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.
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.
Fees and Remuneration Determination means
each determination made under subsection 316 (1) of the Act, as in
force from time to time.
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:
|
Table
|
|
Jersey
|
Singapore
|
|
Malaysia
|
Switzerland
|
|
Papua New Guinea
|
United States of America
|
Part 4 Proceedings
in connexion with bankruptcy
Division 1 Bankruptcy notices
4.01 Application
for bankruptcy notice
(1) Subject to subregulation (2), to apply for the issue
of a bankruptcy notice, a person must lodge with the Official Receiver:
(a) an application in the approved form; and
(b) 1 of the following documents in relation to
the final judgment or final order specified by the person on the approved form:
(i) a copy of the sealed or certified
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.
(2) If the final judgment or final order specified by
the person on the approved form is an award mentioned in paragraph
40 (3) (a) of the Act, the person must lodge with the Official
Receiver:
(a) an application in the approved form; and
(b) 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
(c) a sealed or certified copy of the order
giving leave to enforce the award.
Note 1 For bankruptcy notices, see regulation 4.02 and Form 1.
Note 2 A fee is payable to the Official
Registrar for an application under this
regulation — see Fees and Remuneration Determination.
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 1 If paragraph (b) applies to a
bankruptcy notice, a fee is payable under the Fees and Remuneration
Determination.
Note 2 A bankruptcy notice may be served
by any of the methods mentioned in regulation 16.01.
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 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 telegraphic rate of exchange prevailing on
the second day before the day when the application to which the conversion
applies is lodged under subregulation 4.01 (1).
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 2 working days after the petition is
endorsed by the Court, give an endorsed copy of the petition to the Official
Receiver.
(3) A creditor who presents a petition under Division 2
of Part IV of the Act must give a copy of any order, endorsed by the Court,
dismissing, staying or extending the petition, or adjourning the hearing of the
petition, to the Official Receiver within 2 working days after the Court
has endorsed 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) and 57 (3A) 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 to present to the Official Receiver,
under section 54A of the Act, a declaration of intention to present a debtor’s
petition.
(2) The information must be factual and objective.
(3) The Official Receiver must not accept a declaration
of intention to present a debtor’s petition under section 54A of the Act
or 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) 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) Subregulation (6) applies if a person (the intending
petitioner) intends to present a petition under Division 2 of Part IV
of the Act and the intending petitioner is:
(a) unable to read the relevant material,
because he or she is:
(i) blind, partially sighted,
illiterate or partially literate; or
(ii) insufficiently familiar with the
English language; or
(b) unable to sign the petition or the
acknowledgment, because of a physical incapacity.
(6) The petition and the acknowledgement may be signed
by another person, who must sign a statement:
(a) if subparagraph (5) (a) (i)
applies — that he or she has read the relevant material to the intending
petitioner; or
(b) if subparagraph (5) (a) (ii)
applies — that he or she has interpreted the relevant material to the
intending petitioner in a language with which both persons are familiar; or
(c) if paragraph (5) (b)
applies — that he or she believes that the intending petitioner has read
and understood the relevant material.
(7) In this regulation:
relevant material means the petition, the
prescribed information and the acknowledgment.
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 Fees and Remuneration
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.
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Item
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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 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) Contributions for a year are taken to be income of
a person if:
(a) the contributions exceed 9% of the
employee’s ordinary time earnings for the year; and
(b) the employer has an obligation to make the
contributions that arise under an individual industrial agreement; and
(c) the contributions are not contributions of
the kind mentioned in subparagraph (1) (b) (iii).
(3) For this regulation:
individual industrial agreement means an
industrial agreement made solely between the employer and the person, including
the following:
(a) an AWA, or an ITEA, to which the Fair Work (Transitional Provisions and Consequential
Amendments) Act 2009 applies;
(b) 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 Inspector‑General 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
Subdivision 1 Prescribed rates —
subsections 162 (2) and (3) of Act
8.07 Prescribed
rate — subsection 162 (2) of the Act
For subsection 162 (2) of the Act, the rate
is:
(a) if the money received by the trustee does
not exceed $30,000 — 10%; or
(b) if the money received by the trustee exceeds
$30,000 but does not exceed $50,000 — 10% for the first $30,000 and 7.5%
for the balance of the money; or
(c) if the money received by the trustee exceeds
$50,000 — 10% for the first $30,000, 7.5% for the next $20,000 and 5% for
the balance of the money.
8.08 Prescribed
rate — subsection 162 (3) of the Act
For subsection 162 (3) of the Act, the rate is
2.5%.
Subdivision 2 Trustee’s
remuneration decided by Inspector‑General
8.09 Circumstances
in which trustee may apply to Inspector‑General to decide remuneration
For subsection 162 (4) of the Act, the
following circumstances are prescribed:
(a) the creditors or the committee of
inspection:
(i) fail to vote on a motion relating
to remuneration put forward by the trustee at a meeting of creditors under
section 64U of the Act; or
(ii) reject a motion relating to
remuneration put forward by the trustee at a meeting of creditors under section 64U
of the Act;
(b) the creditors or the committee of
inspection:
(i) fail to vote on a proposal
relating to remuneration put forward by the trustee under section 64ZBA of the
Act; or
(ii) reject a proposal relating to
remuneration put forward by the trustee under section 64ZBA of the Act;
(c) it is not cost effective to seek the
approval of creditors for the trustee’s remuneration;
(d) it is not practicable to seek the approval of
creditors for the trustee’s remuneration.
Example for paragraph (c)
It may not be cost-effective to seek the approval of
creditors if the value of the assets in the estate is so small that the expense
of holding a creditors’ meeting or sending a notice to creditors cannot be
justified.
Examples for paragraph (d)
1 It may not be practicable to seek the
approval of creditors if the bankruptcy is annulled and there are no longer any
creditors to vote on a remuneration proposal.
2 It may not be practicable to seek the
approval of creditors if a meeting is cancelled because of a lack of quorum.
8.10 Application
to Inspector‑General to decide remuneration
For subsection 162 (4) of the Act, the
application:
(a) must be in writing; and
(b) must:
(i) state which circumstance
prescribed in regulation 8.09 applies to the application; and
(ii) include evidence that the
prescribed circumstance applies to the application; and
(c) must contain a single proposal about the
trustee’s proposed remuneration; and
(d) must include the information required by
subsections 64U (5) and (5A) of the Act about the trustee’s
statement; and
(e) must explain:
(i) why any work already performed by
the trustee was necessary; and
(ii) why any work proposed to be
performed by the trustee will be necessary; and
(iii) why the proposed remuneration for
the work, or proposed work, is appropriate for the particular administration;
and
(f) must be accompanied by the following:
(i) any notices issued by the trustee
to the bankrupt and creditors under subsection 162 (6A) of the Act;
(ii) any other notices issued by the
trustee to the bankrupt and creditors under Subdivision 3.
8.11 Matters
to which Inspector‑General must have regard
For subsection 162 (4A) of the Act, the
Inspector‑General must have regard to the following matters when deciding
the trustee’s remuneration:
(a) whether the trustee has followed the
procedure in section 64U of the Act for estimating remuneration, including
whether the trustee has adequately described to creditors the work performed or
to be performed;
(b) whether the trustee has given the bankrupt
and creditors the notices required to be given under these Regulations;
(c) whether the trustee has explained why the
work already performed was necessary;
(d) whether the trustee has explained why the
work proposed to be performed will be necessary;
(e) whether, taking into account the nature and
complexity of the work, the proposed remuneration is commensurate with:
(i) the work already performed; or
(ii) the work proposed to be performed;
(f) any other relevant matters.
Note A decision on the application is
made under subsection 162 (4A) of the Act. The Inspector‑General
must advise the trustee and the bankrupt and creditors of the decision in
accordance with subsection 162 (4B) of the Act.
Subdivision 3 Remuneration of
trustees — notices
8.12 Notices
This Subdivision is made for subsection 162 (6A)
of the Act and sets out the notices that the trustee is required to give to the
bankrupt and creditors in relation to the trustee’s remuneration.
8.12A Initial
remuneration notice
(1) The trustee must give the bankrupt and creditors
notice of:
(a) the method by which the trustee seeks to be
remunerated; and
(b) the rate of remuneration; and
(c) an estimate of the expected amount of the
trustee’s remuneration.
(2) The notice must:
(a) include a brief explanation of the types of
methods that could be used to calculate remuneration; and
(b) specify the method the trustee proposes to
use to calculate remuneration; and
(c) explain why the method is appropriate.
(3) If the trustee proposes to charge on a time-cost
basis, the notice must include details about the respective rates at which the
remuneration of the trustee and the other persons who will be assisting, or
will be likely to assist, the trustee in the performance of his or her duties are
to be calculated.
(4) The notice must be in writing and must be given to
the bankrupt and creditors:
(a) in the case of a trustee of a personal
insolvency agreement who was not the controlling trustee for a debtor under
section 188 or 192 of the Act before the agreement for the debtor was executed —
within 28 days after the day the agreement is executed as required by section
216 of the Act; and
(b) in any other case:
(i) within 28 days after the day the
trustee receives the bankrupt’s statement of affairs; or
(ii) if the trustee does not receive
the bankrupt’s statement of affairs within 60 days after the date of bankruptcy —
within 7 days after the end of the 60 day period.
(5) This regulation does not apply to:
(a) a person who is the controlling trustee for
a debtor under section 188 or 192 of the Act; or
(b) a trustee of a personal insolvency agreement
who was the controlling trustee for a debtor under section 188 or 192 of the
Act before the agreement for the debtor was executed.
8.12B Remuneration
approval notice
(1) If the trustee proposes to have his or her
remuneration fixed by creditors or the committee of inspection in accordance
with subsection 162 (1) of the Act, the trustee must give the creditors or
the committee a notice that complies with this regulation.
(2) The notice must include the following information:
(a) a description of the work that the trustee
has undertaken or will, or is likely to, undertake, including details of the
particular tasks to be performed by the trustee and any person assisting the
trustee;
(b) details of:
(i) the number of hours to be charged
by the trustee and each person assisting the trustee; and
(ii) the hourly rate charged by the
trustee and each person assisting the trustee; and
(iii) the proposed total remuneration
for the work;
(c) a statement that the costs incurred, or to
be incurred, are necessary and reasonable having regard to the value and
complexity of the administration;
(d) a report on work that has been completed,
that is in progress and that is still to be undertaken.
(3) The information in the notice must be sufficient to
enable the creditors or the committee of inspection to be satisfied that the
costs incurred, or to be incurred, are necessary and reasonable having regard
to the value and complexity of the administration.
(4) The notice must be given:
(a) if the trustee proposes to have his or her
remuneration fixed at a meeting of creditors — at the same time as the
meeting of creditors is convened; or
(b) if the trustees proposes to have his or her
remuneration fixed by putting a proposal to the creditors under section 64ZBA
of the Act — at the same time as the notice under that section is given to
the creditors.
(5) This regulation does not apply to:
(a) a person who is the controlling trustee for
a debtor under section 188 or 192 of the Act; or
(b) a trustee of a personal insolvency agreement
who was the controlling trustee for a debtor under section 188 or 192 of the
Act before the agreement for the debtor was executed.
8.12C Remuneration
claim notice
(1) Subject to subregulation (3), the trustee must
give the bankrupt and the creditors a notice that complies with this regulation
when the remuneration claimed by the trustee reaches the amount (the fixed
amount):
(a) fixed by the creditors or the committee of
inspection; or
(b) decided by the Inspector‑General; or
(c) if the trustee claims the statutory minimum
or less under subsection 161B (1) of the Act — claimed by the trustee
under that subsection.
(2) The notice must be given within 14 days after the
fixed amount is reached.
(3) If the remuneration claimed does not reach the
fixed amount, the trustee must give the creditors a notice that complies with
this regulation:
(a) at the time the trustee declares a final dividend;
or
(b) if the trustee determines that no final
dividend will be declared — at the time the administration of the estate
is finalised.
(4) A notice under subregulation (1) or (3)
must include the following information:
(a) the total remuneration claimed;
(b) details of:
(i) the work performed for which
remuneration is claimed; and
(ii) the names of the persons who
performed the work; and
(iii) the number of hours charged by,
or in relation to, each person for the work; and
(iv) the hourly rate charged by, or in
relation to, each person for the work;
(c) an explanation of any variation from the
amounts set out in any notice under regulation 8.12B in relation to:
(i) the remuneration claimed; and
(ii) the number of hours charged; and
(iii) the hourly rate charged; and
(iv) the persons performing the work.
(5) A notice under subregulation (1) or (3)
must also include a statement advising the bankrupt and the creditors that they
may, within 28 days after receiving the notice, request the Inspector‑General
to review the amount of remuneration claimed by the trustee.
Note Subdivision 4 deals with
applications to the Inspector‑General to review decisions in relation to
a trustee’s remuneration. Subdivision 6 sets out how reviews are undertaken.
Subdivision 4 Review of
remuneration
8.12D Review
of remuneration
This Subdivision is made for subsection 167 (1)
of the Act and provides for the Inspector‑General to review decisions
about the trustee’s remuneration on application by a bankrupt or a creditor of
the bankrupt.
8.12E Application
for review — remuneration
(1) A bankrupt or a creditor of the bankrupt (the applicant)
may apply to the Inspector‑General for a review of the amount of
remuneration claimed by the trustee.
(2) The application must be in writing and must, subject
to subregulation (3), be made within 28 days after the day the applicant
receives notification under regulation 8.12C.
(3) The Inspector‑General
may, before or after the end of the 28 days mentioned in subregulation (2),
extend the period in which an application for review may be made if the
Inspector‑General is satisfied that:
(a) the applicant and the trustee have been
engaged in an alternative dispute resolution process to try to resolve the
matter; or
(b) it is appropriate, in all the circumstances,
to extend the period.
(4) The Inspector‑General may extend the period
for any period the Inspector‑General considers appropriate in all the
circumstances.
(5) The applicant may apply to the Administrative
Appeals Tribunal for the review of a decision by the Inspector‑General
under subregulation (3) to refuse to extend the period in which an
application for review may be made.
(6) The trustee may apply to the Administrative Appeals
Tribunal for the review of a decision by the Inspector‑General under
subregulation (3) to extend the period in which an application for review
may be made.
8.12F Application
threshold
(1) The Inspector‑General must refuse to accept
an application:
(a) unless the Inspector‑General is
satisfied on reasonable grounds that 1 or more of the following apply:
(i) the trustee’s remuneration may
have been fixed in a manner that is inconsistent with the requirements of the
Act or these Regulations;
(ii) the trustee may have acted
improperly, or without due care and diligence, in the administration of the
estate; or
(b) if the Inspector‑General is satisfied
on reasonable grounds that:
(i) the applicant does not have an
interest in the outcome of the review; or
(ii) the applicant has not adequately particularised
the issue giving rise to the review; or
(iii) the application is frivolous or
vexatious.
(2) However, the Inspector‑General may accept an
application if the Inspector‑General is satisfied that there are
exceptional circumstances to justify the review.
(3) The Inspector‑General may refuse to accept an
application if the Inspector‑General is satisfied on reasonable grounds
that:
(a) it was appropriate in all the circumstances
for the applicant to attempt to resolve the matter without seeking a review
under this Subdivision; and
(b) the applicant did not do so; and
(c) the applicant did not provide a reasonable
explanation for not doing so.
8.12G Notification
of decision
(1) If the Inspector‑General refuses to accept the
application, the Inspector‑General must give the applicant and the
trustee written notice of the refusal.
(2) The notice must be given to the applicant and the
trustee within 14 days after the day the Inspector‑General refuses the
application and must include the reasons for the refusal.
Subdivision 5 Review of bill
of costs
8.12H Review
of bill of costs
This Subdivision is made for subsection 167 (2)
of the Act and provides for the Inspector‑General to review a bill of
costs for services provided by a third party in relation to the administration
of a bankrupt’s estate.
8.12I Application
for review — third party bill of costs
(1) The trustee of the bankrupt’s estate may apply to
the Inspector‑General to review a bill of costs for services provided by
a third party in relation to the administration of the bankrupt’s estate.
(2) The application must be in writing.
(3) The application must, subject to subregulation (4),
be made within 28 days after the trustee receives the bill of costs from the
third party.
(4) The Inspector‑General may, before or after
the end of the 28 days mentioned in subregulation (3), extend the
period in which an application for review may be made if the Inspector‑General
is satisfied that:
(a) the trustee and the third party have been
engaged in an alternative dispute resolution process to try to resolve the
matter; or
(b) it is appropriate, in all the circumstances,
to extend the period.
(5) The Inspector‑General may extend the period
for any period the Inspector‑General considers appropriate in all the
circumstances.
(6) The trustee may apply to the Administrative Appeals
Tribunal for review of a decision by the Inspector‑General under
subregulation (4) to refuse to extend the period in which an application
for review may be made.
(7) The third party may apply to the Administrative
Appeals Tribunal for the review of a decision by the Inspector‑General
under subregulation (4) to extend the period in which an application for
review may be made.
Subdivision 6 Review by
Inspector‑General
8.12J Review
by Inspector‑General
(1) If the Inspector‑General accepts an
application under regulation 8.12E or 8.12I, the Inspector‑General must
conduct a review in accordance with this Subdivision.
(2) The Inspector‑General may:
(a) affirm the amount claimed by the trustee or
the third party; or
(b) disallow all or part of the trustee’s claim
for remuneration and substitute another amount for the amount claimed; or
(c) disallow all or part of the third party’s
bill of costs and substitute another amount for the amount claimed; or
(d) dismiss the application.
8.12K How
review to be conducted
(1) The Inspector‑General must conduct the review
with as little formality and technicality, and with as much expedition, as the
Act and these Regulations, and a proper consideration of the matter, permit.
(2) In conducting the review, the Inspector‑General:
(a) is not bound by legal technicalities, legal
forms or rules of evidence; and
(b) may inform himself or herself on any matter
relevant to the review in such manner as he or she thinks appropriate.
8.12L Powers
of Inspector‑General
In conducting the review, the Inspector‑General
may do any of the following:
(a) conduct the review:
(i) with the parties present; or
(ii) on the papers; or
(iii) in part with the parties present
and in part on the papers;
(b) adjourn or discontinue the review if the
Inspector‑General considers it necessary or appropriate to do so;
(c) engage an expert to assist in the review and
arrange for payment to be made to the expert;
(d) direct the trustee to provide an itemised
invoice in a form, and within the time, specified in the direction for work
undertaken by the trustee;
(e) direct a third party to give an itemised
bill of costs in a form, and within the time, specified in the direction in
relation to work undertaken by the third party;
(f) interview any party to the review and allow
the other party or their representative to question that party;
(g) direct a person to give a written statement,
in a specified form and signed by the person, about a matter relevant to the
review;
(h) direct the trustee to produce to the
Inspector‑General or to a party to the review, all or part of the
trustee’s files or documents in relation to the administration of the
bankrupt’s estate;
(i) copy documents, or arrange for copies to be
made and delivered to the Inspector‑General or a party to the review;
(j) direct a party seeking inspection,
production or copies of documents to comply with conditions (including
conditions relating to payment) in relation to the inspection, production or
copying;
(k) proceed with the review in the absence of a
party if the Inspector‑General considers it necessary or appropriate to
do so;
(l) direct the trustee to take particular
action for the administration of the estate, including refunding any
remuneration not properly claimed or supported.
Note This regulation does not exclude the
need for the Inspector‑General to provide procedural fairness when
conducting the review.
8.12M Non-compliance
with directions
(1) If a person to whom the Inspector‑General
gives a direction under regulation 8.12L does not comply with the direction,
the Inspector‑General may conduct the review on the basis of the
information available to the Inspector‑General.
(2) If the trustee does not comply with a direction of
the Inspector‑General under paragraph 8.12L (d), (h) or (l),
the Inspector‑General may direct that the trustee is not entitled to the
remuneration, or part of the remuneration, that is the subject of the review.
(3) If a third party does not comply with a direction of
the Inspector‑General under paragraph 8.12L (e), the Inspector‑General
may order that the trustee may declare and distribute a final dividend in the
bankruptcy without regard to any claim of the third party.
(4) If the Inspector‑General makes an order under
subregulation (3), the estate of the bankrupt has no liability to the
third party for the bill of costs that is the subject of the review.
8.12N Decision
of Inspector‑General
(1) The Inspector‑General must complete the
review, and make a decision on the application, within 60 days after the day
the Inspector‑General accepts the application for review.
(2) When the Inspector‑General makes his or her
decision, the Inspector‑General must prepare a written statement that:
(a) sets out the decision of the Inspector‑General;
and
(b) sets out the reasons for the decision; and
(c) sets out the findings on any material
questions of fact; and
(d) refers to evidence or other material on which
the findings of fact are based; and
(e) sets out the effect of subsection 167 (6)
of the Act in relation to the Inspector‑General’s decision.
(3) The Inspector‑General must give each party to
the review a copy of the statement within 14 days after making the decision.
8.12O Repayments
of excess
For subsection 167 (4) of the Act, if the
Inspector‑General is satisfied that a withdrawal by the trustee of funds
from the estate of the bankrupt for payment of the trustee’s remuneration
exceeds the amount of remuneration the trustee is entitled to under Division 2
of Part VIII of the Act, the Inspector‑General may require the trustee to
repay the excess to the estate.
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) either:
(i) is not a full member of the
Insolvency Practitioners Association of Australia; or
(ii) has not 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 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) Subregulation (6) applies if a debtor intends to
present a debt agreement proposal and the debtor is:
(a) unable to read the relevant material,
because he or she is:
(i) blind, partially sighted,
illiterate or partially literate; or
(ii) insufficiently familiar with the
English language; or
(b) unable to sign the debt agreement proposal or
the acknowledgment, because of a physical incapacity.
(6) The debt agreement proposal and the acknowledgement
may be signed by another person, who must sign a statement:
(a) if subparagraph (5) (a) (i)
applies — that he or she has read the relevant material to the debtor; or
(b) if subparagraph (5) (a) (ii)
applies — that he or she has interpreted the relevant material to the
debtor in a language with which both persons are familiar; or
(c) if paragraph (5) (b)
applies — that he or she believes that the debtor has read and understood
the relevant material.
(7) In this regulation:
relevant material means the debt agreement
proposal, the prescribed information and the acknowledgment.
9.02 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, college of advanced education or other
Australian tertiary institution that is of an equivalent or higher level to,
and contains the same or similar subject matter as, 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 intends to
sign an authority and the debtor is:
(a) unable to read the relevant material,
because he or she is:
(i) blind, partially sighted,
illiterate or partially literate; or
(ii) insufficiently familiar with the
English language; or
(b) unable to sign the authority or the
acknowledgment, because of a physical incapacity.
(5) The authority and the acknowledgement may be signed
by another person, who must sign a statement:
(a) if subparagraph (5) (a) (i)
applies — that he or she has read the relevant material to the debtor; or
(b) if subparagraph (5) (a) (ii)
applies — that he or she has interpreted the relevant material to the
debtor in a language with which both persons are familiar; or
(c) if paragraph (5) (b)
applies — that he or she believes that the debtor has read and understood
the relevant material.
(6) In this regulation:
relevant material means the authority, the
prescribed information and the acknowledgment.
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 after consenting, give a copy of the signed consent to an Official
Receiver.
(3) The registered
trustee or solicitor must, within 2 working days after a proposal for dealing
with the debtor’s affairs under Part X of the Act is finalised, give a
copy of the proposal to:
(a) an Official Receiver; and
(b) each creditor of the bankrupt of whom the
registered trustee or solicitor is aware.
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 a copy of the
authority and the debtor’s statement of affairs to an Official Receiver.
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 an Official Receiver, the debtor and each
creditor:
(a) notice in writing of the date, time and
place of the meeting; 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.
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.
11.01A Copy
of petition etc to be given to Official Receiver
(1) A person who presents a petition under
section 244 or 247 of the Act must, within 2 working days after the
petition is endorsed by the Court, give a copy of the petition to the Official
Receiver.
(2) The time within which, under subsection
244 (14) of the Act, a creditor must give to the Official Receiver a copy
of an order under subsection 244 (11) of the Act is 2 working days
after the order is endorsed by the Court.
11.01B Proof
of statement of affairs
(1) Subregulation (2) applies in any proceedings to
a document or copy of a document that purports to be a certificate signed by
the Inspector‑General stating that, at a particular point in time, the
form of statement of affairs that is attached to the certificate was the
approved form for section 6A of the Act.
(2) The document or copy:
(a) is proof, in the absence of evidence to the
contrary, of information that is stated in it; and
(b) may be tendered in evidence without further
proof.
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 Fees and Remuneration 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 Fees and Remuneration 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
Division 1 Offences
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.
Division 2 Infringement notices
14.03 Purpose
and effect of Division
(1) For section 277B of the Act, this Division
establishes an infringement notice scheme, as an alternative to prosecution,
for infringement notice offences.
(2) This Division does not:
(a) require an infringement notice to be issued
to a person for an infringement notice offence; or
(b) affect the liability of a person to be
prosecuted for an infringement notice offence if an infringement notice is not
issued to the person for the offence; or
(c) prevent the issue of 2 or more infringement
notices to a person for an infringement notice offence; or
(d) affect the liability of a person to be
prosecuted for an infringement notice offence if the person does not comply
with an infringement notice for the offence; or
(e) limit or otherwise affect the penalty that
may be imposed by a court on a person convicted of an infringement notice
offence.
14.04 Definitions
In this Division:
infringement notice means an infringement
notice served under regulation 14.05.
infringement notice offence means an offence
mentioned in the table in subsection 277B (2) of the Act.
infringement penalty, for an
infringement notice offence, means the penalty for the offence mentioned in the
table in subsection 277B (2) of the Act.
14.05 When
infringement notices can be issued
If the Inspector‑General
has reasonable grounds to believe that a person has committed an infringement
notice offence, the Inspector‑General may, within 12 months after the
alleged commission of the offence, issue the person with an infringement notice
for the offence.
14.06 Contents
of infringement notice
(1) An infringement notice must:
(a) be identified by a unique number; and
(b) state that the notice is issued under these
Regulations; and
(c) state the name of the person who issued the
notice and how the person may be contacted; and
(d) be signed by the person who issued the
notice; and
(e) state the name and address of the person to
whom it is issued; and
(f) set out brief details of the offence the
person is alleged to have committed, including:
(i) the infringement notice offence
that was allegedly contravened; and
(ii) the maximum penalty that may be
imposed by a court for the offence; and
(g) state the amount of the infringement penalty
that is payable under the notice; and
(h) state how and where the infringement
penalty can be paid, including:
(i) the period in which the penalty
may be paid; and
(ii) if the penalty can be paid by
posting the payment — the place to which it should be posted; and
(i) state that if the person pays the infringement
penalty in time:
(i) any liability of the person for
the offence is discharged; and
(ii) a prosecution of the offence may
not be brought against the person; and
(iii) the person is not regarded as
having admitted guilt or liability for the offence; and
(iv) the person is not regarded as
having been convicted of the offence; and
(j) state that the person may apply to the
Inspector‑General for an extension of time in which to pay the
infringement penalty; and
(k) set out how the notice may be withdrawn; and
(l) state that if the notice is withdrawn:
(i) any amount of penalty paid under
the notice must be refunded to the person; and
(ii) the person may be prosecuted in a
court for the offence; and
(m) state that the person may apply in writing to
the Inspector‑General requesting the withdrawal of the notice.
(2) An infringement notice may contain any other
information that the Inspector‑General considers necessary.
14.07 Method
of serving infringement notices
(1) An infringement notice must be served on the person
to whom it is issued.
(2) An infringement notice may be served on an
individual:
(a) personally or by post; or
(b) by leaving the notice:
(i) at the last-known place of
residence or business of the person; and
(ii) with a person, apparently over the
age of 16 years, who appears to live or work at the place.
(3) An infringement notice may be served on a
corporation:
(a) by leaving it at, or by sending it by post
to, the address of the head office, a registered office or a principal office,
of the corporation; or
(b) by giving it,
at an office mentioned in paragraph (a), to someone who is, or who the
person serving the notice reasonably believes is, an officer or employee of the
corporation.
(4) Subject to subregulation (5), an infringement
notice may be served on a registered trustee or a registered debt agreement
administrator by sending it by electronic communication to the trustee’s or
administrator’s business email address.
(5) An infringement notice must not be sent by electronic
communication unless the Inspector‑General believes, on reasonable
grounds, that the registered trustee or a registered debt agreement
administrator will access the email account to which the notice is sent.
14.08 Time
for payment of infringement penalty
The penalty specified in an infringement
notice must be paid:
(a) within 28 days after the day the notice is
served on the person to whom it is issued; or
(b) if the person applies for an extension of
time in which to pay the infringement penalty and that application is granted —
within the extension period allowed; or
(c) if the person applies for an extension of
time in which to pay the infringement penalty and the application is refused —
before the end of the later of:
(i) 7 days after day the notice
of the refusal is served on the person; and
(ii) 28 days after the day the
infringement notice is served on the person; or
(d) if the person applies for the notice to be
withdrawn and the application is refused — within 28 days after the day the
notice of the refusal is served on the person.
14.09 Extension of time to pay infringement
penalty
(1) A person served with an infringement notice may
apply, in writing, to the Inspector‑General for an extension of time of
up to 28 days in which to pay the infringement penalty specified in the
notice.
(2) If the application is made after the end of the 28
day period specified in the notice for payment of the infringement penalty, the
application must include a statement explaining why the person could not deal
with the notice within that period.
(3) Within 14 days after receiving the application, the
Inspector‑General must:
(a) grant, or refuse to grant, an extension of
time to pay the infringement penalty; and
(b) notify the person in writing of the decision,
and, if the decision is a refusal, the reasons for the decision.
(4) Notice of the decision may be served on the person
in any way in which the infringement notice could have been served on the
person.
14.10 Withdrawal of infringement notice
(1) Before the end of 28 days after receiving an
infringement notice, a person may apply, in writing, to the Inspector‑General
for the infringement notice to be withdrawn.
(2) Within 14 days after receiving the application, the
Inspector‑General must:
(a) withdraw, or refuse to withdraw, the notice;
and
(b) notify the person in writing of the decision,
and, if the decision is a refusal, the reasons for the decision.
(3) Before withdrawing, or refusing to withdraw, a
notice, the Inspector‑General must consider:
(a) the circumstances of the offence stated in
the notice; and
(b) whether there are exceptional circumstances
to justify the withdrawal; and
(c) any other relevant matter.
(4) The Inspector‑General may also withdraw an
infringement notice without an application having been made if he or she
believes it is appropriate to do so in all the circumstances of the particular
case.
14.11 Notice
of withdrawal of infringement notices
(1) Notice of the withdrawal of an infringement notice
may be served on a person in any way in which the infringement notice could
have been served on the person.
(2) A notice withdrawing an infringement notice served
on a person for an offence:
(a) must include the following information:
(i) the name and address of the person;
(ii) the number of the infringement
notice;
(iii) the date of issue of the
infringement notice; and
(b) must state that the notice is withdrawn; and
(c) if it is proposed that a prosecution be
brought against the person for the offence — must state that the person
may be prosecuted in a court for the offence.
14.12 Refund
of infringement penalty
If an infringement notice is withdrawn after the
infringement penalty specified in it has been paid, the Inspector‑General
must refund the amount of the penalty to the person who paid it.
14.13 Effect
of payment of infringement penalty
If a person served with an infringement notice
pays the infringement penalty specified in the notice within the period
specified in the notice (or any further period of time allowed under regulation
14.09):
(a) any liability of the person for the offence
is discharged; and
(b) a prosecution of the offence may not be
brought against the person for the offence; and
(c) the person is not regarded as having
admitted guilt or liability for the offence; and
(d) the person is not regarded as having been
convicted of the offence.
14.14 Payment
of infringement penalty — cheques
If a person pays an infringement penalty by cheque,
payment is not taken to have been made until the cheque has been honoured on
presentation.
14.15 Evidentiary
certificates
(1) The Inspector‑General may sign a certificate
that states any of the following in relation to an infringement notice served
on a person:
(a) that the infringement penalty specified in
the infringement notice was not paid by the person within the time specified in
the notice;
(b) that the Inspector‑General granted, or
refused to grant, an extension of time to the person to pay the infringement
penalty;
(c) that the infringement penalty was not paid
by the person within the period specified in the extension;
(d) that the infringement notice was withdrawn
under regulation 14.10 on a day specified in the certificate.
(2) At a hearing of a prosecution for an offence
mentioned in an infringement notice, a certificate signed by the Inspector‑General
in accordance with subregulation (1) is evidence of the matters specified
in the certificate.
(3) A certificate that purports to be signed by the
Inspector‑General is taken to have been signed by the Inspector‑General
unless the contrary is proved.
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.
trustee includes a debt agreement administrator.
(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 an Official Receiver.
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 Fees and Remuneration
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 Fees and Remuneration
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 Fees and Remuneration Determination;
or
(b) is appointed as described in clause 3.06 of
the Fees and Remuneration Determination; or
(c) first acts in accordance with subclause 3.09
(1) of the Fees and Remuneration Determination; or
(d) performs work as described in subclause 3.09 (2)
or clause 3.10 of the Fees and Remuneration 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 Fees and
Remuneration 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 Fees and Remuneration 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, 13, 14 or 15 of the table
following clause 2.01 of the Fees and Remuneration Determination; or
(c) clause 2.02, 2.08 or 2.09 of the Fees and
Remuneration 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).
Division 3 Transitional
16.13 Application
of Same-Sex Relationships (Equal Treatment in Commonwealth Laws — General
Law Reform) Act 2008
(1) The amendments made by items 20, 21,
22, 23, 29, 30 and 31 of Schedule 2 to the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—General Law
Reform) Act 2008 apply to a bankruptcy the date of which is on or after the
commencement of those amendments.
(2) The amendments made by items 25 to
28 of Schedule 2 to the Same-Sex Relationships
(Equal Treatment in Commonwealth Laws—General Law Reform) Act 2008 apply to
a transfer of property that is made on or after the commencement of those
amendments.
(3) The
amendment made by item 16 of Schedule 2 to the Same‑Sex Relationships (Equal Treatment in Commonwealth Laws —
General Law Reform) Act 2008 applies to an examinable period, within the
meaning of section 139CA of the Act, that begins on or after the
commencement of that amendment.
(4) For sections 265 and 268 of the
Act, the amendments made by items 11, 13, 18 and 19 of Schedule 2 to the Same-Sex
Relationships (Equal Treatment in
Commonwealth Laws — General Law Reform) Act 2008 applies to a disposition
of property that is made on or after the commencement of those amendments.
Schedule 1 Forms
(regulation 4.02)
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 Fees and Remuneration 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.
2.15 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.
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
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
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 185ZCA, 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))
|