Do (Trustee), in the matter of Andrew Superannuation Fund v Sijabat

In the matter of Andrew Superannuation Fund v Sijabat, the Federal Court of Australia considered an appeal against a decision of the Federal Circuit and Family Court of Australia. The primary issue was whether the rebuttable presumption in s 128B(5) of the Bankruptcy Act 1966 (Cth) was established, specifically in relation to the phrase “business carried on by the transferor.” Additionally, the court examined whether the primary judge had failed to consider whether the presumption was rebutted, and if the primary judge had failed to consider and find that the rebuttable presumption had been discharged. The court found that the primary judge had not properly considered whether the presumption was rebutted, and thus the appeals were allowed.

The court considered the primary judge's reasoning, which was based on an analogy to corporate financial records and the requirements set out in s 286 of the Corporations Act 2001 (Cth). The primary judge had concluded that the lack of information regarding the true financial position of the respondent, Tien Dung Do, satisfied the requirements of the deeming provisions in s 128B(5), leading to the application of the rebuttable presumption of insolvency. However, the court found that the primary judge had not considered whether the presumption had been rebutted, and thus the appeals were allowed. The court set aside the declaration and orders made by the primary judge and substituted orders limited to the transfers made in the financial years ended 30 June 2014 and 30 June 2015.

The court also considered the costs of the appeal and the notice of contention. The Trustees were ordered to pay the costs of the appeals and notices of contention, as they had been unsuccessful. The court made orders for the costs in accordance with Rule 39.32 of the Federal Court Rules 2011. The appeals were allowed, and the declaration and orders made by the primary judge were set aside and replaced with new orders.