Moses v Harris, in the matter of Harris [2026] FCA 254

1. On 4 April 2025 Ari Ben Moses and Bridging Capital Holdings Pty Limited obtained judgment against Christopher Steven Harris in proceeding NSD 943 of 2022. Relevantly the Court gave judgment for the applicants against Mr Harris and a related entity in the sum of $1,717,761 plus interest and costs: see Bridging Capital Holdings Pty Ltd v Self Directed Super Funds Pty Ltd (Trial) [2025] FCA 314.
2. On 2 May 2025 Mr Harris filed a notice of appeal against the orders made in Bridging Capital.
3. On 24 June 2025 the judgment creditors, Mr Moses and Bridging Capital, commenced this proceeding by presenting a creditor's petition. On 26 August 2025 a sequestration order was made against the estate of Mr Harris (in the balance of these reasons I will refer to Mr Harris as the Bankrupt) and Aaron Kevin Lucan became the Trustee of his bankrupt estate.
4. By amended interim application filed on 25 November 2025 the Bankrupt and Georgina Ann Holland, his wife, seek an order pursuant to s 104 of the Bankruptcy Act 1966 (Cth) that the Court review the Trustee's decision made on 29 October 2025 rejecting the Proof of Debt dated 26 September 2025 lodged by Ms Holland under s 84 of the Bankruptcy Act in the Bankrupt's estate in the amount of $185,652.50 (inclusive of GST) and that the Court reverse that decision and admit the Proof of Debt.
5. In the Proof of Debt Ms Holland made claims in the amount of $1,723,289 in relation to personal guarantees provided by the Bankrupt for the repayment of funds purportedly loaned by Ms Holland to the Bankrupt and his related entities.
6. After the Proof of Debt was rejected by the Trustee, Ms Holland abandoned her claim for $1,723,289 and instead claimed that the Bankrupt was indebted to her in the sum now the subject of the amended interim application, being $185,652.50.
7. The Trustee has filed a notice stating grounds of opposition to that application. In summary he contends that:

(1) Ms Holland did not provide sufficient or credible evidence to him in support of her claims;

(2) Ms Holland failed to comply adequately with requests made by him pursuant to s 77A of the Bankruptcy Act for documents and information relevant to the Proof of Debt including, in relation to the source and movement of funds used to pay the legal costs which make up the alleged moneys owing and the affairs of entities associated with herself and the Bankrupt;

(3) it has been within Ms Holland's capacity as director of Lafayette Holland Investments Pty Ltd (formerly Exelsuper Pty Ltd), from whom the Trustee has requested relevant documents and information, to provide those documents. However, she has not done so; and

(4) accordingly Ms Holland has not set out a basis on which the Proof of Debt, as lodged or amended, should be admitted.

1. Section 82 of the Bankruptcy Act provides that, subject to Div 1 of Pt VI of the Bankruptcy Act, all debts and liabilities, present or future, certain or contingent, to which a bankrupt was subject at the date of the bankruptcy, or to which he or she may become subject before his or her discharge by reason of an obligation incurred before the date of the bankruptcy, are provable in his or her bankruptcy.
2. Section 84 of the Bankruptcy Act provides that a creditor who desires to prove in a bankruptcy shall lodge or cause to be lodged a proof of debt with the trustee in accordance with the section.
3. Section 102(1) of the Bankruptcy Act provides that the trustee shall examine each proof of debt and within the time specified either admit the proof of debt in whole, admit it in part and reject it in part, reject it in whole, or require further evidence in support of it. Section 104 provides that a creditor or the bankrupt may apply to the Court for review of a decision of the trustee under, relevantly, s 102(1) in respect of a proof of debt.
4. The principles applicable to a review under s 104 of the Bankruptcy Act were not in dispute.
5. First, the nature of the review under s 104 of the Bankruptcy Act is not confined to the correctness of the trustee's decision but is in the nature of a re-hearing: see Deavys v Official Trustee in Bankruptcy [2011] FCA 398 (Flick J) at [13].
6. Secondly, the party seeking the review bears the onus of persuading the court that it should intervene: Deavys at [14], referring to Re Masters; Ex parte Gerovich (Unreported, Federal Court of Australia, Toohey J, 30 July 1985).
7. The principles governing a review under s 104 of the Bankruptcy Act were summarised in Coshott v Burke (2012) 10 ABC(NS) 459; [2012] FCA 517 where Rares J said at [56]:

The function of the Court under s 104 is not to consider the correctness or otherwise of the trustee's decision in light of the material before the trustee, but to determine in light of the material before the Court whether the applicant for review has a debt that should be admitted to proof or has established that a debt admitted to proof ought not to have been. The court can take into account inconsistencies in the material provided to the trustee and the evidence before the Court: Re DK Rogers; Ex parte v CMV Parts Distributors Pty Ltd (1989) 20 FCR 561 at 562-563 per Von Doussa J; Re Payne; Ex parte Hurst [1986] FCA 439; BDT Holdings Pty Ltd v Piscopo [2009] FCA 151 at [4] per myself. An application to review a trustee's decision under s 104 is an original proceeding that the Court hears de novo: see too Tanning Research Laboratories Inc. v O'Brien (1990) 169 CLR 332 per Brennan and Dawson JJ, with whom, on this matter, Toohey J agreed at 354.

1. Thirdly, the role of the trustee in such an application is to ensure that all relevant evidence is before the Court (including the material that was before him or her in relation to the decision), and for the trustee's counsel to assist the Court in the usual way by ensuring appropriate arguments are made. It is not for the trustee to actively defend his or her decision: Mann v Low (Trustee), in the matter of Gorman [2026] FCA 42 at [16].

1. The question for determination is whether Ms Holland has established that the amount for which she now claims the Bankrupt is indebted to her gives rise to a debt provable in bankruptcy. I address that question below having regard to the evidence relied upon before me.

1. The parties relied upon various affidavits affirmed by Ms Holland and the Trustee. A summary of the evidence insofar as it concerns, and is relevant to, the question for determination before the Court is set out below.

1. As set out above, a sequestration order was made against the Bankrupt's estate on 26 August 2025.
2. On the same day the Bankrupt sent a letter to Ms Holland (26 August Letter) which included:

l write in respect of the various loan agreements pursuant to which you have advanced funds to me personally, and to my associated companies and trusts, under which I am a guarantor.

As you are fully aware, those companies and trusts to which you have loaned funds will not be in a position to pay those funds, and I assume you will rely on my guarantees to pay the amounts owing.

On 25 August 2025 [sic], the Federal Court of Australia made a sequestration order against me. As a result, I have been made a bankrupt and Mr Aaron Lucan of Worrell's has been appointed as my bankruptcy trustee.

Pursuant to the loan deeds currently on foot between us, the making of the sequestration order constitutes an event of default. Accordingly, I give you formal notice that:

1. I am in default under the loan agreements as guarantor; and

1. The liabilities now owing to you constitute unsecured debts provable in my bankruptcy.

All future correspondence and enquiries regarding these matters should now be directed to my trustee:

...

1. The Bankrupt provided his statement of affairs dated 1 September 2025. In section C of the statement of affairs titled "money you owe" the Bankrupt set out details of his unsecured creditors as follows:

1. On 26 September 2025 Ms Holland lodged the Proof of Debt claiming $1,723,289. The Proof of Debt described the debt owing by the Bankrupt as "[f]unds owed under personal guarantees granted under unsecured loans". Based on the supporting documentation provided by Ms Holland with the Proof of Debt and the Trustee's review of that material, the debt comprised:

(1) three personal guarantees provided by the Bankrupt of debts totalling approximately $1,423,131 owed by related entities of the Bankrupt in respect of funds said to be advanced to those entities in 2021 to 2023 pursuant to the following:

(a) loan deed dated 9 June 2023 between Exelsuper Pty Ltd (ACN 124 648 193) (now known as Lafayette and referred to in the balance of these reasons as Lafayette) as borrower, Ms Holland as lender and the Bankrupt as guarantor;

(b) unsecured loan deed dated 9 June 2023 between Self Directed Super Funds Pty Ltd (ACN 606 004 077) (SDSF) in its capacity as trustee for the Harris Family Trust as borrower, Ms Holland as lender and the Bankrupt as guarantor; and

(c) unsecured loan deed dated 9 June 2023 between Exelsuper Advice Pty Ltd (ACN 080 419 745) as borrower, Ms Holland as lender and the Bankrupt as guarantor;

(2) a personal loan from Ms Holland to the Bankrupt of $63,549 being funds advanced in 2021 and 2022 pursuant to a loan deed dated 9 June 2023; and

(3) an amount of $236,609. No description or supporting documentation was provided for this amount.

1. Ms Holland describes her claims as set out in the Proof of Debt in similar terms giving the following evidence in her affidavit sworn on 10 October 2025:
   1. My status as creditor arises from loans made by me to the [Bankrupt], and from loans made by me to related entities of the [Bankrupt] (the repayment of which is guaranteed by the [Bankrupt]), details of which are set out in the [Bankrupt's statement of affairs] filed with AFSA ...

...

1. The [Bankrupt] is indebted to me being for monies advanced to the [Bankrupt] by way of loan between approximately September 2023 and April 2025. These loans remain unpaid.
2. I am owed further amounts as a result of the [Bankrupt] having guaranteed to me payment of amounts loaned by me to related entities of the [Bankrupt], being [Exelsuper Advice], [Lafayette] and [SDSF].
3. All of these liabilities are disclosed in the [statement of affairs].

1. The Trustee sought further information about the debt claimed in the Proof of Debt on several occasions. For example, by letter dated 23 October 2025 from the Trustee to Ms Holland care of her solicitors, DW Fox Tucker Lawyers (DWFT), the Trustee informed Ms Holland:

The evidence provided is insufficient to prove your debt. Please provide, by close of business on 28 October 2025, the following:

• Source documents, including but not limited to bank statements, showing the funds advanced or any consideration of equivalent value advanced.
• Source documents, including but not limited to bank statements, showing the funds advanced or any consideration of equivalent value advanced.
• Any other evidence you wish to rely upon in support of your [Proof of Debt].

I intend to adjudicate your [Proof of Debt] prior to 30 October 2025. If you do not provide evidence in support of your [Proof of Debt] before close of business on 28 October 2025, I will issue my adjudication.

1. On 28 October 2025 the Trustee rejected the Proof of Debt in whole. The Notice of Rejection of Proof of Debt provided to Ms Holland on the following day was detailed. In relation to the guarantee by the Bankrupt of the loan to Lafayette the Notice of Rejection included:

• You have claimed $942,767, being a personal guarantee by the Bankrupt in respect to a loan between [Lafayette], and yourself.

You have provided an Unsecured Loan Deed dated 9 June 2023 (the Exelsuper Deed). The Exelsuper Deed contains a schedule, Schedule 2, of 13 transactions between 29 October 2021 and 20 February 2023. The records provided contain no documentation of prior agreements which document the terms of any advance of funds at the date of the advance.

The Exelsuper Deed was executed after the funds listed in Schedule 2 were advanced. No consideration was provided for the subsequent extension of a personal guarantee. The guarantee is not enforceable.

The Exelsuper Deed was prepared from a template document produced by Legal Vision (the Legal Vision Template). I obtained from Legal Vision a copy of the version of the Legal Vision Template that was in circulation by Legal Vision on 9 June 2023 from Legal Vision.

The Exelsuper Deed, at clause 1.1, defines "Guarantor Certificate". Clause 3.1 requires the execution of the Guarantor Certificate prior to the Drawdown Date. The Drawdown Date is also defined at clause 1.1, which references dates in "appendix A", and appendix A does not exist. The definition of Drawdown Date has been amended from the standard definition contained in the Legal Vision Template. The Guarantor Certificate is Schedule 3 in the Legal Vision Template, and that schedule has been removed from the Exelsuper Deed. There is no Guarantor Certificate attached to the Exelsuper Deed.

The contractual conditions for the granting of the guarantee in the Exelsuper Deed are not met, and the guarantee is not enforceable.

Despite my finding that the guarantee is not enforceable, I have also reviewed the financial statements for [Lafayette]. The transactions listed in Schedule 2 of the Exelsuper Deed do not reconcile to the loan between [Lafayette] and yourself. After 30 June 2023, [Lafayette] reports material reductions in the loan balance which are not accounted for in your Proof of Debt.

Despite my finding that the guarantee is not enforceable, I have also reviewed the banking records of [Lafayette]. The transactions listed in Schedule 2 of the Exelsuper Deed do not appear in the bank accounts of [Lafayette].

1. As to the loan of $63,549 alleged to have been made by Ms Holland to the Bankrupt, the Notice of Rejection included:

• You have claimed $63,549 pursuant to an Unsecured Loan Deed dated 9 June 2023 (the GH Deed). The GH Deed contains a schedule, being Schedule 2, of 12 transactions between 30 June 2021 and 17 January 2022. The records provided contain no documentation of prior agreements which document the terms of the advance at the date of the advance.

The GH Deed was prepared from the Legal Vision Template.

No banking records have been provided which show that that any of the funds in Schedule 2 were advanced by you.

The records provided contain no evidence of terms agreed or in place at the date the funds are alleged to have been advanced in Schedule 2 of the GH Deed. No consideration was provided for the extension of the terms in the GH Deed. Therefore, the terms of the GH Deed are not enforceable.

Although I have determined that no funds were advanced to Mr Harris by you, I have also considered the terms that should apply to any such advance of funds if it were made. The terms enforceable in relation to the funds advanced (if any) should be determined by reference to the intent of the parties at the date of each advance, not by reference to the GH Deed. You are married to the bankrupt, the evidence provided to me indicates strongly that you share a matrimonial asset pool, and common financial pool including but not limited to the allocation of assets and incomes through discretionary family trusts. There is no evidence of any intent to create legal relations at the time of the transactions in Schedule 2. The transactions, if they had occurred, are most properly classified as a sharing of matrimonial assets, and not the creation of legal relations resulting in an obligation to repay.

(Emphasis omitted.)

1. On 3 November 2025 Ms Holland made a statutory declaration (First Statutory Declaration) in which she declared, among other things, that she was a creditor of the Bankrupt "pursuant to certain loans from [her] to the [Bankrupt] for payment of legal fees to DWFT". The First Statutory Declaration included:

8.1. the dispute with Bridging Capital and [Mr Moses] and subsequent appeal; and

8.2. bankruptcy proceedings against [the Bankrupt].

1. DWFT sent invoices to [the Bankrupt] for $137,231.60 (inc of GST) for fees and disbursements relating to professional services referred to in paragraph 8 above on the following dates and in the following amounts:

...

1. I paid each of these accounts before [the Bankrupt] was made a bankrupt. I paid the following invoices to DWFT on the following dates:

1. Ms Holland requested in her First Statutory Declaration that the Trustee reassess the Proof of Debt "for the accounts of [the Bankrupt] which [she had] paid to DWFT".
2. Ms Holland annexed documents to her First Statutory Declaration in support of her revised claim for amounts owing to her by the Bankrupt. Those documents included a transaction listing for a cash management account held by Ms Holland with Macquarie Bank with account number 973675473 (Macquarie CMA) for the period 4 March 2025 to 22 October 2025. Ms Holland declared in the First Statutory Declaration that the payments to DWFT for their outstanding invoices were made from the Macquarie CMA. In summary the transaction listing annexed to the First Statutory Declaration, together with the Trustee's evidence about the content of that transaction listing and his further investigations as a result of which he obtained a more fulsome bank statement for the Macquarie CMA for the period 2 March 2025 to 30 June 2025, show:

(1) on 4 March 2025:

(a) deposits of $2 million, $262,700 and $570,000 were made;

(b) withdrawals of $2 million and $832,000 were made; and

(c) the balance of the Macquarie CMA as at 4 March 2025 was $700;

(2) the deposits into the Macquarie CMA on 4 March 2025 were made from an account styled "CMH 967894353" which is an account in the name of Lafayette; and

(3) the closing balance of the Macquarie CMA as at 30 June 2025 was $136.17.

1. On 4 November 2025 the Trustee sent an email to DWFT referring to the First Statutory Declaration which included:

The transactions described in that statutory declaration were not included or referred to in Ms Holland's Proof of Debt dated 26 September 2025, which was determined and rejected on 28 October 2025.

Please confirm whether your client contends that these alleged advances:

1. are intended to amend the previously rejected [Proof of Debt];

2. are intended to supplement the previously rejected [Proof of Debt]; or

1. constitute a new and separate debt for which a fresh [Proof of Debt] is to be lodged.

1. By letter dated 5 November 2025 DWFT responded on behalf of their client including that:

Ms Holland's statutory declaration does not in fact make reference to further transactions as suggested in your email. The transactions between 1 July 2025 and 7 August 2025 are amounts that form part of the original [Proof of Debt] lodged by Ms Holland.

Mr Harris emailed you a OneDrive file of documents on 28 October 2025. We refer you to the excel spreadsheet entitled 'Summary of [Proof of Debt] and Documents' in that file, in particular to the light blue tab 'Loans from GH to CH' where the invoices set out in the statutory declaration are listed. Additionally, payments of those invoices are recorded in Ms Holland's personal bank account with Macquarie Bank, a statement for which is also included in the OneDrive file in the folder 'Mqg Statements G Holand'[sic].

On the basis of the above, we confirm that our client contends that these payments are intended to supplement the previously rejected proof of debt.

1. DWFT's letter enclosed a supplementary statutory declaration (Second Statutory Declaration) made by Ms Holland on 5 November 2025 which was described as addressing "some minor arithmetic errors in" the First Statutory Declaration. In the Second Statutory Declaration Ms Holland declared that the amounts included in the First Statutory Declaration included arithmetic errors and that, although the list of invoices is correct, the total figure in the tables, both of the invoices and the amounts in fact paid, should be $185,652.50. The Second Statutory Declaration included the following table showing the DWFT invoices and when Ms Holland said she made payment of them:

1. By letter dated 5 November 2025 the Trustee informed Ms Holland that, after considering the further information provided by Ms Holland and the debt claimed by her in the First Statutory Declaration as amended by the Second Statutory Declaration (which I will refer to as the DWFT Payments), he would not change his decision and that the Notice of Rejection stands. The Trustee's letter included by way of explanation:
   1. Ms Holland's [Proof of Debt] is dated 26 September 2025. All transactions now asserted as debts payable to her by the Bankrupt in her statutory declaration of 3 November 2025 occurred prior to the lodgement of her [Proof of Debt].
   2. In Ms Holland's [Proof of Debt] dated 26 September 2025, she describes the debt owing to her as "[f]unds owed under personal guarantees granted under unsecured loans". In support of this claim she provided copies of loan agreements. Her description of the debt does not include, and is not capable of inference of, any debt other than the debt allegedly supported by the loan agreements.
   3. In support of Ms Holland's [Proof of Debt] was a letter from [the Bankrupt] dated 26 August 2025 notifying her of his bankruptcy and acknowledging his debts to her. That letter does not describe the debt now asserted by Ms Holland in her statutory declaration of 3 November 2025, and it cannot be inferred from that letter that he believed those obligations existed.

...

1. There is no description of the debt now purported as owing to Ms Holland, in her [First Statutory Declaration], by the Bankrupt included in the [statement of affairs], and there is no scope for inference that such a debt may have existed at the time.

2. I asked Ms Holland to provide any other evidence that she relies on for her [Proof of Debt] by 28 October 2025. She provided no evidence of the debt now asserted, and letters from her lawyers made no mention of any other debt that she would assert.

...

1. Ms Holland, in her [First Statutory Declaration], at paragraphs 12 to 15 describes circumstances that are consistent with an intention to create legal relations.

2. The statements at 12 to 15 were made after Ms Holland considered my grounds for rejecting her [Proof of Debt].

3. Had the statements at 12 to 15 truly been the case, in all probability it would have been included by the Bankrupt in his [statement of affairs], which was dated 1 September 2025. The discussion at paragraphs 12 to 15 is said to have occurred between 1 July 2025 and 7 August 2025 and lead to the payments totalling $209,134. It is very unlikely that the Bankrupt would have neglected to include this debt is his [statement of affairs] given how recently it was incurred and given the material quantum.

4. Had the statements at 12 to 15 truly been the case, in all probability it would have been included by Ms Holland in her [Proof of Debt]. The [Proof of Debt] is dated 6 September 2025, and the discussion at paragraphs 12 to 15 is said to have occurred between 1 July 2025 and 7 August 2025 and lead to the payments totalling $209,134. It is very unlikely that Ms Holland would have neglected to disclose this debt in her [Proof of Debt], given how recently it was allegedly incurred, and the quantum.

5. It is significantly more unlikely that Ms Holland and the Bankrupt would both have neglected to disclose this debt in both his [statement of affairs] or her [Proof of Debt].

...

1. ... It is therefore not evident that invoices disclosed in the [First Statutory Declaration] were paid from Ms Holland's own funds, rather it can reasonably be inferred that those funds in fact originated from the sale proceeds belonging to [Lafayette].

1. In her affidavit sworn on 5 December 2025 Ms Holland gives evidence about, among other things, the DWFT Payments in support of her contention that they were made on the Bankrupt's behalf and constitute a loan by her to the Bankrupt. In particular she relies on the following as evidence of the loan:
   1. [The Bankrupt] gave me a copy of the invoices for the work described in paragraphs 8.1 and 8.2 above in batches. I do not remember the precise date he did that but it was between 1 July 2025 and 7 August 2025. He asked me to pay them. I agreed to pay them.

...

1. [The Bankrupt] and I did not fix a date for repayment of my payments to DWFT. I now understand that [the Bankrupt's] debt to me was payable immediately upon my payment of the DWFT invoice.

1. In her affidavit sworn on 12 February 2026 Ms Holland gives evidence that, contrary to the Trustee's assertion, the DWFT Payments, which she now seeks to have admitted as a provable debt, always formed part of the Proof of Debt and were "characterised as a loan" in the statement of affairs. She gives the following evidence:
   1. The claim for legal fees always formed part of my Proof of Debt and furthermore was characterised as a loan in the Bankrupt's [statement of affairs]. I refer to paragraphs 6- 11 of my sixth affidavit, which in summary explains that:

27.1. in the [Proof of Debt] which was lodged on 26 September 2025, I claimed an amount of $236,609, being monies I had paid in respect of legal fees incurred by the [Bankrupt] (which figure was subsequently reduced when I realised that some of them were not relevant to my proof of debt and that in relation to certain invoices I was only able to claim some of, not all, of the invoice) [see paragraph 11 of my sixth affidavit];

27.2. the amount for payment of DWFT legal fees was claimed in the [Proof of Debt] and was characterised by me, at page 8 of that document, as a loan [see page 15 of GAH-31]; [and]

27.3. in the [statement of affairs] dated 5 September 2025, the amount was also characterised as a loan by the Bankrupt [see page 14 of GAH-31].

1. That evidence is not supported by, and is inconsistent with, other evidence before me:

(1) the statement of affairs does not include the DWFT Payments in the "moneys you owe" section. Rather it refers to the Bankrupt's indebtedness to Ms Holland arising from:

(a) "[o]ther" in the sum of $236,609;

(b) personal guarantees provided for company debts owing to Ms Holland in the sums of $942,767, $30,821 and $449,543; and

(c) "[m]oney owed to family/friends" in the sum of $63,549;

(2) Ms Holland says that the item "[o]ther" in the statement of affairs represented the amount that the Bankrupt said was owed to her for "the DWFT and other invoices" she had paid on his behalf but after reviewing some of the invoices comprising the $236,609 sum, Ms Holland found that some of the invoices were not relevant to the Proof of Debt and she was "only able to claim one third of the amounts (sic), which is set out in the Second Statutory Declaration";

(3) however:

(a) the 26 August Letter does not refer to any amount owing to Ms Holland as a result of the DWFT Payments. It only refers to debts arising from the provision of personal guarantees of loans made by Ms Holland to corporate and other entities. This is so despite the DWFT Payments having been made in the months leading up to the making of the sequestration order;

(b) the alleged debt owing to Ms Holland of $236,609 included in the statement of affairs and described as "[o]ther" is said to have been incurred in April 2025. The DWFT Payments were made in July and August 2025; and

(c) a proof of debt lodged by Ms Holland in the liquidation of SDSF dated 23 May 2025 (SDSF Proof) claims an amount owing of $236,173 with the description that Ms Holland "provided funds to SDSF ATF Harris FT to purchase the shares from Bridging Capital Holdings Pty Ltd on or about 17 January 2022 as a result of order from the court re purchasing back shares". While I would not conclude that the debt included in the SDSF Proof is the same as the debt of $236,609 listed in the statement of affairs, I accept that the SDSF Proof provides a credible alternative explanation for the basis of the latter debt listed in the statement of affairs;

(4) the loan of $63,549 included in the statement of affairs is the subject of a loan deed described at [21(2)] above. There is no documentation which evidences that the DWFT Payments were a loan from Ms Holland to the Bankrupt;

(5) the Proof of Debt included only one description of the sum then claimed, namely "[f]unds owed under personal guarantees granted under unsecured loans". This is so despite the fact that it was prepared and lodged after the DWFT Payments had been made; and

(6) in evidence relied upon by Ms Holland in this proceeding, she described the Bankrupt's indebtedness to her as "monies advanced ... by way of unsecured loan between approximately September 2023 and April 2025". She does not refer to loans apparently made in July and August 2025 which is when the DWFT Payments were made.

1. In relation to the source of the funds used to make the DWFT payments, Ms Holland deposes that the funds in the Macquarie CMA used to make the DWFT Payments "were deposited into that account by [Lafayette] on 4 March 2025" and that as at that date Lafayette owed her $832,700 due to prior loans she had made to that entity. She relies on and makes reference to a tab titled "GH loans to ESPL" in an excel spreadsheet titled "Loan Account Analysis.xlxs". Two issues arise from that evidence.
2. First, Ms Holland's inclusion of the indebtedness arising from the personal guarantee given by the Bankrupt in relation to moneys loaned by Ms Holland to Lafayette in the Proof of Debt is unsustainable. On her own evidence and as shown in the Macquarie CMA transaction listing, the loan to Lafayette had been discharged by 4 March 2025, well before the Proof of Debt was lodged.
3. Secondly, given that on the same day as Lafayette paid the sum of the sum of $832,700 into the Macquarie CMA, $832,000 was withdrawn from that account, Lafayette's payment in discharge of its indebtedness to Ms Holland could not have been the source of the funds for the DWFT Payments. Rather the evidence shows that funds were transferred into the Macquarie CMA just prior to payments being made to DWFT as part of the DWFT Payments on 1 July 2025, 3 July 2025, 6 August 2025 and 7 August 2025.

1. It is for Ms Holland to establish that she has a debt that should be admitted to proof. That is, Ms Holland must establish that the amount now claimed, being $185,652.50, is a debt owing by the Bankrupt to her that should be admitted to proof.
2. Counsel for Ms Holland submits that, as the Trustee has "elected" not to cross-examine Ms Holland and in circumstances where she has not been cross-examined, I ought to accept her evidence at face value. She relies on Pitney v Nilsen [2018] FCCA 751, which concerned an application to amend an application concerning parenting matters made under s 44(6) of the Family Law Act 1975 (Cth), where Judge Altobelli said at [5]:

The matter proceeded on the papers without cross-examination. This means that the Applicant's evidence is taken at face value unless it is inherently unbelievable or contradictory. Whilst it was certainly the Court's expressed preference to deal with the matter without cross-examination, no application was made in that respect by either party. Also, whilst the Applicant's evidence is taken at face value, it does not mean that the Court can necessarily draw inferences where the evidence is silent about salient matters, nor can gaps in the evidence be filled by submissions.

1. However, in a case such as the present, where Ms Holland seeks a review of the Trustee's decision to reject her revised Proof of Debt, the Court can take into account inconsistencies in the material provided to the Trustee and the evidence before the Court: see Re DK Rogers; Ex parte v CMV Parts Distributors Pty Ltd (1989) 20 FCR 561 at 562-3. That is, the Court does not have to take Ms Holland's evidence at face value in circumstances where Ms Holland has not been cross-examined. In any event the very authority on which Ms Holland relies recognises that, even absent cross-examination, evidence given by a deponent of an affidavit will not be accepted where it is inherently unbelievable or contradictory.
2. Further, the Trustee's role is limited in case such as the present (see [15] above). He is not a contradictor in the true sense.
3. The question of whether Ms Holland has a debt owing to her in the sum of $185,652.50 for which she can prove can, in turn, be resolved by considering the following three matters:

(1) whether Ms Holland has established that there was an agreement between her and the Bankrupt for her to make the DWFT Payments on the Bankrupt's behalf and, if so, when did that agreement arise;

(2) whether Ms Holland has established the source of the funds from which the DWFT Payments were made; and

(3) the effect of the inconsistencies between the Proof of Debt and Ms Holland's current claim.

1. I will address each in turn having regard to the evidence set out above and my factual findings and the parties' submissions.
2. First, and perhaps most critically for Ms Holland, I am not satisfied that the evidence she relies on establishes her intention to create the relevant legal relationship with the Bankrupt in relation to the DWFT Payments. That is, Ms Holland has not satisfied me that that there was an agreement between her and the Bankrupt that the DWFT Payments constituted a loan by her to the Bankrupt. That is for the following reasons.
3. Ms Holland relies on her evidence at [33] above to establish the agreement between her and the Bankrupt in relation to the DWFT Payments. However, that evidence does not establish that there was an intention to enter into a loan agreement in relation to those payments. It does no more than establish that the Bankrupt provided the invoices to Ms Holland for payment. Those invoices were paid by Ms Holland from the Macquarie CMA but there is no evidence of the terms on which they were paid, whether as a loan to the Bankrupt or otherwise and, if the former, the terms of the loan.
4. In the First Statutory Declaration Ms Holland also declared that she and the Bankrupt "agreed at the same time [the Bankrupt] asked her to pay the [DWFT invoices] that he was liable to [her] for repayment of the amount of those invoices". An objection to evidence to the same effect included in Ms Holland's affidavit sworn on 5 December 2025 was upheld. For the same reasons as I upheld that objection, I would give no weight to this statement in the First Statutory Declaration. It is an opinion about the effect of an alleged arrangement which Ms Holland is not qualified to give and is conclusory. In any event it is not borne out by the other available evidence.
5. Neither the statement of affairs, the 26 August Letter or the Proof of Debt refer to the DWFT Payments as a loan from Ms Holland to the Bankrupt. This is so despite the proximity of the preparation of those documents to the date of payment. Contrary to Ms Holland's assertion, I do not accept that the DWFT Payments were included in the statement of affairs or the Proof of Debt. My reasons for reaching that conclusion are set out at [35] above.
6. Further, in contrast to the loan made by Ms Holland to the Bankrupt in the sum of $63,549 in June 2023 or the loans made by Ms Holland to Lafayette, SDSF and Exelsuper Advice, there is no loan agreement or other document evidencing the alleged loan based on the DWFT Payments.
7. Secondly, Ms Holland has not established the source of the funds used to make the DWFT Payments. As set out at [36]-[38] above, the transaction listing for the Macquarie CMA shows that on each occasion before Ms Holland made a payment in satisfaction of one or more of the DWFT Payments she transferred sufficient funds to do so into that account. The source of those funds is not explained in the evidence given by Ms Holland. For the reasons set out above, I do not conclude on the evidence before me that the funds Ms Holland used to make the DWFT Payments were derived from the funds obtained in the repayment of the relevant loan by Lafayette to her.
8. Thirdly, there are a number of inconsistencies or matters that raise concerns in Ms Holland's evidence which undermine her claim that she loaned the DWFT Payments to the Bankrupt. As set out above, they concern:

(1) Ms Holland's claim in her affidavit sworn on 17 November 2025 that the DWFT Payments are included in the Proof of Debt (see [34] above). There is no itemisation of amounts in the Proof of Debt. A single claim is made for "[f]unds owed under personal guarantees". Ms Holland's evidence that the Proof of Debt "expressly refers to the [DWFT Payments], describing them as '[t]ype of unsecured debt - Other'" is incorrect. That description is used in the statement of affairs in relation to the amount of $236,609 which the Bankrupt said was owing to Ms Holland;

(2) similarly, Ms Holland's claim in her affidavit sworn on 12 February 2026 that "the amount for payment of DWFT legal fees was claimed in the [Proof of Debt] and was characterised by [her], at page 8 of that document, as a loan" is a misstatement of the evidence. There is no page 8 of the Proof of Debt and the page she points to in her evidence, page 15 of GAH-31, is in the statement of affairs and does not characterise the amount owing to Ms Holland therein as a loan;

(3) there is no evidence to support Ms Holland's assertion that the sum of $236,609 listed as "[o]ther" in the statement of affairs includes the amount said to be owing as a result of the DWFT Payments. As I have already observed, the statement of affairs records that the amount of $236,609 owed to Ms Holland arose in April 2025, some three to four months before the DWFT Payments were made; and

(4) the statement of affairs and the Proof of Debt each included the Bankrupt's indebtedness arising from his guarantee of the loan made by Ms Holland to Lafayette. However, in later evidence Ms Holland says that she used the funds from Lafayette to repay the loan to the DWFT Payments. The Macquarie CMA statement shows funds being paid into that account by Lafayette in discharge of the loan on 4 March 2025. Accordingly, contrary to the information given by the Bankrupt in the statement of affairs and by Ms Holland in the Proof of Debt, the evidence shows that the Bankrupt had no outstanding indebtedness arising out of his guarantee of the loan to Lafayette on and from 4 March 2025, and certainly not as at the date of lodgement of the statement of affairs or the Proof of Debt.

1. I am not satisfied that Ms Holland has established that the DWFT Payments give rise to a provable debt in the Bankrupt's bankruptcy in the sum of $185,652.50 or for any other amount. Accordingly, I would refuse to grant the relief sought and to admit the Proof of Debt in the amount now sought by Ms Holland.
2. It follows that the amended interim application should be dismissed. Although the Bankrupt is named in that application as a party, it was the amount claimed to be owed to Ms Holland that was in issue and it was Ms Holland who prosecuted the amended interim application. Accordingly, I will make an order that Ms Holland pay the Trustee's costs of the amended interim application.

I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Markovic.