Federal Court of Australia

Roberts, in the matter of an application by Roberts [2025] FCA 957

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 206G(1)(c) of the Corporations Act 2001 (Cth), and subject to the condition in paragraph 2 below, Anthony John Roberts (the applicant) has leave to manage Streborac Superannuation Pty Ltd (ACN 082 897 470) (Company).

2.    Until such time as the applicant is no longer disqualified from managing corporations under Pt 2D.6 of the Corporations Act 2001 (Cth), the Company must not engage in any activity other than to act as trustee of the Roberts Family Superannuation Fund (Fund) and to do things that are reasonably incidental to so acting.

3.    Pursuant to s 126J(1)(b) of the Superannuation Industry (Supervision) Act 1993 (Cth), the applicant is not a disqualified person in relation to the Company and the Fund.

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

REASONS FOR JUDGMENT

JACKSON J:

1    The applicant, Anthony Roberts, became bankrupt on his own petition on 5 May 2025. He and his wife, Christina Roberts, are the sole members of a self-managed superannuation fund known as the Roberts Family Superannuation Fund. The trustee of the fund is Streborac Superannuation Pty Ltd, of which Mr and Mrs Roberts are the sole shareholders.

2    At the time of his bankruptcy, Mr Roberts was a director of Streborac. The bankruptcy disqualified him from managing corporations, and also meant that he was prohibited under the Superannuation Industry (Supervision) Act 1993 (Cth) (SIS Act) from acting as a director of Streborac as a superannuation entity.

3    On Mr Roberts' application, on 7 August 2025 I made orders giving him leave to manage Streborac on condition that the company confine itself to acting as trustee of the Fund. I also made an order that for the purposes of the SIS Act, Mr Roberts is not a disqualified person in relation to Streborac and the Fund. These are my reasons for those orders.

Factual background

4    Mr Roberts and Mrs Roberts have sworn affidavits in support of the application. The following comes from those affidavits. As the application was unopposed, the affidavit evidence was unchallenged.

Streborac and the Fund

5    Streborac was incorporated in 1998 with Mr and Mrs Roberts as its directors. It appears that Mr Roberts' sister and mother were also directors for periods of time but they ceased to be directors over a decade ago. Mr and Mrs Roberts have been the sole directors since then.

6    The sole purpose of Streborac's incorporation was to act as the corporate trustee for the Fund. The Fund was established by a trust deed on the same day as Streborac was incorporated. Its primary purpose is to provide superannuation benefits for Mr and Mrs Roberts in their retirement, or for their dependants in the event of their death.

7    Mr Roberts has provided evidence that the Australian Taxation Office (ATO) treats the Fund as an 'ATO Regulated Self-Managed Superannuation Fund', the status of which is 'complying'. According to the explanation given on the government run 'Super Fund Lookup' website, this means that it is a regulated fund which is a resident of Australia and has been issued with a 'notice of compliance'. It is not necessary to go further into what this means; what is relevant for present purposes is that it established that the Fund is a regulated superannuation fund, and so is subject to the provisions of the SIS Act that are described below.

8    The evidence of both Mr Roberts and Mrs Roberts is that they managed Streborac without any issue until he became a bankrupt in May of this year. There is evidence that the Fund has accumulated substantial assets, which are comprised of investments of the kind one would expect to see in a superannuation fund, such as managed investments, shares in listed and unlisted companies, stapled securities and units in listed and unlisted unit trusts in Australia and overseas. Streborac has no employees and, to the best of Mr Roberts' knowledge, has no creditors.

9    According to Mr Roberts, Streborac carries on no activity other than to act as trustee of the Fund. He and Mrs Roberts are its only members, that is, beneficiaries of the trust of which the Fund is comprised.

The circumstances leading to Mr Roberts' bankruptcy

10    Mr Roberts' working life has been almost entirely spent in the building and home construction industry. In 1999 he established a home construction business which came to be known as the Porter Davis Homes Group or PDH Group. He was managing director of the group, which included a number of companies.

11    In more recent years the PDH Group began to experience significant financial difficulties, which Mr Roberts attributes to the COVID-19 pandemic. According to him, the pandemic caused labour shortages, productivity issues, increases in the price of materials, shortages of materials and a decrease in demand for home construction. Mr Roberts' affidavit provides detail as to some of the main issues, and the history of the financial decline of the PDH Group, which are not necessary to recount. But it is relevant to note the following matters:

(a)    a company associated with Mr Roberts provided substantial cash support to the PDH Group up until late January 2023;

(b)    in March 2023 the directors of the PDH Group engaged Deloitte to provide advice about the situation;

(c)    in the same month the PDH Group engaged FTI Consulting to assist with a possible recapitalisation or sale process; and

(d)    when these efforts did not bear fruit, the directors decided to place all but one of the companies in the PDH Group into voluntary liquidation.

12    On 31 March 2023, principals of Grant Thornton Australia were appointed as liquidators of those companies. It is relevant to note that their preliminary opinion, expressed in reports to creditors, is that the PDH Group was likely insolvent from February 2023 onwards. It is also relevant to note that those reports do not identify any alleged breaches of the law or misconduct by Mr Roberts or any other director of the PDH Group, although they do say that the liquidators' investigations are ongoing.

13    At the time the winding up commenced, the PDH Group had over 1,500 homes under construction, mostly in Victoria with the balance in Queensland. Queensland has a statutory home warranty scheme, under which the Queensland Building and Construction Commission (QBCC) covered the cost of completing homes that were left incomplete due to the winding up, or the cost of returning deposits on uncompleted homes. Pursuant to the scheme, the QBCC was entitled to make a monetary claim against the directors of companies in the group. In January 2025, it commenced proceedings against Mr Roberts and others claiming over $18 million.

14    A similar scheme is in place in Victoria, but the government agency responsible for that scheme has not yet made any demand or claim on Mr Roberts.

15    In May 2023, a creditor of the PDH Group, Nuhart Nominees Pty Ltd, commenced proceedings against Mr Roberts and another director pursuant to guarantees they had given. This followed from defaults by the relevant companies under a facility agreement. The claim was for over $3.5 million. Mr Roberts has been defending the claim. The proceeding is on foot, albeit stayed because of the bankruptcy of Mr Roberts (and of the other director).

16    After taking professional advice, Mr Roberts submitted a debtor's petition to the Official Receiver. This was accepted on 5 May 2025, whereupon Fabian Micheletto and Michael Carrafa of SV Partners were appointed as his trustees in bankruptcy.

Events after Mr Roberts became bankrupt

17    Mr Roberts deposes that the QBCC and Nuhart are the only unrelated creditors with claims on his bankrupt estate (other than the trustees).

18    Mr Roberts' evidence is that since the appointment of his trustees in bankruptcy he has not sought to manage or make any investment decisions in relation to the Fund. He has disclosed, however, that on 13 June 2025 he signed the financial accounts and member statements for the Fund for the financial year ending 30 June 2024. He has also signed the tax return for the Fund for that financial year. The explanation given in his affidavit is:

I did this after my Trustees were appointed but the financial accounts, member statements and tax return relates to the period before my Trustees were appointed. My signatures on these documents were required to enable the Fund to duly comply with the relevant superannuation and taxation requirements.

19    There has been some correspondence between the Australian Securities and Investments Commission (ASIC), Streborac and Mr Roberts' solicitors about whether ASIC will remove Mr Roberts' name from its records as an officeholder of Streborac. The solicitors requested that ASIC hold off on doing so pending the outcome of this application. As at the filing of the application, ASIC had not agreed to that, and on 24 July 2024 Streborac's accountants lodged a form 484 with ASIC to amend Streborac's company details to reflect his disqualification. However, as indicated below, ASIC does not oppose the application.

Statutory framework and principles

20    Upon becoming a bankrupt, Mr Roberts was disqualified from managing corporations by force of s 206B(3) of the Corporations Act 2001 (Cth). As such, under s 206A of that Act, he would commit an offence if he were to do various things in the nature of management that are set out in that section. However s 206G(1)(c), relevantly, empowers the Court to grant to a person who is disqualified from managing corporations leave to manage a particular corporation (if the person was not disqualified by ASIC). 'The order granting leave may be expressed to be subject to exceptions and conditions determined by the Court': s 206G(3). The person may then be appointed as a director of the relevant corporation: s 201B(2).

21    Similarly, under s 120(1)(b) of the SIS Act, a person becomes a disqualified person for the purposes of Pt 15 of that Act if the person is an insolvent under administration. It is then an offence if, with that knowledge, the person 'is or acts as a responsible officer of a body corporate that is a trustee, investment manager or custodian of a superannuation entity': s 126K(4). A responsible officer of a body corporate includes a director: s 10. I am satisfied that the Fund is a superannuation entity, as defined in s 10. Section 126J empowers the Court to order that a person is not a disqualified person, subject to exceptions and conditions determined by the Court.

22    An applicant who comes to the Court seeking leave bears the onus of establishing that there ought to be an exception to the general policy of the legislature as to disqualification, which is entirely protective: see Re Altim Pty Ltd [1968] 2 NSWR 762 at 764 (Street J).

23    The principles that guide the exercise of the discretion under s 206G of the Corporations Act are similar to those that apply in relation to s 126J of the SIS Act: see Porter, Application under the Superannuation Industry (Supervision) Act 1993 [2012] FCA 1431 at [31] (Foster J); Frigger, in the matter of an application by Frigger [2019] FCA 1730 at [17]-[18]. In Macalister, in the matter of an application by Macalister [2021] FCA 1455 at [21], Banks-Smith J summarised the commonality of principles, in terms I respectfully adopt, as follows:

… the main consideration in applications under s 206G(1)(c) of the Corporations Act and s 126J(1)(b) of the SIS Act is therefore the interests of third parties; the shareholders, creditors and employees of the relevant company, and the public at large (Frigger at [34]). As discussed in GFD v BJD [2018] WASC 374 at [11]-[12], other considerations may include:

(a)    the protection of the public and any shareholders;

(b)    the nature of the disqualification;

(c)    the applicant's character and conduct since the disqualification;

(d)    the structure of the company and the nature of the business;

(e)    the potential for repetition of contraventions;

(f)    the risk to survival of the company;

(g)    the effect on any third parties of the company being unable to have the benefit of the applicant's knowledge; and

(h)    insofar as bankruptcy is involved, the circumstances in which the debts giving rise to the bankruptcy were not paid and the extent to which an applicant cooperated with the trustee in bankruptcy.

Why the orders sought were made

24    In this matter, there were a number of factors in favour of exercising the discretion to give Mr Roberts suitably limited leave to manage the affairs of Streborac as a self-managed superannuation fund, and only one factor telling against it.

25    To begin with the factor telling against, I refer to Mr Roberts' disclosure of having signed accounts and other documents on behalf of Streborac after he became disqualified from managing corporations and disqualified from acting as a director of the trustee of a superannuation fund.

26    Mr Roberts' explanation of why he signed the documents was not entirely satisfactory. He did not, for example, say that he was ignorant of the prohibition, or that it happened by way of an oversight at a busy and difficult time. He did not say that there was any particular time pressure as to when compliance with the various regulatory requirements needed to occur. The fact that the documents he signed related to a financial year that ended before he became bankrupt does not by itself mean that he was not taking a step in the management of Streborac.

27    Nevertheless, this appears to have been an isolated incident, where Mr Roberts has otherwise taken professional advice so as to promptly take steps to obtain the Court's leave to manage Streborac, and so to regularise the position. I did not consider that his signing of those various documents after becoming bankrupt showed such deliberate or repeated delinquency as to outweigh the matters in favour of granting leave.

28    Those matters were as follows:

(1)    The evidence as to how Mr Roberts came to be a bankrupt indicates that it was the result of economic and wider events beyond his control that were related to the COVID-19 pandemic. There is nothing before the Court to suggest that it was the result of mismanagement, incompetence or dishonesty. The reports of the liquidator of the PDH Group and the initial circular to creditors of the trustees in bankruptcy cast no aspersions on Mr Roberts in this regard and in 2023 the liquidators of PDH Group reported to creditors recommending that no recovery action against directors proceed. According to that report, the PDH Group is likely to have been insolvent for only a relatively short time before it was placed into liquidation. The last report of the liquidators that was in evidence was given to creditors in October 2024. As already stated, while their investigations were ongoing, it did not allege contraventions of the law by Mr Roberts or the other directors.

(2)    More specifically, the evidence set out above suggests that Mr Roberts behaved responsibly in response to the financial difficulties. A corporation associated with him provided substantial financial support to the PDH Group. When that proved to be of no avail, Mr Roberts and the other directors took professional advice and placed the companies into voluntary liquidation.

(3)    Also, when as a consequence of the failure of the companies Mr Roberts was faced with large claims against him personally, he also took professional advice and became a bankrupt on his own petition. There is no pattern of seeking to avoid the consequences of the financial difficulties experienced by the PDH Group. While each case will depend on its own facts, this one bears some similarity to Orel, in the matter of an application by Orel [2025] FCA 590, where Sarah C Derrington J granted leave to manage the trustee of a self-managed superannuation fund and ordered that the applicant was not a disqualified person in respect of the trustee company and the fund.

(4)    Mr Roberts has been disqualified solely by reason of his bankruptcy and the operation of the relevant statutory provisions. There is no suggestion that it occurred as a result of any dishonest, improper or unlawful conduct on his part.

(5)    More broadly, there was no reason to think that Mr Roberts is not of good character. I do not consider that the isolated incident I have described above points to any contrary conclusion.

(6)    Mr Roberts' evidence is that since the appointment of his trustees in bankruptcy, he has always cooperated, provided documents, materials and information sought by them whenever requested to do so. The trustees in bankruptcy's circular to creditors mentions nothing untoward, such as any failure by Mr Roberts to cooperate or comply with statutory requirements.

(7)    Streborac carries on business solely as the trustee of the Fund. The only persons with a financial interest in the Fund are Mr and Mrs Roberts. It has no employees and no creditors. Its activities involve investing and managing investments. Even if Mr Roberts' were to mismanage Streborac (which I do not suggest is likely), the only people it is likely to harm are he and Mrs Roberts.

(8)    Mr Roberts' affidavit expressed his intention, if the orders sought were granted, to ensure that he complies with his obligations under the Corporations Act and the SIS Act and to ensure that Streborac conducts no activities other than those necessary to act as trustee of the Fund. There is no reason on the evidence to take that intention as anything other than genuine. The limit on Streborac's activities was appropriately backed up by the second of the orders made which appear at the beginning of this judgment.

(9)    For all those reasons, the protection of the public did not militate against granting leave.

(10)    If leave under s 126J of the SIS Act is not granted, the Fund will cease to be a self-managed superannuation fund, which may require it to comply with more stringent regulatory requirements: see Frigger at [15]. That outcome would not appear to serve any useful purpose in the context of this case.

(11)    The investments of the Fund are substantial and should be managed properly, and there is no reason to think that Mr Roberts' participation in its management poses any risk to its survival or that of Streborac.

29    It was also relevant that there was no contradictor to the application for leave, despite relevant persons and authorities having been given notice of the application. Mrs Roberts, the sole director of Streborac authorised to act as such, as well as a shareholder of the company and a member of the Fund, supports Mr Roberts' application.

30    Correspondence was put before the Court that Mr Roberts' trustees in bankruptcy neither consent to nor oppose the application.

31    After being provided with the application and supporting affidavits, ASIC wrote to Mr Roberts' solicitors on 6 August 2025 indicating that ASIC neither opposes nor consents to the application. That was on the basis that Mr Roberts was only seeking leave to manage Streborac, and that until Mr Roberts' statutory disqualifications from managing corporations generally was at an end, Streborac would only act as trustee of the Fund.

32    The ATO, as the regulator of superannuation funds, has also indicated that it neither consents to nor opposes the application.

Conclusion

33    There were therefore several good reasons why Mr Roberts should be made the subject of a limited exception from the general disqualifications imposed by the Corporations Act, and the SIS Act, and no strong reason against that. As a result, on 7 August 2025 orders in the terms set out at the beginning of this judgment were made.

Associate:

Dated:    15 August 2025