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Removed super no longer protected from creditors: court

A recent Federal Court ruling has found that the transfer of super from a husband to his wife’s superannuation account is no longer protected as an interest of the bankrupt in a regulated super fund under the Bankruptcy Act 1966.

Terence Wong, senior associate at Sladen Legal, said the court made the ruling in the decision of Kirk as trustee of the Property of Smith (a Bankrupt) v Smith [2024] FCA 240 (15 March 2024) citing section 116(2)(d)(iii)(A) of the Bankruptcy Act 1966 (Cth) (Bankruptcy Act).

The facts of the case state the financial position of the husband’s joinery business deteriorated in 2015, and creditors lodged caveats over the two properties owned jointly by the husband and wife. The business property owned by the family trust was sold and funds were paid towards their lawyer’s trust account.

At the end of 2015, the couple sought advice from their lawyers about future asset protection and proceeded to pay cash towards discharging the bank’s mortgages over their personal properties, which they then sold to acquire another property in the wife’s name.

In 2016, the husband withdrew amounts from his super account into a personal bank account which was then contributed to his wife’s super account and the husband was declared bankrupt in 2019.

“The Court held that a loan to the wife was not a sham and was not available to the husband’s creditors and that the wife was not entitled to greater than her 50 per cent joint interest in their real estate properties,” Broderick said.

“With regards to the superannuation, the court held that once the husband removed it from his superannuation it ceased to be a superannuation interest of the bankrupt protected from creditors under section 116(2)(d)(iii)(A) of the Bankruptcy Act and would have been available to the husband’s creditors.”

Broderick said that under section 128B of the Bankruptcy Act, it was not disputed that the transfer of super from the husband to the wife was to either prevent property from becoming divisible among the husband’s creditors and/or hinder or delay that division process, or both.

“Property held by the bankrupt on trust for another person is also protected from division among the bankrupt’s creditors under section 116(2)(a) of the Bankruptcy Act,” he said.

“It was alternatively submitted that the superannuation amount was subject to a Quistclose Trust in favour of the wife, however, the court found there was no evidence of any mutual intention of any specific purpose for any trust funds such that if the transfer to the wife’s superannuation failed the trust money would be returned to the husband’s superannuation account, and therefore this argument was rejected.”

He added that if the super had not been removed by the husband it would have remained protected from his creditors under section 116(2)(d)(iii)(A) of the Bankruptcy Act.

Keeli Cambourne
28 March 2024
smsfadviser.com

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Retirement Planning

Retiring on your own terms is not always easy to achieve, however it is evident that those who plan for retirement are more likely to do so. Results also show that obtaining professional help during the pre-retirement years further improves the probability of attaining your retirement objectives.

The earlier you start implementing a plan the better the outcomes.

During one’s working life there is always an income to make ends meet when raising children, paying off a mortgage, etc.

Retirement planning is about the lifestyle you will have after you stop work and receiving employment income. Planning focuses on issues such as how much superannuation is enough, taking a super pension, claiming the Age Pension, making superannuation contributions while receiving a pension from a super fund, estate planning and looking after your family.

Planning properly is becoming even more important now we are expected to live longer. This greater need means that professional help has never been more important.

At Wybenga Financial we will provide the time and expertise needed to help you implement the best pre-retirement plan possible. Contact us today to discuss how we can work together on: (02) 9300 3000 or .

Building Wealth

Investing your hard earned savings can be a complex task. There are many issues such as levels of risk, market timing, asset classes, and your own goals, objectives and preferences that need to be considered. It can often seem a daunting task. At Wybenga Financial we have the expertise to assist you in taking control of your finances and making sure you are generating the wealth you need both now and in the future.

The first step is to create a plan. At Wybenga Financial we take great care in getting to know our clients and their future goals and objectives. We combine our knowledge of your personal goals together with an analysis of your current situation, to create a detailed, personalised plan that will help you meet your objectives. This plan will become your road map which outlines how we are going to meet your goals, whilst aligning all investment decisions to your specific risk tolerance.

After we have created your personal plan, we move to implementation. This is where we action the immediate changes set out in your plan, and put in place reminders for anything that is to occur in the future. As your professional advisers, we can action many steps on your behalf making the implementation of changes as painless for our clients as possible. We aim to make the process smooth and seamless, providing a holistic service that can be executed with ease.

The final and most important phase of the relationship with Wybenga Financial is the ongoing management of your wealth. This ensures you are sticking to your plan and that your portfolio is aligned to your needs and attitude toward risk. An ongoing relationship ensures that we know when your circumstances change and that these can be recognised and reflected in changes to your investment approach.

While we are reviewing your portfolio from the perspective of your personal goals and situation, we also take into account the wider economic landscape and changes to legislation. We continually review and analyse our preferred investments in a structured and objective way. The benefit to our clients is that we are unemotional. This can be significantly beneficial over the long term.

At Wybenga Financial we can provide the time and expertise that will help you invest intelligently and prudently. Contact us today to discuss how we can work together: (02) 9300 3000 or .

Personal Insurance

Life insurance isn’t just a cost, though it often feels like it. You buy peace-of-mind that should a serious issue effect you then the consequences won’t unduly affect your family. Insurance provides you with the ability to manage the financial and emotional impact of some of the more drastic events, whether personally or in your small business.

Insurance can’t replace a loved one but it can help reduce the financial burden by providing the capital to ensure your family has choices.

Many Australians are underinsured and the consequences can be very serious for families should there be a death or serious injury. A yes to any of the following questions means you may have a need for insurance coverage:

Do you have a mortgage?
Do you have school fees?
Do you have any personal loans?
Do you have any credit card debt?
Do you have dependents?
Would your financial position be affected if you were to suffer from an illness or injury?
Do you want to have enough capital to look after your dependents if you were unable to care for them for an extended period of time or perhaps indefinitely?

We understand that it can be difficult determining the type and level of cover you might need, let alone choosing an insurer. We can assist by helping you determine your needs and recommend an insurer that is right for you.

At Wybenga Financial we know how to protect your wealth and will recommend solutions that best suit your needs. Contact us today to discuss how we can work together: (02) 9300 3000 or .

Superannuation

Superannuation is mandatory but taking an early and active interest in your retirement planning is critical to ensuring your benefits are maximised by the time you retire. Many will have a superannuation scheme through employment but increasing numbers are starting their own Self-Managed Super Fund (SMSF).

For many, simply relying on employer contributions may not be enough to provide the lifestyle you desire at retirement. We can assist in building strategies to ensure your retirement goals are met and your required lifestyle is maintained throughout retirement.

It is always best to start saving and planning for your retirement as early as you can.

At Wybenga Financial we know our job is to help you meet your retirement needs and we have the skills and experience to do this for you. Contact us today to discuss how we can work together: (02) 9300 3000 or .

Self Managed Super Funds

Self-Managed Superannuation Funds (SMSFs) offer a good strategy option for many individuals, families and small business owners to build tax effective wealth and to protect assets over time. SMSFs are becoming popular for those who are ready to take control of their own super investments as they give you ultimate control and flexibility to manage your retirement benefits.

It must be noted though, that you will have increased responsibilities as a trustee of the fund. As a SMSF Trustee you need to keep up to date with all required regulations and keep up with the fast paced financial markets.

Wybenga Financial can work with you to understand your personal financial situation and decide whether a SMSF structure is appropriate for you. We will also make sure your assets are invested in the most effective way to maximise your retirement benefits.

Should you wish to consider establishing a SMSF then we can help with all aspects of the process from establishment to managing your compliance obligations.

Wybenga Financial would welcome the opportunity to discuss how we can help maximise your opportunities to grow your wealth through a Self Managed Superannuation Fund (SMSF). Contact us today to discuss how we can work together: (02) 9300 3000 or .

Estate Planning

Your estate is made up of everything you own. This includes your home, property, furniture, car, personal possessions, business, investments, superannuation and bank accounts.

Having an estate plan is extremely important. Having a will is just the first step in your estate plan. It is critical to consider what outcomes you would like for your estate and to ensure a plan is in place to achieve those outcomes, both including and beyond the terms of your will.

Wybenga Financial would welcome the opportunity to discuss how we can help ensure your estate is organised to ensure your plans are implemented as you wish. Contact us today to discuss how we can work together: (02) 9300 3000 or .

Finance

Loans and loan management are central to overall financial management. Obtaining the the most appropriat loans for your needs is crucial and Wybenga Financial can help you with solutions that meet your short and long term needs.

At Wybenga Financial we work with experienced mortgage brokers that can assist you in obtaining the most appropriate loan for your needs and objectives. Whilst this is an external service, we work closely with the brokers to ensure the process is as easy and smooth as possible.

Property

We have partnerships with many respected property agents and research firms. This enables us to source suitable properties for individuals, couples and families looking to make an investment into property.

At Wybenga Financial we will assist you implement the most appropriate property investment plan possible. Contact us today to discuss how we can work together: (02) 9300 3000 or .

Strategic Planning

Strategic planning is determining how an investor is going to meet their goals and objectives. It is about helping clients define their goals, gathering information and analysing data to make a plan, then implementing the plan and reviewing the results. It is also reviewing and updating goals and objectives as clients move through different phases of life.

At Wybenga Financial, this is the most critical service we provide. For more information please visit our Building Wealth through Strategic Planning page or contact us to discuss how we can work together: (02) 9300 3000 or .

Financial Videos

Secure File Transfer

Secure File Transfer is a facility that allows the safe and secure exchange of confidential files or documents between you and us.

Email is very convenient in our business world, there is no doubting that. However email messages and attachments can be intercepted by third parties, putting your privacy and identity at risk if used to send confidential files or documents. Secure File Transfer eliminates this risk.

General Calculators

Please enjoy the links to these free tools supplied by MoneySmart – a great resource for general financial information. Please get in touch if you would like to discuss any questions that you may have as a result of using these calculators.

Managing my money

Borrowing and credit

Mortgage calculator
Mortgage switching calculator
Mortgage health check
Personal loan calculator
(also suitable for car loans)
Credit card calculator

Superannuation

Retirement planner
(how to boost your super)
Superannuation calculator
(how fees affect your payout)
Super contributions optimiser
Super vs mortgage calculator
Super co-contribution calculator
Employer contributions calculator

Retirement

Investing

Tess Uncle

B.Sc, M.Com, CA, DipFP

Tess has been working in Chartered Accounting Firms since 2001 and in this time has had a broad range of experience in superannuation, taxation, business services, and financial strategy.

Since 2016, Tess has turned her attention to Financial Planning, earning a Diploma of Financial Planning in 2015 and leading the newly established financial division of the Wybenga Group as a director of Wybenga Financial.

Tess’s mission is to bring the ethics and integrity of her Chartered Accounting background to the area of wealth management.

As a woman in a male dominated field, Tess is active in promoting gender equality in the industry through various programs and mentoring opportunities.

Using her depth of knowledge and experience in tax and accounting Tess is able to demonstrate a level of competence that is unique in the Financial Planning sector.

2001 – Commenced employment with Wybenga & Partners and part-time accountancy studies
2004 – Graduated Masters of Commerce from the University of New South Wales
2005 – Admitted as an Associate Member of the Institute of Chartered Accountants Australia & New Zealand
2007 – Promoted to Manager at Wybenga & Partners
2012 – Appointed as Associate Director
2015 – Awarded a Diploma of Financial Planning
2016 – Appointed as Director of Wybenga Group Pty Ltd, Wybenga & Parthers Pty Ltd and Wybenga Financial Pty Ltd

Schedule a Meeting with Tess

Adam Roberts

B.Bus, B.Sc, CA, DipFP

Adam has been working in Chartered Accounting Firms since 2005 and in this time has had a broad range of experience in superannuation, taxation, business services, and financial strategy.

Since 2016, Adam has turned his attention to Financial Planning, earning a Diploma of Financial Planning in 2015 and leading the newly established financial division of the Wybenga Group as a director of Wybenga Financial. Adam specialises in Financial Planning, wealth accumulation, portfolion management, tax and investment strategies including structuring investments and superannuation, and insurances.

Adam’s mission is to bring the ethics and integrity of his Chartered Accounting background to the area of wealth management.

Combining traditional accounting and financial services has been a welcome move for Adam, allowing him to operate and advise in the financial sector that has been a long time personal passion.

Using his depth of knowledge and experience in tax and accounting Adam is able to demonstrate a level of competence that is unique in the Financial Planning sector.

2005 – Graduated Bachelor of Science from the University of Western Sydney
2005 – Commenced employment with Wybenga & Partners and part-time accountancy studies
2007 – Graduated Bachelor of Business from the University of Western Sydney
2010 – Admitted as an Associate Member of the Institute of Chartered Accountants Australia & New Zealand
2010 – Promoted to Manager at Wybenga & Partners
2012 – Appointed as Associate Director
2015 – Awarded a Diploma of Financial Planning
2016 – Appointed as Director of Wybenga Group Pty Ltd, Wybenga & Parthers Pty Ltd and Wybenga Financial Pty Ltd

Schedule a Meeting with Adam

Advisory Cadetships

What is an Advisory Cadetship?
An Advisory Cadetship enables you to commence your career whilst attaining the necessary university qualifications by studying part-time.

How does it work?
Generally, our cadets complete a relevant business or accounting degree at the University of New South Wales, the University of Technology Sydney, Macquarie University, or the University of Western Sydney.

The Firm provides 3-hours paid study leave per week to attend university. This can either be taken at the one time or broken between days depending on the individual’s requirements. In addition, the Firm provides paid study leave for both mid-semester and end-of-year exams.

We take the work life balance very seriously at Wybenga Financial and our cadets are encouraged to have a fulfilling life outside the office. A typical day will have you arriving at the office at around 8.30am with most days concluding at 5.30pm.

What are the benefits of an Advisory Cadetship with Wybenga Financial?
Our cadets benefit from the following:

Career path – on completion of their degree our cadets have significant practical experience which will assist them in advancing their careers
Work helps your studies – by working full-time our cadets are able to apply their practical knowledge in the university subjects
Camaraderie with other cadets – the Firm has a number of cadets at various stages of their career
Mentoring – cadets are paired with a senior staff member who oversees their progress and training both at work and with their studies
Communication and feedback – the Firm has an open door policy which enables all cadets to interact with all members of staff including Directors
Culture – the Firm promotes a friendly social culture with a number of functions throughout the year
Modern environment – including ‘socialising’ areas such as pool table and break out area
Training – ongoing support and technical training. We also provide internal and external training on a monthly basis
Remuneration – working full-time provides a market salary and independence with salaries being reviewed every 6-months

What happens when I complete my degree?
The completion of your degree is the first step of what we hope to be a long and successful career with us. The next step is the commencement of a Diploma of Financial Planning followed by completing the requirements to become a Certified Financial Planner (CFP).

There are always progression opportunities for the right cadets and we are dedicated to the long term development of our staff.

Who should apply?
Current Year 12 students or first/second year University Students who:

want to commence their career in financial advisory;
are due to commence or are currently completing a part-time business or commerce degree at university with an advisory major;
want to gain valuable hands-on experience while completing their qualifications;
are looking for a friendly working environment;
are team players who display initiative;
have a commitment to self-development;
possess excellent personal presentation and communication skills; and
are motivated and mature minded.

How do I apply for an Advisory Cadetship?
To apply for a Cadetship position at Wybenga Financial send us your details. Please also include in your covering letter why you wish to do a cadetship, include relevant qualities you possess, main interests / achievements, and any previous employment.

Interested candidates should initially forward a resume/covering letter of no more than 3-pages. Please provide full details of contact information (telephone or e-mail).

What if I have more questions?
For further information about our Cadetship program, please send your enquiry to .

Latest News

Removed super no longer protected from creditors: court

Latest Articles

News Archive

Retirement Planning

Building Wealth

Personal Insurance

Superannuation

Self Managed Super Funds

Estate Planning

Finance

Property

Strategic Planning

Financial Videos

Secure File Transfer

General Calculators

Managing my money

Borrowing and credit

Superannuation

Retirement

Investing

Tess Uncle

B.Sc, M.Com, CA, DipFP

Schedule a Meeting with Tess

Adam Roberts

B.Bus, B.Sc, CA, DipFP

Schedule a Meeting with Adam

Advisory Cadetships