Bankruptcy Rules (Amendment) (Cth)

Statutory Rules 1989 No. 1831

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Bankruptcy Rules2 (Amendment)

I, THE GOVERNOR-GENERAL of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, hereby make the following Rules under the Bankruptcy Act 1966.

Dated 28 June 1989.

BILL HAYDEN

Governor-General

By His Excellency’s Command,

N. BOLKUS

Minister of State for Consumer Affairs

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Commencement

1. These rules commence on 31 July 1989.

Application for extension of time for filing statement of affairs

2. Rule 31 of the Bankruptcy Rules is amended:

(a) by omitting subrule (1) and substituting the following subrule:

“(1) Where an application is made to the Court for an extension of the time specified in subsection 54 (1) or (2) or 56 (13) of the Act for a person to file a statement of affairs, a copy of the application and of any affidavit in support of the application shall be served on the trustee 2 clear days before the hearing of the application.”;

(b) by omitting subrule (1a);

(c) by omitting from subrule (2) “sub-section 54 (1), 56 (13) or 246 (1)” and substituting “subsection 54 (1) or (2) or 56 (13)”;

(d) by omitting subrule (3) and substituting the following subrule:

 

“(3) A person shall, before filing a request under subrule (2), submit the request to the trustee and afford the trustee an opportunity to endorse on, or attach to, the request a note of any matters that the trustee wishes the Registrar to take into account when determining the request.”;

(e) by omitting subrule (4) and substituting the following subrule:

“(4) A trustee who receives a request under subrule (3) shall, within 7 days, return the request, with any note that the trustee wishes to make under the request, and if the trustee omits to return the request to that person within that period of time the person may endorse the fact of that omission on the request and file the request under subrule (2).”.

Application for annulment under section 154 or 252a of the Act

3. Rule 57 of the Bankruptcy Rules is amended by omitting subparagraph (2a) (a) (i) and (ii) and substituting the following subparagraphs:

“(i) on the trustee;

(ii) if the trustee is a registered trustee—on the Official Receiver; and

(iii) if the first-mentioned person is not the bankrupt—on the bankrupt.”.

Register of trustees

4. Rule 60 of the Bankruptcy Rules is amended:

(a) by omitting from paragraph (1) (a) “the address and occupation” and substituting “the residential and business addresses and the occupation”;

(b) by inserting after subrule (1) the following subrules:

“(1a) A person who becomes registered under section 155 of the Act shall, within 14 days of becoming registered, give notice in writing to the Inspector-General and the Official Receiver of the particulars mentioned in paragraph (1) (a).

“(1b) A person registered under that section shall, within 14 days of any change, in respect of that person, of any of the particulars mentioned in paragraph (1) (a), give notice in writing, setting out the person’s name and the new particulars, to the Inspector-General, the Official Receiver and the Registrar.”.

5. Rule 71 of the Bankruptcy Rules is repealed and the following rule substituted:

Trustee may appoint person to vote at a meeting of creditors

“71. Where the trustee has been appointed to vote as proxy of a creditor at a meeting of creditors, the trustee may, by instrument in writing, appoint a person to attend and vote at the meeting as proxy of the creditor in place of the trustee.”.

 

Publication of notice under subsection 224a (3) of the Act

6. Rule 81a of the Bankruptcy Rules is amended by omitting “he considers” and substituting “he or she thinks”.

Modification of provisions of Act applied by section 231

7. Rule 82 of the Bankruptcy Rules is amended by omitting paragraph (aa).

Modification of provisions of Act applied by section 237

8.Rule 83 of the Bankruptcy Rules is amended by omitting paragraph (1) (aa).

Repeal of rule 89

9.Rule 89 of the Bankruptcy Rules is repealed.

Modification of provisions of the Act applied by section 248

10.Rule 90 of the Bankruptcy Rules is amended by omitting paragraphs (g), (ga) and (h).

Quorum

11.Rule 96 of the Bankruptcy Rules is amended by omitting subrules (1) and (1a) and substituting the following subrule:

“(1) At a meeting of creditors, a quorum is constituted by not less than 2 persons, being:

(a) creditors, each of whom is entitled to vote at the meeting and is present personally, by attorney or by proxy; or

(b) 1 creditor, who is entitled to vote at the meeting and is present personally, by attorney or by proxy, and the trustee or a person authorised in writing by the trustee to represent the trustee at the meeting.”.

Proxies

12.Rule 100 of the Bankruptcy Rules is amended by omitting subrule (1) and substituting the following subrule:

• “(1)

   An instrument of appointment of a proxy shall:

  (a) unless the proxy is appointed to vote on a special resolution under section 204 of the Act—be in accordance with Form 43; or

  (b) if the proxy is appointed to vote on a special resolution under that section—be in accordance with Form 44.”.

Interpretation

13. Rule 100a of the Bankruptcy Rules is amended:

(a) by omitting “or” from paragraph (b) of the definition of “joint bankruptcy”;

(b) by adding at the end of the definition “joint bankruptcy” the following word and paragraph:

“; or (d) bankruptcies that occur under section 55 of the Act where:

(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;”;

(c) by inserting after the definition of “joint bankruptcy” the following definition:

“ ‘joint and several creditors’ means creditors of joint debtors or partners, to whom the debtors are liable both as joint debtors and as individual debtors;”;

(d) by adding “or joint and several creditors” at the end of the definition of “separate creditors”.

14. Rule 100b of the Bankruptcy Rules is repealed and the following rule substituted:

Trustee in joint bankruptcy to give notice of meeting

“100b. Notice under rule 93 of each meeting of creditors in a joint bankruptcy shall be given to the joint creditors, the separate creditors and the joint and several creditors.”.

Voting at meetings of creditors

15. Rule 100c of the Bankruptcy Rules is amended:

(a) by omitting from paragraph (a) “and”;

(b) by adding at the end the following word and paragraph:

“; and (c) joint and several creditors may vote on resolutions proposed for joint creditors and on resolutions proposed for separate creditors.”.

16. Rule 131 of the Bankruptcy Rules is repealed and the following rule substituted:

Transcript of evidence

“131. For the purposes of subsection 255 (6) of the Act, the prescribed certification is an endorsement, signed by an officer or employee of the Commonwealth Reporting Service, in the words:

‘This document is a transcipt of a record of proceedings prepared in accordance with section 255 of the Bankruptcy Act 1966 by the Commonwealth Reporting Service’;

or in substantially similar words.”.

Schedule 1

17. Schedule 1 to the Bankruptcy Rules is amended:

(a) by inserting in Form 9 the following paragraph:

“3. I am not disqualified by the Act from presenting a petition against myself.”;

(b) by inserting in Forms 9a and 9b the following paragraph:

“3. We are not disqualified by the Act from presenting a petition against ourselves.”.

(c) by omitting from Form 10 “24 and 30” and substituting “30 and 78”;

(d) by inserting, after “debtor’s petition” in note (a) of Form 10, “or the execution of an authority under section 188 of the Act”;

(e) by omitting from Form 13 “as to your conduct, trade dealings, property and affairs”;

(f) by omitting Forms 11, 35, 39, 41, 43, 44 and 49;

(g) by omitting from Forms 33a and 33b “Rule 74a” and substituting “Rule 74”;

(h) by inserting in its proper numerical position in that Schedule each of the forms set out in the Schedule to these Rules.

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SCHEDULE

FORM 43 Rule 100

APPOINTMENT OF PROXY

(Title)

I, (full name of creditor) of (address) a creditor of (name of bankrupt/debtor), appoint (full name of proxy) of (address of proxy)to be my proxy at the meeting of creditors of the bankrupt/debtor1 on  the day of  19 (or at any meeting of those creditors):

(i) to vote on all matters arising at the meeting:1

OR

(ii) to vote on the following matters1

(and in the specified manner2):

(Set out the matters and any specified manner of voting)

I am an unsecured creditor and the total amount owed to me is $ (insert amount) or I am a secured creditor and the total amount owed to me after deducting the value of my security is $  (insert amount).

Dated 19

1 Delete as appropriate

2 Delete if inapplicable

_______________________________

(Creditor)

Signed by the creditor )

in my presence )

(Signature, address and occupation of witness)

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SCHEDULE— continued

FORM 44 Rule 100

APPOINTMENT OF PROXY TO VOTE ON A SPECIAL RESOLUTION UNDER SECTION 204 OF THE BANKRUPTCY ACT 1966

(Title)

I, (full name of creditor) of (address), a creditor of (name of debtor), appoint (full name of proxy) of (address of proxy)to be my proxy at the meeting of creditors of the debtor on  the  day of  19 (or at any meeting of those creditors) to vote on each of the following kinds of resolution under section 204 of the Act in the manner specified:

 

Kind of resolution Manner of voting (specify, in each case, “for”,“against”or “abstain”).

(a) a resolution that the debtor’s property be no longer subject to control under Division 2 of Part X of the Act:

(b) a resolution requiring the debtor to execute a deed of assignment:

(c) a resolution requiring the debtor to execute a deed of arrangement:

(d) a resolution accepting a composition:

(e) a resolution requiring the debtor to present a debtor’s petition within 7 days:

Other conditions:

(Specify any conditions in accordance with which the proxy is, on any matter, required to vote).

I am an unsecured creditor and the total amount owed to me is $ (insert amount) or I am a secured creditor and the total amount owed to me after deducting the value of my security is $ (insert amount).

Dated 19 .

_______________________________

(Creditor)

Signed by the creditor )

in the presence of )

(Signature, address and occupation of witness)

NOTES

1. Notified in the Commonwealth of Australia Gazette on 6 July 1989.

2. Statutory Rules 1988 No. 2 as amended to date. For previous amendments see Note 2 to Statutory Rules 1989 No. 176 and see also