Federal Court of Australia

Wolbers, in the matter of an application by Wolbers (Bankrupt) [2026] FCA 1018

ORDERS

THE COURT ORDERS THAT:

1.    Until such time as the applicant is discharged from bankruptcy, the applicant is permitted to act as co-trustee of the Raw Superannuation Fund (Fund) and to do things that are reasonably incidental to so acting.

2.    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 Fund.

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

REASONS FOR JUDGMENT

MEAGHER J

introduction

1    This is an application (Application) by Mr Wolbers, a bankrupt, seeking orders pursuant to s 126J(1)(b) of the Superannuation Industry (Supervision) Act 1993 (Cth) (SIS Act) that he is not a disqualified person in relation to the Raw Superannuation Fund. On 19 May 2026, I made orders that, until the applicant is discharged from bankruptcy, he is permitted to act as co-trustee of the Fund and to do things that are reasonably incidental to so acting, and that for the purposes of the SIS Act, he is not a disqualified person in relation to the Fund. These are my reasons for making those orders.

factual background

Materials relied on

2    The applicant relied on the following in support of the Application:

(1)    Originating application filed on 26 March 2026 (Originating Application).

(2)    The affidavits of the applicant filed on 26 March 2026 (Applicant’s First Affidavit) and 13 May 2026 (Applicant’s Second Affidavit).

(3)    The affidavit of Mrs Louise Wolbers filed on 26 March 2026 (Louise Wolbers Affidavit).

(4)    The affidavit of Mr Keegan Gill filed on 14 May 2026.

(5)    Written submissions filed on 14 May 2026.

3    The following factual background is derived from the affidavit evidence set out above. As there was no contradictor in the Application, the affidavit evidence was unchallenged.

The Fund

4    The Fund is a self-managed superannuation fund under s 17A of the SIS Act, of which the applicant and his wife are the two co-trustees (Trustees). Rule 1 of the Fund’s trust deed provides that the “sole or primary purpose of the Fund is the provision of Old-Age Pensions to Members and, on their death, to their Dependants”. The applicant and his wife are the only members of the Fund, and have jointly administered the Fund since it was established on 2 June 2006. The Fund’s investments comprise cash and shares in Australian listed companies. It is primarily used as a holding vehicle for those assets. It does not conduct any business, employ any staff, operate any trading accounts, overdrafts or credit facilities, nor does it borrow money or incur debt.

5    The Application is supported by the applicant’s wife. One of the reasons in support of this Application is that if the applicant remains a disqualified person, the Fund’s assets would likely need to be rolled over into an industry or retail superannuation fund, or the Trustees would be required to engage an external professional advisor in order to advise the applicant’s wife regarding the Fund’s ongoing administration. He submits that either of these options would result in additional cost and loss to the Fund which would be unnecessary, were the Application granted. Mrs Wolbers’ evidence is that she does not have the same level of familiarity with the Fund’s operational and administrative aspects as does Mr Wolbers.

The circumstances leading to Mr Wolbers’ bankruptcy

6    The applicant was the sole director and secretary of W3D Constructions Pty Ltd. On 7 December 2023, W3D was voluntarily, by resolution of the applicant dated 5 December 2023, placed into a creditors’ voluntary liquidation. As a consequence of the liquidation of W3D, the applicant became liable under personal guarantees which he had provided in respect of some of W3D’s obligations. The applicant reached repayment arrangements in respect of all obligations save for a single creditor, which presented a creditor’s petition resulting in the sequestration of the applicant’s estate on 30 July 2025. The Official Trustee in Bankruptcy was appointed the trustee of the applicant’s bankrupt estate.

7    The applicant attributes the voluntary liquidation of W3D to several “unpredictable external factors”, including the impact of COVID-19 on the construction industry, delays caused by the relocation of powerlines at a particular construction project, the undertaking of an additional portion of work on that project, and not receiving a retention payment of $275,000.00 for a separate project immediately prior to the liquidation. In particular, in the Applicant’s Second Affidavit, he deposes that:

(1)    In or around September 2019, W3D was awarded a contract to construct four townhouses at The Southport School for a contract price of approximately $2,500,000.00. Construction commenced in December 2019. The contract anticipated a construction programme of approximately 12 months.

(2)    In or around March 2020, shortly after construction commenced, it became evident that overhead powerlines would interfere with construction and prevent completion within the estimated 12-month timeframe.

(3)    The powerline issue needed to be resolved before construction could be completed. The measurements and extent of the powerlines had not been properly recorded due to, inter alia, the initial surveyors, which affected the architectural designs. Therefore, the powerline issue only became apparent once survey pegs had been placed on the site prior to the construction of the ground floor slabs. The full extent of the interference only became apparent once the ground floor slabs had been poured and the vertical construction was ready to commence.

(4)    It took approximately eight months for The Southport School and Energex to arrive at the outcome of relocating the powerlines underground. Following this decision, preparing plans, obtaining approvals and completing the physical works to install the underground powerlines took six months. During this period, the applicant decided to continue construction to the maximum extent possible, fearing that if he stopped the works, he would be unable to re-engage the subcontractors in light of the disruptions to the construction industry during the COVID-19 pandemic. The applicant acknowledges that while this decision was made in good faith and to preserve the project’s viability, continuing to incur costs during the delay was a “significant contributing factor to the financial losses ultimately suffered” by W3D.

(5)    Separately, during the project to construct the four townhouses, The Southport School requested that W3D construct an additional townhouse on a part of the site clear of the powerlines. W3D was awarded a contract for approximately $600,000.00.

(6)    Due to the powerline delays, the impact of COVID-19 and the fifth townhouse, the project took approximately two years to complete. The last townhouse was completed and handed over in March 2022.

(7)    The full extent of the financial losses accumulated on the project to construct the four townhouses was not apparent to the applicant until early 2023, partly because W3D had, towards the end of that project, commenced work on the “Dayboys House Project” at The Southport School (below), providing positive cash flow that masked the underlying losses from the townhouse project. The applicant estimates the net loss to W3D from the construction of the four townhouses was $600,000.00.

(8)    In or around December 2021, The Southport School awarded W3D the contract for the construction of the Dayboys House valued in excess of $10,000,000.00. It also awarded it the contract for the construction of the “Old Boys Sport Building”, which commenced in or around December 2022.

(9)    A dispute arose in relation to the release to W3D by The Southport School of half of the retention moneys held under the contract for the Dayboys House Project. The primary issue in dispute was the extent of external works. As a result of the dispute, it became apparent in around November or December 2023 that the retention funds were unlikely to be released prior to December 2023. The applicant believes that had the retention funds been released in accordance with the contract, W3D would likely have been able to meet its financial obligations as and when they fell due in December 2023.

8    The applicant deposes that he has fully complied with his obligations as an undischarged bankrupt under the Bankruptcy Act 1966 (Cth), and has not engaged in conduct which would constitute an offence or contravention under the provisions of that Act.

Other matters

Execution of documents

9    On 7 August 2025, the applicant executed:

(1)    An audit engagement letter on the Fund’s behalf dated 23 July 2025, engaging an auditor to audit the Fund’s financial statements and its compliance with the SIS Act for the financial year ending 30 June 2025.

(2)    A trustee representation letter dated 23 July 2025 for the auditor, relating to the audit referred to immediately above.

10    The engagement of the auditor related solely to the audit of the Fund’s financial position and records for the financial year ended 30 June 2025, which preceded the applicant’s bankruptcy. The applicant’s evidence is that at the time of executing the abovementioned documents, he believed that doing so was necessary to enable the Fund to comply with its obligations under the SIS Act. The auditor has been fully paid for his work. The applicant further deposes that to his knowledge he has not, since becoming a disqualified person in relation to the Fund, otherwise done anything which he is prohibited from doing by reason of the disqualification.

Alleged insolvent trading

11    In a letter dated 16 April 2025 and a report dated 9 March 2026, annexed to the Applicant’s Second Affidavit, the liquidator of W3D refers to a potential insolvent trading claim in the amount of $824,260.21 on the basis that W3D was insolvent from 30 June 2023 and incurred debts in the amount of $824,260.21 from that date. However, the applicant deposes that neither the liquidator nor any other entity has commenced proceedings against the applicant in relation to this. The applicant in this regard deposes that:

(1)    He was not aware at any time prior to November 2023 that W3D was or may have been insolvent, and considers that it was not insolvent before November 2023.

(2)    W3D was up to date with all its accounts payable as at the end of November 2023, immediately before the commencement of its liquidation.

(3)    Prior to November 2023, W3D had not received any demand, notice or correspondence from any creditor indicating that any debt owed by W3D was overdue or outstanding.

(4)    He had no reason to believe that W3D was unable to pay its debts as and when they fell due in November 2023.

(5)    The catalyst for W3D’s liquidation was The Southport School’s refusal to make a retention payment in the amount of $275,000.00. It only became apparent to the applicant in late November to early December 2023 that the retention payment was unlikely to be released before December 2023.

Alleged non-lodgment of W3D tax returns

12    In the liquidator’s report dated 9 March 2026, annexed to the Applicant’s Second Affidavit, the liquidator of W3D states that there are approximately 12 unlodged tax returns for W3D for periods prior to the liquidator’s appointment. In this regard, the applicant deposes that:

(1)    He does not know what the outstanding lodgments are, or if they are outstanding.

(2)    W3D’s tax lodgments were made on a monthly basis, and at the time of its liquidation, he believed that W3D was up to date with all its taxation obligations, including its lodgments with the Australian Taxation Office.

(3)    W3D had not received any correspondence or notification from the Australian Taxation Office indicating lodgments or payments were outstanding as of W3D’s liquidation.

(4)    If lodgments were outstanding, this was not due to deliberate, dishonest or fraudulent conduct on the applicant’s part.

Statutory Framework and Principles

13    The Fund is a superannuation entity as defined in s 10 of the SIS Act. Section 126K of the SIS Act contains offences for a disqualified person to act as a trustee, investment manager or custodian of a superannuation entity. Under s 120(1)(b) of the SIS Act, an individual is a disqualified person if the “person is an insolvent under administration”.

14    Section 126J of the SIS Act provides as follows:

126J Court power to revoke or vary a disqualification etc.

(1)     A disqualified person, or the Regulator, may apply to the Federal Court of Australia for:

(a) if an individual is a disqualified person only because he or she was disqualified under section 126H—a variation or a revocation of the order made under that section; or

(b) otherwise—an order that the person is not a disqualified person.

(2)     If the Court revokes an order under paragraph (1)(a) or makes an order under paragraph (1)(b), then, despite section 120, the person is not a disqualified person.

(3)     At least 21 days before commencing the proceedings, written notice of the application must be lodged:

(a) if the disqualified person makes the application—by the person with the Regulator; or

(b) if the Regulator makes the application—by the Regulator with the disqualified person.

(4) An order under paragraph (1)(b) may be expressed to be subject to exceptions and conditions determined by the Court.

15    The Court has a broad discretion under s 126J(1)(b) to decide whether to make the order contemplated and, if so, on what terms. The principles to be applied are analogous to those which apply to applications for reinstatement of officers of corporations under the Corporations Act 2001 (Cth): Porter, Application under the Superannuation Industry (Supervision) Act 1993 [2012] FCA 1431 at [29], [31]. In Macalister, in the matter of an application by Macalister [2021] FCA 1455, Banks-Smith J at [21] set out the following principles:

… it can be seen that 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 ([Re] Frigger [[2019] FCA 1730; 139 ACSR 329] 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.

16    An applicant seeking the Court’s leave bears the burden of establishing that there should be “an exception to the general policy of the legislature regarding disqualification, which is entirely protective”: Roberts, in the matter of an application by Roberts [2025] FCA 957 at [22]; GRD v BJD [2018] WASC 374 at [10]; see Re Altim Pty Ltd [1968] 2 NSWR 762 at 764 (Street J).

17    The Commissioner of Taxation, as regulator of self-managed superannuation funds under s 6(1), item 38, of the SIS Act, was on 11 February 2026 notified of the applicant’s intention to bring the Application as required by s 126J(3) of the SIS Act, and on 22 April 2026 received a sealed copy of the Originating Application, the Applicant’s First Affidavit and the Louise Wolbers Affidavit. As at 13 May 2026, he had not provided the applicant with a response. The Australian Financial Security Authority, in its capacity as the Official Trustee in Bankruptcy was on 12 February 2026 notified by the applicant of his intention to bring the Application, though there was no requirement that it be notified. On 26 February 2026, the Official Trustee notified the applicant that it did not wish to take a position in relation to the Application.

consideration

18    The applicant placed significant reliance on the case of Roberts, where Jackson J considered applications for leave to manage a corporation under s 206G(1)(c) of the Corporations Act 2001 (Cth) and an order that the applicant was not a disqualified person under s 126J(1)(b) of the SIS Act in relation to that corporation and a superannuation fund of which the corporation was the trustee: at [2] – [3], [20] – [21]. For the following reasons, I agree with the applicant’s submission that the present proceeding is similar to Roberts, and that the orders sought in the Application should be granted. I will commence with the matters telling against the applicant being granted the orders sought in the Application.

19    As to the execution of documents referred to above at [9] – [10], I accept the applicant’s submission that these actions “do not show such deliberate or repeated delinquency on the part of the Applicant” as to outweigh the matters in favour of the orders sought. The applicant’s reliance on Roberts at [25] – [27] is appropriate. In that case, the applicant had signed accounts and other documents for the self-managed superannuation fund after having become disqualified from managing corporations and from acting as a director of the trustee of a superannuation fund. His stated explanation was that his signatures “were required to enable the Fund to duly comply with the relevant superannuation and taxation requirements”: at [18].

20    There, Jackson J at [26] considered that the applicant had not given an entirely satisfactory explanation for the execution, he not having deposed to being ignorant of the statutory prohibition on managing corporations or superannuation funds, or to there being any time pressure regarding compliance with the relevant regulatory requirements. His Honour also considered that the fact that the documents related to the financial year ending before the applicant’s bankruptcy did not mean he was not taking a step in the management of the corporate trustee: at [26]. His Honour nonetheless considered the matter to have been an isolated incident, and did not consider the signing of the documents as showing “such deliberate or repeated delinquency as to outweigh the matters in favour of granting leave”: at [27].

21    Here, the same criticism of the applicant’s explanation could be made. His explanation, contained in the Applicant’s First Affidavit, was as follows:

… At the time of executing the Audit Engagement Letter and Trustee Representation Letter, I verily believed that my execution of those documents was necessary to enable the Fund to comply with its statutory obligations under the SIS Act. …

22    The applicant does not depose to having been unaware of the prohibition on managing the Fund owing to his status as a bankrupt, or to any urgency in executing the documents. However, I accept that the execution of these documents was an isolated incident not demonstrating “such deliberate or repeated delinquency as to outweigh the matters in favour of granting leave”.

23    As to the suggestion that W3D engaged in insolvent trading, summarised above at [11], I agree with the applicant’s submission that the existence of such an allegation should be given little weight. I accept that in circumstances where no action has been commenced against the applicant, the purported claim has not been substantiated by any evidence by the liquidator, and the applicant’s belief is that all of W3D’s debts were paid until the end of November 2023, the allegation of insolvent trading does not weigh heavily against the grant of the orders sought in the Application. This is especially so where there is no suggestion that the applicant has attempted to evade his or W3D’s obligations, and to the contrary sought to negotiate with creditors.

24    As to the suggestion of outstanding tax lodgments on the part of W3D, summarised above at [12], I accept the applicant’s submission that if they are outstanding, this is not the result of any deliberate, dishonest or fraudulent conduct on his part, but at most (if they are outstanding) the result of a misunderstanding or oversight. I agree with the applicant that this circumstance should be given little weight in considering whether to grant the orders sought in the Application. I consider that the weight of this circumstance is further diminished by the fact that the Australian Taxation Office was served with the Application, and as at 13 May 2026 had not provided the applicant with a response. Further, I accept the applicant’s submission that in the event that the orders sought in the Application were granted, any issue of outstanding tax lodgments on the Fund’s part would be identified by the auditor conducting an annual audit: see s 35C of the SIS Act.

25    Then, the factors in favour of granting leave are as follows.

26    First, I accept that the applicant’s bankruptcy did not result from any dishonesty, fraud, misconduct or mismanagement of W3D. Rather, it was the result of factors occurring in the ordinary course of business, outside of the applicant’s control, which resulted in the collapse of W3D. I agree with the applicant that, save as to the suggestion of insolvent trading which has already been dealt with, this factor is analogous to that discussed in Roberts at [28](1). There, the demise of the company of which the applicant was the managing director, leading to the applicant’s bankruptcy, resulted from “economic and wider events beyond [the applicant’s] control that were related to the COVID-19 pandemic”.

27    Second, I accept the applicant’s submission that he behaved responsibly in response to W3D’s financial difficulties, meeting with W3D’s external accountants and a liquidator to obtain advice, and then acting on that liquidator’s advice in voluntarily winding up W3D. This circumstance is analogous to that discussed in Roberts at [28](2), where after financial support provided by a company associated with the applicant did not assist the company of which the applicant was the managing director, the applicant and the other directors, on professional advice, placed the companies into voluntary liquidation.

28    Third, when faced with large claims against him personally, resulting from the failure of W3D, the applicant actively negotiated with all the creditors and reached repayment arrangements with which he complied, save for one personal debt. As in Roberts at [28](3), there is no pattern of the applicant seeking to avoid the consequences of W3D’s financial difficulties.

29    Fourth, as in Roberts at [28](4), the applicant is disqualified by reason of his bankruptcy and the operation of s 120(1)(b) of the SIS Act, with no suggestion that this occurred as a result of any dishonest, improper or unlawful conduct.

30    Fifth, there is no reason to think that the applicant is not of good character. I do not think that any of the matters referred to above at [9] – [12] point to a contrary conclusion (see Roberts at [28](5)).

31    Sixth, I accept that the applicant has cooperated with the trustees in bankruptcy in providing documents, materials and information sought by them. There is no indication of any failure to cooperate or comply with the relevant statutory requirements. This conclusion is bolstered by the fact that the Official Trustee in Bankruptcy confirmed that it did not wish to take a position in the Application. This factor is analogous to Roberts at [28](6).

32    Seventh, as in Roberts at [28](7), the likely impact of the applicant’s actions in managing the fund is low. The only persons with a financial interest in the Fund are the applicant and his wife (who supports the orders sought in this Application) and on their deaths, their dependants. The applicant has deposed to his commitment to acting in the best interests of the Fund and these persons. The Fund has no creditors, does not conduct any business, employ any staff, operate trading accounts, overdrafts or credit facilities, nor does it borrow money or otherwise incur debt. Its activities involve investing and managing investments.

33    Eighth, the applicant has deposed to his intention to ensure compliance with the SIS Act. There is no reason on the evidence to suppose to the contrary: Roberts at [28](8).

34    For the above reasons, the protection of the public, to which the disqualification provisions in the SIS Act are directed, does not militate against the orders sought in the Application: Roberts at [28](9).

35    Finally, I agree that if the Application is not granted, the Fund’s assets would likely have to be rolled over into an industry or retail superannuation fund, or an external professional advisor would be required to assist the applicant’s wife in managing the Fund. I accept that either option would represent increased costs in the management of the Fund: see Roberts at [28](10). There is also no reason why the substantial investments of the Fund, which warrant proper management, would be unable to be properly managed by the applicant: see Roberts at [28](11).

conclusion

36    The above demonstrates that there were several good reasons in favour of granting the relief sought in the Application, and no strong reasons against that relief. As a result, I made orders on 19 May 2026 in the terms stated above.

Associate:

Dated:    30 July 2026