Wednesday 7 December 2011

Trustee’s grab for school fees foiled

The young Fung's school fees
have eluded their Mother's trustee
Nick Malanos.
Photo: Worrells. 
NICK Malanos’ attempts to secure $200,000 for the creditors of bankrupt financial advisor Tina Poh-Chooi Fung have been dashed by Federal Court Justice Dennis Cowdrey (See Justice Cowdrey's judgement).

In a decision handed down last week Justice Cowdrey upheld an appeal launched by the bankrupt’s ex-husband, Stephen James Oliver.

Mr Oliver was appealing Federal Magistrate Rolf Driver's January 2011 judgement which found that $200,000 Ms Fung contributed to a fund for the education of the couple’s three children vested with the Worrells’ bankruptcy trustee at the time of her bankruptcy.
The $200,000 – Ms Fung’s share of $400,000 the couple agreed to jointly deposit - was drawn from the proceeds of the sale of their Bellevue Hill home.

The school fees fund was confirmed by consent orders the couple obtained in the Family Court in April, 2008. By October 2008 Mr Oliver and Mrs Fung had concluded the sale of their O’Sullivan road home, agreed on their respective entitlements to the proceeds and deposited the agreed sum into an ANZ account to be administered by Mr Oliver in his capacity as trustee of the children’s trust.

However the following month the District Court froze the ANZ account following action brought against Ms Fung by a creditor. By July 2009, Ms Fung was declared a bankrupt, an outcome that may well have had its roots in a December 2007 ASIC order banning her from providing financial services for four years.

Ms Fung no longer appears on the ASIC disqualified persons list. She was brought undone by her involvement in the Westpoint property imbroglio.

In a January 2008 press release the corporate regulator said her “conduct in failing to disclose to her clients the amount of commission she was to receive from arranging the investments in Westpoint products was misleading or deceptive.”

The basis of Mr Oliver’s appeal was that the school fee fund had already been created at the time of his ex-wife’s bankruptcy and the funds therefore did not vest with Nick Malanos.

Federal Magistrate Driver’s judgment left the way open for Mr Oliver’s appeal.

However the Worrells partner declined to comment when SiN asked if he was considering a challenge.

Contact SiN

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