Bankruptcy Regulations 1996
Statutory Rules 1996 No. 263
as amended
made under the
This compilation was prepared on 14 June 2007
taking into account amendments up to SLI 2007 No. 138
Prepared by the Office of
Legislative Drafting and Publishing,
Attorney‑General’s Department, Canberra
Contents
Part 1 Preliminary
1.01 Name of Regulations [see Note
1] 13
1.02 Commencement 13
1.03 Interpretation 13
1.04 Application of Criminal Code 16
Part 2 Administration
2.01 Section 20J of the Act —
prescribed rate of interest on moneys in Common Fund 17
Part 3 Courts
3.01 Paragraph 29 (5) (b) of the
Act — prescribed countries 18
Part 4 Proceedings in connexion with bankruptcy
Division 1 Bankruptcy notices
4.01 Application for bankruptcy notice 19
4.02 Form of bankruptcy notices 20
4.02A Service of bankruptcy notices 20
4.03 Inspection of bankruptcy notices 20
4.04 Judgment or order in foreign
currency 21
Division 2 Petitions
4.05 Copy of petition, etc to be given to
Official Receiver 22
4.06 Control of debtor’s property before
sequestration 22
4.07 Expenses of trustee before
sequestration 22
4.08 Application for damages where
petition dismissed 23
4.09 Subsection 50 (5) of the Act —
prescribed modifications of applied provisions 24
4.10 Acceptance of debtor’s declaration 25
4.11 Prescribed information to be
supplied by Official Receiver to debtor 25
4.12 Debtor’s petition — filing of
trustee’s consent 26
4.13 Notice to partners of referral to
Court of petition by other partners against the partnership 26
Division 3 Miscellaneous
4.14 Notification by trustee to creditors 27
4.15 Exercise of proxy by trustee’s
representative at meeting 27
4.16 Lodgment of proxies by fax — section
64M of the Act 27
4.17 Inspection and copying of
composition or scheme of arrangement 28
4.18 Proposal and report for a
composition or arrangement 28
4.19 Meetings of creditors —
modification of Division 5 of Part IV of the Act 28
Part 5 Control over person and property of debtors
and bankrupts
5.01 Where debtor or bankrupt is arrested 29
Part 6 Administration of property
Division 1 Order of payment of debts
6.01 Priority payments under section 109
of the Act — prescribed matters 30
6.02 Maximum amount payable to employee 30
Division 2 Property available for payment of
debts
6.03 Household property 31
6.03A Personal property 33
6.03B Property divisible among
creditors — prescribed amounts 33
Division 2A Rural support schemes
6.04A Prescribed rural support schemes
(Act s 116) 34
6.04B Prescribed rural support schemes
(Act s 116) 35
Division 3 Apportionment of property
6.05 Interpretation 35
6.06 Method of apportionment —
subsection 116 (6) of the Act 37
6.07 Method of working out value of
property — subsection 116 (7) of the Act 40
6.08 Evidentiary certificate by
trustee — subsection 116 (8) of the Act 40
Division 4 Undervalued transactions
6.09 Transfers exempt from being void
against trustee 41
Division 5 Realisation of property
6.10 Disclaimer of onerous property 41
Division 6 Definition of income
(Act s 139L)
6.11 Interpretation 42
6.12 Fringe benefits: modification of the
FBTA Act 42
6.12A Restart scheme payments 43
6.12B Superannuation contributions 43
6.12C Family assistance and social
security payments 45
6.12D Primary Industry rural support scheme 45
Division 7 Contributions by bankrupt
6.13 Interpretation 45
6.14 Contributions by bankrupt —
modes of payment 46
6.15 Contributions where bankrupt dies 46
6.15A Contribution assessment —
income of dependant 47
6.17 Certificate of outstanding
contribution 47
6.18 Discharged bankrupt to give
information if contribution unpaid 47
Division 8 Notice under section 139ZL of the
Act
6.19 Notice under section 139ZL of the
Act not to refer to protected money 48
6.20 Notice under section 139ZL of the
Act (notice of ceasing or commencing employment) 48
Division 9 Distribution of property
6.21 Minimum amount of dividend 49
6.22 Manner of declaring final dividend 49
Part 7 Discharge and annulment
7.01 Trustee to inform the Official
Receiver of return of bankrupt to Australia 50
7.01A Grounds of objection — failure
to provide complete and accurate information 50
7.02 Trustee to inform the Official
Receiver of cancellation of objection 51
Part 8 Trustees
Division 1 Application for registration, or
extension of registration, as a trustee
8.01 Documents to accompany application
for registration 52
8.02 Qualifications, experience,
knowledge and abilities of applicants 53
8.03 Subsection 155C (2) of the
Act — prescribed particulars of applicant for registration as a trustee 54
8.04 Extension of registration —
proof of insurance 55
Division 1A Change in trustee’s particulars
8.04A Trustee to notify change in
particulars 55
Division 2 Registration of trustees
Subdivision 1 Preliminary
8.05 Definitions 55
Subdivision 2 Constitution and procedure of committees
generally
8.05A Chairperson of a committee 56
8.05B Trustee chosen by the Insolvency
Practitioners Association of Australia 56
8.05C Resignation of chairperson 56
8.05D Resignation of members 56
8.05E Disclosure of interests 56
8.05F Removal of members from a committee 57
8.05G Convening of a replacement committee 57
8.05H General procedures of a committee 58
8.05I Procedure at committee meetings 58
8.05J Resolutions without meeting 58
Subdivision 3 Inquiries and interviews
8.05K Inquiries by the committee 59
8.05L Notice of interview 60
8.05M Applicant interviews 60
8.05N Report of committee decision 61
Subdivision 4 Other matters
8.05O Confidentiality 61
8.05P Evidence of proceedings at committee
meetings 61
Division 3 Consent to act, and appointment, as
trustee of estate
8.06 Consent to act as trustee —
subsection 156A (1) of the Act 62
8.06A Certificate of appointment under
subsection 156A (3) of the Act 62
Division 4 Trustee’s remuneration
8.07 Fixed remuneration — prescribed
rates under subsections 162 (2) and (3) of the Act 62
8.08 Other remuneration — prescribed
rate under subsection 162 (4) of the Act 63
8.09 Taxation of trustee’s remuneration
and costs — preliminary 63
8.10 Bill of costs 64
8.11 Taxation — hearing 65
8.11A Costs of taxation 65
8.12 Remuneration of trustees —
notices 66
Division 5 Registered trustee ceasing to be
trustee of an estate
8.13 Notice of removal of trustee of
estate 66
8.14 Notice of finalisation of
administration; entry on the Index 67
Division 6 Variation and termination of
registration
Subdivision 1 Preliminary
8.15 Definitions 68
8.16 Documents to accompany application
for change or removal of conditions 68
Subdivision 2 Constitution and procedure of committees
generally
8.17 Chairperson of a committee 68
8.18 Trustee chosen by the Insolvency
Practitioners Association of Australia 68
8.19 Resignation of chairperson 69
8.20 Resignation of members 69
8.21 Disclosure of interests 69
8.22 Removal of members from a committee 70
8.23 Convening of a replacement committee 70
8.24 General procedures of a committee 71
8.25 Procedure at committee meetings 71
8.26 Resolutions without meeting 71
Subdivision 3 Inquiries and interviews
8.27 Inquiries by the committee 72
8.28 Notice of interview (Act s 155E (6)) 72
8.29 Change of conditions on practising
as a registered trustee — interview 73
8.30 Involuntary termination of
registration — interview 74
8.31 Report of committee decision 74
Subdivision 4 Other committee‑related matters
8.32 Confidentiality 75
8.33 Evidence of proceedings at committee
meetings 75
8.34 Time for deciding matters (Act s
155I (1)) 75
Subdivision 4A Standards for trustees
8.34A Performance standards for trustees
(including controlling trustees) 75
Subdivision 5 Controlling trustees other than Official
Trustee or registered trustees
8.35 Eligibility of controlling trustees,
other than Official Trustee or registered trustees 76
8.36 Review by Tribunal of determination
under subregulation 8.35 (2) 77
8.37 Official Trustee to perform duties 77
Part 9 Debt agreements
9.01 Modifications of the Act —
meetings of affected creditors 78
9.02 Information to be included in debt
agreement proposal 78
9.03 Administrator’s fee to be paid
according to work done 78
9.04 Persons ineligible to be debt
agreement administrator 78
9.05 Official Trustee to administer
agreement 79
9.06 Duties of administrator 79
9.07 Review by Tribunal of decisions
under subregulation 9.06 (3) 81
9.08 Qualifications of applicants 81
Part 10 Personal insolvency agreements
10.01 Modifications of Part X of the
Act — joint debtors 82
10.02 Information to be given to debtor
(Act ss 188 (2AA) and (2AB)) 82
10.03 Documents under section 188 of Act 83
10.04 Documents for meeting called under
an authority under section 188 of the Act 83
10.05 Modifications of Division 5 of Part
IV of the Act — meetings called under authorities under section 188 of the
Act 84
10.06 Controlling trustee to give Official
Receiver copy of special resolution and certain particulars for the Index 85
10.07 Modifications of Part VIII of the
Act — controlling trustees and trustees of personal insolvency agreements 85
10.08 Modifications of Division 1 of Part
V of the Act — debtors whose property is subject to control under Division
2 of Part X of the Act 86
10.09 Meeting if trustee does not execute
personal insolvency agreement 86
10.10 Notification of personal insolvency
agreement 86
10.11 Sequestration order, or order
terminating or setting aside a personal insolvency agreement — notice to
Official Receiver (Act s 221, s 222 and s 222C) 87
10.12 Termination of personal insolvency
agreement by trustee (Act s 222A) 87
10.13 Modifications of Parts V and VI of
the Act — personal insolvency agreements 88
10.14 Certificate relating to realisation
of divisible property and non‑availability of dividend 88
Part 11 Administration of estates of deceased persons
in bankruptcy
11.01 Statement of affairs and of
administration of estate 89
11.02 Modifications of the Act —
administration of estates of deceased persons 90
Part 12 Unclaimed dividends or moneys
12.01 Statement where moneys are paid to the Commonwealth 91
Part 13 National Personal Insolvency Index
Division 1 Preliminary
13.01 Interpretation 92
13.02 Establishment and maintenance of the
National Personal Insolvency Index 92
Division 2 Information to be entered on the
Index
13.03 What information is to be entered on
the Index? 92
13.04 Application for certain information
not to be on the Index 95
13.05 Application to the AAT 96
Division 3 Miscellaneous
13.06 Inspection of the Index 96
13.07 Extract, etc of the Index to be
admissible in evidence 97
13.08 Immunity from defamation 97
13.09 Access to the Index 98
13.10 Information extracted from the Index
to be evidence 98
Part 14 Offences under the Act
14.01 Apprehension under a warrant —
notification to Registrar in certain cases 99
14.02 Registrar to act on notification;
direction to person executing warrant 99
Part 15A Provisions relating to the Bankruptcy Charges
Acts
15A.01 Interpretation 100
15A.02 Mode of payment 100
15A.03 Overpayments to be refunded or
offset 100
15A.04 Information to accompany payment of
interest charge 101
15A.05 Information to accompany payment of
realisations charge 101
15A.07 Lodgment of request for remission 101
Part 16 Miscellaneous
Division 1 Provisions concerning documents
(including inventories)
16.01 Service of documents 102
16.02 Documents for the Inspector‑General,
the Official Receiver or the Official Trustee 103
16.03 Inventory by trustee taking
possession of, or attaching, property 104
16.03A Document filed by Inspector‑General
or Official Receiver — fee not payable 104
Division 2 Matters relevant to fees
16.06 Payment of fees 104
16.07 Official Trustee’s entitlement to
interim remuneration 105
16.08 Reimbursement of Official Trustee
for expenses 105
16.09 Fees — notes and transcript of
evidence 106
16.11 Waiver or remission of fees by
Inspector‑General 106
16.12 Review by AAT of decision of
Inspector‑General 107
Schedule 1 Forms 108
Form 1 Bankruptcy
Notice 108
Schedule 2 Modifications under section 76A of the
Act — meetings of creditors under Division 6 of Part IV of the Act 114
64AA Immunity from civil actions and
proceedings 115
11A After subsection 64ZC (5) 120
Schedule 3 Paragraph 109 (1) (a) of the Act —
order of payment of first priority debts 121
Schedule 4 Modifications of the Fringe Benefits
Tax Assessment Act 1986 123
Schedule 4A Performance standards for trustees
(including controlling trustees) 134
Part 1 Preliminary 134
1.1 Purpose 134
1.2 Definitions 135
Part 2 General
standards 136
Division 2.1 Application 136
2.1 Application of Part 2 136
Division 2.2 General 136
2.2 Duty to act honestly and impartially 136
2.3 Conflict of interest 136
2.4 Use of information relating to an
administration 137
2.5 Compliance with standards by
trustee’s employees 137
2.6 Preliminary inquiries and actions 137
2.7 Investigation of matters affecting
administration 138
Division 2.3 Assets 139
2.8 Realising assets 139
2.9 Ownership or interests in assets 139
2.10 Obtaining advice about interest or
value 139
2.11 Disposal of property 139
2.12 Records 139
Division 2.4 Remuneration
and costs 140
2.13 Costs incurred to be necessary and
reasonable 140
2.14 Receipt of moneys as trustee’s
remuneration 140
2.15 Rate for tasks undertaken by
trustee’s staff 140
2.16 Records 141
Division 2.5 Files
and access to information 141
2.17 File maintenance 141
2.18 Provision of information to
creditors 141
Division 2.6 Meetings
of creditors 141
2.19 Need for meeting 141
2.20 Matters to be considered when
holding a meeting 142
2.21 Attendance at meeting 142
2.22 President’s duties at creditors’
meeting 142
2.23 Attendance of Inspector–General at
meetings 143
Division 2.7 Trustee’s
accounts 143
2.24 Records of accounts 143
2.25 Verifying payments and transfers 143
2.26 Cash book 143
Part 3 Standards
for trustees other than controlling trustees 144
Division 3.1 Application 144
3.1 Application of Part 3 144
Division 3.2 Reporting
to creditors 144
3.2 Notification of administration 144
Division 3.3 Creditors’
claims 145
3.3 Provable debts in a joint
administration 145
3.4 Evidence relating to proof of debt 145
3.5 Evidence of liability for debt 145
Division 3.4 Distribution
of dividends 146
3.6 Creditors’ views to be considered 146
3.7 Distribution of estate funds 146
3.8 Advice relating to dividends and
administration 146
3.9 Records 146
Part 4 Standards
for trustees of bankrupt estates 147
Division 4.1 Application 147
4.1 Application of Part 4 147
Division 4.2 Assets 147
4.2 Identifying assets for vesting 147
4.3 Protecting certain assets 148
Division 4.3 Contributions 148
4.4 Application of Division 4.3 148
4.5 Income and contribution assessment 148
4.6 Monitoring payment of contributions 148
Part 5 Standards
for controlling trustees 149
5.1 Application of Part 5 149
5.2 Notification of administration 149
5.3 Investigating debtor’s property and
income 149
5.4 Report to creditors 150
5.5 Records 150
5.6 Voting at creditors’ meeting 150
Schedule 5 Modifications under section 185A of the
Act — meetings to consider proposals relating to debt agreements 151
Schedule 6 Modifications in relation to Part X of
the Act 157
Part 1 Modifications
of Part X of the Act — joint debtors 157
Part 2 Modifications
of Division 5 of Part IV of the Act — meetings called under authorities
under section 188 of the Act 161
Part 3 Modifications
of Part VIII of the Act — controlling trustees and trustees of personal
insolvency agreements 166
Part 4 Modifications
of Division 1 of Part V of the Act — debtors whose property is subject to
control under Division 2 of Part X of the Act 169
Part 5 Modification
under subsection 231 (1) of the Act — personal insolvency agreements 170
Part 6 Modifications
under subsection 231 (3) of the Act — personal insolvency agreements 170
Part 7 Modification
under subsection 231 (5) of the Act — trustees of personal insolvency
agreements 176
Schedule 7 Modifications under Part XI of the
Act — administration of estates of deceased persons 177
Schedule 8 Information on the National Personal
Insolvency Index 202
Notes 219
Part 1 Preliminary
1.01 Name of Regulations [see Note 1]
These Regulations are the Bankruptcy Regulations
1996.
1.02 Commencement
These Regulations commence on 16 December 1996.
Note This date is the date of
commencement of Schedules 1 and 2 to the Bankruptcy Legislation Amendment
Act 1996.
1.03 Interpretation
(1) In these Regulations, unless the contrary intention
appears:
1985 Rural Adjustment Grant Scheme means a
scheme established and operated by a State or the Northern Territory in
accordance with:
(a) the agreement between the Commonwealth, the
States and the Northern Territory the execution of which, on behalf of the
Commonwealth, was approved by the States and Northern Territory Grants
(Rural Adjustment) Act 1985; or
(b) that agreement as subsequently amended.
1988 Rural Adjustment Grant Scheme means a
scheme established and operated by a State or the Northern Territory in
accordance with:
(a) an agreement between the Commonwealth and
that State or Territory whose execution, on behalf of the Commonwealth, was
approved by the States Grants (Rural Adjustment) Act 1988; or
(b) that agreement as subsequently amended.
2006 Fees Determination means the Bankruptcy
(Fees and Remuneration) Determination 2006 made under subsection 316 (1)
of the Act.
Act means the Bankruptcy Act 1966.
commencement date
means 16 December 1996.
contribution assessment period has the
meaning given by section 139K of the Act.
CPI rate, in relation to a financial year,
means the annual average of the All Groups Consumer Price Index number, being
the weighted average of the 8 capital cities, published by the Australian
Statistician in respect of the quarters in the year.
Criminal Code means the Criminal Code set out
in the Schedule to the Criminal Code Act 1995, being that Code as
amended from time to time.
DEP scheme means the scheme mentioned in
section 52C of the Farm Household Support Act 1992.
farm help re‑establishment grant scheme
means the scheme mentioned in section 52A of the Farm Household Support
Act 1992.
FC (Bankruptcy) Rules means the Federal
Court (Bankruptcy) Rules 2005.
FMC (Bankruptcy) Rules means the Federal Magistrates
Court (Bankruptcy) Rules 2006.
registered liquidator has the meaning given
by the Corporations Law.
Rural Adjustment Grant Scheme means a scheme
established and operated by a State or the Northern Territory in accordance
with:
(a) the agreement between the Commonwealth and
the States the execution of which, on behalf of the Commonwealth, was approved
by the States Grants (Rural Adjustment) Act 1976; or
(b) that agreement as subsequently amended, including
that agreement as amended by:
(i) the agreement between the
Commonwealth, the States and the Northern Territory the execution of which, on
behalf of the Commonwealth, was approved by the States and Northern
Territory Grants (Rural Adjustment) Act 1979; or
(ii) that agreement as subsequently
amended.
Rural Adjustment Scheme has the meaning given
by section 4 of the Rural Adjustment Act 1992.
Rural Reconstruction Grant Scheme means a
scheme established and operated by a State in accordance with:
(a) the agreement between the Commonwealth and
the States the execution of which, on behalf of the Commonwealth, was approved
by the States Grants (Rural Reconstruction) Act 1971; or
(b) that agreement as subsequently amended.
rural support scheme has the meaning given by
subsection 5 (1) of the Act.
Sugar Industry Reform Program means the
scheme known as the Sugar Industry Reform Program 2004 made under the Sugar Industry Reform Program Guidelines as in force on
29 April 2004, administered by the Department of Agriculture, Fisheries and
Forestry.
Tobacco Grower Adjustment
Assistance Package means the scheme
known as the Tobacco Grower Adjustment Assistance Package 2006 made under the
Tobacco Grower Adjustment Assistance Package Guidelines as in force on 2 March
2007, administered by the Department of Agriculture, Fisheries and Forestry.
taxing officer has the same meaning as in
section 167 of the Act.
the court, in relation to a
judgment or order, means the court by which the judgment was given or the order
was made.
the Index means the National Personal
Insolvency Index established by subregulation 13.02 (1).
working day, in or in relation to a
particular place, means a day that is not:
(a) a public holiday or a bank holiday in that
place; or
(b) a Saturday or a Sunday.
(2) A reference in these Regulations to a form of a
specified number is a reference to the form of that number in Schedule 1.
1.04 Application
of Criminal Code
Chapter 2 of the Criminal Code applies to
offences against these Regulations.
Note Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
Part 2 Administration
2.01 Section
20J of the Act — prescribed rate of interest on moneys in Common Fund
For the purposes of section 20J of the Act, the
prescribed rate of interest is 7 percent per year.
Note This rate is prescribed under
subsections 20J (2) and (4) of the Act.
Part 3 Courts
3.01 Paragraph
29 (5) (b) of the Act — prescribed countries
For the purposes of subsection 29 (5) of the Act,
each of the countries specified in the following table is prescribed:
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Table
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Jersey
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Singapore
|
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Malaysia
|
Switzerland
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Papua New Guinea
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United States of America
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Part 4 Proceedings
in connexion with bankruptcy
Division 1 Bankruptcy notices
4.01 Application
for bankruptcy notice
(1) In order to apply for the issue of a bankruptcy
notice, a person must lodge with the Official Receiver:
(a) a duly completed draft bankruptcy notice;
and
(b) one of the following documents in respect of
the final judgment or final order specified by the person on the approved form:
(i) a sealed or certified copy of the
judgment or order;
(ii) a certificate of the judgment or
order sealed by the court or signed by an officer of the court;
(iii) a copy of the entry of the
judgment or order certified as a true copy of that entry and sealed by the
court or signed by an officer of the court;
(iv) in the case of an award referred to
in paragraph 40 (3) (a) of the Act:
(A) a copy of the award
certified as a true copy by the arbitrator who made the award or, failing the
arbitrator, by an officer of the Court after having compared the copy with the
original award; and
(B) a sealed or certified
copy of the order giving leave to enforce the award; and
(c) a copy of the draft bankruptcy notice for
the Official Receiver’s records and sufficient additional copies of the draft
bankruptcy notice for service and for annexure to any required affidavits of
service.
Note For bankruptcy notices, see r. 4.02
and Form 1.
(2) If documents are lodged with the Official Receiver
in accordance with subregulation (1), he or she must sign (by hand or by
facsimile reproduction) and date the copies of the bankruptcy notice lodged in
accordance with paragraph (1) (c), and return to the applicant the additional
copies referred to in that paragraph.
4.02 Form of bankruptcy notices
(1) For the purposes of subsection 41 (2) of the Act,
the form of bankruptcy notice set out in Form 1 is prescribed.
(2) A bankruptcy notice must follow Form 1 in respect of
its format (for example, bold or italic typeface, underlining and notes).
(3) Subregulation (2) is not to be taken as expressing
an intention contrary to section 25C of the Acts Interpretation Act 1901.
Note Under section 25C of the Acts
Interpretation Act 1901, where an Act prescribes a form, then, unless the
contrary intention appears, strict compliance with the form is not required and
substantial compliance is sufficient; see also paragraph 46 (1) (a) of that Act
for the application of that Act to legislative instruments other than Acts.
4.02A Service of bankruptcy notices
A bankruptcy notice must be served within:
(a) the period of 6 months commencing on the
date of issue of the bankruptcy notice; or
(b) any further period that the Official Receiver
allows (whether within or outside that period of 6 months).
Note If paragraph (b) applies to a
bankruptcy notice, a fee is payable under the 2006 Fees Determination.
4.03 Inspection of bankruptcy notices
(1) Subject to subregulation (2), the only persons who
may inspect a bankruptcy notice lodged with the Official Receiver are:
(a) a person specified in the notice; and
(b) a party to a proceeding to which the notice
relates; and
(c) a solicitor acting for a person mentioned in
paragraph (a) or (b).
(2) If a creditor’s petition is presented that is
founded on an act of bankruptcy consisting of failure to comply with a
bankruptcy notice, that notice (as lodged with the Official Receiver) is open
to public inspection.
4.04 Judgment or order in foreign currency
(1) This regulation applies to a bankruptcy notice if
the judgment or order lodged under subregulation 4.01 (1) in relation to the
notice is expressed in an amount of foreign currency (whether or not the
judgment or order is also expressed in an amount of Australian currency).
(2) A bankruptcy notice to which this regulation applies
must:
(a) contain a statement to the effect that
payment of the amount of foreign currency expressed in the judgment or order
may be paid in that foreign currency or by means of a specified amount of
Australian currency that is stated to be equivalent to the amount of foreign
currency; and
(b) set out:
(i) the applicable rate of exchange,
being the rate worked out in accordance with subregulation (3); and
(ii) the conversion calculation; and
(iii) a statement that the conversion
of the amount of foreign currency into Australian currency has been made in
accordance with this regulation.
(3) For the purposes of paragraph (2) (b), the
conversion of an amount of foreign currency into an equivalent amount of
Australian currency must be done in accordance with the exchange rate that, on
the second working day before the day on which the relevant application is
lodged under subregulation 4.01 (1), is the relevant opening telegraphic
transfer rate of the Commonwealth Bank of Australia.
Division 2 Petitions
4.05 Copy
of petition, etc to be given to Official Receiver
(1) A creditor who presents a petition under Division 2
of Part IV of the Act must, within 3 working days, give a copy of the petition,
that is endorsed by the court, to the Official Receiver.
(2) The time within which, under subsection 52 (1A) of
the Act, a creditor must give a copy of a sequestration order to the Official
Receiver is 2 working days after the making of the order.
4.06 Control of debtor’s property before
sequestration
(1) Where the Court makes a direction or other order
under subsection 50 (1) of the Act, the creditor who applied for the direction
or other order must, within 7 days, serve the following documents in accordance
with subregulation (2):
(a) a copy of the application;
(b) a copy of any affidavit filed in support of
the application;
(c) a certified copy of the direction or other
order.
(2) The documents must be served:
(a) on the trustee who the Court has directed to
take control of the debtor’s property; and
(b) except where that person is the Official
Trustee — on the Official Receiver.
4.07 Expenses
of trustee before sequestration
(1) Where:
(a) the Court makes a direction or other order
under subsection 50 (1) of the Act; and
(b) the amount deposited, in accordance with the
direction or other order of the Court, with the Official Trustee or a
registered trustee is insufficient to meet the fees and expenses incurred by
the Official Trustee or registered trustee:
(i) as a result of the direction or
other order; or
(ii) in carrying out an examination of
a person as a result of the issue of a summons under subsection 50 (2) of the
Act;
the Official Trustee or registered trustee may:
(c) request the creditor who made the
application under subsection 50 (1) of the Act; or
(d) apply to the Court for an order directing
that creditor;
to deposit with the Official Trustee or the registered trustee a
specified additional sum.
(2) Where the Court, under section 50 of the Act,
directs the Official Trustee or a registered trustee to take control of the
property of a debtor, and subsequently any of the following events occurs:
(a) the debtor enters into a personal insolvency
agreement, or the debtor’s estate is administered under Part XI of the Act, and
the Court authorises the Official Trustee or the registered trustee to transfer
the property to some other person;
(b) a sequestration order is made against the
debtor;
(c) the creditor’s petition against the debtor
is dismissed;
(d) a debtor’s petition relating to the debtor is
accepted by the Official Receiver;
(e) a proposal by the debtor relating to a debt
agreement is accepted under section 185B of the Act;
the creditor is entitled to a refund of the amount deposited by him
or her in accordance with the direction or other order of the Court to meet the
fees and expenses of the Official Trustee or the registered trustee incurred:
(f) as a result of the direction; or
(g) in carrying out an examination of a person
as the result of the issue of a summons;
less the amount of any fees or expenses so incurred.
4.08 Application
for damages where petition dismissed
Where:
(a) the Court has made a direction or other
order under subsection 50 (1) of the Act; and
(b) the creditor’s petition against the debtor is
subsequently dismissed;
the debtor may, within 21 days after the day on which the petition
is dismissed, apply to the Court for an order for:
(c) the assessment of the amount of any damage
resulting from the control of the property of the debtor by the Official
Trustee or a registered trustee in accordance with the order; and
(d) the payment by the creditor to the debtor of
an amount so assessed.
4.09 Subsection
50 (5) of the Act — prescribed modifications of applied provisions
For the purposes of subsection 50 (5) of the Act,
section 81 of the Act is modified as follows:
(a) by omitting from subsection (2) ‘An’ and
substituting ‘Subject to subsection (2A), an’;
(b) by inserting after subsection (2) the following
subsection:
‘(2A) The Court or a magistrate may direct
that an examination, or any part of an examination, under this section shall be
held in private.’;
(c) by omitting from subsection (9) ‘is the
trustee’ and substituting ‘has been directed to take control of the property of
the debtor’;
(d) by omitting subsection (10A);
(e) by omitting subsection (14) and substituting
the following subsections:
‘(14) Subject to subsection (14A), the
applicant for an examination under this section is to pay the costs incurred in
connection with the examination.
‘(14A) The Court or a magistrate may order
that all or some of the costs mentioned in subsection (14) are to be paid by
the debtor.’.
4.10 Acceptance
of debtor’s declaration
Where, under paragraph 54C (a) of the Act, the
Official Receiver accepts and signs a declaration, the Official Receiver must
give a copy of the signed declaration to the debtor.
4.11 Prescribed
information to be supplied by Official Receiver to debtor
(1) For the purposes of subsections 54D (1), 55 (3A),
56B (5),
57 (3A) and 185E (1) of the Act, the following information is prescribed:
(a) information about alternatives to
bankruptcy;
(b) information about the consequences of
bankruptcy;
(c) information about sources of financial
advice and guidance to persons facing or contemplating bankruptcy;
(d) information about a debtor’s right to choose
whether the bankruptcy is administered by a registered trustee or the Official
Trustee;
(e) a statement that it is an act of bankruptcy
for a debtor:
(i) to present to the Official
Receiver, under section 54A of the Act, a declaration of intention to present a
debtor’s petition; or
(ii) to give to the Official Receiver,
under section 185C of the Act, a written proposal for a debt agreement.
(2) The information must be factual and objective.
(3) The Official Receiver must not accept a debtor’s
petition under section 55, 56B or 57 of the Act, or a debt agreement proposal
under Division 2 of Part IX of the Act, unless the debtor has given to the
Official Receiver a signed acknowledgment (which may be included in or appended
to the petition) that the debtor has received and read the prescribed
information.
(4) If the debtor presents a petition without having
given the acknowledgement, the Official Receiver must:
(a) if the debtor presents the petition in
person — give the prescribed information to the debtor; or
(b) if the debtor presents the petition by
post — post the prescribed information to the debtor.
(5) Where a person intending to present a petition (‘the
intending petitioner’) is unable to properly read the petition, prescribed
information and acknowledgement (‘the relevant material’) because he or she is:
(a) blind, partially sighted, illiterate or
partially literate; or
(b) insufficiently familiar with the English
language;
the petition and acknowledgement may be signed by another person if
that person signs a statement:
(c) where paragraph (a) applies — that he
or she has carefully read the relevant material to the intending petitioner; or
(d) where paragraph (b) applies — that he or
she has carefully interpreted the relevant material to the intending petitioner
in a language with which both persons are familiar.
4.12 Debtor’s
petition — filing of trustee’s consent
Where:
(a) a debtor presents, or 2 or more debtors
present, a petition to the Official Receiver under section 55, 56B or 57 of the
Act; and
(b) there is in force under section 156A of the
Act the consent of a registered trustee to act as the trustee of:
(i) the estate of the debtor; or
(ii) in the case of 2 or more
debtors — the separate estates, the joint estates, or the joint and
separate estates, of the debtors or any of them;
the petition to the Official Receiver must have with it the
original, or a clearly legible photocopy, of the instrument of consent.
4.13 Notice
to partners of referral to Court of petition by other partners against the
partnership
(1) Notice by the Official Receiver under subsection 56C
(2) of the Act must:
(a) be in writing; and
(b) state that the petition has been referred to
the Court specified in the notice; and
(c) state the date, time and place of hearing of
the petition.
(2) The Official Receiver must give the notice:
(a) at least 7 days before that date; and
(b) in accordance with regulation 16.01;
to each member to whom, under that subsection, it is required to be
given.
Division 3 Miscellaneous
4.14 Notification by trustee to creditors
(1) The trustee of a person who becomes bankrupt must,
within 28 days after the day on which the trustee receives the bankrupt’s
statement of affairs, give to each creditor of the bankrupt:
(a) a notice stating the fact and date of the
bankruptcy; and
(b) a summary of the statement of affairs of the
bankrupt.
(2) If the trustee does not receive the statement of
affairs within 60 days after the date of bankruptcy, he or she must give notice
in writing to each creditor of the bankrupt of whom the trustee is aware:
(a) stating that the trustee has not received
the statement of affairs; and
(b) setting out what the trustee knows of the
bankrupt’s affairs.
4.15 Exercise of proxy by trustee’s
representative at meeting
A person appointed under subsection 63B (1) of the
Act to represent a trustee at a meeting may exercise at the meeting any proxy
exercisable by the trustee at the meeting.
4.16 Lodgment of proxies by fax — section
64M of the Act
For the purposes of section 64M of the Act:
(a) an instrument appointing a proxy may be
lodged with the trustee by facsimile transmission; and
(b) an instrument so lodged may be circulated by
the trustee under subsection 64M (2) of the Act.
4.17 Inspection
and copying of composition or scheme of arrangement
Where a proposal for a composition or scheme of
arrangement in relation to a bankrupt has been accepted under subsection
73 (4) of the Act the person may, personally or by an agent, inspect and copy
the composition or scheme of arrangement.
Note Except in the case of a person who
states in writing that he or she is a person who is a creditor of the bankrupt,
a fee is payable under the 2006 Fees
Determination.
4.18 Proposal and report for a composition or
arrangement
Where a trustee is required, under subsection 73
(2) of the Act, to send a copy of a proposal and a report to creditors before a
meeting, the trustee must send those documents to each creditor so that they
arrive, or should in due course of post arrive, at least 7 days before the
meeting.
4.19 Meetings of creditors — modification
of Division 5 of Part IV of the Act
For the purposes of section 76A of the Act,
Division 5 of Part IV of the Act is modified in accordance with Schedule 2
in relation to meetings of creditors under Division 6 of that Part.
Part 5 Control
over person and property of debtors and bankrupts
5.01 Where
debtor or bankrupt is arrested
Where a person is arrested under section 78 of the
Act, the arresting officer must immediately notify a Registrar of the arrest.
Part 6 Administration
of property
Division 1 Order of
payment of debts
6.01 Priority payments under section 109 of the
Act — prescribed matters
(1) Payment of proceeds of the property of a bankrupt
under paragraph 109 (1) (a) of the Act is to be in the order set out in
Schedule 3.
(2) For the purposes of item 5 of Schedule 3:
(a) a reference to the petitioning creditor is
taken to include a reference to a petitioner whose petition has not been
proceeded with because of the acceptance of the debtor’s petition; and
(b) paragraph (a) applies irrespective of whether
the debtor’s petition was referred to the Court under subsection 55 (3B)
of the Act or, if the petition was so referred, the outcome of the reference.
6.02 Maximum amount payable to employee
(1) For the purposes of paragraph 109 (1) (e) of the
Act, the maximum amount due to or in respect of an employee of a bankrupt is:
(a) in the case of a bankruptcy occurring or
continuing in the period commencing on the commencement date and ending at the
end of 30 June 1997 — $3,100; or
(b) in the case of a bankruptcy occurring in a
financial year commencing on 1 July 1997 or on 1 July of a subsequent
year — the amount worked out in accordance with subregulation (2).
(2) For the purposes of subparagraph (1) (b), the
applicable amount is:
(a) in the case of the financial year commencing
on 1 July 1997 — $3,100 increased in accordance with the CPI rate for the
financial year that commenced on 1 July 1996 and rounded down to the nearest
multiple of $50; and
(b) in the case of a subsequent financial
year — the amount worked out in accordance with this subregulation for the
immediately preceding financial year, increased in accordance with the CPI rate
for that financial year and rounded down to the nearest multiple of $50.
Example
In the case of a bankruptcy occurring in the financial
year 1997‑1998, the applicable CPI rate is the rate for 1996‑1997.
Note For the meaning of financial
year, see para. 22 (1) (e) of the Acts Interpretation Act 1901.
Division 2 Property
available for payment of debts
6.03 Household property
(1) For the purposes of subparagraph 116 (2) (b) (i) of
the Act, household property of the bankrupt specified in this regulation is
household property to which subsection 116 (1) of the Act (which deals with
property divisible among the creditors) does not extend.
(2) Subsection 116 (1) of the Act does not extend to
household property (including recreational and sports equipment) that is
reasonably necessary for the domestic use of the bankrupt’s household, having
regard to current social standards.
(3) In particular (but without limiting by implication
the generality of subregulation (2)), subsection 116 (1) of the Act does not
extend to property of the following kinds:
(a) in the case of kitchen equipment, cutlery,
crockery, foodstuffs, heating equipment, cooling equipment, telephone equipment,
fire detectors and extinguishers, anti‑burglar devices, bedding, linen,
towels and other household effects — that property to the extent that it
is reasonably appropriate for the household, having regard to the criteria
mentioned in subregulation (4);
(b) sufficient
household furniture;
(c) sufficient beds for the members of the
household; and
(d) educational, sporting or recreational items
(including books) that are wholly or mainly for the use of children or students
in the household;
(e) 1 television set;
(f) 1 set of stereo equipment;
(g) 1 radio;
(h) either:
(i) 1 washing machine and 1 clothes
drier; or
(ii) 1 combined washing machine and
clothes drier;
(i) either:
(i) 1 refrigerator and 1 freezer; or
(ii) 1 combination refrigerator/freezer;
(j) 1 generator, if relied on to supply
electrical power to the household;
(k) 1 telephone appliance;
(l) 1 video recorder.
(4) For the purposes of deciding whether property, other
than property of a kind mentioned in paragraphs (3) (b) to (l) (both
inclusive), is property to which subregulation (2) applies, regard must be had
to the following criteria:
(a) the number and ages of members of the
bankrupt’s household;
(b) any special health or medical needs of any of
those members;
(c) any special climatic or other factors
(including geographical isolation) of the place where the household residence
is located;
(d) whether the property is reasonably necessary
for the functioning or servicing of the household as a viable and properly run
household;
(e) whether the costs of seizure, storage and
sale of the property would be likely to exceed the sale price of the property;
(f) if paragraph (e) does not apply —
whether for any other reason (for example, costs of transport) the sale of the
property would be likely to be uneconomical.
(5) The preceding provisions of this regulation do not
prevent subsection 116 (1) of the Act from extending to antique items.
(6) For the purposes of subregulation (5), an item is
taken to be antique if, and only if, a substantial part of its market value is
attributable to its age or historical significance.
6.03A Personal property
(1) For subparagraph 116 (2) (ba) (ii) of the Act,
sporting, cultural, military or academic awards made to the bankrupt in
recognition of his or her performance are personal property to which subsection
116 (1) of the Act does not extend.
(2) Subregulation (1) does not apply to a monetary award.
6.03B Property divisible among creditors —
prescribed amounts
(1) For the purposes of subparagraph 116 (2) (c) (i) of
the Act, the maximum total value of a bankrupt’s property that is for use by
the bankrupt in earning income by personal exertion is:
(a) in the case of a bankruptcy occurring or
continuing in the period commencing on the commencement date and ending at the
end of 30 June 1997 — $2,600; or
(b) in the case of a bankruptcy occurring in a
financial year commencing on 1 July 1997 or on 1 July of a subsequent
year — the amount worked out in accordance with subregulation (2).
(2) For the purposes of subparagraph (1) (b), the
applicable amount is:
(a) in the case of the financial year commencing
on 1 July 1997 — $2,600 increased in accordance with the CPI rate for the
financial year that commenced on 1 July 1996 and rounded down to the nearest
multiple of $50; and
(b) in the case of a subsequent financial
year — the amount worked out in accordance with this subregulation for the
immediately preceding financial year, increased in accordance with the CPI rate
for that financial year and rounded down to the nearest multiple of $50.
(3) For the purposes of paragraph 116 (2) (ca) of the
Act, the maximum aggregate value of property used by the bankrupt primarily as
a means of transport is:
(a) in the case of a bankruptcy occurring or
continuing in the period commencing on the commencement date and ending at the
end of 30 June 1997 — $5,000; or
(b) in the case of a bankruptcy occurring in a
financial year commencing on 1 July 1997 or on 1 July of a subsequent
year — the amount worked out in accordance with subregulation (4).
(4) For the purposes of subparagraph (3) (b), the
applicable amount is:
(a) in the case of the financial year commencing
on 1 July 1997 — $5,000 increased in accordance with the CPI rate for the
financial year that commenced on 1 July 1996 and rounded down to the nearest
multiple of $50; and
(b) in the case of a subsequent financial
year — the amount worked out in accordance with this subregulation for the
immediately preceding financial year, increased in accordance with the CPI rate
for that financial year and rounded down to the nearest multiple of $50.
Division 2A Rural support schemes
6.04A Prescribed
rural support schemes (Act s 116)
For paragraph 116 (2) (k) of the Act,
the following rural support schemes are prescribed:
(a) DEP scheme;
(b) farm help re‑establishment grant
scheme.
6.04B Prescribed
rural support schemes (Act s 116)
For paragraph 116 (2) (l) of the Act,
each rural support scheme mentioned in the following table, and the
circumstances mentioned for the scheme, are prescribed.
|
Item
|
Rural support scheme
|
Circumstance
|
|
1
|
1985 Rural Adjustment Grant
Scheme
|
Assistance is required by a
person engaged in the agricultural industry, in the form of a loan for
rehabilitation or household support
|
|
2
|
1988 Rural Adjustment Grant
Scheme
|
Assistance is required by a
person engaged in the agricultural industry, in the form of a grant or loan
for rehabilitation or household support
|
|
3
|
Rural Adjustment Grant Scheme
|
Assistance is required by a
person engaged in the agricultural industry, in the form of a grant or loan
for rehabilitation or household support
|
|
4
|
Rural Adjustment Scheme
|
Assistance is required by a
person engaged in the agricultural industry, in the form of a grant or loan
for rural adjustment
|
|
5
|
Rural Reconstruction Grant
Scheme
|
Assistance is required by a
person engaged in the agricultural industry, in the form of a grant or loan
for rehabilitation
|
|
6
|
Sugar Industry Reform Program
|
Assistance is required in the
form of a grant to enable a person engaged in the sugar industry, as a grower
or harvester, to exit all agricultural industries
|
|
7
|
Tobacco Grower Adjustment
Assistance Package
|
Assistance is required in the
form of a grant to enable a person engaged, or previously engaged, in the
tobacco industry as a grower to exit all agricultural industries
|
Division 3 Apportionment of property
6.05 Interpretation
In this Division, unless the contrary intention
appears:
actuary has the same meaning as in the Superannuation
Industry (Supervision) Act 1993.
accumulation fund has the same meaning as in
the Superannuation Industry (Supervision) Regulations.
approved deposit fund has
the same meaning as in the Superannuation Industry (Supervision) Act 1993.
defined benefit fund has the same meaning as
in the Superannuation Industry (Supervision) Regulations.
member means:
(a) in relation to a regulated superannuation
fund — a person who:
(i) is a member of the fund; or
(ii) receives a pension from the fund;
or
(iii) has deferred his or her
entitlement to receive a benefit from the fund; and
(b) in relation to an approved deposit
fund — a depositor in the fund.
pension RBL, in relation to a
bankrupt, means the bankrupt’s pension RBL worked out under section 140ZD of
the Income Tax Assessment Act 1936.
preserved component means the component of a
bankrupt’s interest in a fund that consists of preserved benefits (ascertained
in accordance with Subdivision 6.1.2 of the Superannuation Industry
(Supervision) Regulations).
regulated superannuation fund has the same
meaning as in the Superannuation Industry (Supervision) Act 1993.
restricted non‑preserved component
means the component of a bankrupt’s interest in a fund that consists of
restricted non‑preserved benefits (ascertained in accordance with
Subdivision 6.1.3 of the Superannuation Industry (Supervision) Regulations).
unrestricted non‑preserved component means
the component of a bankrupt’s interest in a fund that consists of unrestricted
non‑preserved benefits (ascertained in accordance with Subdivision 6.1.4
of the Superannuation Industry (Supervision) Regulations).
withdrawal benefit has the same meaning as in
the Superannuation Industry (Supervision) Regulations.
6.06 Method
of apportionment — subsection 116 (6) of the Act
Purposes and application
(1) This regulation is made under subsection 116 (6) of
the Act and, accordingly, it sets out the method for apportioning items of
property for the purposes of paragraph 116 (5) (b) of the Act. The method is to
apply in respect of property of a bankrupt (in this regulation called ‘the
bankrupt’s property’), where:
(a) that property is covered by paragraph 116
(2) (d) of the Act; and
(b) the total value of the bankrupt’s property
exceeds the amount of the bankrupt’s pension RBL.
One item of property — life assurance or endowment assurance
(2) If the bankrupt’s property:
(a) consists of only 1 item; and
(b) is in the form of:
(i) a policy of life assurance or
endowment assurance; or
(ii) proceeds of a policy of that kind,
being proceeds that are received by the bankrupt on or after the date of the
bankruptcy;
the method of determining how the property is to be apportioned is
to extend subsection 116 (1) of the Act to the proportion of that property that
exceeds the amount of the bankrupt’s pension RBL.
One item of property — payment
from regulated superannuation fund or approved deposit fund
(3) If the bankrupt’s property:
(a) consists of only 1 item; and
(b) is in the form of a payment from a regulated
superannuation fund or an approved deposit fund, being a payment that:
(i) is received by the bankrupt on or
after the date of the bankruptcy; and
(ii) is not a pension, within the
meaning of the Superannuation Industry (Supervision) Act 1993;
the method of determining how the property is to be apportioned is
to extend subsection 116 (1) of the Act to the proportion of that property that
exceeds the amount of the bankrupt’s pension RBL.
One item of property — interest
in regulated superannuation fund or approved deposit fund
(4) If the bankrupt’s property:
(a) consists of only 1 item; and
(b) is in the form of an interest in a regulated
superannuation fund or an approved deposit fund;
the method of determining how the property is to be apportioned is
to extend subsection 116 (1) of the Act to the components of the property in
the following order:
(c) the unrestricted non‑preserved
component of the property;
(d) the restricted non‑preserved component
of the property;
(e) the preserved component of the property;
until the value of the bankrupt’s residuary interest in the
property equals the value of the bankrupt’s pension RBL.
Example
Assume that the bankrupt has one item of property, namely
an interest
of $1,200,000 in a regulated superannuation fund. This property has the
following components:
(a) an unrestricted non‑preserved component of
$100,000;
(b) a restricted non‑preserved component of
$200,000;
(c) a preserved component of $900,000.
The amount ($400,000) by which the property exceeds the
pension RBL ($800,000) is available towards satisfying the creditors in the
bankruptcy.
The amount of $400,000 is met by applying the whole of the
non‑preserved components ($100,000 + $200,000 = $300,000) and $100,000
from the preserved component.
Note The amount of the pension RBL (in
the above example, $800,000) is always protected and remains in the fund.
More than 1 item of property
(5) If the bankrupt’s property consists of more than 1
item, the method of determining how the property is to be apportioned is to
extend subsection 116 (1) of the Act to the items in the following order:
(a) proceeds of a policy of life assurance or
endowment assurance received by the bankrupt on or after the date of the
bankruptcy;
(b) policies of life assurance or endowment
assurance;
(c) a payment from a regulated superannuation
fund or an approved deposit fund, being a payment that:
(i) is received by the bankrupt on or
after the date of the bankruptcy; and
(ii) is not a pension, within the
meaning of the Superannuation Industry (Supervision) Act 1993;
(d) the unrestricted non‑preserved
component of any interest in an approved deposit fund;
(e) the unrestricted non‑preserved
component of any interest in an accumulation fund;
(f) the restricted non‑preserved component
of any interest in an accumulation fund;
(g) the preserved component of any interest in
an approved deposit fund;
(h) the preserved component of any interest in
an accumulation fund;
(i) the unrestricted non‑preserved
component of any interest in a defined benefit fund;
(j) the restricted non‑preserved component
of any interest in a defined benefit fund;
(k) the preserved
component of any interest in a defined benefit fund;
until the value of the bankrupt’s residuary interest in the
property equals the value of the bankrupt’s pension RBL.
6.07 Method
of working out value of property — subsection 116 (7) of the Act
(1) This regulation is made under subsection 116 (7),
and for the purposes of subsection 116 (5), of the Act.
(2) In the case of property that is an interest in a
policy of life assurance or endowment assurance, the value of the bankrupt’s
interest in the property is taken to be the amount available in cash on
voluntary termination of the policy at the date of bankruptcy.
(3) In the case of property that is an interest in an
accumulation fund or an approved deposit fund, the value of the bankrupt’s
interest in the property is taken to be the withdrawal benefit of the bankrupt
in the fund at the date of bankruptcy.
(4) Subject to subregulation (5), in the case of
property that is an interest in a defined benefit fund, the value of the
bankrupt’s interest in the property is taken to be the withdrawal benefit of
the bankrupt in the fund at the date of bankruptcy.
(5) If the withdrawal benefit is not an immediately
payable lump sum, the amount of the withdrawal benefit is to be determined by
an actuary for the purposes of subregulation (4).
6.08 Evidentiary certificate by trustee —
subsection
116 (8) of the Act
(1) This regulation is made under subsection 116 (8) of
the Act.
(2) Where the bankrupt has an interest in a regulated
superannuation fund or an approved deposit fund of the kind referred to in that
subsection, the trustee of the bankrupt must give a request in writing to the
trustee of the fund to provide a written certificate setting out the following
particulars:
(a) the withdrawal benefit of the bankrupt in
the fund at the date of bankruptcy; and
(b) the amount of each payment (if any) that the
fund has paid to the bankrupt, and the date of each payment.
(3) The trustee of a fund
who receives a request under subregulation (2) must sign and date a certificate
setting out the requested particulars so far as it is reasonably practicable to
do so, and give it to the relevant trustee in bankruptcy within
28 days of doing so or within any further period that the relevant trustee
allows.
(4) A document that purports, or appears to the court,
to be a certificate given under subregulation (3) is evidence of its contents
and may be tendered in evidence without further proof.
Division 4 Undervalued
transactions
6.09 Transfers exempt from being void against
trustee
The kind of transfer of property to which paragraph
120 (2) (d) of the Act applies is one where the costs of recovering the
transferred property would, in the trustee’s opinion, be likely to exceed the
value to the creditors of the property.
Division 5 Realisation
of property
6.10 Disclaimer of onerous property
(1) A notice of disclaimer under subsection 133 (1) or
(1A) of the Act must:
(a) in every case — adequately identify:
(i) the bankrupt to whom the notice
relates; and
(ii) the property or contract being
disclaimed; and
(b) in the case of disclaimer, without the leave
of the Court, of:
(i) a lease — set out facts
showing that subsection 133 (4) of the Act has been complied with; or
(ii) a contract — set out facts
showing that the contract is, for the purposes of subsection 133 (5A) of the
Act, an unprofitable contract.
(2) A trustee who gives a notice of disclaimer under
subsection 133 (1) or (1A) of the Act must give the notice to each person who,
to the trustee’s knowledge:
(a) in the case of disclaimer of property —
has an interest in the property; or
(b) in the case of a contract — is entitled
to a benefit of, or subject to a burden or liability under, the contract.
Division 6 Definition
of income (Act s 139L)
6.11 Interpretation
In this Division:
FBTA Act means the Fringe Benefits Tax
Assessment Act 1986 as in force at the beginning of 1 July 1992.
6.12 Fringe benefits: modification of the FBTA
Act
(1) For the purposes of subparagraph (a) (v) of the
definition of income in section 139L of the Act, the FBTA Act is
modified in accordance with Schedule 4.
(2) For those purposes, the following modifications of
the FBTA Act apply:
(a) a reference to a year of tax is taken to be
a reference to a contribution assessment period;
(b) a reference to the taxable value of a benefit
is taken to be a reference to the value, for the purposes of the Act, of the
benefit;
(c) a reference to the declaration date is taken
to be a reference to the date occurring 21 days after the end of the
contribution assessment period in relation to the bankrupt;
(d) a reference to a declaration to be given to
the employer is taken to be a reference to a declaration to be given to the
trustee;
(e) a reference to a form approved by the
Commissioner is taken to be a reference to a form approved by the Inspector‑General;
(f) subject to paragraph (d), a reference to an
employer, or to the employer, is taken to be a reference to any person (other
than the bankrupt);
(g) a reference to an employee, or to the
employee, is taken to be a reference to a bankrupt, or to the bankrupt, as the
case requires;
(h) a reference (however expressed) to:
(i) the employment of the employee; or
(ii) an associate of the employee;
is to be disregarded.
(3) In spite of subregulations (1) and (2), the
modifications specified or referred to in those subregulations do not apply in
relation to the provision of a fringe benefit, within the meaning of the FBTA
Act, where the provider of the fringe benefit:
(a) was the employer of the bankrupt; and
(b) provided the fringe benefit to the bankrupt
in respect of his or her employment by the provider; and
(c) was not an employer over whom the bankrupt
exercised effective control, whether directly or indirectly.
6.12A Restart scheme payments
For subparagraph (b) (v) of the definition of income
in section 139L of the Act, payments of restart income support, being
payments of a kind mentioned in paragraph (a) of the definition of restart
scheme payments in subsection 3 (2) of the Farm Household Support
Act 1992, are not income of a bankrupt.
6.12B Superannuation
contributions
(1) Subject to subregulation (2), for subparagraph (b)
(v) of the definition of income in section 139L of the Act, the following
contributions and payments made for the purpose of providing superannuation
benefits for a bankrupt person are not income of the person:
(a) contributions made by, or on behalf of, each
employer of the person to the extent that the contributions reduce the
employer’s potential liability for the superannuation guarantee charge imposed
under section 5 of the Superannuation Guarantee Charge Act 1992;
(b) contributions made by, or on behalf of, each
employer of the person in accordance with the employer’s obligation to make
contributions for the person under:
(i) an industrial award or
determination made under a law of the Commonwealth, a State or a Territory; or
(ii) an industrial agreement
registered, made or lodged under a law of the Commonwealth, a State or a
Territory; or
(iii) a law of the Commonwealth, or of
a State or Territory;
that exceed the contributions, made by
or on behalf of the employer, mentioned in paragraph (a);
(c) payments of shortfall components made to, or
for the benefit of, the person under sections 65 to 67 of the Superannuation
Guarantee (Administration) Act 1992.
(2) If:
(a) the employer has an obligation to make
contributions that arises under an industrial agreement made solely between the
employer and the person; and
(b) the contributions are not contributions of
the kind mentioned in subparagraph (1) (b) (iii);
contributions that, for a particular financial year, exceed an
amount equal to 9% of the employee’s ordinary time earnings for the year are
taken to be income of the person.
(3) For this regulation:
industrial agreement made solely between the employer
and the person includes an Australian Workplace Agreement under the Workplace
Relations Act 1996 or a similar agreement under the law of a State or
Territory.
ordinary time earnings has the meaning given
by section 6 of the Superannuation Guarantee (Administration) Act 1992.
shortfall component has the same meaning as
it has in Part 8 of the Superannuation Guarantee (Administration) Act 1992.
6.12C Family
assistance and social security payments
(1) For subparagraph (b) (v) of the definition of income
in section 139L of the Act, the following payments or amounts are not income of
a bankrupt:
(a) a payment or amount of family tax benefit
paid under the family assistance law;
(b) an amount that is not income for the purposes
of the
Social Security Act 1991 because of subsection 8 (8) of that Act, except
for a payment or amount mentioned in paragraph (a), (h), (ha), (k), (ka), (m),
(z), (za) or (zb) of that subsection.
(2) For this regulation, family assistance law
has the same meaning as in the A New Tax System (Family Assistance)
(Administration) Act 1999.
6.12D Primary
Industry rural support scheme
For subparagraph (b) (v) of the definition of income
in section 139L of the Act, any of the following is not income of a
bankrupt:
(a) an amount paid to a person under the DEP
scheme;
(b) an amount paid to a
person under the Sugar Industry Reform Program for the prescribed circumstance
mentioned for it in regulation 6.04B;
(c) an amount paid to a person under the Tobacco
Grower Adjustment Assistance Package for the prescribed circumstance mentioned for
it in regulation 6.04B.
Division 7 Contributions
by bankrupt
6.13 Interpretation
In this Division:
contributing bankrupt means a bankrupt who is
liable to make contributions.
contribution means a contribution payable or
paid under section 139P or 139Q of the Act.
6.14 Contributions by bankrupt — modes of
payment
(1) A contributing bankrupt may pay a contribution in
any of the following ways:
(a) in cash to the trustee at the trustee’s
office during business hours;
(b) by bank draft, cheque, money order or postal
order payable to the trustee and delivered or posted to that office;
(c) by deposit of the amount of the contribution
in, or transfer of that amount to, the trustee’s bank account;
(d) any other method authorised in writing by the
trustee.
(2) In the case of payment by cheque, payment is taken
to occur when the cheque is cleared and the amount of the payment is credited
to the account into which the cheque is deposited.
(3) The trustee may, on reasonable notice in writing to
the bankrupt, vary or cancel an authorisation under paragraph (1) (d).
(4) If the trustee incurs a delivery or postal charge (including
a surcharge) or bank charge in connection with the receipt or processing of
payment of a contribution, the trustee may reimburse himself or herself for the
amount of the charge from the bankrupt’s estate.
6.15 Contributions
where bankrupt dies
If a contributing bankrupt dies during a
contribution assessment period:
(a) no refund is payable in respect of any part
of a contribution paid by or on behalf of the bankrupt in respect of that
period; and
(b) if a contribution in respect of that period remains
unpaid, the deceased bankrupt’s estate is liable for the portion of the
contribution attributable to the part of the period occurring before the date
of death.
Note For proceedings in bankruptcy on the
death of the bankrupt, see s. 63 of the Act.
6.15A Contribution assessment — income of
dependant
(1) For paragraph (c) of the definition of dependant
in section 139K of the Act, the amount is $2 500.
(2) Section 304A of the Act applies to this regulation
as if the amount mentioned in subregulation (1) were an amount also mentioned
in the definition of indexable amount in subsection 304A (1) of
the Act.
6.17 Certificate
of outstanding contribution
(1) A trustee may give a certificate, signed and dated
by the trustee, stating:
(a) that the trustee has made an assessment
under subsection 139W (1) or (2) of the Act in relation to a bankrupt; and
(b) the amount of the contribution to which the
assessment relates that the bankrupt is liable to pay; and
(c) that the trustee has given notice setting
out particulars of the assessment to the bankrupt under subsection 139W (4) of
the Act; and
(d) the respective dates of the assessment and
the notice.
(2) In proceedings against the bankrupt for recovery of
the amount, or part of the amount, of a contribution, the certificate:
(a) is evidence that the bankrupt is liable to
pay the amount of contribution stated in the certificate; and
(b) may be tendered in evidence without further
proof.
6.18 Discharged bankrupt to give information if
contribution unpaid
(1) If:
(a) a person is discharged from bankruptcy; and
(b) immediately before being discharged he or she
was a contributing bankrupt; and
(c) after the discharge he or she remains
liable, under section 139R of the Act, in respect of a contribution that is due
and unpaid;
the person must at once give notice in writing to the trustee in
relation to the bankruptcy if any change occurs in the particulars:
(d) set out in the person’s statement of affairs
in relation to the bankruptcy; or
(e) notified by the person under section 80 of
the Act.
Penalty: 10 penalty units
(2) An offence against subregulation (1) is an offence
of strict liability.
Note For strict liability,
see section 6.1 of the Criminal Code.
Division 8 Notice under section 139ZL of the Act
6.19 Notice under section 139ZL of the Act not
to refer to protected money
A notice under section 139ZL of the Act must not
specify money or property that is protected, under a law of the Commonwealth or
a State or Territory, from a process such as assignment, attachment, charging,
execution or garnishment.
6.20 Notice
under section 139ZL of the Act (notice of ceasing or commencing employment)
(1) If the employer of a bankrupt receives a notice
under section 139ZL of the Act in relation to the bankrupt and the employment
of the bankrupt subsequently ceases, the employer must, within 21 days of the
cessation, give notice in writing to the trustee of the bankrupt stating that,
on the date specified in the notice, the bankrupt ceased to be employed by the
employer.
Penalty: 2 penalty units
(2) Within 21 days after commencing employment with an
employer, the bankrupt must give notice in writing to the trustee stating:
(a) the employer’s name and postal address; and
(b) the address of the place where the bankrupt
is employed; and
(c) the amount of the bankrupt’s average gross
weekly income from the employment.
Penalty: 2 penalty units
(3) An offence against
subregulation (1) or (2) is an offence of strict liability.
Note For strict liability, see section
6.1 of the Criminal Code.
Division 9 Distribution of property
6.21 Minimum amount of dividend
For the purposes of subsection 140 (9) of the Act,
the amount of $25 is prescribed.
6.22 Manner of declaring final dividend
A notice under subsection 145 (3) of the Act must
be given by serving it, in accordance with subregulation 16.01 (1), on each
person to whom, under the subsection, it must be given.
Part 7 Discharge
and annulment
7.01 Trustee
to inform the Official Receiver of return of bankrupt to Australia
(1) This regulation applies to a registered trustee who
is the trustee of the estate of a bankrupt, if:
(a) an objection to the discharge of the
bankrupt has been made on a ground, or on grounds that include a ground,
referred to in paragraph 149D (1) (a) or (h) of the Act (which refer to the
bankrupt being out of Australia); and
(b) the bankrupt has returned to Australia; and
(c) the trustee becomes aware that the bankrupt
has returned to Australia.
(2) Within 7 days after becoming aware that the bankrupt
has returned to Australia, the registered trustee must give notice in writing
to the Official Receiver stating:
(a) that the bankrupt has returned to Australia;
and
(b) the date on which:
(i) the bankrupt returned; or
(ii) if the trustee does not know the
date on which the bankrupt returned — the trustee became aware that the
bankrupt had returned.
Penalty: 1 penalty unit
(3) An offence against subregulation (2) is an
offence of strict liability.
Note For strict liability,
see section 6.1 of the Criminal Code.
7.01A Grounds
of objection — failure to provide complete and accurate information
For paragraph 149D (1) (d) of the Act, a bankrupt
is taken to have failed to comply with a request to provide information if the
bankrupt has provided information that is incomplete or inaccurate.
7.02 Trustee
to inform the Official Receiver of cancellation of objection
(1) This regulation applies where the Administrative
Appeals Tribunal (the AAT), on an application under section 149Q
of the Act for review of a decision of a registered trustee to file a notice of
objection to the discharge of a bankrupt, cancels or varies the decision.
(2) Where this regulation applies, the registered
trustee must, by notice in writing, inform the Official Receiver of the
decision of the AAT.
(3) The registered trustee must give the notice within 7
days of being notified of the decision of the AAT.
(4) An offence against subregulation (3) is an offence
of strict liability.
Penalty: 1 penalty unit.
Note For strict liability,
see section 6.1 of the Criminal Code.
Part 8 Trustees
Division 1 Application for registration, or extension of registration,
as a trustee
8.01 Documents
to accompany application for registration
(1) For the purposes of paragraph 154A (3) (a) of the
Act, the following documents must accompany an application to be registered as
a trustee:
(a) if the applicant relies on a qualification
referred to in paragraph 8.02 (1) (a):
(i) an original statement in
accordance with subregulation (2), certified by the appropriate officer of the
university, college of advanced education or other tertiary institution; or
(ii) a copy of the statement, certified
as a copy by a person before whom an affidavit may be sworn under section 262
of the Act;
(b) 2 references, signed by the respective
referees, who are familiar with relevant work undertaken by the applicant
within the 12 months before the application, that contain the particulars
specified in subregulation (3).
(2) A statement referred to in subparagraph (1) (a) (i)
must set out the relevant qualification of the applicant and state that the
qualification represents:
(a) a course of study in accountancy of not less
than 3 years’ duration; and
(b) a course of study in commercial law of not
less than 2 years’ duration.
(3) For the purposes of paragraph 1 (b), each reference
must contain the following particulars:
(a) the name, address and telephone number of
the referee;
(b) the occupation of the referee;
(c) the period during which, and the circumstances
under which, the referee has known the applicant;
(d) the referee’s opinion about the following
matters:
(i) the applicant’s abilities in oral
and written communication;
(ii) the applicant’s knowledge of the
powers, duties and functions of a registered trustee or registered liquidator;
(iv) the applicant’s knowledge of
business management and his or her ability to successfully conduct business
activities;
(e) whether, in the referee’s opinion, the
applicant has experience in assisting a registered trustee or a registered
liquidator within the meaning of the Companies Act 1981 or the
Corporations Law in carrying out the functions of the trustee or liquidator
and, if so:
(i) the nature of the activities that
the applicant was required to carry out in acquiring that experience; and
(ii) the length of the period of time
during which the applicant carried out those activities; and
(iii) whether the applicant carried out
those activities in a competent manner;
(f) the referee’s reasons for supporting the
application.
8.02 Qualifications,
experience, knowledge and abilities of applicants
(1) For the purposes of paragraph 155A (2) (a) of the
Act, the following qualifications, experience, knowledge and abilities are
prescribed in relation to an applicant for registration as a trustee:
(a) completion of the academic requirements for
the award of a degree, diploma or similar qualification from an Australian
university or college of advanced education, or other Australian tertiary
institution of an equivalent standard, being a degree, diploma or similar
qualification granted to a person who has completed:
(i) a course of study in accountancy
of not less than
3 years’ duration; and
(ii) a course of study in commercial
law of not less than 2 years’ duration;
(b) engagement in relevant employment on a full‑time
basis for a total of not less than 2 years in the preceding 5 years;
(c) the ability to perform satisfactorily the
duties of a registered trustee immediately after registration.
Note If the committee considering the
application considers that the applicant is suitable to be registered as a
trustee, it may decide that the applicant should be registered even if it is
not satisfied that the applicant has the qualifications, experience, knowledge
and abilities prescribed in subregulation 8.02 (1); see subsection 155A (3) of
the Act.
(2) In this regulation:
relevant employment means employment that:
(a) involves assisting a liquidator or trustee
in the performance of his or her duties as a liquidator or trustee; and
(b) involves the providing of advice in relation
to bankruptcy matters; and
(c) provides experience in insolvency
administrations outside bankruptcy, including administration of receiverships,
the winding up of corporations and any other similar functions.
8.03 Subsection
155C (2) of the Act — prescribed particulars of applicant for registration
as a trustee
For the purposes of subsection 155C (2) of the Act,
the following details are prescribed in relation to an applicant referred to in
that subsection:
(a) the applicant’s full name, and any alias;
(b) the applicant’s business address (including,
where applicable, the postal address) and telephone number;
(c) a statement or summary of any conditions
applying to the person’s entitlement to practise as a registered trustee;
(d) the date on which details in respect of the
applicant are entered on the Index.
8.04 Extension
of registration — proof of insurance
A person who applies under section 155D of the Act
must provide proof, of a kind reasonably acceptable to the Inspector‑General,
that the applicant has insurance of the kind mentioned in paragraph 155A (2)
(b) of the Act.
Division 1A Change in
trustee’s particulars
8.04A Trustee to notify change in particulars
(1) A trustee must promptly give notice in writing to
the Official Receiver of any change, in relation to the trustee, of the
particulars specified in paragraph 8.03 (a), (b) or (c).
Penalty: 1 penalty unit
(2) An offence against subregulation (1) is an offence
of strict liability.
Note For strict liability,
see section 6.1 of the Criminal Code.
Division 2 Registration
of trustees
Subdivision 1 Preliminary
8.05 Definitions
In this Division,
unless the contrary intention appears:
application means an application under
subsection 154A (1) of the Act.
chairperson means the chairperson of a
committee.
committee means a committee convened under
subsection
155 (1) of the Act.
member, in relation to a committee, includes
the chairperson.
Subdivision 2 Constitution and
procedure of committees generally
8.05A Chairperson
of a committee
The chairperson of a committee is:
(a) the Inspector‑General; or
(b) if the Inspector‑General appoints
another member of the committee as chairperson — that person.
8.05B Trustee chosen by the Insolvency
Practitioners Association of Australia
A registered trustee chosen by the Insolvency
Practitioners Association of Australia under paragraph 155 (2) (c) of the Act
must have practised as a registered trustee for at least 5 years.
8.05C Resignation of chairperson
(1) A chairperson other than the Inspector‑General
may resign the office of chairperson by notice in writing signed by the
chairperson and given to the Inspector‑General.
(2) A notice of resignation takes effect when the
Inspector‑General receives it.
8.05D Resignation of members
(1) A member of a committee, other than the Inspector‑General,
may resign from the committee by notice in writing signed by the member and
given to the Inspector‑General.
(2) A notice of resignation takes effect when the
Inspector‑General receives it.
8.05E Disclosure of interests
If a member of a committee:
(a) is a close relative of the applicant; or
(b) has a
financial or personal relationship with the applicant;
the member must, as soon as practicable after becoming aware of the
identity of the applicant, disclose the nature of the relationship to the other
members of the committee and to the Inspector‑General.
8.05F Removal
of members from a committee
(1) The Inspector‑General may terminate the appointment
of a member of a committee if:
(a) the member becomes physically or mentally
incapable of performing the duties of a member; or
(b) the member becomes a bankrupt; or
(c) the member signs an authority under section
188 of the Act that is effective for the purposes of Part X of the Act; or
(d) the member becomes a party, as a debtor, to a
debt agreement; or
(e) the member has been convicted of an offence
involving fraud or dishonesty; or
(f) the member neglects his or her duty as a
member.
(2) The Inspector‑General may terminate the
appointment of a member of a committee if:
(a) the member:
(i) is a close relative of the
applicant; or
(ii) has a financial or personal
relationship with the applicant; and
(b) the Inspector‑General believes that
relationship may affect the impartiality of the member.
8.05G Convening
of a replacement committee
(1) This regulation applies if:
(a) either of the following events occurs:
(i) a member of a committee resigns or
dies;
(ii) the appointment of a member of a
committee is terminated under regulation 8.05F; and
(b) at the time of that occurrence, the committee
has not made a decision under subsection 155A (1) of the Act.
(2) If this regulation applies:
(a) the Inspector‑General must convene
another committee (the new committee) in place of the committee
referred to in subregulation (1) (the previous committee); and
(b) the new committee must not have regard to any
proceedings of the previous committee.
8.05H General procedures of a committee
(1) Subject to the Act and this Division, a committee
may determine its procedure.
(2) A committee must observe natural justice.
(3) A committee is not bound by any rules of evidence
but may inform itself on any matter as it sees fit.
(4) A committee must keep a written record of its
decisions.
8.05I Procedure at committee meetings
(1) Subject to this regulation, all members of a
committee must be present in order to constitute a quorum for a meeting of the
committee.
(2) At a meeting of a committee a matter is to be
decided by a majority of the votes of the members.
(3) Any member may participate in a meeting by
telephone.
(4) A member who participates in a meeting by telephone
is taken to be present at the meeting.
(5) A committee may keep minutes of proceedings at its
meetings.
8.05J Resolutions without meeting
(1) If the majority of the members of a committee sign a
document containing a statement that they are in favour of a resolution in the
terms set out in the document, the resolution is taken to have been passed at a
meeting of the committee:
(a) on the day on
which the document is signed; or
(b) if the members sign the document on different
days — on the day on which the document is signed by the member who makes
up the majority.
(2) Two or more separate documents that are identical in
all material respects (apart from signatures), each of which is signed by 1 or
more members, are taken for the purposes of subregulation (1) to constitute a
single document.
Subdivision 3 Inquiries
and interviews
8.05K Inquiries by the committee
(1) A committee considering an application may make
inquiries of any person for the purposes of deciding whether the applicant
should be registered as a trustee or not.
(2) If the committee decides that the applicant should
be registered, the committee may make inquiries of any person for the purposes
of deciding what conditions, if any, should apply to the applicant’s practice
as a registered trustee.
(3) Inquiries made must be inquiries:
(a) that are reasonable, for the purpose of
making an informed decision; or
(b) that the Chairperson of the committee
believes are appropriate in order for the committee to have sufficient
information to make the decision.
(4) Before making a decision that is adverse to the
applicant, a committee must:
(a) inform the applicant of any information or
material that the committee relies on, or proposes to rely on, in making the
decision; and
(b) give the applicant a reasonable opportunity
to reply to, or rebut, the information or material.
8.05L Notice
of interview
For subsection 155 (3) of the Act, the Inspector‑General
or authorised employee on the committee must, after consultation with the other
members of the committee:
(a) fix a date, time and place for the
interview; and
(b) give written notice of that date, time and
place to the applicant and the other members of the committee.
8.05M Applicant interviews
(1) A committee must interview the applicant as soon as
practicable and, for that purpose:
(a) any member of the committee may participate
in the interview by telephone; and
(b) the applicant may participate in the
interview by telephone.
(2) A member or applicant who participates in an
interview as provided by paragraph (1) (a) or (b) is taken to be present at the
interview.
(3) If the applicant fails to attend, or participate by
telephone in, the interview and does not, within 7 days, give the committee a
reasonable excuse for that failure:
(a) the application is taken to have lapsed; and
(b) the application fee is not refundable.
(4) If an applicant who fails to attend, or participate
by telephone in, an interview gives the committee, within 7 days, a reasonable
excuse for that failure, the committee must arrange another interview date,
time and place.
(5) At an interview, the committee may ask the applicant
any question that the committee reasonably believes to be related to:
(a) the application; or
(b) a reference accompanying the application; or
(c) the issue of whether the applicant has the
qualifications, experience, knowledge and abilities to perform the functions of
a registered trustee.
(6) A committee must not interview an applicant until:
(a) the Inspector‑General has received the
information and documents in relation to the application that are prescribed by
regulation 8.01; and
(b) any charge imposed by an Act for making the
application has been paid.
8.05N Report of committee decision
(1) A report under subsection 155A (6) of the Act must:
(a) be in writing; and
(b) be signed by each member of the committee;
and
(c) in the case of a majority decision —
set out the reasons of the minority member.
(2) The report must be given to the applicant and to the
Inspector‑General within 14 days of the committee making its decision.
Subdivision 4 Other
matters
8.05O Confidentiality
A committee must take all reasonable measures to
protect from unauthorised use or disclosure information given to it in
confidence in, or in connection with, the performance of its functions or the
exercise of its powers under the Act or these Regulations.
8.05P Evidence of proceedings at committee
meetings
In any proceedings, a copy of the minutes of
proceedings at a committee meeting, signed by the Chairperson of the committee:
(a) is evidence of the proceedings as recorded
in the minutes; and
(b) may be tendered in evidence without further
proof.
Division 3 Consent to act, and appointment, as trustee of estate
8.06 Consent to act as trustee — subsection
156A (1) of the Act
(1) A trustee who signs an instrument under subsection
156A (1) of the Act in relation to a debtor must file the instrument with
the Official Receiver as soon as practicable after signing it or, if the Court
makes a sequestration order against the debtor’s estate, not later than 2
working days after the day on which the order is made.
(2) A certificate under subsection 156A (6) of the Act
or under regulation 8.06A may be given in the form of an extract of the Index
setting out the matters required to be shown by the certificate.
Note For the admissibility in
evidence of an extract of the Index, see r. 13.07.
8.06A Certificate of appointment under subsection
156A (3) of the Act
Where a registered trustee becomes, under
subsection 156A (3) of the Act, the trustee of an estate or of joint and
separate estates, the Official Receiver may give the registered trustee a
certificate to that effect.
Division 4 Trustee’s
remuneration
8.07 Fixed remuneration — prescribed rates
under subsections 162 (2) and (3) of the Act
(1) For the purposes of subsection 162 (2) of the Act,
the rate is:
(a) if the moneys received by the trustee do not
exceed $30,000 — 10 percent; or
(b) if the moneys received by the trustee exceed
$30,000 but do not exceed $50,000 — 10 percent in respect of the first
$30,000 and 7.5 percent in respect of the balance of those moneys; or
(c) if the moneys received by the trustee exceed
$50,000 — 10 percent in respect of the first $30,000, 7.5 percent in
respect of the next $20,000 and 5 percent in respect of the balance of those
moneys.
(2) For the purposes of subsection 162 (3) of the Act,
the prescribed rate is 2.5 percent.
8.08 Other remuneration — prescribed rate
under subsection 162 (4) of the Act
For the purposes of subsection 162 (4) of the Act,
the remuneration of a trustee is to be:
(a) in accordance with the scale of charges that
is:
(i) set out in the IPAA Guide to
Hourly Rates published by the Insolvency Practitioners Association of
Australia; and
(ii) applicable to the work to be
remunerated; and
(b) at the level of 85 percent of those charges.
8.09 Taxation
of trustee’s remuneration and
costs — preliminary
(1) Where the trustee of
the estate of a bankrupt claims remuneration under section 162 of the Act, the
bankrupt or a creditor who is dissatisfied with the amount of the claim may, by
notice in writing lodged within 28 days of being notified in writing or
becoming aware of the amount of the claim, request a taxing officer to tax the
claim.
(2) The taxing officer must, promptly after receiving a
request in accordance with subregulation (1), give notice in writing to the
trustee to lodge a detailed bill of costs, in accordance with regulation 8.10,
with the taxing officer within 28 days or such further period as the taxing
officer may, in writing, allow.
(3) On receiving the bill of costs, the taxing officer
must give notice in writing of the date, time and place for the taxation, at
least 5 days before the taxation, to the trustee and the person requesting the
taxation.
(4) Subject to subregulation (5), if the trustee fails
to comply with a notice given under subregulation (2):
(a) the trustee forfeits his or her right to
disbursements and expenses; and
(b) any amount that, apart from this
subregulation, would have been applied as the trustee’s remuneration is to be
applied for the benefit of the creditors.
(5) A trustee who is aggrieved by the operation of
subregulation (4) in respect of his or her claim, or intended claim, for costs
may apply to the Court for relief, and the Court may:
(a) grant such relief; and
(b) grant the relief on such terms, if any;
as it thinks fit.
8.10 Bill
of costs
(1) A bill of costs required under subsection 167 (1) of
the Act or regulation 8.09 must:
(a) be typed or printed on only one side of each
sheet of paper; and
(b) have a margin on the left‑hand side of
each sheet of paper; and
(c) show separately the trustee’s:
(i) professional fees; and
(ii) disbursements and expenses; and
(d) in the case of a detailed bill of costs:
(i) number each item consecutively;
and
(ii) in respect of each item —
specify the date or dates on which the work referred to in the item was done,
or the disbursement or expenditure referred to in the item was made, as the
case may require.
(2) If a bill of costs complies substantially, but not
strictly, with subregulation (1), it is taken, for the purposes of
subregulation (1), to be duly lodged. However, the taxing officer may require
trustee to rectify the bill of costs in accordance with any direction that the
taxing officer thinks fit, and if the trustee defaults the bill ceases to be so
taken.
8.11 Taxation — hearing
(1) The trustee and the person requesting a taxation may
attend, or be represented at, the hearing of the taxation.
(2) At the hearing of the taxation the person requesting
the taxation may object to an item in the bill of costs:
(a) if the person has given notice in writing,
at least 2 clear days before the hearing, of the nature and grounds of the
objection; or
(b) with the leave of the taxing officer —
without having given such notice.
(3) The taxing officer may disallow an item or part of
an item, or reduce the amount of an item or part of an item, if:
(a) he or she considers that:
(i) the amount of the costs or
disbursements in the item is unreasonably high; or
(ii) any of the costs or disbursements
in the item were incurred or made improperly, unreasonably, negligently or
unnecessarily; or
(b) in the case of any disbursements in the
item — they are not proved, to the taxing officer’s satisfaction, by
production of a receipt, voucher or similar document.
(4) The taxing officer must, within 7 days of concluding
the taxation, sign a certificate of taxation and send it to the trustee and the
person requesting the taxation.
(5) An account in respect of the fee for taxation must
be sent to the person requesting the taxation, and the fee is payable by that
person within 7 days of receipt.
(6) In this regulation:
taxation means a taxation of costs for the
purposes of subsection 167 (1) of the Act or regulation 8.09.
8.11A Costs
of taxation
(1) If taxation under regulation 8.09 results in a
reduction of at least 15% in the amount of a claim for remuneration, the
trustee must meet the costs of the taxation.
(2) Except in a case mentioned in subregulation (1), the
person who asks for the taxation under regulation 8.09 must meet the costs of
the taxation.
8.12 Remuneration of trustees — notices
For subsection 162 (6A) of the Act, a trustee must
give the following notices to the bankrupt and creditors:
(a) a notice that includes the basis and the
method on which the trustee seeks to be remunerated, and, if appropriate,
an estimate of the expected level of the trustee’s remuneration;
(b) if the trustee claims remuneration calculated
by reference to an hourly rate — a notice that includes:
(i) the type of work undertaken by the
trustee and the trustee’s staff; and
(ii) the number of hours charged by
each person; and
(iii) the hourly rate charged for each
person; and
(iv) the total remuneration claimed;
(c) a notice advising the bankrupt and creditors
of their right, within 28 days of receiving notice of a trustee’s claim for remuneration,
to request the claim be taxed.
Division 5 Registered trustee ceasing to be trustee of an estate
8.13 Notice
of removal of trustee of estate
(1) This regulation applies in relation to the removal
of a registered trustee if:
(a) the Court removes the trustee, under
subsection 156A (5) or 179 (1) of the Act, from the office of trustee of an
estate; or
(b) the creditors remove the trustee, under
section 181 of the Act, from that office.
(2) In the event of such a removal, the person specified
in paragraph (3) (a) or (b) (as the case requires) must give notice in writing
to the Official Receiver, in accordance with the applicable paragraph, stating
the name of the registered trustee, the fact and the date of the removal and
whether the removal was by the Court or the creditors.
(3) The notice must be given:
(a) where paragraph (1) (a) applies — by
the applicant to the Court for the removal, as soon as practicable after the
making of the order for removal; or
(b) where paragraph (1) (b) applies — by the
new trustee of the estate appointed by the creditors under section 181 of the
Act, as soon as practicable after the appointment.
(4) An offence against this regulation is an offence of
strict liability.
Penalty: 1 penalty unit.
Note For strict liability,
see section 6.1 of the Criminal Code.
8.14 Notice of finalisation of administration;
entry on the Index
(1) A registered trustee must, within 7 days of
finalising the administration of an estate, give notice in writing of the
finalisation to the Official Receiver.
Penalty: 1 penalty unit
(2) The Official Receiver must promptly enter on the Index
the fact that the administration of an estate has been finalised, where:
(a) the Official Receiver receives notice under
subregulation (1); or
(b) the estate was administered by the Official
Trustee.
(3) An offence against
subregulation (1) is an offence of strict liability.
Note For strict liability,
see section 6.1 of the Criminal Code.
Division 6 Variation and termination of registration
Subdivision 1 Preliminary
8.15 Definitions
In this Division, unless the contrary intention
appears:
application means an application under
subsection 155E (1) of the Act.
chairperson means the chairperson of a
committee.
committee means a committee convened under
subsection 155E (4) or 155H (2) of the Act.
member, in relation to a committee, includes
the chairperson.
8.16 Documents to accompany application for
change or removal of conditions
For paragraph 155E (3) (a) of the Act, an
application must be accompanied by 2 references signed by the respective
referees, containing the particulars specified in subregulation 8.01 (3).
Subdivision 2 Constitution and
procedure of committees generally
8.17 Chairperson
of a committee
The chairperson of a committee is:
(a) the Inspector‑General; or
(b) if the Inspector‑General appoints
another member of the committee as chairperson — that person.
8.18 Trustee
chosen by the Insolvency Practitioners Association of Australia
A registered trustee chosen by the Insolvency
Practitioners Association of Australia under paragraph 155E (5) (c) or 155H (3)
(c) of the Act must have practised as a registered trustee for at least 5
years.
8.19 Resignation of chairperson
(1) A chairperson other than the Inspector‑General
may resign the office of chairperson by notice in writing signed by the
chairperson and given to the Inspector‑General.
(2) A notice of resignation takes effect when the
Inspector‑General receives it.
8.20 Resignation of members
(1) A member of a committee, other than the Inspector‑General,
may resign from the committee by notice in writing signed by the member and given
to the Inspector‑General.
(2) A notice of resignation takes effect when the
Inspector‑General receives it.
8.21 Disclosure of interests
If:
(a) a member of a committee convened under
subsection 155E (4) of the Act:
(i) is a close relative of the
applicant; or
(ii) has a financial or personal
relationship with the applicant; or
(b) a member of a committee convened under
subsection 155H (2) of the Act:
(i) is a close relative of the trustee
concerned; or
(ii) has a financial or personal
relationship with the trustee;
the member must, as soon as practicable after becoming aware of the
identity of the applicant or trustee, disclose the nature of the relationship
to the other members of the committee and to the Inspector‑General.
8.22 Removal
of members from a committee
(1) The Inspector‑General may terminate the
appointment of a member of a committee if:
(a) the member becomes physically or mentally
incapable of performing the duties of a member; or
(b) the member becomes a bankrupt; or
(c) the member signs an authority under section
188 of the Act that is effective for the purposes of Part X of the Act; or
(d) the member becomes a party, as a debtor, to a
debt agreement; or
(e) the member has been convicted of an offence
involving fraud or dishonesty; or
(f) the member neglects his or her duty as a
member.
(2) The Inspector‑General may terminate the
appointment of a member of a committee convened under subsection 155E (4) or
155H (2) of the Act if:
(a) the member:
(i) is a close relative of the
applicant, or trustee, concerned; or
(ii) has a financial or personal
relationship with the applicant or trustee; and
(b) the Inspector‑General believes that
relationship may affect the impartiality of the member.
8.23 Convening
of a replacement committee
(1) This regulation applies if:
(a) either of the following events occurs:
(i) a member of a committee resigns or
dies;
(ii) the appointment of a member of a
committee is terminated under regulation 8.22; and
(b) at the time of that occurrence, the committee
has not made a decision under subsection 155F (1) or 155I (1) of the Act.
(2) If this regulation
applies:
(a) the Inspector‑General must convene
another committee (the new committee) in place of the committee
referred to in subregulation (1) (the previous committee); and
(b) the new committee must not have regard to any
proceedings of the previous committee.
8.24 General procedures of a committee
(1) Subject to the Act and this Division, a committee
may determine its procedure.
(2) A committee must observe natural justice.
(3) A committee is not bound by any rules of evidence
but may inform itself on any matter as it sees fit.
(4) A committee must keep a written record of its
decisions.
8.25 Procedure at committee meetings
(1) Subject to this regulation, all members of a
committee must be present in order to constitute a quorum for a meeting of the
committee.
(2) At a meeting of a committee a matter is to be
decided by a majority of the votes of the members.
(3) Any member may participate in a meeting by
telephone.
(4) A member who participates in a meeting by telephone
is taken to be present at the meeting.
(5) A committee may keep minutes of proceedings at its
meetings.
8.26 Resolutions without meeting
(1) If the majority of the members of a committee sign a
document containing a statement that they are in favour of a resolution in the
terms set out in the document, the resolution is taken to have been passed at a
meeting of the committee:
(a) on the day on which the document is signed;
or
(b) if the members sign the document on different
days — on the day on which the document is signed by the member who makes
up the majority.
(2) Two or more separate documents that are identical in
all material respects (apart from signatures), each of which is signed by 1 or
more members, are taken for the purposes of subregulation (1) to constitute a
single document.
Subdivision 3 Inquiries
and interviews
8.27 Inquiries by the committee
(1) A committee considering an application may make inquiries
of any person for the purposes of making a decision under subsection 155F (1)
or 155I (1) of the Act.
(2) Inquiries made must be:
(a) inquiries that are reasonable for the
purpose of making an informed decision; or
(b) inquiries that the Chairperson of the
committee believes are appropriate in order for the committee to have
sufficient information to make the decision.
(3) Before making a decision that is adverse to a
person, a committee must:
(a) inform the person of any information or
material that the committee relies on, or proposes to rely on, in making the
decision; and
(b) give the person a reasonable opportunity to
reply to, or rebut, the information or material.
8.28 Notice of interview (Act s 155E (6))
For subsection 155E (6) of the Act, the Inspector‑General
or authorised employee on the committee must, after consultation with the other
members of the committee:
(a) fix a date, time and place for the
interview; and
(b) give written notice of that date, time and
place to the applicant and the other members of the committee.
8.29 Change of conditions on practising as a
registered trustee — interview
(1) A committee must interview the applicant as soon as
practicable and, for that purpose:
(a) any member of the committee may participate
in the interview by telephone; and
(b) the applicant may participate in the
interview by telephone.
(2) A member, or applicant, who participates in an
interview in accordance with paragraph (1) (a) or (b) is taken to be present at
the interview.
(3) If the applicant fails to attend, or participate by
telephone in, the interview and does not, within 7 days, give the committee a
reasonable excuse for that failure:
(a) the application is taken to have lapsed; and
(b) the application fee is not refundable.
(4) If an applicant who fails to attend, or participate
by telephone in, an interview gives the committee, within 7 days, a reasonable
excuse for that failure, the committee must arrange another interview date,
time and place.
(5) At an interview, the committee may ask the applicant
any question that the committee reasonably believes to be related to:
(a) the application; or
(b) a reference accompanying the application; or
(c) the issue of whether the applicant has the
qualifications, experience, knowledge and abilities to perform the functions of
a registered trustee.
(6) A committee must not interview an applicant until:
(a) the Inspector‑General has received the
references, in relation to the application, mentioned in regulation 8.16; and
(b) any charge imposed by an Act for making the
application has been paid.
8.30 Involuntary termination of
registration — interview
(1) If the Inspector‑General is required under
subsection 155H (2) of the Act to convene a committee to consider whether a trustee
should continue to be registered, the Inspector‑General or authorised
employee on the committee must, after consultation with the other members of
the committee:
(a) fix a date, time and place for the
interview; and
(b) give written notice of that date, time and
place to the trustee and the other members of the committee.
(2) The committee must interview the trustee as soon as
practicable and, for that purpose:
(a) any member of the committee may participate
in the interview by telephone; and
(b) the trustee may participate in the interview
by telephone.
(3) A member, or trustee, who participates in an
interview in accordance with paragraph (1) (a) or (b) is taken to be present at
the interview.
(4) If the trustee fails to attend, or participate by
telephone in, the interview and does not, within 7 days, give the committee a
reasonable excuse for that failure, the committee may proceed with its
consideration of the matter.
(5) If an trustee who fails to attend, or participate by
telephone in, an interview gives the committee, within 7 days, a reasonable
excuse for that failure, the committee must arrange another interview date,
time and place.
8.31 Report
of committee decision
(1) A report under
subsection 155F (2) or 155I (4) of the Act must:
(a) be in writing; and
(b) be signed by each member of the committee;
and
(c) in the case of a majority decision —
set out the reasons of the minority member.
(2) The report must be given to the applicant or
trustee, and to the Inspector‑General, within 14 days of the committee
making its decision.
Subdivision 4 Other
committee‑related matters
8.32 Confidentiality
A committee must take all reasonable measures to
protect from unauthorised use or disclosure information given to it in
confidence in, or in connection with, the performance of its functions or the
exercise of its powers under the Act or these Regulations.
8.33 Evidence of proceedings at committee
meetings
In any proceedings, a copy of the minutes of
proceedings
at a committee meeting, signed by the Chairperson of the committee:
(a) is evidence of the proceedings as recorded
in the minutes; and
(b) may be tendered in evidence without further
proof.
8.34 Time for deciding matters (Act s 155I (1))
A committee must decide a matter under subsection
155I (1) of the Act within 60 days of being convened.
Subdivision 4A Standards for
trustees
8.34A Performance
standards for trustees (including controlling trustees)
(1) For subsection 155H (5) of the Act, the standards
applicable to the exercise of powers, or the carrying out of duties, of
registered trustees are set out in Schedule 4A.
(2) For subsection 188 (2A) of the Act, the standards in
Parts 1, 2 and 5 of Schedule 4A also apply to a solicitor who is a controlling
trustee.
Subdivision 5 Controlling
trustees other than Official Trustee or registered trustees
8.35 Eligibility of controlling trustees, other
than Official Trustee or registered trustees
(1) For subsection 188 (2A) of the Act, a person (other
than the Official Trustee or a registered trustee) is not eligible to act as a
controlling trustee if the person:
(a) is convicted of a criminal offence involving
fraud or dishonesty, or was so convicted within the 10 years before the
proposed authorisation; or
(b) is not insured against the liabilities the
trustee may become subject to as a controlling trustee; or
(c) is a solicitor who no longer holds a
practising certificate; or
(d) is an undischarged bankrupt or insolvent
under administration, or became a party (as debtor) to a debt agreement or a
Part X administration within the 10 years before the proposed authorisation; or
(e) is a person who the Inspector‑General
decides under subregulation (2) has failed to properly exercise powers or carry
out duties or to cooperate with an inquiry or investigation, or in relation to
whom such a decision was made within the 3 years before the proposed authorisation;
or
(f) has not, by 1
December 2006:
(i) become a full member of the
Insolvency Practitioners Association of Australia; or
(ii) satisfactorily completed a course
in insolvency approved by the Inspector‑General.
(1A) The Inspector‑General may approve a course in
insolvency
by notice published on the Insolvency and Trustee Service Australia’s website.
Note Paper copies of the notice are
available from the Insolvency and Trustee Service Australia on request.
(2) In addition to subregulation (1), a person who is,
or has been, a controlling trustee is not eligible to act as a controlling
trustee if the Inspector‑General determines that the person:
(a) has failed to properly exercise the powers,
or carry out the duties, of a controlling trustee, including meeting a standard
applicable to a controlling trustee set out in Schedule 4A; or
(b) has refused, or failed to cooperate with the
Inspector‑ General in an inquiry or investigation under paragraph
12 (1) (b) of the Act.
(3) If the Inspector‑General forms an opinion of
the kind mentioned in paragraph (2) (a) or (b), the Inspector‑General
must:
(a) by written notice, tell the person; and
(b) invite the person to respond within 28 days
or such longer time as is specified in the notice.
(4) After the expiry of the time mentioned in paragraph
(3) (b), the Inspector‑General may, having regard to the response (if
any) of the person, make a determination under subregulation (2).
(5) If the Inspector‑General makes a determination
under subregulation (2), the Inspector‑General must give the person a
written notice of the determination, setting out the reasons.
8.36 Review
by Tribunal of determination under subregulation 8.35 (2)
Application may be made to the Administrative
Appeals Tribunal for a review of a determination of the Inspector‑ General
under subregulation 8.35 (2).
8.37 Official Trustee to perform duties
If a controlling trustee becomes ineligible to act
as a controlling trustee then, unless and until the debtor appoints a
controlling trustee who is eligible to so act, the Official Trustee must
perform the duties of the controlling trustee.
Part 9 Debt
agreements
9.01 Modifications of the Act — meetings of
affected creditors
For the purposes of subsection 185A (2) of the Act,
Division 5 of Part IV of the Act is modified in accordance with Schedule 5 in
relation to any meeting called under paragraph 185A (1) (a) of the Act.
9.02 Information to be included in debt
agreement proposal
A debt agreement proposal must:
(a) mention the costs and fees that are to be
charged for the administration of the debt agreement; and
(b) include a schedule setting out when the costs
and fees are to be taken.
9.03 Administrator’s fee to be paid according to
work done
(1) Payments of costs and fees for the administration of
a debt agreement may be taken in accordance with the schedule mentioned in
regulation 9.02 as administration of the debt agreement is progressively
performed.
(2) Costs and fees must not be taken in advance of work
actually performed.
9.04 Persons ineligible to be debt agreement
administrator
(1) A person is ineligible to act as an administrator if
the person:
(a) is an undischarged bankrupt or insolvent
under administration, or became a party (as debtor) to a debt agreement or a
Part X administration within the 3 years before the proposed appointment; or
(b) is a person whose registration ceases, under
section 155I of the Act, for a reason mentioned in paragraph 155H (1) (a), (b),
(e), (f) or (g) of the Act, or whose registration has ceased for any of those
reasons within 10 years before the proposed appointment; or
(c) is a person who is prohibited, under the
Corporations Act, from taking part in the management of a corporation; or
(d) is a person who is deregistered under the
Corporations Act as a liquidator; or
(e) is a person who is convicted of a criminal
offence involving fraud or dishonesty, or was so convicted within 10 years
before the proposed appointment; or
(f) is a person who the Inspector‑General
determines under subregulation 9.06 (3) has failed to properly carry out duties
or cooperate with an inquiry or investigation, or in relation to whom such a
decision was made within 3 years before the proposed appointment.
(2) If a person is ineligible to act as an
administrator, any company of which the person is a director is also ineligible
to act as an administrator.
(3) Paragraph (1) (a) does not apply to a person
nominated as administrator of a debt agreement proposal in respect of which
that person is the sole debtor.
9.05 Official Trustee to administer agreement
If an administrator of a debt agreement becomes
ineligible to administer the agreement then, unless and until the debtor
appoints an administrator who is eligible to so act, the Official Trustee must administer
the agreement.
9.06 Duties of administrator
(1) In addition to other duties imposed by the Act, an
administrator of a debt agreement must:
(a) keep accounts, books and records that are
necessary to give a full and correct account of the administration of the debt
agreement; and
(b) make those accounts, books and records
available, on request, for inspection by the Inspector‑General; and
(c) if ordered to do so by the Inspector‑General,
answer any inquiries about a debt agreement; and
(d) cooperate with any inquiry or investigation
by the Inspector‑General under paragraph 12 (1) (bb) of the Act; and
(e) deal with property in the manner specified
in the debt agreement; and
(f) if the administrator is to be remunerated under
the debt agreement:
(i) maintain a separate record, in
relation to the debt agreement, of receipts and payments, and of the balance of
money held by the administrator; and
(ii) pay all money received on account
of the debt agreement into a single interest‑bearing bank account that
holds money relating only to debt agreements; and
(iii) at least once every 45 days, reconcile
the balance held in that bank account with the corresponding record maintained
under subparagraph (i).
Note Sections 185Z and 185ZD of the Act
make provision in relation to the remuneration of an administrator (other than
the Official Trustee) of a debt agreement.
(2) If the Inspector‑General forms an opinion that
an administrator may have failed to properly carry out duties or cooperate with
an inquiry or investigation mentioned in subregulation (1), the Inspector‑General
must:
(a) by written notice, tell the administrator;
and
(b) invite the administrator to respond within 28
days, or such longer time as is specified in the notice.
(3) After the expiry of the time mentioned in paragraph
(2) (b),
the Inspector‑General may, having regard to the response
of the administrator (if any), determine whether or not the administrator has
failed to properly carry out duties or cooperate with an inquiry or
investigation.
(4) If the Inspector‑General determines that the
administrator
has failed to properly carry out duties or cooperate with an inquiry or
investigation, the Inspector‑General must give the administrator a
written notice of the determination, setting out the reasons.
9.07 Review by Tribunal of decisions under
subregulation 9.06 (3)
Application may be made to the Administrative
Appeals Tribunal for a review of a determination of the Inspector‑ General
under subregulation 9.06 (3).
9.08 Qualifications
of applicants
For paragraph 186C (2) (e) of the Act,
the following qualifications are prescribed after 30 June 2009:
(a) a Certificate IV in Financial Services
(Accounting) from an Australian college of advanced education;
(b) a degree, diploma or similar qualification
from an Australian university or college of advanced education, or other
Australian tertiary institution, of an equivalent or higher level to the
qualification mentioned in paragraph (a).
Part 10 Personal
insolvency agreements
10.01 Modifications of Part X of the Act —
joint debtors
For section 187A of the Act, a provision of Part X
of the Act specified in Part 1 of Schedule 6 is modified in accordance with
that Part in relation to its application, in accordance with that section, to
joint debtors, whether partners or not.
10.02 Information to be given to debtor (Act ss
188 (2AA) and (2AB))
(1) For subsections 188 (2AA) and (2AB) of the Act, the
following information is prescribed:
(a) information about the consequences of
entering into a personal insolvency agreement;
(b) information about sources of financial advice
and guidance to persons facing or contemplating entering into a personal
insolvency agreement;
(c) information about whether a personal
insolvency agreement may be administered by a registered trustee or the
Official Trustee;
(d) a statement that it is an act of bankruptcy
if a debtor does any of the things mentioned in paragraphs 40 (1) (i) to (m) of
the Act;
(e) information about the processes under Part X
of the Act;
(f) information about a debtor’s rights and
responsibilities under Part X of the Act, including a debtor’s obligation to
disclose all related entities;
(g) information about a controlling trustee’s
obligation to disclose his or her relationship with a debtor.
(2) The information must be factual and objective.
(3) A person authorised under subsection 188 (1) of the
Act to take control of a debtor’s property must not consent to exercise the
powers given by the authority unless the debtor has given the person a signed
acknowledgement (which may be included with or appended to the authority) that
the debtor has received and read the prescribed information.
(4) Subregulation (5) applies if a debtor intending to
sign an authority is unable to properly read the authority, prescribed
information and acknowledgement (the relevant material) because
he or she is:
(a) blind, partially sighted, illiterate or
partially literate; or
(b) insufficiently familiar with the English
language.
(5) The authority and acknowledgement may be signed by
another person if that person signs a statement to the effect that:
(a) if paragraph (4) (a) applies — he or
she has carefully read the relevant material to the debtor; or
(b) if paragraph (4) (b) applies — he or she
has carefully interpreted the relevant material to the debtor in a language
that both persons understand.
10.03 Documents under section 188 of Act
(1) A registered trustee or solicitor who consents to
exercise the powers given by an authority under section 188 of the Act must
sign a consent in accordance with the approved form.
(2) The registered trustee or solicitor must, within 2
working days of consenting, give a copy of the signed consent to the Official
Receiver for the District in which the debtor resides.
Note Under subsection 188 (5) of the Act,
a registered trustee or solicitor who consents to exercise the powers given by
an authority must also give to the Official Receiver for the District in which
the debtor resides, a copy of the authority and the debtor’s statement of
affairs.
10.04 Documents
for meeting called under an authority under section 188 of the Act
At least 10 days before the first meeting of
creditors called under an authority under section 188 of the Act is held, the
controlling trustee must give the Official Receiver for the District in which
the debtor resides, the debtor and each creditor:
(a) notice in writing of the date, time and
place of the meeting; and
(aa) a copy of the proposal, given by the debtor
under subsection 188 (2C) of the Act, for dealing with the debtor’s affairs
under Part X of the Act; and
(b) a copy of the controlling trustee’s report,
prepared in accordance with subsection 189A (1) of the Act, in relation to the
debtor’s affairs; and
(c) a copy of the controlling trustee’s
statement, prepared in accordance with subsection 189B (1) of the Act, in
relation to special resolutions expected to be passed at the meeting; and
(d) a notice that includes the basis and the
method on which the controlling trustee seeks to be remunerated, and, if
appropriate, an estimate of the expected level of the controlling trustee’s
remuneration; and
(e) if the controlling trustee claims
remuneration calculated by reference to an hourly rate — a notice stating:
(i) the type of work undertaken by the
trustee and the trustee’s staff; and
(ii) the number of hours charged by
each person; and
(iii) the hourly rate charged for each
person; and
(iv) the total remuneration claimed; and
(f) a notice informing the debtor and each
creditor of their right, within 28 days of receiving notice of a controlling
trustee’s claim for remuneration, to request that the claim be taxed.
Note Section 194 of the Act sets out the
time for when a meeting that is to be called under an authority under section
188 of the Act must be held.
10.05 Modifications
of Division 5 of Part IV of the
Act — meetings called under authorities under section 188 of the Act
For section 196 of the Act, a provision of Division
5 of Part IV of the Act specified in Part 2 of Schedule 6 is modified in
accordance with that Part in relation to its application, in accordance with
that section, to a meeting called under an authority under section 188 of the
Act.
10.06 Controlling trustee to give Official
Receiver copy of special resolution and certain particulars for the Index
(1) If, at a meeting called under an authority under
section 188 of the Act, a special resolution is passed under subsection 204 (1)
of the Act, the controlling trustee must give to the Official Receiver, within
7 days after the date when the resolution is passed:
(a) a copy of the resolution; and
(b) written notice specifying the following
particulars for entry in the Index:
(i) the date of the resolution;
(ii) in respect of the debtor:
(A) the debtor’s full name,
and any alias;
(B) the debtor’s address;
(C) the debtor’s occupation
(if any);
(iii) if the resolution requires the
debtor to execute a personal insolvency agreement — the name of each
person nominated under subsection 204 (3) of the Act to be a trustee of the
agreement.
Penalty: 1 penalty unit.
(2) An offence against subregulation (1) is an offence
of strict liability.
10.07 Modifications
of Part VIII of the Act — controlling trustees and trustees of personal
insolvency agreements
For section 210 of the Act, a provision of Part
VIII of the Act specified in Part 3 of Schedule 6 is modified in accordance
with that Part in relation to its application, in accordance with that section,
to the controlling trustee in relation to a debtor.
10.08 Modifications
of Division 1 of Part V of the Act — debtors whose property is subject to
control under Division 2 of Part X of the Act
For subsection 211 (1) of the Act, a provision in
Division 1 of Part V of the Act specified in Part 4 of Schedule 6 is modified
in accordance with that Part in relation to its application, in accordance with
that subsection, to a debtor whose property is subject to control under
Division 2 of Part X of the Act.
10.09 Meeting if trustee does not execute personal
insolvency agreement
(1) A meeting of creditors under subsection 217 (1) of
the Act must be called in accordance with a written notice of the meeting that
was given at least 7 days before the meeting to each of the following persons
(other than the person giving the notice):
(a) the debtor;
(b) the trustee required to execute the personal
insolvency agreement;
(c) each creditor whose identity and address are
known to, or can reasonably be discovered by, the person giving the notice.
(2) A notice under subregulation (1) must set out the
terms of any resolution proposed under subsection 217 (1) of the Act that is
known to the person giving the notice.
10.10 Notification
of personal insolvency agreement
A notification under paragraph 218 (1) (a) of the
Act must be in writing.
Note Regulation 16.01 applies to a
notification under paragraph 218 (1) (a) of the Act.
10.11 Sequestration
order, or order terminating or setting aside a personal insolvency
agreement — notice to Official Receiver (Act s 221, s 222 and s 222C)
(1) This regulation does not apply in relation to an
applicant who is the Official Trustee, the Inspector‑General or a person
authorised by the Inspector‑General under subsection 222 (1) or (5) of
the Act.
(2) If the Court makes a sequestration order under
subsection
221 (1), 222 (10) or 222C (5) of the Act, the applicant for the order must give
a copy of the order to the Official Receiver.
(3) If the Court makes an order:
(a) under subsection 222 (1), (2) or (5) of the
Act, setting aside a personal insolvency agreement; or
(b) under subsection 222C (1) of the Act,
terminating a personal insolvency agreement;
the applicant for the order must give a copy of the order to the
Official Receiver.
(4) A copy of an order required by this regulation to be
given to the Official Receiver must be given within 2 days after the order is
made.
Penalty: 1 penalty unit.
(5) An offence against subregulation (4) is an
offence of strict liability.
10.12 Termination
of personal insolvency agreement by trustee (Act s 222A)
(1) If a personal insolvency agreement is terminated in
accordance with section 222A of the Act, the trustee of the agreement must
immediately give written notice of the termination to the Official Receiver.
Penalty: 1 penalty unit.
(2) An offence against subregulation (1) is an offence
of strict liability.
10.13 Modifications of Parts V and VI of the
Act — personal insolvency agreements
(1) For subsection 231 (1) of the Act, the provision
specified in Part 5 of Schedule 6 is modified in accordance with that Part in
relation to its application, in accordance with that subsection, to a debtor
who has executed a personal insolvency agreement.
(2) For subsection 231 (3) of the Act, a provision
specified in
Part 6 of Schedule 6 is modified in accordance with that Part in relation to
its application, in accordance with that subsection, to a personal insolvency
agreement.
(3) For subsection 231 (5) of the Act, the provision
specified in Part 7 of Schedule 6 is modified in accordance with that Part in
relation to its application, in accordance with that subsection, to a trustee
of a personal insolvency agreement.
10.14 Certificate relating to realisation of
divisible property and non‑availability of dividend
(1) If the trustee of a personal insolvency agreement is
satisfied that the divisible property of the debtor has, so far as practicable,
been realised and no dividend is payable to the creditors, the trustee must, on
written request by the debtor, give the debtor a certificate signed by the
trustee to that effect.
(2) The trustee must give the certificate to the debtor
within 7 days of receiving the written request.
(3) In any proceeding, a certificate signed by the
trustee under subregulation (1):
(a) is evidence of the facts stated in it; and
(b) may be tendered in evidence without further
proof.
(4) If the trustee gives a certificate to the debtor
under subsection 232 (1) of the Act or subregulation (1), the trustee must,
within 7 days of giving the certificate, give a copy of the certificate to the
Official Receiver.
Penalty: 1 penalty unit.
(5) An offence against subregulation (4) is an
offence of strict liability.
Part 11 Administration
of estates of deceased persons in bankruptcy
11.01 Statement
of affairs and of administration of estate
A statement under paragraph 246 (1) (a) or
subsection 247 (1) of the Act must state, so far as applicable, the following
particulars:
(a) in relation to the capital account of the
deceased person’s estate:
(i) particulars of each amount
received, including the name of the payer, the date received and the bank
account into which the amount was paid; and
(ii) particulars of each amount paid,
including the name of the payee, the date of payment and the bank account from
which the amount was drawn;
(b) in relation to each of the assets of the
deceased person transferred to beneficiaries — the particulars of the
asset, the date of transfer and the name and address of the relevant
beneficiary;
(c) in relation to the income account of the
deceased person:
(i) particulars of each amount
received, including the name of the payer, the date received and the bank
account into which the amount was paid; and
(ii) particulars of each amount paid,
including the name of the payee, the date of payment and the bank account from
which the amount was drawn;
(d) in relation to each of the unsecured debts
owed by the deceased person:
(i) the name and address of the
creditor and the amount (if any) owed by the creditor to the deceased person;
and
(ii) the amount of the debt; and
(iii) the year when the debt was
contracted; and
(iv) the nature of the debt;
(e) in relation to each of the secured debts
owed by the deceased person:
(i) the name and address of the
creditor and the amount (if any) owed by the creditor to the deceased person;
and
(ii) the amount of the debt and
particulars of the security relating to it; and
(iii) the date when the security was given;
and
(iv) the estimated present value of the
security; and
(v) the estimated deficiency or surplus
if the security were to be realised;
(f) in relation to each of current hire
purchase, credit purchase, lease purchase or similar agreements:
(i) the name and address of the
finance company; and
(ii) the date of the agreement; and
(iii) particulars of the goods to which
the agreement relates; and
(iv) any arrears of payment under the
agreement; and
(v) the amount required to complete the
agreement; and
(vi) the present value of the goods and
the estimated deficiency or surplus if the goods were to be realised;
(g) in relation to any other assets and
liabilities, including contingent assets and liabilities, of the deceased
person’s estate — particulars of each asset and liability, including its
present value.
11.02 Modifications
of the Act — administration of estates of deceased persons
For the purposes of subsections 248 (1) and (3) of
the Act, the provisions specified in Schedule 7 are modified in accordance with
that Schedule in relation to proceedings under Part XI of the Act and the
administration of estates under that Part.
Part 12 Unclaimed
dividends or moneys
12.01 Statement where moneys are paid to the Commonwealth
(1) Where a trustee pays moneys, under subsection 254
(2) of the Act, to the Commonwealth, he or she
must, at the time of payment, give to the officer to whom the moneys are paid a
statement setting out the name and address of:
(a) the trustee; and
(b) the relevant bankrupt, debtor or (subject to
subregulation (2)) deceased person, as the case requires; and
(c) each person who, so far as the trustee is
aware, is entitled to the moneys or any part of the moneys.
(2) For the purposes of paragraph (1) (b), where the
relevant person is a deceased person, the address to be stated is that person’s
address at the date of his or her death.
(3) Where the Official Trustee or Official Receiver, or
a registered trustee, pays moneys, under subsection 254 (2A) of the Act, to the Commonwealth, that person must, at the time
of payment give to the officer to whom the moneys are paid a statement setting
out the name and address of:
(a) the trustee; and
(b) each person who, so far as the Official
Trustee, Official Receiver or registered trustee is aware, is entitled to the
moneys or any part of the moneys.
(4) A registered trustee who gives a statement to an
officer in accordance with subregulation (1) or (3) must, within 7 days, give a
copy of the statement to the Official Receiver.
(5) An offence against subregulation (4) is an offence
of strict liability.
Penalty: 1 penalty unit.
Note For strict liability,
see section 6.1 of the Criminal Code.
Part 13 National
Personal Insolvency Index
Division 1 Preliminary
13.01 Interpretation
In this Part:
BIOS means the electronic database, known as
the Bankruptcy Index Online System, maintained before the commencement date by
Registrars in Bankruptcy.
13.02 Establishment and maintenance of the
National Personal Insolvency Index
(1) For the purposes of the definition of National
Personal Insolvency Index in subsection 5 (1) of the Act, there is
established an electronic index to be known as the National Personal Insolvency
Index.
(2) The Inspector‑General has responsibility for
the operation of the Index.
(3) Each Official Receiver is to maintain the Index on
behalf of the Inspector‑General.
Division 2 Information
to be entered on the Index
13.03 What information is to be entered on the
Index?
(1) Subject to this regulation, the following information
is to be entered on the Index:
(a) in respect of each creditor’s petition,
bankruptcy, debt agreement under Part IX of the Act, personal insolvency
agreement, administration under Part XI of the Act or order under section 253E
of the Act, occurring or made on or after the commencement date —
information of the kind specified in Schedule 8, to the extent applicable;
(b) the information on BIOS in respect of
bankruptcies (including completed bankruptcies);
(c) in respect of each registered trustee or
controlling trustee (other than the Official Trustee):
(i) the trustee’s full name, and any
alias;
(ii) the trustee’s business address
(including, where applicable, the postal address) and telephone number;
(iii) a statement or summary of any
conditions applying to the person’s entitlement to practise as a registered
trustee;
(iv) the date on which details in
respect of the trustee are entered on the Index;
(v) the date (if any) of termination of
the trustee’s registration as a trustee;
(d) in respect of each applicant for registration
as a trustee:
(i) the applicant’s full name, and any
alias;
(ii) the applicant’s business address
(or, if none, his or her residential address);
(iii) the applicant’s occupation;
(iv) the date on which details in
respect of the applicant are entered on the Index;
(e) in respect of each debtor specified in
subregulation (3):
(i) the debtor’s full name, and any
alias;
(ii) the debtor’s address;
(iii) the debtor’s occupation (if any);
(iv) the date on which details in
respect of the debtor are entered on the Index;
(f) information that, under these Regulations,
the Official Receiver:
(i) receives for entry on the Index;
or
(ii) is required to enter on the Index;
(g) information concerning a creditor’s petition
(including details of any orders made in relation to the petition, or the
withdrawal of the petition).
(1A) In relation to a matter mentioned in paragraph (1) (a),
a document described in an item in Schedule 8 must be given to the Official
Receiver by the person mentioned in column 4 of the item within the period
mentioned in column 5 of the item.
(1B) Item 13 of Schedule 8 applies in relation only to a
bankruptcy dated 4 May 2003 or earlier.
(2) Paragraph (1) (a) is taken to apply also to
bankruptcies that:
(a) occurred before the commencement date; and
(b) were not completed before the commencement
date.
(3) For the purposes of paragraph (1) (e), the following
debtors are specified:
(a) a debtor whose property is subject, by
reason of a direction of the Court under paragraph 50 (1) (a) of the Act, to
the control of the Official Trustee or a registered trustee;
(b) a debtor who signed an authority under
subsection 188 (1) of the Act;
(c) subject to subregulation (5), in the case of
a deceased debtor — where a petition for an order for the administration
of the debtor’s estate has been presented under Part XI of the Act;
(d) a debtor who has applied to the Court under
subsection 253E (1) of the Act for an order staying all or any proceedings
under a petition.
(4) In the application of paragraph (3) (c) (concerning
certain deceased debtors) to paragraph (1) (e), the information to be entered
is the information that applied in respect of the debtor immediately before his
or her death.
(5) Subregulation (1) applies subject to:
(a) any decision of the Inspector‑General
under paragraph 13.04 (3) (a); and
(b) any order or direction of the Administrative
Appeals Tribunal on an application under regulation 13.05.
(6) If an entry on the Index contains information that
is, in the opinion of the Official Receiver, in any particular:
(a) contrary to, or inconsistent with, a
decision, order or direction of a kind mentioned in subregulation (5); or
(b) out of date, inaccurate or misleading;
the Official Receiver must correct the entry without delay.
13.04 Application
for certain information not to be on the Index
(1) Subject to subregulation (4), a person who is a
debtor or bankrupt may apply in writing to the Inspector‑General for
information in respect of the person:
(a) not to be entered on the Index, on the
ground that the entry of the information would jeopardise, or be likely to
jeopardise, the person’s safety; or
(b) on the Index to be removed on the ground
that:
(i) its inclusion jeopardises, or is
likely to jeopardise, the person’s safety; or
(ii) it is inaccurate or misleading; or
(c) on the Index to be corrected on the ground
that it is inaccurate or misleading.
Note Under subregulation (4), an
application cannot be made for the removal of information in respect of a
person’s name or date of birth.
(2) The application must specify the ground relied and
contain, or have with it, full particulars in support of the ground.
Example
A person may rely on a court order (such as a domestic
violence order) to show that publication of the information in question would
jeopardise, or be likely to jeopardise, the person’s safety.
(3) The Inspector‑General must, without delay:
(a) decide an application; and
(b) give notice in writing to the applicant of:
(i) the decision and the reasons for
it; and
(ii) the applicant’s right, if
aggrieved by the decision, to apply under regulation 13.05 to the
Administrative Appeals Tribunal for review of the decision.
(4) An application or a decision must not be made under
this regulation to remove from the Index any of the following items of
information in respect of a person:
(a) the person’s name;
(b) the person’s date of birth.
13.05 Application to the AAT
A person who made an application under
subregulation
13.04 (1) and who is aggrieved by a decision under paragraph 13.04 (3) (a) in
respect of the application may apply to the Administrative Appeals Tribunal for
review of the decision.
Division 3 Miscellaneous
13.06 Inspection of the Index
(1) A person may, by application in writing, ask an
Official Receiver to inspect material in the Index and give an extract of
material specified in the application.
(2) On receipt of an
application, the Official Receiver:
(a) if the fee
determined under the 2006 Fees Determination is paid — must inspect the
Index and, within 14 days of receiving the application:
(i) give the requested extract to the
applicant; or
(ii) tell the applicant, in writing,
that the requested extract is not entered in the Index; or
(b) may give the applicant a list of Index search
agents who may be able to inspect material entered in the Index for the
applicant.
(3) A person who has been
granted access to the Index by the Inspector‑General may, after paying
the fee determined under the 2006 Fees Determination:
(a) inspect material entered in the Index; or
(b) obtain an extract of material entered in the
Index.
Example for paragraph (b)
Making notes of information shown on a computer screen, or
obtaining a print‑out of information stored electronically.
(4) However, prior payment is not required under
subregulation (3) if the person has an alternative arrangement with the
Inspector‑General about the method of payment.
Example
An arrangement for payment by bulk billing.
(5) The Inspector‑General
may specify conditions that apply to:
(a) the use of information entered in the Index;
and
(b) the use of an extract of material entered in
the Index.
Note Under regulation 13.09, the
Inspector‑General has control of access to the Index.
13.07 Extract, etc of the Index to be admissible
in evidence
(1) In any proceedings, a document or copy of a document
that qualifies under subregulation (2):
(a) is proof, in the absence of evidence to the
contrary, of information on the Index that is stated in it; and
(b) may be tendered in evidence without further
proof.
(2) A document or copy qualifies if it:
(a) purports (irrespective of the form of
wording used) to be an extract of information on the Index; and
(b) does not appear to the Court to have been revised
or tampered with in a way that affects, or is likely to affect, the
information.
13.08 Immunity from defamation
(1) The Inspector‑General, and any officer acting
at the direction or with the authority of the Inspector‑General, have
immunity from actions for defamation arising out of publication of material in
the Index or publication of extracts of material from the Index.
(2) An officer has
immunity from actions for defamation arising out of publication of material in
the Index or publication of extracts of material from the Index, if the
publication was done:
(a) by an officer acting in the course of his or
her duty; and
(b) in good faith.
(3) A person who provides material for entry in the
Index has immunity from actions for defamation arising out of publication of
the material by way of providing it for such inclusion, publication of the
material in the Index or publication of extracts of the material from the
Index, if the publication was done:
(a) in the performance of a function or duty under
these Regulations or any other law of the Commonwealth; and
(b) in good faith.
(4) Nothing in subregulation (2) or (3) affects by
implication the generality of subregulation (1).
(5) The immunity of the Inspector‑General or
another officer under this regulation arising out of publication of material
extends to the Commonwealth and the Official Trustee to the extent that the
Commonwealth or the Official Trustee would, apart from this subregulation, be
liable in respect of the publication.
(6) Nothing in this regulation affects by implication
any other ground of defence.
13.09 Access to the Index
The Inspector‑General has control of access
to the Index.
13.10 Information extracted from the Index to be
evidence
Information extracted from the Index is evidence,
in the absence of proof to the contrary, of the truth of the information.
Part 14 Offences
under the Act
14.01 Apprehension under a warrant —
notification to Registrar in certain cases
(1) This regulation applies where:
(a) a warrant issued under subsection 264B (1)
of the Act for the apprehension of a person is executed; and
(b) the person executing the warrant considers
that it is impracticable to bring the apprehended person forthwith before the
Court, a Registrar or a magistrate.
(2) Where this regulation applies, the person executing
the warrant must immediately notify a Registrar of the apprehension and of the
date and time when the person considers that it will be practicable to bring
the apprehended person before the Court, a Registrar or a magistrate.
14.02 Registrar to act on notification; direction
to person executing warrant
(1) Where a Registrar receives a notification under
subregulation 14.01 (2), he or she must, without delay:
(a) fix a date, time and place for the apprehended
person to be brought before the Court, a Registrar or a magistrate; and
(b) direct the person who gave the notification
to bring the apprehended person before the Court, a Registrar or a magistrate
accordingly.
(2) The time and date fixed under paragraph (1) (a) must
be the earliest that, in the Registrar’s opinion, are practicable.
(3) A person to whom a direction is given under
paragraph (1) (b) must comply with it.
Part 15A Provisions
relating to the Bankruptcy Charges Acts
15A.01 Interpretation
(1) In this Part:
charge means an interest charge, a
realisations charge or a registration charge.
charge period has the same meaning as in the
Estate Charges Act.
penalty means a late payment penalty.
(2) An expression defined for Part XV of the Act has the
same meaning in this Part.
15A.02 Mode of payment
An amount of charge or penalty may be paid to the
Inspector‑General:
(a) in cash; or
(b) by cheque; or
(c) by any other means (for example, by direct
debit or electronic transfer) that the Inspector‑General approves in
writing.
15A.03 Overpayments to be refunded or offset
The amount of an overpayment by a trustee of a
charge or penalty may be:
(a) refunded to the trustee; or
(b) unless the trustee, by notice in writing to
the Inspector‑General, directs otherwise — offset against an amount
of charge or penalty payable by the trustee.
15A.04 Information
to accompany payment of interest charge
(1) A payment of interest charge by a trustee must have
with it, in the approved form, any information required by the approved form.
(2) Where a payment of interest charge is made by or on
behalf of a trustee by non‑physical means (for example, by direct debit
or electronic transfer), the trustee must without delay give the Inspector‑General
that information.
(3) This regulation does not apply to the Official
Trustee.
15A.05 Information to accompany payment of
realisations charge
(1) A payment of realisations charge by a trustee must
have with it, in the approved form, any information required by the approved
form.
(2) Where a payment of realisations charge is made by or
on behalf of a trustee by non‑physical means (for example, by direct
debit or electronic transfer), the trustee must without delay give the
Inspector‑General that information.
(3) This regulation does not apply to the Official
Trustee.
15A.07 Lodgment of request for remission
A request by a trustee for remission of a charge or
penalty must be in writing and lodged with the Official Receiver for the
District in which the trustee carries on business.
Part 16 Miscellaneous
Division 1 Provisions concerning documents (including inventories)
16.01 Service
of documents
(1) Unless the contrary intention appears, where a
document is required or permitted by the Act or these Regulations to be given
or sent to, or served on, a person (other than a person mentioned in regulation
16.02), the document may be:
(a) sent by post, or by a courier service, to
the person at his or her last‑known address; or
(b) left, in an envelope or similar packaging
marked with the person’s name and any relevant document exchange number, at a
document exchange where the person maintains a document exchange facility; or
(c) left, in an envelope or similar packaging
marked with the person’s name, at the last‑known address of the person;
or
(d) personally delivered to the person; or
(e) sent by facsimile transmission or another
mode of electronic transmission:
(i) to a facility maintained by the
person for receipt of electronically transmitted documents; or
(ii) in such a manner (for example, by
electronic mail) that the document should, in the ordinary course of events, be
received by the person.
(2) A document given or sent to, or served on, a person
in accordance with subregulation (1) is taken, in the absence of proof to the
contrary, to have been received by, or served on, the person:
(a) in the case of service in accordance with
paragraph (1) (a) or (b) — when the document would, in the due course of
post or business practice, as the case requires, be delivered to the person’s
address or document exchange facility; and
(b) in the case of service in accordance with
paragraph (1) (c), (d) or (e) — when the document is left, delivered or
transmitted, as the case requires.
16.02 Documents
for the Inspector‑General, the Official Receiver or the Official Trustee
(1) Unless the contrary intention appears, where a
document is required or permitted by the Act or these Regulations to be given
or sent to, or filed or lodged with, the Inspector‑General, the Official
Receiver or the Official Trustee, the document must:
(a) be posted to, or delivered at:
(i) in the case of a document for the
Inspector‑ General — the office of the Inspector‑General; or
(ii) in the case of a document for the
Official Receiver or the Official Trustee — the office of the Official
Receiver; or
(b) sent by facsimile transmission:
(i) in the case of a document for the
Inspector‑ General — to a facility maintained by the Inspector‑
General for receipt of facsimile transmissions; or
(ii) in the case of a document for the
Official Receiver or the Official Trustee — to a facility maintained by
the Official Receiver for receipt of facsimile transmissions; or
(c) sent by another mode of electronic
transmission (for example, by electronic mail):
(i) in the case of a document for the
Inspector‑ General — to the office of the Inspector‑General;
or
(ii) in the case of a document for the
Official Receiver or the Official Trustee — to the office of the Official
Receiver.
(2) Where subregulation (1) applies, the document is
taken to be received, filed or lodged only when the document (or, where
applicable, a copy of it) is actually received by, or on behalf of, the
Inspector‑General or the Official Receiver (as the case requires).
16.03 Inventory
by trustee taking possession of, or attaching, property
Where, under the Act, a trustee takes possession
of, or attaches, the property of a bankrupt, debtor or deceased person, the
trustee must, as soon as is reasonably practicable:
(a) make, sign and date an inventory of the
property; and
(b) give a copy of the inventory to any person
who has custody of the property or part of the property.
16.03A Document filed by Inspector‑General or
Official Receiver — fee not payable
A fee is not payable by the Inspector‑General
or the Official Receiver in respect of an application to, or the filing of a
document in, the Court.
Division 2 Matters
relevant to fees
Note Divisions 2 and 3 of Part 16 of the
Regulations formerly provided for the fees in relation to the Act (including
remuneration of the Official Trustee). As a result of the amendment of the Act
by the Bankruptcy Legislation Amendment (Fees and Charges) Act 2006, the
remuneration of the Official Trustee and fees in relation to the Act are
now set out in the 2006 Fees Determination.
16.06 Payment of fees
(1) If a fee is payable in respect of:
(a) the making of a request or an application to
an Official Receiver; or
(b) the presentation or lodgment of a document
with an Official Receiver;
the request, application or document must not be dealt with unless
the fee has been paid.
(2) If a fee is payable in respect of the doing of a
matter or thing by an Official Receiver, the matter or thing must not be done
unless the fee has been paid.
(3) However, prior payment of a fee is not required
under subregulation (1) or (2) if the person has an alternative arrangement
with the Inspector‑General about the method of payment.
Example
An arrangement under which fees payable by a registered
trustee are paid monthly in arrears.
16.07 Official Trustee’s entitlement to interim
remuneration
(1) The Official
Trustee’s entitlement to remuneration under the 2006 Fees Determination arises
when the Official Trustee:
(a) performs work or first acts in accordance
with clause 3.03, 3.04, 3.07 or 3.08 of the 2006 Fees Determination; or
(b) is appointed as described in clause 3.06 of
the 2006 Fees Determination; or
(c) first acts in accordance with subclause 3.09
(1) of the 2006 Fees Determination; or
(d) performs work as described in subclause 3.09 (2)
or clause 3.10 of the 2006 Fees Determination.
(2) For paragraph (1) (a),
(b) or (d), remuneration is payable to the Official Trustee in respect of an
amount received by the Official Trustee:
(a) when the amount is received; and
(b) at the rate applicable when the amount is
received.
(3) For paragraph (1) (c),
remuneration is payable to the Official Trustee:
(a) from time to time as the funds are realised;
and
(b) at the rate applicable when the funds are
realised.
16.08 Reimbursement of Official Trustee for
expenses
(1) An amount equal to
the amount of expenses incurred by the Official Trustee, in performing work of
a kind mentioned in clause 3.03, 3.04, 3.08 or 3.09 of the 2006 Fees
Determination in relation to an estate or debtor, is payable to the Official
Trustee:
(a) for work under clause 3.03, 3.08 or 3.09 —
out of the estate; or
(b) for work under clause 3.04 — out of the
composition or scheme of arrangement.
(2) In this regulation:
amount realised has the meaning given by
clause 3.01 of the 2006 Fees Determination.
16.09 Fees — notes and transcript of evidence
For paragraph 81 (17) (b) of the Act, the
prescribed fee is $20.
16.11 Waiver or remission of fees by Inspector‑General
(1) Subject to subregulation (2), the Inspector‑General
may waive or remit the whole or part of any fee.
(2) A fee may only be waived or remitted, whether wholly
or in part, if the Inspector‑General is reasonably satisfied that:
(a) payment of the fee by the person liable to
pay it has imposed, or would impose, undue hardship on the person; or
(b) because of other exceptional circumstances,
it is proper and reasonable to do so.
(3) For paragraph (2) (a), undue hardship means
hardship that is unusual and exceptional in comparison to the hardship arising
in the normal course of bankruptcy.
(4) A decision under subregulation (1) must be notified
in writing to:
(a) the person concerned; and
(b) except where the fee is payable to the
Inspector‑ General — the officer to whom the fee is or, but for the
waiver or remission, would be payable.
(5) In this regulation:
fee means a
fee payable under:
(a) regulation 16.09; or
(b) item 1, 2, 3, 4, 9, 11, 12 or 13 of the table
following subclause 2.01 (1) of the 2006 Fees Determination; or
(c) subclause 2.01 (2) for making copies of, or
taking extracts from, a document mentioned in column 3 of item 1, 2, 3, 4, 11
or 13 of the table following subclause 2.01 (1) of the 2006 Fees Determination;
or
(d) clause 2.02, 2.07 or 2.08 of the 2006 Fees
Determination.
16.12 Review
by AAT of decision of Inspector‑General
Application may be made to the Administrative
Appeals Tribunal for review of a decision of the Inspector‑General under
subregulation 16.11 (1) to refuse to waive or remit the whole or part of a fee that
became payable under a provision or item mentioned in the definition of fee in
regulation 16.11.
Note Under section 27A of the Administrative
Appeals Tribunal Act 1975, the decision‑maker must give any
person whose interests are affected by the decision notice, in writing or
otherwise, of the making of the decision and of the person’s right to have the
decision reviewed. In giving that notice, the decision‑maker must have
regard to the Code of Practice determined under section 27B of that Act (Gazette
No. S 432, 7 December 1994).
Schedule
1 Forms
(regulation 4.02)
Form 1 Bankruptcy Notice
Bankruptcy Act 1966
BANKRUPTCY
NOTICE
This Bankruptcy Notice is prescribed, under
subs. 41 (2) of the Bankruptcy Act 1966 (‘the Act’), by r. 4.02 of the
Bankruptcy Regulations.
Note Words
appearing below in italics are for guidance in the completion of this Notice,
and are not to be reproduced in the Notice.
To: (name)
_____________________________
(‘the
debtor’)
of: (address)
_____________________________
_____________________________
_____________________________
This Bankruptcy Notice is an important
document. You should get legal advice if you are unsure of what to do after you
have read it.
1. (name)
_____________________________
(‘the
creditor’)
of: (address)
_____________________________
_____________________________
_____________________________
claims you owe
the creditor a debt of $ (amount), as shown in the Schedule.
2. The creditor claims that the debt is
due and payable by you. A copy of the judgments or orders relied upon by the
creditor is attached. At the time of applying for this Notice, execution of the
judgments or orders had not been stayed.
3. You are required, within (insert
number in accordance with the note to this paragraph) days after service on
you of this Bankruptcy Notice:
(a) to pay to the creditor the amount of the
debt; or
(b) to make an arrangement to the creditor’s
satisfaction for settlement of the debt.
Note The
number of days to be inserted is 21 or, if an order has been made under
subparagraph 40 (1) (g) (ii) of the Act, the number of days
constituting the time fixed by the order.
4. Payment
of the debt can be made to:
(name)
_____________________________
of: (address)
_____________________________
_____________________________
_____________________________
Note The address
must be within Australia.
5. Bankruptcy
proceedings may be taken against you if, within the time stated in
paragraph 3, above:
(a) you do not comply with the requirements of
either paragraph 3 (a) or paragraph 3 (b) above; and
(b) the Court (that is, the Federal Court of
Australia or the Federal Magistrates Court) does not extend, or is not deemed
to have extended, the time for compliance with this Bankruptcy Notice
(see paragraph 6, below).
6. The Court may extend the time for compliance with this Bankruptcy
Notice if, within the time stated in paragraph 3 above, you apply to the Court
on one or both of the following grounds:
(a) that you have instituted proceedings
to set aside the judgments or orders in respect of which this Bankruptcy Notice
has been issued;
(b) that you have filed with the Court an
application (on one or more grounds, apart from the grounds mentioned in paragraph
7, below) to set aside this Bankruptcy Notice.
7. In
addition, within the time specified in paragraph 3 above, you may file an
application to the Court for an order to set aside this Bankruptcy Notice on
the specific grounds that:
(a) you have a counter‑claim, set‑off
or cross demand equal to or exceeding the sum specified in this Bankruptcy
Notice as owing to the creditor; and
(b) in the action or proceeding in which the judgments
or orders mentioned in paragraph 2 of this Bankruptcy Notice was obtained, you
could not have set up that counter‑claim, set‑off or cross demand*.
* This means
that, because of a legal obstacle, you could not have raised that counter‑claim,
set‑off or cross demand in defence of the creditor’s court action against
you. It is not enough if, for example, you simply neglected or overlooked the
matter.
8. You
should note the following points carefully:
(a) If you file, at the Court, an application
mentioned in paragraph 6 (a) or (b), you must still comply with
this Bankruptcy Notice within the time stated in paragraph 3 above unless the
Court extends the time for you to comply.
(b) If you file, at the Court, an application
mentioned in paragraph 7 (a), you need not comply with this Bankruptcy
Notice until the Court decides whether you have grounds for a counter‑claim,
set‑off or cross demand. Whether you will have to comply at that stage
will depend on the Court’s decision.
WARNING
9. The
information in paragraphs 6, 7 and 8 is based on provisions of section 41 of
the Act. The information is a summary only, and not a complete statement
of the relevant law. It might be unwise to rely solely on this summary. If you
need a more detailed explanation, you should seek legal advice.
Schedule
Column 1
|
Column 2
|
|
1. Amount of judgments or orders
|
|
|
plus
2. Legal costs if ordered to be paid and a
specific amount was not included in the
judgments or orders (see Note 1, below)
|
|
|
plus
3. If claimed in this Bankruptcy Notice,
interest accrued since the date of judgments
or orders (see Note 2, below)
|
|
|
4. Subtotal
|
|
|
less 5. Payments
made and/or credits allowed since
date of judgments or orders
|
|
|
6. Total
debt owing
|
|
(NB: Amounts, where applicable, are to be inserted
in column 2)
–––––––––––––––––––––––––––––––––––––––––––––––––––––––
For the Information
of the Creditor —
Notes to the Schedule
Note 1: Legal
costs (item 2 of the Schedule)
If legal costs are being
claimed in this Bankruptcy Notice, a certificate of taxed or assessed costs in
support of the amount claimed must be attached to this Bankruptcy Notice.
Note 2: Interest
accrued (item 3 of the Schedule)
If interest is being
claimed in this Bankruptcy Notice, details of the calculation of the amount of
interest claimed are to be set out in a document attached to this Bankruptcy
Notice. The document must state:
(a) the provision under which the interest is
being claimed; and
(b) the principal
sum on which, the period for which, and the interest rate or rates at which, the
interest is being claimed.
(NB: If different rates are claimed for different periods, full
details must be shown)
Note 3: Foreign
currency amount conversion (see Bankruptcy Regulations, reg. 4.04.)
Total debt owing, expressed in foreign currency (amount)
Commonwealth Bank of Australia opening telegraphic
transfer rate on __/__/__(date) x (rate)
Australian
dollar equivalent = $ (amount)
(delete Note 3 if not applicable)
For
the Information of the Creditor
Note
about use of information
It may be necessary to disclose some or all of the information provided
by you on this Form to Government agencies and departments for any purpose
under the Act. Also, the information may be included on a public record or
given to other persons, bodies or agencies for purposes authorised by the Act.
_______________________________________________________
The person who applied for this notice to be issued is:
(name)
who confirms by the following
signature that he or she is the creditor/the creditor’s authorised agent *:
(* delete as appropriate)
(signature)
and whose address for service
is:
(address)
Telephone and fax numbers
(including STD
code):
DX number (if
applicable):
FOR OFFICIAL USE ONLY
Dated this (date) day of (month) (year)
This notice was issued by the Official Receiver (or delegate or an
officer authorised by the Official Receiver) for the Bankruptcy District of:
_______________________________________________________
address of
Official Receiver:
_______________________________________________________
_______________________________________________________
_______________________________________________________
(signature or stamp of Official Receiver or delegate
or authorised officer)
Schedule
2 Modifications under section 76A of
the Act — meetings of creditors under Division 6 of Part IV of the Act
(regulation 4.19)
1AA Subsection 64A (2)
substitute
(2) Notice of a meeting:
(a) for the first meeting of creditors —
must be published in a manner approved by the Inspector‑General; and
(b) for any other meeting of creditors —
must be given in a manner specified in the regulations.
1AB After subsection
64A (2)
insert
(3) The notice of the first meeting of creditors must
include any matter approved by the Inspector‑General.
(4) For the purposes of paragraph (2) (a) and without
limiting the power of the Inspector‑General under that paragraph, the
Inspector‑General may:
(a) approve, as the manner of publication of the
notice of the first meeting of creditors, publication on a website; and
(b) specify in the approval:
(i) the website where the notice must
be published; and
(ii) any conditions relating to the
approval.
Example
The Inspector‑General may specify:
(a) the format in which the notice is to be made available;
and
(b) the period of time for which the notice must remain on
the website; and
(c) whether related documents are to be made available for
downloading from the website or in hard copy.
(5) An approval made by the Inspector‑General for
the purposes of paragraph (2) (a) or subsection (3) must be published on the
Insolvency and Trustee Service Australia’s website.
1AC After section 64A
insert
64AA Immunity from
civil actions and proceedings
(1) A civil action or proceeding does not lie against a
person who operates a website, specified in an approval for the purposes of
paragraph 64A (2) (a) or subsection 64A (3), in respect of a publication of a
notice of the first meeting of creditors (or a notice that appears to be a
notice of the first meeting of creditors) if the publication was made in good
faith and without negligence.
(2) Nothing in this section affects by implication any
other ground of defence.
1 Section 64B (Certain matters to be
included in notice of meeting)
1.1 Add at the end:
‘(6) The trustee must
attach to the notice:
(a) the documents referred to in
subsection 73 (2); and
(b) if the meeting is the first meeting
of creditors held during the administration of the estate — a copy of:
(i) the bankrupt’s
statement of affairs; or
(ii) a summary of that
statement.’.
1B After paragraph 64D (aa)
insert
(ab) whether the
creditor, in relation to the debtor, is a related entity; and
2 Section 64E (Notice about voting by
proxy)
2.1 Omit the section,
substitute:
‘64E Notice —
proxy voting and voting on bankrupt’s proposal
‘(1) The trustee must attach to the notice a form
for use in:
(a) appointing a proxy; and
(b) expressing under subsection 73 (5)
the creditor’s assent to, or dissent from, the bankrupt’s proposal.
‘(2) The notice must tell the creditors that if a
creditor wishes to appoint a person to represent the creditor at the meeting as
the creditor’s proxy, the creditor must complete the form of appointment of
proxy and either:
(a) arrange for the proxy to give the
completed form to the trustee before the meeting; or
(b) send the completed form with the
statement given
by the creditor to the trustee in accordance with section 64D.
‘(3) The notice must tell creditors that if a
creditor wishes to use the form to express his or her assent to or dissent from
the bankrupt’s proposal, the creditor must arrange for the form to be given to
the trustee before the meeting.’.
3 Section 64G (Agenda to be set out in
notice of meeting)
3.1 Paragraph 64G (g):
Omit the paragraph, substitute:
‘(g) consideration of the
bankrupt’s proposals for a composition or scheme of arrangement;’.
3.2 Paragraph 64G (k):
Omit the paragraph, substitute:
‘(k) proposal of:
(i) a
special resolution accepting the bankrupt’s proposal for a composition or a
scheme of arrangement; or
(ii) any
other relevant motion;’.
4 Section 64R (Tabling of bankrupt’s
statement of affairs)
4.1 Omit the section,
substitute:
‘64R Provision
of bankrupt’s statement of affairs, bankrupt’s proposal and trustee’s
report
‘(1) The President must then ask whether each
creditor, or representative of a creditor, at the meeting has with him or her a
copy of:
(a) the bankrupt’s proposal; and
(b) the trustee’s report on the
proposal.
‘(2) If the meeting is the first meeting of the
creditors, the President must also ask each creditor or representative whether
the creditor or representative has a copy of the bankrupt’s statement of
affairs with him or her.
‘(3) If a creditor or representative indicates
that he or she does not have a copy of the proposal, the report or the
statement of affairs with him or her, the trustee must give the creditor or
representative, as soon as practicable, a copy of the proposal, report or
statement, as the case requires.
‘(4) If the trustee cannot give a creditor or
representative a copy of the proposal, report or statement of affairs within a
reasonable time, the meeting is to be adjourned to a time and place decided by
the meeting.
‘(5) In this section, a reference to a statement
of affairs is taken to include a reference to a summary of such a statement.’.
5 Section
64S (Statements and questions)
5.1 Subsection 64S (1)
Omit the subsection, substitute:
‘(1) The President must then invite the bankrupt
to make a statement outlining his or her proposal to the meeting.
‘(1A) The President must then ask the trustee to
comment on his or her report on the bankrupt’s proposal.’.
6 Section
64T (Motions)
6.1 Omit the section,
substitute:
‘64T Motions
‘(1) The President must then call for a motion for
a special resolution to approve the bankrupt’s proposal for a composition or
scheme of arrangement.
‘(2) If a motion is:
(a) not proposed; or
(b) proposed but not passed;
the President may close the meeting.’.
7 Section
64U (Remuneration of registered trustee)
7.1 Subsection 64U (1)
Omit the subsection, substitute:
‘(1) If:
(a) a special resolution, accepting the
bankrupt’s proposal, has been passed at the meeting; and
(b) a registered trustee has consented
to be the trustee of the composition or scheme of arrangement; and
(c) the President has told the
creditors and representatives at the meeting that provision for remuneration of
the trustee may be included in the instrument setting out the terms of the
composition or scheme;
the President must then ask the trustee of
the composition or scheme of arrangement to state the basis on which the
trustee wishes to be remunerated.’.
7.2. Subsection
64U (8):
Omit the subsection, substitute:
‘(8) If:
(a) a special resolution, accepting the
bankrupt’s proposal, has been passed at the meeting; and
(b) the trustee of the bankruptcy is a
registered trustee;
the President must ask the trustee to lay
before the meeting a statement of the amount of remuneration drawn by the
trustee from the funds of the bankrupt’s estate before the meeting was held.
‘(9) The trustee must comply with the President’s
request.’.
8 Section
64V (Appointment of committee of inspection)
8.1 Omit the section.
9 Section
64W (Other business)
9.1 Omit the section.
10 Section
64X (Next meeting)
10.1 Omit the section.
10A Before subsection 64Y (1)
insert
(1A) The trustee may adjourn a
meeting to undertake further investigations, in relation to the proposal for
the composition or scheme of arrangement, that the trustee considers necessary.
(1B) The creditors attending the meeting may, by special
resolution, revoke the trustee’s decision to adjourn the meeting.
11 Section 64ZB (Manner of voting)
11.1 After subsection 64ZB (1),
insert:
‘(1A) A creditor may, in a
written vote given to the trustee at least 2 clear days (not including a
Saturday, a Sunday or a public holiday) before the meeting is held, vote on a
special resolution to accept a proposal by a bankrupt for a composition or
scheme of arrangement.’.
11A After
subsection 64ZC (5)
insert
(5A) An instrument
appointing a proxy must include:
(a) a statement
disclosing whether or not the creditor has received, or will receive, a
financial incentive:
(i) to appoint the proxy; or
(ii) to direct the proxy as to the
manner in which the proxy is to vote on a particular matter or matters that may
arise, or on a particular motion or motions that may be proposed, at a meeting
to which the proxy relates; and
(b) if the proxy or creditor has received, or
will receive, a financial incentive in relation to a matter mentioned in
paragraph (a) — a statement specifying the amount of financial incentive
paid or to be paid and the name of the person who paid, or is to pay, the
financial incentive.
12 Section
64ZE (Joint bankruptcies)
12.1 Omit the section.
Schedule
3 Paragraph 109 (1) (a) of the
Act — order of payment of first priority debts
(regulation 6.01)
1. Realisations charges payable under the Bankruptcy
(Estate Charges) Act 1997
1A. If the Official
Trustee transfers the administration of the bankruptcy to a registered trustee:
(a) the remuneration set out in Division 3.2 of
the 2006 Fees Determination that is payable to the Official Trustee; and
(b) the reimbursement set out in regulation 16.08
that is payable to the Official Trustee.
2. Expenses reasonably incurred by or on behalf of the
trustee:
(a) in protecting all or part of the bankrupt’s
assets; or
(b) in carrying on, in accordance with the Act, a
business of the bankrupt; or
(c) by way of an advance made to the trustee of
the bankrupt’s estate for payment of properly incurred expenses of the estate
for any proper purpose (other than remuneration of the trustee)
3. Other fees, costs, charges and expenses payable by
the trustee in administering the bankrupt’s estate
4. Where:
(a) a creditor has deposited an amount in
accordance with an order made under section 50 of the Act; and
(b) the amount, or part of the amount, has been
used for meeting the expenses referred to in that regulation;
the amount, or part of the amount, that has been so used
5. The taxed costs of the petitioning creditor, the
administrator of the estate of a deceased person or the applicant under Part X
of the Act for a sequestration order and, if a petitioning creditor under Part
X of the Act also applied for an order under Division 5 or 6 of Part IX of the
Act, any taxed costs of the creditor in respect of the application*
6. The trustee’s lawful remuneration
7. Where the creditors, or a majority of them, have
approved payment of out‑of‑pocket expenses incurred by a member of
the committee of inspection — those expenses, to the extent that the
trustee of the bankrupt’s estate allows them as being fair and reasonable
8. Costs of any audit carried out under section 175 of
the Act
*Note For the extended application of
item 5, see subregulation 6.01 (2).
Schedule
4 Modifications of the Fringe
Benefits Tax Assessment Act 1986
(regulation 6.12)
1 Section
7 (Car benefits)
1.1 Subsections 7 (1), (2), (3)
and (4):
Omit the subsections, substitute:
‘(1) Where, at any time
on a day, a person:
(a) applies a car held by the person;
or
(b) makes a car held by the person
available;
for the private use of a bankrupt, the
car is taken, for the purposes of this Act, to constitute a benefit provided on
that day by the first‑mentioned person to the bankrupt.’.
2 Section
8 (Exempt car benefits)
2.1 Subsections 8 (1) and (2):
Omit the subsections.
3 Section 9 (Taxable value of car fringe
benefits — statutory formula
3.1 Subparagraphs 9 (2) (c) (i)
and (ii):
Omit the subparagraphs, substitute:
‘(i) for
the first contribution assessment period:
(A) where
the annualised number of whole kilometres travelled by the car during the year
preceding the bankruptcy was more than 40,000 — 0.07; or
(B) where
the annualised number of whole kilometres travelled by the car during the year
preceding the bankruptcy was not more than 40,000 and not less than
25,000 — 0.11; or
(C) where
the annualised number of whole kilometres travelled by the car during the year
preceding the bankruptcy was less than 25,000 and not less than 15,000 —
0.20; or
(D) where
the annualised number of whole kilometres travelled by the car during the year
preceding the bankruptcy was less than 15,000 — 0.26; and
(ii) for each subsequent
contribution assessment period:
(A) where
the annualised number of whole kilometres travelled by the car during the
previous contribution assessment period was more than 40,000 — 0.07; or
(B) where
the annualised number of whole kilometres travelled by the car during the
previous contribution assessment period was not more than 40,000 and not less
than 25,000 — 0.11; or
(C) where
the annualised number of whole kilometres travelled by the car during the
previous contribution assessment period was less than 25,000 and not less than
15,000 — 0.20; or
(D) where
the annualised number of whole kilometres travelled by the car during the
previous contribution assessment period was less than 15,000 — 0.26;’.
3.2 Paragraph 9 (2) (d):
Omit the paragraph,
substitute:
‘(d) the
annualised number of whole kilometres travelled by the car during a
contribution assessment period is:
(i) if records of the
bankrupt show the number of kilometres travelled by the car during the year
preceding that period — that number of kilometres; or
(ii) in any other
case — the number of kilometres worked out in accordance with the
following formula:
;
where:
A is
the number of whole kilometres travelled by the car during the period (in
this subsection referred to as the ‘holding period’) constituting that part of
the contribution assessment period during which the provider held the car; and
B is
the number of days in the contribution assessment period; and
C is
the number of days in the holding period; and’.
3.3 Sub‑subparagraph 9 (2) (e) (ia) (B):
Omit the sub‑subparagraph.
3.4 Subsection 9 (2):
Add at the end:
‘Examples
1. Assessment in the first contribution
assessment period
A car is purchased in June 1994 for Christopher’s use. The
purchase price of the car is $20,000. During the period up to till 30 June
1995, Christopher uses the car on 200 days and travels 10,000 kilometres in
that period. Christopher is declared bankrupt on 1 July 1992. His contribution
to expenses is $300.
The annualised number of kilometres according to the
formula 
is
The figures to be inserted
in the formula for calculating the value of the car benefit are:
A (base value): $20,000;
B (statutory fraction [for 18,250 km.]): 0.20;
C (days when benefit provided): 365;
D (days in contribution assessment period): 365;
E (bankrupt’s contribution): $300.
The value of the car benefit, according to the formula
is:
2. Assessment in
the second contribution assessment period
Suppose that the same car is
provided in the second contribution assessment period for the use of the
bankrupt, and that during the first contribution assessment period the car
travelled 40,000 kilometres. The annualised number of kilometres for the second
contribution assessment period is then 40,000 kilometres. Suppose also that the
bankrupt’s contribution remains $300. All figures will remain the same except
the statutory fraction, which will be 0.11. According to the formula, the value
of the benefit in the second contribution assessment period is:
’.
4 Section 10 (Taxable
value of car fringe benefits — cost basis)
4.1 Omit the section.
5 Section 10A (No reduction of operating
cost in a log book year of tax unless log book records and odometer records are
maintained)
5.1 Omit the section.
6 Section 10B (no
reduction of operating cost in a non‑log book year of tax unless log book
records and odometer records are maintained in log book year of tax)
6.1 Omit the section.
7 Section 10C (Nominated business
percentage to be reduced if it exceeds business percentage established during
applicable log book period or if it is unreasonable)
7.1 Omit the section.
8 Section
11 (Calculation of depreciation and interest)
8.1 Omit the section.
9 Section
12 (Depreciated value)
9.1 Omit the section.
10 Section 13 (Expenditure to be increased
in certain circumstances)
10.1 Subsection 13 (1):
Omit all the words after
‘section 9’.
11 Section 22A (Taxable value of in‑house
expense payment fringe benefits)
11.1 Omit the section.
12 Section 23 (Taxable value of external
expenses payment fringe benefits)
12.1 Omit ‘external’.
13 Section 26 (Taxable value of non‑remote
housing fringe benefits)
13.1 Omit the section, substitute:
‘26 Taxable value of housing fringe benefits
Subject to this Part, the value of a
housing fringe benefit in relation to a contribution assessment period is the
portion of the market value of the recipient’s current housing right that exceeds
the recipient’s rent’.
14 Section 28 (Indexation factor for
valuation purposes — non‑remote housing)
14.1 Omit the section.
15 Section 29 (Taxable value of remote
area accommodation)
15.1 Omit the section.
16 Section
29A (Indexation factor for valuation purposes — remote area accommodation)
16.1 Omit the section.
17 Section 31 (Taxable value of living‑away‑from‑home
allowance fringe benefits)
17.1 Add at the end:
‘(2) For the purposes of
this section, ‘deducted home consumption expenditure’ referred to in the
definition of exempt food component in section 136 to be taken to
be:
(a) in relation to a person of the age
of 12 years or over — $42; and
(b) in relation to a person under the
age of 12 years — $21.
Example: Calculation
of the value of a living‑away‑from‑home allowance.
Assume that a bankrupt living away from his or her family
is given
a living‑away‑from‑home allowance of $220 a week. Of this
amount,
$100 represents reasonable compensation for the costs of accommodation (i.e.
the ‘exempt accommodation component’ is $100), and $80 represents reasonable
compensation for the cost of food.
The remaining $40 is compensation for the disadvantage of
living away from home in a town where facilities that would be available at
home are not available.
Under subsection 31 (2), the exempt food component is $80
minus $42
(i.e. the compensation for increased food cost less the deducted home
consumption expenditure). The value of the benefit is:
’.
18 Section
32: (Airline transport benefits)
18.1 Sub‑subparagraph 32 (b)
(ii) (B):
Omit ‘and’.
18.2 Paragraph 32 (c):
Omit the paragraph.
19 Section
36 (Taxable value of board fringe benefits)
19.1 Omit the section, substitute:
‘36 Taxable value of board fringe benefits
Subject to this Part, the value of a board
fringe benefit is:
(a) in relation to a contribution
assessment period beginning:
(i) on 1 July 1992; or
(ii) during the year
beginning on 1 July 1992;
$1; and
(b) in
relation to a later contribution assessment period — a sum worked out
according to the formula:
where:
CPI is the increase
in the All Groups Consumer Price Index number that is the weighted average of
the 8 capital cities published by the Australian Statistician in respect of the
period that commences on 1 July 1992 and ends immediately before the start of
the financial year in which the contribution assessment period commences.’.
20 Section 37 (Reduction of taxable
value — ‘otherwise deductible’ rule)
20.1 Omit the section.
21 Division
11 of Part III (Property fringe benefits)
21.1 Omit the Division.
22 Section 46 (Year of tax in which
residual benefits taxed)
22.1 Omit the section, substitute:
‘46 Contribution assessment period in which
residual fringe benefits are to be assessed
A residual benefit that is provided during
a period which extends over two or more contribution assessment periods is
subject to assessment for income contribution in each of those periods.’.
23 Section 48 (Taxable value of in‑house
non‑period residual fringe benefits)
23.1 Omit the section.
24 Section 49 (Taxable value of in‑house
period residual fringe benefits)
24.1 Omit the section.
25 Section 50 (Taxable value of external
non‑period residual fringe benefits)
25.1 Omit the section, substitute:
‘50 Value of residual fringe benefits
Subject to this Part, the value of a
residual fringe benefit in relation to a contribution assessment period is the
cost to the provider of providing the benefit, reduced by the amount of the
recipient’s contribution.’.
26 Section 51 (Taxable value of external
period residual fringe benefits)
26.1 Omit the section.
27 Division 14 of Part III (Reduction of
taxable value of miscellaneous fringe benefits)
27.1 Omit the Division.
28 Division 14A of Part III (Amortisation
of taxable value of fringe benefits relating to remote area home ownership
schemes)
28.1 Omit the Division.
29 Division 14B of Part III (Reducible
fringe benefits relating to remote area home ownership repurchase schemes)
29.1 Omit the Division.
30 Section
136 (Interpretation)
30.1 Subsection 136 (1):
Insert the following definition:
‘contribution assessment
period has the meaning given by section 139K of the Bankruptcy Act
1966 as in force from time to time.’.
30.2 Subsection 136 (1)
(definition of family member):
Omit the definition, substitute:
‘family member, in
relation to:
(a) a benefit provided to a employee, or to an
associate of a employee, means:
(i) the employee; or
(ii) the spouse of the employee; or
(iii) a child of the employee; and
(b) a benefit provided to a bankrupt, or to an
associate of a bankrupt, means:
(i) the bankrupt; or
(ii) the spouse of the bankrupt; or
(iii) a child of the bankrupt;’.
30.3 Subsection 136 (1)
(definition of fringe benefit):
Omit the definition, substitute:
‘fringe benefit, in
relation to a bankrupt, in relation to a contribution assessment period, means
a benefit provided at any time during the period by any person to the bankrupt,
other than:
(a) a benefit provided to the bankrupt by his or
her spouse under, or because of a genuine maintenance agreement between the
spouses; or
(b) a benefit provided under a maintenance order,
within the meaning of the Bankruptcy Act 1966 as in force from time to
time; or
(c) the benefit of an order by a court in favour
of the bankrupt in respect of costs of litigation; or
(d) educational expenses paid by any person in
respect of a child of:
(i) the bankrupt; or
(ii) the bankrupt’s spouse; or
(e) the amount of a refund, or part of a refund,
due by the Commissioner to the bankrupt under a law of the Commonwealth, being
an amount that the Commissioner has lawfully offset against a tax liability,
within the meaning of the Taxation Administration Act 1953 as in force
from time to time, of the bankrupt; or
(f) subject to subsection (1A), a benefit of a
kind referred to in paragraphs (f) to (p) (inclusive) of the definition of fringe
benefit in this Act (in its unmodified form) as in force at the
beginning of 1 July 1992; or
(g) support by way of one or both of the
following:
(i) lodging (including any board); or
(ii) occasional use of a motor vehicle
used for domestic purposes;
up to a value of $250 a week, if the
support is provided by a person in the person’s principal place of residence,
and the person is:
(iii) a close relative; or
(iv) a brother or sister (including a
half‑brother, half‑ sister, adoptive brother or adoptive sister);
of the bankrupt.
Note Close
relative, in relation to a person, is defined in section 136 of the Fringe
Benefits Tax Assessment Act 1986 as:
(a) the spouse of the person; or
(b) a child or parent of the person; or
(c) a parent of the person’s spouse.’.
30.4 After subsection 136 (1),
insert:
‘(1A) For the purposes of
paragraph (f) of the definition of fringe benefit in subsection
(1), paragraph (h) of the paragraphs referred to in that paragraph has effect
as if ‘the employee, or by a relative of the employee,’ were omitted and ‘the
bankrupt’ substituted.’.
Schedule
4A Performance standards for trustees
(including controlling trustees)
(regulation 8.34A)
Part 1 Preliminary
1.1 Purpose
(1) This Schedule sets out standards for the minimum
level of acceptable conduct and performance of:
(a) a registered trustee when exercising the
powers, or carrying out the duties, of a registered trustee under the Act; and
(b) a solicitor exercising the powers, or
carrying out the duties, of a controlling trustee under the Act.
Note 1 Subsection 155H (1) of
the Act provides that the Inspector‑General may ask a registered trustee
to give the Inspector‑General a written explanation why the trustee
should continue to be registered, if the Inspector‑General believes that
the trustee has failed to comply with a standard prescribed in Schedule 4A.
Under subsection 155H (2) of the Act, if the Inspector‑General does
not receive an explanation within a reasonable time, or is not satisfied by the
explanation, the Inspector‑General must convene a committee to consider
whether the trustee should continue to be registered. Section 155I of the Act
sets out the committee’s powers when considering whether a trustee should
continue to be registered.
Matters that the Inspector‑General or a committee might
consider include:
(a) the importance of a standard that has not been complied
with; and
(b) the seriousness of the effect of a failure to comply
with a standard, including the impact the failure to comply has on a particular
estate; and
(c) a trustee’s performance history and whether the trustee
has previously failed to comply with a standard.
Note 2 Under paragraph
8.35 (2) (a), the Inspector‑General may determine that a person
who is or has been a controlling trustee is not eligible to act as a
controlling trustee because the person has failed to meet a standard in this
Schedule that applies to a controlling trustee.
(2) The purpose of these
standards is to ensure:
(a) that a person to whom these standards apply
acts at all times in accordance with the person’s powers and duties under the
Act and these Regulations and in relation to the practice of bankruptcy law
generally; and
(b) that an administration to which these
standards apply is carried out consistently at a high level.
1.2 Definitions
In this Schedule:
administration
means:
(a) the administration of the estate of a
bankrupt; or
(b) the administration of a composition or scheme
of arrangement under Division 6 of Part IV of the Act; or
(c) the administration of a personal insolvency
agreement; or
(d) the administration of a debtor’s property
that has become subject to control under Division 2 of Part X of the Act; or
(e) the administration of the estate of a
deceased person under Part XI of the Act.
contribution assessment period, in relation
to a bankrupt, has the meaning given by section 139K of the Act.
contributions liability, in relation to a
bankrupt, means the contribution that a bankrupt is liable to pay in respect of
a contribution assessment period, calculated in accordance with section 139S of
the Act.
controlling trustee means a registered
trustee or a solicitor who is controlling the property of a debtor under an
authority given under section 188 of the Act.
deceased person means a deceased person in
respect of whose estate an order for administration under Part XI of the Act
has been made.
divisible property:
(a) in relation to a bankrupt, means property
divisible among his or her creditors within the meaning of section 116 of the
Act; and
(b) in relation to a debtor, means property
divisible among his or her creditors within the meaning of section 187 of the
Act; and
(c) in relation to a deceased person, means the
divisible property of that person’s estate as defined by subsection
249 (6) of the Act.
Part 2 General standards
Division
2.1 Application
2.1 Application of Part 2
This Part applies to:
(a) the trustee of the estate of a bankrupt; and
(b) the trustee of a composition or scheme of
arrangement under Division 6 of Part IV of the Act; and
(c) the trustee of a personal insolvency
agreement; and
(d) a controlling trustee; and
(e) the trustee of the estate of a deceased
person.
Division
2.2 General
2.2 Duty to act honestly and impartially
(1) The trustee must act honestly and impartially in
relation to each administration, including not signing, or associating himself
or herself with, a document that the trustee knows, or ought reasonably to
know, is false or misleading.
(2) The trustee must not include in any document
prepared by the trustee a clause that disclaims the trustee’s responsibility
for the document’s authenticity.
2.3 Conflict of interest
If, during an administration, it becomes apparent
that the trustee has an actual or potential conflict of interest in relation to
the administration, the trustee must, as soon as practicable after becoming
aware of the conflict of interest:
(a) notify the creditors, the person who
appointed the trustee, a committee of inspection or the court, as appropriate,
of the conflict of interest; and
(b) take appropriate steps to avoid the conflict
of interest.
Examples of conflicts of interest
1. The appointer or, in the case of a sequestration
order, the bankrupt is or was a client of the trustee or the trustee’s firm in
relation to a financial, trust or insolvency planning matter.
2. The trustee or a member of the trustee’s firm is
a personal friend, relative or business associate of the debtor.
2.4 Use of information relating to an
administration
The trustee must comply with section 16A of the Privacy
Act 1988 when dealing with information relating to an administration.
Note Section 16A of the Privacy Act 1988
provides that an organisation must not do an act, or engage in a practice:
(a) that breaches an approved privacy code binding the
organisation; or
(b) to the extent (if any) that the organisation is not
bound by an approved privacy code — that breaches a National Privacy
Principle.
The National Privacy Principles are set out in Schedule 3 to the Privacy
Act 1988.
2.5 Compliance with standards by trustee’s
employees
The trustee must ensure that his or her employees
comply with these standards.
2.6 Preliminary inquiries and actions
The trustee must undertake preliminary inquiries
and actions at the start of each administration, including the following:
(a) informing the bankrupt, debtor or legal
personal representative of the deceased person of his or her obligations under
the Act and the penalties for failing to comply with those obligations;
(b) obtaining and reviewing the statement of
affairs of the bankrupt, debtor or deceased person;
(c) if necessary, interviewing the bankrupt,
debtor or legal personal representative of the deceased person to clarify any
matters in the statement of affairs;
(d) identifying and making an assessment of
realisable assets that could be expected to:
(i) provide, on a cost‑benefit
basis, a return to creditors; or
(ii) contribute to the payment of the
costs and fees of the administration;
(e) assessing a bankrupt’s contributions
liability;
(f) determining the likelihood of whether the
estate of the bankrupt or deceased person, or the property of the debtor,
includes property that can be realised to pay a dividend to creditors;
(g) if the trustee has a genuine reason for
believing that a bankrupt, debtor or legal personal representative of the
deceased person may not have disclosed an interest in real or
other registered property — conducting appropriate searches for such
property;
(h) if information obtained from a search
mentioned in paragraph (g) shows that the bankrupt, debtor or legal
representative of the deceased person has not made full and true disclosure of
his or her interest in property:
(i) making inquiries of third parties about
the information; or
(ii) if further inquiries are not made,
explaining to the creditors why further inquiries were considered
unnecessary;
(i) if the trustee considers that there may
have been antecedent transactions — making inquiries of third parties to
identify those transactions;
(j) cooperating with the Inspector‑General
by, for example, responding to reasonable requests for information.
2.7 Investigation
of matters affecting administration
(1) The trustee must consider the views of creditors regarding
the extent to which investigations are undertaken in an administration.
(2) The trustee must inform creditors, as soon as
practicable, of the outcomes of inquiries undertaken in the administration.
Division
2.3 Assets
2.8 Realising assets
The trustee must realise only those assets:
(a) that will give a cost‑effective return
to creditors; or
(b) that contribute to the payment of the costs
of the administration; or
(c) that may be realised in accordance with a
personal insolvency agreement.
2.9 Ownership or interests in assets
In determining the ownership of, or an interest in,
an asset that is part of divisible property, the trustee must act reasonably
and claim only the amount that fairly represents the interest in, or value of,
the asset.
2.10 Obtaining advice about interest or value
If the value of divisible property is likely to
have a material impact on the administration, the trustee must obtain advice
from an independent expert in assessing:
(a) the extent of the trustee’s interest in any
realisable asset; and
(b) the value of the property or offers for the
property.
2.11 Disposal of property
The trustee must act independently and impartially
in undertaking transactions and dealings relating to the disposal of the
property of a bankrupt, debtor or deceased person.
2.12 Records
If, in an administration, the trustee makes a
decision about
the identification, protection, realisation or write‑off of a significant
asset of a bankrupt, debtor or deceased person that may have a material impact
on the administration, the trustee must:
(a) record the decision in writing; and
(b) keep the record on the trustee’s file for the
administration.
Division
2.4 Remuneration and costs
2.13 Costs incurred to be necessary and
reasonable
In conducting an administration, the trustee must:
(a) incur only those costs that are necessary
and reasonable; and
(b) before deciding whether it is appropriate to
incur a cost, compare the amount of the cost likely to be incurred with the
value and complexity of the administration.
2.14 Receipt of moneys as trustee’s remuneration
(1) If the trustee receives moneys from a debtor,
bankrupt, legal personal representative of a deceased person, creditor or third
party that are intended to cover the trustee’s remuneration, the moneys must
be:
(a) included in the trustee’s remuneration fixed
in accordance with section 162 of the Act; and
(b) properly accounted for in accordance with sections
168 and 169 of the Act.
(2) Subclause (1) does not apply to moneys recovered by
the trustee under subsection 161B (2) of the Act.
2.15 Rate for tasks undertaken by trustee’s
staff
The trustee must ensure that time billed for a task
undertaken in conducting an administration is charged at the appropriate rate for
the level of staff who would be reasonably expected to undertake the task.
2.16 Records
The trustee must ensure that proper records are kept
that:
(a) provide evidence of the time spent on work
done in conducting an administration; and
(b) adequately describe the nature of the work;
and
(c) state whether the trustee has had to recover
moneys under subsection 161B (2) of the Act.
Division
2.5 Files and access to information
2.17 File maintenance
(1) The trustee must keep separate files for each
administration.
(2) The trustee must keep a record of every material
decision in an administration, and any supporting documentation relied on in
relation to the decision, on the file for the administration.
2.18 Provision of information to creditors
(1) This clause applies to:
(a) the trustee of a composition or scheme of
arrangement under Division 6 of Part IV of the Act; and
(b) the trustee of a personal insolvency
agreement; and
(c) the trustee of the estate of a deceased
person.
(2) The trustee and the trustee’s staff must give
information about an administration to a creditor who reasonably requests it.
Division
2.6 Meetings of creditors
2.19 Need for meeting
The
trustee must consider whether the matters sought to be addressed at a meeting
of creditors:
(a) require the holding of a meeting; or
(b) could be addressed more cost effectively by
another form of communication with creditors, for example, a creditors’
resolution without a meeting in accordance with section 64ZBA of the Act.
2.20 Matters to be considered when holding a
meeting
In deciding whether the proposed time and place for
a meeting of creditors is convenient for the creditors, the trustee must
consider the following:
(a) the requirements for meetings set out in the
Act and these Regulations;
(b) the location of creditors;
(c) the ability of creditors to return proxies
and statements of debt;
(d) the complexity of issues to be considered by
creditors before the meeting.
2.21 Attendance at meeting
The trustee, or a person appointed under subsection
63B (1) of the Act to represent the trustee at a meeting of creditors,
must attend the meeting.
2.22 President’s duties at creditors’ meeting
(1) This clause applies to the following persons:
(a) a trustee who is elected to preside at a
meeting of creditors;
(b) a person appointed under subsection 63B (1)
of the Act to represent the trustee at a meeting of creditors;
(c) a controlling trustee presiding at a meeting
of creditors.
(2) The person must:
(a) ensure that proper meeting procedures are
followed; and
(b) ensure that the requirements relating to
meetings set out in the Act and these Regulations are complied with; and
(c) ensure that all persons attending the
meeting who are entitled to ask questions of the trustee, the bankrupt, the
debtor or the legal personal representative of the deceased person are given an
opportunity to do so; and
(d) ensure that the minutes secretary complies
with the requirements of section 64Z of the Act; and
(e) take reasonable steps to establish whether
there is sufficient evidence to support a creditor’s statement under section
64D of the Act in relation to the amount of liability of the bankrupt, the
debtor or the estate of the deceased person to the creditor.
2.23 Attendance of Inspector–General at meetings
The trustee must not prevent the Inspector‑General
from attending, or participating in, a meeting of creditors.
Division 2.7 Trustee’s accounts
2.24 Records of
accounts
(1) The trustee must maintain a separate record of
receipts and payments for each administration.
(2) If a single bank account is kept for 2 or more administrations,
the trustee must collectively reconcile the records for the individual
administrations with the bank records each month.
2.25 Verifying
payments and transfers
The trustee must verify all payments from an
administration, and transfers between estates, by reference to appropriate
supporting vouchers and original documents kept on the administration file.
2.26 Cash book
The trustee must regularly reconcile the cash book for
an administration with the bank records for the administration, in accordance
with the amount of activity in relation to the administration.
Part 3 Standards for trustees other than controlling trustees
Division 3.1 Application
3.1 Application of
Part 3
This Part applies to:
(a) the trustee of the estate of a bankrupt; and
(b) the trustee of a personal insolvency
agreement; and
(c) the trustee of the estate of a deceased
person.
Division
3.2 Reporting to creditors
3.2 Notification of administration
The notice given by the trustee to the creditors of
a bankrupt, debtor or deceased person must include the following information:
(a) the name, date of birth, address and
occupation of the bankrupt, debtor or legal personal representative of the
deceased person;
(b) the business name or name of any associated
entity or related entity of the bankrupt, debtor or deceased person;
(c) the date and type of administration;
(d) an outline of matters investigated by the
trustee up to the date of the notification;
(e) advice about any possible contributions
liability of the bankrupt;
(f) any matters the trustee has identified as
needing further investigation.
Division 3.3 Creditors’
claims
3.3 Provable
debts in a joint administration
In conducting an administration in relation to
joint bankrupts or debtors, the trustee must ensure that a debt is proved
in the appropriate estate.
3.4 Evidence relating to proof of debt
The trustee must ensure that each creditor’s claim
or proof of debt in relation to an administration bears evidence of:
(a) its admission or rejection; and
(b) the reason for its admission or rejection;
and
(c) the amount for which the claim or proof of
debt has been admitted.
3.5 Evidence of liability for debt
(1) If necessary, the trustee must ask a creditor to
give evidence in writing in relation to a debt claimed by the
creditor:
(a) to establish the liability of a bankrupt, a
debtor or the estate of a deceased person for the debt; or
(b) to identify the estate or property against
which the claim should be admitted.
(2) If the trustee considers that evidence given under
subclause (1) is insufficient for the purposes of paragraph (1) (a) or (b), the
trustee, before asking for further information, must have regard to the
expected dividend rate and the materiality of the issue requiring
clarification.
(3) The trustee must keep a copy of any evidence or
information relied on in deciding, for the purposes of voting or distributing
dividends, whether to accept or reject the creditor’s claim.
Division 3.4 Distribution
of dividends
3.6 Creditors’
views to be considered
The trustee must consider the views of creditors in
relation to whether moneys held by the trustee should be:
(a) applied to conduct further investigations in
relation to the administration; or
(b) distributed as a dividend.
3.7 Distribution of estate funds
(1) The trustee must distribute estate funds in a timely
manner, having regard to:
(a) the complexity of the administration and the
claims of creditors; and
(b) the amount of funds available for
distribution; and
(c) the need to retain funds in the estate or
property to meet existing or expected commitments.
(2) The trustee must make an interim distribution of
dividends to creditors unless an existing or expected commitment is likely to
account for a significant level of the available funds from the estate or
property.
3.8 Advice relating to dividends and
administration
The trustee must, when distributing dividends to
the creditors of a bankrupt, a debtor or the estate of a deceased person,
advise creditors about whether:
(a) further dividends are expected to be
distributed; or
(b) the administration is finalised.
3.9 Records
The trustee must keep a record of the following
information for each administration:
(a) the name of each creditor who received a
dividend;
(b) the amount of each admitted claim;
(c) the amount of dividend paid to each
creditor.
Part 4 Standards for trustees of bankrupt estates
Division
4.1 Application
4.1 Application of Part 4
This Part applies to:
(a) the trustee of the estate of a bankrupt; and
(b) the trustee of the estate of a deceased
person.
Division
4.2 Assets
4.2 Identifying assets for vesting
The trustee must take appropriate steps to identify
the assets of the estate of a bankrupt or deceased person that will vest in the
trustee, including the following:
(a) obtaining and reviewing the statement of
affairs of the bankrupt or deceased person;
(b) considering the size of the deficiency in the
estate for the purpose of finding possible assets or determining whether an
issue needs to be investigated;
(c) considering the activities and circumstances
of the bankrupt or deceased person to decide whether assets disclosed by the
bankrupt or the legal representative of the deceased person are consistent with
what would be expected of a bankrupt having a similar background or undertaking
a similar activity;
(d) if the bankrupt is or was, or the deceased
person was, involved in significant corporate or trust activity — making
inquiries of third parties (for example, solicitors, accountants, creditors,
associated entities and financial institutions) to establish whether there is
any divisible property or antecedent transactions.
4.3 Protecting
certain assets
The trustee must
take appropriate steps to protect assets with a commercial value that have
vested in him or her, including doing any or all of the following:
(a) ensuring that the assets are adequately
insured;
(b) taking possession of the assets;
(c) perfecting legal ownership of the assets.
Division
4.3 Contributions
4.4 Application of Division 4.3
This Division applies to the trustee of the estate
of a bankrupt.
4.5 Income and contribution assessment
(1) The trustee must, as soon as possible after all
necessary information has been made available, make an assessment of:
(a) the income of a bankrupt in respect of a
contribution assessment period; and
(b) the contribution that the bankrupt is liable
to pay.
(2) The trustee must:
(a) act fairly and reasonably in determining the
time for payment of contributions liability; and
(b) if full payment within the contribution
assessment period or before discharge would cause hardship to the bankrupt,
consider giving the bankrupt an extension of the time for payment of
contributions liability.
(3) The trustee must give the bankrupt a copy of the
assessment of income and contributions liability, setting out and explaining
the basis on which the amount of any contributions liability has been
calculated.
4.6 Monitoring
payment of contributions
The trustee must:
(a) monitor the payment of contributions by a
bankrupt to ensure the contributions liability is discharged; and
(b) if necessary, take appropriate steps to recover
contributions that remain unpaid after the time for payment has passed.
Part 5 Standards for controlling trustees
5.1 Application of Part 5
This Part applies to a controlling trustee.
5.2 Notification of administration
The notice given by the controlling trustee to the
creditors of the debtor must include the debtor’s name, date of birth, address
and occupation.
5.3 Investigating debtor’s property and
income
(1) As soon as practicable after an authority under
section 188 of the Act becomes effective, the controlling trustee must conduct
appropriate investigations of the debtor’s property and income.
(2) If the debtor’s property includes significant real
estate, company structures or motor vehicles, the controlling trustee must:
(a) search the appropriate registries for
information about the property; and
(b) obtain advice from an independent expert
about the value of the property.
(3) If the debtor was or is involved in significant
corporate or trust activity, the controlling trustee must take appropriate
steps
to identify the assets of the debtor that will be subject
to the personal insolvency agreement, including making inquiries of third
parties (for example, solicitors, accountants, creditors, associated entities
and financial institutions) to establish whether there is any divisible
property or antecedent transactions.
5.4 Report
to creditors
The controlling trustee’s report under section 189A
of the Act must also include the following:
(a) information about each matter mentioned in subsection
188A (2) of the Act;
(b) the basis on which the debtor’s property has
been valued;
(c) the kind of investigations the controlling
trustee has carried out and whether any other matters need to be investigated;
(d) the reasons for the controlling trustee’s
opinion about whether creditors’ interests would be better served by accepting
the debtor’s proposal for dealing with the debtor’s affairs under Part X of the
Act or by the bankruptcy of the debtor.
5.5 Records
The controlling trustee must ensure that:
(a) bank accounts maintained in accordance with
sections 168 and 169 of the Act; and
(b) records maintained in accordance with section
173 of the Act in respect of all transactions relating to the debtor’s
property;
are kept separate from records relating to any later administration
that takes place in relation to the debtor.
5.6 Voting
at creditors’ meeting
In deciding whether a creditor is entitled to vote
at a meeting of creditors, the controlling trustee must:
(a) have regard to the merits of the creditor’s
claim; and
(b) act impartially and independently, without
regard to the debtor’s wishes.
Schedule
5 Modifications under section 185A of
the Act — meetings to consider proposals relating to debt agreements
(regulation 9.01)
1 Section
63A (Definitions):
1.1 Subsection 63A (1) (definition of joint
bankruptcy):
Omit the definition.
1.2 Subsection 63A (1) (definition of meeting):
Omit all the words after ‘creditors’ (first
occurring).
1.3 Subsection 63A (1) (definition of minutes
secretary):
Omit the definition.
2 Section
63B (Trustee’s representative)
2.1 After subsection 63B (1),
insert:
‘(1A) For the purposes of
subsection (1), the trustee may, by signed writing, delegate the trustee’s
power to conduct meetings to a particular person or to a class of persons.’.
3 Section
64 (Trustee to convene meetings)
3.1 Omit the
section, substitute:
‘64 Notice of meeting called under section 185A
‘(1) If the trustee calls a meeting of affected
creditors to consider a proposal relating to a debt agreement, the trustee must
give at least 5 working days’ notice of the proposed meeting to the affected
creditors known to the trustee.
‘(2) The notice must set out the date on which,
and time and place at which, the meeting is to be held.
‘(3) An affected creditor who receives notice of a
meeting may give notice to the trustee, so that the notice is received by the
trustee at least 2 working days before the date of the meeting, that the time
or place of the meeting is not convenient to the affected creditor.
‘(4) If the trustee receives notice that the time,
date or place of a proposed meeting is not convenient to a majority of the
affected creditors, the trustee must:
(a) immediately notify the affected
creditors to whom notice of the proposed meeting has been given that the
meeting has been postponed; and
(b) at the same time, or as soon as
practicable afterwards, give notice to the affected creditors known to the
trustee of a proposed meeting at another time or place, or both.
‘(5) Where the trustee gives a notice under
paragraph (4) (b):
(a) the trustee must comply with
subsection (1); and
(b) subsections (2) and (3) apply in
relation to the notice.
‘(6) Notice under this section may be given:
(a) in any case — in writing or by
electronic transmission; or
(b) in the case of notice under
subsection (3) or paragraph (4) (a) — orally (in person or by
telephone).’.
4 Section 64A (Persons to whom notice of
meeting is to be given)
4.1 Omit the section,
substitute:
‘64A References to ‘notice’
In the following provisions of this
Subdivision, a reference to a notice is taken to be a reference to a notice
under subsection 64 (1) or paragraph 64 (4) (b).’.
5 Section 64B (Certain
matters to be included in notice of meeting)
5.1 Subsections 64B (3) and (4):
Omit the subsections,
substitute:
‘(3) The notice must
include:
(a) a statement of the purpose of the
meeting; and
(b) a summary of the debt agreement
proposal, variation proposal or termination proposal, as the case requires.’.
6 Section 64G (Agenda to be set out in
notice of meeting)
6.1 Omit the section,
substitute:
‘64G Agenda
The trustee must make a written agenda
available to each of the affected creditors at the meeting.’.
7 Section
64K (Opening of meeting)
7.1 Subsection 64K (1):
Omit all the words after
‘meeting’.
8 Section
64L (Appointment of minutes secretary)
8.1 Omit the section,
substitute:
‘64L Proceedings to be recorded
The trustee must ensure that an accurate
record in writing is made of the proceedings (including voting) at the
meeting.’.
9 Section
64N (Quorum)
9.1 Subsection 64N (7):
After ‘63B (1)’, insert ‘or (1A)’.
10 Section 64P (Election of person to
preside at meeting)
10.1 Omit the section.
11 Section
64Q (Whether holding of meeting is convenient to majority of
creditors)
11.1 Omit the section.
12 Section
64R (Tabling of bankrupt’s statement of affairs)
12.1 Subsection 64R (1):
Omit all the words from and including ‘the
President’, substitute ‘the trustee must:
(a) lay the debtor’s statement of affairs and
debt agreement proposal before the meeting; and
(b) explain the proposal to the affected
creditors at the meeting.’.
12.2 Subsection 64R (2):
Omit ‘statement of affairs,’, substitute ‘statement
of affairs, or a summary of it, and the debt agreement proposal,’.
13 Section
64S (Statements and questions)
13.1 Omit ‘President’ (wherever
occurring), substitute ‘trustee’.
14 Section
64T (Motions)
14.1 Omit ‘President’, substitute
‘trustee’.
15 Section
64U (Remuneration of registered trustee)
15.1 Omit the section, substitute:
‘64U Remuneration of trustee
Remuneration to the trustee or other person
is payable only in accordance with the debt agreement.’.
16 Section 64V (Appointment of committee
of inspection)
16.1 Omit the section.
17 Section
64W (Other business)
17.1 Omit the section.
18 Section
64X (Next meeting)
18.1 Omit the section.
19 Section
64Y (Adjournment of meeting)
19.1 Paragraph 64Y (1) (b):
Omit the paragraph, substitute:
‘(b) without limiting the
application of paragraph (a), any matters required to be dealt with at the
original meeting and not dealt with are to be dealt with at the adjourned
meeting.’.
19.2 Subsection 64Y (2):
Omit ‘64A (2).’, substitute ‘64 (1).’.
20 Section
64Z (Duties of minutes secretary)
20.1 Omit the section.
21 Section
64ZA (Entitlement to vote)
21.1 Paragraph 64ZA (1) (a):
Omit the paragraph.
21.2 Subsection 64ZA (7):
Omit the subsection.
22 Section 64ZB (Manner of voting)
22.1 Subsection 64ZB (4):
Omit ‘trustee, the President or the minutes
secretary.’, substitute ‘trustee.’.
22.2 Subparagraphs 64ZB (7) (b) (i), (ii) and (v):
Omit ‘President’, substitute ‘trustee’.
Schedule
6 Modifications in relation to Part X
of the Act
(regulations 10.01, 10.05, 10.07, 10.08 and 10.13)
Part 1 Modifications of Part X of the Act — joint debtors
1 Section
187A
omit
This Part
insert
(1) This Part
2 Section
187A
insert
(2) In the application of this Part (other than
subsection 187 (1A)) to joint debtors, whether partners or not, an expression
specified in one of the following rules of interpretation applies to the extent
that the context reasonably permits:
(a) ‘a debtor’ is to be read as ‘joint debtors’;
(b) ‘the debtor’ is to be read as ‘the joint
debtors’;
(c) ‘the debtor’s’ is to be read as ‘the joint
debtors’;
(d) if used in relation to a debtor:
(i) ‘he or she’ is to be read as
‘they’; and
(ii) ‘his or her’ is to be read as
‘their’; and
(iii) ‘him or her’ is to be read as
‘them’; and
(iv) a noun or verb in the singular form
is to be read as being in the plural form.
(3) Subsection (2) applies, subject to any specific
modifications of this Part by the Bankruptcy Regulations 1996.
(4) To the extent that the context reasonably permits, a
reference (by operation of subsection (2)) to joint debtors includes a
reference to any of the joint debtors.
(5) A reference to the affairs, or examinable affairs,
of a debtor includes a reference to the separate affairs, or separate
examinable affairs, of a joint debtor.
3 Subsection
188 (1)
omit
A debtor
insert
If each joint debtor is a person
4 Subsection
188 (1)
before
may sign
insert
the joint debtors
5 Subsections
188 (2AA) and (2AB)
omit
the debtor
insert
each joint debtor
6 Subsection
188 (2C)
omit the second occurrence of
the debtor
insert
each joint debtor
7 Subsection
188 (2D)
omit the second occurrence of
the debtor
insert
each joint debtor
8 Subsection
188 (4)
before
debtor
insert
joint
9 Subsection
188 (5)
omit
the District in which the
insert
the District in which each joint
10 Paragraphs
188A (2) (a) and (c)
omit
the debtor’s
insert
each joint debtor’s
11 Paragraph
188A (2) (e)
omit
the debtor
insert
each joint debtor
12 Paragraph
188A (2) (l)
omit
the debtor
insert
each joint debtor
13 Subsection
189AB (1)
omit
(1) When the debtor’s property becomes subject to
control under this Division, the debtor’s property is charged with:
insert
(1) When the property of joint debtors becomes charged
under this Division, the charges specified in subsection (1A) are created with
respect to:
14 After
subsection 189AB (1)
insert
(1A) The charges are:
(a) a charge over the joint property of the
joint debtors; and
(b) a separate charge over the separate property
of each joint debtor.
15 Subsection
189AB (2)
omit
the charge is not affected
insert
none of the charges is affected
16 Subsections
189AB (3) and (4)
omit
The charge
insert
Each charge
17 Paragraph 189A (1) (a)
substitute
(a) summarising and commenting on the
information about:
(i) the joint estates of the joint
debtors; and
(ii) the separate estate of each joint
debtor;
that is available to the controlling
trustee; and
Part 2 Modifications of Division 5 of Part IV of the Act —
meetings called under authorities under section 188 of the Act
1 Subsection
63A (1), definition of joint bankruptcy, subparagraph (d) (ii)
omit
jointly.
insert
jointly; or
2 Subsection
63A (1), definition of joint bankruptcy, after paragraph (d)
insert
(e) the situation arising out of the signing, by
joint debtors for the purposes of section 188, of a joint authority or separate
authorities for the administration of their joint estate.
3 Subsection
64A (2)
substitute
(2) Notice of a meeting:
(a) for the first meeting of creditors —
must be published in a manner approved by the Inspector‑General; and
(b) for any other meeting of creditors —
must be given in a manner specified in the regulations.
3A After subsection 64A (2)
insert
(3) The notice of the first meeting of creditors must
include any matter approved by the Inspector‑General.
(4) For the purposes of paragraph (2) (a) and
without limiting the power of the Inspector‑General under that paragraph,
the Inspector‑General may:
(a) approve, as the manner of publication of the
notice of the first meeting of creditors, publication on a website; and
(b) specify in the approval:
(i) the website where the notice must
be published; and
(ii) any conditions relating to the
approval.
Example
The Inspector‑General
may specify:
(a) the format in which the notice is to be made available;
and
(b) the period of time for which the notice must remain on
the website; and
(c) whether related documents are to be made available for
downloading from the website or in hard copy.
(5) An approval made by the Inspector‑General for
the purposes of paragraph (2) (a) or subsection (3) must be published on the
Insolvency and Trustee Service Australia’s website.
3B After
section 64A
insert
64AA Immunity
from civil actions and proceedings
(1) A civil action or proceeding does not lie against a
person who operates a website, specified in an approval for the purposes of
paragraph 64A (2) (a) or subsection 64A (3), in respect of a publication of a
notice of the first meeting of creditors (or a notice that appears to be a
notice of the first meeting of creditors) if the publication was made in good faith
and without negligence.
(2) Nothing in this section affects by implication any
other ground of defence.
4 After subsection 64B (5)
insert
(6) If the meeting is the first meeting of creditors
called under an authority given under section 188, the notice must
state that an information sheet about Part X, dealing with the following
matters, may be obtained from the Insolvency and Trustee Service Australia:
(a) meetings under Part X;
(b) controlling trustees;
(c) the administration of an authority under
section 188;
(d) the application of Part X to an authority
under section 188;
(e) personal insolvency agreements;
(f) the rights of creditors under Part X.
5 After
paragraph 64D (aa)
insert
(ab) whether the creditor, in relation to the
debtor, is a related entity; and
6 Paragraph
64G (g)
substitute
(g) if the meeting is the first meeting —
tabling of the following documents:
(i) the statement of affairs, and the
proposal for dealing with them, required by subsection 188 (2C) or (2D);
(ii) the report by the controlling
trustee required by section 189A;
(iii) the written statement by the
controlling trustee required by section 189B;
7 Section
64P, heading
substitute
64P Controlling
trustee to preside at meeting under section 188
8 Subsections
64P (1) and (2)
substitute
(1) Subject to subsection (2), the controlling trustee
must preside at a meeting called under an authority under section 188.
(2) The creditors and their representatives may:
(a) vote to remove the controlling trustee as
President; and
(b) nominate another person to preside at the
meeting.
9 Subsection
64P (6)
omit each mention of
the trustee
insert
the controlling trustee
10 Subsection
64P (7)
omit
the trustee
insert
the controlling trustee
11 Subsection
64R (1)
substitute
(1) If the meeting is the first meeting, the President
must then request the controlling trustee to lay before the meeting the
documents specified in paragraph 64G (g), and the controlling trustee must
comply with the request.
12 Subsection
64R (2)
omit
the statement of affairs,
insert
those documents,
13 Subsection
64U (1)
substitute
(1) At the first meeting called under an authority under
section 188 that is attended by:
(a) the controlling trustee; or
(b) if the creditors have passed a special
resolution under paragraph 204 (1) (b) — the trustee of a personal
insolvency agreement;
the President must ask the trustee to state the basis on which he
or she wishes to be remunerated.
14 Before
subsection 64Y (1)
insert
(1A) The controlling trustee may adjourn a meeting to
undertake further investigations, in relation to the controlling trusteeship,
that the controlling trustee considers necessary.
(1B) The creditors attending the meeting may, by special
resolution, revoke the trustee’s decision to adjourn the meeting.
15 After
subsection 64ZC (5)
insert
(5A) An instrument
appointing a proxy must include:
(a) a statement
disclosing whether or not the creditor has received, or will receive, a
financial incentive:
(i) to appoint the proxy; or
(ii) to direct the proxy as to the
manner in which the proxy is to vote on a particular matter or matters that may
arise, or on a particular motion or motions that may be proposed, at a meeting
to which the proxy relates; and
(b) if the proxy or creditor has received, or will
receive, a financial incentive in relation to a matter mentioned in paragraph (a) —
a statement specifying the amount of financial incentive paid or to be paid and
the name of the person who paid, or is to pay, the financial incentive.
16 After
subsection 64ZE (2)
insert
(3) This section applies in relation to a personal
insolvency agreement only if:
(a) a joint estate forms part of the property
that is to be dealt with under the agreement; and
(b) the agreement does not specifically provide
for distribution of the joint estate.
Part 3 Modifications of Part VIII of the Act — controlling
trustees and trustees of personal insolvency agreements
1 Before
Part VIII, Division 1
insert in Part VIII
Division 1A Interpretation
154AA Interpretation
In this Part, in its application to Part X, a
reference to a registered trustee includes a reference to a controlling trustee
and a trustee of a personal insolvency agreement.
2 Section
156A
omit
3 Subsection
157 (1)
substitute
(1) If:
(a) the Official Trustee is:
(i) under section 188 or 192, the
controlling trustee in relation to a debtor; or
(ii) under Part X, the trustee of a
personal insolvency agreement; and
(b) the creditors wish to appoint, in place of
the Official Trustee:
(i) a registered trustee or a
solicitor as the controlling trustee; or
(ii) a registered trustee as the
trustee of the personal insolvency agreement;
the creditors may do so by resolution at a meeting of creditors.
4 Section
158
substitute
158 Appointment
of more than 1 controlling trustee
The creditors may appoint 2 or more controlling
trustees jointly, or jointly and severally.
5 Section
159
omit
6 Section
160
substitute
160 Vacancy
in position of trustee — Official Trustee to act
If at any time there is no controlling trustee in
relation to a debtor, or no trustee of a personal insolvency agreement under
Part X, the Official Trustee is to act as the trustee.
7 After
subsection 161 (1)
insert
(1A) This section does not apply in relation to a trustee
of a personal insolvency agreement.
8 Subsection 173 (1)
substitute
(1) A controlling trustee who has consented to exercise
powers given by an authority under section 188 must keep such accounts and
records as are necessary to exhibit a full and correct account of the debtor’s
affairs and must permit a creditor:
(a) to inspect, at all reasonable times, either
personally or by an agent, the accounts and records relating to the controlling
trusteeship; and
(b) to take a copy of those accounts and records.
Penalty: 5 penalty
units.
9 Section
180
omit
trustee of an estate.
insert
trustee, other than controlling trustee, under Part X.
10 Section
181
substitute
181 Removal of trustee
The creditors may, by resolution, at a meeting of
which at least 7 days notice has been given, remove a controlling trustee or
the trustee of a personal insolvency agreement and may, at that meeting or a
later meeting, appoint another trustee to replace the removed trustee.
11 Subsection
181A (1)
substitute
(1) The current controlling trustee or the current
trustee of a personal insolvency agreement may, with the written consent of
another trustee (either a registered trustee or the Official Trustee), nominate
the other trustee as the new trustee.
12 Subsection
181A (4)
substitute
(4) If no creditor lodges a written notice of objection
with the current trustee at least 2 days before the specified date, the new
trustee replaces the current trustee on the date specified in the notice.
Part 4 Modifications of Division 1 of Part V of the Act —
debtors whose property is subject to control under Division 2 of Part X of the
Act
1 Section
77F
substitute
77F Allowances and expenses to be
paid out of debtor’s property subject to control under Division 2 of Part X
If the evidence that a person gives, or the books
that a person produces, under section 77C, relate to matters concerning
the property of a debtor that is subject to control under Division 2 of Part X,
any amount payable to the person under section 77D or 77E is to be paid out of
that property.
2 Subsection
81 (1)
substitute
(1) Where a person (in this section called the
relevant person) becomes a debtor whose property is subject to control
under Division 2 of Part X, the Court or a Registrar may at any time (whether
before or after control over that property has ended), on the application of:
(a) a person (in this section called a creditor)
who has or
had a debt that would be provable if the debtor were a bankrupt;
(b) the controlling trustee; or
(c) the Official Receiver;
summon the relevant person for examination in relation to the
property that is subject to control under Division 2 of Part X.
Part 5 Modification under subsection 231 (1) of the
Act — personal insolvency agreements
1 Section
77F
substitute
77F Allowances
and expenses to be paid out of debtor’s property subject to personal insolvency
agreement
If the evidence that a person gives, or the books
that a person produces, under section 77C, relate to matters concerning the
property of a debtor that is subject to a personal insolvency agreement, any
amount payable to the person under section 77D or 77E is to be paid out of that
property.
Part 6 Modifications under subsection 231 (3) of the
Act — personal insolvency agreements
1 Subsection
113 (1)
omit
presentation of a petition on which, or by virtue of the
presentation of which, a person became a bankrupt,
insert
making of a sequestration order,
2 Subsection 113 (1)
omit
or, in the case of a debtor’s petition, the presentation of the
petition
3 After
subsection 133 (13)
insert
(14) This section does not apply in relation to a personal
insolvency agreement.
4 After
paragraph 134 (1) (b)
insert
(ba) carry on a business of the debtor in
accordance with an authorisation given under subsection (5);
5 After
subsection 134 (4)
insert
(5) If a personal insolvency agreement provides for the
business of the debtor to be assigned to the trustee, the agreement may:
(a) authorise the trustee to carry on a business
of a debtor; and
(b) specify the period during which, and the
conditions (if any) subject to which, the trustee may carry on the business.
(6) The creditors may vary or terminate an authority
under subsection (5) by passing a special resolution to that effect at a
meeting called for the purpose.
(7) This section extends only in relation to property of
the debtor that is subject to the personal insolvency agreement.
6 Subsection
136 (1)
omit
Where any property of the bankrupt is subject to a
mortgage,
insert
Where any property of the debtor that is subject to
the personal insolvency agreement is also subject to a mortgage,
7 Subsection
137 (1)
omit
Where goods of a bankrupt
insert
Where goods of a debtor that are subject to a
personal insolvency agreement
8 Paragraphs
138 (1) (a) and (b)
substitute
(a) the property of a debtor that is subject to
a personal insolvency agreement includes rights in respect of industrial
property; and
(b) the debtor is liable to pay royalties or a
share of profits to a person in respect of those rights;
9 Paragraph
138 (1) (c)
omit
the bankrupt;
insert
the debtor;
10 Paragraph
138 (1) (d)
omit
the bankrupt
insert
the debtor
11 Paragraphs 139 (1) (a) and
(b)
substitute
(a) the trustee has seized or disposed of any
goods in the possession or on the premises of a debtor that are subject to a
personal insolvency agreement without notice of any claim by any person in
respect of those goods; and
(b) the goods were not, at the date of execution
of the personal insolvency agreement, the property of the debtor;
12 Subsection
139 (2)
omit everything after
in respect of property
insert
that is subject to the personal insolvency agreement, being rates,
land tax or municipal or other statutory charges that fall due on or after the
date of execution of the personal insolvency agreement, except to the extent,
if any, of the rents and profits received by the trustee in respect of that
property on or after the date of execution of the personal insolvency
agreement.
13 Subsection
139 (3)
substitute
(3) Where the trustee of a personal insolvency agreement
carries on a business previously carried on by the debtor, the trustee is not
personally liable for any payment in respect of long service leave or extended
leave:
(a) for which the debtor was liable; or
(b) to which a person employed by the trustee in
his or her capacity as trustee of the personal insolvency agreement, or the
legal personal representative of such a person, becomes entitled after the date
of execution of the personal insolvency agreement.
14 Subsection 139 (4)
omit
trustee of the estate of a bankrupt
insert
trustee of a personal insolvency agreement
15 Section
139ZJ
omit
In this Subdivision:
insert
(1) In this Subdivision:
16 Section
139ZJ
insert
(2) In sections 139ZK, 139ZL and 139ZP, a reference to a
bankrupt is to be read as a reference to a debtor.
(3) In subsection (2):
debtor means a person who has executed a
personal insolvency agreement.
17 Paragraphs
139ZK (1) (e) and (f)
omit
bankruptcy,
insert
personal insolvency agreement,
18 Subsection
139ZL (1)
omit everything before paragraph (a),
insert
(1) If a debtor is liable to pay a specified amount of
his or her income to the trustee in accordance with a personal insolvency
agreement, the Official Receiver:
19 Subsection
139ZL (1)
omit
make the contribution.
insert
pay that amount.
20 Paragraphs
139ZL (3) (a) and (b)
omit
the contribution
insert
the amount of income
21 Subsection
139ZQ (1)
omit
bankrupt under Division 3,
insert
personal insolvency agreement because of the application of any of
sections 120 to 125,
22 Subsection
139ZR (3)
omit
Division 3.
insert
any of sections 120 to 125.
Part 7 Modification under subsection 231 (5) of the
Act — trustees of personal insolvency agreements
1 Subsection 173 (1)
substitute
(1) The trustee of a personal insolvency agreement must
keep such accounts and records as are necessary to exhibit a full and correct
account of the administration of the agreement and must permit a creditor of
the debtor:
(a) to inspect, at all reasonable times, either
personally or by an agent, the accounts and records relating to the personal
insolvency agreement; and
(b) to take a copy of those accounts and records.
Penalty: 5 penalty units.
Schedule
7 Modifications under Part XI of the
Act — administration of estates of deceased persons
(regulation 11.02)
1 Section
49 (Change of petitioners):
1.1 Omit ‘debtor’, substitute ‘deceased debtor’s estate’.
2 Section
50 (Taking control of debtor’s property before sequestration)
2.1 Subsection 50 (1):
Omit ‘debtor, but before the debtor becomes’,
substitute ‘debtor who dies after presentation of a creditor’s petition but
before becoming’.
2.2 Paragraph 50 (1) (a):
Omit ‘debtor’s property;’, substitute ‘deceased
debtor’s estate;’.
2.3 Paragraph 50 (1) (b):
Omit ‘property.’, substitute ‘estate.’.
2.4 Paragraph 50 (1A) (c):
Omit ‘debtor’, substitute ‘deceased debtor’s legal
personal representative’.
2.5 Subsection 50 (1B):
Omit ‘debtor’s property’, insert ‘deceased debtor’s
estate’.
2.6 Subsection 50 (2):
Omit ‘debtor’ (first occurring), substitute ‘legal
personal representative of the deceased debtor’.
2.7 Subsection 50 (2):
Before ‘debtor’ (second and third occurring),
insert ‘deceased debtor’.
2.8 Subsection 50 (3):
Omit ‘debtor and the debtor’s’, substitute
‘deceased debtor and the debtor’s’.
2.9 Subsection 50 (4):
Before ‘debtor’ (twice occurring) and ‘debtor’s’,
insert ‘deceased’.
2.10 Paragraph 50 (5) (a):
Omit ‘a sequestration order had been made against
the debtor’, insert ‘an order had been made for the administration of the
estate of the deceased debtor’.
2.11 Paragraph 50 (5) (c):
Omit ‘debtor’s bankruptcy if a sequestration’,
substitute ‘administration of the deceased debtor’s estate if an’.
2.12 Section 50:
Add at the end:
‘(6) In this section:
legal personal
representative, in relation to a deceased debtor, means:
(a) the executor under the deceased
debtor’s will; or
(b) the administrator under letters of
administration or court order;
of the deceased debtor’s estate, or a
part of that estate.’.
3 Section
63A (Definitions)
3. Insert the following
definition:
‘legal personal
representative, in relation to a deceased person, means:
(a) the executor under the deceased person’s
will; or
(b) the administrator under letters of
administration or court order;
of the deceased person’s estate, or a part of that
estate;’
4 Section 64A (Persons to whom notice of
meeting to be given)
4.1 Paragraph 64A (1) (a):
Omit ‘the bankrupt has told the trustee,’,
substitute ‘before his or her death the deceased person had told the trustee,’.
5 Section 64B (Certain matters to be
included in notice of meeting)
5.1 Subsection 64B (1):
Before ‘place’, insert ‘former’.
6 Section 64G (Agenda to be set out in
notice of meeting)
6.1 Paragraphs 64G (a) and (i):
Omit ‘bankrupt;’, substitute ‘legal personal
representative of the deceased person;’.
7 Section
64J (Preparation of attendance record)
7.1 Subsection 64J (3):
Omit ‘bankrupt’, substitute ‘legal personal
representative of the deceased person’.
8 Section
64K (Opening of meeting)
8.1 Subsection 64K (2):
Omit ‘bankrupt’ (first occurring), substitute
‘legal personal representative of the deceased person’.
8.2 Subsections 64K (2):
Omit ‘the bankrupt.’ (second occurring), substitute
‘the legal personal representative.’.
8.3 Subsections 64K (3) and (6):
Omit ‘the bankrupt’ (wherever occurring),
substitute ‘the legal personal representative’.
9 Section
64L (Appointment of minutes secretary)
9.1 Subsection 64L (2):
Omit ‘bankrupt’, substitute ‘legal personal
representative of the deceased person’.
10 Section 64P (Election of person to
preside at meeting)
10.1 Subsection 64P (2):
Omit ‘bankrupt’, substitute ‘legal personal
representative of the deceased person’.
11 Section
64S (Statements and questions)
11.1 Subsection 64S (2):
Omit ‘bankrupt’ (first occurring), substitute
‘legal personal representative of the deceased person’.
11.2 Subsection 64S (2):
Omit ‘the bankrupt.’ (second occurring), substitute
‘the legal personal representative.’.
11.3 Subsection 64S (3):
Omit ‘bankrupt’, substitute ‘legal personal
representative’.
12 Section 64Z (Duties of minutes
secretary)
12.1 Paragraph
64Z (5) (d):
Omit ‘bankrupt,’, substitute ‘legal personal
representative of the deceased person,’.
13 Section
64ZC (Appointment of proxies)
13.1 Subsection 64ZC (6):
Omit ‘bankrupt’ (first occurring), substitute
‘legal personal representative of the deceased person’.
13.2 Subsection 64ZC (6):
Omit ‘the bankrupt’ (second occurring), substitute
‘the legal personal representative’.
14 Section
73 (Composition or arrangement)
14.1 Subsection 73 (1):
Omit ‘a bankrupt’, substitute ‘the legal personal
representative of a deceased person’.
14.2 Subsection 73 (1):
Omit ‘his or her’ (wherever occurring), substitute
‘the deceased person’s’.
14.3 Subsection 73 (2A):
Omit ‘bankrupt’s’, substitute ‘deceased person’s’.
14.4 Subsection 73 (3):
Omit ‘bankrupt’, substitute ‘legal person
representative’.
14.5 Section 73:
Add at the end:
‘(6) In this section:
legal personal representative, in relation to
a deceased person, means:
(a) the executor under the deceased person’s
will; or
(b) the administrator under letters of
administration or court order;
of the deceased person’s estate, or a part of that estate.’.
15 Section
74 (Annulment of bankruptcy)
15.1 Omit the section, substitute:
‘74 Annulment of administration
‘(1) A special resolution under subsection 73 (4)
takes effect on the date on which it is passed to annul the administration of
the estate to which it relates.
‘(2) As soon as practicable after that date the
trustee of the estate must give to the Official Receiver a certificate, signed
by the trustee, of the following matters:
(a) the name of the estate;
(b) the number of the administration;
(c) the terms and date of the special
resolution.
‘(3) The Official Receiver must enter those
matters in the official records.’.
16 Section 75 (Effect of composition or
scheme of arrangement)
16. Subsection 75 (2):
Omit the subsection.
16.2 Subparagraphs 75 (4) (b) (i), (ii), (iii) and (iv):
Omit the subparagraphs, substitute:
‘(i) the
creditors or the estate of the deceased person will suffer injustice or undue
delay if the composition or scheme of arrangement proceeds; or
(ii) the approval of the creditors
resulted from a misrepresentation by the legal personal representative; or
(iii) it is desirable that the deceased
person’s:
(A) affairs be investigated;
or
(B) estate be administered;
under this Act; or
(iv) it is likely that the creditors
will receive a greater dividend if the estate is again administered under this
Act;’.
16.3 Subsection 75 (4):
Omit ‘trustee’, substitute ‘trustee, the legal
personal representative’.
16.4 Subsection 75 (6), (7) and (8):
Omit the subsections, substitute:
‘(6) In this section:
legal personal representative, in relation to
a deceased person, means:
(a) the executor under the deceased person’s
will; or
(b) the administrator under letters of
administration or court order;
of the deceased person’s estate, or a part of that estate.’
17 Section
81 (Discovery of bankrupt’s property etc)
17.1 Subsection 81 (1):
Omit the subsection, substitute:
‘(1) At any time during or after the administration under
Part XI of the estate of a deceased person (in this section called ‘the
relevant person’), the Court may, on the application of:
(a) a person (in this section called a ‘creditor’)
who has or had a debt provable in the administration; or
(b) the trustee of the estate; or
(c) the Official Receiver;
summon an examinable person in relation to the estate for
examination in relation to the administration.
‘(1AA) For the purposes of
subsection (1):
examinable person, in relation to an estate
of the relevant person, means:
(a) a person who is believed to be indebted to
the estate; or
(b) a person who may be able to give information
the relevant person or the examinable affairs of the relevant person; or
(c) a person who has possession of books that
may relate to:
(i) the relevant person; or
(ii) the examinable affairs of the
relevant person; or
(iii) the estate; or
(d) the executor under the relevant person’s
will; or
(e) the administrator under letters of
administration or court order;
of the relevant person’s estate, or a part of that estate.’.
17.2 Subsection 81 (1B):
Omit paragraph (b), substitute:
‘(b) relate to:
(i) the relevant person; or
(ii) the examinable affairs of the
relevant person; or
(iii) the estate.’.
17.3 Subsection 81 (11AA):
Omit the subsection.
17.4 Subsection 81 (12):
Before ‘relevant person’ (first occurring), insert
‘estate of the’.
17.5 Subsection 81 (14):
Omit ‘person, other than the relevant person,’,
substitute ‘person’.
18 Section 82 (Debts provable in
bankruptcy)
18.1 Subsection
82 (1):
Omit all the words from and including ‘a bankrupt’
to the end, substitute ‘the estate of a deceased person was subject at the date
of the order for the administration of the estate, or to which the estate may
become subject because of an obligation incurred before that date, are provable
in the administration of the estate.’.
18.2 Subsection 82 (1A):
Omit ‘bankrupt under a maintenance agreement or
maintenance order before the date of the bankruptcy.’, substitute ‘by the
deceased person under a maintenance agreement or maintenance order during the
person’s lifetime and before the date of the order for the administration of
the person’s estate.’.
18.3 Paragraph 82 (8) (b):
Omit ‘discharge of the bankrupt;’, substitute ‘end
of the administration of the deceased person’s estate;’.
19 Section
87 (Deduction of discounts)
19.1 Omit ‘debtor had not become a
bankrupt.’, substitute ‘estate had not become subject to administration under
Part XI.’.
20 Section 88 (Apportionment to principal
and interest of payments made before bankruptcy)
20.1 Omit ‘by a debtor to a
creditor before the debtor became a bankrupt’, substitute:
‘to a creditor by:
(a) the deceased person before his or her death;
or
(b) the deceased person’s estate before the date
of the order for the administration of the estate;’.
21 Section 95 (Proof in respect of
distinct contracts)
21.1 Omit ‘person was, at the time
when he or she became a bankrupt,’, substitute ‘deceased person whose estate is
being administered under Part XI was, at the date of his or her death,’.
22 Section 104 (Appeal against decision of
trustee in respect of proof)
22.1 Subsection 104 (1):
omit
bankrupt
insert
legal personal representative of the bankrupt
22.2 After subsection
104 (1):
insert
‘(1A) An application may be made under subsection (1)
on the grounds that the proof was wrongly admitted.’.
22.2 After subsection 104 (3):
insert
‘(4) In this section:
legal personal representative, for a deceased
person, means:
(a) the executor under the deceased person’s
will; or
(b) the administrator under letters of
administration or court order;
of the deceased person’s estate, or a part of that estate.’.
23 Section
109 (Priority payments)
23.1 Paragraph 109 (1) (a):
After ‘petitioning creditor’, insert ‘or the
trustee of the deceased person’s estate’.
23.2 Paragraph 109 (1) (b):
Omit the paragraph.
24 Section
109A (Debts due to employees)
24.1 Subsection 109A (1):
Omit the subsection, substitute:
‘Where:
(a) a contract of employment with a person who
has since died and whose estate is being administered under Part XI was
subsisting immediately before the date of the person’s death; or
(b) a contract of employment with the trustee, in
his or her capacity as trustee, of an estate that is being administered under
Part XI was subsisting immediately before the date of the order for the
administration;
the employee under the contract is, whether or not the employee is
a person referred to in subsection (2), entitled to payment under section 109
as if the employee’s employment had been terminated:
(c) where paragraph (a) applies:
(i) by the person; and
(ii) on the date;
mentioned in that paragraph; or
(d) where paragraph (b) applies:
(i) by the trustee; and
(ii) on the date;
mentioned in that paragraph.’.
24.2 Subsection 109A (2):
After ‘trustee (twice occurring), insert ‘or legal
personal representative’.
24.3 After subsection 109A
(2), insert:
‘(2A) In
subsection (2):
legal personal
representative, in relation to a deceased person, means:
(a) the executor
under the deceased person’s will; or
(b) the
administrator under letters of administration or court order;
of the deceased person’s estate, or a
part of that estate.’.
25 Section
110 (Application of estates of joint debtors)
25.1 Omit the section.
26 Section 114 (Payment of liabilities etc
incurred under terminated deed etc)
26.1 Omit ‘becomes a bankrupt’,
substitute ‘dies, and his or her estate becomes subject to administration under
Part XI,’.
27 Section
116 (Property divisible among creditors)
27.1 After subsection 116 (1),
insert:
‘(1A) In the application of
this section to Part XI, a reference in subsection (1) to the discharge of a
bankrupt is taken to be a reference to the termination of the administration,
under that Part, of the estate of the deceased person.’.
27.2 Paragraphs 116 (2) (c) and
(ca):
Omit the paragraph.
27.3 Paragraph 116 (2) (g):
Omit the paragraph, substitute:
‘(g) any right of the
estate of the deceased person to recover damages or compensation:
(i) for personal injury (including
injury resulting in death) or wrong done to the deceased person in his or her lifetime;
or
(ii) for personal injury (including
injury resulting in death) or wrong done to the spouse or a member of the
family of the deceased person (whether the injury or wrong was done before or
after the death of the deceased person);
‘(h) any damages or compensation recovered by the
deceased person in his or her lifetime, or by the estate of the deceased
person, in respect of an injury or wrong specified in subparagraph (g) (i) or
(ii);’.
27.4 Subsection 116 (2B):
Omit ‘(c) or (ca),’.
27.5 Subsection 116 (2C):
Omit the subsection.
28 Section
117 (Policies of insurance against liabilities to third parties)
28.1 Paragraph 117 (1) (b):
Omit ‘(whether before or after he or she became a
bankrupt);’, substitute ‘at any time;’.
29 Section 118 (Execution by creditor
against property of debtor who becomes a bankrupt etc)
29.1 Paragraph 118 (1) (i) (a):
Omit ‘the presentation of a petition, or after the
presentation of a petition, against a’, substitute ‘the making of an order
under Part XI, or after the making of such an order, for the administration of
the estate of a deceased’.
29.2 Subparagraph 118 (1) (a)
(ii):
Omit ‘and’.
29.3 Paragraph 118 (1) (b):
Omit the paragraph.
29.4 Subsections 118 (1), (3) and
(4):
Omit ‘bankrupt’ (wherever occurring), substitute
‘debtor’.
29.5 Subsection 118 (3):
Omit ‘bankruptcy’, substitute ‘administration of
the estate’.
29.6 Paragraph 118 (9) (a):
Omit ‘the presentation of a petition, or after the
presentation of a petition, against a’, substitute ‘the making of an order
under Part XI, or after the making of such an order, for the administration of
the estate of a deceased’.
29.7 Subsection 118 (9):
Omit ‘in the bankruptcy.’, substitute ‘of the
estate.’.
29.8 Subsection 118 (10):
Omit ‘debtor,’ (twice occurring), substitute
‘deceased person’s estate’.
29.9 Paragraphs 118 (11) (a) and
(b):
Omit ‘who, after the sale, becomes a bankrupt;’,
substitute ‘who dies and whose estate becomes, or of a deceased person’s estate
that becomes, after the sale, subject to an administration order under Part
XI;’.
29.10 Subsection 118 (11):
Omit ‘of the bankrupt’.
30 Section 119 (Duties of sheriff after
receiving notice of presentation of petition etc)
30.1 Subsection 119 (1):
Omit ‘against a debtor’, substitute ‘for an order
for the administration of a deceased person’s estate’.
30.2 Paragraphs 119 (1) (a) and
(b):
Omit ‘debtor’ (wherever occurring), substitute
‘estate’.
30.3 Subsection 119 (2):
Omit ‘the reference to the Court of a debtor’s
petition against a debtor’, substitute ‘the presentation to the Court of a
petition by a person administering the estate of a deceased person for an order
for the administration of the estate’.
30.4 Paragraphs 119 (2) (a) and
(b):
Omit ‘debtor’ (wherever occurring), substitute
‘estate’.
30.5 Subsection 119 (3):
Omit ‘a creditor’s petition against a debtor has
been given under subsection (1) to a sheriff or notice of the reference to the
Court of a debtor’s petition against a debtor has been given under subsection’,
substitute ‘a petition has been given under subsection (1) or’.
30.6 Subsection 119 (3):
Omit ‘the debtor’ (wherever occurring), substitute
‘the estate’.
30.7 Subsection 119 (4):
Omit ‘against a debtor’, substitute ‘for an order
for the administration of a deceased person’s estate’.
30.8 Paragraphs 119 (4) (a) and
(b):
Omit ‘debtor’ (wherever occurring), substitute
‘estate’.
30.9 Subsection 119 (5):
Omit ‘the reference to the Court of a debtor’s
petition against a debtor’, substitute ‘the presentation to the Court of a
petition by a person administering the estate of a deceased person for an order
for the administration of the estate’.
30.10 Paragraphs 119 (5) (a) and
(b):
Omit ‘debtor’ (wherever occurring), substitute
‘estate’.
30.11 Subsection 119 (6):
Omit ‘against a debtor’, substitute ‘for an order
for the administration of a deceased person’s estate’.
30.12 Subsection 119 (6):
Omit ‘the debtor’ (wherever occurring), substitute
‘the estate’.
30.13 Subsection 119 (7):
Omit ‘a debtor’, substitute ‘a deceased person’s
estate’.
30.14 Subsection 119 (7):
Omit ‘the debtor becomes a bankrupt’, substitute
‘the estate is administered under Part XI’.
31 Section 119A (Duties of sheriff after
receiving notice of bankruptcy etc)
31.1 Subsection 119A (1):
Omit ‘has become a bankrupt’, substitute ‘has died,
and his or her estate has become subject to administration under Part XI,’.
31.2 Subparagraph 119A (1) (a) (i):
Omit ‘bankrupt’,
substitute ‘estate’.
31.3 Subparagraph 119A (1) (a) (ii):
Omit ‘bankrupt’ (first occurring), substitute
‘estate’.
31.4 Subparagraph 119A (1) (a)
(ii):
Omit ‘bankrupt became a bankrupt,’ (twice
occurring), substitute ‘debtor died,’.
31.5 Subparagraph 119A (1) (a)
(ii):
Omit ‘bankrupt’ (third occurring), substitute
‘debtor or estate’.
31.6 Subparagraph 119A (1) (a)
(iii):
Omit ‘bankrupt;’, substitute ‘estate;’.
31.7 Subparagraph 119A (1) (b)
(i):
Omit ‘the bankrupt’ (first and third occurring),
substitute ‘the estate’.
31.8 Subparagraphs 119A (1) (b)
(i) and (ii):
Omit ‘bankrupt became a bankrupt,’, substitute
‘debtor died,’.
31.9 Subparagraph 119A (1) (b)
(ii):
Omit ‘to the bankrupt;’, substitute ‘to the
estate;’.
31.10 Subsection 119A (5):
Omit the subsection.
31.11 Paragraph 119A (6) (a):
Omit ‘bankrupt’, substitute ‘deceased person’.
31.12 Paragraph 119A (6) (b):
Omit ‘bankrupt’, substitute ‘estate’.
31.13 Subsection 119A (7):
Omit ‘a bankrupt’, substitute ‘the estate of a
deceased person’.
32 Section
122 (Avoidance of preferences)
32.1 Subsection 122 (1):
Omit ‘insolvent (the debtor)’,
substitute ‘insolvent and who subsequently dies (the deceased debtor)’.
32.2 Subsection 122 (1):
Omit ‘in the debtor’s bankruptcy’, substitute ‘of
the deceased debtor’s estate being administered under Part XI’.
32.3 Paragraph 122 (1) (b):
Omit the paragraph (including the table),
substitute:
‘(b) was made in the
period beginning 6 months before the presentation of the petition for an order
for the administration of the estate and ending immediately before the date of
the order.’.
32.4 Subsection
122 (1A):
Omit ‘debtor’, substitute ‘deceased debtor before
his or her death’.
32.5 Paragraphs 122 (1A) (a) and
(b):
Before ‘debtor’, insert ‘deceased’.
32.6 Paragraph 122 (1A) (b):
Before ‘debtor’s’, insert ‘deceased’.
32.7 Paragraph 122 (2) (b):
After ‘debtor’, insert ‘or the estate of the
deceased debtor’.
32.8 Subsection 122 (4A):
After ‘debtor’ (twice occurring), insert ‘or the
estate of the deceased debtor’.
33 Section 123 (Protection of certain
transfers of property against relation back etc)
33.1 Subsection 123 (1):
Omit ‘becomes a bankrupt:’, substitute ‘has died,
and his or her estate has become subject to administration under Part XI:’.
33.2 Paragraphs 123 (1) (a), (b)
and (c):
After ‘debtor’ insert ‘before he or she died’.
33.3 Paragraph 123 (1) (e):
Omit ‘before the day on which the debtor became a
bankrupt;’, substitute ‘on or before the day on which the debtor died;’.
33.4 Subsection 123 (4):
Before ‘debtor’, insert ‘deceased’.
33.5 Subsection 123 (4):
Omit ‘became a bankrupt,’, substitute ‘died,’.
33.6 Subsection 123 (6):
Omit ‘a debtor becomes’, substitute ‘a deceased
debtor before his or her death became’.
33.7 Subsection 123 (6):
Before ‘debtor’ (second and third occurring),
insert ‘deceased’.
34 Section 124 (Protection of certain
payments to bankrupt etc)
34.1 Subsection 124 (1):
Omit ‘becomes, or has become, a bankrupt’,
substitute ‘has died, and his or her estate has become subject to administration
under Part XI’.
34.2 Paragraph 124 (1) (a):
After ‘made’, insert ‘on or’.
34.3 Paragraph 124 (1) (a):
Omit ‘becomes a bankrupt’, substitute ‘dies’.
34.4 Paragraph 124 (1) (b):
Omit ‘on or’.
34.5 Paragraph 124 (1) (b):
Omit ‘became a bankrupt’, substitute ‘died’.
35 Section 125 (Certain accounts of
undischarged bankrupt)
35.1 Subsection 125 (1):
Omit ‘an undischarged bankrupt’, substitute
‘deceased and that his or her estate is being administered under Part XI’.
36 Section 126 (Dealings
with undischarged bankrupt in respect of after‑acquired property)
36.1 Omit the section.
37 Section
127 (Limitation of time for making of claims by trustee etc)
37.1 After subsection 127 (1),
insert:
‘(1A) In the application of Part XI to this section, the
reference in subsection (1) to the date on which a person became bankrupt is
taken to be a reference to the date on which administration of a deceased
person’s estate commenced.’.
38 Section 134 (Powers
exercisable at discretion of trustee)
38.1 Paragraph 134 (1) (m):
Omit ‘the bankrupt: (first occurring), substitute
‘the legal personal representative of a deceased person:’.
38.2 Subparagraph 134 (1) (m) (i):
Omit ‘the bankrupt;’, substitute ‘the estate of the
deceased person;’.
38.3 Subparagraph 134 (1) (m)
(ii):
Omit ‘bankrupt’s’ (twice occurring), substitute
‘estate’s’.
38.4 Subparagraph 134 (1) (m)
(iii):
Omit ‘bankrupt;’, substitute ‘estate’.
38.5 Paragraph 134 (1) (m):
Omit ‘bankrupt’s services, make such allowance to
the bankrupt’, substitute ‘services of the legal personal representative of the
deceased person, pay such remuneration to him or her’.
38.6 Paragraphs
134 (1) (n) and (o):
Omit ‘the bankrupt’, substitute ‘the estate of the
deceased person’.
38.7 After subsection 134 (1),
insert:
‘(1AA) In subsection (1):
legal personal
representative, in relation to a deceased person, means:
(a) the executor
under the deceased person’s will; or
(b) the
administrator under letters of administration or court order;
of the deceased person’s estate, or a
part of that estate.’.
38.7 Subsection 134 (1A):
Omit ‘An allowance made to the bankrupt’,
substitute ‘Remuneration paid to the legal personal representative of a
deceased person’.
39 Section 134 (Powers
exercisable at discretion of trustee)
39.1 Paragraphs 134 (1) (b) and
(c):
Omit ‘the bankrupt;’, substitute ‘the estate of the
deceased person;’.
39.2 Paragraph 134 (1) (ma):
Omit the paragraph, substitute:
‘(j) pay such
remuneration out of the estate of the deceased person as he or she thinks fit
to the legal personal representative of the deceased person.’.
39.3 Section 134:
Add at the end:
‘(5) In this section:
legal personal representative, for a deceased
person, means:
(a) the executor under the deceased person’s
will; or
(b) the administrator under letters of
administration or court order;
of the deceased person’s estate, or a part of that estate.’.
40 Section 138 (Limitation on trustee’s
power in respect of copyright, patents etc)
40.1 Paragraph 138 (1) (a):
Omit ‘bankrupt’, substitute ‘estate of a deceased
person’.
40.2 Paragraphs 138 (1) (b), (c)
and (d):
Omit ‘bankrupt’, substitute ‘estate’.
41 Section 139ZL (Official Receiver may
require persons to make payments)
41.1 Subsection 139ZL (6):
Omit ‘bankrupt’, substitute ‘legal personal
representative of the deceased person’.
41.2 After subsection 139ZL (6),
insert:
‘(6A) In subsection (6):
legal personal representative, in relation to
a deceased person, means:
(a) the executor under the deceased person’s
will; or
(b) the administrator under letters of
administration or court order;
of the deceased person’s estate, or a part of that estate.’.
42 Section
139ZQ (Official Receiver may require payment)
42.1 Subsection 139ZQ (5):
Omit ‘bankrupt’, substitute ‘legal personal
representative of the deceased person’.
42.2 After subsection 139ZQ (5),
insert:
‘(5A) In subsection (5):
legal personal representative, in relation to
a deceased person, means:
(a) the executor under the deceased person’s
will; or
(b) the administrator under letters of
administration or court order;
of the deceased person’s estate, or a part of that estate.’.
43 Section 143 (Provision
to be made for creditors residing at a distance etc)
43.1 Paragraph 143 (a):
Omit ‘bankrupt’s statement of’, substitute
‘statement of a deceased person’s’.
44 Section 146 (Distribution of dividends
where bankrupt fails to file statement of affairs)
44.1 Omit ‘a bankrupt’, substitute
‘the legal personal representative of a deceased person’.
44.2 Omit ‘his or her affairs’
(twice occurring), substitute ‘the deceased person’s affairs’.
44.3 Omit ‘bankrupt’ (second
occurring), substitute ‘legal personal representative’.
45 Section
156A (Consent to act as trustee)
45.1 Paragraph 156A (1) (a):
Before ‘debtor’ (first occurring), insert
‘deceased’.
45.2 Paragraphs 156A (1) (a) and
(3) (a):
Omit ‘debtor becomes a bankrupt;’, substitute
‘deceased debtor’s estate is administered under Part XI;’.
45.3 Paragraph
156A (3) (a):
Omit ‘estate of the bankrupt;’, substitute
‘estate;’.
46 Section 161B (Trustee’s
remuneration — minimum entitlement)
46.1 Subsection 161B (2):
Omit the subsection.
47 Section 162 (Trustee’s
remuneration — general)
47.1 Subsection 162 (3):
Omit ‘bankrupt’ (second occurring), substitute
‘legal personal representative of the deceased person’.
47.2 After subsection 162 (3),
insert:
‘(3A) In subsection (3):
legal personal representative, in relation to
a deceased person, means:
(a) the executor under the deceased person’s
will; or
(b) the administrator under letters of
administration or court order;
of the deceased person’s estate, or a part of that estate.’.
48 Section
170 (Trustee to give Official Receiver and bankrupt information etc)
48.1 Subsection 170 (2):
Omit the subsection, substitute:
‘(2) At the request of the legal personal representative
of the deceased person, the trustee must give to the legal personal
representative information reasonably required by the legal personal
representative concerning the affairs of the deceased person.
‘(3) In subsection (2):
legal personal representative, in relation to
a deceased person, means:
(a) the executor under the deceased person’s
will; or
(b) the administrator under letters of
administration or court order;
of the deceased person’s estate, or a part of that estate.’.
Schedule
8 Information on the National Personal
Insolvency Index
(regulation 13.03)
Note References in
this Schedule to sections, subsections and paragraphs are references to those
provisions of the Act.
|
Item No.
|
Provision of the Act
|
Document from which
information may be entered in the Index
|
Person who must give the
document to the Official Receiver
|
Period within which the
document must be provided to the Official Receiver
|
Information to be entered
in the Index
|
|
1
|
Section
50
trustee
to take control of debtor’s property before sequestration
|
court
order
|
applicant
(creditor)
|
as
soon as practicable
|
· date of order
· particulars of debtor
·
date when trustee’s control ends
(subsection
50 (1B))
|
|
2
|
Sections 43 and 47
creditor’s
petition
|
creditor’s petition and verifying affidavit
(subsections 47 (1) and (1A))
|
petitioning
creditor
|
within
3 working days
|
· date of petition
· particulars of debtor
· name of petitioning creditor
· name and telephone number of petitioning creditor’s
solicitors
·
date of court hearing for
sequestration order
|
|
3
|
Section 43
sequestration order
|
sequestration order
(subsection 43 (1), section 52)
|
Creditor
who obtained the order
(subsection
52 (1A))
|
within 2 days
|
· date of order
· particulars of bankrupt
· name of petitioning creditor
· name and telephone number of petitioning creditor’s
solicitors
· name of trustee
· date of filing of Statement of Affairs
|
|
4
|
Section
55
debtor’s
petition
|
debtor’s
petition and statement
of affairs (subsection 55 (2))
|
debtor
(subsection 55 (1))
|
not
applicable
|
· particulars of debtor
· date of acceptance (or, if the Court orders the
Official Receiver to accept the petition, the date of commence‑
ment of the bankruptcy (subsection
55 (3B))
· name of trustee
·
date of filing of Statement of
Affairs
|
|
5
|
Section 56B
debtor’s petition against partnership
|
debtor’s petition and statements
of affairs (section 56B)
|
petitioning partners (subsection 56A (1))
|
not applicable
|
· particulars of each debtor/ partner
· date of acceptance (or, if the Court orders the
Official Receiver to accept the petition, the date of commence‑
ment of the bankruptcy of each partner
(section 56C))
· name of trustee
· date of filing of Statement of Affairs
|
|
6
|
Section
57
debtor’s
petition by joint debtors who are not partners
|
debtor’s
petition and statements
of affairs (subsection 57 (2))
|
2
or more petitioning debtors (subsection 57 (1))
|
not
applicable
|
· particulars of each debtor
· date of acceptance (or, if the Court orders the
Official Receiver to accept the petition, the date of commence‑
ment of the bankruptcy of each debtor
subsection
57 (3B))
|
|
|
|
|
|
|
· name of trustee
· date of filing of Statement of Affairs
|
|
7
|
Section
74
annulment of bankruptcy by special resolution of
creditors
|
written
notice (subsection 74 (5A))
|
trustee
(subsection 74 (5A))
|
as
soon as practicable after passage of special resolution (subsection 74 (5A))
|
· date of annulment of the bankruptcy
|
|
7A
|
Section 76B
record of the termination or setting
aside of a composition or scheme of arrangement
|
copy of record
|
trustee
|
immediately
|
· date of termination or setting aside
|
|
8
|
Section
149
automatic discharge from bankruptcy
|
not
applicable
|
not
applicable
|
not
applicable
|
· date of discharge
|
|
9
|
Sections
149B, 149C
objection
to discharge
|
Notice
of objection (section 149B)
|
trustee
(section 149B)
|
at
any time before discharge
|
· date objection takes effect
(ie day on which details of notice entered in the Index section 149G)
· grounds of objection
·
person lodging the notice
(i.e. trustee)
|
|
10
|
Section 149H
trustee ceasing to object on a particular ground
|
notice of ceasing to object (subsection 149H (1))
|
trustee (subsection 149H (1))
|
at any time before discharge (subsection 149H (1))
|
· date objection ceases to have effect (if at all) (ie
day on which details of notice entered in
the Index subsection 149H (3))
· grounds of objection to which notice relates
· person lodging the notice
(i.e. trustee)
|
|
11
|
Section
149J
trustee
or Official Receiver withdrawing objection
|
notice
of withdrawal (subsection 149J (1))
|
trustee
(subsection 149J (1))
(see also subsection 149J (2) for Official Receiver)
|
at
any time before discharge (subsections 149J (1) and (2))
|
· date with‑
drawal of objection takes effect
(ie day on which details of notice entered in
the Index subsection 149J (3))
·
person lodging the notice
(i.e. trustee
or Official Receiver)
|
|
12
|
Section
149N
Inspector‑
General’s review of decision to object (also: section 149Q‑AAT
review of decision)
|
if
the Inspector‑
General cancels the objection — written notice that objection cancelled
|
trustee
|
as
soon as practicable after objection cancelled
|
· date the cancellation takes effect (subsection 149N
(2))
|
|
13
|
Sections
149S and 149ZF
early
discharge from bankruptcy
|
[application
for early discharge (subsection 149S (2)] certificate of discharge
(subsection 149ZF (3))
|
certificate —
registered trustee (subsection 149ZF (3)) (see also Official Receiver:
subsection 149ZF (3);
see also subsection 149ZK (2) for decision on review)
|
as
soon as practicable after trustee signs certificate (subsection 149ZF (3))
|
· date on which bankruptcy is discharged (subsection
149ZF (1);
see also subsection 149ZK (2))
|
|
14
|
Section
153A
annulment of bankruptcy on payment of debts
|
certificate
(subsection 153A (2))
|
trustee
(subsection 153A (2))
|
as soon as practicable after debts paid in full
(subsection 153A (2))
|
· date of annulment
|
|
15
|
Section
153B
annulment
of bankruptcy by Court
|
court
order (section 153B)
|
applicant
(Rule 7.05
of FC
(Bankruptcy) Rules and of FMC (Bankruptcy) Rules)
|
2
days (Rule 7.05 of FC (Bankruptcy) Rules and
of FMC (Bankruptcy) Rules)
|
· date of annulment
|
|
16
|
Section 154A
application for trustee registration
|
application, and infor‑
mation pre‑
scribed by the regulations
|
applicant trustee
|
not applicable
|
· date of application
|
|
17
|
Section
155C
trustee
registration
|
application, and inform‑
ation pre‑
scribed by the regulations (subsection
155C (2))
|
applicant
trustee (Note: Inspector‑
General to register trustee: sections 155B and 155C)
|
not
applicable
|
· details of trustee
|
|
18
|
Section
155G
trustee
voluntarily terminating registration
|
written
request (subsection 155G (1))
|
trustee
|
not
applicable
|
·
date trustee registration ceases
(ie date
of acceptance
of request: subsection
155G (2))
|
|
19
|
Sections 155H and 155I
involuntary termination of trustee registration
|
no document specified
|
Inspector‑
General (see subsection 155I (6))
|
not applicable
|
·
date trustee registration ceases
(Inspector‑
General to give effect to decision to terminate registration: subsection
155I (6))
|
|
20
|
Sections 184 and 184A
release of trustee by operation of law
after
7 years
|
no document specified
|
registered trustee
|
not applicable
|
· fact that the administration of an estate is
finalised
|
|
21
|
Part IX
debt agreement proposal
|
debt agreement proposal, explanatory statement and
statement of affairs
|
debtor
|
not applicable
|
· date that
acceptance of proposal for processing and name and address of debt agreement
processor are entered in the Index
· particulars of debtor
· particulars of
whether proposal accepted or rejected following processing
· date that a
proposal lapses (if at all)
· date of
withdrawal or cancellation of proposal
|
|
22
|
Part IX
debt agreements
|
debt agreement
notification of completion or termination of the
debt agreement
notification of a designated
6‑month arrears
default
|
notification of completion:
the debt agreement administrator
notification of 6‑month
arrears default: the debt agreement administrator
|
notification of completion: 5 working days
after end of debt agreement
notification of 6‑month
arrears default: 10 working days after occurrence of designated 6‑month
arrears default
|
· particulars of debtor (if different from
particulars
in debt agreement proposal)
· date that
making of debt agreement entered in the Index
· date at end or
termination of debt agreement
· particulars of reason for debt agreement termination or end
|
|
22A
|
Section
185N
ending a debt agreement by discharging obligations
|
certificate
given under subsection 185N (3)
|
not
applicable
|
not
applicable
|
· date of giving of certificate
|
|
22B
|
Section
185P
terminating
a debt agreement by proposal
|
Minutes
of creditors meeting called under section 185A, or the record made by the
Official Receiver of acceptance
of proposal under sub‑
section 185B (3)
|
not
applicable
|
not
applicable
|
· date of acceptance of proposal
|
|
22C
|
Section 185Q
terminating
a debt agreement by court order
|
court order
|
applicant (Rule 9.05
of FC
(Bankruptcy) Rules and of FMC (Bankruptcy) Rules)
|
2 days after order made (Rule 9.05
of FC
(Bankruptcy) Rules and of FMC (Bankruptcy) Rules)
|
· date order made
|
|
22D
|
Section 185QA
terminating a debt agreement by special
resolution of creditors
|
Minutes of meeting called under section 185QA
|
not applicable
|
not applicable
|
· date of passing of special resolution
|
|
23
|
Sections 185T and 185U
voiding a debt agreement
|
court order (subsection 185U (1))
|
applicant (Rule 9.05
of FC
(Bankruptcy) Rules and of FMC (Bankruptcy) Rules)
|
2 days (Rule 9.05 of FC (Bankruptcy) Rules and
of FMC (Bankruptcy) Rules)
|
· date of order
· whether agreement is voided in whole or in part
|
|
23A
|
Section 186B
Application for registration as a debt agreement administrator
|
application
|
Inspector‑
General
|
not applicable
|
· date of application
· particulars of applicant
|
|
23B
|
Section 186D
Registration as a debt agreement administrator
|
application
approval or refusal of registration application under
section 186C
|
Inspector‑
General
|
not applicable
|
· particulars of
applicant
· details of the approval or
refusal (including specified conditions
|
|
|
|
(including any conditions specified for subsection 186C (9)).
|
|
|
applying to the debt agreement administrator on
registration)
|
|
23C
|
Section 186F
Conditions of
registration
|
notice of imposition of
conditions
|
Inspector‑
General
|
not applicable
|
· particulars
of conditions imposed on debt agreement administrator’s registration
|
|
23D
|
Sections 186J,
186K and 186L
Debt agreement
administrator registration ceases
|
approval of
registration
notice of
request to accept surrender of registration (section 186J)
notice of cancellation of registration (section 186K or 186L)
|
Inspector‑
General
|
not applicable
|
· date debt agreement administrator registration ceases
· particulars of reason for end of registration
|
|
24
|
Section 188 and subsection 189 (1B)
authority to
be controlling trustee (personal insolvency agreement);
notice of
event causing end of control by trustee
|
authority (subsection 188 (1));
notice
(subsection 189 (1B))
|
registered trustee or solicitor (subsection 188 (5);
subsection 189 (1B))
|
authority:
2 working days of consent to act;
notice:
7 days after becoming aware that
control has ended
|
· date of authority
· date of filing of statement of affairs
· name of controlling trustee
· particulars of debtor
· date of termination of control
|
|
24A
|
Section
192
authority
to be controlling trustee passing to Official Trustee
|
Evidence of event mentioned in subsection 192 (1)
(death, cessation, incapacity written request)
|
Official
Trustee
|
14
days of control passing
|
· particulars of debtor
· date of passing of control
|
|
25
|
Section 204 and subsection
218 (1)
personal
insolvency agreement
|
copy
of agreement (paragraph 218 (1) (b))
|
trustee
(paragraph 218 (1) (b))
|
within
21 days after executing agreement
|
· date of execution of agreement
· particulars of debtor (if different from particulars
in section 188 authority)
· name of each nominated trustee of the agreement
|
|
|
|
|
|
|
· (subsection 204 (3); see also section 215A)
· date of filing of statement of affairs
|
|
26
|
Section
221
sequestration
order for certain failures under Part X
|
court
order (subsection 221 (1))
|
applicant
|
2
days
|
· date of order
· particulars of bankrupt (if different from
particulars in section 188 authority))
· name of petitioning creditor (if any)
· name and telephone number of petitioning creditor’s
solicitors (if any)
· name of trustee
· date of filing of Statement of Affairs
|
|
27
|
Subsection
222 (10)
sequestration order against estate of debtor
|
sequestration
order
|
applicant
for sequestration order
|
2
days
(regulation
10.11)
|
· date of order
· particulars of debtor
|
|
28
|
Section 222A
termination of personal insolvency
agreement by trustee
|
copy of written
notice of termination
(regulation 10.12)
|
trustee of the agreement
|
immediately
(regulation 10.12)
|
· date of termination
|
|
28A
|
Subsection
222C (5)
sequestration order against estate of debtor
|
sequestration
order
|
applicant
for sequestration order
|
2
days
(regulation
10.11)
|
· date of order
· particulars of debtor
|
|
28B
|
Subsections
224A (1) and (3)
terminating personal insolvency agreement by
creditors or event specified in agreement
|
copy
of resolution or special resolution (subsection 224A (1));
written
notice (subsection 224A (3))
|
trustee
(subsections 224A (1) and (3))
|
immediately
(subsections 224A (1) and (3))
|
· date of termination
|
|
28C
|
Subsection
224A (4)
court
order setting aside
or terminating a personal insolvency agreement
|
written notice
|
registered
trustee
|
2
days (Rule 10.05 of FC (Bankruptcy) Rules and
of FMC (Bankruptcy) Rules)
|
· date when agreement set aside or terminated
|
|
28D
|
Section 232
certificate relating to discharge of obligations
under personal insolvency agreement
|
certificate given to debtor under subsection 232 (1)
|
trustee
|
not applicable
|
· date when trustee signed certificate
|
|
29
|
Section
244
creditor’s petition for Part XI administration
(deceased estates)
|
creditor’s
petition and verifying affidavit (subsections 244 (1) and (5))
|
petitioning
creditor
|
not
applicable
|
· date of petition
· particulars of deceased
· name of petitioning creditor
· name and telephone number of petitioning creditor’s
solicitors
· date of hearing for administra‑
tion order
· date of filing of Statement of Affairs
|
|
30
|
Section 244 and section 245 (death of
debtor after creditor’s petition under section 47)
Part XI
administra‑
tion (deceased estates)
|
court order (subsections 244 (14);
245 (3))
|
petitioning creditor (subsections 244 (14);
245 (3))
|
2 days (Rule 11.04 of FC (Bankruptcy) Rules and
of FMC (Bankruptcy) Rules)
|
· date of order
· particulars of deceased (if particulars
different from particulars in relevant creditor’s petition)
· name of trustee
|
|
31
|
Section 247
administra‑
tor’s petition for Part XI
administration of deceased estate
|
petition and statement
of affairs (subsection 247 (1))
|
administrator (subsection 247 (1))
|
not applicable
|
· date of petition
· particulars of deceased
· name of administrator
· name and telephone number of administrator’s
solicitors
· date of filing of Statement of Affairs
|
|
32
|
Section
247
court order
for Part XI administration on administra‑
tor’s petition
|
court
order (subsection 247 (1A))
|
applicant
(Rule 11.04 of FC (Bankruptcy) Rules and
of
FMC (Bankruptcy) Rules)
|
2 days (Rule 11.04 of FC (Bankruptcy) Rules and
of FMC (Bankruptcy) Rules)
|
· date of order
· the following particulars
if different from those in administrator’s petition:
· particulars of deceased
· name of administrator
· name and telephone number of administrator’s
solicitors
· name of trustee
· date of filing of Statement of Affairs
|
|
33
|
Section 253E
stay of proceedings in relation to farmers’ debts
assistance
|
court order (subsection 253E (1))
|
applicant
|
7 days
|
· date of order
· period of stay (subsection 253E (3))
|
Notes to the Bankruptcy Regulations 1996
Note 1
The Bankruptcy Regulations 1996 (in force under the Bankruptcy Act 1966) as shown in this compilation comprise Statutory Rules 1996 No. 263 amended as indicated in the Tables below.
For all relevant information pertaining to application,
saving or transitional provisions see Table A.
Under the Legislative
Instruments Act 2003, which came into force on 1 January 2005, it is a
requirement for all non‑exempt legislative instruments to be registered on
the Federal Register of Legislative Instruments. From 1 January 2005 the
Statutory Rules series ceased to exist and was replaced with Select Legislative
Instruments (SLI series). Numbering conventions remain the same, ie Year and Number.
Table of Instruments
|
Year and
number
|
Date of notification
in Gazette or FRLI registration
|
Date of
commencement
|
Application, saving or
transitional provisions
|
|
1996 No. 263
|
11 Dec 1996
|
16 Dec 1996
|
|
|
1996 No. 278
|
12 Dec 1996
|
16 Dec 1996
|
—
|
|
1997 No. 76
|
14 Apr 1997
|
Rr. 18.1, 29 and 30:
16 Dec 1996
Rr. 18.2, 26, 32, 33, 34, 35.2, 38.3 and 40:
14 Apr 1997 (see r. 1.2 and Gazette 1997, No. S136)
Remainder: 14 Apr 1997
|
R. 40
|
|
1997 No. 325
|
28 Nov 1997
|
1 Dec 1997
|
—
|
|
2000 No. 140
|
28 June 2000
|
1 July 2000
|
—
|
|
2000 No. 220
|
17 Aug 2000
|
1 July 2000
|
—
|
|
2001 No. 262
|
5 Oct 2001
|
5 Oct 2001
|
—
|
|
2002 No. 255
|
6 Nov 2002
|
6 Nov 2002
|
—
|
|
2003 No. 76
|
2 May 2003
|
5 May 2003
|
—
|
|
2004 No. 256
|
26 Aug 2004
|
1 Dec 2004 (see r. 2 and Gazette
2004, No. GN34)
|
—
|
|
2005 No. 218
|
7 Oct 2005 (see F2005L02918)
|
8 Oct 2005 (see r. 2 (a))
|
—
|
|
2006 No. 4
|
16 Feb 2006 (see F2006L00521)
|
17 Feb 2006
|
Rr. 4–6 (see Table A)
|
|
2006 No. 50
|
17 Mar
2006 (see F2006L00820)
|
27 Mar 2006 (see r. 2)
|
—
|
|
2006 No. 137
|
23 June 2006 (see F2006L01854)
|
1 July 2006
|
—
|
|
2007 No. 91
|
26 Apr 2007 (see F2007L01128)
|
27 Apr 2007 (see r. 2)
|
—
|
|
2007 No. 138
|
13 June 2007 (see
F2007L01540)
|
Rr. 1–4 and Schedule 1:
14 June 2007
Schedule 2: (see r. 2 (b) and Note 2)
|
R. 4
|
Table of
Amendments
|
ad. = added or inserted am. = amended rep. = repealed
rs. = repealed and substituted
|
|
Provision affected
|
How affected
|
|
Part 1
|
|
|
R. 1.01....................................
|
rs. 2000 No. 140
|
|
R. 1.03....................................
|
am. 2006 Nos. 4 and 137; 2007 No. 91
|
|
R. 1.04....................................
|
ad. 2001 No. 262
|
|
Part 2
|
|
|
R. 2.01....................................
|
am. 1997 No. 76
|
|
Part 4
|
|
|
Division 1
|
|
|
R. 4.02A..................................
|
ad. 1997 No. 76
|
|
|
rs. 2006 No. 4
|
|
Note to r. 4.02A......................
|
ad. 2006 No. 137
|
|
Division 2
|
|
|
Heading to r. 4.05.................
|
am. 1997 No. 76
|
|
R. 4.05....................................
|
am. 1997 No. 76; 2002 No. 255
|
|
R. 4.07....................................
|
am. 2004 No. 256
|
|
R. 4.11....................................
|
am. 1997 No. 76; 2004 No. 256
|
|
Division 3
|
|
|
Heading to r. 4.17.................
|
rs. 1997 No. 76
|
|
R. 4.17....................................
|
rs. 1997 No. 76
|
|
Note to r. 4.17........................
|
am. 2006 No. 137
|
|
Part 6
|
|
|
Division 1
|
|
|
R. 6.01....................................
|
am. 2002 No. 255
|
|
R. 6.02....................................
|
am. 1997 No. 76
|
|
Division 2
|
|
|
R. 6.03....................................
|
am. 1996 No. 278; 1997 No. 76
|
|
R. 6.03A..................................
|
ad. 2003 No. 76
|
|
R. 6.04....................................
|
am. 1997 No. 76
|
|
Renumbered
r. 6.03B.....
|
2007 No. 91
|
|
Division 2A
|
|
|
Div. 2A of Part 6.....................
|
ad. 2007 No. 91
|
|
R. 6.04A..................................
|
ad. 2007 No. 91
|
|
R. 6.04B..................................
|
ad. 2007 No. 91
|
|
Division 3
|
|
|
R. 6.08....................................
|
am. 1996 No. 278
|
|
Division 6
|
|
|
Heading to Div. 6 of Part 6..
|
rs. 2002 No. 255
|
|
Heading to r. 6.12.................
|
rs. 2002 No. 255
|
|
Heading to Div. 6A of ...........
Part 6
|
rep. 2002 No.
255
|
|
Div. 6A of Part 6.....................
|
ad. 1997 No. 325
|
|
Heading to r. 6.12A...............
|
rs. 2002 No. 255
|
|
R. 6.12A..................................
|
ad. 1997 No. 325
|
|
|
am. 2002 No. 255
|
|
R. 6.12B..................................
|
ad. 2002 No. 255
|
|
|
am. 2006 No. 50
|
|
R. 6.12C.................................
|
ad. 2003 No. 76
|
|
R. 6.12D.................................
|
ad. 2007 No. 91
|
|
Division 7
|
|
|
R. 6.15A..................................
|
ad. 2003 No. 76
|
|
R. 6.16....................................
|
am. 1997 No. 76
|
|
|
rep. 2004 No. 256
|
|
R. 6.18....................................
|
am. 2001 No. 262
|
|
Note to r. 6.18........................
|
rep. 2001 No. 262
|
|
Division 8
|
|
|
R. 6.20....................................
|
am. 2001 No. 262
|
|
Note to r. 6.20 (2)..................
|
rep. 2001 No. 262
|
|
Part 7
|
|
|
R. 7.01....................................
|
am. 1997 No. 76; 2001
No. 262
|
|
R. 7.01A..................................
|
ad. 2002 No. 255
|
|
R. 7.02....................................
|
am. 2001 No. 262
|
|
Note to r. 7.02 (3)..................
|
rep. 2001 No. 262
|
|
Part 8
|
|
|
Division 1
|
|
|
Note to Heading to Div. 1....
of Part 8
|
rep. 2002 No. 255
|
|
R. 8.01....................................
|
am. 2003 No. 76
|
|
R. 8.02....................................
|
am. 2003 No. 76
|
|
R. 8.03....................................
|
am. 1997 No. 76
|
|
Division 1A
|
|
|
Div. 1A of Part 8.....................
|
ad. 1997 No. 76
|
|
R. 8.04A..................................
|
ad. 1997 No. 76
|
|
|
am. 2001 No. 262
|
|
Division 2
|
|
|
Div. 2 of Part 8.......................
|
rs. 2002 No. 255
|
|
Subdivision 1
|
|
|
R. 8.05....................................
|
rs. 2002 No. 255
|
|
Subdivision 2
|
|
|
R. 8.05A..................................
|
ad. 2002 No. 255
|
|
R. 8.05B..................................
|
ad. 2002 No. 255
|
|
R. 8.05C.................................
|
ad. 2002 No. 255
|
|
R. 8.05D.................................
|
ad. 2002 No. 255
|
|
R. 8.05E..................................
|
ad. 2002 No. 255
|
|
R. 8.05F..................................
|
ad. 2002 No. 255
|
|
R. 8.05G.................................
|
ad. 2002 No. 255
|
|
R. 8.05H.................................
|
ad. 2002 No. 255
|
|
R. 8.05I...................................
|
ad. 2002 No. 255
|
|
R. 8.05J..................................
|
ad. 2002 No. 255
|
|
Subdivision 3
|
|
|
R. 8.05K..................................
|
ad. 2002 No. 255
|
|
R. 8.05L..................................
|
ad. 2002 No. 255
|
|
|
am. 2003 No. 76
|
|
R. 8.05M.................................
|
ad. 2002 No. 255
|
|
R. 8.05N.................................
|
ad. 2002 No. 255
|
|
Subdivision 4
|
|
|
R. 8.05O.................................
|
ad. 2002 No. 255
|
|
R. 8.05P..................................
|
ad. 2002 No. 255
|
|
Division 3
|
|
|
Heading to Div. 3 of Part 8..
|
rs. 1997 No. 76
|
|
Div. 3 of Part 8.......................
|
rs. 1997 No. 76
|
|
R. 8.06....................................
|
rs. 1997 No. 76
|
|
R. 8.06A..................................
|
ad. 1997 No. 76
|
|
Division 4
|
|
|
Heading to Div. 4 of Part 8..
|
rs. 1997 No. 76
|
|
R. 8.08....................................
|
am. 1997 No. 76
|
|
R. 8.09....................................
|
am. 2002 No. 255
|
|
R. 8.10....................................
|
am. 1996 No. 278
|
|
R. 8.11A..................................
|
ad. 2002 No. 255
|
|
R. 8.12....................................
|
rep. 2002 No. 255
|
|
|
ad. 2003 No. 76
|
|
Division 5
|
|
|
R. 8.13....................................
|
am. 2001 No. 262
|
|
R. 8.14....................................
|
am. 2001 No. 262
|
|
Note to r. 8.14 (1)..................
|
rep. 2001 No. 262
|
|
Div. 5A of Part 8.....................
|
ad. 1996 No.
278
rep. 1997 No. 76
|
|
R. 8.14A..................................
|
ad. 1996 No. 278
|
|
|
am. 1997 No. 76
|
|
|
rep. 1997 No. 76
|
|
Division 6
|
|
|
Div. 6 of Part 8.......................
|
rs. 2002 No.
255
|
|
Subdivision 1
|
|
|
R. 8.15....................................
|
rs. 2002 No. 255
|
|
R. 8.16....................................
|
ad. 2002 No. 255
|
|
Subdivision 2
|
|
|
R. 8.17....................................
|
ad. 2002 No. 255
|
|
R. 8.18....................................
|
ad. 2002 No. 255
|
|
R. 8.19....................................
|
ad. 2002 No. 255
|
|
R. 8.20....................................
|
ad. 2002 No. 255
|
|
R. 8.21....................................
|
ad. 2002 No. 255
|
|
R. 8.22....................................
|
ad. 2002 No. 255
|
|
R. 8.23....................................
|
ad. 2002 No. 255
|
|
R. 8.24....................................
|
ad. 2002 No. 255
|
|
R. 8.25....................................
|
ad. 2002 No. 255
|
|
R. 8.26....................................
|
ad. 2002 No. 255
|
|
Subdivision 3
|
|
|
R. 8.27....................................
|
ad. 2002 No. 255
|
|
R. 8.28....................................
|
ad. 2002 No. 255
|
|
|
am. 2003 No. 76
|
|
R. 8.29....................................
|
ad. 2002 No. 255
|
|
R. 8.30....................................
|
ad. 2002 No. 255
|
|
|
am. 2003 No. 76
|
|
R. 8.31....................................
|
ad. 2002 No. 255
|
|
Subdivision 4
|
|
|
Heading to Subdiv. 4 of.......
Div. 6 of Part 8
|
rs. 2004 No.
256
|
|
R. 8.32....................................
|
ad. 2002 No. 255
|
|
R. 8.33....................................
|
ad. 2002 No. 255
|
|
R. 8.34....................................
|
ad. 2002 No. 255
|
|
Subdivision 4A
|
|
|
Subdiv. 4A of Div. 6 of...........
Part 8
|
ad. 2004 No. 256
|
|
R. 8.34A..................................
|
ad. 2004 No. 256
|
|
Subdivision 5
|
|
|
Subdiv. 5 of Div. 6 of.............
Part 8
|
ad. 2003 No. 76
|
|
R. 8.35....................................
|
ad. 2003 No. 76
|
|
|
am. 2004 No. 256
|
|
R. 8.36....................................
|
ad. 2003 No. 76
|
|
R. 8.37....................................
|
ad. 2003 No. 76
|
|
|
am. 2006 No. 4
|
|
Part 9
|
|
|
R. 9.02....................................
|
ad. 2003 No. 76
|
|
R. 9.03....................................
|
ad. 2003 No. 76
|
|
R. 9.04....................................
|
ad. 2003 No. 76
|
|
|
am. 2004 No. 256
|
|
R. 9.05....................................
|
ad. 2003 No. 76
|
|
R. 9.06....................................
|
ad. 2003 No. 76
|
|
|
am. 2006 No. 4
|
|
R. 9.07....................................
|
ad. 2003 No. 76
|
|
R. 9.08....................................
|
ad. 2007 No. 138
|
|
Part 10
|
|
|
Part 10....................................
|
rs. 2004 No. 256
|
|
R. 10.01..................................
|
rs. 2004 No. 256
|
|
R. 10.02..................................
|
rs. 2004 No. 256
|
|
R. 10.03..................................
|
rs. 2004 No. 256
|
|
|
am. 2006 No. 4
|
|
Notes 1 and 2 to...................
r. 10.03 (2)
|
rep. 2006 No. 4
|
|
Note to r. 10.03 (2)................
|
ad. 2006 No. 4
|
|
R. 10.04..................................
|
rs. 2004 No. 256
|
|
|
am. 2006 No. 4
|
|
R. 10.05..................................
|
rs. 2004 No. 256
|
|
R. 10.06..................................
|
rs. 2004 No. 256
|
|
R. 10.07..................................
|
rs. 2004 No. 256
|
|
R. 10.08..................................
|
rs. 2004 No. 256
|
|
R. 10.09..................................
|
rs. 2004 No. 256
|
|
R. 10.10..................................
|
am. 1997 No. 76; 2001 No. 262
|
|
|
rs. 2004 No. 256
|
|
Note to r. 10.10 (4)................
|
rep. 2001 No. 262
|
|
R. 10.11..................................
|
rs. 2004 No. 256
|
|
R. 10.12..................................
|
rs. 2004 No. 256
|
|
R. 10.13..................................
|
am. 2001 No. 262
|
|
|
rs. 2004 No. 256
|
|
R. 10.14..................................
|
rs. 2004 No. 256
|
|
R. 10.15..................................
|
am. 2001 No. 262
|
|
|
rep. 2004 No. 256
|
|
R. 10.16..................................
|
rep. 2004 No. 256
|
|
R. 10.17..................................
|
am. 2001 No. 262
|
|
|
rep. 2004 No. 256
|
|
R. 10.18..................................
|
am. 2001 No. 262; 2002 No. 255
|
|
|
rep. 2004 No. 256
|
|
Note to r. 10.18 (2)................
|
rep. 2001 No. 262
|
|
Part 12
|
|
|
Heading to r. 12.01...............
|
rs. 2005 No. 218
|
|
R. 12.01..................................
|
am. 1996 No. 278; 2001 No. 262; 2005 No. 218
|
|
Note to r. 12.01 (4)................
|
rep. 2001 No. 262
|
|
Part 13
|
|
|
Division 2
|
|
|
R. 13.03..................................
|
am. 1997 No. 76; 2003 No. 76; 2004 No. 256
|
|
R. 13.04..................................
|
am. 1996 No. 278
|
|
Division 3
|
|
|
R. 13.06..................................
|
am. 1997 No. 76
|
|
|
rs. 2002 No. 255; 2006 No. 137
|
|
Heading to r. 13.07...............
|
rs. 1997 No. 76
|
|
R. 13.07..................................
|
am. 1997 No. 76
|
|
R. 13.11..................................
|
ad. 1997 No. 76
|
|
|
rep. 2006 No. 137
|
|
Part 15....................................
|
rep. 2002 No. 255
|
|
Rr. 15.01–15.12....................
|
rep. 2002 No. 255
|
|
Rr. 15.13, 15.14....................
|
am. 1997 No. 76
|
|
|
rep. 2002 No. 255
|
|
Rr. 15.15–15.19....................
|
rep. 2002 No. 255
|
|
Part 15A
|
|
|
Part 15A..................................
|
ad. 1997 No. 76
|
|
R. 15A.01................................
|
ad. 1997 No. 76
|
|
R. 15A.02................................
|
ad. 1997 No. 76
|
|
R. 15A.03................................
|
ad. 1997 No. 76
|
|
R. 15A.04................................
|
ad. 1997 No. 76
|
|
R. 15A.05................................
|
ad. 1997 No. 76
|
|
R. 15A.06................................
|
ad. 1997 No. 76
|
|
|
rep. 2006 No. 137
|
|
R. 15A.07................................
|
ad. 1997 No. 76
|
|
Part 16
|
|
|
Division 1
|
|
|
R. 16.02..................................
|
am. 1997 No. 76
|
|
Division 2
|
|
|
Heading to Div. 2 of..............
Part 16
|
rs. 2006 No.
137
|
|
Note to Heading to Div. 2....
of Part 16
|
ad. 2006 No.
137
|
|
Heading to Subdiv. A of
Div. 2 of Part 16
Renumbered Subdiv. 2.1
of Div. 2 of Part 16
|
2002 No. 255
|
|
Heading to Subdiv. 2.1 of....
Div. 2 of Part 16
(formerly Subdiv. A of
Div. 2 of Part 16)
|
rep. 2006 No.
137
|
|
R. 16.04..................................
|
rep. 2006 No.
137
|
|
R. 16.05
Renumbered r. 16.03A....
|
2002 No. 255
|
|
R. 16.06..................................
|
am. 2006 No. 4
|
|
|
rs. 2006 No. 137
|
|
Heading to Subdiv. 2.2 of....
Div. 2 of Part 16
|
ad. 2002 No.
255
rep. 2006 No. 137
|
|
R. 16.07..................................
|
am. 1997 No. 76; 2000 No. 140
|
|
|
rs. 2002 No. 255; 2006 No. 137
|
|
Note to r. 16.07 (9)................
|
rep. 2000 No. 140
|
|
R. 16.07A................................
|
ad. 2002 No. 255
|
|
|
am. 2004 No. 256
|
|
|
rep. 2006 No. 137
|
|
R. 16.07B...............................
|
ad. 2002 No. 255
|
|
|
rep. 2006 No. 137
|
|
R. 16.07C...............................
|
ad. 2002 No. 255
|
|
|
rep. 2006 No. 137
|
|
R. 16.07D...............................
|
ad. 2002 No. 255
|
|
|
rep. 2006 No. 137
|
|
R. 16.07E...............................
|
ad. 2002 No. 255
|
|
|
rep. 2006 No. 137
|
|
R. 16.08..................................
|
am. 1997 No. 76
|
|
|
rs. 2002 No. 255; 2006 No. 137
|
|
R. 16.08A................................
|
ad. 2002 No. 255
|
|
|
rep. 2006 No. 137
|
|
Heading to Subdiv. 2.3 of....
Div. 2 of Part 16
|
ad. 2002 No.
255
rep. 2006 No. 137
|
|
R. 16.09..................................
|
am. 1997 No. 325
|
|
|
rs. 2002 No. 255; 2006 No. 137
|
|
R. 16.10..................................
|
rep. 2002 No. 255
|
|
R. 16.11..................................
|
am. 1997 No. 76
|
|
|
rep. 2002 No. 255
|
|
Heading to Subdiv. B of.......
Div. 2 of Part 16
|
rep. 2002 No. 255
|
|
R. 16.12..................................
|
am. 1997 No. 76; 2000 No. 140; 2002 No. 255
|
|
|
rep. 2006 No. 137
|
|
R. 16.13..................................
|
rep. 2006 No. 137
|
|
Heading to Subdiv. 2.4........
of Div. 2 of Part 16
|
rep. 2006 No. 137
|
|
Subdiv. 2.4 of Div. 2..............
of Part 16
|
ad. 2002 No. 255
|
|
R. 16.13A................................
|
ad. 2002 No. 255
|
|
|
am. 2006 Nos. 4 and 137
|
|
Renumbered r. 16.11.......
|
2006 No.
137
|
|
R. 16.13B...............................
|
ad. 2002 No. 255
|
|
|
rs. 2006 No. 4
|
|
Renumbered r. 16.12........
|
2006 No. 137
|
|
Note to r. 16.13B became ..
Note to r. 16.12
|
2006 No. 137
|
|
Div. 3 of Part 16.....................
|
rep. 2006 No. 137
|
|
R. 16.14AA.............................
|
ad. 1996 No. 278
|
|
|
rep. 2006 No. 137
|
|
Heading to r. 16.14...............
|
rs. 1997 No. 76
|
|
R. 16.14..................................
|
am. 1997 No. 76; 2004 No. 256
|
|
|
rep. 2006 No. 137
|
|
R. 16.15..................................
|
rs. 1997 No. 76
|
|
|
rep. 2006 No. 137
|
|
R. 16.16..................................
|
rep. 2006 No. 137
|
|
R. 16.17..................................
|
rep. 1997 No. 76
|
|
Schedule 1
|
|
|
Heading to Schedule 1........
|
rs. 2000 No. 220
|
|
Schedule 1.............................
|
am. 1997 No. 76
|
|
Form 1.................................
|
rs. 1997 No. 76
|
|
|
am. 2000 No. 220; 2003 No. 76
|
|
Form 2.................................
|
rep. 1997 No. 76
|
|
Schedule 2
|
|
|
Schedule 2.............................
|
am. 2004 No. 256; 2006 Nos. 4 and 137
|
|
Schedule 3
|
|
|
Schedule 3.............................
|
am. 2002 No. 255; 2006 No. 137
|
|
Schedule 4
|
|
|
Schedule 4.............................
|
am. 1997 No. 76; 2002 No. 255
|
|
Schedule 4A
|
|
|
Schedule 4A..........................
|
ad. 2004 No. 256
|
|
Schedule 6
|
|
|
Schedule 6.............................
|
am. 2003 No. 76
|
|
|
rs. 2004 No. 256
|
|
|
am. 2006 Nos. 4 and 137
|
|
Schedule 7
|
|
|
Schedule 7.............................
|
am. 2003 No. 76
|
|
Schedule 8
|
|
|
Schedule 8.............................
|
am. 1997 No. 76; 2002 No. 255; 2003 No. 76; 2004
No. 256; 2006 No. 4; 2007 No. 138
|
|
Schedule 9.............................
|
am. 1997 No. 76; 2004 No. 256
|
|
|
rep. 2006 No. 137
|
|
Schedule 10..........................
|
am. 1997 No. 76
|
|
|
rep. 2002 No. 255
|
Note 2
Bankruptcy Amendment Regulations 2007 (No. 2) (2007
No. 138)
The following amendments commence
on 1 July 2007:
Schedule 2
[1] Subregulation 4.11 (1)
omit
, 57 (3A) and 185E (1)
substitute
and 57 (3A)
[2] Paragraph 4.11 (1) (e)
substitute
(e) a statement that
it is an act of bankruptcy for a debtor to present to the Official Receiver,
under section 54A of the Act, a declaration of intention to present a debtor’s
petition.
[3] Subregulation 4.11 (3)
substitute
(3) The Official Receiver must not accept a debtor’s
petition under section 55, 56B or 57 of the Act unless the debtor has given to
the Official Receiver a signed acknowledgement (which may be included in or
appended to the petition) that the debtor has received and read the prescribed
information.
[4] Part 6, Division 3
omit
[5] Regulations 9.01 to 9.07
omit
[6] Regulation 9.08
renumber
as regulation 9.02
[7] Before regulation 9.02
insert
9.01 Prescribed
information to be supplied to the debtor
(1) For paragraph 185C (2D) (b) and
subsection 185E (1) of the Act, the following information is prescribed:
(a) information about alternatives to entering
into a debt agreement;
(b) information about the consequences of making
a debt agreement proposal;
(c) information about sources of financial
advice and guidance to persons facing or contemplating entering into a debt
agreement;
(d) a statement that it
is an act of bankruptcy for a debtor to give to the Official Receiver a debt
agreement proposal.
(2) The information must be factual and objective.
(3) The Official Receiver must not accept a debtor’s
debt agreement proposal under Division 2 of Part IX of the Act, unless the
debtor has given to the Official Receiver a signed acknowledgment that the
debtor has received and read the prescribed information.
(4) If the debtor presents a debt agreement proposal without having given the
acknowledgement, the Official Receiver must:
(a) if the debtor presents the debt agreement proposal
in person — give the prescribed information to the debtor; or
(b) if the debtor presents the debt agreement proposal
by post — post the prescribed information to the debtor.
(5) Subject to subregulation (6), a debt agreement proposal
and acknowledgement may be signed by a person for a debtor intending to present
a debt agreement proposal if the debtor is unable to properly read the debt
agreement proposal, prescribed information and acknowledgement (‘the relevant
material’) because he or she is:
(a) blind, partially sighted, illiterate or
partially literate; or
(b) insufficiently familiar with the English
language.
(6) A person who signs a debt agreement proposal and
acknowledgement for a debtor, must sign a statement:
(a) where paragraph (5) (a) applies —
that he or she has carefully read the relevant material to the debtor; or
(b) where paragraph (5) (b) applies —
that he or she has carefully interpreted the relevant material to the debtor in
a language with which both are familiar.
[8] Regulation 15A.01, after
definition of penalty
insert
trustee includes a debt agreement administrator.
[9] Schedule 5
omit
[10] Schedule 8, item 23D
substitute
|
23D
|
Sections 185ZCA, 186J, 186K and 186L
Debt agreement
administrator registration ceases
|
approval of registration
notice of
request to accept surrender of registration (section 186J)
|
Inspector‑
General
|
not applicable
|
· date debt agreement administrator
registration ceases
· particulars of reason for end of
registration
|
|
|
|
notice of
cancellation of registration (section 186K or 186L)
|
|
|
|
As at 14 June 2007 the
amendments are not incorporated in this compilation.
Table A Application,
saving or transitional provisions
Statutory
Rules 1997 No. 76
40 Transitional
40.1 An amount paid under Division 3 of Part 16 of the
Bankruptcy Regulations in respect of an estate or a debtor is to be offset
against an amount of charge payable under Part 3 of the Bankruptcy (Estate
Charges) Act 1997 in respect of the estate or debtor for the charge period
(within the meaning of that Act) that commenced on 1 November 1996.
Select
Legislative Instrument 2006 No. 4
4 Application —
debt agreements
The amendment made by item [5] of Schedule 1
applies in relation to a debt agreement, the debt agreement proposal for which
is given to the Official Receiver on or after 1 May 2006.
5 Transitional —
waiver and remission of fees
(1) Subregulations (2) to (7) apply despite the
amendments made by items [10] and [11] of Schedule 1.
(2) The Inspector‑General may waive or remit the
whole or part of any fee that became payable under Subdivision 2.2 of Part 16
of the Bankruptcy Regulations 1996 before the commencement of these
Regulations, if the Inspector‑General is reasonably satisfied that:
(a) payment of the fee by the person liable to
pay it has imposed, or would impose, undue hardship on the person; or
(b) because of other exceptional circumstances,
it is proper and reasonable to do so.
(3) For paragraph (2) (a), undue hardship means
hardship that is unusual and exceptional in comparison to the hardship arising
in the normal course of bankruptcy.
(4) A decision under subregulation (2) must be notified
in writing to:
(a) the person concerned; and
(b) the Official Trustee.
(5) Application may be made to the Administrative
Appeals Tribunal for review of a decision of the Inspector‑General under
subregulation (2) to refuse to waive or remit the whole
or part of any fee that became payable under Subdivision 2.2
of Part 16 of the Bankruptcy Regulations 1996 before the commencement of
these Regulations.
(6) A person who is aggrieved by a decision under
subregulation 16.13A (1) of the Bankruptcy Regulations 1996 in relation
to a fee payable under Subdivision 2.2 of Part 16 of those Regulations (being a
decision made before the commencement of these Regulations) may apply to the
Administrative Appeals Tribunal for review of the decision if the time within
which that decision may be reviewed has not ended.
Note 1 Under section 27A of the Administrative
Appeals Tribunal Act 1975, the decision‑maker must give any
person whose interests are affected by the decision notice, in writing or
otherwise, of the making of the decision and of the person’s right to have the
decision reviewed. In giving that notice, the decision‑maker must have
regard to the Code of Practice determined under section 27B of that Act (Gazette
No. S 432, 7 December 1994).
Note 2 Section 29 of the Administrative
Appeals Tribunal Act 1975 prescribes the time within which application may
be made to the Administrative Appeals Tribunal for review of a decision.
(7) The Inspector‑General is taken to have
delegated the power to waive or remit the whole or part of a fee under
subregulation (2) to any person to whom the Inspector‑General delegated
the power to waive or remit a fee under subregulation 16.13A (1) of the Bankruptcy
Regulations 1996, under a delegation:
(a) that was made under subsection 11 (4) of
the Bankruptcy Act 1966; and
(b) that was in effect immediately before the
commencement of these Regulations.
6 Application –
notice of first meeting of creditors
The amendments made by items [12] and [14] of
Schedule 1 apply in relation to a notice of the first meeting of creditors
given on or after 3 April 2006.
Select
Legislative Instrument 2007 No. 138
4 Transitional
Despite the repeal by these
Regulations of regulations 9.01 to 9.07 and Schedule 5 of the Bankruptcy
Regulations 1996, those regulations and Schedule continue to have effect in
relation to a debt agreement made as a result of the acceptance of a debt
agreement proposal given to the Official Receiver before 1 July 2007.