Hunt, in the matter of Hunt (Bankrupt) - Court permission for corporate management and superannuation trustee

Original Word Document (95.7 KB) Federal Court of Australia

Hunt, in the matter of Hunt (Bankrupt) [2026] FCA 389

| File number: | SAD 11 of 2026 |
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| Judgment of: | MCDONALD J |
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| Date of judgment: | 7 April 2026 |
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| Catchwords: | SUPERANNUATION – application by undischarged bankrupt for leave to manage particular corporation under s 206G(1)(c) of Corporations Act 2001 (Cth) – application for order under s 126J(1)(b) of Superannuation Industry (Supervision) Act 1993 (Cth) that plaintiff not be disqualified person – activity of corporation limited to acting as trustee of self-managed superannuation fund of which plaintiff and his wife are only members – orders made subject to conditions limiting the corporation of which plaintiff may act as director and the superannuation entity of which he may act as trustee, investment manager or custodian |
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| Legislation: | Bankruptcy Act 1966 (Cth)

Corporations Act 2001 (Cth) ss 206A, 206B, 206G

Income Tax Assessment Act 1997 (Cth) s 995-1

Superannuation Industry (Supervision) Act 1993 (Cth) ss 3, 4, 10, 17A, 29J, 40, 41, 120, 126J, 126K |
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| Cases cited: | Re Frigger [2019] FCA 1730

Re Macalister [2021] FCA 1455

Re Wake [2025] FCA 1481 |
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| Division: | General Division |
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| Registry: | South Australia |
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| National Practice Area: | Commercial and Corporations |
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| Sub-area: | Corporations and Corporate Insolvency |
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| Number of paragraphs: | 44 |
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| Date of last submission: | 13 February 2026 |
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| Date of hearing: | Determined on the papers |
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| Counsel for the Plaintiff: | Mr B W C Renfrey |
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| Solicitor for the Plaintiff: | Johnson Winter Slattery |
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ORDERS

| | | SAD 11 of 2026 |
| IN THE MATTER OF STEPHEN BRIAN HUNT (BANKRUPT) | | |
| | STEPHEN BRIAN HUNT

Plaintiff | |
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| order made by: | MCDONALD J |
| DATE OF ORDER: | 7 APRIL 2026 |
THE COURT ORDERS THAT:

1. Pursuant to s 206G(1)(c) of the Corporations Act 2001 (Cth), the plaintiff have leave to manage SB Hunt Super Pty Ltd (SB Hunt Super), subject to the condition that, until such time as the plaintiff ceases to be a director of SB Hunt Super, or is no longer disqualified from managing corporations under Part 2D.6 of the Corporations Act, SB Hunt Super not engage in any activities other than acting as trustee of the S B Hunt Self Managed Super Fund (Fund) and doing things that are reasonably incidental to so acting.

2. Pursuant to s 126J(1)(b) of the Superannuation Industry (Supervision) Act 1993 (Cth) (SIS Act), the plaintiff not be a disqualified person for the purposes of the SIS Act, subject to the condition that, until such time as the plaintiff is discharged from bankruptcy, he not be, or act as, trustee, investment manager or custodian of any superannuation entity other than SB Hunt Super and the Fund.

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

REASONS FOR JUDGMENT

MCDONALD J

Introduction

1 The plaintiff, Stephen Hunt, has been a professional company director and senior executive of several public companies, primarily in the minerals, energy and technology sectors. On 14 November 2025, Mr Hunt became a bankrupt. Robert Woods of Deloitte was appointed the trustee of Mr Hunt’s bankrupt estate.

2 Before he became a bankrupt, Mr Hunt was the sole director and shareholder of SB Hunt Super Pty Ltd (SB Hunt Super), which is the corporate trustee of the S B Hunt Self Managed Super Fund (Fund). SB Hunt Super was established in 2019 for the sole purpose of acting as the trustee of the Fund, and has never carried on any other activities. Since its establishment, the Fund has been a complying self managed superannuation fund, as defined in the Superannuation Industry (Supervision) Act 1993 (Cth) (SIS Act).

3 Upon his becoming a bankrupt, Mr Hunt was disqualified from managing corporations by operation of s 206B(3) of the Corporations Act 2001 (Cth) and consequently also ceased to be the sole director of SB Hunt Super by operation of s 206A(2)(a) of the Corporations Act. Mr Hunt also became a disqualified person for the purpose of the SIS Act, by operation of s 120(1)(b) of the SIS Act.

4 On 19 January 2026, Mr Hunt filed an originating process applying for an order pursuant to s 206G(1)(c) of the Corporations Act permitting him to manage SB Hunt Super, an order that SB Hunt Super not engage in activity other than to act as trustee of the Fund and to do things reasonably incidental to so acting, and an order pursuant to s 126J(1)(b) of the SIS Act that he not be a disqualified person under the SIS Act in relation to SB Hunt Super and the Fund. These orders are sought so that Mr Hunt might continue to act as the director of SB Hunt Super, as the trustee of the Fund, without the Fund ceasing to be a complying superannuation fund for the purposes of the SIS Act. In support of his application, Mr Hunt relies on an affidavit sworn by him on 19 January 2026, an affidavit sworn by his solicitor, Benjamin Renfrey, on 12 February 2026, and a written outline of submissions. As explained below, no other person has sought to be heard and the application is not opposed.

5 For the reasons that follow, I am satisfied that orders to the effect of those sought by Mr Hunt should be made.

Factual background

Establishment of the Fund and SB Hunt Super

6 In February 2010, Mr Hunt and his brother established the Fund with the purpose of operating as a self managed superannuation fund, in compliance with the SIS Act. Mr Hunt and his brother were originally the trustees of the Fund. At all times since its establishment, the Fund has been registered with the Australian Taxation Office (ATO) and has been a complying self managed superannuation fund for the purposes of the SIS Act.

7 On 17 April 2019, Mr Hunt caused SB Hunt Super to be incorporated. He has been the sole director and shareholder since its incorporation. On 28 May 2019, the trust deed was amended and a Deed of Removal and Appointment of Trustee was executed, effecting the retirement of Mr Hunt and his brother as trustees of the Fund, and appointing SB Hunt Super as the sole trustee of the Fund. In accordance with the requirements under the SIS Act for a self managed superannuation fund with a corporate trustee that has a single director, Mr Hunt has been the sole member of the Fund since 2019.

8 The assets of the Fund consist mainly of shares in entities listed on the Australian Securities Exchange, including Sparc Technologies Ltd (Sparc) (of which Mr Hunt was a co-founder), and an interest in a non-listed company, TestInvest Pty Ltd. As of 30 June 2025, the audited value of Mr Hunt’s member balance was around $770,000.

Events leading to Mr Hunt’s bankruptcy

9 In November 2020, the ATO notified Mr Hunt that his personal income tax affairs for the 2008 to 2016 income years were under review. On 19 October 2021, the review was escalated to a formal audit, which resulted in the ATO concluding that Mr Hunt had not reported all income derived from offshore payments to Australia and domestic personal services income from directors’ fees during the relevant period. The amended assessments for unpaid taxes, penalties and interest owed by Mr Hunt to the ATO totalled $7,688,926.

10 On 14 April 2023, after negotiations between Mr Hunt and the ATO in respect of Mr Hunt’s tax liabilities, Mr Hunt and the Commissioner of Taxation (Commissioner) entered into a Deed of Settlement, pursuant to which Mr Hunt was to pay to the Commissioner the amount of $3,214,630; by way of an initial instalment of $160,732, seven half-yearly instalments of $385,000, and a final balance payment by 31 December 2026.

11 Mr Hunt paid a total of approximately $1,235,000 in accordance with the Deed of Settlement. The payments were primarily funded by the sale of his former residential property in Unley, South Australia, and his interests in listed entities. A sharp decline in the value of Mr Hunt’s assets between 2023 and 2025 due to adverse market conditions resulted in his being unable to pay the fourth instalment that he was due to pay under the Deed of Settlement on 30 September 2024. Mr Hunt made various proposals to renegotiate with the ATO the terms of the Deed of Settlement, none of which was accepted.

12 On 8 May 2025, Mr Hunt appointed Nathan Schwarz as controlling trustee under Part X of the Bankruptcy Act 1966 (Cth) and proposed a personal insolvency agreement, which Mr Schwarz had concluded would deliver a return to unsecured creditors of approximately 10.81 cents in the dollar. The Commissioner advised that he would not support the personal insolvency agreement unless it provided an estimated return of at least 50 cents in the dollar, and ultimately voted against Mr Hunt’s proposed personal insolvency agreement at the reconvened creditors’ meeting held on 25 July 2025.

13 On 11 September 2025, the Deputy Commissioner of Taxation commenced bankruptcy proceedings against Mr Hunt by way of a creditor’s petition filed in the Federal Circuit and Family Court of Australia. On 10 November 2025, Mr Hunt lodged the debtor’s petition which was accepted by the official receiver four days later, resulting in Mr Hunt’s being declared bankrupt. Mr Hunt can expect to be automatically discharged from bankruptcy in November 2028 in accordance with s 149(1)(b) of the Bankruptcy Act.

The position of the regulators and interested third parties

14 On 19 November 2025, Mr Hunt, by his solicitors, gave notice of the present application to the Australian Securities and Investments Commission (ASIC), as required by s 206G(2) of the Corporations Act. On 22 January 2026, the application was served on the Commissioner, who is the relevant regulator under the SIS Act, in accordance with s 126J(3) of the SIS Act.

15 On 10 February 2026, I made orders requiring Mr Hunt to file a written outline of submissions and an affidavit of service and serve them on ASIC, Mr Hunt’s trustee in bankruptcy and all known creditors of Mr Hunt; requiring Mr Hunt to provide a copy of the orders to ASIC, his trustee in bankruptcy and all known creditors; and requiring any third party that wished to be heard in the proceedings (including the Commissioner or ASIC) to file a notice of appearance and any affidavit evidence on which they might seek to rely.

16 In his affidavit dated 12 February 2026, Mr Hunt’s solicitor, Mr Renfrey, deposes that the originating process and supporting affidavit of Mr Hunt sworn on 19 January 2026 were served on ASIC, the Commissioner and Pitcher Partners Adelaide. Mr Renfrey also confirmed his intention to serve the affidavit of 12 February 2026, Mr Hunt’s written outline of submissions and the orders made on 10 February 2026, on each of ASIC, the Commissioner, Pitcher Partners and Mr Hunt’s trustee in bankruptcy.

17 On 6 February 2026, a principal of Pitcher Partners Adelaide, Jon Bode, sent an email to Mr Hunt’s solicitors confirming that “we as Pitcher Partners have no objection” to Mr Hunt’s application. On 20 February 2026, ASIC wrote to Mr Hunt’s solicitors, confirming that ASIC does not oppose Mr Hunt’s application. Further, on 12 March 2026, the Australian Taxation Office wrote to Mr Renfrey confirming that the Commissioner does not wish to be heard, and neither consents to nor opposes the orders sought in Mr Hunt’s application.

18 I am satisfied that the relevant regulators and the creditors of Mr Hunt’s bankrupt estate are on notice of the proceedings and have not sought to oppose the application. No notice of appearance has been filed by any person seeking to be heard on the application.

Relevant legislative provisions

The Corporations Act

19 Section 206A(2)(a) of the Corporations Act provides:

(2)    A person ceases to be a director, alternate director or a secretary of a company if:

(a)    the person becomes disqualified from managing corporations under this Part; and

(b)    they are not given permission to manage the corporation under section 206GAB or 206G.

20 Section 206B(3) of the Corporations Act provides:

Bankruptcy or personal insolvency agreement

(3)    A person is disqualified from managing corporations if the person is an undischarged bankrupt under the law of Australia, its external territories or another country.

21 Section 206G(1) of the Corporations Act provides:

206G Court power to grant leave

(1)    A person who is disqualified from managing corporations may apply to the Court for leave to manage:

(a)    corporations; or

(b)    a particular class of corporations; or

(c)    a particular corporation;

if the person was not disqualified by ASIC.

22 In the present case, Mr Hunt seeks an order of the kind contemplated by s 206G(1)(c), the leave sought being limited to leave for Mr Hunt to manage SB Hunt Super. Section 206G(3) of the Corporations Act provides that an order granting leave under s 206G(1) “may be expressed to be subject to exceptions and conditions determined by the Court”. Any grant of leave may later be revoked on an application made by ASIC: Corporations Act, s 206G(5).

The SIS Act

23 Self managed superannuation funds are one kind of regulated superannuation entity under the SIS Act. The Commissioner is generally responsible for the supervision of self managed superannuation funds: SIS Act, s 4. The principal objects of the SIS Act include “to make provision for the prudent management of certain superannuation funds” and for their supervision by regulators: SIS Act, s 3(1). Superannuation funds which are regulated under the SIS Act “may become eligible for concessional taxation treatment”: s 3(2).

24 A superannuation fund which has only one member is a self managed superannuation fund if, and only if, it meets the requirements set out in s 17A(2) of the SIS Act. Most relevantly in the circumstances of the present case, the member must be a director of the corporate trustee of the fund, or must be one of only two individual trustees of the fund. If a superannuation fund ceases to meet the definition of a self managed superannuation fund then it may become a registrable superannuation entity (which is defined to exclude self managed superannuation funds: SIS Act, s 10(1)). A person can only be a trustee of a registrable superannuation entity if they hold (or a group of which they are a member holds) an RSE licence: SIS Act, s 29J(1).

25 Section 17A(4) of the SIS Act provides:

Circumstances in which entity that does not satisfy basic conditions remains a self managed superannuation fund

(4)     Subject to subsection (5), if a superannuation fund that is a self managed superannuation fund would, apart from this subsection, cease to be a self managed superannuation fund, it does not so cease until the earlier of the following times:

(a)    the time an RSE licensee of the fund is appointed;

(b)    6 months after it would so cease to be a self managed superannuation fund.

26 The effect of s 17A(4) of the SIS Act is that, if a person who is the sole director of a corporate trustee of a self managed superannuation fund becomes disqualified, so that the fund ceases to meet the basic requirements for self managed superannuation funds set out in s 17A(1), the fund will remain a self managed superannuation fund for six months after the date of the disqualification.

27 If the orders sought by Mr Hunt are not made, the Fund will cease to be a self managed superannuation fund with effect from 14 May 2026, by operation of s 17A(4)(b) of the SIS Act.

28 Relevantly to the present case, an individual automatically becomes a disqualified person if, relevantly, “the person is an insolvent under administration”: SIS Act, s 120(1)(b). An “insolvent under administration” includes, relevantly, an undischarged bankrupt under the Bankruptcy Act: SIS Act, s 10(1). It is an offence for a disqualified person, knowing that they are a disqualified person, to act as a trustee, investment manager or custodian of a superannuation entity: SIS Act, s 126K.

29 Section 126J of the SIS Act, insofar as it is presently relevant, provides:

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

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

…

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

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

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

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

…

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

30 Section 40(1) of the SIS Act provides that the regulator (in this case, the Commissioner) may give a written notice to a trustee of an entity, stating whether the entity is or is not a complying superannuation fund, in relation to a year of income specified in the notice. Section 41(1) of the SIS Act provides that, except in the circumstances identified in s 41(2) (which would not apply to SB Hunt Super), the Commissioner is not required to give an entity a notice under s 40.

31 If orders to the effect of those sought in Mr Hunt’s originating process are not made, then the Fund will cease to be a “complying superannuation fund” if the Commissioner, after 14 May 2026, decides to issue a notice under s 40 of the SIS Act, stating that the Fund is not a complying superannuation fund. If the Commissioner were to issue such a notice, the Fund would then be a “non-complying superannuation fund” for tax purposes: see the definitions of “complying superannuation fund” and “non-complying superannuation fund” in s 995-1 of the Income Tax Assessment Act 1997 (Cth). Should the Fund become a non-complying superannuation fund, this would have significant adverse tax consequences for the fund.

The power of the Court to make the order sought under s 126J(1)(b) of the SIS Act

32 For the reasons previously explained in Re Wake [2025] FCA 1481 at [49]-[61], I consider that the Court has power to make an order under s 126J(1)(b) of the SIS Act where the relevant regulator in respect of the Fund is the Commissioner.

Principles applicable to the exercise of the discretion

33 The principles relevant to the exercise of the Court’s discretion to grant leave pursuant to s 206G(1) of the Corporations Act are also relevant to the Court’s discretion to make an order pursuant to s 126J of the SIS Act. The applicant bears the onus of establishing that the Court should exercise its discretion under either of those provisions. In Re Frigger [2019] FCA 1730, Jackson J explained (at [9]) that “even in the absence of a contradictor it is for the applicants for leave to place before the court evidence in appropriate form that is capable of satisfying the court that, in the given case, an exception should be made to the legislative policy underlying the prohibition in the [Corporations Act ]”.

34 In Re Macalister [2021] FCA 1455 (Re Macalister), Banks-Smith J explained that the interests of third parties, the public at large, and the shareholders, creditors and employees of the relevant company are the main consideration for the Court in determining whether to exercise its discretion pursuant to s 206G(1) of the Corporations Act and s 126J of the SIS Act. Her Honour summarised the possible considerations for the Court to take into account as including the following:

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

(b) the nature of the disqualification;

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

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

(e) the potential for repetition of contraventions;

(f) the risk to survival of the company;

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

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

Determination

35 In this case, the activities carried on by SB Hunt Super since its incorporation have been limited to the administration and management of the Fund, and its only function is to act as trustee of the Fund. The structure of SB Hunt Super is uncomplicated, it holds no assets other than as trustee for the Fund, and it has no employees, external creditors, or subsidiaries. Mr Hunt is the sole beneficiary and member of the Fund, and the sole shareholder of SB Hunt Super.

36 The Court can exercise its discretion to grant leave to Mr Hunt to manage SB Hunt Super in circumstances where it was not as a result of a decision of ASIC that Mr Hunt became disqualified from managing corporations: Corporations Act, s 206G(1). Mr Hunt’s bankruptcy arose from a substantial liability alleged by the ATO following its audit of Mr Hunt’s personal income tax affairs for the years 2008 to 2016, as explained at [9 ]-[13 ] above. On the material before me, I am satisfied that Mr Hunt’s bankruptcy was not incurred as a result of dishonesty, fraud, or intentional misconduct. Nor has Mr Hunt demonstrated any dishonesty in his dealings with the ATO. He made efforts to make the necessary payments under the Deed of Settlement and to re-negotiate the Deed of Settlement with the ATO but was ultimately unable to do so. I accept that the circumstances of Mr Hunt’s bankruptcy do not suggest that there is a significant risk of contravention by Mr Hunt of the provisions of the Corporations Act or the SIS Act if the relief he seeks is granted.

37 There is no reason to believe that Mr Hunt will fail to comply with his obligations under the Corporations Act and the SIS Act if the relief sought in the originating process is granted. Mr Hunt has submitted that he has co-operated with his trustee in bankruptcy, and there is no suggestion to the contrary. He acted as trustee of the Fund between 2010 and 2019, and since then as the director of SB Hunt Super, discharging his duties as the trustee and director of the corporate trustee without incident. As the only person with a financial interest in the Fund, Mr Hunt is the only person who is likely to suffer direct detriment resulting from any mismanagement of the Fund. He has extensive experience in managing corporations, including publicly listed corporations, and has never been the subject of any adverse finding or any suggestion of impropriety. The period for which Mr Hunt seeks leave to manage SB Hunt Super and not be a disqualified person is finite and will end upon his discharge from bankruptcy. These considerations all weigh in favour of granting the relief which Mr Hunt seeks.

38 The evidence advanced by Mr Hunt confirms that he has ceased to act as a director of all other corporations of which he was previously a director. Mr Hunt also deposes to his attempts to take steps that would potentially have enabled the Fund to become a Small APRA Fund (SAF), being a regulated superannuation fund with no more than six members: see Corporations Act, s 1017BB(6). A SAF must be managed by a trustee that holds an RSE licence and is regulated under the SIS Act by APRA. Relevantly, Mr Hunt’s evidence is as follows:

Facing impending bankruptcy and disqualification as a director and trustee , I sought to transfer funds from [the Fund] to a [SAF]. The purpose of transferring the shares was to avoid selling shares held in Sparc, which I had hoped a SAF would accept. However, no SAF would approve shares in Sparc as an allowed asset, because Sparc is not part of the All Ordinaries Index and the shares would comprise more than 10% of the portfolio. I considered this option to transfer the shares to a SAF, on the understanding that the shares were held on trust for the Fund, had been for a substantial period, and did not form part of my personal estate in the event of bankruptcy.

The alternative option of selling and cashing out the Sparc shares to comply with SAF requirements would be highly problematic. The Fund holds approximately 3.66 million Sparc shares, and given the relatively low trading liquidity in those shares (of around 80,000 shares per day), a sale of 3.66 million shares on the market would be very detrimental to the share price of Sparc and potentially cause significant harm to the company and its members. Additionally, I am limited to certain trading windows due to my consulting role with Sparc. Given these circumstances, I believe I have no reasonable or practical alternative other than to seek to remain a director of [SB Hunt Super] as the corporate trustee of the Fund for the sole purpose of maintaining the shares in [the Fund].

39 I accept this evidence. It explains why, in the circumstances, it is impractical for the shares held by the Fund in Sparc to be sold in the short term. The appointment of an alternative trustee who holds an RSE licence could not occur unless and until that were done. Moreover, the sale of the Fund’s shares in Sparc would likely be detrimental to the interests of third parties, namely the other shareholders in Sparc. If the leave sought by Mr Hunt were not granted, and if the Fund were not to become a SAF, the Fund would cease to comply with s 17A of the SIS Act and could therefore lose its status as a self managed superannuation fund and registered superannuation entity, which would have significant adverse tax consequences for the Fund.

40 By way of his originating process, Mr Hunt proposes that the relief he seeks be granted on condition that SB Hunt Super not engage in any activity other than that which is necessary for or reasonable incidental to acting as trustee of the fund. I accept Mr Hunt’s submission that such a restriction would ensure that leave granted pursuant to s 206G(1)(c) of the Corporations Act would be consistent with the protective purpose of the disqualification provisions in the statutory regime.

41 I am satisfied that it is appropriate that Mr Hunt be permitted to be the sole director of SB Hunt Super, and that he not be a disqualified person for the purpose of the SIS Act, so that SB Hunt Super is able to continue to act as the trustee of the Fund without the Fund’s ceasing to be a complying superannuation fund for the purpose of the SIS Act.

Form of orders

42 Mr Hunt’s application is made for the limited purpose of enabling him to manage SB Hunt Super, as the trustee of the Fund. The orders excepting Mr Hunt from the legislative consequences of bankruptcy should be appropriately tailored to that purpose. Accordingly, the leave to be granted to Mr Hunt under s 206G(1)(c) of the Corporations Act should be made subject to a condition that SB Hunt Super not engage in any activities other than acting as trustee of the Fund and doing things that are reasonably incidental to so acting.

43 Similarly, the order that Mr Hunt not be a disqualified person for the purpose of the SIS Act should also be made subject to a condition, imposed in accordance with s 126J(4) of the SIS Act, that, until Mr Hunt is discharged from bankruptcy, he not be or act as a trustee, investment manager or custodian of any superannuation entity other than the Fund.

Conclusion

44 For these reasons, I am satisfied that it is appropriate to make the orders set out at the beginning of these reasons.

| I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McDonald. |
Associate:

Dated: 7 April 2026

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