Bankrupt Estate Trustee Appointment Application Dismissed

Original Word Document (95.8 KB) Federal Court of Australia

Carrello (Trustee), in the matter of the Bankrupt Estate of Jones (deceased) [2026] FCA 468

| File number: | WAD 229 of 2025 |

| Judgment of: | JACKSON J |

| Date of judgment: | 20 April 2026 |

| Catchwords: | CORPORATIONS – application for trustee in bankruptcy to be appointed receiver and manager of a self-managed superannuation fund under s 57 of the Federal Court of Australia Act 1976 (Cth) – trustee of fund is an undischarged bankrupt – beneficiaries are that person and a deceased bankrupt estate – bankruptcies and winding up of former trustee mean no person has power lawfully to realise fund’s assets and wind up fund – applicants intend half of fund to be treated as an asset divisible among creditors of deceased estate – applicants’ disclosure as to this intention unsatisfactory – doubt whether creditors of deceased estate have any claim on fund – application dismissed with liberty to apply |

| Legislation: | Bankruptcy Act 1966 (Cth) ss 116(2)(d), 249(6)

Corporations Act 2001 (Cth) s 477(2)

Federal Court of Australia Act 1976 (Cth) s 57

Superannuation Industry (Supervision) Act 1993 (Cth) ss 120(1)(b), 126K(1)

Superannuation Industry (Supervision) Regulations 1994 (Cth) reg 6.21(2A) |

| Cases cited: | Brereton, Re MyHouse (Aust) Pty Limited (administrators appointed) [2020] FCA 610

Hosking, Re Business Aptitude Pty Ltd (in liq) [2016] FCA 1438

Kite v Mooney, Re Mooney’s Contractors Pty Ltd (in liq) [2016] FCA 886

Re Goldin Australia Pty Ltd (Administrators Appointed) [2024] FCA 1518

Sapphire (SA) Pty Ltd v Ewens Glen Pty Ltd [2011] FCA 600

The Owners of the Ship ‘ Shin Kobe Maru ’ v Empire Shipping Company Inc (1994) 181 CLR 404 |

| Division: | General Division |

| Registry: | Western Australia |

| National Practice Area: | Commercial and Corporations |

| Sub-area: | Corporations and Corporate Insolvency |

| Number of paragraphs: | 85 |

| Date of hearing: | Determined on the papers |

| Counsel for the Applicants: | Mr C Mudhan and Ms K Parker |

| Solicitor for the Applicants: | Murfett Legal |
ORDERS

| WAD 229 of 2025 |
| IN THE MATTER OF THE BANKRUPT ESTATES OF SUSAN ELIZABETH JONES AND GREGORY HAROLD NORMAN JONES (DECEASED) |
| BETWEEN: | GIOVANNI MAURIZIO CARRELLO IN HIS CAPACITY AS TRUSTEE IN BANKRUPTCY OF THE ESTATES OF SUSAN ELIZABETH JONES AND GREGORY HAROLD NORMAN JONES (DECEASED)

First Applicant

JEROME HALL MOHEN AND GREGORY BRUCE DUDLEY AS JOINT AND SEVERAL LIQUIDATORS OF BRUNSWICK DIESELS PTY LTD (ACN 072 773 267) (IN LIQUIDATION) (RECEIVERS AND MANAGERS APPOINTED)

Second Applicant

BRUNSWICK DIESELS PTY LTD (ACN 072 773 267) (IN LIQUIDATION) (RECEIVERS AND MANAGERS APPOINTED)

Third Applicant | |

| order made by: | JACKSON J |
| DATE OF ORDER: | 20 April 2026 |
THE COURT ORDERS THAT:

1. The application is dismissed, with liberty to apply by interlocutory application in this proceeding.

2. There is liberty to apply in relation to costs by short written submission to the Chambers of Justice Jackson by 4.00 pm AWST on 27 April 2026.

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

REASONS FOR JUDGMENT

JACKSON J:

1 The applicants in this proceeding are: the trustee in bankruptcy of two sequestrated estates; a company associated with the persons concerned; and the liquidators of that company. They seek orders to permit the sale of the main asset of the company and the winding up of a superannuation trust through which it is held. Those orders are necessary because the bankruptcies and the winding up of the company have effectively disabled the trustees of relevant trusts from acting in that capacity.

2 The application was filed in July of 2025. The evidence and submissions provided meant that certain things were unexplained, so that on two occasions the Court has had to direct questions to the applicants.

3 Regrettably, as will be explained below, an important aspect of the proposal was made plain to the Court only gradually and incompletely. In broad terms, this concerns the intended use of half of the funds that will be produced by the winding up of the superannuation trust. This lack of disclosure and unaddressed concerns about the proposed use of the funds, together with the history of the Court’s inquiries about the matter, mean that it is appropriate to dismiss the application. The applicants will, however, have liberty to apply.

The application

4 The application concerns a self-managed superannuation fund known as the Jones Superannuation Fund (or just the Fund). Its beneficiaries are (or were) Susan Jones and her late husband, Gregory Jones.

5 Mrs Jones is an undischarged bankrupt and Mr Jones’s deceased estate is under administration in bankruptcy. In both cases, the trustee in bankruptcy is the first named applicant, John Carrello.

6 Along with Mr Carrello in his capacity as trustee in bankruptcy of the two bankrupt estates, the further applicants are the company that has already been mentioned, Brunswick Diesels Pty Ltd, and the Liquidators of that company, Jerome Mohen and Gregory Dudley. The company is involved as it is named as the trustee of a relevant family trust.

7 The applicants seek orders appointing Mr Carrello to be receiver and manager of the assets of the Superannuation Fund for the purpose of getting in and realising its assets, discharging its liabilities, and distributing the surplus.

8 No person has been named as a respondent to the application and there is no contradictor.

The facts

9 The following findings are mostly based on the affidavit of Mr Carrello that was filed with the originating application.

10 In 1987, Mr and Mrs Jones established the G & S Jones Family Trust, with themselves as trustees. In that capacity, in 1994 they bought land in the town of Brunswick in Western Australia (Brunswick Property).

11 In 1996, Mr and Mrs Jones retired as trustees of the Family Trust, to be replaced by Brunswick Diesels. They were the sole directors and shareholders of the company from immediately after its incorporation.

12 At about the same time, the Superannuation Fund was established by a deed styled as a superannuation trust deed, dated 19 February 1996 (Fund Deed). Brunswick Diesels was the original trustee of the Superannuation Fund.

13 In 1999, to effectuate the replacement of the Joneses as trustees of the Family Trust, the Brunswick Property was transferred to Brunswick Diesels as registered proprietor.

14 On 11 May 2009, Brunswick Diesels retired as trustee of the Superannuation Fund, to be replaced by Mr and Mrs Jones.

15 Also on 11 May 2009, there was an agreement for the transfer of the beneficial interest in the Brunswick Property from the Family Trust to the Superannuation Fund. The transaction was documented in an instrument styled an Instalment Warrant Deed. It appears from a recital to the Instalment Warrant Deed that by this time, the only named beneficiaries of the Family Trust were Mr and Mrs Jones. (This is confirmed by a deed of variation of the Family Trust that was executed later, in 2014.)

16 In broad terms, the Instalment Warrant Deed documented the purchase, by the Superannuation Fund, of the Joneses’ beneficial interest in the Brunswick Property, which they held under the Family Trust. The terms of the Instalment Warrant Deed relevantly provided that Brunswick Diesels was to remain registered proprietor of the Brunswick Property, but was to hold it on trust for Mr and Mrs Jones in their capacities as trustees of the Superannuation Fund. Thus Mr and Mrs Jones in their capacities as trustees of the Superannuation Fund were to hold the interest in the Brunswick Property conveyed to them as a result of the transaction as to 50% for the account of Mr Jones and 50% for the account of Mrs Jones.

17 From the financial year ending 30 June 2009 onwards, the interest in the Brunswick Property that was transferred as a result of this transaction was recorded in the accounts of the Superannuation Fund as one of its investments. Mr Carrello is satisfied on this basis that the beneficial interest in the Brunswick Property has been an asset of the Superannuation Fund since that time, and so am I.

18 Mr Jones passed away in late December 2023. By force of cl 15.8(4) of the Fund Deed, that left Mrs Jones as the sole trustee of the Superannuation Fund.

19 By combined force of cll 40.1, 40.2 and 40.4 of the Fund Deed, on Mr Jones’s death the amount standing to his credit in his accumulation account as a member of the Fund was required to be paid to a nominated dependant or, if there was no nominated dependant, the trustee of the Fund was required (cl 40.4) to:

pay or apply the Benefit to or for the benefit of such one or more of the former Member’s Dependants in the manner, at the times, and in such proportions between them, if more than one, as the Trustee may from time to time in its absolute discretion determine.

20 Clause 3.1 defines ‘Dependant’ in relation to a member of the Fund to mean:

(1)    the Spouse of a Member or the widow or widower of a deceased Member; or,

(2)    any child of a Member including any person who, in the opinion of the Trustee is or was actually maintained by the Member as his child; or

(3)    any other person who, in the opinion of the Trustee, was substantially financially dependent on the Member at the relevant time[.]

21 Mr Jones left no nominated dependent for his interest in the Superannuation Fund, so on the face of things the trustee of the Fund is obliged to pay his accumulated benefit to Mrs Jones and/or Mr Jones’s children. Mr and Mrs Jones had three children who were adults at the time of Mr Jones’s death. There does not appear to be any definition of ‘child’ in the Fund Deed that would exclude Mr and Mrs Jones’s offspring from the term ‘Dependant’ because they are all adults and not economically dependent on their parents (assuming that to be the case).

22 Mrs Jones is the executor appointed under Mr Jones’s will, and has obtained probate. Mrs Jones is the sole beneficiary under the will.

23 On 2 January 2024, Mr Mohen and Mr Dudley became the Liquidators of Brunswick Diesels by reason of a creditors’ voluntary winding up.

24 On 2 February 2024, the Supreme Court of Western Australia appointed Mr Mohen and Mr Dudley as receivers and managers of the assets of the Family Trust.

25 On 10 December 2024, Mr Carrello was appointed as trustee in bankruptcy of Mrs Jones’s bankrupt estate, pursuant to a debtor’s petition.

26 On 18 February 2025, on Mrs Jones’s application, Mr Carrello was appointed as the trustee in bankruptcy of Mr Jones’s deceased estate.

Why orders of the Court are sought

27 Mrs Jones wishes for the Superannuation Fund to be wound up. She does not want to continue to run a self-managed superannuation fund. She wants her share in the Fund to be rolled into a retail superannuation fund.

28 For this to occur, the Brunswick Property and any other assets of the Superannuation Fund need to be realised. The problem is that no person has the power lawfully to sell the assets and wind up the Superannuation Fund without the intervention of the Court.

29 That is because the sole trustee of the Superannuation Fund, Mrs Jones, as an undischarged bankrupt, is by force of s 120(1)(b) of the Superannuation Industry (Supervision) Act 1993 (Cth) (SIS Act), a ‘disqualified person’ because she is an ‘insolvent under administration’. This means she is prohibited from acting as the trustee of a superannuation entity such as the Superannuation Fund: SIS Act s 126K(1). Under the Fund Deed, this prohibition also means that she was required ‘forthwith [to] cease to act as Trustee’: cl 15.8(3). She is therefore unable to distribute the assets of the Fund to those who are entitled to them.

30 Mr Carrello says in his affidavit sworn 3 July 2025 in support of the application that he is satisfied that Mrs Jones’s interest in the Superannuation Fund is protected from realisation in her bankrupt estate pursuant to s 116(2)(d) of the Bankruptcy Act 1966 (Cth). That is so, as s 116(2)(d)(iii)(A) of the Bankruptcy Act excludes from property divisible by creditors any interest of the bankrupt in a regulated superannuation fund within the meaning of the SIS Act. As a result of questioning from the Court, the applicants have produced evidence that the Fund was indeed a regulated superannuation fund.

31 Mr Carrello’s affidavit does not, however, make any comment on the availability to the creditors of Mr Jones’s deceased estate of the interest in the Fund that Mr Jones held immediately before his death. As will be described below, that only emerged gradually as an issue.

32 The problem of how to wind up the Superannuation Fund is compounded to some extent by the liquidation of Brunswick Diesels. This introduces a further complication in relation to the realisation of the Brunswick Property, as it is likely that the Liquidators will need to cause the company to execute a transfer of the legal title to the property to any purchaser. The winding up means that Brunswick Diesels (a former trustee of the Superannuation Fund) is also a disqualified person now under s 120(1)(b) of the SIS Act, so it cannot step in to act as trustee of the Fund to realise and distribute its property.

33 A possible solution to these problems might have been for Mrs Jones to apply for leave under s 126J of the SIS Act to manage the Superannuation Fund for the purpose of winding up it. As will emerge further below, it is not clear from the applicants’ submissions why this avenue was not pursued, despite a specific inquiry from the Court as to this matter.

34 In any event, the solution to these problems that is proposed by the applicants is set out in a minute of orders dated 20 March 2026. It is the outcome of some refinement subsequent to the filing of the originating application in July last year. The applicants seek orders for Mrs Jones to retire as trustee of the Superannuation Fund, and for Mr Carrello to be appointed as receiver and manager of the property of the Fund (Receiver). Mr Carrello also seeks an order in his capacity as trustee of the bankrupt estates that he would be justified and will be acting properly in being appointed Receiver of the Fund.

35 The powers proposed to be conferred on the Receiver include the power to do all things necessary or convenient to be done for, or in connection with, or incidental to, the attainment of certain defined Objectives. These are:

(a) to get in and realise the property of the Superannuation Fund, including the Brunswick Property;

(b) to discharge the liabilities owed by the Fund;

(c) to prepare final accounts and tax lodgements for the Fund; and

(d) to distribute the assets of the Fund as follows:

(i) Mr Jones’s interest to his deceased estate; and

(ii) Mrs Jones’s interest to be rolled into a retail superannuation fund of her choice.

36 There is also an order sought requiring the Receiver to distribute the net assets of the Fund in accordance with those last Objectives, save that this proposed order (and another) specify that the costs of the receivership will be taken out of the share that is to be paid to Mr Jones’s deceased estate. It also describes the recipient of that remainder payment specifically as Mr Jones’s ‘deceased bankrupt estate’. The costs of the present application are to be borne generally by the Superannuation Fund.

37 The orders would also confer on Mr Carrello as Receiver the power to compromise any claims by, on behalf of, or against the Fund. They would also give him, with necessary adaptation, the broad list of powers given to a liquidator under s 477(2) of the Corporations Act 2001 (Cth).

38 Incidental orders sought include an order that the Liquidators will be justified in executing a transfer of the Brunswick Property to Mr Carrello as Receiver and in signing any document to give effect to the sale or transfer of any assets of the Fund as required by the Receiver. They also give Mr Carrello ‘liberty’ to have his remuneration approved by the Court. This is not put as a requirement, and nor is it proposed that there be any broader requirement for any payments out by the Receiver to be approved by the Court.

39 Mr Carrello will be discharged and released from his office and duties as Receiver upon attainment of the Objectives, or upon the conclusion of the administration of the bankrupt deceased estate of Mr Jones and the bankrupt estate of Mrs Jones.

40 Mrs Jones has affirmed three affidavits that have been filed in support of the orders sought. In the first, affirmed on 1 August 2025, she confirms that she consents to the orders in her own right, including as sole beneficiary under Mr Jones’s will and as a member of the Superannuation Fund, and in her capacity as executrix of his deceased estate and as the trustee of the Fund.

Power to appoint a receiver in these circumstances

41 The appointment of Mr Carrello as Receiver of the assets of the Superannuation Fund with power to realise them and wind up the Fund is sought under s 57 of the Federal Court of Australia Act 1976 (Cth), alternatively the Court’s implied jurisdiction.

42 I doubt that the latter provides the power to appoint a receiver in these circumstances, but it is not necessary to decide that, as I am satisfied that s 57 does provide such a power. The section itself provides that the Court may, at any stage of a proceeding, on such terms and conditions as it thinks fit, appoint a receiver by interlocutory order ‘in any case in which it appears to the Court to be just or convenient to do so’. These words are wide and must be read in light of the principle that it is generally inappropriate to read down provisions granting powers to a court by making implications or imposing limitations which are not found in the express words: The Owners of the Ship ‘ Shin Kobe Maru ’ v Empire Shipping Company Inc (1994) 181 CLR 404 at 421.

43 The power to appoint a receiver under s 57 of the Federal Court Act is not confined to a closed class of circumstances, but ultimately the general ground on which it will be exercised is the protection or preservation of property for the benefit of persons who have an interest in it: Sapphire (SA) Pty Ltd v Ewens Glen Pty Ltd [2011] FCA 600 at 15. It might be thought that this, or the fact that the order must be an interlocutory one, precludes the appointment of a receiver who has the power to sell and distribute property, rather than simply to hold and preserve it pending further orders. However the use of s 57 to appoint a receiver with wider powers to realise property in circumstances similar to the present ones is well established.

44 For example, in Kite v Mooney, Re Mooney’s Contractors Pty Ltd (in liq) [2016] FCA 886, Yates J appointed persons who were liquidators of a company that was the trustee of a family trust as receivers and managers of the assets of the trust with power to sell those assets, because of doubt about whether they already had that power when the winding up of the company meant that it was disqualified from acting as trustee. In Brereton, Re MyHouse (Aust) Pty Limited (administrators appointed) [2020] FCA 610, Farrell J, acting under s 57, appointed administrators of a company as receivers with a power of sale of trust assets where there was ambiguity over whether the company, as bare trustee, had power to sell them itself. Shariff J followed those authorities in Walker (Administrator), Re Goldin Australia Pty Ltd (Administrators Appointed) [2024] FCA 1518, a case where a corporate trustee was disabled from acting as trustee of a fund once it had gone into administration. His Honour appointed the administrators as receivers and managers of the fund pursuant to s 57 and expressly conferred power to sell the assets comprising the trust fund, in circumstances where that power was sought for the purpose of realising the assets as a going concern for the benefit of creditors.

45 In the first two of those cases, the Court did not permit the distribution of proceeds of the sale of the assets without a further direction of the Court. But the power to authorise such distribution pursuant to s 57 is inherent in that reservation. In Goldin Australia, Shariff J did not confine the receivers’ powers in that way, although his Honour did require a statement of receipts and payments, in relation to the realisation of the trust property and payments made by the receivers.

46 Further in two of those cases, and as observed by Gleeson J in Hosking, Re Business Aptitude Pty Ltd (in liq) [2016] FCA 1438 at [22], the Court has exercised its power under s 57 for the purpose of appointing a liquidator or administrator of a former trustee company not just as receiver, but receiver and manager of the trust assets.

47 I am therefore satisfied that s 57 confers power to make the orders sought. However, as I am about to explain, I do not consider that it appropriate to make those orders on the basis of the present application. As mentioned at the outset, that is partly because of a lack of disclosure in the context of the procedural history of the application, which I will now describe.

The history of the proceedings: questions and disclosure

48 The only evidence filed at the same time as the originating application was the affidavit of Mr Carrello sworn on 3 July 2025. This annexed the Fund Deed and provided the factual background that is outlined above. It also annexed an email dated 2 July 2025 from Mrs Jones to Mr Carrello which said:

I confirm that I have obtained legal advice regarding your appointment as Receiver of the Fund and the effect of your appointment over its assets.

I hereby give consent for you:

a.    to make the appropriate Court application and seek orders to appoint you as the Receiver of the Fund; and

b.    to distribute Greg’s interest in the Fund after the costs of your receivership to the Deceased Estate.

49 This was in the context where the orders sought then, as now, were to authorise the distribution of Mr Jones’s interest in the Superannuation Fund to his ‘bankrupt deceased estate’ after the costs of the receivership were deducted from that interest. Mr Carrello’s own affidavit summarised the purpose of the receivership for which the orders were to provide, as being to allow ‘the Receiver to realise the assets of the Fund, including the Property, and distribute the net funds to Ms Jones and the Deceased Estate of Mr Jones respectfully [sic ‘respectively’]’.

50 No details have been provided of the legal advice to which Mrs Jones refers, including who provided it, whether or not it was reduced to writing, and what its content was.

51 On receiving the application, my Chambers listed it for a case management hearing on 24 July 2025. In the email confirming that listing, my associate said that it would be helpful if counsel for the applicants were prepared to address the Court on matters including:

(a) the position of the Liquidators who, although named as applicants, had provided no affidavit indicating their position;

(b) who might be a proper respondent to the application, noting that some hearsay evidence of one only of the Joneses’ three adult children had been provided;

(c) whether consideration had been given to Mrs Jones applying under the SIS Act for leave to realise and distribute the assets of the Fund, so that there would be no need to appoint a receiver, and evidence as to her position on that question; and

(d) what Mrs Jones’s position was in respect of all this, noting that there was no direct evidence of that.

52 The case management hearing ended up being held on 6 August 2025. A couple of days before that, the applicants filed an outline of written submissions responding to the matters raised by my associate, as well as an affidavit of one of the Liquidators, Mr Mohen, confirming their consent to the orders sought, and the first affidavit of Mrs Jones, affirmed on 1 August 2025 and filed on 4 August 2025.

53 Apart from confirming Mrs Jones’s consent to the orders sought as already mentioned, her affidavit confirmed that she had probate of Mr Jones’s will, that she was the sole beneficiary under the will, that she had applied to bankrupt his deceased estate, and that at the time of Mr Jones’s death, he and Mrs Jones were the sole trustees and sole members of the Superannuation Fund. The affidavit also said:

In respect of Mr Jones’ member balance and the assets of the Fund, I understand there may be competing claims against the same. However, I have agreed with all interested parties to deal with the Fund, its assets and the member balances in accordance with the orders sought in the Application.

Who might be making the competing claims, who the interested parties were, and how their agreement was obtained and expressed, is not said.

54 In terms of the second question put by my Chambers mentioned above, as to who might be a proper respondent to the application, the submissions essentially say that as executor and sole beneficiary of Mr Jones’s will, and the only member of the Superannuation Fund apart from Mr Jones, Mrs Jones consents to the application.

55 In so far as the position of Mr and Mrs Jones’s adult children is concerned, the submissions say that Mrs Jones is the ‘only dependent under the Fund Deed’. But it is not immediately apparent why that is so, since on its face the definition of ‘Dependant’ in the Fund Deed set out at ] above provides for both spouses and children to be dependents. It also does not engage with the apparent discretion of the trustee described at ] above to pay a benefit to other dependents. While I do not foreclose that different interpretations of those provisions may be available, I have received no submissions as to what those provisions mean, or even any submissions pointing out that they may be relevant.

56 The written submissions of 4 August 2025 also say that the children of Mr and Mrs Jones are ‘ineligible to receive superannuation death benefits as a pension or annuity under Regulation 6.21(A) of the Superannuation Industry (Supervision) Regulations 1994 ’. There is no reg 6.21(A) of those regulations; this appears to be a reference to reg 6.21(2A). In any event, the submissions do not explain the significance of that regulation or its asserted application in this case. That is in the face of a specific request from my Chambers that, if the applicants’ position is that people such as the Jones’s children do not need to be heard on the application, that should be explained. The submissions do not even say in terms what the applicants’ position as to that is, let alone explain that position.

57 With leave given at a case management hearing on 6 August 2025, the applicants filed further written submissions on 11 August 2025, with a view to those being their final submissions so that the matter could be determined on the papers. The focus of those submissions was on establishing the disqualification of Mrs Jones to act as trustee of the Superannuation Fund and the unwillingness of the Liquidators to take steps to deal with assets of the Fund, both being matters of which I am satisfied. They also sought to establish that the Court had power to make the orders sought, that being a matter of which, as I have said, I am also satisfied.

58 However, after reviewing all the materials, there were various matters which I considered had not been addressed. In view of the non-adversarial nature of the application, I considered it appropriate to set those out in a memorandum to the applicants dated 15 August 2025. Questions asked relevantly included:

(a) whether there was evidence establishing why it was necessary or desirable to wind up the Superannuation Fund;

(b) whether the benefit from the Fund was proposed to be paid to Mr Jones’s deceased estate because he left no Dependants – the question was framed on the assumption that the adult offspring of Mr and Mrs Jones were not Dependants because they were no longer minor children, but as outlined at ] above, there may in fact not be any support for that assumption in the Fund Deed;

(c) whether Mrs Jones had received independent advice on the possibility of applying for leave to manage the Superannuation Fund under s 126J of the SIS Act, which may mean that Mr Carrello would not need to act as Receiver on a fee charging basis; and

(d) why it was appropriate for the costs, expenses and remuneration of the Receiver to be borne by Mr Jones’s interest in the Fund.

There were several other questions too which have been answered satisfactorily and so do not need to be set out here.

59 These questions appeared to prompt the applicants to file a second affidavit of Mrs Jones affirmed on 4 September 2025 (as well as a further affidavit from Mr Mohen which need not be described here). This contained evidence shedding further light on the first question mentioned in the preceding paragraph. Mrs Jones explains that she does not wish to continue to administer the Fund as a self-managed superannuation fund, and that an in specie transfer of the Fund’s assets to a retail fund will not be possible, meaning that the Fund’s assets need to be sold. I accept that Mrs Jones’s wish not to continue to operate a self-managed superannuation fund is a reasonable one and, since the main asset of the Fund is the Brunswick Property, it may readily be accepted that an in specie transfer is not possible.

60 Mrs Jones’s second affidavit also says:

Further, Giovanni Maurizio Carrello, in his capacity as trustee in bankruptcy of Mr Jones’ estate has inserted [sic ‘asserted’] an entitlement to the proceeds of Mr Jones’ portion of the Fund. I do not wish to contest this entitlement provided that Mr Jones’ bankrupt estate bares [sic ‘bears’] the costs of selling the assets and appointing Mr Carrello as Receiver of the Fund.

61 By a series of consent orders, the applicants sought and obtained more time to file further materials, which eventually occurred in March of 2026. The new materials took the form of a third affidavit of Mrs Jones, affirmed on 18 March 2026, and a further outline of written submissions.

62 As for the question of whether Mrs Jones had taken independent advice about the other options available to her in connection with the manner of winding up the Superannuation Fund, her third affidavit said (in as many words): ‘I have received legal advice about my obligations and options in relation to the Fund.’ This does not say that it is independent legal advice and does not say who provided it, or what the advice was. Hence, as I mentioned earlier, it remains unclear why the option of applying under s 126J of the SIS Act has not been pursued.

63 As to the same question, the further submissions said (at para 6), that as set out in Mrs Jones’s third affidavit:

Ms Jones has been advised of her entitlements and obligations in respect of the Fund and does not wish to operate the Fund. On the basis that the Receiver’s costs are bone [sic, borne] by Mr Jones estate from the proceeds that might otherwise be payable to her, Ms Jones would prefer the appointment of the Receiver to effectively wind up the Fund.

64 This does not address the question of whether the same outcome, that is the winding up of the Fund, could be attained more cost effectively or conveniently by the Court authorising Mrs Jones to act as trustee for that purpose.

65 As to Mr Jones’s former interest in the Superannuation Fund, the affidavit of 18 March 2026 says:

1.     I do not wish to continue with a self-manager [sic ‘self-managed’] superannuation fund, and I do not wish to manage a self-manager [sic] superannuation fund. It is my preference that the assets of the Fund are sold, my member balance of the Fund is transferred to a retail superannuation fund and my late husband’s member balance of the Fund is made available to creditors of his estate.

2.     I understand that I may be entitled to my late husband’s member balance in the Fund. However:

8.1    Mr Carrello has raised the possibility of the Bankrupt Deceased Estate of Gregory Harold Norman Jones making a claim against my late husband’s member balance in the Fund to prevent payment being made to me.

8.2    Further, I have received the benefit of life insurance following the passing of my late husband, together with my own superannuation, I feel that I am adequately provided for financially and would like the proceeds of my late husband’s member balance to be made available to creditors of his estate.

Accordingly, I have agreed with Mr Carrello that provided the selling costs of the Property and the costs of Mr Carrello’s appointment as Receiver are deducted from my late husband’s member balance in the Fund, notwithstanding any entitlement [I] may have, would like my late husband’s member balance in the Fund to be paid to the benefit of his estate.

66 On this subject the further submissions say (at para 5):

Mr Jones[’s] member balance would in the ordinary course be payable to Ms Jones as the only person who fits within the definition of Dependant in clause 3.1 of the Fund Deed. However, as stated in [Mrs Jones’s affidavit of 18 March 2026 and] previous affidavits:

5.1.     Mr Carrello as trustee of the bankrupt estate of Mr Jones’ has asserted the estate may have an entitlement to Mr Jones’ portion of the Fund; and

5.2.     Ms Jones believes that she has been adequately provided for financially and would like some funds to flow to the benefit of creditors of Mr Jones.

67 The further submissions also clarified that, while the intent behind the orders is for the Receiver’s costs, expenses and remuneration to be borne by the portion of the Superannuation Fund that was attributed to the account of Mr Jones, the costs of this proceeding are to be borne by the Fund as a whole.

The concerns that arise

68 The following matters emerge from this account of the history of the proceeding, in the context of the facts set out at the beginning of this judgment.

69 First, when the application was filed, the outcome sought was relevantly disclosed as the payment of the late Mr Jones’s interest in the Superannuation Fund, after the costs of the receivership, to Mr Jones’s deceased estate. There are at least two problems with this.

70 One problem is that it did not engage with the question of whether Mr Jones’s deceased estate has any claim on what was formerly his interest in the Fund. That is, it did not engage with the provisions of the Fund Deed set out at ]- ] above. The only reference to those provisions in any of the applicants’ submissions is that set out at ] above, which was a response to a specific question about cl 3.1 of the Fund Deed from the Court.

71 The other problem is that it did not disclose that Mr Carrello has asserted a claim to the whole of the interest, apparently beyond just a claim to his remuneration and costs as Receiver, which may cover claims by undisclosed creditors of the bankrupt deceased estate. In other words, it did not disclose that the intention is that whatever remains of half of the Fund after the Receiver’s remuneration and expenses will be treated as an asset divisible among the creditors of the deceased estate.

72 Second, limited additional disclosure as to the likely use of the funds attributable to Mr Jones’s former interest in the Superannuation Fund was provided in Mrs Jones’s affidavit of 1 August 2025, apparently in response to questions from the Court: see ] above. The affidavit mentions that there ‘may be competing claims’ against that portion of the Fund, but it does not describe what those claims are, who makes them, or how they arise. It says that Mrs Jones has agreed with ‘all interested parties’ that the Fund will be used in accordance with the orders sought in the application but does not say who those parties are or how that agreement was reached.

73 Third, there was further limited disclosure on 4 September 2025 in Mrs Jones’s second affidavit. This said for the first time that it was Mr Carrello who had asserted an entitlement to Mr Jones’s portion of the Superannuation Fund – apparently all of it. No more information is given of, say, the basis of the claim and whether it is asserted on behalf of creditors. There is no information as to whether Mr Carrello in his capacity as trustee in bankruptcy of the deceased estate is one of those creditors in respect of remuneration and expenses. No figures have been provided by way of estimates as to whether there will be any surplus remaining after those claims are met.

74 Fourth, only with the final materials filed in March 2026 was the intended use of Mr Jones’s half of the Fund fully spelled out. Only in Mrs Jones’s third affidavit, of 18 March 2026, was it said that Mr Jones’s member balance was to be made available to creditors of his bankrupt deceased estate. Also, it is only in Mrs Jones’s third affidavit that it becomes apparent that she appears to be relinquishing any claim to her late husband’s former interest in the Fund, although even that is not clear.

75 That the creditors have any claim on the Superannuation Fund is by no means obvious; while the applicants have not raised this, it may be that s 249(6)(a)(i) and (ii) of the Bankruptcy Act in combination with s 116(2)(d)(iii)(A) put superannuation assets out of the reach of those creditors. Section 249 is found in Pt XI of the Act, concerning the administration of estates of deceased persons in bankruptcy. Perhaps for some reason that Part does not apply here. But once again, the Court has not been given any submissions on the question, one way or another.

76 Fifth, even in the papers filed after the initial filing of the application there is no real engagement with the provisions of the Fund Deed, and so no articulation of how the deceased estate of the late Mr Jones has any claim on what was formerly his interest in the Fund. On the face of the provisions set out above, there is no such claim. But this is only the preliminary view that I have reached as a result of my own review of the evidence, unassisted by submissions on the point.

77 A sixth point is that the applicants have not said much about who might be a proper respondent to the application, other than to say that Mrs Jones consents to it. This is related to the fifth point above, because persons such as the children of Mr and Mrs Jones conceivably have an interest in what was formerly his member balance in the Fund. I acknowledge that one of the questions put by the Court assumed that they did not have that claim, because they are not minors. That assumption may have been mistaken. But the broader point is that the applicants have not addressed the relevant provisions of the Fund Deed and have not given any assistance to the Court.

78 Seventh and finally, there is broad evidence that Mrs Jones has obtained advice, including legal advice, on her options, but there is no indication as to who has provided that advice and whether they are independent of the applicants. Nor has the content of the advice been disclosed.

Conclusion

79 The matters just described give rise to two strong reasons why the application should be refused.

80 One is that there has been a lack of candour as to the ultimate use contemplated for half of the Superannuation Fund. As recounted above, the nature and extent of that use only emerged bit by bit, in response to questions from the Court. It is axiomatic that in applications such as these, where the assistance of the Court is being sought and there is no contradictor, the applicants must disclose fully and frankly all relevant matters. That requirement is all the more acute when the applicants are officers of the Court. They have not met that requirement here.

81 The other strong reason why the application should be refused is that, as outlined above, there are reasons to doubt that the creditors of the late Mr Jones’s deceased estate have any claim on the Fund. For the estate itself may have no right to the Fund, and even if it does, its creditors may have no right to that asset or any payment made out of it. If there are reasons why those initial impressions are incorrect, the applicants have not given the Court any help in understanding what they might be.

82 This is particularly important when it is appreciated that what the applicants in effect seek is approval for Mrs Jones in her capacity as trustee of the Fund or, more likely, Mr Carrello in his prospective capacity as Receiver, to give preference to claims to a trust fund (the Superannuation Fund) made by creditors of Mr Jones’s bankrupt estate, over the claims of beneficiaries, where the creditors’ claims appear contestable. Assuming that it is Mr Carrello who would receive that approval, as Receiver he can be assumed to be obliged to act in accordance with the terms of the Fund Deed. A prudent trustee in such circumstances could ordinarily be expected to seek the imprimatur of the Court for what is effectively a compromise of claims, after making full disclosure of the merits of the position, often with the assistance of legal advice that is provided to the Court. Nothing like that has happened here.

83 Subsidiary concerns include: the lack of any indication as to whether the Joneses’ children, as possible beneficiaries of the trust comprised by the Fund, have been given an opportunity to be heard; and the lack of confirmation that Mrs Jones in her capacity as beneficiary has received independent advice.

84 It may well be that Mrs Jones’s wish to receive half only of the Fund and to permit the other half to go to creditors is a reasonable one in all the circumstances. But the Court has not been given the information it needs to assess whether that outcome is reasonable in the context of the legal obligations that Mrs Jones has as trustee of the Superannuation Fund, or the legal obligations which Mr Carrello would effectively assume if he were to be appointed Receiver of the Fund.

85 It is conceivable that further questions from the Court would clarify these matters and satisfy me that the orders should be made. But in view of the procedural history recounted above, it would not be appropriate to ask such questions. It is incumbent on applicants who are seeking orders such as these to equip the Court with the evidence and submissions they need to resolve the matter on the making of the application, or at least after compliance with programming orders made. That has not occurred here. The appropriate course is to dismiss the application, reserving liberty to apply.

| I certify that the preceding eighty-five (85) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackson. |
Associate:

Dated:    20 April 2026