Bankruptcy Act 1924 (Cth)
BANKRUPTCY.
An Act relating to Bankruptcy.
[Assented to 8th October, 1924.]
BE it enacted by the King’s Most Excellent Majesty, the Senate, and the House of Representatives of the Commonwealth of Australia, as follows:—
Part I.—Preliminary.
Part I.—Preliminary (Sections 1–8).
Part II.—Administration (Sections 9–17).
Part III.—Constitution, Procedure and Powers of Courts.
Division 1.—Jurisdiction (Sections 18–26).
Division 2.—Procedure (Sections 27–43).
Division 3.—Evidence (Sections 44–51).
Part IV.—Proceedings in connexion with Sequestration.
Division 1.—Acts of Bankruptcy (Sections 52, 53).
Division 2.—Petition and Sequestration Order (Sections 54–65).
Division 3.—Proceedings consequent on Sequestration Order (Sections 66, 67).
Division 4.—Public Examination of Bankrupt (Sections 68–70).
Division 5.—Composition or Scheme of Arrangement (Sections 71–73).
Division 6.—Committee of Inspection (Sections 74, 75).
Part V.—Control over Person and Property of Debtor (Sections 76–80).
Part VI.—Administration of Property.
Division 1.—Proof of Debts (Sections 81–83).
Division 2.—Priority of Debts (Sections 84–89).
Division 3.—Property available for Payment of Debts (Sections 90, 91).
Division 4.—Effect of Bankruptcy on antecedent transactions (Sections 92–98).
Division 5.—Realization of Property (Sections 99–111).
Division 6.—Distribution of Property (Sections 112–118).
Part VII.—Discharge of Bankrupt (Sections 119–125).
Part VIII.—Trustees.
Division 1.—Appointment and Official Name (Sections 126–132).
Division 2.—Remuneration and Costs (Sections 133–136).
Division 3.—Trustees’ Accounts and Audits (Sections 137–146).
Division 4.—Control over Trustees (Sections 147–149).
Division 5.—Vacation of Office of Trustee (Sections 150–153).
Part IX.—Small Bankruptcies (Section 154).
Part X.—Estates of Persons Dying Insolvent (Sections 155, 156).
Part XI.—Compositions and Assignments without Sequestration (Sections 157–188).
Part XII.—Deeds of Arrangement (Sections 189–207).
Part XIII.—Unclaimed Funds or Dividends (Section 208).
Part XIV.—Offences (Sections 209–222).
Part XV.—Miscellaneous (Section 223).
Cf. E.B.A., s. 167.
“Affidavit” includes statutory declaration and affirmation;
“Available act of bankruptcy” means any act of bankruptcy available for a bankruptcy petition at the date of the presentation of the bankruptcy petition on which the sequestration order is made;
“Bankrupt” means any person in respect of whose estate a sequestration order has been made;
“Bankruptcy”, in relation to jurisdiction or proceedings, includes any jurisdiction or proceedings under or by virtue of this Act;
“Debt provable in bankruptcy”, or “Provable debt”, includes any debt or liability by this Act made provable in bankruptcy;
E.B.A., s. 1 (2).
“Debtor” includes any person, whether a British subject or not, who at the time when any act of bankruptcy was done or suffered by him—
(
a ) was personally present in Australia; or(
b ) ordinarily resided or had a place of residence in Australia; or(
c ) was carrying on business in Australia, personally, or by means of an agent or manager; or(
d ) was a member of a firm or partnership which carried on business in Australia;“Extraordinary resolution” means a resolution passed by three-fourths in number and value of the creditors present, personally or by proxy, at a meeting of creditors and voting on the resolution;
“Goods” includes all chattels personal;
“Oath” includes statutory declaration and affirmation;
“Officer” means an officer of the Court;
“Ordinary resolution” means a resolution passed by a majority in value of the creditors present, personally or by proxy, at a meeting of creditors and voting on the resolution;
“Petition” means a bankruptcy petition;
“Prescribed” means prescribed by this Act, or by rules or regulations under this Act;
“Property” includes money, goods, things in action, land, and every description of property, whether real or personal and whether situate in Australia or elsewhere; also obligations, easements, and every description of estate, interest and profit, present or future, vested or contingent, arising out of or incident to property as above defined;
“Registrar” means a Registrar in Bankruptcy and includes a Deputy Registrar in Bankruptcy when exercising any of the powers or functions of the Registrar;
“Regulations” includes rules;
“Resolution” means ordinary resolution;
“Rules” means rules made under this Act and includes regulations;
“Secured creditor” means a person holding a mortgage, charge, or lien on the property of the debtor, or any part thereof, as a security for a debt due to him from the debtor;
“Sequestration” means the making of a sequestration order, and “sequestrate” has a corresponding meaning;
“Sheriff” includes any officer charged with the execution of a writ or other process;
“Special resolution” means a resolution passed by a majority in number and three-fourths in value of the creditors present, personally or by proxy, at a meeting of creditors and voting on the resolution;
“State Court” means a State Court having jurisdiction in bankruptcy under this Act;
“Supreme Court” means the Supreme Court of a State or a Judge thereof;
“Territory” means a Territory under the authority of the Commonwealth (including a Territory governed by the Commonwealth under a mandate) to which this Act extends;
“The Court” means any Court having jurisdiction in bankruptcy or a Judge thereof;
“The High Court” means the High Court of Australia;
“This Act” includes all rules or regulations made thereunder;
“Trustee” means the trustee in bankruptcy of a bankrupt’s estate and the official receiver when acting as trustee or the trustee under a composition or scheme of arrangement or under a deed of arrangement or under a deed of assignment, as the case may be.
Cf. E.B.A., ss. 125–128.
N.S.W., ss. 114, 123.
Vic., ss. 3, 5, 6.
Q., ss. 30, 31.
S.A., s. 10.
W.A., ss. 112, 134.
Tas., s. 4.
(2.) Subject to such modifications as are prescribed, the provisions of this Act shall apply to limited partnerships in like manner as if limited partnerships were ordinary partnerships, and on all the general partners of a limited partnership becoming bankrupt, the assets of the limited partnership shall vest in the trustee.
E.B.A., s. 151.
W.A., s. 134.
(3.) Except as otherwise expressly provided in this Act, the provisions of this Act relating to the remedies against the property of a debtor, the priorities of debts, the effect of a composition or scheme of arrangement, and the effect of an order of discharge, shall bind the Crown as representing the Commonwealth or any State:
Provided that where by virtue of anything done prior to the commencement of this Act under any Act, State Act, or law of a Territory, any property, real or personal, is made, before the commencement of this Act, subject to a charge in respect of any debt due to the Crown, as representing the Commonwealth or a State or in respect of any rates imposed by any local governing body, nothing in this Act shall affect the operation of that Act, State Act or law in respect of that charge.
(
a ) any provision in any State Bankruptcy or Insolvency Act relating to matters not dealt with, either expressly or by necessary implication, in this Act; or(
b ) any proceedings pending at the commencement of this Act under any State Bankruptcy or Insolvency Act, or any right or privilege acquired or duty imposed or liability disqualification fine forfeiture or other punishment incurred before the commencement of this Act,
and any proceeding under any State Bankruptcy or Insolvency Act, pending at the commencement of this Act, may, subject to section nineteen of this Act, be continued and completed as if this Act had not been passed.
E.B.A., s. 147.
N.S.W., s. 151.
Vic., s. 41.
W.A., s. 127.
Tas., s. 76.
(2.) No defect or irregularity in the appointment or election of any official receiver, trustee, or member of a committee of inspection shall vitiate any act done by him in good faith.
Part II.—Administration.
Cf. E.B.A., s. 70.
Cf. E.B.A., ss. 70, 102.
N.S.W., s. 139.
Vic., ss. 13, 70.
Q., ss. 4, 9, 78, 81, 83.
S.A., ss. 41, 48, 50.
W.A., ss. 63, 64, 68, 92.
Tas., s. 61.
(2.) There shall be in each District a Registrar in Bankruptcy, and such Deputy Registrars, official receivers, and other officers, as are necessary.
(3.) An official receiver may, if the Governor-General thinks fit, be remunerated by fees and commission only.
(4.) Where an official receiver is remunerated by fees and commission only—
(
a ) if, in respect of any estate, the official receiver is appointed trustee or no trustee is appointed, he shall receive commission as trustee of the estate; and(
b )if, in respect of any estate, a person other than the official receiver is appointed trustee, the official receiver shall receive such fees as are prescribed, and such commission as the Court directs.
(5.) The Registrars and Deputy Registrars shall be officers of the Court and shall have such duties as the Attorney-General directs or as are prescribed.
(6.) The Attorney-General may by order direct that any specified Deputy Registrar shall have and exercise any or all of the powers and functions of a Registrar.
(7.) An official receiver shall act under the general authority and directions of the Registrar, and shall also be an officer of the Court.
(8.) The Court shall distribute the receiverships of the particular estates among the official receivers in the prescribed manner.
(9.) The official receiver appointed for any particular estate shall be the official receiver for that particular estate.
E.B.A., s. 71.
S.A., s. 47.
W.A., s. 64.
(
a )to discharge the duties of an official receiver during any temporary vacancy in the office, or during the temporary absence of the official receiver through illness or otherwise;(
b )to be the deputy of an official receiver and to act for him for such time and under such conditions as are prescribed; or(
c ) to discharge any portion of the duties of an official receiver, the performance of which by the official receiver is, in the opinion of the Registrar, inexpedient.
E.B.A., s. 72 (1).
W.A., s. 65.
E.B.A., s. 73.
S.A., s. 41.
W.A., s. 66.
(
a ) to investigate—(i) the conduct, property, dealings, and transactions of the debtor;
(ii) the actual cause of bankruptcy;
(iii) the amount of assets and liabilities; and
(iv) the books and accounts kept by the debtor,
and report to the Court, within thirty days after the presentation of the bankruptcy petition or within such further time as is prescribed, the result of the investigations and whether or not he has reason to believe that the debtor has committed any act which constitutes an offence under this Act, or which would justify the Court in refusing, suspending or qualifying an order for his discharge or release;
(
b )to make such other investigations and reports concerning his conduct and the causes of his bankruptcy as is prescribed or as the Court directs;(
c )to take such part as he thinks fit in his public examination; and(
d )to take such part, and give such assistance in relation to the prosecution of any bankrupt who is deemed to have been guilty of an offence against this Act as the Registrar or the Court directs.
E.B.A., s. 74.
Vic., s. 103.
S.A., s. 41.
W.A., s. 67.
(
a )pending the appointment of a trustee, or if no trustee is appointed, or during any vacancy in the office of trustee, to act as trustee;(
b )to summon and preside at the first meeting of creditors;(
c ) to advertise the sequestration order, the date of the creditors’ first meeting and of the bankrupt’s public examination, if any, and such other matters as it is necessary to advertise.
(2.) When the bankrupt cannot himself prepare a proper statement of affairs, the official receiver may, subject to any prescribed conditions, and at the expense of the estate, employ some qualified person to assist in the preparation of the statement.
(3.) Every official receiver shall in the prescribed manner account for and pay over all moneys and deal with all securities.
Cf. E.B.A., s. 136.
Q., s. 196.
Tas., s. 108.
(2.) The Attorney-General shall cause a general annual report of all matters, administrative, judicial, and financial, within this Act, to be prepared and laid before both Houses of the Parliament.
Part III.—Constitution, Procedure and Powers of Courts.
E.B.A., s. 96.
N.S.W., s. 133.
Vic., s. 10.
Q., ss. 8, 9.
S.A., s. 11.
W.A., s. 89.
Tas., s. 58.
(
a ) such Federal Courts (if any) as the Parliament creates to be Courts of Bankruptcy; and(
b )such State Courts or Courts of a Territory as are specially authorized by the Governor-General by proclamation to exercise that jurisdiction.
(2.) The jurisdiction in bankruptcy of a State Court or Court of a Territory may be exercised—
(
a )in the case of a State Court by such one or more Judges of the Court as the Governor-General with the concurrence of the Governor of the State appoints for that purpose; and(
b )in the case of a Court of a Territory by such one or more Judges of the Court as the Governor-General appoints for that purpose.
(
a ) the Judge or Judges of the Court; or(
b )in the case of a State Court, such one or more Judges of the Court as the Governor-General with the concurrence of the Governor of the State appoints for that purpose; or(
c ) in the case of a Court of a Territory, such one or more Judges of the Court as the Governor-General appoints for that purpose.
E.B.A., s. 100.
Vic., ss. 12, 14, 18.
Q., ss. 18, 177 (5.)
S.A., s. 25.
Tas., s. 74 (6.).
(2.) Any proceedings in bankruptcy—
(
a ) may at any time, and at any stage thereof, and either with or without application from any of the parties thereto, be transferred by any prescribed authority and in the prescribed manner from one Court to another Court, or from any place where a Court is appointed to sit to any other place where a Court is held; or(
b )may by the like authority be retained in the Court in which the proceedings were commenced, although it may not be the Court in which the proceedings ought to have been commenced.
N.S.W., s. 142.
Vic., s. 32 (1.).
Q., s. 19.
S.A., ss. 37, 38.
(3.) If in any bankruptcy proceeding in a Court any question of law arises which all the parties thereto desire, or which one of them and the Judge of the Court desire, to have determined in the first instance in the High Court, the Judge shall—
(
a )state the facts in the form of a special case for the opinion of the High Court; and(
b )transmit the special case and the proceedings, or such of them as are required, to the High Court for the purposes of the determination.
E.B.A., s. 101.
N.S.W., s. 136.
Vic., ss. 10, 20.
Q., s. 10.
S.A., s. 18.
W.A., s. 91.
Tas., s. 62.
Provided that the following shall be heard and determined in open Court, namely:—
(
a ) Examinations under this Act;(
b ) Applications for orders of discharge;(
c ) Applications to consider and the consideration of a composition or scheme of arrangement or the granting of a certificate of the validity of a deed of assignment;(
d )Applications to set aside or avoid any settlement conveyance transfer security or payment, or to declare for or against the title of trustees to any property adversely claimed;(
e ) Applications for the committal of any person to prison;(
f ) Appeals against the rejection of a proof or applications to expunge or reduce a proof;(
g ) Applications for the trial of issues of fact with a jury and the trial of such issues; and(
h )All questions arising under Part XI. and Part XII. of this Act.
Cf. E.B.A., s. 122.
Q., s. 25.
S.A., s. 313.
Tas., s. 67.
(2.) Subject to rules all barristers, solicitors and attorneys admitted to practise in the High Court or in any Supreme Court of a State or Territory may practise and be heard in every Court exercising bankruptcy jurisdiction.
N.S.W., s. 137.
E.B.A., s. 102.
N.S.W., ss. 137, 143.
S.A., s. 48.
W.A., s. 92.
Tas., s. 64.
(
a ) To hear debtors’ petitions and to make sequestration orders thereon, or to give leave to withdraw the petitions;(
b )To hold a public sitting for the examination of any bankrupt, and adjourn the same from time to time and direct further examination; to appoint a time and place for the examination or further or adjourned examination; and to put such questions to the bankrupt as he thinks expedient;(
c ) To approve compositions or schemes of arrangement when they are not opposed;(
d )To order to attend before him and examine the bankrupt or his wife, or, where the bankrupt is a married woman, her husband, or any person known or suspected to have in his possession property of the bankrupt or to be indebted to him, or to be capable of giving information respecting the bankrupt, his trade dealings, property or affairs;(
e ) To do any act or thing or give any direction or permission by this Act authorized or required to be done or given by the committee of inspection, where there is no such committee;(
f ) To grant an order of discharge where the application is not opposed;(
g )To direct payment out of the pay, pension, salary, emoluments, profits, wages, earnings or income of any bankrupt, and the application thereof;(
h )To give directions to the official receiver or trustee in relation to any matter relating to a bankruptcy;(
i )To adjourn any proceedings before him, to amend any written process or proceedings under this Act, and to take the whole or any part of the evidence in any matter eithervivâ voce or otherwise;(
j )To authorize the official receiver or trustee to commence and prosecute any action in the name of the official receiver or trustee and of the bankrupt’s partner;(
k )Subject to section seven of this Act to declare any proceeding in bankruptcy invalidated by a formal defect or irregularity;(
l )To declare that a secured creditor voting in respect of his whole debt shall not be deemed to have surrendered his security if the Registrar is satisfied that the omission to value the security has arisen from inadvertence;(
m )To give directions as to sale of property comprised in any security;(
n )To exercise the powers of the Court under section sixty-two of this Act; and(
o )To administer oaths where necessary in all proceedings within his jurisdiction under this Act.
(2.) Any order made or act done by a Registrar in the exercise of his power and jurisdiction shall be deemed the order or act of the Court, subject nevertheless to review on summary application to the Court.
E.B.A., s. 105.
N.S.W., s. 134.
Vic., s. 15.
Q., s. 22.
S.A., ss. 39, 40.
W.A., s. 93.
Tas., s. 69.
(
a ) which arise in any case of bankruptcy coming within the cognisance of the Court; and(
b )which the Court deems it expedient or necessary to decide for the purpose of doing complete justice or making a complete realization and distribution of property in the case.
Vic., s. 30 (1.).
Q., ss. 23, 24.
S.A., s. 39.
(2.) If in any proceeding in bankruptcy there arises any question of fact which any of the parties desires to be tried before a jury, or which the Court thinks ought to be tried before a jury, the Court may, if it thinks fit, direct the trial to be had before a jury, and the trial may be had accordingly in the same manner as if it were the trial of an issue of fact in an action.
(3.) Where default is made by a trustee, debtor, or other person in obeying any order or direction given by the Registrar or by the official receiver or by any other officer under any power conferred by this Act, the Court may, on the application of a Registrar or official receiver or creditor who has proved or other duly authorized person—
(
a )order the defaulter to comply with the order or direction, and(
b ) if it thinks fit, make an immediate order for the committal of the defaulter.
The power given by this sub-section shall be deemed to be in addition to, and not in substitution for, any other right or remedy in respect of the default.
E.B.A., s. 108.
N.S.W., s. 138.
Vic., s. 31.
Q., ss. 14–16.
S.A., ss. 30, 32–36.
W.A., s. 95.
Tas., s. 68.
(2.) Except where otherwise provided, an order of the Court in a bankruptcy matter shall, at the instance of the official receiver or trustee or any person aggrieved, be subject to appeal to the High Court.
(3.) No appeal shall be entertained except in conformity with any rules in relation thereto.
E.B.A., s. 103.
N.S.W., s. 107.
Vic., ss. 26, 35.
Q., ss. 20, 21.
S.A., ss. 309, 315.
W.A., s. 96.
(2.) The Court may—
(
a ) upon such terms as it thinks fit adjourn at any time any proceedings before it;(
b ) amend at any time any written process, proceeding, or notice under this Act;(
c ) extend, either before or after its expiration, or abridge any time limited by this Act for doing any act or thing; and(
d )subject to rules, take in any matter the whole or any part of the evidence eithervivâ voce, or by interrogatories, or upon affidavit, or by commission abroad, or as the Court directs or as is prescribed.
N.S.W., s. 115.
Vic., s. 51.
Q., s. 68.
N.S.W., s. 116.
Vic., s. 46.
Q., s. 42.
E.B.A., s. 114.
N.S.W., s. 112.
Vic., s. 53.
Q., s. 68.
S.A., s. 75.
W.A., s. 101.
Tas., s. 93.
E.B.A., s. 116.
N.S.W., s. 117.
Q., s. 159.
W.A., s. 103.
Tas., s. 95.
E.B.A., s. 117.
N.S.W., s. 118.
Vic., s. 108.
Q., s. 162.
S.A., s. 146.
W.A., s. 104.
Tas., s. 98.
(2.) Notice of the application for authority to commence the action shall be given to the partner, who may show cause against it, and on his application the Court may, if it thinks fit, direct that he shall receive his proper share of the proceeds of the action, and if he does not claim any benefit therefrom he shall be indemnified, as the Court directs, against costs in respect thereof.
E.B.A., s. 119.
N.S.W., s. 120.
Vic., s. 37.
W.A., s. 106.
E.B.A., s. 110.
Q., s. 177 (1.).
N.S.W., s. 108.
W.A., s. 97.
Tas., s. 74 (2.).
E.B.A., s. 111.
N.S.W., s. 109.
Vic., s. 65.
Q., s. 177 (2.).
S.A., s. 74.
W.A., s. 98.
Tas., s. 74 (4).
E.B.A., s. 112.
N.S.W., s. 110.
Vic., s. 66.
Q., s. 177 (10).
S.A., s. 112.
W.A., s. 99.
Tas., s 74 (9).
E.B.A., s. 113.
N.S.W., s. 111.
Vic., s. 66 (2).
Q., s. 177 (11).
W.A., s. 100
Tas., s. 74 (10).
E.B.A., s. 115.
N.S.W., s. 113.
Vic., s. 68.
W.A., s. 102.
Tas., s. 94.
E.B.A., s. 118.
N.S.W., s. 119.
Vic., s. 36.
Q., s. 189.
W.A., s. 105.
Tas., s. 105.
E.B.A., ss. 121, 123.
Vic., s. 27.
S.A., s. 103.
W.A., ss. 107, 108.
Tas., s. 71.
(2.) A search warrant issued by the Court for the discovery of any property of a debtor may be executed in manner prescribed, or in the same manner and subject to the same privileges in and subject to which a search warrant for property supposed to be stolen may be executed according to law.
E.B.A., s. 124.
Vic., s. 29.
W.A., s. 109.
Tas., s. 72.
E.B.A., s. 149.
Vic., ss. 39, 40.
Q., s. 177 (7).
W.A., s. 132.
Tas., s. 74 (7).
E.B.A., s. 146.
N.S.W., s. 151.
Vic., s. 7.
W.A., s. 126.
E.B.A., s. 137.
N.S.W., s. 146.
Vic., s. 42.
Q., ss. 70, 186.
S.A., s. 305.
W.A., s. 118.
(2.) The
production of a copy of the
E.B.A., s. 138.
N.S.W., s. 147.
Vic., s. 132.
W.A., s. 119.
Tas., s. 99.
(2.) Until the contrary is proved, every meeting of creditors in respect of which a minute of proceedings has been so signed shall be deemed to have been duly convened and held, and all resolutions passed or proceedings had thereat, to have been duly passed or had.
E.B.A., s. 139.
S.A., s. 302.
W.A., s. 120.
Tas., s. 100.
(
a ) petition in bankruptcy; or(
b )order or certificate made by any Court having any jurisdiction under this Act; or(
c ) instrument, affidavit, document, deed, or extract from any deed or register, made or used in the course of any proceedings under this Act; or(
d )copy of any of the above-mentioned documents;
shall, if it appears to be sealed with the seal of any Court having jurisdiction under this Act, or purports to be signed by any Judge thereof, or is certified as a true copy by any Registrar, be receivable in evidence in all legal proceedings whatsoever.
E.B.A., s. 140.
Vic., s. 8. (Cf. s. 12, No. 4, 1895.)
S.A., s. 308.
W.A., s. 121.
(
a ) in the case of a person within the Commonwealth—be sworn before any person authorized to administer oaths in the High Court or Supreme Court, or before a Registrar, or official receiver, or before any Judge of the Court, or justice of the peace, or commissioner for affidavits, or commissioner for declarations; or(
b )in the case of a person out of the Commonwealth—be sworn before—(i) a person authorized under the law of the Commonwealth to take affidavits, or a commissioner of the Supreme Court of a State for taking affidavits empowered and authorized to act in that place;
(ii) a High Commissioner of the Commonwealth, a British ambassador, envoy, Minister,
charge d’affaires, secretary of embassy of legation, consul-general, consul, vice-consul, acting consul, pro-consul, consular agent, or notary public exercising his function in that place; or(iii) any person qualified to administer an oath in that place, he being certified by any of the persons mentioned in the last two preceding sub-paragraphs, or by a notary public of the country or by the superior court of the place to be so qualified.
E.B.A., s. 141.
Q., s. 184.
S.A., s. 307.
W.A., s. 122.
Tas., s. 101.
E.B.A., s. 142.
Vic., s. 43.
Q., s. 185.
S.A., s. 15.
W.A., s. 123.
Tas., s. 102.
E.B.A., s. 143.
S.A., s. 301.
W.A., s. 124.
Tas., s. 17.
Q., s. 183.
(2.) The shorthand writer shall be sworn faithfully to report the evidence and a transcript of the shorthand writer’s notes certified by him to be correct shall be admitted to prove the oral evidence of the witnesses in the same manner as depositions signed by them may be admitted.
Part IV.—Proceedings in connection with Sequestration.
E.B.A., s. 1.
N.S.W., s. 4.
Vic., s. 49.
S.A., ss. 57–68.
W.A., s. 4.
Q., s. 44.
Tas., s. 5.
(
a )If in Australia or elsewhere he makes a conveyance or assignment of his property to trustees for the benefit of his creditors generally;(
b )If in Australia or elsewhere he makes a fraudulent conveyance, gift, delivery, or transfer of his property, or of any part thereof;(
c ) If in Australia or elsewhere he makes any conveyance or transfer of his property or any part thereof, or creates any charge thereon which would, under this or any other Act be void as a preference or a fraudulent preference if he became bankrupt;(
d )If with intent to defeat or delay his creditors he departs or remains out of Australia, or out of a State, or departs from his dwelling-house or usual place of business, or otherwise absents himself, or begins to keep house;(
e ) If execution against him has been levied by seizure of his goods under process in an action in any Court, or in any civil proceeding in any Court, and the goods have beeneither sold or held by the sheriff for seven days or if any such execution has been issued against him and has been returned unsatisfied:
Provided that, where an interpleader summons has been taken out in regard to the goods, the time elapsing between the date on which the summons is taken out and the date on which the proceedings on such summons are finally disposed of, settled or abandoned, shall not be taken into account in calculating the period of seven days;
(
f ) If he has been adjudged or declared bankrupt or insolvent by any Court in the King’s Dominions out of the Commonwealth having jurisdiction in bankruptcy or insolvency, in which case it shall not be necessary to produce any other evidence of the act of bankruptcy than a duly certified copy, under the seal of the Court, of the order of adjudication by which the debtor was declared or adjudged bankrupt or insolvent;(
g )If, at any meeting of creditors, he consents to present a petition under this Part of this Act for the sequestration of his estate, and he does not, within forty-eight hours from the date of his consent, present the petition;(
h )If, at any meeting of creditors, he admits that he is in insolvent circumstances and is requested by a resolution of a majority of the creditors present at the meeting to surrender his estate for administration in accordance with this Act, and he refuses so to surrender his estate;(
i )If he files in the Court a declaration of his inability to pay his debts, or presents a bankruptcy petition against himself;(
j )If a creditor has obtained a final judgment or final order against him for any amount, and execution thereon not having been stayed, has served on him in Australia or, by leave of the Court, elsewhere, a bankruptcy notice under this Act, and the debtor does not, within seven days or such time as is prescribed after service of the notice in Australia, or within the time limited in that behalf by the order giving leave to effect the service elsewhere, either comply with the requirements of the notice, or satisfy the Court that he has a counter-claim, set-off, or cross demand which equals or exceeds the amount of the judgment debt, and which he could not set up in the action or proceeding in which the judgment or order was obtained:
N.S.W., s. 4 (7).
E.B.A., s. 125 (2).
Any person who is for the time being entitled to enforce a final judgment or final order for the payment of money shall be deemed a creditor who has obtained a final judgment within the meaning of this paragraph; and a final judgment or order against a married woman shall be deemed to be a final judgment or order within the meaning of this paragraph, notwithstanding the fact that no execution can issue at law on the judgment or order;
(
k )If he gives notice to any of his creditors that he has suspended, or that he is about to suspend payment of his debts;(
l )If, at a meeting of creditors under Part XI. of this Act or some adjournment thereof, a resolution accepting a proposal for a composition or scheme, or for the execution by the debtor of a deed of assignment, or a resolution by a majority in value of the creditors present personally, by attorney, or by proxy that the meeting shall not be deemed an act of bankruptcy, be not duly passed, or if the debtor does not execute a deed of assignment pursuant to a resolution therefor within seven days after the passing of the resolution, or if a resolution accepting a proposal for a composition or scheme be not duly confirmed in accordance with section one hundred and sixty-one of this Act, or if the composition or scheme be rejected or annulled in pursuance of that section, or if a deed of assignment is declared void in pursuance of section one hundred and seventy-six of this Act.An act of bankruptcy mentioned in this paragraph shall be deemed to have been committed by the debtor on the day of the first meeting of creditors, and also, where the composition or scheme has been rejected or annulled or the deed has been declared void, on the date of the making of the order of rejection or annulment, or the declaration, as the case may be, provided—
(i) that, except where the composition or scheme has been rejected or annulled or the deed has been declared void, a petition for sequestration is presented against the debtor within two months after the date of the first meeting of creditors; and
(ii) that, where the composition or scheme has been rejected or annulled, a sequestration order is made against the debtor within seven days after the date of the order of rejection or annulment; and
(iii) that, where the deed has been declared void, a sequestration order is made against the debtor within fourteen days after the date of the declaration.
Cf. Vic., s. 50.
Q., ss. 48, 49.
Tas., s. 6.
Provided that a bankruptcy notice—
E.B.A., s. 2 (3).
(i) may specify an agent to act on behalf of the creditor in respect of any payment or other thing required by the notice to be made to, or done to the satisfaction of, the creditor;
(ii) shall not be invalidated by reason only that the sum specified in the notice as the amount due exceeds the amount actually due, unless the debtor within the time allowed for payment gives notice to the creditor that he disputes the validity of the notice on the ground of such misstatement; but if the debtor does not give such notice, he shall be deemed to have complied with the bankruptcy notice if within the time allowed he takes such steps as would have constituted a compliance with the notice had the actual amount due been correctly specified therein.
E.B.A., s. 3.
N.S.W., s. 5.
Vic., s. 52.
S.A., Part IV.
W.A., s. 5.
Q., ss. 43, 44.
Tas. s. 7.
(2.) When a sequestration order has been made, the debtor thereby becomes a bankrupt, and continues a bankrupt until an order of discharge has been issued to him or the sequestration order has been annulled.
E.B.A., s. 4.
N.S.W., s. 6.
Vic., s. 49.
S.A., ss. 68, 71.
W.A., s. 6.
Q., ss. 45–47.
Tas., s. 5.
(
a ) the debt owing by the debtor to him, or, if two or more creditors join in the petition, the aggregate of the debts owing to the several petitioning creditors amounts to Fifty pounds; and(
b )the debt is a liquidated sum, payable either immediately or at some certain future time; and(
c ) the act of bankruptcy on which the petition is grounded has occurred within six months before the presentation of the petition; and(
d ) the debtor is domiciled in Australia, or, within a year before the date of the presentation of the petition, has ordinarily resided or had a dwelling-house or place of business in Australia, or has carried on business in Australia, personally or by means of an agent or manager, or is or within the said period has been a member of a firm or partnership which has carried on business in Australia by means of a partner or partners, or an agent or manager,
E.B.A., s. 4.
Cf. s. 187.
and, where a deed of arrangement or a deed of assignment has been executed, a creditor shall not be entitled to present a bankruptcy petition founded on the execution of the deed, or on any other act
committed by the debtor in the course or for the purpose of the proceedings preliminary to the execution of the deed, in cases where he is prohibited from so doing by the provisions of Part XI. or Part XII. of this Act.
N.S.W. s. 7.
(2.) If the petitioning creditor is a secured creditor, he must, in his petition,
(
a ) state that he is willing to give up his security for the benefit of the creditors in the event of a sequestration order being made against the debtor; or(
b )give an estimate of the value of his security, in which case he may be admitted as a petitioning creditor to the extent of the balance of the debt due to him, after deducting the value so estimated, in the same manner as if he were an unsecured creditor.
(3.) If the petitioning creditor is a secured creditor he shall, upon application being made by the trustee or official receiver within the prescribed time after the making of a sequestration order, and upon payment of the estimated value stated in his petition, give up his security to the trustee or official receiver for the benefit of the creditors.
E.B.A., s. 5.
N.S.W., s. 8.
Vic., ss. 52, 57–64, 67, 69.
S.A., ss. 70–78.
Q., ss. 52–65.
W.A., s. 7.
Tas., ss. 7, 74 (1).
(2.) At the hearing, the Court—
(
a ) shall require proof of the debt of the petitioning creditor, of the service of the petition, and of the act of bankruptcy, or, if more than one act of bankruptcy is alleged in the petition, of some one of them; and(
b )if satisfied with the proof, may make a sequestration order in pursuance of the petition.
(3.) If the Court—
(
a )is not satisfied with the proof of the petitioning creditor’s debt, or of the service of the petition, or of the act of bankruptcy; or(
b )is satisfied by the debtor that he is able to pay his debts, or that for other sufficient cause no order ought to be made,
it may dismiss the petition.
(4.) When the act of bankruptcy relied on is non-compliance with a bankruptcy notice to pay, secure or compound for a judgment debt, or the sum ordered to be paid, the Court may, if it thinks fit, stay or dismiss the petition, on the ground that an appeal from the judgment or order or a motion for a new trial is pending.
(5.) Where the debtor appears on the petition, and denies that he is indebted to the petitioner, or that he is indebted to such an amount as would justify the petitioner in presenting a petition against him, the Court, on such security (if any) being given as the Court requires for payment to the petitioner of any debt which may be established against the debtor in due course of law, and
of the costs of establishing the debt, may, instead of dismissing the petition, stay all proceedings on the petition for such time as is required for trial of the question relating to the debt.
(6.) Where proceedings are stayed, the Court may, by reason of the delay caused by the stay of the proceedings or for any other cause it thinks just, make a sequestration order on the petition of some other creditor, and shall thereupon dismiss, on such terms as it thinks just, the petition in which proceedings have been so stayed.
E.B.A., s. 6.
N.S.W., s. 9.
Vic., s. 45.
S.A., s. 86.
W.A., s. 8.
Q., ss. 40–43.
Provided, however, that the Court may, if it thinks fit, refuse to make a sequestration order if the unsecured liabilities of the petitioning debtor are under Fifty pounds.
Vic., s. 56.
Q., s. 67.
S.A., s. 110.
(2.) The trustee shall reimburse the creditor, out of the estate of the bankrupt, the taxed costs incurred by the creditor in any such proceedings.
E.B.A., ss. 5, 6.
W.A., s. 7.
N.S.W., s. 10.
Vic., s. 166.
Q., ss. 75, 86.
S.A., s. 126.
Cf. E.B.A., ss. 7, 18.
W.A., s. 9.
Tas., s. 11.
(2.) After sequestration, except as directed by this Act, no creditor to whom the bankrupt is indebted in respect of any debt provable in bankruptcy shall have any remedy against the property or person of the bankrupt in respect of the debt, or shall commence or take any fresh step in any action or other legal proceeding, unless with the leave of the Court and on such terms as the Court imposes.
(3.) This section shall not affect the power of any secured creditor to realize or otherwise deal with his security.
E.B.A., s. 39.
N.S.W., s. 10.
this Act, and subject to the provisions of section ninety-eight of this Act) vest in the trustee in the subsequent bankruptcy, but any unsatisfied balance of the debts provable under the last preceding bankruptcy may be proved in the subsequent bankruptcy by the trustee in the last preceding bankruptcy.
(2.) Where the trustee in any bankruptcy receives notice of a subsequent petition in bankruptcy against the bankrupt, he shall hold any property then in his possession which has been acquired by the bankrupt since the making of the sequestration order until the subsequent petition has been disposed of, and, if on the subsequent petition a sequestration order is made, he shall transfer all such property or the proceeds thereof (after deducting his costs and expenses) to the trustee in the subsequent bankruptcy.
E.B.A., s. 8.
W.A., 1892, s. 10.
Tas., 1870, s. 12.
(
a ) appoint an official receiver to be interim receiver of the property of the debtor, or of any part thereof; and(
b ) direct the official receiver to take immediate possession thereof and to perform such duties in relation thereto as it thinks expedient or as are prescribed.
Cf. E.B.A., s. 9.
N.S.W., s. 10 (5)–(7).
Q., ss. 77, 88.
S.A., s. 221.
W.A., 1892, ss. 10, 11.
Tas., s. 12.
(2.) Where the Court makes an order staying any action or proceeding, or staying proceedings generally, the order may be served by sending a copy thereof, under the seal of the Court, by prepaid post letter, or by leave of the Court by telegram, to the address for service of the plaintiff or other party prosecuting the proceeding.
(3.) Every action or proceeding at law or in equity commenced by any person, against whom a sequestration order is afterwards made, shall, upon the sequestration order being made, be stayed until the official receiver or trustee makes election to prosecute or discontinue it, and the official receiver or trustee shall be bound to make such election within four weeks after notice to that effect is served upon him by any defendant or party in the action or proceeding, or otherwise shall be deemed to have abandoned it:
Provided that any bankrupt may continue, in his own name and for his own benefit, any action or proceedings commenced by him previous to his bankruptcy for any personal injury or wrong done to himself or to any member of his family.
E.B.A., s. 10.
N.S.W., 1898, s. 13.
W.A., 1892, s. 12.
(2.) The special manager shall give the prescribed security and shall account in the prescribed manner.
(3.) The special manager shall receive such remuneration as the creditors by resolution determine, or in default of any such resolution, as is prescribed.
E.B.A., s. 11.
Vic., s. 38.
Q., s. 70.
W.A., s. 13.
Tas., s. 9.
E.B.A., s. 14.
N.S.W., s. 14.
Vic., ss. 109, 215.
Q., ss. 69–122.
S.A., ss. 100, 102.
W.A., s. 15.
Tas., s. 18.
(
a )the particulars of his assets, debts, and liabilities, and losses, (if any);(
b ) the causes of his bankruptcy;(
c ) the names, residences, and occupations of his creditors and debtors;(
d ) the securities held by his creditors respectively, with the dates when they were given; and(
e ) such other information as is prescribed or as the official receiver requires.
(2.) The statement shall be filed within the following times namely:—
(
a ) If the order is made on the petition of the debtor, within three days from the date of the order;(
b )If the order is made on the petition of a creditor, within seven days from the date of the order:
Provided that the Registrar may, in either case, for special reasons, extend the time.
(3.) Any person stating in writing that he is a creditor of the bankrupt may, without fee, and any other person may, on payment of the prescribed fee, personally or by his agent, inspect the statement at all reasonable times, and make a copy thereof or extract therefrom.
(4.) Any person who untruthfully states that he is a creditor or the agent of a creditor of the bankrupt and is allowed, by virtue of that statement, to inspect the statement filed pursuant to this section without payment of the prescribed fee, shall be guilty of an offence.
Penalty: Five pounds.
E.B.A., s. 13.
N.S.W., ss. 15, 16.
Vic., ss. 72, 131.
S.A., ss. 101, 120.
W.A., s. 14.
Q., ss. 92, 93.
Tas., ss. 13–15.
(2.) With respect to the summoning of and proceedings at the first and other meetings of creditors, the rules to be observed shall, subject to the regulations, be the rules set out in the First Schedule to this Act.
E.B.A., s. 15.
N.S.W., s. 18.
Vic., ss. 221, 222.
S.A., s. 88.
W.A., s. 14.
(2.) The examination (if any) shall be held in public and as soon as conveniently may be after the expiration of the time for the submission of the bankrupt’s statement of affairs.
(3.) The Court may adjourn the examination from time to time.
(4.) Any creditor whose proof has been admitted, or his representative authorized in writing, may question the bankrupt.
(5.) The official receiver may take part in the examination of the bankrupt, and for that purpose, if specially authorized by the Registrar, may employ a barrister solicitor or attorney.
(6.) If a trustee is appointed before the conclusion of the examination, he may take part therein.
(7.) The Court may put or allow such questions to be put to the bankrupt as it thinks fit.
(8.) The bankrupt shall be examined upon oath, and he shall answer all such questions as the Court puts or allows to be put to him.
(9.) Such notes of the examination as the Court thinks proper shall be taken down in writing, and, after being read over either to or by the bankrupt and signed by him, may be used in evidence against him, and shall be open, at all reasonable times, to the inspection of the official receiver, the trustee, the bankrupt or any creditor of the bankrupt, or the agent of any such person, without fee, and to the inspection of any other person, on payment of the prescribed fee.
(10.) Any person who untruthfully states that he is the official receiver, the trustee, the bankrupt or a creditor of the bankrupt or the agent of any such person and is allowed, by virtue of that
statement, to inspect the notes of the examination without payment of the prescribed fee, shall be guilty of an offence.
Penalty: Five pounds.
(11.) Where the bankrupt is a lunatic, or suffers from any such mental or physical affliction or disability as in the opinion of the Court makes him unfit or unable to attend the examination, the Court may make an order dispensing with his examination, or directing that he be examined on such terms, in such manner, and at such place as the Court thinks fit.
S.A., ss. 171, 172, 174.
(2.) Notice of the day appointed for the examination shall be given by the official receiver to the creditors.
(3.) The Court shall make an order directing the bankrupt to attend the Court at the appointed time, and, if the bankrupt, after being served with the order, fails without reasonable excuse to attend, he shall be guilty of contempt of Court.
(4.) The official receiver or trustee may take part in the examination, and the official receiver, for that purpose, if specially authorized by the Registrar, may employ a barrister, solicitor, or attorney.
(5.) The trustee shall report in writing to the Court on the realization and position of the bankrupt’s affairs.
(6.) The reports shall be read in the Court, and any creditor of the bankrupt may question him concerning his affairs and the realization of his estate.
(7.) The Court may put or allow such questions to be put to the bankrupt as it thinks fit.
(8.) The bankrupt shall be examined upon oath, and shall answer all such questions as the Court puts or allows to be put to him.
(9.) Such notes of the examination as the Court thinks proper shall be taken down in writing, and, after being read over either to or by the bankrupt and signed by him, may be used in evidence against him, and shall be open, at all reasonable times, to the inspection of the official receiver, the trustee, the bankrupt, or any creditor of the bankrupt, or the agent of any such person, without fee, and to the inspection of any other person on payment of the prescribed fee.
(10.) Any person who untruthfully states that he is the official receiver, the trustee, the bankrupt, or a creditor of the bankrupt, or the agent of any such person, and is allowed, by virtue of that statement, to inspect the notes of the examination without payment of the prescribed fee, shall be guilty of an offence.
Penalty: Five pounds.
(11.) When the Court is of opinion that the affairs of the bankrupt have been sufficiently investigated, it may—
(
a ) order the bankrupt to apply forthwith or within a time to be stated for an order of discharge; or(
b ) determine when and subject to what conditions the discharge shall be granted, and, for this purpose, exercise the same powers and jurisdiction as in the case of an application therefor by the bankrupt; or(
c ) make an order fixing a date after which the trustee’s right to any property acquired by the bankrupt in the course of trade or as earnings shall cease.
Cf. Vic., s. 226.
S.A., s. 310.
E.B.A., ss. 16, 21.
N.S.W., s. 19.
Vic., ss. 248, 249 and 1897, s. 73.
Q., s. 134.
S.A., ss. 234–241.
W.A., ss. 17, 21.
(
a )for a composition in satisfaction of his debts, or(
b )for a scheme of arrangement of his affairs,
he shall lodge with the trustee a proposal in writing, signed by him, embodying the terms of the proposed composition or scheme, and setting out particulars of any sureties or securities proposed.
(2.) The trustee shall hold a meeting of creditors, and shall send to each creditor, before the meeting, a copy of the bankrupt’s proposal with a report thereon; and if a special resolution is passed thereat accepting the proposal, it shall be deemed to be duly accepted by the creditors.
(3.) The bankrupt may at the meeting amend the terms of his proposal, if the amendment is, in the opinion of the majority of the creditors, likely to benefit the creditors generally.
(4.) Any creditor who has proved his debt may assent to or dissent from the proposal by letter, in the prescribed form, addressed to the trustee so as to be received by him not later than the day before the meeting, and the assent or dissent shall have effect as if the creditor had been present and had voted at the meeting.
(5.) The bankrupt or the trustee may, after the proposal is accepted by the creditors, apply to the Court to approve it, and notice of the time appointed for hearing the application shall be given to each creditor who has proved.
(6.) If, in the opinion of the Court it is desirable that the bankrupt should be publicly examined in accordance with this Act, the Court shall adjourn the hearing of the application until after the bankrupt has been publicly examined, and any creditor who has proved may, notwithstanding that he may at a meeting of creditors have voted for the acceptance of the proposal, be heard by the Court in opposition to the application.
(7.) The Court shall, before approving the proposal, hear a report of the trustee as to its terms, and as to the conduct of the bankrupt and any objections made by or on behalf of any creditor.
(8.) If the Court is of opinion that the terms of the proposal are unreasonable, or unlikely to benefit the creditors generally, it shall refuse to approve the proposal, and if it is of opinion that an offence against this Act has been committed by the bankrupt, it may refuse to approve the proposal.
(9.) If any facts are proved on proof of which the Court would be required either to refuse, suspend, or attach conditions to the bankrupt’s discharge, the Court shall refuse to approve the proposal, unless it provides reasonable security for payment of not less than Five shillings in the pound on all the unsecured debts provable against the debtor’s estate.
(10.) In any other case the Court may either approve or refuse to approve the proposal.
(11.) If the Court approves the proposal, the approval may be testified by the seal of the Court being attached to the instrument containing the terms of the proposed composition or scheme, or by the terms being embodied in an order of the Court.
(12.) A composition or scheme accepted and approved in pursuance of this section shall be binding on all the creditors so far as relates to any debts due to them from the bankrupt and provable in bankruptcy, but shall not release the debtor from any liability under a judgment against him in an action for seduction, or under an affiliation order, or under a judgment against him as a co-respondent in a matrimonial cause, except to such extent and under such conditions as the Court expressly orders.
(13.) A certificate of the Registrar that a composition or scheme has been duly accepted and approved shall, in the absence of fraud, be conclusive as to its validity.
(14.) The provisions of a composition or scheme under this section may be enforced by the Court on application by any person interested, and any disobedience of an order of the Court made on the application shall be deemed contempt of Court.
(15.) If—
(
a )default is made in payment of any instalment due in pursuance of the composition or scheme, or(
b )it appears to the Court, on satisfactory evidence, that the composition or scheme cannot, in consequence of legal difficulties, or for any sufficient cause, proceed without injustice or undue delay to the creditors or to the bankrupt, or that the approval of the Court was obtained by fraud,
the Court may, if it thinks fit, on application by the trustee, or by any creditor, annul the composition or scheme, but without prejudice to the validity of any sale, disposition, or payment duly made, or thing duly done, under or in pursuance of the composition or scheme.
(16.) The Court shall not approve any composition or scheme which does not provide for the payment, in priority to other debts, of all debts required by this Act to be so paid in the distribution of the property of a bankrupt.
(17.) The acceptance by a creditor of a composition or scheme shall not release any person who under this Act would not be released by an order of discharge.
(18.) If the Court approves the composition or scheme, it may make an order annulling the sequestration order and vesting the property of the bankrupt in him or in such other person as the Court appoints, on such terms, and subject to such conditions, if any, as the Court directs.
E.B.A., s. 16 (18).
N.S.W., s. 19 (12).
E.B.A., s. 17.
N.S.W., s. 20.
W.A., s. 18.
E.B.A., s. 20.
N.S.W., s. 26.
Vic., ss. 72, 90 (1), (3)–(10).
Q., ss. 92, 101.
Tas., ss. 13, 77.
(2.) No creditor or person appointed a member of the committee of inspection shall be qualified to act until he has proved his debt or the debt of his principal (as the case may be) and the proof has been admitted.
(3.) The committee of inspection shall consist of not less than three nor more than five persons.
(4.) The committee of inspection shall meet at such times as they from time to time appoint, and failing such appointment at least once a month; and the trustee, or any member of the committee, may, at any time he thinks necessary, call a meeting of the committee.
(5.) The committee may act by a majority of their members present at a meeting, but shall not act unless a majority of the committee are present thereat.
(6 ) Any member of the committee may resign his office by notice in writing signed by him, and delivered to the trustee.
(7.) If a member of the committee becomes bankrupt, or compounds or arranges with his creditors or is absent from five consecutive meetings of the committee, his office shall thereupon become vacant.
(8.) Any member of the committee may be removed by resolution at any meeting of creditors specially called for that purpose, and of which seven days’ notice has been given.
(9.) On a vacancy occurring in the office of a member of the committee, the trustee shall forthwith summon a meeting of creditors for the purpose of filling the vacancy, and the meeting may, by resolution, appoint another creditor or eligible person to fill the vacancy.
(10.) The continuing members of the committee, if there are not less than three, may act, notwithstanding any vacancy in their body; and whenever the number of members of the committee is less than five, the creditors may increase that number to five.
Cf. E.B. (
(11.) If there is no committee of inspection, any act or thing or any direction or permission by this Act authorized or required to be done or given by the committee may, on the application of the trustee, be done or given by the Court.
Vic., ss. 90 (2), 210, 211.
(2.) If any profit or payment has been made contrary to the provisions of this section, the Court shall disallow it or direct the person contravening the provisions of this section to pay it into Court.
Part V.—Control over Person and Property of Debtor.
E.B.A., s. 22.
N.S.W., s. 27.
Vic., s. 215.
Q., s. 122.
S.A., s. 102.
W.A., s. 22.
Tas., s. 18.
(
a )attend the first meeting of his creditors, and submit to such examination and give such information as the meeting requires;(
b )forthwith deliver to the official receiver or trustee all the books, papers, and writings in his possession relating to his estate;(
c ) give such inventory of his property, such list of his creditors and debtors, and of the debts due to and from them respectively, submit to such examinations in respect of his property or his creditors, attend such other meetings of his creditors, wait at such times on the official receiver, special manager, or trustee, execute such powers of attorney, conveyances, transfers, deeds, and instruments, and generally do all such acts and things in relation to his property and the distribution of the proceeds amongst his creditors, as is reasonably required by the official receiver, special manager, or trustee, or as is prescribed, or directed by the Court by any order made in reference to any particular case, or made on any application by the officialreceiver, special manager, trustee, or any creditor or person interested;
(
d )aid, to the utmost of his power, in the realization of his property and the distribution of the proceeds amongst his creditors.
(2.) If a bankrupt wilfully fails to perform the duties imposed on him by this section, or to deliver up possession of any part of his property which is divisible amongst his creditors under this Act, and which is for the time being in his possession or under his control, to the official receiver or to the trustee, or to any person duly authorized to take possession of it, he shall, in addition to any other punishment to which he may be subject, be guilty of contempt of Court.
E.B.A., s. 23.
N.S.W., s. 28.
Vic., s. 216.
Q., s. 72.
S.A., s. 79.
W.A., s. 23.
Tas., s. 80.
(
a )If, after a bankruptcy notice has been issued under this Act, or after presentation of a petition by or against him, it appears to the Court that there is reason for believing that he has absconded or is about to abscond with a view to avoiding payment of the debt or service of or appearance to a bankruptcy petition, or examination in respect of his affairs, or otherwise with a view to avoiding, delaying, or embarrassing proceedings in bankruptcy against him:(
b )If, after presentation of a petition by or against him, it appears to the Court that there is reason for believing that he is about to remove any of his goods with a view to preventing or delaying possession being taken of them by the official receiver or trustee, or that there is reason for believing that he has concealed or destroyed, or is about to conceal or destroy, any of his goods, or any books documents or writings which might be of use to his creditors in the course of his bankruptcy:(
c ) If, after service of a petition on him, or after sequestration he removes any goods in his possession above the value of Five pounds, without the leave of the official receiver or trustee:(
d )If, without good cause shown, he fails to attend any examination ordered by the Court:
Provided that no arrest upon a bankruptcy notice shall be valid and protected unless the debtor before or at the time of his arrest is served with the bankruptcy notice.
(2.) No payment or composition made or security given after arrest made under this section shall be exempt from the provisions of this Act relating to preferences or fraudulent preferences.
E.B.A., s. 24.
N.S.W., s. 29.
Q., s. 121.
S.A., s. 118.
W.A., s. 24.
Tas., s. 79.
Penalty: Fifty pounds, or six months’ imprisonment.
E.B.A., s. 25.
N.S.W., ss. 30, 31.
Vic., s. 222.
Q., ss. 114–117.
S.A., ss. 113–117.
W.A., s. 25.
Tas., ss. 89–91.
(
a )the bankrupt or his wife, or, where the bankrupt is a married woman, her husband; or(
b )any person known or suspected to have in his possession any of the estate or effects belonging to the bankrupt, or supposed to be indebted to the bankrupt, or to be able to give information respecting the bankrupt, his dealings or property,
to attend before the Court, or before any other Court having jurisdiction in bankruptcy, or before any stipendiary or police magistrate, and to give evidence and produce any documents in his custody or power relating to the bankrupt, his trade dealings, property, or affairs.
(2.) If any person so ordered to attend, after having been tendered a reasonable sum, refuses or fails to come before the Court or magistrate at the time appointed, or refuses or fails to produce any such document, having no lawful impediment thereto made known to the Court or magistrate at the time of sitting and allowed, the Court or magistrate may, by warrant, cause him to be apprehended and brought up for examination and may order him to pay the costs of the examination and arrest.
(3.) The Court,
magistrate, or official receiver, or trustee, or any creditor who has proved,
may examine on oath, either
Vic., s. 138.
11. For the purpose of voting, a secured creditor shall, unless he surrenders his security, state in his proof the particulars of his security, the date when it was given, and the value at which he assesses it, and shall be entitled to vote only in respect of the balance (if any) due to him, after deducting the value of his security. If he votes in respect of his whole debt he shall be deemed to have surrendered his security, unless the Court on application is satisfied that the omission to value the security has arisen from inadvertence.
Vic., s. 139.
12. A creditor shall not vote in respect of any debt on or secured by a current bill of exchange or promissory note held by him, unless he is willing to treat the liability to him thereon of every person (not being a bankrupt) who is liable thereon antecedently to the debtor as a security in his hands, and for the purposes of voting, but not for the purposes of dividend, to deduct its estimated value from his proof.
Vic., s. 140.
13. The trustee or the official receiver may, within twenty-eight days after a proof estimating the value of a security as aforesaid has been made use of in voting at any meeting, require the creditor to give up the security for the benefit of the creditors generally on payment of the value so estimated.
14. If a sequestration order is made against one partner of a firm, any creditor to whom that partner is indebted jointly with the other partners of the firm, or any of them, may prove his debt for the purpose of voting at any meeting of creditors, and shall be entitled to vote thereat.
15. The chairman of a meeting shall have power to admit or reject a proof for the purpose of voting, but his decision shall be subject to appeal to the Court. If he is in doubt whether the proof of a creditor should be admitted or rejected he shall mark the proof as objected to and shall allow the creditor to vote, subject to the vote being declared invalid in the event of the objection being sustained.
Cf. E.B.A. Ib. s. 22 (2).
Vic., s. 133.
16. A creditor may vote either in person or by proxy.
17. Every instrument of proxy shall be in the prescribed form.
18. General and special forms of proxy shall be sent to the creditors, together with a notice summoning a meeting of creditors, and neither the name nor the description of the official receiver, or of any other person, shall be printed or inserted in the body of any instrument of proxy before it is so sent.
19. A creditor may give a general proxy to his manager or clerk, or any other person in his regular employment, or to his barrister, solicitor, or attorney or to a public accountant. In such case the instrument of proxy shall state the relation in which the person to act thereunder stands to the creditor.
20. A creditor may give a special proxy to any person to vote at any specified meeting or adjournment thereof on all or any of the following matters:—
Ib. s. 22 (3).
(
a ) For or against any specific proposal for a composition or scheme of arrangement;(
b ) For or against the appointment of any specified person as trustee at a specified rate of remuneration, or for or against the continuance in office of any specified person as trustee;(
c ) On all questions relating to any matter, other than those above referred to arising at any specified meeting or adjournment thereof.
Eng. Sch. (17).
21. A proxy shall not be used unless it is deposited with the official receiver or trustee before the meeting at which it is to be used.
22
Ib. (19).
23. A creditor may appoint the official receiver of the debtor’s estate to act in manner prescribed as his general or special proxy, provided the official receiver is not himself the trustee.
Cf. ib. (23).
24. A meeting of creditors may, by ordinary resolution, adjourn from time to time, and from place to place.
Ib. (22).
25. A meeting shall not be competent to act for any purpose, except the election of a chairman, the proving of debts, and the adjournment of the meeting, unless there are present, or represented thereat, at least three creditors entitled to vote, or all the creditors if their number does not exceed three.
26. If within half-an-hour from the time appointed for the meeting a quorum of creditors is not present or represented, the meeting shall be adjourned to such other day, time and place, as the chairman may appoint, not being less than seven or more than twenty-one days.
Ib. (24).
27. The chairman of every meeting shall cause minutes of the proceedings at the meeting to be drawn up, and fairly entered in a book kept for that purpose, and the minutes shall be signed by him or by the chairman of the next ensuing meeting.
Ib. (25).
Vic., s. 134.
28. No person acting either under a general or special proxy shall vote in favour of any resolution which would directly or indirectly place himself, his partner or employer in a position to receive any remuneration out of the estate of the debtor otherwise than as a creditor rateably with the other creditors of the debtor:
Ib. (26).
Provided that where any person holds special proxies to vote for the appointment of himself as trustee he may use those proxies and vote accordingly.
Ib. (28).
Vic., s. 83.
W.A., s. 85.
29. The vote of the trustee, or of his partner, clerk, solicitor, or solicitor’s clerk either as creditor or as proxy for a creditor, shall not be reckoned in the majority required for passing any resolution affecting the remuneration or conduct of the trustee
THE SECOND SCHEDULE. Section 83.
Proof of Debts.
Cf. E.B.A., 2nd Schedule.
1. Every creditor shall prove his debt as soon as may be after the making of a sequestration order.
2. A debt may be proved by delivering or sending through the post in a prepaid letter to the official receiver, or, if a trustee has been appointed, to the trustee, an affidavit verifying the debt.
3. The affidavit may be made—
(
a )by the creditor himself, or(
b )by some person authorized by or on behalf of the creditor, stating his authority and means of knowledge.
4. The affidavit shall contain or refer to a statement of account showing the particulars of the debt, and shall specify the vouchers, if any, by which it can be substantiated. The official receiver or trustee may at any time call for the production of the vouchers.
5. The affidavit shall state whether the creditor is or is not a secured creditor.
6. A creditor shall bear his own costs of proving his debt, unless the Court otherwise specially orders.
7. Every creditor who has lodged a proof shall be entitled to see and examine the proofs of other creditors before the first meeting, and at all reasonable times.
8. A creditor proving his debt shall deduct therefrom all trade discounts, but he shall not be compelled to deduct any discount not exceeding eight per centum on the net amount of his claim, which he may have agreed to allow for payment in cash.
E.B.A., s. 66 (2) (
9. Any account settled between the debtor and the creditor within three years preceding the date of the sequestration order may be examined, and, if it appears that the settlement of the account forms substantially one transaction with any debt alleged to be due out of the debtor’s estate (whether in the form of renewal of a loan or capitalization of interest or ascertainment of loans or otherwise), the account may be re-opened and the whole transaction treated as one.
Ib. s. 66 (2) (
10. Any payments made by the debtor to the creditor before the sequestration order, whether by way of bonus or otherwise, and any sums received by the creditor before the sequestration order from the realization of any security for the debt, shall, notwithstanding any agreement to the contrary, be appropriated to principal and interest in the proportion that the principal bears to the sum payable as interest at the agreed rate.
Ib. s. 66 (2) (
11. Where the debt due is secured and the security is realized after the sequestration order, or the value therof is assessed in the proof, the amount realized or assessed shall be appropriated to the satisfaction of principal and interest in the proportion that the principal bears to the sum payable as interest at the agreed rate.
Q., s. 151.
S.A., s. 199.
Tas., s. 39.
S.A., s. 199.
Tas., s. 39.
12.
If a secured creditor realizes his security, he may prove for the balance due
to him, after deducting the net amount realized, provided the creditor
satisfies the Court or the trustee that the realization has been effected in a
13. If a secured creditor surrenders his security to the official receiver or trustee for the general benefit of the creditors, he may prove for his whole debt.
14. If a secured creditor does not either realize or surrender his security, he shall, before ranking for dividend, state in his proof the particulars of his security, the date when it was given, and the value at which he assesses it, and shall be entitled to receive a dividend only in respect of the balance due to him after deducting the value so assessed.
S.A., s. 199.
15.
(
(
(
16.
Where a creditor has so valued his security, he may at any time amend the
valuation and proof on showing to the satisfaction of the trustee, or the
Court, that the valuation and proof were made
S.A., s. 199.
17. Where a valuation has been amended in accordance with the foregoing rule, the creditor shall forthwith repay any surplus dividend which he may have received in excess of that to which he would have been entitled on the amended valuation, or, as the case may be, shall be entitled to be paid, out of any money for the time being available for dividend, any dividend or share of dividend which he may have failed to receive by reason of the inaccuracy of the original valuation, before that money is made applicable to the payment of any future dividend, but he shall not be entitled to disturb the distribution of any dividend declared before the date of the amendment.
S.A., s. 199.
18. If a creditor after having valued his security subsequently realizes it, or if it is realized under the provisions of Rule 15, the net amount realized shall be substituted for the amount of any valuation previously made by the creditor, and shall be treated in all respects as an amended valuation made by the creditor.
S.A., s. 199.
Tas., s. 39.
19. If a secured creditor does not comply with the foregoing rules he shall be excluded from all share in any dividend.
S.A., s. 199.
20. Subject to the provisions of Rule 15, a creditor shall in no case receive more than Twenty shillings in the pound, and interest as provided by this Act.
Q., s. 146.
Tas., s. 34.
21. If a debtor was at the date of the sequestration order liable in respect of distinct contracts as a member of two or more distinct firms, or as a sole contractor, and also as member of a firm, the circumstance that the firms are in whole or in part composed of the same individuals, or that the sole contractor is also one of the joint contractors, shall not prevent proof in respect of the contracts against the properties respectively liable on the contracts.
22. When any rent or other payment falls due at stated periods, and the sequestration order is made at any time other than one of those periods, the person entitled to the rent or payment may prove for a proportionate part thereof up to the date of the order as if the rent or payment grew due from day to day.
23. On any debt or sum certain, payable at a certain time or otherwise, whereon interest is not reserved or agreed for, and which is overdue at the date of the sequestration order and provable in bankruptcy, the creditor may prove for interest at a rate not exceeding Eight per centum per annum to the date of the order from the time when the debt or sum was payable, if the debt or sum is payable by virtue of a written instrument at a certain time, and if payable otherwise, then from the time when a demand in writing has been made giving the debtor notice that interest will be claimed from the date of the demand until the time of payment.
24. A creditor may prove for a debt not payable when the debtor became bankrupt as if it were payable presently, and may receive dividends equally with the other creditors, deducting only thereout a rebate of interest at the rate of Eight pounds per centum per annum computed from the declaration of a dividend to the time when the debt would have become payable, according to the terms in which it was contracted.
25. The trustee shall examine every proof and the grounds of the debt, and in writing admit or reject it, in whole or in part, or require further evidence in support of it. If he rejects a proof he shall state in writing to the creditor the grounds of the rejection.
26. If the trustee thinks that a proof has been improperly admitted, the Court may, on the application of the trustee, after notice to the creditor who made the proof, expunge the proof or reduce its amount.
27. If a creditor is dissatisfied with the decision of the trustee in respect of a proof, the Court may, on the application of the creditor, reverse or vary the decision.
28. The Court may also expunge or reduce a proof upon the application of a creditor if the trustee declines to interfere in the matter, or in the case of a composition or scheme, upon the application of the debtor.
29. For the purpose of any of his duties in relation to proofs, the trustee may administer oaths and take affidavits.
30. The official receiver, before the appointment of a trustee, shall have all the powers of a trustee with respect to the examination, admission, and rejection of proofs, and any act or decision of his in relation thereto shall be subject to the like appeal.
THE THIRD SCHEDULE.
First Part. Sections 163, 192.
This
Deed, made the day
of, 19 , in pursuance of Part XI. (
In witness whereto the said parties to these presents have hereunto set their hands and seals the day and year first before-written.
| ||
Said | this | |
day of | 19 | , in the presence of |
| ||
said | this | |
day of | 19 | , in the presence of |
Second Part.
This
Deed, made the day of One
thousand nine hundred and , in pursuance of Part XI. (
hereof are
hereinafter called “the said trustee,” all the real and personal property and
estate, of which the said (assignor) is possessed, or of which any person or
persons in trust for him is or are possessed, or to which he or any such person
or persons is or are entitled legally or equitably in possession, reversion,
remainder, or expectancy, and which are more particularly described, so far as
the said (assignor) is able to set forth the same, in the First Schedule hereto
annexed, except such articles of household furniture and wearing apparel of the
said (assignor) and his family, and other like necessaries, not exceeding in
the whole the value of Fifty Pounds, and such other household property as a
majority of the creditors may by resolution determine to the intent that the
real and personal property and estate hereinbefore granted and assigned shall
be held by the said trustee by virtue hereof and subject to the provisions of
Part XI. (or Part XII. as the case may be) of the
In witness whereof the said parties to these presents have hereunto set their hands and seals the day and year first before-written.
| ||
said | ||
the | day of | ,19, |
in the presence of | ||
Signed, sealed, and delivered by the | ||
said | ||
the | day of | ,19, |
in the presence of | ||
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0
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