Bankruptcy Amendment Act 1991 (Cth)
PART 1—PRELIMINARY
Section
1. Short title etc.
2. Commencement
PART 2—AMENDMENTS OF THE PRINCIPAL ACT
3. Interpretation
4. Repeal of section 6A and insertion of new sections:
6A. Provision of statement of affairs otherwise than under Part X or XI
6B. Provision of statement of affairs under Part X or XI and statement of administration of estate of deceased person
5. Functions of Inspector-General
6. Duties etc. of trustee
7. Exercise of powers by certain officials
8. Repeal of section 37 and insertion of new section:
37. Power of Court to rescind orders etc.
9. Repeal of heading and insertion of new heading and Subdivision:
63A. Definitions
63B. Trustee's representative
10. Heading
11. Trustee to convene meetings
TABLE OF PROVISIONS—
Section
12. Repeal of sections 65 to 68 and insertion of new sections:
64B. Certain matters to be included in notice of meeting64C. If telephone conference facilities are available64D. Statement by creditor as to amount of debt64E. Notice about voting by proxy64F. Notice about appointment of attorney64A. Persons to whom notice of meeting to be given
64G. Agenda to be set out in notice of meeting
64H. Creditors, or proxies or attorneys, participating by telephone
64J. Preparation of attendance record
64L. Appointment of minutes secretary64M. Announcement of proxies and attorneys64N. Quorum64P. Election of person to preside at meeting64Q. Whether holding of meeting is convenient to majority of creditors64R. Tabling of bankrupt's statement of affairs64S. Statements and questions64T. Motions64U. Remuneration of registered trustee64V. Appointment of committee of inspection64W. Other business64K. Opening of meeting
64X. Next meeting
64Z. Duties of minutes secretary64ZA. Entitlement to vote64ZB. Manner of voting64ZC. Appointment of proxies64ZD. Provisions relating to motions and amendments of motions64ZE. Joint bankruptcies64Y. Adjournment of meeting
64ZF. Substantial compliance to be sufficient
13. Heading
14. Committee of inspection
15. Annulment of bankruptcy
16. Effect of composition or scheme of arrangement
17. Insertion of new section:
76A. Meetings of creditors
18. Heading
19. Insertion of new section:
77AA. Access by Official Receiver to premises
20. Insertion of new sections:
77D. Allowances and expenses in respect of attendance77E. Advance on account of allowances and expenses77C. Power of Official Receiver to obtain information and evidence
77F. Allowances and expenses to be paid out of bankrupt's estate
21. Notification of change in name, address or day-time telephone number
22. Discovery of bankrupt's property etc.
23. Insertion of new Divisions:
TABLE OF PROVISIONS—
Section
81B. Extension of period of notice81C. Variation of notices81D. Withdrawal of notices81E. Notices may be included in same document81A. Issue of notices
81F. Relationship between this Division and section 77C
81G. Effect of non-compliance with notice
24. Income of bankrupt
25. Insertion of new Divisions:
139J. Objects of Division
139K. Definitions
139M. Derivation of income139L. Meaning of income
139N. Income varied by income tax payments and refunds and child support payments
139Q. Change in liability of bankrupt139R. Liability not affected by subsequent discharge139S. Contribution payable by bankrupt139P. Liability of bankrupt to pay contribution
139T. Official Receiver may vary contribution if bankrupt suffers hardship
139U. Bankrupt to provide evidence of income
139V. Power of trustee to require bankrupt to provide additional evidence
139X. Basis of assessments139Y. Trustee may regard bankrupt as receiving reasonable remuneration139W. Assessment of bankrupt's income and contribution
139Z. If bankrupt claims not to be in receipt of income
139ZB. Inspector-General may authorise officer to act on his or her behalf139ZC. Inspector-General may request further information139ZD. Decision on review139ZE. Inspector-General to notify bankrupt and trustee of decision139ZA. Internal review of assessment
139ZF. Applications to Administrative Appeals Tribunal
TABLE OF PROVISIONS—
Section
139ZH. If excess contribution paid139ZG. Payment of contributions
139ZI. Notice of determinations
139ZK. Persons to whom Subdivision applies139ZL. Official Receiver may require persons to make payments139ZM. Power of Court to set aside notice139ZN. Charge over property139ZO. Failure to comply with notice139ZJ. Definition
139ZP. Employer not to dismiss or injure bankrupt because of giving of notice
139ZR. Charge over property139ZS. Power of Court to set aside notice139ZQ. Official Receiver may require payment
139ZT. Failure to comply with notice
139ZV. How application for permission is to be made139ZW. Trustee may appear or be represented at hearing of application139ZX. Orders may contain conditions139ZY. Application may be heard by telephone139ZU. Bankrupt who is liable to pay contributions not to leave Australia without permission of Court
139ZZ. Procedure in respect of applications to be prescribed by the rules
26. Repeal of section 148
27. Repeal of heading and sections 149, 149A, 150, 151 and 152 and insertion of new heading and Divisions:
PART VII—DISCHARGE AND ANNULMENT
148. Misleading conduct by bankrupt
149. Automatic discharge
149A. Bankruptcy extended when objection made
149C. Form of notice of objection149D. Grounds of objection149E. Registrar to record objection149F. Copy of notice of objection to be given to bankrupt and Official Receiver149B. Objection to discharge
149G. Date of effect of objection
TABLE OF PROVISIONS—
Section
149H. Trustee or Official Receiver ceasing to object on some only of the grounds of objection
149J. Withdrawal of objection
149L. Inspector-General may authorise officer to act on his or her behalf149M. Inspector-General may request further information149N. Decision on review149P. Inspector-General to notify bankrupt and trustee of decision149K. Internal review of objection
149Q. Applications to Administrative Appeals Tribunal
149R. Interpretation
149S. Making of application
149U. Lack of divisible property149V. Transactions void against trustee149T. Eligibility to apply for early discharge
149W. Income of bankrupt
149Y. Unsecured liabilities exceeding 150% of income149Z. Failure to disclose beneficial interest in property149ZA. Failure to disclose liability149ZB. Failure to disclose income149ZC. If bankrupt engages in misleading conduct149ZD. If bankrupt continues to manage corporation149X. Previous bankruptcy or composition with creditors
149ZE. Failure of bankrupt to give passport to trustee
149ZF. If application granted
149ZG. If application rejected
149ZI. Inspector-General may authorise officer to act on his or her behalf149ZJ. Inspector-General may request further information149ZK. Decision on review149ZL. Inspector-General to notify bankrupt and trustee of decision149ZH. Internal review of determination
149ZM. Applications to Administrative Appeals Tribunal
152. Discharged bankrupt to give assistance
28. Effect of discharge
29. Repeal of section and insertion of new Division:
TABLE OF PROVISIONS—
Section
153B. Annulment by Court153A. Annulment on payment of debts
154. Effect of annulment
30. Insertion of new section:
161B. Primary remuneration of trustee
31. Additional remuneration of trustee
32. Insertion of new section:
163A. Costs and expenses of Official Receiver
33. Trustee not to accept extra benefit etc.
34. Removal of trustee
35. Application of general provisions of Act to deeds of assignment
36. Insertion of new section:
231 A. Right of debtor to remaining property
37. Application of general provisions of Act to deeds of arrangement
38. Insertion of new section:
237AA. Right of debtor to remaining property
39. Application of general provisions of Act to compositions
40. Insertion of new section:
243AA. Right of debtor to remaining property
41. Application of Act in relation to administrations under this Part
42. Vesting of property on making of order
43. Repeal of section and insertion of new sections:
252B. Annulment by Court252A. Annulment on payment of debts
252C. Effect of annulment
44. Offences relating to exercise of powers under section 77A, 77B or 130
45. Repeal of section and insertion of new sections:
267. False declaration by debtor or bankrupt
267B. Failure of person to provide information267C. Person not to provide false or misleading information267D. Failure of person to attend267E. Arrest of person failing to attend before Official Receiver or authorised officer267F. Refusal to be sworn or give evidence etc.267A. Bankrupt not to give false or misleading statement
267G. Prevarication or evasion in the course of giving evidence
46. Bankrupt obtaining credit etc. without disclosing bankruptcy
47. Leaving Australia with intent to defeat creditors etc.
48. Insertion of new section:
277A. Keeping of books in respect of period of bankruptcy
49. Insertion of new section:
304A. Indexation
50. Payment of expenses by Commonwealth
PART 3—TRANSITIONAL
51. Amendments to extend to existing bankruptcies
52. Compositions and schemes of arrangement
53. If proceedings pending under proceeds of crime legislation
54. Existing objections and proceedings are to lapse
55. Pending applications to Court for discharge are to lapse
56. Pending proceedings for annulment of bankruptcy under section 154
57. Amendments to extend to existing deeds and compositions
58. Amendments to extend to existing administrations of estates of deceased persons
[
The Parliament of Australia enacts:
(a) by adding "or the annulment of the bankruptcy" at the end of paragraph (a) of the definition of "end" in subsection (1);
"6A.(1) This section has effect for the purposes of the following provisions of this Act, namely, subsections 54(1) and (2) and paragraphs 55(2)(b), 56(2)(a) and (b), 56(13)(a) and (b) and 57(2)(a) and (b).
"(2) A reference in a provision of this Act referred to in subsection (1) to a statement of affairs is a reference to a statement that:
(b) sets out particulars of:(a) is in a form approved by the Inspector-General and published in the
Gazette ; and
(ii) all the property of the debtor or bankrupt as at the time of the making of the declaration referred to in paragraph (c); and(iii) all the liabilities (whether secured or unsecured, actual or contingent, liquidated or unascertained) of the debtor or bankrupt as at the time of the making of the declaration referred to in paragraph (c); and(iv) all the income that the debtor or bankrupt expects to derive in the 12 months following the filing of the statement; and(c) contains a declaration, signed by the debtor or bankrupt, that, so far as the debtor or bankrupt is aware, the particulars set out in the statement are correct. "(3) If the trustee has reasonable grounds to suspect that:(i) the bankrupt's or debtor's name, the address of the bankrupt's or debtor's principal place of residence, another address (if any) at which documents can be sent by post to the bankrupt or debtor and a telephone number (if any) at which the bankrupt or debtor can be contacted during ordinary working or business hours; and
(b) any material particulars have been omitted from that statement;the trustee may, by written notice given to the bankrupt, require the bankrupt, within a specified period of not less than 14 days, to provide such information or to produce such books as are specified in the notice for the purpose of enabling the trustee to decide whether the particulars set out in the statement are correct."(4) In approving a form for the purposes of paragraph (2)(a), the Inspector-General must ensure that the form:(a) any particulars set out in a statement of affairs that was filed by a person who was a bankrupt when the statement was filed, or has since become a bankrupt, are false or misleading in a material respect; or
(a) contains provisions to bring to the attention of the debtor or bankrupt the obligation to set out all the particulars of his or her property, liabilities and income as mentioned in paragraph (2)(b); and
(b) provides for a form of declaration by the debtor or bankrupt as mentioned in paragraph (2)(c).
"6B.(1) This section has effect for the purposes of the following provisions of this Act, namely, subparagraph 188(2)(c)(i), paragraph 246(1)(a) and subsection 247(1).
"(2) A reference in a provision of this Act referred to in subsection (1) to a statement of affairs or to a statement of a person's administration of a deceased person's estate is a reference to a statement of those affairs and of that administration that:
(a) contains such information as is prescribed for the purposes of that provision; and
(b) is verified by affidavit.".
"(4) The Inspector-General, or a person authorised in writing by the Inspector-General to exercise the powers of the Inspector-General under this subsection:
(a) is entitled to attend any meeting of creditors held under this Act; and
(b) subject to section 64ZA, is entitled to participate in any such meeting as the Inspector-General thinks fit.".
"(1A) If:
(a) a bankrupt became a bankrupt before the commencement of this subsection and applies after that commencement for early discharge from the bankruptcy under section 149S; and
(b) the trustee is of the opinion, on the basis of the information in the possession of the trustee, that the bankrupt was eligible to make the application and is not disqualified from early discharge;
it is also the duty of the trustee to cause to be given to each of the bankrupt's creditors whose address is known to the trustee a notice:
(d) setting out the kinds of matters that might render the bankrupt ineligible under Subdivision C of Division 3 of Part VII to apply for early discharge, or might disqualify the bankrupt under Subdivision D of that Division from early discharge; and(c) setting out the date on which the application was made; and
(e) telling the creditor that any matters known to the creditor that might so render the bankrupt ineligible to apply for early discharge, or might so disqualify the bankrupt from early discharge, should be given to the trustee within 6 months after the date set out as mentioned in paragraph (c).
"(1B) If a person becomes a bankrupt after the commencement of this subsection, it is also the duty of the trustee to cause to be given to each of the bankrupt's creditors whose address is known to the trustee a notice:
(b) stating the trustee's opinion, on the basis of the information in the possession of the trustee, as to whether the bankrupt will be eligible to apply for early discharge from the bankruptcy under section 149S and whether the bankrupt is disqualified from early discharge under Subdivision D of Division 3 of Part VII; and(c) setting out the kinds of matters that might under the bankrupt ineligible under Subdivision C of Division 3 of Part VII to apply for early discharge, or might disqualify the bankrupt under Subdivision D of that Division from early discharge; and(a) setting out the date on which the bankrupt's statement of affairs was filed; and
(d) telling the creditor that any matters known to the creditor that might so render the bankrupt ineligible to apply for early discharge, or might so disqualify the bankrupt from early discharge, should be given to the trustee within 6 months after the date set out as mentioned in paragraph (a).
"(1C) The trustee must cause the notice referred to in subsection (1A) or (IB) to be given as soon as practicable after the trustee forms the opinion mentioned in paragraph (1A)(b) or (1B)(b), as the case may be.".
"(o) the power to make an order under section 139ZU granting permission to a bankrupt to leave Australia;".
"37.(1) Subject to subsection (2), the Court may rescind, vary or discharge an order made by it under this Act or may suspend the operation of such an order.
"(2) The Court does not have power to rescind or discharge, or to suspend the operation of:
(a) a sequestration order; or
(b) an order for the administration of the estate of a deceased person under Part XL".
"
"
"63A.(1) In this Division, unless the contrary intention appears:
(a) the creditors who are entitled to vote at the meeting and are participating in person or by telephone in the meeting; and
(b) the persons participating in person or by telephone in the meeting as proxies or attorneys of any other creditors who are entitled to vote at the meeting;
(b) a bankruptcy that occurs by force of section 56 or 57; or(c) bankruptcies in respect of which an order under section 53 has been made; or(d) bankruptcies that occur under section 55 where:(a) a bankruptcy that occurs as the result of a sequestration order made under section 52, being an order made on a petition presented under section 46; or
(i) the date of each bankruptcy is the same; and
(ii) immediately before the bankruptcies occurred, the bankrupts were joint debtors or partners who owned property jointly;
"(2) A reference in this Division to a person participating in person in a meeting is a reference to a person being physically present at the meeting.
"63B.(1) The trustee of a bankrupt may, by signed writing, appoint a person to represent the trustee at a meeting.
"(2) If the trustee is not personally present at a meeting, then, unless the contrary intention appears, a reference in this Division to the trustee, in respect of matters occurring at that meeting, is a reference to a person so appointed to represent the trustee at that meeting.".
"
(a) by omitting from subsection (1) "shall" and substituting "must";
"64A.(1) If:
(b) the trustee is aware of one or more of the following:(a) the bankrupt has told the trustee, or the trustee has otherwise found out, that a person is a creditor of the bankrupt; and
(ii) the address of a place of residence of the person or, in the case of a company, the address of its registered office;(iii) an address to which notices may be sent to the person;(iv) a document exchange number to which notices may be sent to the person;(i) the address of a place of business of the person;
(v) a facsimile transmission number to which notices may be sent to the person;
the trustee must give notice to the person of any meeting of the bankrupt's creditors.
"(2) Notice of a meeting must be in writing and:
(b) lodged with a document exchange at, or for delivery to, the person's receiving facilities in the document exchange that are identified by the document exchange number referred to in subparagraph (1)(b)(iv); or(a) delivered, or sent by post, to the person at an address referred to in subparagraph (1)(b)(i), (ii) or (iii); or
(c) sent to the person by facsimile transmission to the number referred to in subparagraph (1)(b)(v).
"64B.(1) The notice must set out the full name and the address of a place of residence of the bankrupt.
"(2) If the meeting is the first meeting of the bankrupt's creditors, the notice must set out any trade or business name under which the bankrupt carried on business.
"(3) The notice must set out the time, date and place at which the meeting is to be held.
"(4) The notice must set out the agenda for the meeting and must state that additional matters may be added to the agenda with the leave of the meeting.
"(5) The notice must state that a creditor, or a proxy or attorney of a creditor, may make a statement at the meeting at the appropriate time during the proceedings.
"64C. If telephone conference facilities are expected to be available at the place where the meeting is to be held and the trustee considers that, having regard to all the circumstances, it will be appropriate to use those facilities, the notice must:
(b) tell the creditors that a creditor, or the proxy or attorney of a creditor, who wishes to participate in the meeting by telephone must give to the trustee, not later than the second-last working day before the day on which the meeting is to be held, a written statement setting out:(a) set out the relevant telephone number; and
(ii) an address to which notices to the creditor, proxy or attorney may be sent; and(iii) a telephone number at which the creditor, proxy or attorney may be contacted; and(iv) any facsimile transmission number to which notices to the creditor, proxy or attorney may be sent; and(i) the name of the creditor and of the proxy or attorney (if any); and
(c) also tell the creditors that a creditor, or the proxy or attorney of a creditor, who participates in the meeting by telephone must pay any costs incurred by the creditor, proxy or attorney in so participating and is not entitled to be reimbursed those costs out of the bankrupt's estate.
"64D. The notice must state that each creditor must give to the trustee at or before the meeting a written statement setting out:
(b) if the meeting is the first meeting of the bankrupt's creditors:(a) the amount in respect of which the creditor claims that the bankrupt is indebted to the creditor; and
(i) whether the creditor holds a security in respect of the debt and, if so, the value of the security as estimated by the creditor and the amount of the creditor's debt after deducting that value; and
(ii) brief particulars of the transaction and circumstances that gave rise to the debt.
"64E.(1) The notice must have attached to it a form for use in appointing a proxy.
"(2) The notice must tell the creditors that, where 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 at the meeting; or
(b) send the completed form with the statement given by the creditor to the trustee in accordance with section 64D.
"64F. The notice must tell the creditors that, where a creditor wishes to be represented at the meeting by an attorney, the creditor must arrange for the power of attorney to be produced to the trustee at or before the meeting.
"64G. The agenda to be set out in a notice of meeting in accordance with subsection 64B(4) is to comprise the following items:
(b) appointment of a minutes secretary;(c) announcement of appointment of proxies and attorneys and circulation of instruments appointing proxies and copies of powers of attorney for inspection by the persons present;(d) determination whether a quorum exists;(e) election of a person to preside at the remainder of the meeting;(f) proposal of a motion 'that the meeting is being held at a time, date and place that are convenient to the majority of creditors';(g) if the meeting is the first meeting—tabling of the bankrupt's statement of affairs;(h) statements by the trustee and by creditors and their representatives;(i) questions to the trustee and to the bankrupt;(j) President's summary of matters raised in statements and questions;(k) proposal of other motions (if any);(l) if the trustee is a registered trustee who does not wish his or her remuneration to be fixed by the Registrar—if the meeting is the first meeting, approval of the remuneration proposed by the trustee, or, if the meeting is a subsequent meeting, a statement by the trustee of the amount of remuneration drawn before the meeting was held;(m) appointment of committee of inspection (if required);(n) any other business;(o) fixing of time, date and place for another meeting;(a) opening of the meeting and introduction of the trustee and the bankrupt;
(p) closure of meeting.
"
"64H.(1) If a trustee has considered it appropriate that telephone conference facilities may be used for a meeting of creditors pursuant to section 64C and if a creditor, or the proxy or attorney of the creditor, who wishes to participate by telephone in the meeting has satisfied the requirements of paragraph 64C(b), in so far as they are applicable, the trustee must take all reasonable steps to ensure that the creditor, or the proxy or attorney of the creditor, is contacted on the telephone number provided by that person before the start of the meeting, and if such a person is so contacted the trustee must take all reasonable steps to ensure that that person can hear the proceedings, and can be heard, by means of those facilities, so that that person can participate in the meeting.
"(2) A creditor who, or whose proxy or attorney, so participates in the meeting by telephone is taken, for all purposes of this Act, to be present personally at the meeting.
"64J.(1) The trustee must prepare an attendance record in accordance with subsection (2) for the purposes of the meeting and must keep the record in his or her possession after the conclusion of the meeting.
"(2) The attendance record must include 5 columns and must indicate that particulars of creditors are to be entered as follows:
(b) if a creditor is so represented by a proxy or attorney, the name of the proxy or attorney is to be entered in the second column opposite to the name of the creditor in the first column;(c) in respect of each creditor whose name is entered in the first column:(a) the name of each creditor participating in person or by telephone, or represented by a proxy or attorney participating in person or by telephone, is to be entered in the first column;
(ii) if the debt is secured in whole or in part:(i) the value of the creditor's debt is to be entered in the third column; and
(A) the nature, and the value as estimated by the creditor, of the security is to be entered in the fourth column; and
(B) the balance of the creditor's debt after deducting that value is to be entered in the fifth column.
"(3) The attendance record must also include provision for recording whether the bankrupt is present and the names of any other persons present who are not creditors or proxies or attorneys of creditors, including provision for recording the capacity in which those other persons are present.
"
"64K.(1) The trustee is to preside at the meeting until a person is appointed to preside under section 64P.
"(2) The trustee must open the meeting and introduce himself or herself and, if the bankrupt is present, introduce the bankrupt.
"(3) If the bankrupt is not present, the trustee must announce that fact and, if the trustee is aware of any reason why the bankrupt is not present, must state that reason.
"(4) The trustee must circulate the attendance record prepared in accordance with section 64J among the creditors, and creditors' proxies and attorneys, participating in person and must ask them to enter in that record the relevant particulars, as required by the attendance record, of:
(a) the creditors who, or whose proxies and attorneys, are so participating in person; and
(b) those proxies and attorneys; and
(c) the debts of those creditors.
"(5) The trustee must enter in the attendance record the relevant particulars, as required by the attendance record, of:
(b) those proxies and attorneys; and(a) creditors who, or whose proxies or attorneys, are participating in the meeting by telephone; and
(c) the debts of those creditors.
"(6) The trustee must state in the attendance record whether or not the bankrupt is present and, if the bankrupt is not present and the trustee is aware of any reason why the bankrupt is not present, must set out that reason.
"64L.(1) The trustee must then:
(a) invite the creditors and their representatives to propose a motion appointing a person to record the minutes of the meeting; or
(b) if no such motion is passed—appoint a person to record those minutes.
"(2) Anyone participating in person in the meeting, whether or not a creditor or a proxy or attorney of a creditor, and including the trustee but not including the bankrupt, is eligible for appointment as the minutes secretary.
"(3) If a person appointed to record the minutes of a meeting subsequently refuses, or is unable, to record, or to continue to record,
those minutes, subsections (1) and (2) apply for the purpose of appointing another person to record the minutes.
"64M.(1) The trustee must then announce:
(a) the names of the creditors who are not participating in person or by telephone but whose proxies or attorneys are participating in person or by telephone; and
(b) the names of the proxies and attorneys.
"(2) The trustee must then circulate the instruments appointing proxies, and the powers of attorney or copies of the powers of attorney, for inspection by persons present at the meeting.
"64N.(1) The trustee must then determine whether a quorum is present.
"(2) A quorum is constituted:
(a) if there is only one creditor who is entitled to vote:
(ii) by the presence in person of the trustee; or(i) by that creditor, or a proxy or attorney of that creditor, participating in person or by telephone; and
(b) otherwise—by 2 persons participating in person or by telephone each of whom is either a creditor who is entitled to vote or the proxy or attorney of such a creditor.
"(3) If a quorum is not present within 30 minutes after the time fixed for the meeting, the meeting is adjourned to a time, date and place fixed by the trustee.
"(4) The date of the adjourned meeting must be not earlier than 7 days nor later than 14 days from the date of the original meeting.
"(5) The time and place of the adjourned meeting need not be the same as the time and place of the original meeting.
"(6) The following provisions of this Division apply to any meeting at which a quorum is present within 30 minutes after the time fixed for that meeting.
"(7) To remove any doubt, but without limiting by implication the application of subsection 63B(2) to other references in this Division to the trustee, the reference in subparagraph (2)(a)(ii) of this section to the presence in person of the trustee includes a reference to the presence in person of a person appointed under subsection 63B(1) to represent the trustee.
"64P.(1) The trustee must:
(a) invite the creditors and their representatives to nominate a person for election to preside at the meeting; or
(b) if no person is so nominated—nominate a person for election to preside at the meeting.
"(2) Anyone participating in person in the meeting, whether or not a creditor or a proxy or attorney of a creditor, and including the trustee but not including the bankrupt, is eligible to be nominated for appointment, and may be elected, to preside at the meeting.
"(3) If only one person is nominated, that person is taken to be elected to preside at the meeting.
"(4) If 2 or more persons are nominated, an election is to be held to determine which of the persons nominated is to preside at the meeting and the person who receives the greatest number of votes (whether or not a majority of the votes cast) is taken to be elected to preside at the meeting.
"(5) Subject to subsection (6), voting at the election is to be on the voices.
"(6) If the trustee is unable to determine which of the persons nominated received the greatest number of the votes on the voices, the trustee must ask each creditor, and each proxy or attorney, participating in person or by telephone to state for which nominee the creditor, proxy or attorney is casting a vote or whether the creditor, proxy or attorney is abstaining from casting a vote.
"(7) If 2 or more persons each receive the greatest number of votes, the trustee must decide by lot which of those persons is to be chosen to preside at the meeting, and the person so chosen is taken to be elected to preside at the meeting.
"(8) A person elected under this section to preside at the meeting is to preside at all times after he or she is elected.
"(9) If a person so elected subsequently refuses, or is unable, to preside, or to continue to preside, at the meeting, the preceding provisions of this section apply for the purpose of electing another person to preside at the meeting.
"64Q.(1) As soon as the President is elected, he or she must invite the creditors and their representatives to propose a motion that the meeting is being held at a time, date and place that are convenient to' a majority of creditors.
"(2) If no such motion is proposed, or such a motion is proposed but is not passed, the meeting is adjourned to such time, date and place as the meeting resolves.
"64R.(1) If the meeting is the first meeting, the President must then request the trustee to lay the bankrupt's statement of affairs before the meeting and the trustee must comply with the request.
"(2) If any of the creditors and their representatives requests that a creditor be given a copy of the statement of affairs, the trustee must comply with the request as soon as reasonably practicable.
"64S.(1) The President must then invite the trustee and the creditors and their representatives to make statements to the meeting.
"(2) After the statements (if any) have been made, the President must invite the creditors and their representatives to ask questions of the trustee and, if the bankrupt is present, of the bankrupt.
"(3) After the statements (if any) have been made and the questions (if any) have been asked, the President may, if he or she wishes to do so, summarise the matters raised in any such statements and in any questions asked of, and answers given by, the trustee and the bankrupt.
"64T. The President must then invite the creditors and their representatives to propose any relevant motions.
"64U.(1) If the meeting is the first meeting of the bankrupt's creditors and the trustee is a registered trustee, the President must then ask the trustee to state the basis on which the trustee wishes to be remunerated.
"(2) If the trustee states that he or she wishes his or her remuneration to be fixed by the Registrar under subsection 162(4), the minutes secretary is to record that statement in the minutes of the meeting.
"(3) If the trustee states a different basis for the fixing of his or her remuneration, the following provisions of this section have effect.
"(4) The President must invite the creditors and their representatives to propose a motion that the trustee be remunerated in accordance with the statement and, if no such motion is proposed, the trustee may propose such a motion.
"(5) A statement to be made by the trustee as mentioned in subsection (3) must:
(a) if the trustee proposes to charge on a time-cost basis:
(ii) otherwise—state 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; or(i) if there is only one rate at which the remuneration is to be calculated—state that rate; or
(b) if the trustee proposes to charge on the basis of a commission upon money received by the trustee—state the rate of that commission;
and must also state the periods at which the trustee proposes to withdraw funds from the bankrupt's estate in respect of the trustee's remuneration.
"(6) Any of the creditors and their representatives may ask the trustee questions about the proposed remuneration of the trustee and, if such a question is asked, the trustee must answer it.
"(7) Any of the creditors and their representatives may move an amendment to a motion proposed in accordance with subsection (4) so as to change in any way the basis on which the trustee is to charge or the periods at which the trustee may withdraw funds in respect of his or her remuneration or to refer the fixing of the trustee's remuneration to a committee of inspection.
"(8) If the meeting is not the first meeting of the bankrupt's creditors and the trustee is a registered trustee, the President must request 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 and the trustee must comply with the request.
"64V. The President must then tell the creditors and their representatives that, if they wish to appoint a committee of inspection, a motion for the appointment of such a committee may be proposed and must explain to them the effect of section 70.
"64W. If no motion is proposed for the appointment of a committee of inspection, or a motion for the appointment of such a committee has been passed or defeated, the President must then invite the creditors and their representatives to raise any other matters relevant to the bankruptcy.
"64X.(1) The President must then invite the creditors and their representatives to propose a motion fixing a time, date and place for another meeting.
"(2) The passing of a resolution fixing a time, date and place for another meeting does not prevent the trustee from convening any other meeting before or after the date so fixed.
"64Y.(1) If, at any time during a meeting, the meeting is adjourned, or a resolution is passed for the adjournment of the meeting:
(b) without limiting the application of paragraph (a):(a) the adjourned meeting is taken to be a continuation of the original meeting; and
(i) the persons who carried out the duties of President and minutes secretary at the original meeting are to continue to do so at the adjourned meeting; and
(ii) any matters required to be dealt with at the original meeting that were not so dealt with are to be dealt with at the adjourned meeting.
"(2) The trustee must give notice of the time, date and place of the adjourned meeting to each creditor in accordance with subsection 64A(2).
"64Z.(1) It is the duty of the minutes secretary of a meeting to take minutes in accordance with this section recording the business transacted at the meeting.
"(2) The minutes may, but need not, record full particulars of statements made, questions asked and answers given at the meeting but must contain sufficient particulars to show that the meeting dealt with all matters that are required by this Division to be dealt with.
"(3) Without limiting the generality of subsection (2), the minutes must record:
(b) the votes cast for each nominee at an election of a person to preside at the meeting (other than an election at which voting took place on the voices); and(c) the name, and the address of a place of residence or business,(a) the name, and the address of a place of residence or business, of the minutes secretary or, if there were different minutes secretaries at different times during the meeting, of each minutes secretary; and
of the President or, if there were different Presidents at different times during the meeting, of each President.
"(4) The minutes must record the precise words of each motion proposed at the meeting and of any amendment proposed to such a motion.
"(5) If a resolution or a special resolution is passed at the meeting:
(b) the President and the minutes secretary must each sign the certificate; and(c) the minutes secretary must give the certificate:(a) the minutes secretary must prepare a certificate recording the precise words of the resolution or special resolution; and
(ii) in the case of a resolution passed under section 181 removing the trustee—to the trustee appointed in place of the trustee removed and to the Official Receiver; and(i) to the trustee; or
(d) the trustee to whom the certificate is given must file the certificate with the Registrar.
"(6) If a motion is passed or defeated on the voices, the minutes must record that fact and, if a person who voted against a motion that was passed on the voices asks that the person's dissent be recorded in the minutes, that dissent must be so recorded.
"(7) The minutes must record the value of each creditor's debt and the total value of the debts of all the creditors.
"(8) If a poll 'is taken on a motion, the minutes must record:
(b) the number and names of the creditors (if any) who voted against the motion and the total value of their debts; and(a) the number and names of the creditors (if any) who voted in favour of the motion and the total value of their debts; and
(c) the number and names of the creditors (if any) who abstained from voting on the motion and the total value of their debts.
"(9) A reference in this section to the value of a creditor's debt is, if the creditor holds a security in respect of that debt, a reference to the value of that debt after deducting the value of the security as estimated by the creditor in the statement given by the creditor to the trustee under section 64D.
"(10) The minutes must be dated, and be signed by the President and the minutes secretary, not later than 14 days after the date of the meeting.
"64ZA.(1) This section applies to voting:
(a) at an election under section 64P of a person to preside at a meeting; and
(b) on any motion proposed at a meeting or an amendment proposed to such a motion.
"(2) In this section:
"(3) A person other than a creditor is not entitled to vote.
"(4) Subject to subsections (5) and (6), each creditor is entitled to vote and has one vote.
"(5) If a creditor holds a security in respect of a debt, the creditor is not entitled to vote unless the debt, or the total amount of the debts, owed to the creditor exceeds the amount estimated by the creditor in the statement given to the trustee under section 64D to be the value of the security.
"(6) A creditor who has failed to give to the trustee a statement in accordance with section 64D is not entitled to vote.
"(7) A creditor is not disqualified from voting merely because the creditor is the President or the minutes secretary.
"(8) The trustee may determine any question that arises as to the entitlement of a person to vote.
"(9) If the trustee needs a period in which to determine a question referred to in subsection (8), the meeting is to be adjourned to such time, date and place as the meeting resolves, being a date not later than 14 days after the date of the original meeting, for the purpose of enabling the trustee to determine the question.
"64ZB.(1) A creditor who participates in a meeting in person or by telephone may cast the creditor's vote personally and not otherwise.
"(2) Subject to subsections (3) and (5), the vote of a creditor who is not participating in a meeting in person or by telephone may be cast by a proxy duly appointed by the creditor, or by an attorney duly authorised by the creditor under a power of attorney, being a proxy or attorney participating in the meeting in person or by telephone, and the casting of a creditor's vote by such a proxy or attorney is taken to constitute the casting of a vote by the creditor.
"(3) A creditor's proxy or attorney is not entitled to cast the creditor's vote at a meeting unless the instrument appointing the proxy was received by, or the power of attorney was produced to, the trustee before the announcement about the appointment of proxies and attorneys is made at the meeting under section 64M.
"(4) A creditor's proxy or attorney is not disqualified from casting the creditor's vote merely because the proxy or attorney is the trustee, the President or the minutes secretary.
"(5) If the trustee or an associate of the trustee is a creditor's proxy or attorney, the trustee or associate may not cast the creditor's vote on a motion relating to the trustee's remuneration unless the instrument appointing the proxy or the power of attorney, as the case may be, expressly authorises the trustee or associate to cast the creditor's vote on such a motion.
"(6) For the purposes of subsection (5), a person is an associate of the trustee if the person is:
(b) an employee of the trustee; or(a) a partner of the trustee; or
(c) a solicitor for the trustee, for a partnership in which the trustee is a partner, or for a person or partnership that employs the trustee.
"(7) A motion proposed at a meeting is to be resolved:
(b) if:(a) subject to paragraph (b)—on the voices; or
(ii) any of the creditors and their representatives requests a poll, whether the request is made before the motion is put to the vote on the voices or after the President announces the result of the vote on the voices; or(i) the President is unable to determine the result of the voting on the voices; or
(iii) the motion relates to a matter in respect of which this Act requires the passing of a resolution or special resolution;
by a poll taken:
(iv) by a show of hands or written votes of creditors, or proxies or attorneys, participating in person; and
(v) by statements made by telephone to the President by creditors, or proxies or attorneys, participating by telephone.
"64ZC.(1) An instrument appointing a proxy must set out:
(a) the full name, and the address of a place of residence or business, of the creditor; and
(b) the full name, and the address of a place of residence or business, of the person appointed as proxy.
"(2) An instrument appointing a proxy may appoint more than one person as proxy but:
(a) if the first person named in the instrument as a proxy is participating in person or by telephone in the meeting, only that person may cast the creditor's vote; and
(b) any other person named in the instrument as a proxy may cast the creditor's vote if, and only if, that person is participating in person or by telephone in the meeting and no person named in the instrument as a proxy before the name of that person is participating in person or by telephone in the meeting.
"(3) An instrument appointing a proxy must set out the bankrupt's name and must state whether the appointment relates to a particular meeting or to all meetings.
"(4) An instrument appointing a proxy may authorise the proxy to cast the creditor's vote at a meeting to which the proxy relates on all matters arising at the meeting or may authorise the proxy to cast the creditor's vote at that meeting only on matters specified in the instrument.
"(5) An instrument appointing a proxy may direct the proxy as to the manner in which the proxy is to vote on a particular matter or matters that may arise at the meeting or on a particular motion or motions that may be proposed at the meeting.
"(6) If an instrument appointing a proxy purports to appoint the bankrupt as a proxy, the purported appointment does not have any effect but, if the instrument also appoints another person as a proxy, the appointment of the other person is not affected and the instrument has effect as if the purported appointment of the bankrupt were not included.
"64ZD.(1) Subject to the right of the trustee to propose a motion relating to the trustee's remuneration under subsection 64U(4), the only persons who may propose motions, or amendments of motions, at a meeting are the creditors and their representatives.
"(2) A motion or amendment does not need to be seconded.
"(3) If a motion is proposed, the person presiding at the meeting must allow a reasonable time for debate on the motion and on any amendment proposed to the motion.
"(4) After a reasonable time for debate has elapsed, the person presiding must:
(b) if an amendment or amendments have been proposed, put the amendment or amendments to a vote; and(a) if no amendment has been proposed—put the motion to a vote; or
(i) if the amendment or amendments are defeated—put the original motion to a vote; or
(ii) if an amendment or amendments are passed—put the original motion as amended to a vote.
"(5) If a question arises as to the terms of a motion or amendment that is being put to a vote, the person presiding must read the motion or amendment to the meeting.
"64ZE.(1) At a meeting of the creditors in a joint bankruptcy, the trustee must explain to the creditors and their representative s the likely effect of section 110 with respect to the distribution of dividends.
"(2) At a meeting of the creditors in a bankruptcy to which section 141 applies, the trustee must explain to the creditors and their representatives the likely effect of section 141 with respect to the distribution of dividends.
"64ZF. A meeting, or anything done at a meeting, is not invalid because a requirement of this Subdivision has not been strictly complied with if the requirement has been substantially complied with.".
"(5) Upon the passing of a special resolution at a meeting of creditors of a bankrupt under subsection 73(4), the bankruptcy is annulled, by force of this subsection, on the date on which the special resolution was passed.
"(5A) The trustee must, as soon as practicable after that date, give to the Registrar a written certificate setting out the name and the bankruptcy number of the former bankrupt and the date of the annulment.
"(5B) The Registrar must enter in his or her records the fact that the bankruptcy has been annulled and the date of the annulment.".
(a) by omitting from subsections (1) and (3) "and approved";
(iii) it is desirable that the affairs of the former bankrupt be investigated and administered under the provisions of this Act relating to bankruptcy; or"(ii) the approval of the creditors was obtained by a misrepresentation by the former bankrupt; or
(iv) it is likely that the creditors will receive a greater dividend if the former bankrupt is again made a bankrupt;".
"76A. Division 5 of Part IV applies, so far as it is capable of applying and with such modifications (if any) as are prescribed by the rules, to meetings of creditors under this Division.".
"77AA.(1) The Official Receiver, or an officer authorised in writing by the Official Receiver to exercise powers under this section, is entitled at all reasonable times to full and free access to all premises and books for any purpose of this Act, and for that purpose may make copies of, or take extracts from, any such book.
"(2) An officer is not entitled to enter or remain in or on any premises under this section if, on being requested by the occupier of the premises for proof of authority, the officer does not produce the officer's authority under subsection (1).
"(3) The occupier of any premises entered or proposed to be entered by the Official Receiver, or by an officer, under subsection (1) must provide the Official Receiver or officer with all reasonable facilities and assistance for the effective exercise of powers under this section.
Penalty: $3,000.".
"77C.(1) The Official Receiver, by written notice given to any person, whether a bankrupt or not, including any person employed by or in connection with a Department, or an authority, of the Commonwealth, of a State or of a Territory, may require the person:
(b) to attend before the Official Receiver, or before an officer authorised in writing by the Official Receiver to exercise powers under this paragraph, and:(a) to give to the Official Receiver such information as the Official Receiver requires for the purposes of the performance of the functions of the Official Receiver or a trustee under this Act; and
(ii) produce all books in the possession of the person;(i) give evidence; and
relating to any matters connected with the performance of the functions of the Official Receiver or a trustee under this Act.
"(2) The Official Receiver or authorised officer may require the information or evidence to be given on oath, and either orally or in writing, and for that purpose may administer an oath.
"77D.(1) Subject to this section, a person who attends before the Official Receiver, or before an authorised officer, under subsection 77C(1) is entitled:
(a) to be paid by the Official Receiver an allowance of $20 in respect of each day or part of a day on which the person so attends; and
(b) to be reimbursed by the Official Receiver any reasonable expenses incurred by the person for transport, meals and accommodation in connection with the person's attendance.
"(2) A person who is or has been a bankrupt is not entitled to be paid an allowance, or reimbursed any expenses, in respect of the attendance of that person to give evidence or produce books relating to his or her bankruptcy.
"(3) A person is not entitled to be reimbursed any expenses unless the person produces to the Official Receiver sufficient documentary evidence to establish that the person incurred those expenses.
"(4) This section has effect subject to section 304A.
"77E.(1) If a person who is required by a notice under subsection 77C(1) to attend before the Official Receiver or an authorised officer is entitled under subsection 77D(1) to be paid an allowance and to be reimbursed expenses in respect of the attendance, the Official Receiver must, before the person begins to travel for the purpose of so attending, offer to the person, on account of the allowance and reimbursement of expenses, an advance determined under this section.
"(2) If the Official Receiver is satisfied that it will be necessary for the person to travel by aircraft from the person's principal place of residence to the place at which the person is required to attend, the advance is to be an amount equal to the sum of $20 and the ordinary one-way economy class airfare from the airport nearest to that principal place of residence to the airport nearest to the place at which the person is required to attend.
"(3) If the person will be travelling by private motor vehicle, the advance is to be the sum of $20 and whichever is the lesser of the following amounts:
(a) an amount prescribed by the rules;
(b) if there is an airport open to civilian passenger traffic that is within a radius of 100 kilometres from the person's principal place of residence—the ordinary one-way economy class airfare from that airport to the airport nearest to the place at which the person is required to attend.
"(4) If the person will be travelling otherwise than as mentioned in subsections (2) and (3), the advance is to be:
(a) if the distance between the person's principal place of residence and the place at which the person is required to attend exceeds 50 kilometres—$10 plus such additional amount (if any) as is prescribed by the rules; or
(b) in any other case—$10.
"(5) The rules may prescribe different amounts in respect of different distances and different means of travel.
"(6) This section has effect subject to section 304A.
"77F. If the evidence that a person gives, or the books that a person produces, under section 77C, relate to matters concerning the bankruptcy of a particular person, any amount payable to the first-mentioned person under section 77D or 77E is to be paid out of the estate of the bankrupt as an expense of the administration of the bankruptcy.".
(a) by omitting subsection (1) and the penalty at the foot of that subsection and substituting the following subsection and penalty:
"(1) If during a bankruptcy a change occurs in the bankrupt's name, or in any other particulars that the bankrupt was required to set out in the bankrupt's statement of affairs under subparagraph 6A(2)(b)(i), the bankrupt must immediately tell the Registrar and the trustee in writing of the change.
Penalty: Imprisonment for 6 months.";
(b) by omitting subsection (3) and the penalty at the foot of that subsection.
"81A.(1) If the Official Receiver has reason to believe that:
(a) information relevant to the examinable affairs of a bankrupt is:
(ii) recorded (whether exclusively or otherwise) in a book outside Australia; or(i) known (whether exclusively or otherwise) by a person outside Australia; or
(b) books relevant to the examinable affairs of a bankrupt are outside Australia (whether or not copies are in Australia or, if the books are copies of other books, whether or not those other books are in Australia);
the Official Receiver, by written notice (in this Division called the
(d) to produce to the Official Receiver, within the period and in the manner set out in that notice, any such books; or(c) to give to the Official Receiver, within the period and in the manner set out in that notice, any such information; or
(e) to make copies of any such books and to produce to the Official Receiver, within the period and in the manner set out in that notice, those copies.
"(2) The period set out in the offshore information notice must end 90 days after the date on which the notice is given.
"81B.(1) Upon written application made by the person to whom the offshore information notice was given within the period set out in that notice, the Official Receiver, by written notice given to that person, may extend the period set out in the offshore information notice.
"(2) If:
(a) an application under subsection (1) is made before the end of the period set out in the offshore information notice; and
(b) at the end of the period, the Official Receiver has not notified the person of the decision of the Official Receiver on the application;
the following provisions have effect:
(c) the Official Receiver is taken to have extended the period under subsection (1) to the end of the day on which the decision of the Official Receiver is notified to the person to whom the offshore information notice was given;
(d) if the Official Receiver decides to extend the period—the extended period must end after the day referred to in paragraph (c).
"(3) A reference in this Division (other than subsection (1) of this section) to the period set out in the offshore information notice is a reference to the period as extended under that subsection.
"81C.(1) If:
(b) during the period set out in the first notice (including a period set out by virtue of one or more previous applications of this subsection), another offshore information notice (in this subsection called the(a) an offshore information notice (in this subsection called the
'first notice' ) was given to a person; and
(c) the subsequent notice is expressed to be by way of variation of the first notice;
the following provisions have effect:
(e) if the period set out in the first notice would, apart from this subsection, end before the end of the period set out in the subsequent notice—the period set out in the first notice is taken(d) the request, or each of the requests, set out in the subsequent notice is taken, for the purposes of section 81G, to have been set out in the first notice;
to have been extended under subsection 81B(1) to the end of the period set out in the subsequent notice.
"(2) The Official Receiver, by written notice given to the person to whom the offshore information notice was given, may vary the offshore information notice by:
(a) reducing its scope; or
(b) correcting a clerical error or obvious mistake;
and, if the Official Receiver does so, a reference in this Division to the offshore information notice is taken to be a reference to that notice as so varied.
"81D.(1) The Official Receiver may withdraw an offshore information notice.
"(2) If the Official Receiver withdraws an offshore information notice, the withdrawal does not prevent the Official Receiver from giving another offshore information notice in substitution, in whole or in part, for the withdrawn notice.
"81E. An offshore information notice may be contained in the same document as a notice under section 77C.
"81F. Nothing in this Division affects the operation of section 77C and nothing in section 77C affects the operation of this Division.
"81G.(1) In this section:
(b) for the recovery of an amount payable by a person under section 139ZL; or(a) for the recovery of an amount payable by a bankrupt under section 139ZG; or
(c) involving the question whether a transaction is void against the trustee under Division 3 of Part VI.
"(2) Subject to subsection (3), where a person refuses or fails to comply with a request or requirement set out in a notice given to the person under Division 1 or 2 to give any information or produce any books:
(a) if the request or requirement applies to information—the information is not admissible in a relevant proceeding; or
(b) if the request or requirement applies to books—neither the books, nor any secondary evidence of the books, is admissible in a relevant proceeding.
"(3) Subsection (2) does not apply to information or a book if the person proves that:
(a) the information or book was not in the possession of the person when the notice was given; and
(b) there were no reasonable steps that the person could have taken to obtain the information or book.
"(4) A notice given to a person under Division 1 or 2 must set out the effect of subsections (2) and (3).
"(5) A failure to comply with subsection (4) does not affect the validity of the notice.".
"
"
"139J. The objects of this Division are:
(a) to require a bankrupt who derives income during the bankruptcy to pay contributions towards the bankrupt's estate; and
(b) to enable the recovery of certain money and property for the benefit of the bankrupt's estate.
"
"139K. In this Division, unless the contrary intention appears:
(b) if the bankrupt has one dependant at that time—the base income threshold amount increased by:(a) if the bankrupt does not have any dependants at that time— the base income threshold amount; or
(ii) if the dependant is only partly dependent on the bankrupt for economic support—9%; or(c) if the bankrupt has 2 dependants at that time—the base income threshold amount increased by:(i) if the dependant is wholly dependent on the bankrupt for economic support—18%; or
(ii) if either of the dependants is only partly dependent on the bankrupt for economic support—13.5%; or(d) if the bankrupt has 3 dependants at that time—the base income threshold amount increased by:(i) if both dependants are wholly dependent on the bankrupt for economic support—27%; or
(ii) if any of the dependants is only partly dependent on the bankrupt for economic support—16%; or(e) if the bankrupt has 4 dependants at that time—the base income threshold amount increased by:(i) if all the dependants are wholly dependent on the bankrupt for economic support—32%; or
(ii) if any of the dependants is only partly dependent on the bankrupt for economic support—17%; or(f) if the bankrupt has more than 4 dependants at that time—the base income threshold amount increased by:(i) if all the dependants are wholly dependent on the bankrupt for economic support—34%; or
(i) if all the dependants are wholly dependent on the bankrupt for economic support—36%; or
(ii) if any of the dependants is only partly dependent on the bankrupt for economic support—18%;
(a) begins on:
(ii) an anniversary of that commencement, being an anniversary that occurs during the bankruptcy; and(i) the commencement of the bankruptcy or the commencement of this Division, whichever is the later; or
(b) ends one year after that commencement or that anniversary, as the case requires, or if the bankrupt is discharged within that year, ends upon the discharge;
(b) does not receive any income from a person other than the bankrupt or a spouse or former spouse of the bankrupt; and(a) resides with the bankrupt; and
(c) is wholly dependent on the bankrupt for economic support or is dependent for economic support partly on the bankrupt and partly on a spouse or former spouse of the bankrupt;
"
"139L. In this Division:
(a) a payment to the bankrupt from a provident, benefit, superannuation, retirement or approved deposit fund; and
(b) a payment to the bankrupt in consequence of a termination of any office or employment; and
(d) an amount received by the bankrupt as a beneficiary under a trust to the extent to which the amount was paid out of income of the trust; and(e) the value of a benefit that is, or if it were provided by an employer would be, a fringe benefit for the purposes of the(c) an amount received by the bankrupt under a policy of life insurance or endowment insurance; and
from another person as a result of work done or services performed by the bankrupt, less any expenses (other than expenses of a capital nature) necessarily incurred by the first-mentioned person in connection with the work or services;
but does not include an amount that is not income for the purposes of the
"139M.(1) Income is taken to be derived by a bankrupt for the purposes of this Division even though it is not actually received by the bankrupt because:
(b) it is reinvested, accumulated or capitalised; or(a) an amount is deducted from it, or it is wholly or partly otherwise applied, under a law of the Commonwealth, of a State or of a Territory; or
(c) it is dealt with on behalf of the bankrupt or as the bankrupt directs.
"(2) A reference in this Division to the income that a bankrupt is likely to derive during a contribution assessment period includes a reference to income that the bankrupt has derived during that period.
"(3) A reference in this Division to income derived by a bankrupt during a contribution assessment period includes a reference to income so derived in respect of work done or services performed by the bankrupt before that period or work to be done or services to be performed by the bankrupt after that period.
"139N. The income that is likely to be derived, or was derived, by a bankrupt during a contribution assessment period:
(a) is taken to be reduced by:
(ii) any amount that the bankrupt pays or is likely to be liable to pay, or paid or was liable to pay, as the case may be, during that period in respect of child support under the(i) any amount that the bankrupt pays or is likely to be liable to pay, or paid or was liable to pay, as the case may be, during that period in respect of income tax; and
(b) is taken to be increased by any amount that the bankrupt receives or is likely to receive, or received or was entitled to receive, as the case may be, during that period as a refund of income tax.
"
"139P.(1) Subject to section 139Q, if the income that a bankrupt is likely to derive during a contribution assessment period as assessed by the trustee under an original assessment exceeds the actual income threshold amount applicable in relation to the bankrupt when that assessment is made, the bankrupt is liable to pay to the trustee a contribution in respect of that period.
"(2) Subject to section 139Q, if the income that a bankrupt is likely to derive during a contribution assessment period as assessed by the trustee under an original assessment does not exceed the actual income threshold amount applicable in relation to the bankrupt when that assessment is made, the bankrupt is not liable to, but may if he or she so wishes, pay to the trustee a contribution in respect of that period.
"139Q.(1) If the income that a bankrupt is likely to derive, or derived, during a contribution assessment period as assessed by the trustee under a subsequent assessment exceeds the actual income threshold amount applicable in relation to the bankrupt when the subsequent assessment is made, the bankrupt is liable to pay to the trustee a contribution in respect of that period.
"(2) The liability of the bankrupt under subsection (1) in respect of a contribution assessment period is in substitution for any liability of the bankrupt in respect of that period under subsection 139P(1) or under any previous application of subsection (1) of this section and has effect despite subsection 139P(2).
"(3) If the income that a bankrupt is likely to derive, or derived, during a contribution assessment period as assessed by the trustee under a subsequent assessment does not exceed the actual income threshold amount applicable in relation to the bankrupt when the subsequent assessment is made:
(b) any liability that the bankrupt had under subsection 139P(1) or(a) the bankrupt is not liable to, but may if he or she so wishes, pay to the trustee a contribution in respect of that income; and
under subsection (1) of this section to pay a contribution in respect of that period is extinguished.
"139R. Any liability of a bankrupt under section 139P or 139Q is not affected by his or her discharge from bankruptcy after the making of the assessment that gave rise to the liability.
"139S. The contribution that a bankrupt is liable to pay in respect of a contribution assessment period is the amount worked out in accordance with the formula:
where:
"139T.(1) If:
(a) the trustee has made an assessment of a contribution that a bankrupt is liable to pay to the trustee in respect of a contribution assessment period; and
(b) the bankrupt considers that, if required to pay that contribution, he or she will suffer hardship for a reason or reasons set out in subsection (2);
the bankrupt may apply in writing to the Official Receiver for the making of a determination under this section in respect of that period.
"(2) The reasons for which an application may be made under subsection (1) are as follows:
(b) the bankrupt is required to make payments from his or her income to meet the cost of child day-care to enable the bankrupt to continue in employment or other work;(c) the bankrupt is living in rented accommodation not provided by, or by an authority of, the Commonwealth, a State or a Territory, or by a local government authority, and the bankrupt is required to pay the cost of that accommodation wholly or mainly from his or her income;(a) the bankrupt or a dependant of the bankrupt suffers from an illness or disability that requires on-going medical attention and the supply of medicines, and the bankrupt is required to meet a substantial proportion of the costs of that medical attention or those medicines from his or her income;
(c) subject to subsections (3), (6) and (7), the remainder (if any) of the property of the former bankrupt still vested in the trustee reverts to the bankrupt.
"(2) If the property of the former bankrupt referred to in paragraph (1)(b) is insufficient to meet the costs, charges and expenses referred to in that paragraph, the amount of the deficiency is a debt due by the former bankrupt to the trustee and is recoverable by the trustee by action against the former bankrupt in a court of competent jurisdiction.
"(3) If an application is made to the Court by a person claiming an interest in property referred to in paragraph (1)(c), the Court, after hearing such persons as it thinks fit, may make an order, either unconditionally or on such conditions as the Court considers just and equitable, for the vesting of the property in, or delivery of the property to, a person in whom, or to whom, it seems to the Court to be just and equitable that it should be vested or delivered, or to a trustee for that person.
"(4) Subject to subsection (5), if an order vesting property in a person is made under subsection (3), the property vests immediately in the person without any conveyance, transfer or assignment.
"(5) If:
(a) the property to which such an order relates is property the transfer of which is required by a law of the Commonwealth, of a State or of a Territory to be registered; and
(b) that law enables the registration of such an order;
the property, even though it vests in equity in the person named in the order, does not vest in that person at law until the requirements of that law have been complied with.
"(6) The Court may make an order directing the trustee not to pay or transfer the property, or a specified part of the property, referred to in paragraph (1)(c) to the former bankrupt if:
(b) the Court is satisfied that:(a) the Director of Public Prosecutions, or a person who is entitled to apply for an interstate confiscation order under a corresponding law, applies to the Court for an order under this subsection; and
(ii) property of the former bankrupt may:(i) proceedings are pending under theProceeds of Crime Act 1987 or a corresponding law; and
(A) become subject to a forfeiture order or interstate forfeiture order made in the proceedings; or
(B) be required to satisfy a pecuniary penalty order or interstate pecuniary penalty order made in the proceedings.
"(7) The Court, on application made to it, may vary or revoke an order made under subsection (6).".
"161B.(1) The trustee of the estate of a bankrupt (other than the Official Trustee) who consents to act as trustee after the commencement of this section is entitled to receive as remuneration $1,000 in addition to any remuneration fixed in accordance with section 162.
"(2) The amount payable to the trustee under subsection (1) is recoverable by the trustee from the person who is or was the bankrupt as a debt due to the trustee by action in a court of competent jurisdiction.
"(3) This section has effect subject to section 304A.".
(a) by omitting from subsection (1) "The remuneration" and substituting "Subject to section 161B, the remuneration";
"(5A) The trustee must not withdraw funds from the bankrupt's estate in respect of his or her remuneration at intervals of less than one week.".
"163A.(1) If the Official Receiver exercises any power under this Act in relation to a bankrupt, the costs and expenses of the Official Receiver in connection with the exercise of the power are taken to be costs and expenses of the administration of the estate of the bankrupt.
"(2) If the Official Receiver exercises any power under this Act at the request of the trustee of the estate of a bankrupt, the trustee is to pay the prescribed fee to the Official Receiver.
"(3) Any amount paid to the Official Receiver under subsection (2) is to be paid into the Consolidated Revenue Fund.".
"(3) This section has effect subject to section 161B.".
"231A.(1) The debtor is entitled to any property remaining after payment in full of:
(b) all provable debts; and(a) the costs, charges and expenses of the administration of the deed of assignment; and
(c) interest on interest-bearing provable debts.
"(2) The Court may make an order directing the trustee not to pay or transfer the property, or a specified part of the property, referred to in subsection (1), to the debtor if:
(b) the Court is satisfied that:(a) the Director of Public Prosecutions, or a person who is entitled to apply for an interstate confiscation order under a corresponding law, applies to the Court for an order under this subsection; and
(ii) property of the debtor may:(i) proceedings are pending under theProceeds of Crime Act 1987 or a corresponding law; and
(A) become subject to a forfeiture order or interstate forfeiture order made in the proceedings; or
(B) be required to satisfy a pecuniary penalty order or interstate pecuniary penalty order made in the proceedings.
"(3) The Court, on application made to it, may vary or revoke an order made under subsection (1).".
"237AA.(1) The debtor is entitled to any property remaining after payment in full of:
(b) all provable debts; and(a) the costs, charges and expenses of the administration of the deed of arrangement; and
(c) interest on interest-bearing provable debts.
"(2) The Court may make an order directing the trustee not to pay or transfer the property, or a specified part of the property, referred to in subsection (1), to the debtor if:
(b) the Court is satisfied that:(a) the Director of Public Prosecutions, or a person who is entitled to apply for an interstate confiscation order under a corresponding law, applies to the Court for an order under this subsection; and
(ii) property of the debtor may:(i) proceedings are pending under theProceeds of Crime Act 1987 or a corresponding law; and
(A) become subject to a forfeiture order or interstate forfeiture order made in the proceedings; or
(B) be required to satisfy a pecuniary penalty order or interstate pecuniary penalty order made in the proceedings.
"(3) The Court, on application made to it, may vary or revoke an order made under subsection (1).".
"243AA.(1) The debtor is entitled to any property remaining after payment in full of:
(b) all provable debts; and(a) the costs, charges and expenses of the administration of the composition; and
(c) interest on interest-bearing provable debts.
"(2) The Court may make an order directing the trustee not to pay or transfer the property, or a specified part of the property, referred to in subsection (1), to the debtor if:
(b) the Court is satisfied that:(a) the Director of Public Prosecutions, or a person who is entitled to apply for an interstate confiscation order under a corresponding law, applies to the Court for an order under this subsection; and
(ii) property of the debtor may:(i) proceedings are pending under theProceeds of Crime Act 1987 or a corresponding law; and
(A) become subject to a forfeiture order or interstate forfeiture order made in the proceedings; or
(B) be required to satisfy a pecuniary penalty order or interstate pecuniary penalty order made in the proceedings.
"(3) The Court, on application made to it, may vary or revoke an order made under subsection (1).".
"252A.(1) If the trustee of the estate of a deceased person is satisfied that all the debts of the estate of a deceased person have been paid in full, the order for the administration of the estate under this Part is annulled, by force of this subsection, on the date on which the last such payment was made.
"(2) The trustee must, as soon as practicable after that date, give to the Registrar a written certificate setting out the name and the administration number of the estate and the date of the annulment.
"(3) The Registrar must enter in his or her records the fact that the order has been annulled and the date of the annulment.
"(4) For the purposes of this section, if a debt has been proved by a creditor but the creditor cannot be found or cannot be identified, the debt may be paid to the Registrar and, if so paid, is taken for the purposes of this section to have been paid in full to the creditor.
"(5) If money is paid to the Registrar under subsection (4), the Registrar must pay that money into the Consolidated Revenue Fund and the provisions of subsections 254(3) and (4) apply in relation to that money as if it had been paid into the Consolidated Revenue Fund by a trustee under subsection 254(2).
"(6) In this section:
"252B. If the Court is satisfied that an order for the administration of the estate of a deceased person under this Part ought not to have been made, the Court may make an order annulling the administration of the estate under this Part.
"252C.(1) If the administration of the estate of a deceased person under this Part is annulled under section 252A or 252B:
(b) the trustee may apply the property still vested in the trustee in connection with the administration of the estate in payment of the costs, charges and expenses of the administration of the estate, including the remuneration and expenses of the trustee; and(a) all sales and dispositions of property and payments duly made, and all acts done, by the trustee of the estate under this Part or any person acting under the authority of the trustee or the Court before the annulment are taken to have been validly made or done; and
(c) subject to subsection (2), the remainder (if any) of the property still vested in the trustee in connection with the administration of the estate reverts to the estate of the deceased person.
"(2) If an application is made to the Court by a person claiming an interest in property referred to in paragraph (1)(c), the Court, after hearing such persons as it thinks fit, may make an order, either unconditionally or on such conditions as the Court considers just and equitable, for the vesting of the property in, or delivery of the property to, a person in whom, or to whom, it seems to the Court to be just and equitable that it should be vested or delivered, or to a trustee for that person.
"(3) Subject to subsection (4), if an order vesting property in a person is made under subsection (2), the property vests immediately in the person without any conveyance, transfer or assignment.
"(4) If:
(a) the property to which such an order relates is property the transfer of which is required by a law of the Commonwealth, of a State or of a Territory to be registered; and
(b) that law enables the registration of such an order;
the property, even though it vests in equity in the person named in the order, does not vest in that person at law until the requirements of that law have been complied with.".
"Penalty: Imprisonment for 12 months.".
"267.(1) This section applies to a declaration contained in a statement that:
(b) accompanies a petition presented under paragraph 55(2)(b) or subsection 56(1); or(c) is filed under paragraph 56(13)(a) or (b); or(a) is filed under paragraph 54(1)(a) or (2)(a); or
(d) accompanies a petition presented under subsection 57(1).
"(2) A person must not sign a declaration to which this section applies that the person knows to be false.
Penalty: Imprisonment for 12 months.
"267A. A bankrupt must not give a statement to the trustee under section 139U that is false or misleading in a material particular.
Penalty: Imprisonment for 12 months.
"267B. A person must not, without reasonable excuse, refuse or fail to comply with a notice given to the person under subsection 6A(3), paragraph 77C(1)(a) or section 139V.
Penalty: Imprisonment for 12 months.
"267C. A person must not:
(a) in a statement given to the trustee under section 139U; or
(b) pursuant to a requirement contained in a notice given to the person under subsection 6A(3), paragraph 77C(1)(a) or section 139V;
provide information that is, or produce books that are, false or misleading in a material particular.
Penalty: Imprisonment for 12 months.
"267D. A person who is required by a notice under subsection 77C(1) to attend before the Official Receiver or an authorised officer and to whom an advance is offered in accordance with subsection 77E(1) must not, without reasonable excuse:
(a) fail to attend as required by the notice; or
(b) fail to appear and report from day to day, unless excused or released from further attendance by the Official Receiver or authorised officer, as the case may be.
Penalty: Imprisonment for 6 months.
"267E.(1) Subject to subsection (2), if a person who is required by a notice under subsection 77C(1) to attend before the Official Receiver or an authorised officer:
(a) fails to attend as required by the notice; or
(b) fails to appear and report from day to day, as required by the Official Receiver or authorised officer;
the Registrar, on proof by affidavit of the service of the notice, may issue a warrant for the arrest of the person.
"(2) The Registrar must not issue a warrant under subsection (1) for the arrest of a person unless the Registrar is satisfied, on proof by affidavit, that the person was offered an advance in accordance with subsection 77E(1).
"(3) A warrant issued under subsection (1) authorises the arrest of the person and his or her being brought before the Registrar, and his or her detention in custody until he or she is released by order of the Registrar.
"(4) A warrant issued under subsection (1) may be executed by a constable, and a constable executing the warrant has the power to break in and enter any premises for the purpose of executing the warrant.
"(5) The Registrar may order a person arrested under this section to pay the costs of the arrest.
"(6) The arrest of a person under this section does not relieve the person from any liability incurred because of his or her failure to attend before the Official Receiver or authorised officer.
"267F. A person attending before the Official Receiver or an authorised officer as required by a notice under subsection 77C(1) must not, without reasonable excuse:
(b) refuse or fail to answer a question that the person is required to answer by the Official Receiver or authorised officer, as the case may be; or(a) refuse or fail to be sworn or to make an affirmation; or
(c) refuse or fail to produce any books that the person is required by the notice to produce.
Penalty: Imprisonment for 6 months.
"267G. Where a person who is giving evidence before the Official Receiver or an authorised officer as required by a notice under subsection 77C(1) is guilty of prevarication or evasion, the person is guilty of an offence punishable upon conviction by imprisonment for a period not exceeding 6 months.".
(a) by omitting "$500" (wherever occurring) and substituting "$3,000";
"(2) This section has effect subject to section 304A.".
(a) by adding at the end of paragraph (a) "or";
"277A.(1) Subject to this section, a bankrupt must:
(a) keep books that record and explain any income derived by the bankrupt, record the particulars of any employment of the bankrupt, and record and explain any other dealings, transactions or other financial or business affairs of the bankrupt, during the period of the bankruptcy; and
(b) retain the books until discharged from the bankruptcy.
"(2) The bankrupt must:
(a) keep the books in writing in the English language or so as to enable the books to be readily accessible and convertible into writing in the English language; and
(b) keep the books so as to enable any liability of the bankrupt arising under this Act by virtue of any acts, transactions or other matters occurring during the period of the bankruptcy to be readily ascertainable.
"(3) A person who has possession of any books referred to in subsection (1) must:
(a) produce the books to the trustee or to the Official Receiver when requested to do so; and
(b) retain the books until the bankrupt is discharged.
"(4) A person is not required to retain books if the trustee or the Official Receiver, by written notice given to the person, has told the person that the retention of those books is not necessary.
Penalty: Imprisonment for 6 months.".
"304A.(1) In this section:
(b) the amount of $20 referred to in subsection 77E(2); or(c) the amount of $20 referred to in subsection 77E(3); or(d) the amount of $10 referred to in paragraph 77E(4)(a); or(e) the amount of $10 referred to in paragraph 77E(4)(b); or(f) an amount prescribed by the rules for the purposes of paragraph 77E(3)(a) or (4)(a); or(g) the amount of $3,000 referred to in paragraph 149D(1)(c); or(h) the amount of $3,000 referred to in subsection 149ZC(1); or(i) the amount of $1,000 referred to in subsection 161 B(1); or(a) the amount of $20 referred to in paragraph 77D(1)(a); or
(j) each amount of $3,000 referred to in section 269;
or, if any such amount has previously been altered under this section, the amount as so altered or last altered.
"(2) Section 77D or 77E applies in relation to the attendance of a person on a day during a quarter that begins after the commencement of the section concerned as if the indexable amount or each indexable amount in that section were replaced by the amount worked out using the formula in subsection (6).
"(3) Section 149D or 149ZC applies in relation to an act, omission or transaction by a bankrupt that constituted misleading conduct that took place or was entered into on a day during a quarter that begins after the date of commencement of the section concerned as if the indexable amount in that section were replaced by the amount worked out using the formula in subsection (6).
"(4) Section 161B applies in relation to a trustee who was appointed on a day during a quarter that begins after the date of commencement of that section as if the indexable amount in that section were replaced by the amount worked out using the formula in subsection (6).
"(5) Section 269 applies in relation to an act, omission or transaction referred to in that section that took place or was entered into on a day during a quarter that begins after the date of commencement of section 41 of the
"(6) The formula for the purposes of subsections (2), (3), (4) and (5) is:
where:
"(7) If, apart from this subsection, an amount worked out under subsection (6) would be an amount of dollars and cents, the amount is to be rounded to the nearest dollar (rounding 50 cents upwards).
"(8) The indexation factor for a quarter is the number (worked out to 3 decimal places) worked out by dividing the index number for the previous quarter by the index number for the quarter that immediately preceded the previous quarter.
"(9) If the factor worked out under subsection (8) in relation to a quarter would, if it were worked out to 4 decimal places, end with a number greater than 4, the factor worked out under that subsection in relation to that quarter is taken to be the factor worked out to 3 decimal places and increased by 0.001.
"(10) Subject to subsection (11), if at any time, whether before or after the commencement of this section, the Australian Statistician has published or publishes an index number in respect of a quarter in substitution for an index number previously published by the Australian Statistician in respect of that quarter, the publication of the later index number is to be disregarded for the purposes of this section.
"(11) If at any time, whether before or after the commencement of this section, the Australian Statistician has changed or changes the reference base for the Consumer Price Index, then, for the purposes of the application of this section after the change took place or takes place, regard is to be had only to the index numbers published in terms of the new reference base.".
"(aa) that the trustee should appear and participate in proceedings before the Administrative Appeals Tribunal reviewing a decision or determination by the trustee, or reviewing a decision of the Inspector-General on a review of such a decision or determination; or".
bankruptcies applies according to its tenor in relation to persons who were bankrupt at the commencement of that amendment as it applies in relation to persons who become bankrupt after that commencement.
(a) section 6A of the Principal Act as it continues to apply by virtue of subsection (2) of this section; and
(b) section 6B of the Principal Act as amended by this Act;
but may be amended by rules made under the Principal Act as amended by this Act.
(a) applies in respect of all meetings held after the commencement of that subsection; and
(b) in respect of a meeting to which section 64ZA of the Principal Act as amended by this Act does not apply because of subsection (5) of this section, so applies as if section 64ZA applied to that meeting.
(b) the bankruptcy had not been annulled by the Court before that date; and(a) within the period of 3 months immediately before the date of commencement of section 15 of this Act, the creditors of a bankrupt had accepted a composition or scheme of arrangement; and
(c) the Court had not refused to approve the composition or scheme of arrangement before that date;
subsection 74(5) of the Principal Act as amended by this Act has effect as if the special resolution accepting the composition or scheme of arrangement had been passed on that date.
(b) in the case of an order in relation to a debtor who had executed a deed of assignment—under section 231A of the Principal Act as amended by this Act; or(c) in the case of an order in relation to a debtor who had executed a deed of arrangement—under section 237AA of the Principal Act as amended by this Act; or(a) in the case of an order in relation to a bankrupt—under subsection 154(6) of the Principal Act as amended by this Act; or
(d) in the case of an order in relation to a debtor who had entered into a composition—under section 243AA of the Principal Act as amended by this Act.
1. No. 33, 1966, as amended. For previous amendments, see No. 121, 1968; No. 40, 1969; No. 122, 1970; No. 216, 1973; No. 56, 1975; Nos. 37, 91 and 161, 1976; No. 111, 1977; No. 155, 1979; Nos. 12 and 70, 1980; Nos. 74 and 176, 1981; No. 18, 1983; Nos. 10 and 63, 1984; Nos. 21 and 193, 1985; Nos. 154 and 168, 1986; Nos. 73 and 119, 1987; Nos. 8, 38 and 99, 1988; No. 129, 1989; and No. 115, 1990.
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Senate on 14 November 1991
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