Federal Court of Australia

Gleeson (trustee) v Wittenberg, in the matter of Wittenberg (deceased) [2026] FCA 1324

ORDERS

THE COURT DECLARES THAT:

1.    The sum of $302,000, transferred by way of electronic funds transfers in the period 26 April 2022 to 3 May 2022, from the estate of Corey Michael Wittenberg (deceased) to the first respondent, is property of that estate that is divisible amongst the creditors of Corey Michael Wittenberg (deceased) and of his estate.

THE COURT ORDERS THAT:

2.    There be judgment against the first respondent in the sum of $302,000.

3.    Pursuant to section 51A of the Federal Court of Australia Act 1976 (Cth), the first respondent is to pay interest on the judgment sum specified in Order 2 above from 3 May 2022 at rates determined in accordance with paragraph 2.2 of Practice Note “Interest on judgments (GPN-INT)”.

4.    The first respondent pay the applicant’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

OWENS J:

1    Corey Michael Wittenberg died on 25 April 2022. At the time of his death, Mr Wittenberg was married to the first respondent, Mary Barbara Wittenberg.

2    Among other liabilities, Mr Wittenberg died owing over $500,000 to solicitors who had acted for him in various proceedings in this Court. On 3 August 2022, those solicitors filed a creditor’s petition for administration of a deceased person’s estate under Part XI of the Bankruptcy Act 1966 (Cth) in the Federal Circuit and Family Court of Australia (Division 2). Orders as sought were made on 10 November 2022, and the applicant was appointed trustee of Mr Wittenberg’s estate.

3    Commencing the day after Mr Wittenberg’s death, and concluding on 3 May 2022, a series of transfers were made from a bank account in the sole name of Mr Wittenberg to a bank account in the sole name of Mrs Wittenberg, totalling $302,000. Each such transfer was accompanied by the narrative “Money To Wife”.

4    The applicant contends that the $302,000 so transferred was property of Mr Wittenberg’s estate that is divisible amongst his (and his estate’s) creditors. These proceedings were commenced to recover those funds.

5    From the outset, Mrs Wittenberg has declined to participate in these proceedings. After the applicant’s attempts to serve the proceedings on her were unsuccessful, I made orders for substituted service that I was satisfied would be effective to bring them to her attention. As part of my case management of the proceedings, I have ordered the applicant to take steps to notify Mrs Wittenberg of the details of all hearings, and to provide copies of transcripts, orders, pleadings, evidence, submissions and other documents to Mrs Wittenberg. At the commencement of the final hearing, the matter was called outside the courtroom, but there was no appearance for Mrs Wittenberg. I am, nonetheless, satisfied that Mrs Wittenberg had notice of the proceedings and the hearing of the matter, and an ample opportunity to participate if she had wished to do so.

6    I should also mention the second respondent, the NSW Trustee and Guardian. Pursuant to section 61 of the Probate and Administration Act 1898 (NSW), upon Mr Wittenberg’s death, his real and personal estate was deemed to be vested in the NSW Trustee and Guardian. Because neither probate nor administration of his estate had been granted, that position remained unchanged until the appointment of the applicant. The title vested in the NSW Trustee and Guardian was “a bare legal title carrying no active duties and no powers of management or administration”: Carolyn Deigan as executrix for the estate of the late James Boyd Lockrey v Barnard James Fussell [2019] NSWCA 299 at [174] (White JA). In those circumstances, the second respondent indicated that it would not participate in the proceedings.

The Applicant’s Case

7    The applicant advanced two bases upon which he is entitled to recover the sum of $302,000 from Mrs Wittenberg:

(a)    First, pursuant to section 139ZQ of the Bankruptcy Act, following Mrs Wittenberg’s failure to comply with a notice issued to her pursuant to that section on 15 May 2025.

(b)    Secondly, by way of judgment given pursuant to section 30 of the Bankruptcy Act upon demonstration that the transferred funds are in fact property of Mr Wittenberg’s estate divisible amongst his creditors.

The Legislative Regime

8    The order of the Federal Circuit and Family Court of Australia (Division 2) that the estate of Mr Wittenberg be administered under Part XI of the Bankruptcy Act was made pursuant to section 244 of that Act. The date upon which that administration is taken to have commenced is specified by section 247A. There is no suggestion that Mr Wittenberg had committed any act of bankruptcy in the six-month period before he died. Equally, I am satisfied that it is established on the evidence that, on the day of his death, Mr Wittenberg was not able to pay his debts as they became due from his own moneys. It follows that it is section 247A(1)(b) that applies, with the result that the relevant date is 25 April 2022 (i.e., the date of Mr Wittenberg’s death).

9    The property that is divisible amongst the creditors of Mr Wittenberg and his estate (which vests in the trustee of the deceased’s estate upon the making of an order for administration of the deceased’s estate) is defined in section 249 of the Bankruptcy Act. It relevantly provides as follows:

(1)    Subject to this Act, where an order is made for the administration of the estate of a deceased person under this Part:

(a)    the divisible property of the estate, not being after‑acquired property, vests forthwith in the Official Trustee or, if when the order is made, a registered trustee is trustee of the estate of the deceased person under this Act, in that registered trustee; and

(b)    after‑acquired property of the estate vests, as soon as it is acquired by, or devolves on, the estate, in the Official Trustee or, if a registered trustee is trustee of the estate of the deceased person under this Act, in that registered trustee;

and is divisible amongst the creditors of the deceased person and of his or her estate in accordance with this Act.

…

(7)    For the purposes of this section, where the administration of the estate of a deceased person is under this Part, by virtue of section 247A, to be deemed to have commenced at the time of his or her death, the divisible property of the estate comprises:

(a)    property that formed part of the estate upon the death of the deceased person other than:

(i)    property that, if the deceased person had not died and a sequestration order had been made against him or her immediately before his or her death, would not have been divisible amongst his or her creditors under Part VI; or

(ii)    so much of:

(A)    the proceeds of a policy of life assurance or endowment assurance; or

(B)    a payment from a regulated superannuation fund (within the meaning of the Superannuation Industry (Supervision) Act 1993) or an approved deposit fund (within the meaning of that Act); or

(BAA)    a payment from an exempt public sector superannuation scheme (within the meaning of that Act); or

(BA)    a payment from an RSA;

as would not have been divisible among the creditors of the deceased person under Part VI if:

(C)    the deceased person had not died; and

(D)    a sequestration order had been made against the deceased person immediately before his or her death; and

(E)    the amount concerned had been paid immediately before his or her death;

(b)    property that was or is acquired by, or devolved or devolves on, the estate after the death of the deceased person and before an order releasing the estate from administration under this Part is made, not being property that, if the deceased person had not died and a sequestration order had been made against him or her immediately before his or her death, would not have been divisible amongst his or her creditors under Part VI;

(c)    the capacity to exercise, and to take proceedings for exercising, all such powers in, over or in respect of property as might have been exercised by the legal personal representative of the deceased person for the benefit of the estate at any time before an order releasing the estate from administration under this Part is made;

(d)    property that forms part of the divisible property of the estate by virtue of section 251 and any amount for which a person is liable to account to the trustee of the estate under subsection 251(2); and

(e)    if, immediately before the death of the deceased person, any property was owned by the deceased person and another person or other persons as joint tenants—an amount equal to the value of the improvements (if any) made to that property wholly or principally by or at the expense of the deceased person after, or not earlier than 2 years before, the commencement of administration of his or her estate under this Part.

…

10    The references in that section to property that would not have been divisible amongst creditors under Part VI of the Bankruptcy Act points to the definition of divisible property found in section 116 of the Bankruptcy Act. It is not necessary to have detailed regard to that provision, save to note that in subsection (2) it excludes various specific categories of property from the broad definition of divisible property set out in subsection (1), none of which appear relevant to the present circumstances, except perhaps the following:

(2)    Subsection (1) does not extend to the following property:

…

(d)    subject to sections 128B, 128C and 139ZU:

…

(iii)    the interest of the bankrupt in:

(A)    a regulated superannuation fund (within the meaning of the Superannuation Industry (Supervision) Act 1993); or

(B)    an approved deposit fund (within the meaning of that Act); or

(C)    an exempt public sector superannuation scheme (within the meaning of that Act);

(iv)    a payment to the bankrupt from such a fund received on or after the date of the bankruptcy, if the payment is not a pension within the meaning of the Superannuation Industry (Supervision) Act 1993;

…

11    Section 139ZQ, upon which the applicant relies as the primary basis for his claim, is found in Subdivision J of Division 4B of Part VI of the Bankruptcy Act. It is thus one of the provisions that is applied, with necessary modification, to the administration of estates under Part XI by section 248 (I note that there are no modifications relevant to the disposition of this application prescribed by the regulations). Section 248 says:

(1)    Subject to this section, subsection 47(2), sections 49 to 51 (inclusive), subsections 52(4) and (5), section 62, sections 73 to 76 (inclusive), section 79, sections 81 to 114 (inclusive), sections 117 to 130 (inclusive), sections 132 to 139H (inclusive), Subdivisions I and J of Division 4B of Part VI and sections 140 to 147 (inclusive) and sections 156A to 184 (inclusive) apply, with any modifications prescribed by the regulations, in relation to proceedings under this Part and the administration of estates under this Part.

(3)    Subject to the regulations, in the application of the provisions specified in subsection (1) in relation to proceedings under this Part and the administration of estates of deceased persons under this Part:

(a)    a reference to a sequestration order shall be read as a reference to an order for administration of an estate under this Part;

(b)    a reference to bankruptcy shall be read as a reference to administration under this Part;

(c)    a reference to the property of the bankrupt shall be read as a reference to the divisible property of the estate as defined by subsection 249(6);

(d)    a reference to the date of the bankruptcy or to the date on which a person became a bankrupt shall be read as a reference to the date on which the order for administration under this Part was made;

(da)    a reference to the commencement of the bankruptcy shall be read as a reference to the time at which administration of the estate under this Part is, by virtue of section 247A, to be deemed to have commenced;

(e)    a reference to a bankrupt shall be read as a reference to a deceased person in respect of whose estate an order for administration under this Part has been made and as including a reference to the estate of that deceased person; and

(f)    a reference to the trustee of the estate of a bankrupt shall be read as a reference to the trustee of the estate of a deceased person in respect of whose estate an order for administration under this Part has been made.

…

12    Section 139ZQ relevantly provides as follows:

(1)    If a person has received any money or property as a result of a transaction that is void against the trustee of a bankrupt under Division 3, the Official Receiver:

(a)    if the Official Trustee is the trustee—on the initiative of the Official Receiver; or

(b)    if a registered trustee is the trustee—on application by the trustee;

may require the person, by written notice given to the person, to pay to the trustee an amount equal to whichever of the following is applicable:

(c)    if:

(i)    the transaction is void against the trustee under section 128B or 128C; and

(ii)    the transaction is by way of a contribution to an eligible superannuation plan for the benefit of a person (the beneficiary) who may or may not be the bankrupt; and

(iii)    the beneficiary is a member of the eligible superannuation plan;

whichever is the lesser of the following:

(iv)    the money or the value of the property received;

(v)    the beneficiary’s withdrawal benefit in relation to the eligible superannuation plan;

(d)    in any other case—the money or the value of the property received.

…

(8)    An amount payable by a person to the trustee under this section is recoverable by the trustee as a debt by action against the person in a court of competent jurisdiction.

13    The particular provisions relied upon by the applicant for the purpose of establishing a “transaction that is void against the trustee” are sections 120 and 121 of the Bankruptcy Act. Both of those sections are applied, with necessary modification, to the administration of estates of deceased persons by section 248.

14    Section 120 provides relevantly as follows:

(1)    A transfer of property by a person who later becomes a bankrupt (the transferor) to another person (the transferee) is void against the trustee in the transferor’s bankruptcy if:

(a)    the transfer took place in the period beginning 5 years before the commencement of the bankruptcy and ending on the date of the bankruptcy; and

(b)    the transferee gave no consideration for the transfer or gave consideration of less value than the market value of the property.

…

(7)    For the purposes of this section:

(a)    transfer of property includes a payment of money; and

(b)    a person who does something that results in another person becoming the owner of property that did not previously exist is taken to have transferred the property to the other person; and

(c)    the market value of property transferred is its market value at the time of the transfer.

15    Section 121 relevantly provides as follows:

(1)    A transfer of property by a person who later becomes a bankrupt (the transferor) to another person (the transferee) is void against the trustee in the transferor’s bankruptcy if:

(a)    the property would probably have become part of the transferor’s estate or would probably have been available to creditors if the property had not been transferred; and

(b)    the transferor’s main purpose in making the transfer was:

(i)    to prevent the transferred property from becoming divisible among the transferor’s creditors; or

(ii)    to hinder or delay the process of making property available for division among the transferor’s creditors.

(2)    The transferor’s main purpose in making the transfer is taken to be the purpose described in paragraph (1)(b) if it can reasonably be inferred from all the circumstances that, at the time of the transfer, the transferor was, or was about to become, insolvent.

…

(9)    For the purposes of this section:

(a)    transfer of property includes a payment of money; and

(b)    a person who does something that results in another person becoming the owner of property that did not previously exist is taken to have transferred the property to the other person; and

(c)    the market value of property transferred is its market value at the time of the transfer.

16    Finally, it will be recalled that the applicant relies, in the alternative to his reliance on section 139ZQ, on section 30(1) of the Bankruptcy Act. That section confers a broad and general power on the Court in the following terms:

(1)    The Court:

(a)    has full power to decide all questions, whether of law or of fact, in any case of bankruptcy or any matter under Part IX, X or XI coming within the cognizance of the Court; and

(b)    may make such orders (including declaratory orders and orders granting injunctions or other equitable remedies) as the Court considers necessary for the purposes of carrying out or giving effect to this Act in any such case or matter.

primary claim: section 139zq NOTICE

17    A delegate of the Official Receiver issued a notice pursuant to section 139ZQ to Mrs Wittenberg on 11 February 2025, and then an amended notice on 15 May 2025. The amended notice was served on Mrs Wittenberg on 30 May 2025. She did not comply with the notice, and so the applicant seeks to recover the amount specified in the notice as a debt pursuant to section 139ZQ(8).

18    For a notice issued pursuant to that section to be valid and effective, it is necessary that there was, in fact, a “transaction that is void against the trustee” of Mr Wittenberg’s estate. That is because, as Flick J explained in Chamberlain (Trustee) v Tilbrook [2017] FCA 1586 at [23]:

[T]he reference in s 139ZQ(1) to “a transaction that is void against the trustee” is but one of a number of provisions in the Bankruptcy Act directed at identifying transactions that are void and at identifying the circumstances in which property transferred by a bankrupt as a result of such transactions is available to the trustee for distribution to creditors. Sections 120 and 121, for example, are directed respectively at “[u]ndervalued transactions” and transfers of property that defeat creditors. Section 139ZQ is not drafted in terms of the Official Trustee being of the “opinion” or being “satisfied” that a person has received money or property as a result of a transaction that is void as against the trustee; the section is drafted in terms of there in fact being a transaction which is void. The power conferred is, accordingly, “dependent upon the existence of a jurisdictional fact”: Re McLernon; Ex parte SWF Hoists and Industrial Equipment Pty Ltd v Prebble (1995) 58 FCR 391 at 401 per Carr J.

19    I have already identified that the applicant, in this case, relies upon both sections 120 and 121 of the Bankruptcy Act in order to establish the existence of such a transaction.

20    Having regard to the terms of section 120 that I have set out above, with those necessary modifications for which section 248 provides, it is necessary for the applicant to prove:

(a)    a transfer of property;

(b)    by a person who later becomes a deceased person in respect of whose estate an order for administration under Part XI is made;

(c)    to another person;

(d)    in the period beginning 5 years before the commencement of the administration (i.e., 25 April 2017) and ending on the date on which the order for administration was made (i.e., 10 November 2022);

(e)    in the absence of consideration (or consideration less than the market value of the property).

21    The transfers of funds from the bank account in Mr Wittenberg’s name to that in the name of Mrs Wittenberg comfortably satisfy each of those elements, except for the second. That is:

(a)    The reduction in value of the chose in action possessed by Mr Wittenberg against his bank, and the creation of a corresponding new chose in action (or augmentation of an existing one) possessed by Mrs Wittenberg against her bank (see generally Lordianto v Commissioner of the Australian Federal Police (2019) 266 CLR 273; [2019] HCA 39 at [76] (Kiefel CJ, Bell, Keane, and Gordon JJ)), constitutes a “transfer of property” within the meaning of section 120(7)(b) of the Bankruptcy Act.

(b)    That transaction constituted a transfer of property to Mrs Wittenberg.

(c)    The various transactions all occurred between 26 April 2022 and 3 May 2022, and thus fell within the relevant period.

(d)    There is no evidence that any consideration was provided for the transfers, and I am satisfied that there was none.

22    I do not consider, however, that the transfer of property could be said to be “by” a person who later becomes a deceased person in respect of whose estate an order for administration under Part XI is made: Mr Wittenberg was deceased at the time those transfers were made, and there is no basis upon which I could conclude that the transfers were made on behalf of his estate.

23    Even if he had granted authority to Mrs Wittenberg or some other person to operate his bank accounts when he was alive, the applicant did not submit that any such authority would survive Mr Wittenberg’s death. And neither Mrs Wittenberg nor any other person had been granted probate, or letters of administration, in relation to Mr Wittenberg’s estate.

24    The applicant submitted that I should be satisfied that there was a transfer of property “by” Mr Wittenberg for the following reasons:

(a)    In order for there to be a “transfer of property by” a person it is not necessary that the person in question personally carry out the transfer, or that money be paid directly from the transferor to the ultimate transferee: see Davidson v Official Receiver [2026] FCAFC 15 at [67]-[77] (Snaden, Horan and Dowling JJ) and Worrell (Trustee) v Kerr-Jones [2002] FCA 1090 (Spender J). There will be many cases where a person instructs an accountant, employee, spouse or friend to carry out a transfer of property. The operation of section 120 cannot be avoided by such devices.

(b)    To hold that a transfer from a deceased’s bank account did not involve a “transfer of property by” the deceased person was said to “open up a rather large loophole”. The section was said to be concerned with the diminution of the property of a bankrupt by reason of a transfer to another. The words “transfer of property by” should be read to include the “transfer of property of” a deceased person.

25    While I accept that a transfer made on behalf of a person may still be a transfer by that person, I do not think that that proposition avails the applicant here. The issue here is not that Mr Wittenberg (or the legal representative of his estate) effected a transfer by indirect means. There is no evidence that Mr Wittenberg caused or consented to these particular transfers at all. I just cannot see how these transfers, made after his death, and without any evidence that he authorised, planned, directed, or even contemplated them, can be said to have been made “by” him (or the legal representative of his estate).

26    And I do not accept that the words “transfer of property by” should be read in the expansive way suggested by the applicant. The section has been carefully framed in such a way as to operate on transfers by a person who later becomes a bankrupt (or later becomes a deceased person in respect of whose estate an order for administration is made), and not with dealings in such a person’s property more generally. Indeed, at the very least, the natural reading of the word “transfer” suggests a legally effective transfer of property, and does not obviously encompass an unauthorised misappropriation of property. Furthermore, the attention given in some cases to whether a particular transfer has been made “by a person” is not consistent with the applicant’s construction: see, e.g., Stojanovski v Stojanovski [2018] NSWSC 1967 at [55], [58]-[61], [77]-[87], [95]-[96], [101] (Ward CJ in Eq).

27    It follows that I am not satisfied that the transfers to Mrs Wittenberg’s bank account from her husband’s bank account are transfers of property caught by section 120.

28    The same difficulty arises in relation to the applicant’s reliance on section 121. In relation to that section, as modified, the applicant must prove:

(a)    a transfer of property;

(b)    by a person who later becomes a deceased person in respect of whose estate an order for administration under Part XI is made;

(c)    to another person;

(d)    the property would probably have become part of the estate or would probably have been available to creditors;

(e)    the first person’s main purpose in making the transfer was to prevent, hinder or delay the transferred property from becoming divisible, or being available for division, among the first person’s creditors.

29    I am satisfied that the applicant has proved the fact of a transfer of property to another person. I am also satisfied that the transferred property would probably have become part of the administered estate and been available to creditors (I will explain my reasons for this conclusion in connection with the applicant’s alternative claim). But, for the reasons I have already given, I do not consider that the transfers were “by” Mr Wittenberg (or the legal representative of his estate). In those circumstances, the question of the “main purpose” of the transfers does not arise (and section 121(2) cannot assist).

30    For all those reasons, I am not satisfied that the applicant has proved the existence of a transaction that is void under either section 120 or section 121, with the consequence that a necessary precondition to the issuance of a valid notice pursuant to section 139ZQ has not been established. It follows that the primary claim advanced by the applicant fails.

alternative claim: Relief PURSUANT TO SECTION 30

31    In the alternative to his claim pursuant to section 139ZQ, the applicant seeks a declaration that the $302,000 transferred to Mrs Wittenberg is divisible property of the estate, and judgment against Mrs Wittenberg in that amount.

32    I am satisfied that the $302,000 previously held in Mr Wittenberg’s bank account is divisible property of the estate for the following reasons:

(a)    The divisible property of an estate where the administration of the estate is deemed to have commenced at the time of death (which is the case here, for the reasons I have already given), is defined by section 249(7).

(b)    Section 249(7)(a) provides that the divisible property of the estate includes property that formed part of the estate upon the death of the deceased, with certain exceptions.

(c)    On the day of Mr Wittenberg’s death, the balance of the bank account from which the transfers were made to Mrs Wittenberg’s bank account was $282,215. That money thus formed part of his estate (and the bare legal title to that account vested in the NSW Trustee and Guardian on his death).

(d)    On the day of Mr Wittenberg’s death, the balance of another bank account in his sole name was $20,015.93. That money thus also formed part of his estate (with the bare legal title to that account vesting in the NSW Trustee and Guardian on his death).

(e)    On 3 May 2022 $20,000 was transferred from the second bank account to the first bank account. It was as a result of that transfer that transfers in the total amount of $302,000 from the first bank account were able to be made to Mrs Wittenberg’s bank account.

(f)    The slightly more than $302,000 held in bank accounts in Mr Wittenberg’s sole name on the day of his death will thus be divisible property unless it falls within one of the exceptions identified in section 249(7)(a).

(g)    In relation to the exception specified in section 249(7)(a)(i), there is no evidence that the money would or might fall within any of the exceptions specified in section 116(2) (putting to one side the possible application, raised as a matter of candour by the applicant, of the exceptions in section 116(2)(d)(iii) and (iv); a topic to which I will return).

(h)    In relation to the exception specified in section 249(7)(a)(ii) (which raises, in substance, the same issue as that which arises in relation to section 116(2)(d)(iii) and (iv), and to which the applicant has again drawn the Court’s attention), the position is a little complicated, although ultimately I am satisfied that the exception does not apply (for reasons I will explain).

33    The reason why the applicant raised the potential application of the particular exceptions I have just mentioned is because the original source of the bulk of the money transferred to Mrs Wittenberg out of Mr Wittenberg’s bank account was a payment to Mr Wittenberg by the trustee of his superannuation fund, Plum Super. That is to say, on 6 January 2022, Mr Wittenberg withdrew $300,000 from his superannuation fund (and that amount was paid, on 18 January 2022, into the bank account from which the transfers to Mrs Wittenberg were made).

34    Turning first to the position under section 249(7)(a)(i), the question is, on the assumptions that Mr Wittenberg had not died, and that a sequestration order had been made against him immediately before his death, whether the $300,000 paid to him by Plum Super would not have been divisible amongst his creditors under Part VI. I have already indicated that the only potentially applicable bases upon which that amount might not have been divisible property are those specified in section 116(2)(d)(iii) and (iv). (If any other exceptions might have been argued to apply, then it would have been expected that Mrs Wittenberg would have appeared to lead evidence to demonstrate their application.)

35    Subsection (2)(d)(iii) can, I think, immediately be dismissed as a possibility. That particular provision exempts from the divisible property of a bankrupt his or her interest in (relevantly) a regulated superannuation fund. But the $300,000 in question was in fact paid to Mr Wittenberg (that is, following the payment, he no longer had an interest in respect of that amount in a regulated superannuation fund).

36    Subsection (2)(d)(iv), on the other hand, does apply to “a payment to the bankrupt from” a regulated superannuation fund, but only (relevantly) if the payment was “received on or after the date of the bankruptcy”. Here, of course, Mr Wittenberg received the payment from his superannuation fund several months before the date of his death (which on the assumptions required to be made for the purposes of section 249(7)(a)(i), would be the date of the bankruptcy: see section 5). It follows that that exception does not apply either.

37    It follows that the $300,000 payment from Plum Super is not excluded from the divisible property of the estate by reason of section 249(7)(a)(i).

38    Insofar as section 249(7)(a)(ii) is concerned, the only possibly relevant sub-paragraph is (B) (i.e., a payment from a regulated superannuation fund). While there is no doubt that the $300,000 was, at the time it was paid, “a payment from a regulated superannuation fund”, by the time of his death, those funds no longer bore that character. That is to say, the fact that those funds were originally derived from a regulated superannuation fund was a matter of historical interest only: see, e.g., Cunningham (Trustee) v Gapes, in the matter of Gapes (Bankrupt) [2017] FCA 787 at [22] (Collier J).

39    Expressed differently, the “property that formed part of the estate upon the death of the deceased person” did not include “a payment from a regulated superannuation fund” (emphasis added); rather, it included money that was originally derived from such a payment in the past. The “payment” was not property of the estate. Relatedly, and further, it is apparent from the assumptions required to be made for the purposes of section 249(7)(a)(ii) in sub-paragraphs (C)-(E) that the exception operates on superannuation payments that are made upon or by reason of the death of the person. Such payments will be excluded from the divisible property of the estate if they would not have been divisible property under section 116 on the assumptions required to be made (which include that the deceased person had not died). But the provision cannot sensibly be interpreted so as to require, by reason of the assumption in sub-paragraph (E), any amount ever received from a superannuation fund to be notionally treated as if it had been paid immediately prior to the time of the person’s death.

40    It follows that I am satisfied that the exception in section 249(7)(a)(ii) does not apply.

41    The sum of $302,000 held in bank accounts in Mr Wittenberg’s sole name at the time of his death is thus divisible property of his estate. The bare legal title to those bank accounts passed to the NSW Trustee and Guardian upon Mr Wittenberg’s death. And that property then vested in the applicant, pursuant to section 249(1)(a), on 10 November 2022 (when the Federal Circuit and Family Court of Australia (Division 2) made orders pursuant to section 244).

42    I am thus satisfied that the effect of the transfers that were made to Mrs Wittenberg between 26 April 2022 and 3 May 2022 was to misappropriate property of the estate of Mr Wittenberg that is divisible amongst his creditors and the creditors of his estate.

43    It does not seem to me to be relevant whether the transfers were carried out by Mrs Wittenberg, or even at her direction or on her behalf. Such a finding may well be open on the evidence, but I do not need to go that far. The evidence clearly establishes that the divisible property of the estate was transferred to her, for no consideration, in circumstances where she knew or ought to have known that the source of the funds was Mr Wittenberg’s bank account. That is enough to justify an order that the misappropriated funds be returned to the applicant.

conclusion

44    For the foregoing reasons, it is appropriate, as the applicant submitted, that I declare that the transfer of the sum of $302,000 to Mrs Wittenberg between 26 April 2022 to 3 May 2022 was a transfer of property of the estate of Mr Wittenberg that is divisible amongst his creditors, and the creditors of his estate. It is also appropriate that I give judgment in favour of the applicant against Mrs Wittenberg in the amount of $302,000 to reflect that position. The applicant claimed pre-judgment interest, and I can see no reason why that should not be ordered from 3 May 2022.

Associate:

Dated:    8 September 2026