Federal Court of Australia

Topp, in the matter of McLennan Holdings Pty Limited (In Liq) [2026] FCA 1259

ORDERS

THE COURT DECLARES THAT:

1. Pursuant to section 19 of the Federal Court of Australia Act 1976 (Cth), rule 14.23 of the Federal Court Rules 2011 (Cth) (Rules) and Order 3(b) of the orders made in this proceeding on 21 December 2023 (2023 Orders), the first plaintiff, Alan Godfrey Topp (Receiver) in his capacity as Court-appointed receiver to the assets and undertakings of the McLennan Holdings Pty Limited Superannuation Fund No 1, being a self-managed superannuation fund (Fund) would be justified, and would be acting reasonably, in:

(a) not bringing or prosecuting any proceedings against Ruskin Dudley McLennan, Jodie Elizabeth Ryan or Joseph Jutrisa (including any insurer) for claims relating to the management and administration of the Fund;

(b) determining that from on or about September 2023, the members of the Fund have been:

(i) Ruskin Dudley McLennan;

(ii) Jodie Elizabeth Ryan;

(iii) Malcolm John McLennan, and

(c) determining the members balances with respect to the net assets of the Fund;

(d) preparing and lodging all returns and financial statements concerning the Fund which are outstanding;

(e) subject to payment of the Receiver’s outstanding costs, expenses and remuneration in acting as receiver of the assets and undertakings of the Fund and acting as liquidator of the Company in respect of the Fund pursuant to orders 5 and 6 of the 2023 Orders, and after the payment of any taxes, duties and charges (including without limitation income tax and capital gains tax in order to give effect to the payment out of the respective member balances) dealing with the Fund in the following way:

(i) paying the respective member balances (less any expenses and taxes) as directed by the respective members (being either by way of roll-over to another nominated superannuation fund or directly to the member if there has been a relevant condition of release satisfied); and

(ii) closing the accounts held by the Fund after rolling out the member balances; and

(iii) winding up the Fund.

THE COURT ORDERS THAT:

1. In these proceedings (NSD1571/2023) and to the extent necessary in proceedings (NSD744/2024), the Receiver be released from the implied undertaking with respect to confidentiality in relation to documents produced under orders for production issued in proceedings NSD744/2024.

2. In these proceedings (NSD1571/2023) and to the extent necessary in proceedings (NSD744/2024), confidential exhibits 1 to 3 referred to in the Affidavit of Alan Topp dated 18 March 2026 be sealed and remain confidential in the Court file pursuant to section 37AF of the Federal Court of Australia Act 1976 (Cth) on the ground that this order is necessary to prevent prejudice to the proper administration of justice.

3. Subject to payment of the Receiver’s outstanding costs, expenses and remuneration in acting as receiver of the assets and undertakings of the Fund and acting as liquidator of the Company in respect of the Fund pursuant to orders 5 and 6 of the 2023 Orders, the Receiver be discharged as Court-appointed receiver to the assets and undertakings of the Fund with effect from the date the Fund accounts held by the Fund are closed by the Receiver.

4. In the event that:

(a) the member balances are not transferred to the Fund’s respective members within 30 days of the date of these orders, the Receiver is to notify the defendants as to the status of the Receivership, including the anticipated time to complete the Receivership and roll over member balances as contemplated by the Declarations set out above; and

(b) the member balances are not transferred to the Fund’s respective members within 60 days of the date of these orders, Ruskin and Jodie McLennan have liberty to apply to the Court on the giving of 7 days’ notice to the Receiver seeking orders as to the status of the Receivership.

5. The Receiver’s costs of this application be costs in the receivership of the Fund and be paid out of the assets of the Fund.

6. The costs of Defendants, as agreed or assessed on the ordinary basis, be paid from the assets of the Fund.

7. Pursuant to rule 14.24 of the Rules, the first plaintiff’s remuneration in acting as the Receiver of the assets and undertaking of the Fund between 19 March 2026 and 10 September 2026 be fixed in the amount of $11,074.00 (exclusive of GST and exclusive of disbursements) and be paid from the assets of the Fund.

8. Pursuant to rule 14.24 of the Rules, the first plaintiff have his estimated remuneration for acting as the Receiver of the assets and undertaking of the Fund from 11 September 2026 to the finalisation of the administrative tasks related to the Receivership, be capped in the amount of $10,000 (exclusive of GST and exclusive of disbursements) and be paid from the assets of the Fund.

9. The Interlocutory Application filed by Ruskin Dudley McLennan on 9 December 2025 be otherwise dismissed.

10. The Interlocutory Application filed by the Receiver on 18 March 2026 be otherwise dismissed.

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

REASONS FOR JUDGMENT

SHARIFF J:

1. INTRODUCTION

1 By an Application filed on 18 March 2026, the Receiver of the McLennan Holdings Pty Ltd Superannuation Fund No 1 seeks certain relief with the intent of rolling over or paying out the remaining member balances of the Fund, preparing and lodging accounts, taking steps to wind-up the Fund and thereafter discharging the Receivership.

2 The Fund is a self-managed superannuation fund. The trustee of the Fund is McLennan Holdings Pty Ltd (in liq) (Company).  The Fund relates to the interests of members of the McLennan family, who I will refer to by their first or preferred names, without intending any disrespect.

3 The initial members of the Fund were Malcolm John McLennan (John) and Susan Karen Jeannine McLennan (Karen).  John and Karen were husband and wife. Karen passed away on or about 2 March 2022.  John and Karen remained the sole members of the Fund until 2018. From in or about 2018, their son, Ruskin Dudley McLennan (Ruskin), and his partner, Jodie Elizabeth Ryan (Jodie) also became members of the Fund.   John and Karen have another child, Susannah McLean (Susannah), who has never been a member of the Fund.

4 The Receiver was appointed to the Fund by orders made by the Court on 21 December 2023. That appointment arose in the context of a family dispute.  Various aspects of the family dispute (which do not directly relate to the affairs of the Fund) have been subject to litigation, the outcome of which includes a decision of Parker J in McLennan v McLennan [2025] NSWSC 1603 (delivered on 23 December 2025) and an appeal from that decision which was dismissed by Leeming, Payne and Ball JJA on 3 June 2026 in McLennan by his tutor Kennedy v McLennan [2026] NSWCA 102.

5 The Receiver seeks orders:

(a) confirming that the Receiver is justified in not commencing proceedings as against Ruskin, Jodie or Mr Joseph Jutrisa (who, as I explain below, provided financial planning advice to John and Karen);

(b) confirming the members of the Fund, and their respective member balances;

(c) confirming that the Receiver may prepare and lodge the Fund’s returns and financial statements (based on the member balances as confirmed);

(d) rolling over or paying out the member balances and winding up the Fund; and

(e) after these steps, seeking a discharge of his appointment.

6 The Application is made in circumstances where the members of the Fund do not wish to take over control of the Fund.  Each of the remaining members, John, Ruskin and Jodie, have indicated that they wish to have their member balances rolled-over (Ruskin and Jodie) or paid out (John).

7 In support of the relief, the Receiver relies on his affidavit dated 17 March 2026 together with exhibits including a confidential exhibit which contains an advice dated 22 December 2025 received by the Receiver from Counsel (Counsel’s Advice). I was satisfied that Counsel’s Advice should be the subject of a suppression and non-publication order, and made such orders.

8 For the reasons that follow, I am satisfied that the orders sought by the Receiver should be made.

2. CONSIDERATION

9 Based on the evidence before me, I am satisfied that the Receiver has thoroughly investigated and examined the affairs of the Fund, as well as that of the Company.  Those investigations have included the Receiver conducting examinations, collating documents and evidence in relation to the affairs of the Fund and giving consideration to whether there have been breaches of the Superannuation Industry (Supervision) Act 1993 (Cth) (SIS Act).  The Receiver has also examined whether there has been any loss to the Fund and, if so, whether there are any causes of action which the Receiver ought to pursue.  In undertaking these investigations, the Receiver has considered complaints and issues raised by John or by Susannah on John’s behalf.  In order to assess these matters, the Receiver also obtained Counsel’s Advice.

10 In determining whether the orders sought by the Receiver should be made, it is important to bear in mind that the Receiver’s role and remit relates to the assets and interests of the Fund.  The Receiver’s role has been to determine, amongst other things, whether there has been any loss to the Fund or improper conduct in relation to the Fund itself.

11 The evidence before me establishes the following facts.

12 In or about 2018, John and Karen sought financial planning and related advice from Mr Jutrisa.  At that time, they had both passed retirement age and were retired.  Under the terms of the Fund, they were entitled to receive lump sum payments in the nature of a pension payment, if they so desired.  At the relevant time, the assets of the Fund were at least $7.5 million.  John and Karen had sought advice from Mr Jutrisa in part to manage the succession of their estate, including the assets of the Fund, in favour of Ruskin and Jodie, and to protect those assets from any claim that Susannah may bring against their respective estates in the future.  This occurred in the context that at that time, Susannah was estranged from her parents.

13 Mr Jutrisa gave John and Karen advice, which I will describe as the Intergenerational Planning Strategy.  This Strategy was discussed over the course of several discussions and emails, which also included Ruskin.  The elements of the Strategy were also recorded in various documents.

14 In summary, the Intergenerational Planning Strategy was to involve John and Karen authorising the Company (as Trustee of the Fund) to make lump-sum payments to them to be paid into a joint bank account held in the name of John and Karen (Joint Bank Account), the appointment of Ruskin as having power of attorney including over the Joint Bank Account, and for Ruskin and Jodie to have the benefit of the lump-sum payments by becoming members of the Fund and investing those sums back into the Fund or otherwise using the money for their own purposes.  It is unnecessary to further detail the elements of the Strategy.

15 In furtherance of the Intergenerational Planning Strategy, the following steps were taken:

(a) during 2018, Ruskin and Jodie became members of the Fund;

(b) during the period from 2018 to 2020, a total amount of $900,000 was withdrawn from John and Karen’s member balances in the Fund as follows:

(i) on 14 June 2018, there was a withdrawal of $100,000 from John's member balance;

(ii) on 26 June 2019, there was a withdrawal of $200,000 but accounted for as two $100,000 withdrawals from each of John and Karen’s member balances; and

(iii) on 28 April 2020 and 8 May 2020, there were two withdrawals of $300,000 respectively from each of John and Karen’s member balances;

(c) these amounts were deposited into the Joint Bank Account;

(d) Ruskin then caused the $900,000 to be transferred from the Joint Bank Accounts to the Fund, as a contribution made by Ruskin or Jodie into the Fund; and

(e) there were further withdrawals from the Fund of approximately $1.4 million from John and Karen’s member balances into the Joint Bank Account and it was not in dispute that these monies were then made available to Ruskin and Jodie and were not invested back into the Fund.

16 The effect of these transactions was to decrease the member balances of John and Karen, and to increase the member balances of Ruskin and Jodie and to otherwise give them money for their own use.

17 Having examined the terms of the Fund, the Receiver concluded that as John and Karen were of pension age and a condition of release had been satisfied (being that they were of retirement age), it was permissible for them to seek lump sum payments to be paid out of the Fund.

18 The Receiver has also concluded that as John and Karen made voluntary decisions within the terms of the Fund to seek lump sum payouts and provide those monies to Ruskin and Jodie, there was no loss to the Fund or any breach of the SIS Act.

19 I agree with the Receiver’s assessment.  John and Karen were at liberty to seek out financial advice and seek to implement the Intergenerational Planning Strategy.  Ultimately, the amounts in the Fund were their money and so long as they were entitled to seek payments out of the Fund, what they chose to do with that money was a matter for them.  The fact that they favoured the interests of Ruskin and Jodie over Susannah is not a matter that affects the management of the affairs of the Fund.  It may give rise to other claims Susannah has, which on the evidence before me have been agitated in the Supreme Court of New South Wales. However, those matters do not affect the Receiver’s correct assessment that there has been no loss to the Fund or any relevant contravention of the SIS Act.

20 In light of the above, I agree with the assessment of the Receiver that it is justified in not commencing any proceedings against Mr Jutirsa, Ruskin or Jodie.  I have considered Counsel’s Advice on this topic and it is unnecessary to disclose what was stated therein, as I have formed my own independent assessment of these matters.

21 Although John is not presently of capacity, he has lawyers acting for him and Susannah has acted as his litigation guardian in other proceedings.  I directed the Receiver to ensure all documents filed in these proceedings were served and brought to the attention of John and Susannah (and their respective lawyers).  I am satisfied that this has occurred.  Neither John nor Susannah have sought leave to be joined or heard in this Application.  However, John has indicated through his lawyer that he wishes to have his remaining balance paid to him into a nominated bank account.

22 Given that the Receiver (correctly) does not propose to commence proceedings, it is appropriate that the Fund be wound up and thereafter the Receivership be discharged.  That is especially the case in circumstances where none of the remaining members (John, Ruskin and Jodie) wish to remain members of the Fund and have expressed their wishes as to what should happen to their member balances.

23 Based on the evidence before me and the submissions made by the Receiver, I am satisfied of the following matters:

(a) the remaining members of the Fund are John, Ruskin and Jodie;

(b) the respective member balances of John, Ruskin and Jodie were as follows:

(i) for the income tax year ended 30 June 2024:

(A) John: $1,659

(B) Ruskin: $924,133

(C) Jodie: $847,879

(ii) for the income tax year ended 30 June 2025:

(A) John: $1,670

(B) Ruskin: $932,044

(C) Jodie: $855,138

(iii) for the income tax year ended 30 April 2026:

(A) John: $1,767

(B) Ruskin: $1,003,195

(C) Jodie: $920,432

(c) the member balances may be reduced by costs, expenses and taxes (such as, but not limited to, capital gains tax in disposing of assets held subject to the Fund for the purposes of paying out the member balances from the Fund);

(d) the accounts and associated documents prepared by or on behalf of the Receiver in respect of the Fund are in order and appropriate to be lodged, including the financial statements for the Fund for the years ended 30 June 2024, 30 June 2025 and 30 June 2026 and the draft taxation returns for the Fund for the income tax years ended 30 June 2024 and 30 June 2025;

(e) subject to attending to the payment of any applicable taxes, fees and other amounts, the remaining member balances should be rolled over or paid out as per the request of each of John, Ruskin and Jodie;

(f) subject to all of the above matters being addressed and any other administrative steps being taken, the Fund should be wound up; and

(g) upon all of these steps being satisfied, the Receivership should be discharged.

24 I will make declarations and orders giving effect to the above in accordance with the short minutes of order provided to me by Counsel.

25 Jodie and Ruskin appeared in the proceedings and at the hearing before me. They did not oppose any of the relief claimed. However, they did seek payment of their costs from the assets of the Fund. That application was not opposed by the Receiver. I am satisfied that an order to that effect should be made.

26 The parties reached a consent position in relation to the Receiver’s remuneration to the effect that the Receiver be paid from the assets of the Fund:

(a) in respect of the period between 19 March 2026 and 10 September 2026, a fixed amount of $11,074.00 (exclusive of GST and exclusive of disbursements); and

(b) in respect of the period from 11 September 2026 to the finalisation of the administrative tasks related to the Receivership, remuneration to be capped in the amount of $10,000 (exclusive of GST and exclusive of disbursements).

27 I am satisfied that it is appropriate to make such orders pursuant to r 14.24 of the Federal Court Rules 2011 (Cth).

Associate:

Dated:    17 September 2026