Cook v Benson & Ors

[2003] HCATrans 635

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M2 of 2003

B e t w e e n -

PAUL JOHN COOK (As Trustee of the property of Peter Robert Benson)

Appellant

and

PETER ROBERT BENSON

First Respondent

LEGAL & GENERAL SUPERANNUATION SERVICES PTY LTD

Second Respondent

PRUDENTIAL CORPORATION AUSTRALIA LIMITED

Third Respondent

MERCANTILE MUTUAL CUSTODIANS PTY LTD

Fourth Respondent

GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 3 APRIL 2003, AT 11.43 AM

Copyright in the High Court of Australia

__________________

MR G.T. BIGMORE, QC:   If the Court pleases, I appear with my learned friend, MR M.J. GALVIN, on behalf of the appellant.  (instructed by Gadens Lawyers)

MR M.J.L. RAJANAYAGAM:   If the Court pleases, I appear for the first respondent.  (instructed by IFS Fairley)

MR M.N.C. HARVEY:   If the Court pleases, I appear on behalf of the second, third and fourth‑named respondents.  (instructed by Clayton Utz)

If the Court pleases, we have no submissions to make in relation to this matter.  We appear here today in order to give assistance to the Court.  If the Court requires us, we can do so.

GLEESON CJ:   Thank you, Mr Harvey.  Yes, Mr Bigmore.

MR BIGMORE:   If the Court pleases, this case is really about the differences that appear in the three trust deeds for the superannuation funds represented by our learned friend, Mr Harvey, and a bare trust.  We do not wish to add greatly to the written submissions we have made in relation to those distinctions.  We have referred to the various clauses of the trust deeds that are in the appeal book and we make the point, as Justice Hely did below, that the ‑ ‑ ‑

HAYNE J:   Can I throw a spanner in the works early on, Mr Bigmore, perhaps.  We have the trust deeds.  I do not think we have the application forms, do we?

MR BIGMORE:   No, your Honour.

HAYNE J:   I think we have one of the policies.  We do not have two other policies.  So, for example, if we go to the first of the arrangements, the Legal and General arrangement, at page 97 of the book, we find there that Mr Benson was said to hold a certain number of Stable Fund units valued at an amount providing a balance of such and such.  Can I find from the evidence tendered below what are Stable Fund units, why he was entitled to that number, what the significance of the valuation is or what the significance of the balance is?

MR BIGMORE:   No, your Honour.

HAYNE J:   At the moment I have a distinct impression, and I may be entirely wrong, that we have a very small tip exposed of a very large commercial iceberg where we simply do not know what the contractual arrangements and obligations of the parties were, save to the extent that they are partly – I emphasise partly – reflected in the terms of trust deeds.  That is the impression I have.  It may be entirely false, Mr Bigmore, and you may say that that impression, even if true, is utterly irrelevant, but, at the moment, I have some difficulties.

MR BIGMORE:   I think the last is what I would say, your Honour, that it is irrelevant to go beyond the terms upon which the money was received.  The trusts that are constituted by the trust deeds when first established spell out the responsibilities of the Trustee sufficiently, so that what we do know is that the money is to be looked after and if it is applied in the way of Stable Fund units or whatever other description of investment, apart from life policies, then we do not know from the evidence what they were.

HAYNE J:   You say the money was to be looked after.  Again, correct me if I am wrong.  I thought that an element of these arrangements in each case was that some, perhaps all, of the money which the respondent, Mr Benson, put with – if I may use that as the most neutral term – the Trustee, was then to be applied by the Trustee as payment of a premium for a life policy issued by a company which on its face appears to be an affiliate of the Trustee, and if one works from the Prudential policy which we have, it is a very unusual kind of life policy.  It is a life policy, true it is within the Life Insurance Act, so it seems, because there is a contract of insurance on the life of an individual, but having a rather unusual set of terms attached to it, the significance of which I do not understand.

The reason I raise them is that it seems that the first respondent’s argument against you is one which depends in part on the proposition that there was a purchase for valuable consideration, the purchase of some presumably bundle of rights, and yet we do not know what the rights are or at least the whole set of rights were that were bought.

MR BIGMORE:   No, and we of course act for the Trustee who was not in perfect knowledge of these things and the Court only has what was before the trial judge.  What we say to that is that it was the application of the funds by Mr Benson or at his direction that constitutes the event upon which the Bankruptcy Act is focused.  Attention is directed by section 120 to the disposition, the transfer in the modern language of the section.

GLEESON CJ:   Mr Bigmore, what is the print of the Bankruptcy Act that we should be working with?  Reprint number what?

MR BIGMORE:   Sorry, your Honour.

GUMMOW J:   Reprint 4 is 4 January 1995 and Reprint 5 is 30 September 1997.

MR BIGMORE:   Yes, the 1995 reprint is appropriate, your Honour.

GLEESON CJ:   Reprint number?

MR BIGMORE:   No 4.  I apologise for that; we have not set out the reprint number.

HAYNE J:   There is a print No 3 as at July 1993.  Is not the critical date a date in 1992?

MR BIGMORE:   I am sorry, your Honour has the reprint No 3 in which case ‑ ‑ ‑

GLEESON CJ:   We just want to know the right reprint, Mr Bigmore.  We spend a large part of our lives dealing with legislation that is repeatedly amended and has almost invariably been amended since the facts relevant to the case that we are concerned with.

MR BIGMORE:   Of course, your Honour.

GLEESON CJ:   So we want to get the right statute.  It is No 3, is it?

MR BIGMORE:   No 3, yes.  I am sorry, I thought the choice was between 4 or 5, and the section has not changed relevantly through that period.  The relevant change was in 1996.  So the section focuses upon the disposition and the question then becomes whether or not the person who receives the money – the $80,000 in this case - or the various persons who did, have provided valuable consideration.

It is no longer an issue in this case that what the bankrupt might have done is to convert an $80,000 cash amount that would have vested in his Trustee in Bankruptcy if it had been extant into a form of investment – polices on his life – that would have been exempt had he become bankrupt.  That particular argument is foreclosed for the purpose of this case.  So it is not quite the situation as if he had gone and bought a car for $80,000, because in most cases, if it was shortly thereafter, the Trustee would say, “He’s bought the car, there’s the car.  The car will form part of the assets and I’ll sell it for the benefit of creditors”, out of which some few thousand dollars might have been exempt and have to be handed back.

We would say that the transfer in a case like that - or the disposition, to keep the language of the Act as it applies in this particular case – the disposition leaves a trustee with a vendor of a motor car who is unassailable under section 120, because the vendor has given valuable consideration.

GLEESON CJ:   But the purchase price would be available for the creditors, presumably?

MR BIGMORE:   The car would be available for the creditors.  The purchase price has gone to the vendor.  The vendor cannot be assailed because he has given up a valuable consideration, being a car, to – it does not have to be equal ‑ ‑ ‑

GLEESON CJ:   Section 120 deals with voluntary settlements and marriage settlements.  We are here concerned with what is said to be a voluntary settlement.

MR BIGMORE:   Voluntary settlement.

GLEESON CJ:   In the ordinary case, am I right in thinking that a settlement made in favour of a purchaser in good faith and for valuable consideration will produce the consequence that the subject matter of the settlement will not be available?

MR BIGMORE:   Yes.

GLEESON CJ:   But the consideration paid for the settlement will be available?

MR BIGMORE:   Yes.  If there is valuable consideration, then the consideration ought to be available unless there is some other intervening act which has made it disappear, or – and this another debate – or if the consideration falls into the category of exempt assets.  The car example is interesting because, as the way the Act reads now, something like $5,000 out of the sale price of the car would have to go back to the bankrupt because of the exemption of that level of cash proceeds from the sale of a car.

In the case of insurance under section 116 one of the exempt assets is a policy on the life of the bankrupt.  It does not have to be a policy for the benefit of the bankrupt, it can be a policy for the benefit of anyone else, but plainly the benefit of the bankrupt is the one that is of particular importance and it may be a policy on the life of the bankrupt or his spouse.

GLEESON CJ:   I am just trying to relate the concept of what constitutes valuable consideration to the scheme of section 120 and part of the scheme is, is it, that in the ordinary case where there has been a settlement in favour of a purchaser in good faith for valuable consideration the subject matter of the settlement will be outside the assets available to the creditors but the consideration will be available to the creditors?

MR BIGMORE:   Yes, your Honour.

GLEESON CJ:   How does that relate to the facts of the present case?

MR BIGMORE:   In the present case what we say is that the transfer or the disposition of the $80,000 was paid not in exchange for valuable consideration for the $80,000.  The consideration that was given bona fide by the corporate respondents in this case was consideration for the use of the money and not for the money itself.

GLEESON CJ:   But if the argument against you is correct, and that is that the arrangements with the insurance companies were arrangements made for valuable consideration, was the Trustee in Bankruptcy able to cash in, if I can use that expression, on those arrangements?

MR BIGMORE:   That is a nice question and difficult to answer, your Honour.  On one view, yes, but on the view of Justice O’Loughlin in the Coram Case that we have referred to, no, because it is a mere expectancy and now that the bankrupt has been long discharged from bankruptcy, that expectancy not having transformed it into any immediate right, he is free to enjoy it. 

HAYNE J:   But critical to that answer is the proposition implicit in it about what the policy provided. 

MR BIGMORE:   Yes, your Honour, but if it provided at the extreme for the purchase of a life policy which would be exempt from vesting in the Trustee in Bankruptcy, then, on the basis of the NM Superannuation v Young case we refer to, the benefit of that policy would be exempt and would never go to the benefit of creditors. 

HAYNE J:   Well, you speak of the purchase of a policy.  Let us be precise about this.  Page 101, again sticking with Legal & General, clause 4 at page 101 is the provision of the deed dealing with policies, is it not? 

MR BIGMORE:   Yes, your Honour. 

HAYNE J:   What was to be done was that the Trustee was to: 

effect and maintain a Policy in its own name and on the life of each Member ‑ ‑ ‑

MR BIGMORE:   Yes, your Honour, and that still fits the formula of section 116(2)(d) in that it is a policy on the life of the bankrupt. 

GUMMOW J:   Yes, but the Trustee was to effect and maintain this policy in its own name.  Forget about the Bankruptcy Act for the moment.  What was there that assured any interest in the policy to this gentleman who provided the money?  In other words, was the Trustee to hold the policy as a trustee? 

MR BIGMORE:   No, your Honour. 

HAYNE J:   Well, that is not right.  Page 102, subclause (d). 

MR BIGMORE:   Yes, your Honour is right, with respect.  But the outcome would normally be that the policy would be cashed in before the superannuation fund moneys were paid over.  That is all I meant by that answer, in that rather than the policy being handed over at some stage absolutely. 

GUMMOW J:   Where would the power to cash it in come from and who would have the power? 

MR BIGMORE:   The Trustee has the power, as I understand it, your Honour, the obligation of the Trustee being to provide the benefits.  Of course, the circumstances will change if the insured or the member of the superannuation fund retires having reached retirement age.  It will be different possibly from a situation where he dies prematurely or, again, where for some reason the forfeiture clause operates. 

HAYNE J:   I am sorry to be harping on this, Mr Bigmore, but we have to get it right.  Page 103, clause 7.  Clause 7 tells us what “the benefit” is.  It consists of: 

the Policy on his life, any other form of investment –

which, if you track back, becomes a reference to amounts that are paid over and above the premium –

and the amount (if any) of his Member’s credit, including any interest –

and at retirement, clause 8(a), the Trustee: 

shall . . . pay or apply his benefit –

that is, pay or apply, amongst other things, the policy –

to him in accordance with his written direction –

Now, I do not know where this is taking us but we cannot, in this area especially, speak in terms of abstract generalities. 

MR BIGMORE:   Your Honour, what one strives to find in all these documents is valuable consideration in the sense explained in the bankruptcy cases as a quid pro quo, not necessarily, of course, a quid pro quo returning to the bankrupt for the advantage of the estate, because that approach has been criticised, but certainly there must be something moving from the corporate respondents in this case which answers the description of a quid pro quo for the $80,000. 

What our learned friend says against us is that the quid pro quo in this case is the promise to apply the moneys in accordance with these deeds.  The deeds are slightly different but in summary, without drilling down individually into them, the deeds uniformly do provide for the money to be applied by way of an investment, so that that sum, hopefully, if all goes well with the investment, will be available along with some accrued interest and other growth, if possible, for the member of the superannuation fund at the time of his retirement. 

GLEESON CJ:   Mr Bigmore, I take it that everybody who has looked at this so far has agreed that the circumstance that the original amount of $96,192.36 came pursuant to an entitlement under a superannuation fund is accidental?

MR BIGMORE:   Yes.

GLEESON CJ:   The case would be no different if he had won that on a race horse?

MR BIGMORE:   Yes, your Honour.  It is a tortuous path, but it is, yes.

GLEESON CJ:   So what we are concerned with is the application of part of that $96,000‑odd dollars?

MR BIGMORE:   Yes, your Honour.

GLEESON CJ:   And the question is whether the application of the $80,000 fell within the terms of section 120?

MR BIGMORE:   Yes.

GLEESON CJ:   Now, to oversimplify a problem, suppose that what had happened was that he had found himself with $80,000, from whatever source – it does not matter – and he went to the AMP Society and took out a superannuation policy for his own benefit that involved the investment of that amount of $80,000.  Now, if what he received in return for that was either marketable or was capable of being cashed in, to use a colloquial expression, then that would go for the benefit of the Trustee in Bankruptcy, would it not?

MR BIGMORE:   Except that it would be exempt most likely under the – it certainly would be exempt under the current regime and if the money had been applied in purchase of a life policy, it would have been exempt under the regime that applies here, that is, the provisions of section 116(2)(d) which have changed over the period to now exempt superannuation ‑ ‑ ‑

GLEESON CJ:   But at the time with which we are concerned?

MR BIGMORE:   It would have been available.  If it had not been invested in a life policy at all, then it would have been available for creditors.

GLEESON CJ:   But if it had been spent on a race horse, then the race horse would be available to creditors?

MR BIGMORE:   Yes, but, your Honour, the reason that there is a difference in this case is because what you are contemplating is an immediately realisable asset and, of course, that is not always the case with race horses because it is possibly a one‑hundredth share in a syndicate and no one else wants to sell and, of course, in relation to a superannuation policy, it would be a simple one, indeed, that would permit the whole $80,000 to suddenly be retrieved without excisable discount for early surrender, or whatever the description of that transaction would be.

What we complain about is that something which ought to have been immediately available has been made unavailable by virtue of the device which makes it ultimately available or at least work to the benefit of the bankrupt in the meantime.  The classic example of that occurring, of course, is in the Barton Case where this Court considered the facts where a loan had been made of money which was ultimately, as it was found, available to be clawed back by the Trustee under this provision, section 120, but the loan had been made for something like $170,000 on a very long term and a very low interest rate, thus the principal had been placed beyond the reach of the creditors, and, ostensibly, valuable consideration had been given in a conveyancing sense where the borrower contracted to repay the whole of the principal at the end of a long period of years.

We say there is no difference in reality from a case like that to a case like this, where the $80,000 has been set aside for many years in the future to be available for the bankrupt, and to say that the corporate respondents in this case, who are not agitating a defence but abiding by the decision of the court, have any real interest by way of saying, “But we provided valuable consideration for that.  We won’t get it back.  We have lost it if this section 120 applies.”  They are not here to say that and they cannot say that because all they have to do is take the allocated portion which now represents that $80,000 and give it to the Trustee in Bankruptcy if we succeed, and they go on about their business.  It makes no difference to their bottom line, because we do not deny them the money they are earning and whatever it is in relation to this particular management of the $80,000 or investment in the policies and so on.

So it is quite a different case from saying that in consideration of $80,000 cash there is a bundle of promises, however they can be drawn down to and whatever detail might be unearthed, a bundle of promises which represent a quid pro quo because all those promises, whatever they are, and the fulfilment of those promises by the corporate respondents earns for the corporate respondents fees or remuneration of some sort and we do not begrudge them that.  Hopefully they can augment the $80,000 and still earn the fees and that seems to be the case because we know that some time ago there was $140,000 instead of $80,000.

GLEESON CJ:   But the majority in the Federal Court took the view, as I understand it - correct me if I am wrong - that there was here a settlement, that is a disposition of $80,000 in three lots, and the valuable consideration was whatever interests of a proprietary or contractual nature the bankrupt received in return for that application.

MR BIGMORE:   Yes.

GLEESON CJ:   What do you say were the interests or rights of a proprietary or contractual nature that the bankrupt received in return for the three amounts of money that have totalled $80,000?

MR BIGMORE:   With respect, we are no better able, as Justice Hayne has pointed out, than the evidence to be able to explain that to your Honour.  We say that when one looks at what is there it does not amount to consideration, on the analysis of such cases such as Tooheys, for the $80,000.

GUMMOW J:   I do not understand that.  This deed at page 100 is a deed poll, is it not?

MR BIGMORE:   Yes, your Honour.

GUMMOW J:   Who was Legener (Australia) Limited, and how are they now transmogrified into Legal and General Superannuation Services Pty Limited?  Do we know that?

MR BIGMORE:   We do not know that, your Honour.

GUMMOW J:   Then the second recital, “the Trustee has agreed to act”, that is not quite right, is it?  Agreed with whom?  Nobody.

MR BIGMORE:   Agreed with itself, presumably.

GUMMOW J:   Yes, exactly.  And then down to the definitions:

“Member” means an Employed Person whose application for membership as provided in Clause 3 hereof has been accepted by the Trustee and who has made a contribution ‑ ‑ ‑

MR BIGMORE:   Yes.

GUMMOW J:   People come along under 3 and they say, “Please take me in”.  The Trustee may refuse to accept an application for membership in its absolute discretion.  If it accepts you pay over the money and in exchange you get the benefit of what flows under the arrangements.

MR BIGMORE:   Yes.

GUMMOW J:   Why is that not consideration?

MR BIGMORE:   With respect, because the benefit of what flows from the arrangements is just like the benefit of the repayment of the loan in Barton’s Case or in Barnes v Stapleton, a decision of Justice Gibbs in the Supreme Court of Queensland.  What the bankrupt did was convert ownership of a boat into a leasehold interest.  He sold it to his mother and leased it back over a long period of years.  It the same difference.

GUMMOW J:   I do not understand how that bears upon this at the moment.

MR BIGMORE:   It does, your Honour, because the rights that the bankrupt had to the $80,000 had been converted into the rights that he has under this policy.

GUMMOW J:   A conversion policy is a lay expression, it is not a legal expression except in a particular…..which we are not worried about and a particular tort that you are not worried about.

MR BIGMORE:   Yes, but that is not the intention.

GUMMOW J:   So, when you say “converted”, what in fact are you saying?

MR BIGMORE:   What I say is that the consideration that has been provided by the corporate respondents is the promise to accept the $80,000 on the terms spelt out in these documents, and those terms do not amount to consideration worth $80,000 or any part of it.  Their remuneration for accepting the $80,000 and doing all this work with it is to earn fees and remuneration.

HAYNE J:   You say that, but where do I find that in the trust deed?  I do not find anything where the Trustee takes a slice off the top.  That was one of the rather puzzling commercial aspects of it – one of many.

MR BIGMORE:   Yes, we do refer to one example of that at clause 25 of the Mercantile Mutual deed which begin at page 115.

KIRBY J:   Which page is it?

HAYNE J:   Page 149.

MR BIGMORE:   Page 149, your Honour.  Just because that right is there in relation to that Mercantile Mutual Fund deed does not mean that the other two were not similarly entitled to remuneration.

GLEESON CJ:   But if there would be no question of bankruptcy at all if Mr Benson had come into $80,000 and somebody had persuaded him that a wise way to deal with that $80,000 was to enter into these superannuation arrangements, but for simplicity let us just take one of them, on day one he had $80,000, and then he applied the $80,000, the question is, what did he have on day two?  What do you say he had on day two by way of rights or interests?

MR BIGMORE:   He had an expectancy or perhaps an equitable interest to receive at the end of the day the benefits spelt out in the policy.

GLEESON CJ:   Now, why was not that valuable?  If that is what he got in exchange for his $80,000, why was it not consideration?

MR BIGMORE:   Because in a simple case, the bare trust case – and we cite the authorities for that.  They are the authorities referred to by Justice Hely.

GUMMOW J:   This is not a bare trust.

MR BIGMORE:   That is exactly the point, of course, your Honour, that all the judges say it is not a bare trust.  Two of the three judges below ‑ ‑ ‑

GUMMOW J:   Whatever that term means, it does not apply here.

MR BIGMORE:   No, your Honour, that certainly is so.

GUMMOW J:   Why does that matter?

MR BIGMORE:   What the inquiry then becomes is what are the differences between the simple case where a man receives $80,000 to hold as trustee for a person absolutely, immediately and absolutely, assuming the person to be sui juris.

GUMMOW J:   When you say “receives to hold”, this is a situation where there is a contract to hold through the application and acceptance of membership.

MR BIGMORE:   Yes, your Honour.

GLEESON CJ:   If all that Mr Benson has done was to transfer the $80,000 to a solicitor to hold on trust for him absolutely, he would still have his $80,000.  He would be the beneficial owner of $80,000 on day one and on day two and nothing would have happened.

MR BIGMORE:   But if the trust provided that the $80,000 was not repayable to him for 10 years, then it would not escape the bankruptcy laws just because he might go bankrupt and be discharged in the meantime.

GLEESON CJ:   But why were not the rights and interests – whatever they were – that he received under these superannuation arrangements (a) valuable and (b) consideration?  Now, the answer to that question must depend on what the rights and interests were.

MR BIGMORE:   But, with respect, your Honour, the question really is, were the corporate respondents purchasers for valuable consideration.  It is not the case that one looks in this context at the asset before and the asset after, considers, perhaps, the circumstances of transformation.  It is whether or not the corporate respondent which received the particular sum of money was a purchaser for valuable consideration.  What we say is that it may be that all the benefits and expectancies or equitable interests, however they be construed in this case and each of these three cases, are roughly equivalent and were probably advantageous to Mr Benson because the point is made, and we accept, that had he kept the $80,000 he would have had to pay some tax on it.  But from Mr Benson’s point of view, what he got on day two was perfectly acceptable to him and undoubtedly in his mind and ours was a quid pro quo, but that does not mean that the corporate respondents were purchasers of those rights.

It means that the rights to the $80,000 in the first place, and the rights, expectancy or interest in the second place, were still ultimately Mr Benson’s.  The corporate respondents did not provide those rights; they administered the provision of those rights and they still administer the provision of those rights.

GLEESON CJ:   The payment of money, that is, the payment of the
$80,000, was a settlement of property within section 120?

MR BIGMORE:   Yes.

GLEESON CJ:   If the recipients of the money provided valuable consideration for it, then why were they not purchasers of the property for the purpose of section 120?

MR BIGMORE:   Because what they promised to do was to provide benefits at the end of the day, or whenever they accrued, to Mr Benson.  They were not earning the $80,000 by that; they were earning remuneration, certainly under clause 25 on page 149.  They were all, we would submit, earning remuneration for the management and administration which would result ultimately in the provision of those benefits – a different thing from earning the $80,000 in the first place.  One goes back to the car ‑ ‑ ‑

GLEESON CJ:   It is not a question of earning it; it is a question of the circumstances under which they had a right to receive it.  They got a right to receive it by virtue of having made some promises about the rights that would be conferred upon the payer of the amount.

MR BIGMORE:   Yes, your Honour, but they did not purchase the $80,000 in consideration for providing those benefits.  They purchased their fees in that way.

GLEESON CJ:   If on day one Mr Benson had $80,000 and on day two he paid the $80,000 to these various companies, what do you say he had on day three?

MR BIGMORE:   He had the benefit or expectancy of receiving the benefit in the future, pursuant to the terms of the trust deeds.

GLEESON CJ:   Was it a right?

MR BIGMORE:   I hesitate to say “right” as distinct from “expectancy” because of the point we make that it might be that the right of a member of a superannuation fund to receive a benefit in the future is an expectancy not capable of vesting in a trustee in bankruptcy, as Justice O’Loughlin pointed out in the Coram Case, or it might be an equitable interest which might have been Justice Gummow’s intention in the Caboche Case, but be it right or expectancy, we say it is postponed into the future in the same way as the repayment of the loan in Barton.

GUMMOW J:   But he could get an injunction to stop the Trustee spending it at the races, could he not?

MR BIGMORE:   If he was quick enough, of course he would, your Honour, yes.

GUMMOW J:   He would not be told to go away because he just had not expected ‑ ‑ ‑

MR BIGMORE:   No, your Honour, no.  The nice question is whether or not the fruits of the policies would ultimately vest or would be exempt or would only be property in the bankruptcy sense after discharge and therefore not fit the description of property or after acquired property under section 116.

GLEESON CJ:   Yes, it might be the only question.  If what he had on day three was a right or interest, why did that not vest in the Trustee in Bankruptcy?

MR BIGMORE:   For the same reason that the right to repayment of the loan in Barton’s Case was not put forward as an appropriate quid pro quo.  The Trustee simply would not want such a prospective right, if right it be.  It is not yet due in the sense that Mr Benson is yet to retire but when he retires he would expect, if he holds the judgment in the Full Federal Court, to receive $140,000 or thereabouts from these three funds.  Now, he has done what was intended to be done by the Barton family.

GLEESON CJ:   All it means is that he has applied the $80,000 in exchange for a form of valuable consideration that is not much use to the Trustee.

MR BIGMORE:   Yes, but the question then becomes whether or not that $80,000 has been acquired by somebody called a “purchaser for valuable consideration” within the meaning of section 120, and we go back to the point ‑ ‑ ‑

GLEESON CJ:   Now, as I understood the burden of your argument, it was that there was no valuable consideration, not that there was no purchaser.

MR BIGMORE:   No, we take up what is said in Barton’s Case and that there is a combined concept of purchaser for valuable consideration.  We do not simply say that the rights – and I hope this is the impression that we have given from our written submissions; it is certainly the intention behind them – we do not simply say that if you analyse and drill down into all these deeds and the documents we do not have available to us, we will find something roughly equivalent to $80,000.  That is not our point.  Nor is it our point that if drill down you will find something that is worth far less, some nominal equivalent.  What we say is that the trustees or the corporate respondents, as I called them, are not purchasers for valuable consideration of the $80,000.

HAYNE J:   Now, in Barton’s Case 161 CLR, particularly at page 86, the Court says:

A beneficiary under a settlement is not a purchaser within the meaning of the section unless he has given such valuable consideration as is sufficient in all the circumstances to make him a “buyer” in a commercial sense of the interest passing to him under the settlement.

MR BIGMORE:   That is the important bit, “of the interest passing to him”.  In this case, it is the $80,000 ‑ ‑ ‑

HAYNE J:   Does your proposition then come to this, that a person contributing $80,000 to superannuation arrangements of this kind gets nothing but in a commercial sense can be regarded as full value?  It is a very large proposition of great interest to the superannuation industry, I would have thought, Mr Bigmore.

MR BIGMORE:   And it is not our proposition.

HAYNE J:   Then what is your proposition?

MR BIGMORE:   Our proposition, using those very words, is that the beneficiary under the settlement, which in this case is the corporate respondents, is not a purchaser within the meaning of the section, unless he, which means each corporate respondent, has given such valuable consideration as is sufficient, et cetera, to make him a buyer, in the commercial sense, of the $80,000, not a buyer of the remuneration earned in relation to the management of the $80,000.  Banks buy people’s $80,000 every day and earn fees and other things that people complain about every day, but nobody would suggest that the bank had given valuable consideration for the $80,000 in the sense that it could keep it against the trustee of the bankrupt customer.  Now, that is a little bit different from this case.

GUMMOW J:   The word “commercial” is used with such emphasis in Barton in the light of the rather artificial arrangements that were going on there, is not it?

MR BIGMORE:   Yes, your Honour, and your Honour’s point is that these are not artificial.

GUMMOW J:   Which is a world away from this, yes.

MR BIGMORE:   But one looks at the Trevor Newton Small Case, which was Justice Madgwick’s decision, and it would be strange, in our submission, to find that there is a distinction in the law between a self‑managed superannuation fund – this is for the purposes of section 120 as perhaps distinct from section 121 where we might be talking about fraud – but there is some tension in the proposition that there would be no distinction between a self‑managed fund and a publicly available fund.

My learned friends make much in their written submission about the fact that this is a publicly available trio of funds in the sense that one can go to a supermarket of superannuation products and select the one that one wants, but that the transaction of the transfer of the $80,000 would be unassailable in the public domain but would be, theoretically, they seem to imply, in the private domain.  We submit that that would be anomalous.  To go back to the passage I had in mind at page 86 of the Barton decision, your Honours, about a third of the way down:

It is true that the earlier decisions to which we have referred focus attention more on the word “purchaser” than on the words “valuable consideration” whilst in the more recent cases the reverse is true.  As indicated in the early part of this judgment, we have considerable sympathy with the proposition that the words “purchaser” and “valuable consideration” should be held together as a single concept.

It was that passage that was the basis of the submission I made a little while ago.

The argument in Barton was perhaps for present purposes a little artificial because Sir Maurice Byers put the proposition that the concept of “purchaser for valuable consideration” under section 120 was equivalent to a conveyancing‑type situation where for $1 one might purchase a right, and so on, and hence the detailed examination in this case of the older authorities leading to that conclusion about the combination of the concept of “purchaser for valuable consideration”.  It is to distinguish from the concept of a purchaser in the ordinary sense who gives adequate consideration, perhaps $1 for an easement, or whatever it might be.

The facts in that case, of course – I have mentioned the long‑term loan – the facts appear at pages 78 and 79, particularly two‑thirds of the way down page 79 in the third sentence:

The appellant in consideration of a loan of $170,000 had promised to repay the amount on the expiration of twenty years.  Interest at the rate of 4.25 per cent per annum was payable at five‑yearly rests.  Sir Maurice’s argument was that this was sufficient by itself to constitute valuable consideration in law and that no more was required.

Actually, looking at that, I think I said earlier that that was a low rate of interest.  It might seem quite high now.

GUMMOW J:   How old was the uncle at the time of the settlement?

MR BIGMORE:   I think he was ‑ ‑ ‑

GUMMOW J:   Sixty‑two.

MR BIGMORE:   Yes.

GUMMOW J:   Yes.  He had to live to be 82.

MR BIGMORE:   Yes.  Of course, that was a fairly famous saga in relation to Barton and there were many other issues before Justice McGregor at first instance which refined themselves to this point on ultimate appeal.

GLEESON CJ:   Mr Bigmore, could I take you to the dissenting judgment of Justice Hely in the Full Court of the Federal Court because I want to understand the point of departure between him and the majority.

MR BIGMORE:   Yes, your Honour.

GLEESON CJ:   He analysed the transaction on pages 289 and 290, concluding on page 290 that:

The subject matter of the settlement –

for purposes of section 120 was:

the insurance policies issued to the trustees of the Funds on the life of the appellant.

I may be mistaken, and correct me if I am wrong, but I thought that the way the majority analysed it was that the subject matter of the settlement was the $80,000.

MR BIGMORE:   I think his Honour Justice Hely had in mind the settlement on day two, as it were, rather than on day one.

GLEESON CJ:   He is talking about the settlement that he talked about on page 281 line 128, which is what section 120 is about.  It is about settlement, either what it calls a voluntary settlement or a marriage settlement.

MR BIGMORE:   Yes.

GLEESON CJ:   Presumably, to apply section 120 the first thing you have to do is identify the settlement.  Do you say the subject matter of the settlement was the amount of $80,000 or do you say, like Justice Hely, the subject matter of the settlement was the insurance policies?

MR BIGMORE:   Our argument is founded on the settlement of the $80,000 but we do not say that Justice Hely is wrong in his further analysis of what occurred and he is really looking at day two in the sense that the subject matter of the settlement is now, on day two, the insurance policies.

GLEESON CJ:   Do you mean “is” means “has become”?

MR BIGMORE:   Yes, I think that is what his Honour meant, your Honour.  My learned junior points out that his Honour might have meant the trust established by the three deeds but, with respect, I think what his Honour had in mind is what it is now, or day two, to take up your Honour’s approach to it.

GLEESON CJ:   Leaving aside the question of what the settlement is, is what appears on the bottom of 289 and the top of 290 an accurate account of the nature of these transactions? 

MR BIGMORE:   We say it is, your Honour, yes. 

GLEESON CJ:   So in each case the obligation of the trustees of the fund was to take the moneys that in total amounted to $80,000 and to apply them in paying up the premium on a life insurance policy. 

MR BIGMORE:   Yes.  But, as your Honour pointed out, that is not just simply acquiring a life policy to hold absolutely and for the member.  The entitlement of a member to the proceeds of that policy in due course is complicated by the fact that the scheme is designed to satisfy the superannuation legislation requirements and provide for retirement. 

GLEESON CJ:   So the beneficiary of the policy is the trustee of the scheme. 

MR BIGMORE:   Yes. 

GLEESON CJ:   The life assured is the bankrupt. 

MR BIGMORE:   The life assured is the bankrupt, that is certainly so.

GLEESON CJ:   According to Justice Hely, the beneficiary of the policy is the trustee of the scheme. 

MR BIGMORE:   Yes. 

GLEESON CJ:   The terms of the scheme are what? 

MR BIGMORE:   The benefits provided for in the respective deeds would be provided when the time came, primarily, upon retirement from the workforce. 

HAYNE J:   That needs a little amplification, I would have thought.  If we go to the Prudential policy, being the only policy with which we are favoured, page 182, firstly, am I right in understanding what appears at page 182 as being the policy of which the Prudential trust deed was speaking? 

MR BIGMORE:   Subject only to the fact that the Trustee in Bankruptcy has to deal with what he finds, rather than know this absolutely, the answer is yes. 

HAYNE J:   I would have thought it tolerably plain that there is in this a policy of life insurance – see, for example, clause 6 at page 184 – and that falls within the definition of the Life Insurance Act now found in section 9 of the 1995 Act and found in earlier versions of that Act.  But when we go to clause 2, page 182, we find a rather unusual structure, where the policyowner – in this case, the Trustee – presumably at the direction of the member can, in effect, choose the way in which the premium is applied ‑ see, for example, clause 4, page 183 – into one of any of a number of different kinds of fund.  At the risk of undue simplification, what it looks like is that, as part of a life insurance policy, an arrangement is made for the investment at the member’s choice in a variety of unit investment arrangements.  Do I mischaracterise it? 

MR BIGMORE:   No, your Honour, no.

HAYNE J:   So that to speak of it as a life policy, though accurate, states only part of the effect of what is being done, does it not?

MR BIGMORE:   It does, your Honour, but in the context with which we respectfully submit the Court is concerned here, the description of it as a policy on the life of the bankrupt shows that it is an exempt asset under section 116(2)(d).  It is not necessary to drill down further in order to look at – it may be that our learned friends can point to something which shows that in consideration of the $80,000 the corporate respondent concerned has provided $80,000 or a motor car or some immediate promise that could be regarded as a quid pro quo for the $80,000, but if one can transmute the type of investment once the corporate respondents have received the $80,000, it makes no difference to our submission that the bankrupt continues to have control to the extent allowed by the policy and the superannuation fund deeds.  That makes no difference to whether or not the Trustee, the corporate respondent, gave valuable consideration for the money itself.

HAYNE J:   But in the Prudential case, through a number of intermediate steps, is one effect of what happened that the member contributed – if I can use that as the most neutral phrase – $20,000 or $30,000, in consequence of which the member gained the benefit of that value of investment in a unit investment scheme?

MR BIGMORE:   Yes, your Honour.  From the bankrupt’s point of view he was arguably no worse off on day two than he was on day one.

HAYNE J:   Stripping it to its essential, it is not unlike the member directing application of superannuation moneys to the purchase of a bundle of shares which are to be held for him under various conditions, one of which is relevantly that he does not get his hands on the proceeds other than by retirement, by effluxion of time, or death or retirement from the workforce.

MR BIGMORE:   Yes.  I say that with some hesitation, because there may well be reasons in the superannuation industry supervision legislation.

GUMMOW J:   I know.  That is another mystery in this case.

MR BIGMORE:   Yes.

KIRBY J:   It is a horrible mystery to have to unravel.

GUMMOW J:   It is the impact of these arrangements on the Commonwealth regulatory legislation.

MR BIGMORE:   We urge your Honours not to go there.

HAYNE J:   Alas, too late, Mr Bigmore, too late.

KIRBY J:   We do not need much encouragement.

MR BIGMORE:   Your Honour has obviously spent a long time ‑ ‑ ‑

GLEESON CJ:   Having made the investment described by Justice Hayne, Mr Benson then probably every quarter gets a notification telling him how much less his investment is worth than it was in the previous quarter, but what he does is get a notification telling him that it is worth X dollars.  Does it tell him, in this case, that if he withdraws on retirement then he will get A dollars and if he dies he will get B dollars and if he withdraws earlier he will get C dollars?

MR BIGMORE:   The evidence in this case does not assist particularly, your Honour.  We do know, from the information provided by the corporate respondents, that at one point a little while ago, about the time of the Full Court hearing, $140,000 was the equivalent, adding them all together, and Justice Hely goes through the letters that were provided to the court.  We have not updated that information.  It probably would be worse now than it was then.

GLEESON CJ:   What do you understand to be the point of departure between the reasoning of Justice Hely and the reasoning of the majority?

MR BIGMORE:   The majority, in our respectful submission, mistook the promises that were made by the trustees, whatever they were, but we can see some of them, to look after the $80,000, if I can use that expression, as a summary of their various obligations, as the consideration for the money rather than for the profits they would earn by managing the money.

GUMMOW J:   Now, does that mean that you rely upon what Justice Hely said at paragraph 137?  I am not sure you do.  But that seems to be the crux of his reasoning.  Paragraph 137 of his judgment.

MR BIGMORE:   Yes, the appeal book does not have the page numbers, your Honour.  Page 292 apparently, thank you.  Yes, I can see 137.  It is poking out between the holes.  Yes, thank you, your Honour.

GUMMOW J:   The majority, I think, supported the first sentence.

MR BIGMORE:   Yes, your Honour.

GUMMOW J:   What I have difficulty with is the next sentence, beginning “But” as a means of excluding the first sentence.

MR BIGMORE:   Yes, the use of the word “But”, it would be probably more sensible if the word were “and” or just left out.

GUMMOW J:   Yes, this is the problem.

MR BIGMORE:   His Honour is accumulating the particular facts and pointing out ‑ ‑ ‑

GUMMOW J:   It is the third sentence, you see, and I am not sure I follow that.

MR BIGMORE:   Yes.

GLEESON CJ:   It is all tied in, is it not, with this idea that the subject of the settlement is the life policy, because that appears from the beginning of the next paragraph.

MR BIGMORE:   Yes.  When your Honour says it is tied in, the focus I think was probably on what the $80,000 had become in real terms and they had become, pretty clearly, exempt assets.

GLEESON CJ:   Yes.  Unless I am misunderstanding Justice Hely, it all turns on his identification of the subject of the settlement because, if you look at paragraph 137, he says:

The matter relied upon as constituting the provision by the trustees of valuable consideration for the acquisition of the life policies is –

et cetera.  I thought the majority would have asked what was the consideration provided by the trustees for the acquisition of the $80,000.

HAYNE J:   And for the acquisition of the life policies by whom is at least part of the difficulties.  Who is his Honour referring to as the “acquirer” of the life policies in that first sentence?

MR BIGMORE:   Yes, the bottom of page 289 perhaps also helps with the construction of that paragraph, your Honour:

Here, it was not intended that the trustees of the Funds would retain the payments in question.  The payments were to be applied in paying up the premium on a policy of insurance ‑ ‑ ‑

GUMMOW J:   Yes.

MR BIGMORE:   It shows that his Honour’s focus was on the fact that ‑ ‑ ‑

GUMMOW J:   But the next sentence, “Nonetheless”, which is correct.

MR BIGMORE:   Yes, there is no controversy about that, of course, your Honour.

GUMMOW J:   No.

MR BIGMORE:   It does not detract from the parts of the judgment that we rely upon, that his Honour’s focus was more on the day two position than the day one position because, as his Honour I think makes clear by that passage at the bottom of page 289, he saw, and we say correctly, the $80,000 as having been transmuted into some life policies so that an $80,000 cash asset became three exempt policies on the life of the bankrupt.

Now, whether a trustee in bankruptcy who is faced with that situation in this country in future will be able to say that I can avoid the transfer, if this Court agrees with us, because it is a transfer into a policy in life insurance where the holder of the policy, the trustee, if you like, of the superannuation fund, is not a purchaser for valuable consideration, but then later fall foul of the fact that what it has been transmuted into is exempt, has to wait for another day.  Although as we point out in a brief note, the Supreme Court in Canada has come to a conclusion that would not make trustees in bankruptcy happy ‑ ‑ ‑

GLEESON CJ:   Why can you not be the purchaser of a sum of money?  I can purchase $A80,000 from you for $US40,000.

MR BIGMORE:   You can indeed, your Honour, yes.  Probably not, I do not want to be held to that.  I think we are doing a bit better, but yes, your Honour.

GLEESON CJ:   Well, whatever the case may be, you can be a purchaser of a sum of money, can you not?

MR BIGMORE:   Yes, of course, and that is what we are concerned with here.  We are talking about whether the corporate respondents have purchased that sum of money for valuable consideration in the sense that they are the purchaser of the money and we say they are not the purchaser of the money because they are the managers of the money.  What they are purchasing is the profit they will make by managing the money.  It is all the more stark when one sees – and it is not that simple because of the paragraphs of the policy that Justice Hayne just went to – it is all the more stark by virtue of the fact that it is transmuted very quickly into three exempt assets.  All the judges who have looked at it so far have taken that to be a disposition relevant ‑ ‑ ‑

GLEESON CJ:   The fact that it is transmuted into three exempt assets explains why you are irritated about it.

MR BIGMORE:   Of course, your Honour.  If it was the motor car then we would not be so irritated, yes.  But the difference with the motor car case is that we would not have anyone to sue, because we would not suggest for a moment that the supplier of a motor car was not a purchaser for valuable consideration, assuming it was an arms‑length transaction and for value.

So it is when one comes to a situation like this where one distinguishes between the position or the role played by the corporate trustee and the role played by the bankrupt who becomes the member of the fund that the point becomes clear.  We say section 120 focuses upon the transfer to someone who is not a purchaser for valuable consideration in the commercial sense.

GLEESON CJ:   This is all in the context of trying to decide whether what Mr Benson engaged in was a voluntary settlement in the context of legislation dealing with voluntary and marriage settlements.  Now, it is a pretty artificial kind of voluntary settlement in the first place, is it not?

MR BIGMORE:   It may be, but, of course, that argument has been had and is not live now.  We rely upon the provisions that were reviewed by all the judges, including Justice Madgwick, in Small’s Case but ‑ ‑ ‑

GLEESON CJ:   All I am saying to you is if you characterise this thing in the first place as a settlement, it is not very surprising to characterise it as a settlement for valuable consideration.

MR BIGMORE:   With respect, we would disagree that that – we would say it would be surprising to characterise this as a settlement for valuable consideration, just as it was surprising in Tooheys’ Case or would have been surprising in Tooheys’ Case, for example, to construe that as a settlement for valuable consideration given by the trustee of the settlement.

GLEESON CJ:   It was a perfectly ordinary commercial transaction, was it not?

MR BIGMORE:   Yes, but the difference in this case was that the corporate respondents were not the purchasers for the valuable consideration.  The value went from Benson and came back to Benson.  That is the difference.  Yes, we are concerned about it because it does not come back to the creditors and that might be a background consideration that would help in the construction of legislation which is beneficial in the interest of the creditors because the purpose behind the statute, we say, is to claw back assets which are transmuted into something else.

It does not have to be transmuted into exempt assets to cause a problem.  A trustee in bankruptcy is just as affronted by a 20-year loan, which stops him getting the $170,000 and distributing it, or even taking his fees out of it, which is probably a consideration in all these cases.  It certainly must be the intention - if Barton’s Case was won by the Trustee, as it was, it must have been perceived that the intention behind this provision, section 120, which is the same, was to preclude circumstances where bankrupts could make assets not just disappear, as they do by going to the racetrack and putting it on the slowest horse, but by setting up a structure, no matter how complicated, by which the asset will not be immediately available for distribution to the creditors or within a reasonable time.

Now, the difference between the car case is that the trustee can see an immediately available asset which replaced the money and, absent some sort of fraudulent intent which would be hard to discern in a case like Cannane where the shares were worth $1 and $1 was paid, one would expect the transaction to be immune under section 120.

GLEESON CJ:   Mr Bigmore, what was the section of the Act that made whatever the assets that Mr Benson acquired as a result of this transaction exempt?

MR BIGMORE:   Section 116(2)(d), your Honour.

GLEESON CJ:   Just a moment, I want to check that.

GUMMOW J:   Well, this (2)(d)(iii) is interesting. 

MR BIGMORE:   Your Honour has ‑ ‑ ‑

GUMMOW J:   I have the 1995 reprint. 

MR BIGMORE:   Yes, it has changed and, indeed, the rate of change in respect of section 120 and section 116 is different. 

GUMMOW J:   Thank you. 

GLEESON CJ:   So it is section 116(2)(d). 

MR BIGMORE:   Yes, your Honour. 

GLEESON CJ:   Now, of course, if he had never had his employment with ISAS terminated, that provision would have applied to his superannuation arrangement with ISAS. 

MR BIGMORE:   Yes, your Honour, one of the cruel ironies.  It is just as your Honour said, as if he had won it at the racetrack. 

GLEESON CJ:   Or inherited it. 

MR BIGMORE:   Or inherited it, yes.  There is no difference, because, as I think we say in our written submissions – and I will not take your Honours to it – the decision in NM Superannuation v Young explains how that comes about.  The policy having been purchased by the trustee of the superannuation fund is nonetheless a policy on the life of the bankrupt and is therefore exempt, does not vest, but after the policy was cashed in and his benefit accrued, in money terms, under the ISAS fund arrangements he owned the money absolutely, and all judges have so far determined that that is the case. 

GLEESON CJ:   But what is happening here is that his previously exempt superannuation entitlements accrue because of the financial failure of his employer.  He, in the jargon of the industry, rolls that amount over into other superannuation entitlements of a similar nature, but because in the meantime he has been entitled to an amount of money representing those benefits the Trustee says, “Gotcha”.

MR BIGMORE:   I do not think Mr Cook is so harsh as that, but ‑ ‑ ‑

GLEESON CJ:   No, that is the way it works out, is it not?

MR BIGMORE:   It is the way it works out, your Honour, and the amendments in 1993 or thereabouts where designed to avoid that very consequence in relation to rollovers, but they were not made retrospective in that they did not apply to this particular bankrupt estate which had occurred earlier.

GLEESON CJ:   Now, as I understand the argument that was put on the special leave application as to the importance of this, it is that if you had a person not like Mr Benson who had no superannuation entitlements but foresaw financial gloom and had a large amount of money available, that person could always put that money beyond the reach of the creditors by investing in superannuation policies.

MR BIGMORE:   To the extent of about $1 million because that is the extent of the exemption, yes, your Honour.

GLEESON CJ:   Is that not just a consequence of the exemption?

MR BIGMORE:   It would be no different if the $1 million were lent on 20-year terms.  It is not the consequence of the exemption that places beyond the reach of creditors necessarily that a trustee in bankruptcy would be concerned upon; it is the consequence of taking a fund of money which, as I have said, could be $1 million and setting up a structure of documents and even overseas entities or whatever it may be that makes that $1 million accrue back to the bankrupt one day, but far in the future.

GLEESON CJ:   Would not section 121 cover such a case?

MR BIGMORE:   It could do and I was asked that in the first five minutes before the Full Court and, your Honour, it is a beguiling thought, but when one gets to – I will answer it differently, obviously, from the way I answered it in the Full Court because I did not get around to making this point until some might say it was too late.  The fact of the matter is you still get to “purchaser for a valuable consideration” as a concept in section 121 as well.

So that even if the bankrupt had put this $80,000 into the hands of the corporate respondents with the most fraudulent intent known, nonetheless, it would still be said that they are purchasers for valuable consideration because unless one could fix them with the fraud as parties to the fraud, then, as with the Small Case perhaps, one could not succeed under section 121 because they would have given valuable consideration.

With respect, that was the problem, because when Justice Beaumont said, “Isn’t section 121 the way to go in relation to this proceeding?”, because we had cross-contended on that point, the answer we were inclined to give, of course, is, “Well, it doesn’t matter much on the facts of this case because we say the inference can be drawn.”  As it happened the court said that the inference cannot be drawn.  It really does not matter, because even if the inference could be drawn and Mr Benson were found to have had a fraudulent intent in the relevant sense, we still came up against the purchase of a valuable consideration concept under section 121.

KIRBY J:   There was a suggestion in the special leave hearing of a difference of view of other judges of the Federal Court.  Do they follow the same line as Justice Hely or is there some different stream of opinion in the Federal Court on this?

MR BIGMORE:   Justice Hely has said more than either Justice Madgwick in the Small Case, who followed Justice Marshall, the trial judge, in our case, your Honour.  The reasons given by Justice Marshall were accepted by Justice Madgwick in the Small Case.  He added a few extra words, but the proposition is the essential proposition that we put, namely that the analogy with a bare trust, where if one puts money into the hands of a trustee, ultimately to enjoy that money many years hence, the trustee is not giving valuable consideration for the money.

There was no similar analysis Justice Hely went into about the – there was no drilling down, if I can call it that, in either of those two judgments.  There was drilling down by the three members of the Full Court in our case.

KIRBY J:   And that is the extent of the case law on it?

MR BIGMORE:   That is the extent of it, your Honour, and at the moment it would be fair to say that if the respondents hold the judgment in this case, then there is encouragement – at least encouragement because the Act has changed to concepts of market value rather than valuable consideration, but there is certainly encouragement for those who would like to make a million dollars disappear from the grasp of their creditors to engage the services of a perfectly innocent corporate citizen such as AMP or any of the corporate respondents in this case, and simply walk in and buy, as it is said, a commercially available product, namely an interest in a superannuation fund.

GLEESON CJ:   Thank you.  We will reserve our decision in this matter and we will adjourn until 10.00 tomorrow morning.

AT 3.24 PM THE MATTER WAS ADJOURNED