Bankruptcy Legislation Amendment Act 1996 (Cth)
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2 | Commencement.............................................................................................................................................................. | 1359 |
3 | Schedule(s).............................................................................................................................................................. | 1360 |
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The Parliament of Australia enacts:
This Act may be cited as the
(1) Subject to subsection (2), this Act commences on the day on which it receives the Royal Assent.
(2) Subject to subsection (3), Schedule 1 commences on a day to be fixed by Proclamation.
(3) If Schedule 1 does not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, it commences on the first day after the end of that period.
(4) Schedule 2 commences immediately after the commencement of Schedule 1.
Subject to section 2, each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Repeal the paragraph.
Insert:
Insert:
creditor ,in relation to a liability under a maintenance order, includes the Child Support Registrar referredto in theChild Support (Registration and Collection) Act 1988.
Insert:
debt agreement means an agreement under section 185H resulting from the acceptance of a debt agreement proposal.
Insert:
debt agreement proposal means a written proposal referred to in subsection 185C(1).
Repeal the definition.
Repeal the definition.
Repeal the definition, substitute:
(a) an order relating to the maintenance of a person, including an order relating to the payment of arrears of maintenance, that is made or registered under a law of the Commonwealth or of a State or Territory of the Commonwealth; or
(b) an assessment made under the
Child Support (Assessment) Act 1989.
Insert:
National Personal Insolvency Index means the Index of that name established under the regulations.
Repeal the definition.
Repeal the definition, substitute:
Registrar means the Registrar, a Deputy Registrar, a District Registrar or a Deputy District Registrar of the Federal Court.
After “personally”, insert by telephone".
After “personally”, insert by telephone”.
Repeal the definition.
Omit “56”, substitute "56E”.
Insert:
the Official Receiver : (a) in relation to a matter referred to in section 5AA, means the Official Receiver for the District in which the matter originated, as determined under section 5AA; and
(b) in any other case, means any Official Receiver.
Repeal the definition.
Repeal the definition.
Omit “the rules and”.
Repeal the subsections, substitute:
(2) A person is
solvent if, and only if, the person is able to pay all the person’s debts, as and when they become due and payable.
(3) A person who is not solvent is
Insert:
(1) This section identifies the place of origin of each of the matters set out in column 2 of the table. The place of origin of each matter is worked out using column 3 of the table.
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1 | Bankruptcy that resulted from acceptance of a debtor’s petition |
|
2 | Any other bankruptcy |
|
3 | Control of a debtor’s property under section 50 |
|
4 | Scheme of arrangement or composition under Division 6 of Part IV | The District in which there originated the bankruptcy that was annulled under section 74 on acceptance of the proposal for the scheme or composition |
5 | Matter relating to a debt agreement proposal | The District in which the debt agreement proposal was accepted for processing |
6 | Part X administration | The District in which the Official Receiver was given a copy of the authority under section 188 that relates to the administration |
7 | Administration under Part XI | The District in which the Court made the order for the administration |
(2) For the purposes of item 6 of the table, an authority under section 188 relates to a deed of assignment, a deed of arrangement or a composition if a special resolution relating to the deed or composition was passed at a meeting of creditors called under the authority.
(3) In this section:
(a) a debt agreement; and
(b) an activity required or permitted by a debt agreement.
(a) an activity that a controlling trustee may or must carry out after consenting to exercise powers given by an authority under section 188 (including control of a debtor’s property under Division 2 of Part X); or
(b) a deed of assignment under Part X; or
(c) a deed of arrangement under Part X; or
(d) a composition under Part X.
Omit and only if,”.
Add “or”.
Add:
(2) For the purposes of this Act, a company is also associated with a person if the company:
(a) holds property jointly with the person; or
(b) is dealing with the person’s property as an agent for the person; or
(c) is a trustee of a trust under which the person is capable of benefiting; or
(d) acquires or disposes of property as a result of dealing with the person.
(3) The circumstances set out in subsections (1) and (2) are the only circumstances in which a company is associated with a person for the purposes of this Act.
Omit “, and only if,’’.
Repeal the paragraph, substitute:
(a) holds property jointly with the associate; or
Add “or”.
Insert:
(ba) can benefit under a trust of which the associate is a trustee; or
Add “or”.
Insert:
(da) is a principal for whom the associate acts as an agent; or
Add “or”.
Add:
(2) A natural person (the
associate ) is also associated with another person if the associate has acquired or disposed of property as a result of dealing with the other person.(3) The circumstances set out in subsections (1) and (2) are the only circumstances in which a natural person is associated with another person for the purposes of this Act.
Omit “and paragraphs 55(2)(b), 56(2)(a) and (b), 56(13)(a) and (b) and 57(2)(a) and (b)”, substitute paragraphs 55(2)(b), 56B(3)(a) and (b), 56F(1)(a) and (b), 57(2)(a) and (b) and sections 185D and 188A".
Note: The heading to section 6A is replaced by the heading “
Statement of affairs for purposes other than Part XI ”.
Repeal the paragraph.
Omit “who was a bankrupt when the statement was filed, or has since become a bankrupt,”.
Omit “the bankrupt" (wherever occurring), substitute "the person”.
Repeal the subsection.
Omit “subparagraph 188(2) (c) (i),”.
Note: The heading to section 6B is altered by omitting “
Repeal the paragraph, substitute:
(a) is in a form that has been:
(i) approved by the Inspector-General for the purposes of the provision under which the statement is made; and
(ii) published in the
Gazette ; and
Add:
(3) If the trustee administering the estate of a deceased person under Part XI has reasonable grounds to suspect that:
(a) any particulars set out in a statement of affairs that was filed by a person under subsection 246(1) or 247(1) are false or misleading in a material respect; or
(b) any material particulars have been omitted from that statement;
the trustee may give the person a written notice requiring the person to provide specified information or books within a specified period of at least 14 days to enable the trustee to decide whether the particulars set out in the statement are correct.
Omit “married women,”.
Omit “the prescribed modifications (if any)”, substitute “any modifications prescribed by the regulations”.
Repeal the subsection, substitute:
(2) The Inspector-General has:
(a) the general administration of this Act; and
(b) the other powers and other functions conferred or imposed on him or her by this Act.
(3) The Inspector-General may exercise any of the powers (including the power under section 18), and perform any of the functions, of an Official Receiver, in the same way as the Official Receiver.
(4) The Inspector-General may by signed instrument delegate to an officer of the Department all or any of the powers and functions of the Inspector-General under this Act.
Add “and”.
Add “or”.
Add:
or (vi) property in relation to which the trustee is the controlling trustee under an authority given under section 188; and
Add “or”.
Insert:
(iia) a debtor under a debt agreement proposal or debt agreement under Part IX; or
(iib) a debtor whose property is subject to control under Division 2 of Part X; or
Omit “Registrars,”.
Add:
; and (d) must give the Minister, after the end of each financial year, a report on the operation of this Act during that financial year for presentation by the Minister to the Parliament.
Omit “shall file with the Registrar a report setting out the results of the inquiry or investigation and may file such supplementary reports as the Inspector-General thinks fit”, substitute “may give a copy of the report of the results of the inquiry or investigation to any person the Inspector-General thinks fit”.
Repeal the paragraphs, substitute:
(a) require the production of any books kept by an Official Receiver or by a trustee; and
(b) require a trustee to answer an inquiry made to him or her in relation to any of the following matters in which the trustee is, or has been, engaged:
(i) a bankruptcy;
(ii) the control of property under an authority given under section 188;
(iii) an administration under Part XI;
(iv) a deed of assignment, deed of arrangement, scheme of arrangement or composition; and
Omit “and”.
Repeal the paragraph.
Repeal the subsection.
Omit or a person authorised in writing by the Inspector-General to exercise the powers of the Inspector-General under this subsection".
Repeal the sections, substitute:
The Inspector-General, by notice in the
Gazette , may declare any part, or any parts, of Australia to be a Bankruptcy District for the purposes of this Act.
Repeal the subsection.
Repeal the subsections, substitute:
(4) An Official Receiver may by signed instrument delegate to an officer of the Department all or any of the powers and functions of the Official Receiver under this Act.
(5) The Court may review an act done by an Official Receiver.
Note: Section 303 explains who may apply to the Court for review of an Official Receiver’s action.
Omit each Registrar and Deputy Registrar".
Note: The heading to section 16 is replaced by the heading "
Appointment of Inspector-General and Official Receivers ".
Repeal the sections.
Repeal the subsection, substitute:
(1) The corporation sole known as the Official Trustee in Bankruptcy, that existed immediately before this subsection commenced, continues in existence as a body corporate with the same name.
Repeal the subsection.
Repeal the subsection, substitute:
(8) The Official Receiver for a District may exercise the powers, and perform the functions, of the Official Trustee that relate to a matter that is determined under section 5AA to have originated in that District.
(8AA) In exercising powers or performing functions under subsection (8), an Official Receiver must act in the name of, and on behalf of, the Official Trustee.
Omit “, or under the authority of,".
Repeal the subsections, substitute:
(8B) The Inspector-General may exercise any of the powers, and perform any of the functions, of the Official Trustee that are not mentioned in subsection (8).
(8C) In exercising powers or performing functions under subsection (8B), the Inspector-General must act in the name of, and on behalf of, the Official Trustee.
(8D) Anything done by the Inspector-General in the name of, or on behalf of, the Official Trustee is taken to have been done by the Official Trustee.
Omit “or of the repealed Act in its continued application by virtue of this Act”.
Omit “, or with the authority of, any Official Receiver”, substitute “a person who may exercise the power or perform the function under subsection (8) or (8B)”.
Omit “by, or with the authority of, any Official Receiver, in the exercise of such a power, or performance of such a function,”.
Add “or”.
Omit “or” (last occurring).
Repeal the paragraph.
Add:
; or (c) for any act done, or omitted to be done, by the Official Trustee:
(i) under Part IX; or
(ii) under the authority contained in a debt agreement to deal with the property of the person who is a party (as debtor) to the agreement.
Repeal the subsections, substitute:
(1) The duties of the trustee of the estate of a bankrupt include the following:
(a) notifying the bankrupt’s creditors of the bankruptcy;
(b) determining whether the estate includes property that can be realised to pay a dividend to creditors;
(c) reporting to creditors within 3 months of the date of the bankruptcy on the likelihood of creditors receiving a dividend before the end of the bankruptcy;
(d) giving information about the administration of the estate to a creditor who reasonably requests it;
(e) determining whether the bankrupt has made a transfer of property that is void against the trustee;
(f) taking appropriate steps to recover property for the benefit of the estate;
(g) taking whatever action is practicable to try to ensure that the bankrupt discharges all of the bankrupt’s duties under this Act;
(h) considering whether the bankrupt has committed an offence against this Act;
(i) referring to relevant law enforcement authorities any evidence of an offence by the bankrupt against this Act;
(j) administering the estate as efficiently as possible by avoiding unnecessary expense;
(k) exercising powers and performing functions in a commercially sound way.
Repeal the section, substitute:
(1) A registered trustee who is the trustee of the estate of a bankrupt may investigate:
(a) the bankrupt’s conduct and examinable affairs; and
(b) books, accounts and records kept by the bankrupt;
so far as they relate to the bankruptcy.
(2) An Official Receiver may investigate:
(a) any bankrupt’s conduct and examinable affairs; and
(b) books, accounts and records kept by the bankrupt;
so far as they relate to the bankruptcy.
Omit “or under the
Bankruptcy Act 1924-1965 in its continued application by virtue of this Act" (wherever occurring).
Omit “or the
Bankruptcy Act 1924-1965 in its continued application by virtue of this Act".
Omit ", a Deputy Registrar" (wherever occurring).
Note: The heading to section 19A is altered by omitting "
Registrars, Deputy Registrars, ”.
Repeal the sections.
Omit “or of the
Bankruptcy Act 1924-1965 in its continued application by virtue of this Act".
Repeal the subsection.
Add “or”.
Omit “or” (last occurring).
Repeal the subparagraph.
Omit “Registrar”, substitute “Inspector-General”.
After “prescribed", insert “by the regulations".
After “prescribed”, insert “by the regulations”.
Repeal the Division.
Repeal the subsection, substitute:
(1) The Federal Court has jurisdiction in bankruptcy, and that jurisdiction is exclusive of the jurisdiction of all courts other than the jurisdiction of the High Court under section 75 of the Constitution.
Repeal the subsections.
Repeal the section.
After “prescribed”, insert “by the regulations”.
Note: The heading to section 29 is replaced by the heading “
Courts to help each other ".
Omit “X or Part”, substitute “IX, X or”.
Repeal the subsection.
Repeal the paragraph.
Repeal the section.
Repeal the subsection.
Repeal the section.
Omit “in Bankruptcy, a Deputy Registrar in Bankruptcy or a Registrar of the Federal Court”.
Omit “the hand of the Registrar and".
Repeal the section.
Omit “Registrar", substitute "Official Receiver”.
Omit “fixed by the Registrar by whom the notice was issued”, substitute “specified in the notice”.
Insert:
(ha) if the debtor gives the Official Trustee a debt agreement proposal;
(hb) if a debt agreement proposal given by the debtor to the Official Trustee is accepted by the debtor’s creditors;
(he) if the debtor breaches a debt agreement;
(hd) if a debt agreement to which the debtor was a party (as a debtor) is terminated under section l85P or 185Q;
Omit “or” (last occurring).
Omit “and, before the annulment, the debtor’s bankruptcy has been annulled".
Repeal the paragraph.
Omit “, being maintenance that was:”.
Repeal the subparagraphs.
Omit “by post to the creditors in accordance with section 194”, substitute “to the creditors”.
Repeal the subsections, substitute:
(1) An Official Receiver may issue a bankruptcy notice on the application of a creditor who has obtained against a debtor a final judgment or final order that:
(a) is described in paragraph 40(1)(g); and
(b) is for an amount of at least $2,000.
(2) The notice must be in accordance with the form prescribed by the regulations.
Repeal the subsection.
Omit “by the Court or the Registrar”.
Repeal the paragraph, substitute:
(b) an application has been made to the Court to set aside the bankruptcy notice;
Repeal the subsection.
Omit “or the Registrar".
Omit “or the Registrar, as the case may be,” (wherever occurring).
Omit “filed with the Registrar an affidavit to the effect that he”, substitute “applied to the Court for an order setting aside the bankruptcy notice on the ground that the debtor”.
Repeal the subsections.
Omit “$1,500” (wherever occurring), substitute “$2,000”.
Omit “the prescribed time”, substitute “3 months”.
Repeal the subsection, substitute:
(1) A creditor’s petition must be verified by an affidavit of a person who knows the relevant facts.
(1A) If the rules of court prescribe a form for the purposes of this subsection, the petition must be in the form prescribed.
Repeal the subsection, substitute:
(1) At any time after a bankruptcy notice is issued in relation to a debtor, but before the debtor becomes a bankrupt, the Court may:
(a) direct the Official Trustee or a specified registered trustee to take control of the debtor’s property; and
(b) make any other orders in relation to the property.
(1A) The Court may give a direction or make an order only if:
(a) a creditor has applied for the Court to make a direction; and
(b) the Court is satisfied that it is in the interests of the creditors to do so; and
(c) the debtor has not complied with the bankruptcy notice.
(1B) If the Court directs a trustee to take control of the debtor’s property, the Court must specify when the control is to end.
Omit “the prescribed modifications (if any)”, substitute “any modifications prescribed by the regulations”.
Insert:
(1A) If the Court makes a sequestration order, the creditor who obtained the order must give a copy of it to the Official Receiver for the District in which the order was made.
Omit “Registrar”, substitute “Official Receiver”.
Add:
Penalty: 5 penalty units.
Omit “Registrar”, substitute “Official Receiver”.
Add:
Penalty: 5 penalty units.
Repeal the subsections.
Omit “prescribed fee”, substitute “fee prescribed by the regulations”.
Omit “Registrar a declaration, in accordance with the prescribed”, substitute “Official Receiver a declaration, in the approved”.
Omit “Registrar” (wherever occurring), substitute “Official Receiver”.
Omit “prescribed”, substitute “approved”.
Omit “and seal”.
Repeal the subsection, substitute:
(1) Before accepting a declaration presented by a debtor under section 54A, the Official Receiver must give the debtor the information prescribed by the regulations.
Note: The heading Jo section 54D is replaced by the heading "
Omit “Registrar’s”, substitute “Official Receiver’s”.
Omit “sealed copy of the declaration”, substitute “copy of the declaration signed by the Official Receiver who accepted it”.
Omit “sealed copy of the declaration”, substitute “copy of the declaration signed by the Official Receiver who accepted it”.
Omit “sealed copy of the declaration”, substitute “copy of the declaration signed by the Official Receiver who accepted it”.
Omit “sealed copy of the declaration”, substitute “copy of the declaration signed by the Official Receiver who accepted it”.
Omit “sealed”, substitute “signed”.
Repeal the subsection.
Omit “Registrar”, substitute “Official Receiver”.
Omit “prescribed”, substitute “approved".
Repeal the subsections, substitute:
(3) The Official Receiver may reject a debtor’s petition if:
(a) the petition does not comply substantially with the approved form; or
(b) the petition is not accompanied by a statement of affairs; or
(c) the Official Receiver thinks that the statement of affairs accompanying the petition is inadequate.
(3A) Before accepting a debtor’s petition the Official Receiver must give the debtor the information prescribed by the regulations.
(3B) The Official Receiver must refer a debtor’s petition to the Court for a direction to accept or reject it if there is a creditor’s petition pending against a group of debtors (whether they are joint debtors or members of a partnership) that includes the debtor against whom the debtor’s petition is presented.
Example 1: When Anna presents a debtor’s petition against herself, there is a creditor’s petition pending against Anna and Tim as joint debtors. The Official Receiver must refer the debtor’s petition to the Court.
Example 2: When Peter presents a debtor’s petition against himself, there are 2 creditor’s petitions pending against him alone. The Official Receiver is not required to refer the debtor’s petition to the Court, because Peter does not form a group by himself.
(3C) If the Court directs the Official Receiver to accept the debtor’s petition, the Court must specify the time of the commencement of the bankruptcy that results from acceptance of the debtor’s petition.
(4) The Official Receiver must accept a debtor’s petition, unless the Official Receiver rejects it under subsection (3) or is directed by the Court to reject it.
Omit “Registrar” (wherever occurring), substitute “Official Receiver”.
Repeal the subsection, substitute:
(5) If a registered trustee is the trustee of the estate of a debtor who becomes a bankrupt under this section, the Official Receiver must:
(a) notify the trustee of the bankruptcy; and
(b) give the trustee a copy of the; statement of affairs that accompanied the debtor’s petition.
(5A) A debtor who is a party (as debtor) to a debt agreement must not present a debtor’s petition unless the Court gives the debtor permission to do so.
Omit “(6)”, substitute “(5A), (6)”.
Omit “prescribed fee”, substitute “fee prescribed by the regulations”.
Repeal the section, substitute:
(1) A debtor’s petition against a partnership may be presented by:
(a) all the partners; or
(b) a majority of the partners who are resident in Australia.
(2) A member of a partnership who is a party (as debtor) to a debt agreement must not join in presenting a debtor’s petition against the partnership unless the Court gives the member permission to do so.
(3) A member of a partnership who has executed a deed of assignment under Part X must not join in presenting a petition against the partnership unless the deed has been declared void, the final dividend has been paid under the deed or the Court gives permission for the member to join in presenting a petition against the partnership.
(4) A member of a partnership who has executed a deed of arrangement under Part X must not join in presenting a petition against the partnership unless the deed has been declared void or
has been terminated or the Court gives permission for the member to join in presenting a petition against the partnership.
(5) A member of a partnership whose creditors have accepted a composition under Part X must not join in presenting a petition against the partnership unless the composition has been declared void, has been set aside or terminated, the final payment has been made under the composition or the Court gives permission for the member to join in presenting a petition against the partnership.
(6) A member of a partnership in relation to whom a stay under a proclaimed law applies must not join in presenting a petition against the partnership unless the Court gives the member permission to do so.
(7) If a member of a partnership contravenes subsection (2), (3), (4), (5) or (6) by joining in the presentation of a petition, the petition does not have any effect.
(1) Any debtor’s petition against a partnership must be presented to the Official Receiver.
(2) A petition must be in accordance with the approved form.
(3) A petition must be accompanied by:
(a) a statement of affairs of each member of the partnership by whom the petition is presented; and
(b) a statement of the partnership affairs; and
(c) a copy of each of those statements.
(4) The Official Receiver may reject a petition if:
(a) the petition does not comply substantially with the approved form; or
(b) the petition is not accompanied by the statements of affairs of each petitioning partner and of the partnership; or
(c) the Official Receiver thinks that any of the statements of affairs accompanying the petition is inadequate.
(5) Before accepting a debtor’s petition against a partnership, the Official Receiver must give the information prescribed by the regulations to each member of the partnership who joined in presenting the petition.
(1) The Official Receiver must refer a debtor’s petition against a partnership to the Court for a direction to accept or reject the petition if either or both of the following conditions are met:
(a) the petition was presented against the partnership by some, but not all, members of the partnership;
(b) there is at least one creditor’s petition pending against at least one of the members of the partnership (not counting a creditor’s petition against all the members of the partnership and no-one else).
Example 1: Edith, Lindsay and Bertha are the members of a partnership. When Edith and Lindsay present a debtor’s petition against the partnership there is a creditor’s petition pending against Bertha. The Official Receiver must refer the debtor's petition to the Court.
Example 2: Keith, Leigh and Judith are the members of a partnership. When they all present a debtor's petition against the partnership, there are 2 creditor's petitions pending: one against Keith, Leigh and Judith, the other against Judith alone. The Official Receiver must refer the debtor’s petition to the Court.
Example 3: Meredith, Ramsay and Wilson are the members of a partnership. When they all present a debtor's petition against the partnership, there are 2 creditor’s petitions pending. Both of the creditor’s petitions are against Meredith, Ramsay and Wilson (and no-one else). There is no requirement for the Official Receiver to refer the debtor’s petition to the Court.
(2) If the Official Receiver refers a petition to the Court because the petition was presented by some, but not all, of the members of the partnership, the Official Receiver must give notice in accordance with the regulations to the members who did not present the petition.
(3) After a petition has been referred to the Court, the Court must direct the Official Receiver:
(a) to accept the petition in the form in which it was referred to the Court; or
(b) to accept the petition after amending it as directed by the Court; or
(c) to reject the petition.
(4) If:
(a) a debtor’s petition is presented against a partnership that includes a person to whom a stay applies under a proclaimed law; and
(b) the person is not one of the petitioning partners;
the Court must not give a direction in relation to the petition until the person administering the proclaimed law has had an opportunity to be heard.
(5) If the Court directs the Official Receiver to accept (either with or without amendments) a petition referred to the Court, the Court must specify the time of the commencement of the bankruptcy of each of the persons who becomes a bankrupt as a result of the acceptance of the petition.
(1) The Official Receiver must accept a debtor’s petition against a partnership unless the Official Receiver rejects it under section 56B or is directed by the Court to reject the petition.
(2) When the Official Receiver accepts the petition, the Official Receiver must note on it the fact that it has been accepted.
(1) When the Official Receiver notes the fact of acceptance on a petition that has not been amended under a direction of the Court, each member of the partnership becomes a bankrupt by force of this section.
(2) When the Official Receiver notes the fact of acceptance on a petition that has been amended under a direction of the Court, each member of the partnership to whom the petition applies becomes a bankrupt by force of this section.
(3) A person who becomes a bankrupt by force of this section continues to be a bankrupt until:
(a) he or she is discharged by force of subsection 149(1) or in accordance with Division 3 of Part VII; or
(b) his or her bankruptcy is annulled by force of subsection 74(5) or 153A(1)or under section 153B.
(4) If a registered trustee is the trustee of the estate of a person who becomes a bankrupt under this section, the Official Receiver must:
(a) notify the trustee of the bankruptcy; and
(b) give the trustee a copy of each statement of affairs that accompanied the debtor’s petition.
(1) A member of a partnership who did not join in presenting a debtor’s petition against the partnership but became a bankrupt as a result of the acceptance of the petition must give the Official Receiver:
(a) a statement of the member’s affairs; and
(b) a statement of the affairs of the partnership;
within 14 days after the day that the member was notified of his or her bankruptcy, unless the member has a reasonable excuse.
Penalty: 5 penalty units.
(2) A member of a partnership complies with paragraph (1)(b) if the member and at least one other member of the partnership who did not join in presenting the petition against the partnership jointly give the Official Receiver a statement of the affairs of the partnership.
(3) A member of a partnership who must give statements of affairs to the Official Receiver under subsection (1) must give copies of the statements to the trustee in the member’s bankruptcy if the trustee is a registered trustee.
(1) A person may inspect, copy, or take extracts from, any statement of affairs that was given to the Official Receiver in connection with a debtor’s petition against a partnership.
(2) Before inspecting, copying or taking extracts from a statement, the person must pay the fee prescribed by the regulations, unless:
(a) the person states in writing that he or she is a creditor of the partnership or of a member of the partnership who became a bankrupt as a result of the petition; or
(b) the person is an agent of a person described in paragraph (a).
Omit “Registrar”, substitute “Official Receiver”.
Omit “prescribed", substitute “approved”.
Repeal the subsections, substitute:
(3) The Official Receiver may reject a debtor’s petition if:
(a) the petition does not comply substantially with the approved form; or
(b) the petition is not accompanied by all the statements of affairs required by subsection (2); or
(c) the Official Receiver thinks that any of the statements of affairs accompanying the petition is inadequate.
(3A) Before accepting a debtor’s petition against joint debtors, the Official Receiver must give each petitioning debtor the information prescribed by the regulations.
(3B) The Official Receiver must refer a debtor’s petition to the Court for a direction to accept or reject it if there is at least one creditor’s petition that:
(a) is pending against at least one of the debtors (whether or not the creditor’s petition also relates to other persons); and
(b) does not relate only to all the joint debtors who presented the debtor’s petition.
Example 1: Peta and Abdul are joint debtors. When they present a debtor’s petition against themselves, there is a creditor’s petition pending against Abdul. The Official Receiver must refer the debtor’s petition to the Court, because the creditor’s petition does not relate to both Peta and Abdul.
Example 2: Joan and Craig are joint debtors. When they present a debtor’s petition against themselves, there is a creditor's petition pending against Joan, Craig and Paul. The Official Receiver must refer the debtor’s petition to the Court.
Example 3: Kim, Robin and Jane are joint debtors. When they present a debtor’s petition against themselves, there is a creditor's petition pending against Kim, Robin and Jane, and no-one else. The Official Receiver is not required to refer the debtor’s petition to the Court.
(3C) If the Court directs the Official Receiver to accept the debtor’s petition, the Court must specify the time of the commencement of each bankruptcy that results from acceptance of the debtor’s petition.
(4) The Official Receiver must accept a debtor’s petition, unless the Official Receiver rejects it under subsection (3) or is directed by the Court to reject it.
Omit “Registrar" (wherever occurring), substitute “Official Receiver”.
Repeal the subsection, substitute:
(6) If a registered trustee is the trustee of the estate of a person who becomes a bankrupt under this section, the Official Receiver must:
(a) notify the trustee of the bankruptcy; and
(b) give the trustee a copy of each statement of affairs that accompanied the debtor’s petition.
(6A) A debtor who is a party (as debtor) to a debt agreement must not present a debtor’s petition unless the Court gives the debtor permission to do so.
Omit “(7)”, substitute “(6A), (7)’’.
Omit “prescribed fee”, substitute “fee prescribed by the regulations”.
Omit “Registrar”, substitute “Official Receiver”.
Omit “56”, substitute “56E”.
Insert:
(aa) if the creditor has been assigned a debt that the bankrupt owes to the creditor—the value of the consideration that the creditor gave for the assignment of the debt; and
Omit “his or her remuneration to be fixed by the Registrar”, substitute “to be remunerated as prescribed by the regulations”.
Omit “his or her remuneration to be fixed by the Registrar under subsection 162(4)”, substitute “to be remunerated as prescribed by the regulations”.
Omit “file the certificate with the Registrar”, substitute “keep it and allow the bankrupt, a creditor or an officer of the Department to inspect it at any reasonable time”.
Add:
(8) For the purposes of determining whether a motion proposed at the meeting is resolved, the value of a creditor who:
(a) has been assigned a debt; and
(b) is present at the meeting personally, by telephone, by attorney or by proxy; and
(c) is voting on the motion;
is to be worked out by taking the value of the assigned debt to be equal to the value of the consideration that the creditor gave for the assignment of the debt.
Insert:
(2A) The report must indicate whether the proposal would benefit the bankrupt’s creditors generally.
Omit “to the Registrar a written certificate”, substitute “the Official Receiver a written notice”.
Repeal the subsection.
Omit “the prescribed modifications (if any)”, substitute “any modifications prescribed by the regulations”.
Omit “prescribed modifications”, substitute “modifications prescribed by the regulations”.
Omit “rules”, substitute “regulations”.
Omit “and for that purpose may make copies of, or take extracts from, any such book.”, substitute:
and for that purpose:
(a) may make copies of, or take extracts from, books; and
(b) may remove from premises any books that the Official Receiver or officer reasonably considers may be relevant to the examinable affairs of:
(i) a bankrupt whose affairs are being administered under Part IV; or
(ii) a person who is a party (as debtor) to a debt agreement; or
(iii) a debtor whose affairs are being administered under Part X; or
(iv) a deceased debtor whose affairs are being administered under Part XI or are subject to a debt agreement.
Insert:
(1A) A registered trustee may accompany and assist the Official Receiver or an officer exercising powers under subsection (1) if:
(a) the Official Receiver has given written authority for the registered trustee to do so; and
(b) the exercise of the powers under subsection (1) relates to a bankrupt, debtor or deceased debtor whose affairs the registered trustee is administering.
(1B) The registered trustee may be accompanied by a person nominated by the registered trustee.
(1C) The Official Receiver or officer may remove books from premises only if the Official Receiver or officer reasonably considers that:
(a) it is not reasonably practicable to make copies of, or take extracts from, the books on the premises; or
(b) it would be an unreasonable intrusion on the affairs of the occupier of the premises to remain on the premises to make copies of, or take extracts from, the books.
(1D) If the Official Receiver or officer reasonably believes that any books are, or may be, relevant to the examinable affairs of a bankrupt, a person who is a party (as debtor) to a debt agreement, a debtor whose affairs are being administered under Part X or a deceased debtor whose affairs are being administered under Part
XI, the Official Receiver or officer may keep the books until he or she decides that:
(a) he or she no longer needs the books; or
(b) the books are not relevant to the examinable affairs of any bankrupt, person who is a party (as debtor) to a debt agreement, debtor or deceased debtor.
(1E) While the Official Receiver or officer is keeping books, a person whose books they are, or from whose premises the books were taken, may inspect the books at any reasonable time.
Note: The heading to section 77AA is altered by inserting “
Omit “rules” (wherever occurring), substitute “regulations”.
Repeal the section.
Omit “the Registrar and”.
Repeal the subsection.
Omit “the Registrar”, substitute “a Registrar”.
Repeal the subsection.
Omit “(being a transcript certified, or certified, signed and sealed, in pursuance of section 255)”.
Omit “prescribed fee", substitute “fee prescribed by the regulations”.
Repeal the subsection, substitute:
(1A) Without limiting subsection (1), debts referred to in that subsection include a debt consisting of all or part of a sum that became payable by the bankrupt under a maintenance agreement or maintenance order before the date of the bankruptcy.
Omit "prescribed", substitute ‘‘approved’’.
Omit “notice, in accordance with the prescribed form,", substitute “written notice".
Repeal the subsection, substitute:
(4) A statutory declaration verifying matters in a proof of debt lodged by a creditor may be made by:
(a) the creditor; or
(b) a person whose own knowledge includes the facts set out in the statutory declaration and the proof of debt, and who is authorised by the creditor to make the declaration.
Omit “prescribed”, substitute “approved”.
Omit “notice, in accordance with the prescribed form,”, substitute “written notice”.
Repeal the subsection, substitute:
(2B) A statutory declaration verifying matters in a proof of debt lodged by a person (the
creditor ) under this section may be made by:
(a) the creditor; or
(b) another person whose own knowledge includes the facts set out in the statutory declaration and the proof of debt, and who is authorised by the creditor to make the declaration.
Omit “or, in default of agreement, as the Registrar directs”.
After “rules”, insert “of court”.
Omit “rules”, substitute “regulations”.
Omit not being an audit carried out by the Auditor-General”.
Repeal the paragraph, substitute:
(b) second, if the bankrupt had signed an authority under section 188 before the date of the bankruptcy, in payment of:
(i) the remuneration of the controlling trustee (as defined in section 187); and
(ii) the costs, charges and expenses properly and reasonably incurred by the controlling trustee while the authority was in force (including any debts incurred by the controlling trustee that are provable in the bankruptcy);
After “prescribed”, insert “by the regulations”.
Insert:
(7A) The trustee must keep the minutes of the meeting, and a written record of the terms of a special resolution, referred to in paragraph (1)(j).
(7B) The trustee must allow a creditor or an officer of the Department to inspect the minutes and record at any reasonable time.
Repeal the subsection, substitute:
(8) A payment must not be made under paragraph (1)(j) until 28 days after the day on which the special resolution referred to in that paragraph was passed.
197 Subsection 114(2) (definitions of composition , deed of arrangement , deed of assignment andscheme of arrangement) Repeal the definitions.
Repeal the subsection, substitute:
(2) The bankruptcy of a person who becomes a bankrupt as a result of the acceptance of a debtor’s petition is taken to have relation back to, and to have commenced at, the time indicated in the following table.
1 | Petition accepted by the Official Receiver under a direction of the Court | Time specified by the Court as the commencement of the bankruptcy |
2 | Petition presented when at least one creditor’s petition was pending against the petitioning debtor (whether alone, as a member of a partnership or as a joint debtor), and accepted by the Official Receiver without a direction from the Court | Time of the commission of the earliest act of bankruptcy on which any of the creditor’s petitions was based |
3 | Petition presented when no creditor’s petitions were pending but the debtor had committed at least one act of bankruptcy in the past 6 months, and accepted by the Official Receiver without a direction from the Court | Time of commission of the earliest act of bankruptcy within the 6 months before the petition was presented |
4 | Petition presented when no creditor’s petitions were pending and the debtor had not committed any act of bankruptcy in the past 6 months, and accepted by the Official Receiver without a direction from the Court | Time of presentation of the petition |
Repeal the paragraphs, substitute:
(b) the bankrupt’s household property that is:
(i) of a kind prescribed by the regulations; or
(ii) identified by a resolution passed by the creditors before the trustee realises the property;
(c) the bankrupt’s property that is for use by the bankrupt in earning income by personal exertion and:
(i) does not have a total value greater than the limit prescribed by the regulations; or
(ii) is identified by a resolution passed by the creditors; or
is identified by an order made by the Court on an application by the bankrupt;
Omit “prescribed amount”, substitute “amount prescribed by the regulations”.
Repeal the subsection.
Omit “determination by the creditors, or”, substitute “resolution passed by the creditors, or an order made”.
Omit “rules" (wherever occurring), substitute “regulations”.
Omit “notice of the presentation of the petition, being a notice in accordance with the prescribed form,”, 2 substitute “a written notice of the presentation of the petition”.
Omit “notice of the presentation of the petition, being a notice in accordance with the prescribed form,”, substitute “a written notice of the presentation of the petition”.
Omit “notice in accordance with the prescribed form, being a notice in the form of a statutory declaration, specifying such particulars of the maintenance agreement or maintenance order as are required by the form”, substitute “written notice setting out details of the maintenance agreement or maintenance order”.
Omit “notice in accordance with the prescribed form, being a notice in the form of a statutory declaration, specifying such particulars of the maintenance agreement or maintenance order as are required by the form”, substitute “written notice setting out details of the maintenance agreement or maintenance order”.
Repeal the sections, substitute:
(1) A transfer of property by a person who later becomes a bankrupt (the
transferor ) to another person (thetransferee ) is void against the trustee in the transferor’s bankruptcy if:(a) the transfer took place in the period beginning 5 years before the commencement of the bankruptcy and ending on the date of the bankruptcy; and
(b) the transferee gave no consideration for the transfer or gave consideration of less value than the market value of the property.
(2) Subsection (1) does not apply to:
(a) a payment of tax payable under a law of the Commonwealth or of a State or Territory; or
(b) a transfer to meet all or part of a liability under a maintenance agreement or a maintenance order; or
(c) a transfer of property under a debt agreement; or
(d) a transfer of property if the transfer is of a kind described in the regulations.
(3) Despite subsection (1), a transfer is not void against the trustee if:
(a) the transfer took place more than 2 years before the commencement of the bankruptcy; and
(b) the transferee proves that, at the time of the transfer, the transferor was solvent.
(4) The trustee must pay to the transferee an amount equal to the value of any consideration that the transferee gave for a transfer that is void against the trustee.
(5) For the purposes of subsections (1) and (4), the following have no value as consideration:
(a) the fact that the transferee is related to the transferor;
(b) if the transferee is the spouse or de facto spouse of the transferor—the transferee making a deed in favour of the transferor;
(c) the transferee’s promise to marry, or to become the de facto spouse of, the transferor;
(d) the transferee’s love or affection for the transferor.
(6) This section does not affect the rights of a person who acquired property from the transferee in good faith and by giving consideration that was at least as valuable as the market value of the property.
(7) For the purposes of this section:
(a)
transfer of property includes a payment of money; and(b) a person who does something that results in another person becoming the owner of property that did not previously exist is taken to have transferred the property to the other person; and
(c) the
market value of property transferred is its market value at the time of the transfer.
(1) A transfer of property by a person who later becomes a bankrupt (the
transferor ) to another person (thetransferee ) is void against the trustee in the transferor’s bankruptcy if:(a) the property would probably have become part of the transferor’s estate or would probably have been available to creditors if the property had not been transferred; and
(b) the transferor’s main purpose in making the transfer was:
(i) to prevent the transferred property from becoming divisible among the transferor’s creditors; or
(ii) to hinder or delay the process of making property available for division among the transferor’s creditors.
(2) The transferor’s main purpose in making the transfer is taken to be the purpose described in paragraph (1)(b) if it can reasonably be inferred from all the circumstances that, at the time of the transfer, the transferor was, or was about to become, insolvent.
(3) Subsection (2) does not limit the ways of establishing the transferor’s main purpose in making a transfer.
(4) Despite subsection (1), a transfer of property is not void against the trustee if:
(a) the consideration that the transferee gave for the transfer was at least as valuable as the market value of the property; and
(b) the transferee did not know that the transferor’s main purpose in making the transfer was the purpose described in paragraph (1)(b); and
(c) the transferee could not reasonably have inferred that, at the time of the transfer, the transferor was, or was about to become, insolvent.
(5) The trustee must pay to the transferee an amount equal to the value of any consideration that the transferee gave for a transfer that is void against the trustee.
(6) For the purposes of subsections (4) and (5), the following have no value as consideration:
(a) the fact that the transferee is related to the transferor;
(b) if the transferee is the spouse or de facto spouse of the transferor—the transferee making a deed in favour of the transferor;
(c) the transferee’s promise to marry, or to become the de facto spouse of, the transferor;
(d) the transferee’s love or affection for the transferor.
(7) This section does not apply to a transfer of property under a debt agreement.
(8) This section does not affect the rights of a person who acquired property from the transferee in good faith and for at least the market value of the property.
(9) For the purposes of this section:
(a)
transfer or property includes a payment of money; and(b) a person who does something that results in another person becoming the owner of property that did not previously exist is taken to have transferred the property to the other person; and
(c) the
market value of property transferred is its market value at the time of the transfer.
Repeal the subsection, substitute:
(1) A transfer of property by a person who is insolvent (the
debtor ) in favour of a creditor is void against the trustee in the debtor’s bankruptcy if the transfer:(a) had the effect of giving the creditor a preference, priority or advantage over other creditors; and
(b) was made in the period that relates to the debtor, as indicated in the following table.
1 | Creditor’s petition | Period beginning 6 months before the presentation of the petition and ending immediately before the date of the bankruptcy of the debtor |
2 | Debtor’s petition presented when at least one creditor’s petition was pending against a petitioning debtor or a member of a partnership against which the debtor's petition was presented | Period beginning on the commencement of the debtor’s bankruptcy and ending immediately before the date of the bankruptcy of the debtor |
3 | Debtor’s petition presented in any other circumstances | Period beginning 6 months before the presentation of the petition and ending immediately before the date of the bankruptcy of the debtor |
Omit “conveyance or transfer of property, a charge on property or a payment made, or an obligation incurred,”, substitute “transfer of property”.
Repeal the paragraph, substitute:
(b) whether or not the property transferred is the debtor’s own property or is the property of the debtor and one or more other persons;
Omit “in good faith and for valuable consideration and in the ordinary course of business;”, substitute “in the ordinary course of business who acted in good faith and who gave consideration at least as valuable as the market value of the property; or”.
Omit “making title in good faith and for valuable consideration through or under a creditor of the debtor’’, substitute “who is making title through or under a creditor of the debtor in good faith and who gave consideration at least as valuable as the market value of the property”.
Add:
; or (d) a transfer of property under a debt agreement.
Repeal the paragraph, substitute:
(a) a transfer of property is taken to have been made in favour of a creditor if it is made in favour of a person in trust for the creditor; and
Omit “valuable consideration”, substitute “consideration equal in value to the payment”.
Omit “conveyance, transfer, charge, payment or obligation was executed, n or incurred”, substitute "transfer of property was made".
Omit “conveyance, transfer, charge, payment or obligation”, substitute “transfer”.
Repeal the subsection, substitute:
(5) If a transfer of property is set aside by the trustee in a bankruptcy as a result of this section, the creditor to whom the property was transferred may prove in the bankruptcy as if the transfer had not been made.
Repeal the subsection.
Add:
(8) For the purposes of this section:
(a)
transfer of property includes a payment of money; and(b) a person who does something that results in another person becoming the owner of property that did not previously exist
is taken to have transferred the property to the other person; and
(c) the
market value of property transferred is its market value at the time of the transfer.
Omit “valuable consideration” (wherever occurring), substitute “market value”.
Note: The heading to section 123 is altered by omitting “
After “prescribed” (second occurring), insert “by the regulations”.
Omit “settlement, covenant, contract, payment or”.
(3) If, before the commencement of this Schedule:
(a) a person had applied:
(i) for a report stating the Official Receiver’s opinion about the applicant; or
(ii) to be registered as a trustee; and
(b) the Court had not decided whether to direct that the applicant be registered or to refuse the application;
then:
(c) section 154A, and subsections 155(2), (3), (3A), (3B) and (8),of the
Bankruptcy Act 1966 as in force immediately before the commencement of this Schedule apply in relation to the application; and(d) if the Court directs that the applicant be registered, the Inspector-General must register the applicant under section 155C of the
Bankruptcy Act 1966 without payment of the registration fee indicated in that section.
A debt agreement proposal can be made under Part IX of the
Bankruptcy Act 1966 whether the debts to which the proposal relates were incurred before or after this Schedule commenced.
A person who was a controlling trustee immediately before the commencement of this Schedule is to continue to be remunerated under the arrangements existing immediately before that commencement.
If, before this Schedule commenced, the Minister received an office copy of an order under subsection 254(3) of the
Bankruptcy Act 1966 but had not paid the amount specified in the order to the person in whose favour the order was made, the Official Receiver must pay the person.
Insert ‘‘or she" after "he” (wherever occurring, except where already followed by “or she”).
Insert “or her" after “him" (wherever occurring, except where already followed by "or her”).
Insert “or herself’ after “himself’ (wherever occurring, except where already followed by “or herself’).
Insert “or her" after “his” (wherever occurring, except where already followed by “or her”).
The heading to section 107 is altered by inserting “
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House of Representatives on 26 June 1996 Senate on 8 October 1996
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