The Supreme Court of Victoria held that Ian Cotter owed his daughter, the claimant, Jacqueline, a moral duty to provide for her maintenance and support. Despite a dysfunctional relationship and Maria (her mother) receiving most family assets, the Court found the Will’s exclusion of Jacqueline inadequate, especially as she lacked secure, independent housing and had not benefited from family trusts. The Court ordered $1,151,821 from the estate for Jacqueline to secure a two-bedroom home, rejecting claims for school fees, legal costs, and contingencies. The decision balanced the estate’s size, absence of competing claims, and community expectations for parental provision. 

Williams v Robba [2025] QSC 203 (26 August 2025)

The Supreme Court of Queensland dismissed an application challenging trustees’ decision to split a superannuation death benefit equally between the deceased’s second wife and one of his children. The applicants argued that the child’s greater financial and medical needs warranted a larger share.  Judge held that the trustees had absolute discretion under the trust deed and had exercised real and genuine consideration, making sufficient inquiries into each dependant’s circumstances. The Court found no grounds to interfere with the decision and will hear parties on costs.

Reported in Super & Financial Advice News - Edition 32 / 11 September 2025

Whittaker v Australian Retirement Trust Pty Ltd [2025] QSC 221 (8 September 2025)

This case concerns a legal dispute brought by Mark Alan Whittaker against Australian Retirement Trust Pty Ltd and the Commissioner of Taxation.  Mr Whittaker alleged breaches of federal legislation by the superannuation company and sought pecuniary penalties. Against the Commissioner, he challenged the validity of s 202(1) of the Income Tax Assessment Act 1936 (Cth), claiming it contradicts s 55 of the Constitution, and sought a writ of prohibition to stop the Commissioner from administering Part 25A of the Superannuation Industry (Supervision) Act 1996 (Cth).

The Supreme Court of Queensland dismissed the plaintiff’s application and granted the defendants’ applications to transfer the case to the Federal Court of Australia under s 6(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth). The plaintiff sought constitutional remedies including a writ of prohibition against the Commissioner of Taxation. The Court found these were “special federal matters” beyond its jurisdiction. It ruled that no notice to Attorneys-General was required before transfer, as the Court was not proceeding on constitutional merits. Costs will be addressed on 15 October 2025.

Reported in Super & Financial Advice News - Edition 32 / 11 September 2025

Dayman v Dayman [2025] NSWSC 900 (8 August 2025)

The Supreme Court of New South Wales dismissed Kate Dayman's claim for family provision against the estate of her late father, Brian Dayman. The estate was small and insolvent, with liabilities exceeding assets by over $53,000, and any provision for Kate could only be made via a notional estate order from Brian’s superannuation. The Court found that Kate, a healthy 44-year-old with teaching qualifications and employment prospects, had not been left without adequate provision. It prioritised Glenys Dayman's claim for an unpaid property settlement from 2004, citing her reasonable expectation and Brian’s moral obligation to fulfil the agreement. The Court noted Glenys had received only partial payment from Brian’s superannuation and was still owed $28,000 plus interest. Kate’s credibility was undermined by late disclosure, lack of candour, and inappropriate communications, including a hostile text message that revealed intent to manipulate court portrayal. The Court concluded that Glenys’ claim outweighed any obligation to Kate as an independent adult child, especially given Kate’s ability to return to full-time employment and her relatively stable financial position. The judgment emphasised the importance of not interfering with reasonable expectations in relation to property and found that the estate’s limited resources and Glenys’ outstanding entitlement justified dismissing Kate’s claim.

Reported in Super & Financial Advice News - Edition 28 / 8 August 2025

DPP v Maher [2025] ACTSC 339 (1 August 2025) 

The Supreme Court of the ACT found Jonathan James Maher guilty of 28 counts of theft involving unauthorised cash withdrawals from the complainant’s everyday bank account while the complainant was hospitalised between January and March 2018. The court acquitted Maher of the remaining 180 counts, with five counts withdrawn. It was concluded that Maher knowingly and dishonestly used the complainant’s bank card for personal gain, supported by compelling bank records showing withdrawals coinciding with depletion of Maher’s own funds. The complainant’s testimony, though affected by memory gaps and substance use, was deemed credible for the relevant period. The case also examined transactions from a superannuation account opened in July 2018, which had been funded by compensation. Maher signed the account opening documents as power of attorney but was not authorised to use the funds for personal benefit. Although approximately $200,000 was depleted from this account, the court found insufficient evidence to convict Maher on related counts due to timing, cohabitation context, and lack of clear authorisation. The complainant maintained he never gave Maher access to the superannuation card and explicitly instructed that it not be used.

Reported in Super & Financial Advice News - Edition 27 / 7 August 2025

Marshall & Anor v Synchron Advice Pty Ltd [2025] VSC 458 

In a decision handed down on 1 August 2025, the Supreme Court of Victoria partially upheld the appeal of Noel Marshall and Wealth Foundry Pty Ltd against a Magistrate’s ruling that they indemnify Synchron Advice Pty Ltd for a settlement paid to clients following an AFCA recommendation. The Magistrate had found that clause 8.2 of the Corporate Authorised Representative Agreement imposed a broad indemnity obligation, not requiring proof that the appellants’ conduct caused client loss. On appeal, Justice Watson agreed with this interpretation but held that Synchron was required to prove the reasonableness of the settlement. The Court found that while the settlement was reasonable in principle, only part of the quantum—$11,270.07—was supported by sufficient evidence. This included fees paid to Wealth Foundry and Eclipse Super, and estimated SMSF running and wind-down costs. The Court also allowed recovery of $5,435 in AFCA fees. The appeal was upheld, and the parties were directed to submit revised orders reflecting the judgment.

Reported in Super & Financial Advice News - Edition 27 / 7 August 2025

In the matter of Bailey Roberts Group Pty Ltd (in liq) [2025] NSWSC 831 (28 July 2025)

In the matter of Bailey Roberts Group Pty Ltd (in liq) [2025] NSWSC 831, the Supreme Court of New South Wales dismissed both the 2021 and 2023 proceedings brought by the plaintiff, Financialstrategy.com.au Pty Ltd (FPL), against multiple defendants including Bailey Roberts Group Pty Ltd (BRG), its affiliates, and individuals. Justice Black J found that FPL’s claims were based on false evidence provided by Mr Roberts, its sole director, particularly regarding alleged loss of access to client data and systems. The Court determined that FPL had retained substantial client information and continued servicing clients, undermining its claims of business disruption. Expert evidence presented by FPL was deemed unreliable and incapable of quantifying actual loss. As a result, the Court awarded indemnity costs to the defendants, and declined to impose a third-party costs order against Mrs Roberts, who had funded the litigation. The Court also ordered the release of security for costs paid into Court to the respective defendants.

Reported in Super & Financial Advice News - Edition 26 / 31 July 2025

Sidhu and Australian Securities and Investments Commission [2025] ARTA 994 (7 July 2025)

The Administrative Review Tribunal affirmed ASIC’s decision to disqualify David Sidhu as an approved SMSF auditor. Mr Sidhu was found to have failed to perform his duties adequately and properly across audits of three SMSFs. He lacked sufficient documentation and audit evidence, breaching ASA 230 and ASA 500 standards. His audit files were disorganised and relied heavily on assumptions and prior knowledge rather than independent verification. He also failed to comply with auditor independence requirements under APES 110, with longstanding client relationships and non-audit services creating threats. Although Mr Sidhu showed remorse and acknowledged errors, the Tribunal found his conduct reflected poor judgement and diligence. The cumulative breaches undermined the integrity of the superannuation system. Disqualification was deemed necessary for both specific and general deterrence. The Tribunal rejected his proposal for a suspension with conditions, citing lack of jurisdiction to impose such terms. The decision was affirmed as the appropriate regulatory response.

Reported in Super & Financial Advice News - Edition 26 / 31 July 2025

DPP (Cth) v Bart [2025] VSCA 161 (7 July 2025)

Charges were brought by the Commonwealth Director of Public Prosecutions against Philip James Bart and Ronald George Johnson, directors of Bruck Textile Technologies Pty Ltd (BTT), who allegedly structured a business sale that left 58 employees without employment or entitlements. Although BTT was insolvent, the Commonwealth later paid over $3.48 million in Fair Entitlements Guarantee (FEG) advances to BTT’s liquidators, who then paid the employees. The Court found that such payments constituted recovery of entitlements, and therefore, the accused could not be said to have intended to prevent recovery. The judgment clarified that recovery under s 596AB(1) includes payments made via statutory schemes like FEG, not just directly from the employer. Consequently, the second legal question regarding the definition of “intention” under the Criminal Code was deemed unnecessary to answer.

Reported in Super & Financial Advice News - Edition 24 / 17 July 2025

Gill v Kanda [2025] VMC 8 

The plaintiff Harpreet Singh Gill alleged that his employer, Raman Kanda, failed to make superannuation contributions during his six-month employment. Although Gill’s pay slips showed superannuation amounts, no payments were made to his fund, a fact confirmed by his 2024 super statement. The Australian Taxation Office (ATO) later received superannuation guarantee charge (SGC) payments from Rosenhart Pty Ltd, associated with Kanda, in late 2024 and early 2025. Kanda admitted to lapses in superannuation payments and said he entered a payment plan with the ATO following an audit. The Court found that Kanda had indeed failed to meet his superannuation obligations during the employment period. However, it accepted that the outstanding amounts had since been remitted to the ATO. As a result, no further order was made for superannuation payments. The case underscored the importance of employer compliance with superannuation laws under the Fair Work Act. 

Reported in Super & Financial Advice News - Edition 23 / 10 July 2025

Steele v Host-Plus Pty Limited as trustee for the Hostplus Superannuation Fund [2025]

The Federal Court dismissed the appeal without leave to amend, brought by Michael Steele against Host-Plus Pty Limited and the Australian Financial Complaints Authority (AFCA). The case concerned the distribution of a deceased member’s superannuation death benefit, which had been allocated entirely to the deceased’s spouse. Mr Steele, the deceased’s son, challenged this decision, arguing it was unfair and failed to consider relevant factors. However, the Court found that the appeal did not raise any seriously arguable question of law and failed to comply with procedural requirements. The judge also noted that the applicant’s arguments largely contested factual findings rather than legal errors.

Reported in Super & Financial Advice News - Edition 21 / 26 June 2025

Shaw v NM Superannuation Pty Ltd (AMP) [2025]

The applicant, an undischarged bankrupt, lacked standing to initiate proceedings. Any chosen action vested in the bankruptcy trustee and not the applicant. The applicant’s claimed that AMP should reimburse  fees and insurance charges deducted from his superannuation account between 2009 and 2021. He claimed the fees were unfair, unauthorised, and not properly explained to him. He insisted that AMP reinstate his old super fund, and pay him damages. These were statute-barred under relevant limitation provisions.

The Deed of Settlement executed in November 2024 was void for want of legal capacity.

The proceedings were dismissed and costs were awarded to the respondent (AMP) subject to agreement or assessment 

Reported in Super & Financial Advice News - Edition 20 / 19 June 2025

Orel, in the matter of an application by Orel [2025]

Thomas Orel, an undischarged bankrupt, sought court approval to manage a company acting solely as trustee for his self-managed superannuation fund (SMSF). He also requested a declaration that he is not a disqualified person under the Superannuation Industry (Supervision) Act.

The court accepted that his bankruptcy arose from industry-wide issues, not misconduct, and that third-party risk was minimal.

A procedural error in notifying ASIC was excused as it caused no substantial injustice. The court granted all relief, allowing Orel to manage the company and maintain the SMSF’s compliance. 

Reported in Super & Financial Advice News - Edition 20 / 19 June 2025

Mason and Commissioner of Taxation (Practice and procedure) [2025] 

The Administrative Review Tribunal (ART) dismissed the Stay application (power to grant a stay of the impost of the general interest charge) while the substantive proceedings seek review of an objection decision made by the Commissioner of Taxation. ART has no power to issue a stay of the general interest charge.

Reported in Super & Financial Advice News - Edition 18 / 5 June 2025

Omibiyi and Commissioner of Taxation (Taxation and business) ARTA (2025)

The Applicant who was a director and a responsible officer of the SMSF trustee, has sought review of the decision of the Commissioner to disqualify him on compassionate grounds because he considers he should be given a ‘second chance’. The question for the Tribunal is whether the nature or seriousness of the contraventions, or the number of them, provide grounds for disqualification. The contraventions involved 117 withdrawals from the fund. The Applicant made the withdrawals because he was struggling financially and needed money to pay his mortgages and to complete business deals. He had fallen into financial hardship in 2017 after losing money on investments. He could not meet his mortgage repayments and used the fund as a “safety net” so as to keep a house over his head. His financial problems were exacerbated by COVID in 2020 and 2021.

The Tribunal found that 117 contraventions of s65 is a very significant number of contraventions. They were frequent and over a long period of time. The contraventions were deliberately made with the knowledge that they were in breach of the trust deed and contrary to obligations in the Superannuation Act and affirm the decision to disqualify the applicant.

Reported in Super & Financial Advice News - Edition 16 / 22 May 2025

J&J Richards Super Pty Ltd ATF The J&J Richards Superannuation Fund v Nielsen (No 2) [2025] FCA 431

The applicant brought claims on its own behalf and on behalf of group members against the companies who are trustees and a responsible entity, as well as directors of both companies alleging various breaches. The alleged breaches were directed at the conduct of the Companies and the Directors in relations to an unregistered managed investment scheme knows as the “Investport Income Opportunity Fund”. The applicant also brought claims against the Companies’ insurer. The court ordered that the insurer’s settlement and final distribution scheme sought by the applicant to be made.

Reported in Super & Financial Advice News - Edition 15 / 15 May 2025

Knowles v Interprac Financial Planning Pty Ltd [2025] QSC 78

The Queensland Supreme Court dismissed the plaintiff’s claims on opportunity loss for financial advice provided by an authorised representative (AR) of an AFSL stating that those claims were statute barred.

The plaintiff has claimed due to the incorrect advice provided by an AR that caused him and his SMSF investment losses. He has brought the claim against the AFSL holder who authorised the AR.  

Merchant v Commissioner of Taxation [2025] FCAFC 56

The primary judge of the Full Federal Court heard three appeal proceedings brought by Mr Gordon Merchant and a related corporation against amended assessments issued by the Commissioner of Taxation concerning transactions entered into between September 2014 and April 2015 relating to a sale of shares in Billabong International Ltd (BBG) and in Plantic Technologies Ltd. For reasons published on 14 May 2024, the judge dismissed each proceeding: Merchant v Commissioner of Taxation [2024] FCA 498.

Viridian Financial Group Ltd v Loring (Pleadings Dispute) [2025]

The court ordered that the defendant (authorised representative of a former employer AFS licensee) be struck out for contravening financial services law 

The defendant also later registered an investment company with ASIC and appointed himself as the director and the company secretary and have contacted the clients of the former employer while still employed in that company and have encouraged to leave the employer and seek the services from his company. 

S.N.A Group Pty Ltd v Commissioner of Taxation [2025]

The appeal against an objection decision of the Commissioner of Taxation – whether deductions claimed under s 8-1 of the Income Assessment Act 1997 (Cth) were allowable – whether owners and controllers of entities in a corporate group could charge those same entities for services provided by other members of that corporate group – where holding of assets in the non-operating entities was for the purposes of asset protection or profit distribution – whether conduct of parties can assist in determining terms of an informal contract for the provision of services.

The decision clarifies the tax treatment of service fees and inter-entity charges within a family-owned corporate group. SNA is an Australian private company. It carries on the business of real estate property management. In 2021, the Commissioner issued amended income tax assessments and penalty assessments and related reasons for decision to SNA and a related company for the income years 2015 to 2019. The penalty assessment-imposed penalties at the rate of 50% based on recklessness. The operating companies claimed these fees as deductions under the general deduction rule (Section 8-1 of the ITAA 1997).

The fees were not well documented and formal contracts were not renewed as the years progressed. Instead, fees were set informally. The Commissioner raised concerns over the companies paying out fees to related entities wiping out much of their taxable income and without formal documentation.

The Federal Court ruled in favour of the real estate group and upheld the appeal noting that the informality of inter-entity relationships within the business group made for challenges in discharging an onus of proof. But great injustices can be visited upon those in small business or who have retained those habits, if the Commissioner does not bring to bear at the audit stage an understanding grounded in the realities of commerce. 

Sutcliffe v Harper [2025] NSWSC 54 (18 February 2025) and Sutcliffe v Harper (No 2) [2025] NSWSC 281 (31 March 2025) 

The deceased had left assets to both her children. The defendant being the daughter with whom the deceased had joint ownership of a property which later passed onto the daughter and her partner by right of survivorship. The defendant was also the executor of the Will.

The superannuation funds were divided between the two children according to the death benefit nomination. 

The son commenced proceedings claiming a provision of lump sum from the estate. However, the court rejected this and ordered that the residue of the estate be paid to the son given the defendant’s net asset position was in a much favourable position.

A second hearing was commenced for costs order. The judge ordered that the plaintiff’s costs of the proceedings be paid out of the notional estate of the deceased.   

QWYN and Commissioner of Taxation (Taxation and business) [2025] ARTA 

Whether the payments received by a retiree from Australian public service on disability grounds in 2007, should be classified as lump sum payments or as superannuation income stream benefits.

In the applicant’s circumstances, the category into which he falls depends upon whether the definition of ‘pension’ in the Superannuation Industry Supervision Act 1993 (SIS Act) includes payments which satisfy the ordinary meaning of that word, or only covers the specific kinds of payments that are taken to be pensions under the Superannuation Industry Supervision Regulations 

The judge affirms in these circumstances, the payments which the applicant receives meets the statutory definition of a ‘superannuation income stream’. The payments commenced before 20 September 2007 and meet the definition of a ‘pension’ within the meaning of the SIS Act. 

Reported in Super & Financial Advice News - Edition 9 / 20 March 2025

Lynn v Australian Financial Complaints Authority [2025] FCA

The deceased had a non-binding nomination with the trustee of the super fund to distribute his superannuation death benefits to her four biological and two step children. The trustee made a decision to allocate all the death benefits to the estranged wife against whom the deceased had a family violence restraining order and had separated. However, at the time of the death, they were still legally married. A complaint was lodged with AFCA by one of the daughters against the trustee’s decision.

AFCA found that the trustee's decision was not fair and reasonable in its operation in all the circumstances. It set aside the trustee's decision, finding that 50% of the benefit should be paid to the wife with the balance paid to the six children in equal shares. The wife complained that AFCA misapplied the provisions of the SIS Act and the Trust Deed by disregarding her status as a financial dependant and spouse.

She lodged an appeal with the Federal Court. The appeal was dismissed stating that there was nothing in AFCA's reasons that disclosed any misconception on its part as to its statutory task, and it accorded the wife procedural fairness through the many opportunities extended to her to provide information and by the appropriate distribution of material to all relevant parties. 

Reported in Super & Financial Advice News - Edition 9 / 20 March 2025

Madden v Australian Financial Complaints Authority Limited [2025] FCA

Administrator of the estate of the deceased, had lodged an appeal on a determination made by AFCA affirming the trustee’s decision was correct to cancel the insurance of the deceased. The trustee of the super fund claimed that they have sent the opt-in letter via post to the late member (deceased) to opt-in under Protect You Super rules as the account was inactive for over 16 months.

Although AFCA found that the trustee had incorrectly updated the address of the member, AFCA was not satisfied that the deceased would have received the opt-in letter if it had been sent to the address the trustee held immediately before it incorrectly updated the deceased member’s address.AFCA dismissed submissions of Administrator of the estate of the deceased person’s solicitor that the trustee had not met its “best interests” duty.

The applicant submitted that AFCA found there to be a breach of statutory duty by the trustee. The applicant noted that AFCA did not itself classify the trustee having incorrectly updated the address of the deceased as a “breach of statutory duty” but that it instead classified such conduct as an “error”. The applicant submitted that the relevant loss to be considered by AFCA was the deceased’s loss of opportunity to elect to continue the death benefit.

The appeal was dismissed on the view the conclusion reached by AFCA was within the range of decisional freedom available to it, and therefore did not amount to an error of law. 

Reported in Super & Financial Advice News - Edition 9 / 20 March 2025

Murphy and Australian Securities and Investments Commission (Taxation and business) [2025] ARTA 75 (6 February 2025)

Following an ATO review of SMSF audit files and a referral to ASIC, which resulted in the identification of breaches by an SMSF auditor  Mr Murphy of auditing and independence standards, ASIC imposed conditions under s.128D of the SIS Act on Mr Murphy ’s registration as an SMSF auditor. In accordance with the Review Conditions of the Conditions Decision, ASIC conducted a peer review of three audit files for the financial year ending 30 June 2021 

The tribunal stated that the principal areas of concern for ASIC in relation to the quality of the audit by Murphy of the Hess Fund (one of the SMSFs audited) were:

(a) Murphy’s failure to identify that there was inadequate evidence of the ownership of the 17 Clearwater Street, Bethania property by the SMSF (Hess property ownership concern).

(b) Murphy’s failure to determine whether a borrowing from La Trobe Financial of $466,095.41 was the subject of a relevant exception so as to enable compliance by the SMSF with s.67 of the SIS Act (Hess compliant borrowing concern).

(c) Deficiencies in the engagement letter issued by Murphy for the audit of the Hess Fund (Hess engagement letter concern).

Tribunal affirmed the Reviewable Decision by ASIC to disqualify Murphy due to non- compliance with the Conditions decision. 

Reported in Super & Financial Advice News - Edition 5 / 20 February 2025

Trevy Jay Assets Pty Ltd as trustee for Yvonne and Trevor Willis Superannuation v Armstrong Way Investments (WA) Pty Ltd [2025] WASC 37 (10 February 2025)

The Supreme Court of Western Australia ordered that the operation of the Caveat be extended, which is the only means the loan that the superannuation trustee lent to the company owning a property is secured.

Reported in Super & Financial Advice News - Edition 4 / 13 February 2025

Claybek Investments Pty Ltd as trustee of the Clayton and Rebekah Black Superannuation v Armstrong Way Investments (WA) PTY LTD [2025] WASC 29 (6 February 2025)

The Supreme Court of Western Australia ordered that the operation of the Caveat be extended, which is the only means the loan that the superannuation trustee lent to the company owning a property is secured.

Reported in Super & Financial Advice News - Edition 4 / 13 February 2025

Primerano v Schisan Investments Pty Ltd [2025] FCA 15 (22 January 2025) 

The appeal was upheld by the Federal Court of Australia to characterise the relationship between the employer and the applicant is of an employer and employee, not of principal and an independent contractor.

Reported in Super & Financial Advice News - Edition 3 / 6 February 2025