Bankruptcy Regulations (Amendment) (Cth)
__________________
I, The
Governor-General of the Commonwealth of Australia, acting with the
advice of the Federal Executive Council and under section 4 of the
Dated 7 April 1997.
WILLIAM DEANE
Governor-General
By His Excellency’s Command,
DARYL WILLIAMS
Attorney-General and Minister for Justice
____________
1.1 Subregulation 18.1 and regulations 29 and 30 are taken to have commenced on 16 December 1996.
1.2 Subregulation 18.2, regulations 26, 32, 33 and
34, subregulations 35.2 and 38.3 and regulation 40 commence on the commencement
of the
[NOTES: 1. Some of the amendments made by
the provisions specified in subregulation. 1.2 are consequent on amendments of
the
2.
The remainder of these Regulations commence on gazettal: see
2.1 The Bankruptcy Regulations are amended as set out in these Regulations.
3.1 Omit from the note following regulation 2.01 “subsection 20J (3)”, substitute “subsections 20J (2) and (4)”.
4.1 After regulation 4.02, insert:
“
(a) a bankruptcy notice issued on or after the commencement date;
(b) a bankruptcy notice issued before the commencement date if, immediately before the commencement date, service of the bankruptcy notice would have been effective under rule 9 of the Bankruptcy Rules.
“
(a) the period of 6 months commencing on the date of issue of the bankruptcy notice; or
(b) any further period that the Official Receiver allows (whether within or outside that period of 6 months).
“
5.1 Regulation 4.05:
After “3”, insert “working”.
5.2 Regulation 4.05:
Add at the end:
“
6.1 Subregulation 4.11 (3):
Omit “Act”, substitute “Act, or a debt agreement proposal under Division 2 of Part IX of the Act,”.
7.1 Omit the regulation, substitute:
“
[NOTE: Except in the case of a person who states in writing that he or she is a person who is a creditor of the bankrupt, a fee is payable in accordance with item 6 of Schedule 9.]”.
8.1 Paragraph 6.02 (1) (a):
After “occurring” insert “or continuing”.
9.1 Paragraph 6.03 (3) (a):
Omit “(5);”, substitute “(4);”.
9.2 Paragraph 6.03 (4) (e):
After “likely”, insert “to”.
10.1 Subregulation 6.04 (1):
After “value of”, insert “a”.
10.2 Paragraphs 6.04 (1) (a) and (3) (a):
After “occurring” insert “or continuing”.
11.1 Regulation 6.16:
Omit “(f),”, substitute “(f)”.
12.1 Subparagraph 7.01 (2) (b) (ii):
Omit “that date”, substitute “the date on which the bankrupt returned”.
13.1 Paragraph 8.03 (b):
Omit “address;”, substitute “address (including, where applicable, the postal address) and telephone number;”.
13.2 Paragraph 8.03 (c):
Omit the paragraph, substitute:
“(c) a statement or summary of any conditions applying to the person’s entitlement to practise as a registered trustee;”.
14.1. After regulation 8.04, insert:
“
“
Penalty: 1 penalty unit”.
15.1 Omit the Division, substitute:
“
“
“
[NOTE: For the admissibility in evidence of an extract of the Index, see r. 13.07.]
“
16.1 Omit the Division heading, substitute:
“
17.1 Paragraph 8.08 (a):
Omit the paragraph, substitute:
“(a) in accordance with the scale of charges that is:
(i) set out in the IPAA Guide to Hourly Rates published by the Insolvency Practitioners Association of Australia; and
(ii) applicable to the work to be remunerated; and”.
18.1 Subparagraphs 8.14A (a) (i) and (ii):
Before “the last day”, insert “28 days after”.
18.2 Division 5A of Part 8:
Omit the Division.
[NOTE: The amendment made by subr. 18.1 is taken to have
commenced on 16 December 1996, and the amendment made by subr. 18.2
commences on the commencement of the
19.1 Subregulations 10.10 (2), (3) and (4):
Omit “is to”, substitute “must”.
20.1 Paragraph 13.03 (1) (a):
After “each”, insert “creditor’s petition,”.
20.2 Subparagraph 13.03 (1) (c) (ii):
Omit “address;”, substitute “address (including, where applicable, the postal address) and telephone number;”.
20.3 Subparagraph 13.03 (1) (c) (iii):
Omit the subparagraph, substitute:
“(iii) a statement or summary of any conditions applying to the person’s entitlement to practise as a registered trustee;”.
20.4 Subregulation 13.03 (1):
Add at the end:
“; (g) information concerning a creditor’s petition (including details of any orders made in relation to the petition, or the withdrawal of the petition).”.
20.5 Paragraph 13.03 (6) (a):
Omit “(6);”, substitute “(5);”.
20.6 Paragraph 13.03 (6) (b):
Before “inaccurate”, insert “out of date,”.
21.1 Subregulation 13.06 (1):
Omit all the words up to and including “may”, substitute “Subject to subregulation (1A), a person may, on payment of any applicable fee”.
21.2 After subregulation (1), insert:
“
(a) prior payment by a person of an applicable fee is not required if the person has an alternative arrangement (for example, payment by bulk billing) with the Inspector-General concerning the mode of payment;
(b) paragraph (1) (b) extends to making notes of information shown on a computer screen;
(c) paragraph (1) (c) extends to making, or obtaining, a print-out on paper of an extract stored on computer.”.
22.1 Subregulation 13.07 (1):
After “proceedings, a”, insert “document or”.
22.2 Subregulation 13.07 (2):
Omit “An document”, substitute “A document or copy”.
23.1 After regulation 13.10, insert in Part 13:
“
“
24.1 Paragraph 15.13 (6) (a):
Omit “subsection 154A (3)”, substitute “paragraph 154A (3) (a)”.
24.2 Paragraph 15.13 (7) (a):
Omit “subsection 155E (3)”, substitute “paragraph 155E (3) (a)”.
25.1 Subregulation 15.14 (2):
After “provided”, insert “for”.
26.1 After regulation 15.19, insert:
“
“
“
“
(a) in cash; or
(b) by cheque; or
(c) by any other means (for example, by direct debit or electronic transfer) that the Inspector-General approves in writing.
“
(a) refunded to the trustee; or
(b) unless the trustee, by notice in writing to the Inspector-General, directs otherwise—offset against an amount of charge or penalty payable by the trustee.
“
“
“
“
“
“
“
“
27.1 Subparagraph 16.02 (1) (b) (i):
Omit “for receipt of facsimile transmissions” (second occurring).
28.1 Subregulation 16.07 (3):
After paragraph (a), insert:
“(aa) performs work under Division 6 of Part IV of the Act; or”.
28.2 Subregulation 16.07 (3):
Omit “out of the estate”.
28.3 Regulation 16.07:
After subregulation 16.07 (3), insert:
“
(a) where paragraph (3) (aa) applies—out of the amount realised (within the meaning of that expression set out in subregulation (4) as modified by subregulations (5) and (6)) under Division 6 of Part IV of the Act; or
(b) in any other case—out of the estate.”.
28.4 Subregulation 16.07 (8):
Omit “exercising control of the property,”, substitute “performing any of those functions,”.
29.1 Subregulation 16.08 (2) (paragraph (b) of the definition of “costs of administration”):
Omit “C”, substitute “B”.
30.1 Regulation 16.11:
Omit “13.04”, substitute “16.10”.
31.1 Regulation 16.12:
Add at the end:
“
32.1 Subregulation 16.14 (1):
Omit the subregulation, substitute:
“
“
(a) acts as trustee of the estate of a bankrupt or a deceased person in respect of whose estate an order for administration has been made under Part XI of the Act; or
(b) acts as controlling trustee, or as trustee as the result of a deed of assignment or deed of arrangement under Part X of the Act;
a fee is payable to the Official Receiver by the Official Trustee, in accordance with this regulation, in respect of the estate:
(c) on the declaration of a dividend by the Official Trustee; or
(d) on the Official Trustee’s ceasing to act as the trustee of the estate or debtor.”.
32.2 Paragraph 16.14 (3) (a):
After “amount;”, add “or”.
32.3 Paragraph 16.14 (3) (e):
Omit “regulation 16.08.”, substitute “this regulation.”.
32.4 Subregulation 16.14 (4):
After “his”, insert “or her”.
33. 1 Regulation 16.15:
Omit the regulation, substitute:
“
(a) a prescribed amount was received by the trustee on or before 31 October 1996; and
(b) after that date, a dividend was paid, on behalf of the estate or debtor, from that prescribed amount.
“
(a) a prescribed amount was received by the Official Trustee on or before 31 October 1996; and
(b) after that date:
(i) a dividend was paid, on behalf of the estate or debtor, from that prescribed amount; or
(ii) the Official Trustee ceases to act as trustee of the estate or debtor.”.
34.1 Regulation 16.17:
Omit the regulation.
35.1 Form 1 (Bankruptcy Notice):
Omit the form, substitute Form 1 set out in the Schedule.
35.2 Form 2 (Trustee’s account of receipts and payments):
Omit the form.
36.1 Item 19.1 of Schedule 4:
Omit from paragraph (a) of substituted section 36 “$1; or”, substitute “$1; and”.
36.2 Item 30.4:
Omit from inserted subsection (1A) “(b)”, substitute “(f)”.
37.1 Item 2 of Schedule 8:
Omit from column 5 “not applicable”, substitute “within 3 working days”.
37.2 Item 9 of Schedule 8:
Omit “trustee or Official Receiver (section 149B)” (second occurring), substitute “at any time before discharge”.
38.1 Item 2 of Schedule 9:
Omit “each application for”.
38.2 Schedule 9:
Add at the end:
“6 | For inspection or copying of a composition or scheme of arrangement that has been accepted under subsection 73 (4) of the Act (except in the case of aperson who states in writing that he or she is a person who is a creditor of the bankrupt) | $20.00 |
Item 6—where a person makes a statement of the kind mentioned, no fee is payable.]”.
38.3 Add at the end:
“7 | For inspection or search of microfiche records of the Federal Court relating to bankruptcy matters | $15.00”. |
39.1 Item 1 of Schedule 10:
Omit “acting on behalf of officer”, substitute “officer acting on behalf of”.
40.1 An amount paid under Division 3 of Part 16 of
the Bankruptcy Regulations in respect of an estate or a debtor is to be offset
against an amount of charge payable under Part 3 of the
__________________
Regulation 4.02
This
Bankruptcy Notice is prescribed, under subs. 41 (2) of the
[NOTE: Words appearing below in italics are for guidance in the completion of this Notice, and are not to be reproduced in the Notice.]
To: (
(“the debtor”)
of: (
1.
(
(“the creditor”)
of:
(
claims you owe the
creditor a debt of $(
A copy of the judgment or order relied upon by the creditor is attached. At the time of applying for this Notice, execution of the judgment or order had not been stayed.
3. You are required, within (
(a) to pay to the creditor the amount of the debt; or
(b) to make an arrangement to the creditor’s satisfaction for settlement of the debt.
The number of days to be inserted is 21 or, if an order has been made under subparagraph 40 (1) (g) (ii) of the Act, the number of days constituting the time fixed by the order.]
4. Payment of the debt can be made to:
(
of:
(
[NOTE: The address must be within Australia.]
5.
(a) you do not comply with the requirements of either paragraph 3 (a) or paragraph 3 (b) above;
and
(b) the Federal Court does not extend, or is not deemed to have extended, the time for compliance with this Bankruptcy Notice (see paragraph 6, below).
6. The Federal Court of Australia may extend the time for compliance with this Bankruptcy Notice if, within the time stated in paragraph 3 above, you apply to that Court on one or both of the following grounds:
(a) thatyou have instituted proceedings to set aside the judgment or order in respect of which this Bankruptcy Notice has been issued;
(b) that you have filed with the Federal Court of Australia an application (on one or more grounds, apart from the grounds mentioned in paragraph 7, below) to set aside this Bankruptcy Notice.
7. In addition, within the time specified in paragraph 3 above, you may file an application to the Federal Court of Australia for an order to set aside this Bankruptcy Notice on the specific grounds that:
(a) you have a counter-claim, set-off or cross demand equal to or exceeding the sum specified in this Bankruptcy Notice as owing to the creditor;
and (b) in the action or proceeding in which the judgment or order mentioned in paragraph 2 of this Bankruptcy Notice was obtained, you could not have set up that counter-claim, set-off or cross demand*.
8. You should note the following points carefully:
(a) If you file, at the Federal Court Registry, an application mentioned in
paragraph 6 (a) or(b) , you must still comply with this Bankruptcy Notice within the time stated in paragraph 3 above unless the Court extends the time for you to comply.(b) If you file, at the Federal Court Registry, an application mentioned in
paragraph 7 (a) , you need not comply with this Bankruptcy Notice until the Court decides whether you have grounds for a counter-claim, set-off or cross demand. Whether you will have to comply at that stage will depend on the Court’s decision.
9. The
information in paragraphs 6, 7 and 8 is based on provisions of section 41 of
the Act
10. The Federal Court Registry for your State or Territory is located at:
(
Schedule
| Column 2 |
1. Amount of judgment or order | |
| |
| |
| |
| |
|
(NB: Amounts, where applicable, are to be inserted in column 2)
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If legal costs are being claimed in this Bankruptcy Notice, a certificate of taxed or assessed costs in support of the amount claimed must be attached to this Bankruptcy Notice.
If interest is being claimed in this Bankruptcy Notice, details of the calculation of the amount of interest claimed are to be set out in a document attached to this Bankruptcy Notice. The document must state:
the
provision under which the interest is being claimed;
the principal sum on which, the period for which, and the interest rate or rates at which, the interest is being claimed.
(NB: If different rates are claimed for different periods, full details must be shown)
(see Bankruptcy Regulations, reg. 4.04.)
Total debt owing, expressed in foreign
currency (
transfer rate on __/__/__ (
––––––––
=
$ (
––––––––
Also, the information may be included on a public record or given to other persons, bodies or agencies for purposes authorised by the Act.
_______________________________________________________
The person who applied for this notice to be issued is:
(
who confirms by the following signature that he or she is the creditor/the creditor’s authorised agent *:
(*
(
and whose address for service is:
(
Telephone and fax
numbers
(including STD code):
DX number (if
applicable):
FOR OFFICIAL USE ONLY
Dated this (
date ) day of(month ) (year )
This notice was issued by the Official Receiver (or delegate or an officer authorised by the Official Receiver) for the Bankruptcy District of:
_______________________________________________________
address of Official Receiver:
_______________________________________________________
_______________________________________________________
_______________________________________________________
(signature or stamp of Official Receiver or delegate or authorised officer)
_____________________________________________________
1. Notified in the
Commonwealth of Australia Gazette on 14 April 1997.2. Statutory Rules 1996 No. 263 as amended by 1996 No. 278.
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