limited (CommSec). However given the complaint concerns my actions with regards to the Portfolio, in the circumstances, I believe it is be appropriate to provide AFCA with some background as to my duties as Trustee in Bankruptcy, the Portfolio, as well as the Bankrupts' dealings in this regard.

Background

As Trustee in Bankruptcy, it is my duty to locate, and to take appropriate steps to recover property for the benefit of the creditors of the bankrupt estates.

Pursuant to Section 58(1)(a), Section 58(1)(b) and Section 116 of the Bankruptcy Act 1966 (the Act) any shareholding held by the Bankrupts vests in the Trustee in Bankruptcy and are considered property divisible among the Bankrupt Estates' creditors

Accordingly, I instructed CommSec to suspend all shares transaction with the intention of realising these shares pursuant to Section 19(f) of the Act.

The Bankrupts' Claims

In response to my instructions, the Bankrupts claim the Portfolio is not an asset of the Bankrupt Estate, but rather an asset of the Frigger Super Fund (ABN: 99 602 844 956) and thereby excluded from being divisible asset pursuant to Section 116(2)(d)(iii) of the Act.

In this regard however, please find *attached, an exchange between Paris Parasadi of my office and CommSec with regards to the existence of any records which might suggest the Portfolio had been opened with the intention of registering it in the name of 'Frigger Super Fund' or 'Hartmut Frigger + Angela Frigger atf Frigger Super Fund.' Further *attached are copies of the CommSec application form and the CHESS Sponsorship Form used to open the Portfolio noting there is no such designation.

Conclusion

Based on these documents, it is clear the Bankrupts held the Portfolio in their personal capacity, and not on behalf of the Frigger Super Fund.

It is my view they are merely attempting to hamper the administration of the Bankrupt Estates by submitting this complaint and seeking to prevent me from discharging my duties and realise these shares.

Should you wish to discuss this matter, or require a further background with regard to the history of my dealings with the Bankrupts, including why I am suspicious of any claims they make with regards to their personal assets, please do not hesitate to contact Paris Parasadi of this office on [telephone number and email address given].

632    Mrs Trenfield's evidence as to the state of her knowledge at the time she sent these letters can be summarised as follows (KAT 4 paras 159-165):

(1)    She noted that Mrs Frigger's first affidavit (ACTF 1) said that the applicants had transferred a CommSec share portfolio to the FSF in about 1997 and that BOQ1 included money earned as dividends from that portfolio, and that the affidavit attached the CommSec financial year summary for the year ending 30 June 2018. But Mrs Trenfield did not, at that time, turn her mind to whether the shares held in the Main Portfolio were FSF assets.

(2)    On 28 August 2018, however, the first respondent received documents from Just SMSF Audits, which included a copy of the financial year summary for that year and other years. They did not bear the FRIGGER SUPER FUND notation which appeared in the copy of the document in Mrs Frigger's first affidavit. Mrs Trenfield was concerned about the apparent alteration of the financial year summary that appeared in the affidavit, particularly considering adverse credibility findings against Mrs Frigger in court decisions she had read.

(3)    Mrs Trenfield therefore instructed Paris Parasadi of her office to request a freeze on the Main Portfolio.

(4)    After sending the letter to that effect to CommSec, Mrs Trenfield received the further information she mentions in her subsequent letter to AFCA, namely the account opening form and CHESS sponsorship form.

633    Mrs Frigger's cross-examination of Mrs Trenfield on these paragraphs of affidavit KAT 4 (ts 617-632) was argumentative and did not undermine the tenor of the evidence, which is supported on the face of the chronological documentary record that it describes. Mrs Frigger sought to establish that Mrs Trenfield should have had regard to other documents received from the auditors, such as financial statements and annual returns, but Mrs Trenfield said she placed more importance on the documents from CommSec that did not contain the Frigger Super Fund notation (ts 623-624). In view of the assessment of the balance sheets and annual returns given above, that was reasonable. Mrs Trenfield's evidence was that the names shown on the account details on documents produced by CommSec were the foundation of her belief that the securities vested in the bankrupt estates (ts 624).

634    Mrs Frigger made complaint in an affidavit that the first respondent behaved unethically in sending the letter of 28 August 2019 to CommSec, because that was contradicted, she seemed to say, by the evidence that the securities in the Main Portfolio were FSF assets (ACTF 5 para 4). But the letters to CommSec and AFCA now need to be assessed in the context of my conclusion that the applicants have not discharged their onus of establishing that the securities in the Main Portfolio are FSF assets. Once again, it follows from this conclusion that the first respondent is entitled to treat the securities as assets that are divisible among creditors of the bankrupt estates. In light of that, the first respondent cannot be criticised for asking CommSec to suspend all transactions in the Main Portfolio and for informing AFCA of her view that the securities were assets of the bankrupt estates.

635    Further, the basis for the first respondent reaching that view as stated in her evidence was reasonable. The Main Portfolio was in the names of the individuals without any reference to the FSF in the account name. It may have appeared to Mrs Trenfield that the FRIGGER SUPER FUND notation on the Financial Year Summary attached to affidavit ACTF 1 was a forgery. A prudent bankruptcy trustee with that suspicion would take immediate steps to ensure that the bankrupts were unable to deal with those securities. That is what Mrs Trenfield did.

636    The way she did it is not above criticism, however. In my view, the letters to CommSec and AFCA which I have quoted above were too categorical in saying that the securities had vested in Mrs Trenfield. In the letter to CommSec this is simply asserted as a fact. There is no disclosure that it is a fact which the applicants disputed and which was open to doubt. In the letter to AFCA it is similarly asserted (albeit more implicitly, under the heading 'Background') and the letter goes on to say that 'it is clear' that the applicants held the Main Portfolio in their personal capacities, and not on behalf of the FSF. That letter does, however, refer to the applicants' position on the question.

637    The chronology of this proceeding is relevant here, though. The applicants did not seek any order establishing, or dependent on, the question of whether the securities were FSF Assets until they filed an amended application on 23 September 2019, obviously in response to the freeze that followed from the first respondent's letter of 28 August 2019. It is true that they had previously filed evidence from which it appeared that they asserted that the shares in the Main Portfolio were FSF assets, because they maintained that dividends from those securities had ultimately found their way into BOQ1. But it was not until the amendment to the application in September 2019 that the ownership status of the securities in the Main Portfolio was crystallised as an issue in the proceeding. So, in the letter to AFCA sent after that amendment, the first respondent acknowledged that the applicants claimed that the Main Portfolio was not an asset of the bankrupt estates, but rather an asset of the FSF and thereby excluded from being divisible among creditors.

638    Not until after the first respondent's closing submissions did the applicants claim that the letters were misleading because they represented that there was no dispute and no doubt about whether the securities in the Main Portfolio were held by them in their personal capacities. Their allegation in their opening (and closing) submissions was that the letters were misleading because there was 'overwhelming evidence' that the Main Portfolio held 'trust receipts' of the FSF so that 'the respondent's bald assertions to Commsec and AFCA that the holdings have vested in her were patently false'.

639    Given my conclusions about the Main Portfolio, the applicants have not made that allegation out. Further, there is no basis in the evidence to find that the first respondent's apparent belief that the securities had vested in her was not genuinely held and reasonably based. In those circumstances, I would not make a serious finding that the letters were misleading for lack of acknowledgment of the dispute about the Main Port