Bankruptcy Rules (Amendment) (Cth)

Statutory Rules 1994

No. 214 1

__________________

Bankruptcy Rules 2(Amendment)

I, The Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council and under section 4 of the Acts Interpretation Act 1901, make the following Rules under the Bankruptcy Act1966.

Dated 27 June1994.

 BILL HAYDEN

 Governor-General

 By His Excellency’s Command,

D. KERR

Minister for Justice

____________

1.   Commencement

1.1   These Rules commence on 1 July 1994.

2.   Amendment

2.1   The Bankruptcy Rules are amended as set out in these Rules.

3.   Rule 40A (Prescribed amount for purposes of paragraph 109 (1) (e) of the Act

3.1   Omit “$2,000”, substitute “$3,000”.

4.   Rules 40C and 40D

4.1   Omit the rules.

5.Division 3 of Part III

5.1   Omit the Division, substitute:

“Division 3—Apportionment of property

Interpretation

 “41.In this Division, unless the contrary intention appears:

‘actuary’ has the same meaning as in the Superannuation Industry (Supervision) Act 1993;

‘accumulation fund’ has the same meaning as in the Superannuation Industry (Supervision) Regulations;

‘approved deposit fund’ has the same meaning as in the Superannuation Industry (Supervision) Act 1993;

‘defined benefit fund’ has the same meaning as in the Superannuation Industry (Supervision) Regulations;

‘member’ means:

• (a)

  in relation to a regulated superannuation fund—a person who:

  • (i)

    is a member of the fund; or

  • (ii)

    receives a pension from the fund; or

  • (iii)

    has deferred his or her entitlement to receive a benefit from the fund; and

• (b)

  in relation to an approved deposit fund—a depositor in the fund;

‘pension RBL’, in relation to a bankrupt, means the bankrupt’s pension RBL worked out under section 140ZD of the Income Tax Assessment Act 1936;

‘preserved component’ means the component of a bankrupt’s interest in a fund that consists of preserved benefits (ascertained in accordance with Subdivision 6.1.2 of the Superannuation Industry (Supervision) Regulations);

‘regulated superannuation fund’ has the same meaning as in the Superannuation Industry (Supervision) Act 1993;

‘restricted non-preserved component’ means the component of a bankrupt’s interest in a fund that consists of restricted non-preserved benefits (ascertained in accordance with Subdivision 6.1.3 of the Superannuation Industry (Supervision) Regulations);

‘unrestricted non-preserved component’ means the component of a bankrupt’s interest in a fund that consists of unrestricted non-preserved benefits (ascertained in accordance with Subdivision 6.1.4 of the Superannuation Industry (Supervision) Regulations);

‘withdrawal benefit’ has the same meaning as in the Superannuation Industry (Supervision) Regulations.

Method of apportionment—subsection 116 (6) of the Act

Purposes and application

 “41A.(1)  This rule is made for the purposes of subsection 116 (6) of the Act. Accordingly, it applies in respect of property of a bankrupt that is covered by paragraph 116 (2) (d) of the Act (in this rule called ‘the bankrupt’s property’), where the total value of the bankrupt’s property exceeds the amount of the bankrupt’s pension RBL.

One item of property—life assurance or endowment assurance

 “(2) If the bankrupt’s property:

• (a)

  consists of only 1 item; and

• (b)

  is in the form of:

  • (i)

    a policy of life assurance or endowment assurance; or

  • (ii)

    proceeds of a policy of that kind, being proceeds that are received by the bankrupt on or after the date of the bankruptcy;

the method of determining how the property is to be apportioned is to extend subsection 116 (1) of the Act to the proportion of that property that exceeds the amount of the bankrupt’s pension RBL.

One item of property—payment from regulated superannuation fund or approved deposit fund

 “(3) If the bankrupt’s property:

• (a)

  consists of only 1 item; and

• (b)

  is in the form of a payment from a regulated superannuation fund or an approved deposit fund, being a payment that:

  • (i)

    is received by the bankrupt on or after the date of the bankruptcy; and

  • (ii)

    is not a pension, within the meaning of the Superannuation Industry (Supervision) Act 1993;

the method of determining how the property is to be apportioned is to extend subsection 116 (1) of the Act to the proportion of that property that exceeds the amount of the bankrupt’s pension RBL.

One item of property—interest in regulated superannuation fund or approved deposit fund

 “(4) If the bankrupt’s property:

• (a)

  consists of only 1 item; and

• (b)

  is in the form of an interest in a regulated superannuation fund or an approved deposit fund;

the method of determining how the property is to be apportioned is to extend subsection 116 (1) of the Act to the components of the property in the following order:

• (c)

  the unrestricted non-preserved component of the property;

• (d)

  the restricted non-preserved component of the property;

• (e)

  the preserved component of the property;

until the value of the bankrupt’s residuary interest in the property equals the value of the bankrupt’s pension RBL.

EXAMPLE: Assume that the bankrupt has one item of property, namely an interest of $1,200,000 in a regulated superannuation fund. This property has the following components:

 (a) an unrestricted non-preserved component of $100,000;

• (b)

  a restricted non-preserved component of $200,000;

• (c)

  a preserved component of $900,000.

The amount ($400,000) by which the property exceeds the pension RBL ($800,000) is available towards satisfying the creditors in the bankruptcy.

The amount of $400,000 is met by applying the whole of the non-preserved components ($100,000 + $200,000 = $300,000) and $100,000 from the preserved component.

NOTE: The amount of the pension RBL (in the above example, $800,000) is always protected and remains in the fund.

More than 1 item of property

 “(5) If the bankrupt’s property consists of more than 1 item, the method of determining how the property is to be apportioned is to extend subsection 116 (1) of the Act to the items in the following order:

• (a)

  proceeds of a policy of life assurance or endowment assurance received by the bankrupt on or after the date of the bankruptcy;

• (b)

  policies of life assurance or endowment assurance;

• (c)

  a payment from a regulated superannuation fund or an approved deposit fund, being a payment that:

  • (i)

    is received by the bankrupt on or after the date of the bankruptcy; and

  • (ii)

    is not a pension, within the meaning of the Superannuation Industry (Supervision) Act 1993;

• (d)

  the unrestricted non-preserved component of any interest in an approved deposit fund;

• (e)

  the unrestricted non-preserved component of any interest in an accumulation fund;

• (f)

  the restricted non-preserved component of any interest in an accumulation fund;

• (g)

  the preserved component of any interest in an approved deposit fund;

• (h)

  the preserved component of any interest in an accumulation fund;

• (i)

  the unrestricted non-preserved component of any interest in a defined benefit fund;

• (j)

  the restricted non-preserved component of any interest in a defined benefit fund;

• (k)

  the preserved component of any interest in a defined benefit fund;

until the value of the bankrupt’s residuary interest in the property equals the value of the bankrupt’s pension RBL.

Method of working out value of property—subsection 116 (7) of the Act

 “41B.(1) This rule is made under subsection 116 (7), and for the purposes of subsection 116 (5), of the Act.

 “(2) In the case of property that is an interest in a policy of life assurance or endowment assurance, the value of the bankrupt’s interest in the property is taken to be the amount available in cash on voluntary termination of the policy at the date of bankruptcy.

 “(3) In the case of property that is an interest in an accumulation fund or an approved deposit fund, the value of the bankrupt’s interest in the property is taken to be the withdrawal benefit of the bankrupt in the fund at the date of bankruptcy.

 “(4) Subject to subrule (5), in the case of property that is an interest in a defined benefit fund, the value of the bankrupt’s interest in the property is taken to be the withdrawal benefit of the bankrupt in the fund at the date of bankruptcy.

 “(5) If the withdrawal benefit is not an immediately payable lump sum, the amount of the withdrawal benefit is to be determined by an actuary for the purposes of subrule (4).

Evidentiary certificate by trustee—subsection 116 (8) of the Act

 “41C.(1) This rule is made for the purposes of subsection 116 (8) of the Act.

 “(2) Where the bankrupt has an interest in a regulated superannuation fund or an approved deposit fund of the kind referred to in that subsection, the trustee of the bankrupt must give a request in writing to the trustee of the fund to provide a  written certificate setting out the following particulars:

• (a)

  the withdrawal benefit of the bankrupt in the fund at the date of bankruptcy; and

• (b)

  the amount of each payment (if any) that the fund has paid to the bankrupt, and the date of each payment.

 “(3)The trustee of a fund who receives a request under subrule (2) must give a written certificate setting out the requested particulars, so far as it is reasonably practicable to do so, and signed and dated by the trustee, to the relevant trustee in bankruptcy within 28 days or, if the relevant trustee allows a further period of time, that further period.

 “(4)A document that purports, or appears to the court, to be a written certificate given under subrule (3) is prima facie evidence of its contents and may be tendered in evidence without being proved.”.

6.Rule 46 (Notice of intended dividends)

6.1   Add at the end:

 “(2) If the trustee considers it necessary or desirable to do so, the trustee may advertise the notice of intention in a newspaper.”.

7.Rule 161B (Official Receiver’s charges and fees)

7.1   Paragraphs 161B (1) (a) and (2) (a):

Omit “$150”, substitute “$200”.

7.2   Paragraphs 161B (1) (b) and (2) (b):

Omit “$100”, substitute “$135”.

7.3   Paragraph 161B (2) (c):

Omit “$75”, substitute “$100”.

7.4   Subrules 161B (4) and (5):

Omit the subrules.

8.Rule 179 (Fees and percentages)

8.1   Paragraph 179 (5) (c):

Omit “148”, substitute “154”.

9.Rule 182 (Fees and percentages payable to the Official Trustee)

9.1   Subrule 182 (1):

Omit “The fees”, substitute “Subject to subrule (1A), the fees”.

9.2   After subrule 182 (1), insert:

 “(1A) In spite of subrule (1) and Schedule 6, if the total amount of fees payable, in respect of a particular bankruptcy, for all the matters that are specified in Schedule 6 would, apart from this subrule, be less than $265, a fee of $265 is payable for those matters.

EXAMPLE: In a particular bankruptcy, a total 10 matters arise under Schedule 6, for which the total fees specified in the Schedule amount to $220; in that case, a fee of $265 is payable.”.

9.3   Paragraphs 182 (2) (d) and (e):

Omit “$1,000” (wherever occurring), substitute “$2,000”.

9.4   Paragraph 182 (6) (b):

Omit “Act; and”, substitute “Act.”.

9.5   Paragraph 182 (6) (c):

Omit the paragraph.

10.Schedule 6 (Official Trustee’s fee):

10.1   Item 6 (column 2):

Omit “in pursuance of paragraph 19 (1) (e) or 140 (3) (a), or sub-section 310 (1) or (4) of the Act or of rule 92”, substitute “under paragraph 140 (3) (a) of the Act”.

10.2   Item 7 (column 2):

Omit “in pursuance of paragraph 19 (1) (e) or 140 (3) (a), or sub-section 310 (1) or (4). of the Act or of rule 92”, substitute “under paragraph 140 (3) (a) of the Act or subrule 46 (2)”.

10.3   Column 3:

Provision amended	Omit	Substitute
Item 2, paragraph (a)	$15	$30
Item 2, paragraph (b)	$10	$30
Item 3, paragraph (a)	$10	$150
Item 3, paragraph (b)	$5	$75
Item 4, paragraph (d)	$2	$5
Item 5, paragraph (a)	$10	$50
Item 5, paragraph (b)	$1	$5
Item 6	$1	$58
Item 7	$5	$25

10.4   Add at the end:

“8	Receipt of proofs of debt, not exceeding 10	$35
9	Receipt of each proof of debt in excess of the first 10	$3.50
10	Where a person requests a copy of a document held by the Official Trustee, for the first page	$20
11	For each additional page provided for a copy mentioned in item 10	$1”.

____________________________________________________________

NOTES

1. Notified in the Commonwealth of Australia Gazette on 30 June  1994.

2. Statutory Rules 1968 No. 2 as amended by 1975 No. 52; 1976 Nos. 105, 143 and 235; 1977 Nos. 32 and 136; 1978 No. 19; 1979 Nos. 157 and 243; 1980 Nos. 385 and 386; 1981 Nos. 40, 304 and 305; 1982 No. 247; 1984 Nos. 23 and 155; 1986 Nos. 84, 95, 96 and 323; 1987 Nos. 21, 51, 54 and 223; 1988 Nos. 19, 261, 342 and 343; 1989 Nos. 176, 182, 183, 245 and 376; 1991 No. 117; 1992 Nos. 194, 261 and 400; 1993 No. 90.