Bankruptcy Act 1966

If:

a person (the transferor) transfers property to another person, (the transferee); and

the transfer is by way of a contribution to an eligible superannuation plan for the benefit of a person who later becomes a bankrupt (the beneficiary); and

the transferor did so under a scheme to which the beneficiary was a party; and

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

the beneficiary’s main purpose in entering into the scheme was:

to prevent the transferred property from becoming divisible among the beneficiary’s creditors; or

to hinder or delay the process of making property available for division among the beneficiary’s creditors; and

the transfer occurred on or after 28 July 2006;

For the purposes of paragraph (1)(b), disregard a benefit that is payable in the event of the death of a person.

The beneficiary’s main purpose in entering into the scheme is taken to be the purpose described in paragraph (1)(e) if it can reasonably be inferred from all the circumstances that, at the time when the beneficiary entered into the scheme, the beneficiary was, or was about to become, insolvent.

In determining whether the beneficiary’s main purpose in entering into the scheme was the purpose described in paragraph (1)(e), regard must be had to:

whether, during any period ending before the scheme was entered into, the transferor had established a pattern of making contributions to one or more eligible superannuation plans for the benefit of the beneficiary; and

if so, whether the transfer, when considered in the light of that pattern, is out of character.

For the purposes of paragraph (4)(a), disregard a benefit that is payable in the event of the death of a person.

Subsections (3) and (4) do not limit the ways of establishing the beneficiary’s main purpose in entering into a scheme.

For the purposes of this section, a rebuttable presumption arises that the beneficiary was, or was about to become, insolvent at the time the beneficiary entered into the scheme if it is established that the beneficiary:

had not, in respect of that time, kept such books, accounts and records as are usual and proper in relation to the business carried on by the beneficiary and as sufficiently disclose the beneficiary’s business transactions and financial position; or

having kept such books, accounts and records, has not preserved them.

If:

as a result of subsection (1), a transfer made by way of a contribution to an eligible superannuation plan is void against the trustee in the beneficiary’s bankruptcy; and

any of the following amounts was debited from the contribution:

an amount in respect of tax in respect of the contribution;

a fee, or a charge, in respect of the contribution; and

in compliance with a section 139ZQ notice that relates to the transfer, the trustee of the eligible superannuation plan pays an amount to the trustee in the beneficiary’s bankruptcy; and

the amount paid in compliance with the section 139ZQ notice exceeds the amount so debited;

This section does not affect the rights of a person who acquired property from the transferee in good faith and for at least the market value of the property.

For the purposes of this section:

transfer of property includes a payment of money; and

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

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