Bankruptcy Rules (Amendment) (Cth)

Statutory Rules 1988 No. 191

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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 18 February 1988.

N. M. STEPHEN

Governor-General

By His Excellency’s Command,

MICHAEL TATE

Minister of State for Justice

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Commencement

1.These Rules shall come into operation on 1 March 1988.

Sequestration order

2. Rule 26 of the Bankruptcy Rules is amended:

(a) by omitting from subrule (2) “one” and substituting “2”; and

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

“(4) Where a sequestration order has been filed under subrule (3), the Registrar:

(a) if the trustee is a registered trustee—shall cause one copy to be sent to the Official Receiver and the other copies to be sent to the trustee; or

(b) if the trustee is not a registered trustee—shall cause the copies to be sent to the trustee.”.

 

Repeal of rule 28

3.Rule 28 of the Bankruptcy Rules is repealed.

4. After Division 8 of Part II of the Bankruptcy Rules the following Division is inserted:

“Division 8a—Report by trustee

“31a. Where a registered trustee files a report with the Registrar in accordance with paragraph 19 (1) (c) of the Act, the trustee shall cause a copy of the report to be sent to the Official Receiver.”.

Examination of bankrupts

5. Rule 32 of the Bankruptcy Rules is amended:

(a) by inserting after subrule (1a) the following subrule:

“(1b) Where the applicant for the examination of a bankrupt under subsection 69 (1) of the Act is a registered trustee, the trustee shall cause a copy of the summons issued under subrule (1) to be sent to the Official Receiver.”; and

(b) by omitting from subrule (3) all the words after “Gazette”.

6. Rule 33 of the Bankruptcy Rules is repealed and the following rule substituted:

Adjournment of examination under section 69 or 81 of the Act

“33. Where the examination of a bankrupt under section 69 of the Act, or the examination of a bankrupt or other person under section 81 of the Act, has been adjourned generally or for further hearing on a date to be fixed, the applicant for the examination shall cause notice of the date, time and place fixed for the commencement of the examination of the bankrupt, or for that further hearing, as the case may be, to be served on:

(a) the bankrupt or other person; and

(b) if the examination has commenced—any person not referred to in paragraph (a) who has taken part in the examination either personally, by counsel or a solicitor, by an agent or by the Official Receiver.”.

Prescribed order for purposes of subsection 109 (1) of the Act

7.Rule 40 of the Bankruptcy Rules is amended by inserting in paragraph (d) “, the taxed costs of the person administering the estate of a deceased person” after “creditor”.

Notice of intended dividends

8.Rule 46 of the Bankruptcy Rules is amended by omitting all the words after “Gazette”.

 

Objection to discharge

9.Rule 49 of the Bankruptcy Rules is amended by omitting from subrule (2) all the words after “granting leave,” and substituting “to be served on:

(a) where the trustee is a registered trustee—the Official Receiver;

(b) the trustee; and

(c) the bankrupt.”.

Withdrawal of objection

10.Rule 50 of the Bankruptcy Rules is amended by omitting from subrule (2) all the words after “bankrupt” and substituting “shall serve a copy of the withdrawal, signed and stamped by the Registrar, on:

(a) where the trustee is a registered trustee—the Official Receiver;

(b) the trustee; and

(c) the bankrupt.”.

Application for discharge

11. Rule 52 of the Bankruptcy Rules is amended:

(a) by omitting from subrule (1) all the words after “attached” and substituting “to it:

(a) a list, certified by the trustee, setting out the names and addresses of the bankrupt’s creditors; and

(b) an affidavit setting out the facts upon which the applicant relies.”; and

(b) by inserting after subrule (3) the following subrule:

“(3a) Where the trustee is a registered trustee, the Registrar shall, not later than 14 days before the hearing date of an application under subsection 150 (1) or (2) of the Act, serve on the Official Receiver one copy each of the application and the notice referred to in subrule (2).”.

Report under subsection 150 (3) of the Act

12.Rule 53 of the Bankruptcy Rules is amended by omitting subrule (2) and substituting the following subrule:

“(2) A person who files a report shall, on the day on which the report is filed, serve one copy:

(a) if the Official Trustee is the trustee—on the bankrupt, at the bankrupt’s address for service; or

(b) if the Official Trustee is not the trustee:

 (i) on the bankrupt, at the bankrupt’s address for service; and

 (ii) on the Official Receiver.”.

Notice of intention to dispute report

13.Rule 54 of the Bankruptcy Rules is amended by omitting all the words after “trustee” and substituting “and, where the trustee is a registered trustee, to the Official Receiver notice in writing of that intention together

with particulars of the statements in the report that he or she intends to deny or dispute.”.

Notice of opposition to discharge

14.Rule 55 of the Bankruptcy Rules is amended by omitting paragraph (b) and substituting the following paragraph:

“(b) cause one copy of the notice to be served on each of the bankrupt and the trustee and, where the trustee is a registered trustee, on the Official Receiver.”.

Variation of order of discharge

15. Rule 56 of the Bankruptcy Rules is amended:

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

(b) by inserting after paragraph (a) the following paragraph:

“(b) where the trustee is a registered trustee—the Official Receiver; and”.

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

16.Rule 57 of the Bankruptcy Rules is amended by omitting from paragraph 2a (a) “application on the trustee” and substituting “application:

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

(ii) in any other case—on the trustee; and”.

Register of trustees

17.Rule 60 of the Bankruptcy Rules is amended by omitting from paragraph (1) (b) “subsection 155 (2)” and substituting “subsection 155 (3a)”.

18. After rule 61a of the Bankruptcy Rules the following rule is inserted:

Service of application under subsection 155 (5b) of the Act

“61b. Where an application is made to the Court under subsection 155 (5b) of the Act, one copy of the application shall be served on each of the trustee and the Official Receiver.”.

Notice of acceptance by trustee

19.Rule 62 of the Bankruptcy Rules is amended by inserting in subrule (1) “and the Official Receiver” after “Registrar”.

20. After rule 66 of the Bankruptcy Rules the following rule is inserted:

Resignation of trustee

“66a. (1) A registered trustee who lodges with the Court an application for the purposes of section 180 of the Act shall serve a copy of that application on each of:

(a) the Official Receiver;

( b)the bankrupt; and

(c) any creditor whose name and address are known to the trustee.

“(2) An application referred to in subrule (1) shall be accompanied by a statement, in accordance with Form 21, of the realisation and distribution of the estate by the trustee.”.

21.Rule 69 of the Bankruptcy Rules is repealed and the following rule substituted:

Notice of removal of trustee

“69. Where a trustee is removed from office by the Court, the Registrar shall at once give notice of the removal to the Official Receiver.”.

Representation on behalf of Inspector-General

22. Rule 70a of the Bankruptcy Rules is amended by omitting “, by virtue of sub-section 149 (3), (8) or (12) of the Act, to be heard on the hearing of an application” and substituting “to be heard on the hearing of an application under the Act”.

Modifications of provisions of Act applied by section 231

23.Rule 82 of the Bankruptcy Rules is amended by inserting after paragraph (a) the following paragraph:

“(aa) section 112 is omitted;”.

Modification of provisions of Act applied by section 237

24.Rule 83 of the Bankruptcy Rules is amended by inserting after paragraph (a) the following paragraph:

“(aa) section 112 is omitted;”.

Modification of provisions of Act applied by section 248

25. Rule 90 of the Bankruptcy Rules is amended:

(a) by inserting after paragraph (f) the following paragraph:

“(fa) section 109 of the Act is modified by inserting in paragraph (1) (a) “or person administering the estate of a deceased person” after “petitioning creditor”; and

(b) by inserting after paragraph (g) the following paragraph:

“(ga) section 112 of the Act is omitted;”.

First meeting of creditors

26.Rule 92 of the Bankruptcy Rules is amended by omitting paragraph (l)(a).

Other meetings of creditors

27.Rule 93 of the Bankruptcy Rules is amended by omitting all the words after “cause notice” and substituting “of the date, time and place of the meeting, and of the business proposed to be conducted at the meeting,

to be served on each creditor of the bankrupt whose business or residential address is known to the trustee.”.

Repeal of rule 97

28.Rule 97 of the Bankruptcy Rules is repealed.

Minutes of meeting

29.Rule 98 of the Bankruptcy Rules is amended by omitting from subrule (3) all the words after “that sub-rule” and substituting “to be served on:

(a) the trustee who has been removed from office;

(b) the trustee appointed in his or her place; and

(c) the Official Receiver.”.

Address for service

30.Rule 101 of the Bankruptcy Rules is amended by omitting paragraph (3) (a) and substituting the following paragraph:

“(a) shall be within the District in which the document stating the address is filed; and”.

31. After rule 114 of the Bankruptcy Rules the following rules are inserted:

Consent orders

“114a. (1) A consent in writing of the parties to a proceeding, or their solicitors, to the making of an order in the proceeding may be filed:

(a) if the proceeding has been transferred under section 35 of the Act—at the place to which the proceeding has been transferred; or

(b) if the proceeding has not been so transferred—at the place where the proceeding was commenced.

“(2) Notwithstanding any other provision of these Rules:

(a) a consent so filed with a Registrar shall be brought by the Registrar before a Judge; and

(b) the Judge may, without any other application being made, direct the Registrar to draw up, sign and seal an order of the Court in accordance with the terms of the consent.

“(3) The order shall state that it is made by consent and shall be of the same force and validity as if it had been made after a hearing by the Court.

Enforcement of judgment or order

“114b. (1) For the purpose of enforcing a judgment or order of the Court under the Act, the Court may, subject to these Rules:

(a) make any order that could be made;

(b) issue any writ that could be issued;

(c) take any other step that could be taken;

by the Court if so made, issued or taken by the Court in the exercise of any jurisdiction of the Court otherwise than under the Act.

“(2) For the purposes of subrule (1):

(a) the Court shall use the forms of process, and follow the procedures, available to the Court; and

(b) an officer of the Court may exercise the powers and perform the functions of such an officer;

in the exercise of any jursidiction of the Court otherwise than under the Act.

“(3) For the purpose of giving effect to this rule, an application may be made to the Court for directions.

“(4) This rule shall not be taken to affect the operation of any other provision of these Rules relating to the enforcement of a judgment or order.”.

Summons to witness

32.Rule 125 of the Bankruptcy Rules is amended by omitting from subrule (1) all the words after “specified in” and substituting “the summons and there and then:

(a) to give evidence or to give evidence and produce any documents; or

(b) to produce to a Registrar at that place any documents;

in the person’s custody or control that he or she is required by the summons to produce.”.

33. After rule 141 of the Bankruptcy Rules the following rule is inserted:

Affidavit upon information and belief

“141a. Notwithstanding any other provision of these Rules, where, in an affidavit under these Rules, a statement is made upon information and belief and the deponent sets out the sources of the information or the grounds for the belief, the Court may admit the statement.”.

Power of registrar to summon witnesses

34.Rule 156 of the Bankruptcy Rules is amended by omitting from subrule (1) all the words after “specified in” and substituting “the summons and there and then:

(c) to give evidence, or to give evidence and to produce any books or documents; or

(d) to produce to a Registrar at that place any books or documents;

in the person’s custody or control that he or she is required by the summons to produce.”.

Amount prescribed for purposes of paragraph 167 (2) (a) of the Act

35. Rule 161a of the Bankruptcy Rules is amended by omitting “$1,000” and substituting “$2,000”.

Scale of costs

36.Rule 162 of the Bankruptcy Rules is amended:

(a) by inserting after subrule (2) the following subrule:

“(2a) Where a petition of a kind referred to in subrule (2) is dismissed by the Court, the costs to be allowed to the solicitor for the petitioning creditor shall, if the solicitor so desires, be, in addition to his proper disbursements, an amount of $750.”; and

(b) by inserting in subrule (3) “or (2a)” after “sub-rule (2)”.

Fees and percentages

37. Rule 179 of the Bankruptcy Rules is amended:

(a) by omitting from paragraph (4) (a) “$20,000” and substituting “$50,000”;

(b) by omitting from paragraph (4) (b) “$20,000” (wherever occurring) find substituting “$50,000”;

(c) by omitting from paragraph (4) (b) “$40,000” and substituting “$100,000”;

(d) by omitting from paragraph (4) (b) “$600” and substituting “$1,500”;

(e) by omitting from paragraph (4) (c) “$1,100” and substituting “$2,750”;

(f) by omitting from paragraph (4) (c) “$40,000” and substituting “$100,000”; and

(g) by omitting from subrule (5) “trustee, or the sum of the total amounts received” and substituting “trustee for distribution to the creditors, or the sum of the total amounts so received”.

Prescribed rate for purposes of section 20j of the Act

38. Rule 195a of the Bankruptcy Rules is amended by omitting “10 per cent” and substituting “8%”.

Schedule 1

39. Schedule 1 to the Bankruptcy Rules is amended:

(a) by omitting Form 26 and substituting the following form:

FORM 26 Rule 51

APPLICATION FOR ORDER OF DISCHARGE

(Title)

I, (full name, address and occupation of bankrupt), who became a bankrupt on 19 , apply to the Court for an order of discharge under section 150 of the Bankruptcy Act 1966.

Annexed to this application and marked “A” is a list, certified by the trustee of my estate, setting out the names and addresses of my creditors known to the trustee. Annexed to this application and marked “B” is an affidavit setting out the facts on which I rely for the purposes of this application.

Dated 19 .

(Signature of bankrupt)

This application is filed by on behalf of the bankrupt whose address for service is

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(b) by omitting from Form 27 all the words from and including “This notice” to and including “service is”;

(c) by omitting Form 42; and

(d) by omitting Form 48 and substituting the following form:

FORM 48 Rules 125 and 156

SUMMONS TO WITNESS

(Title)

To: (full name and address of witness)

I, , the Registrar in Bankruptcy, summon you to attend at  on 19  , at *am/*pm., and then and there

* to give evidence in connection with (give brief particulars of the proceedings)

* to give evidence and produce any *books/ *and/ *or/ *documents in your custody or control in relation to (give brief particulars of the proceedings),and, in particular, the following documents:

(specify documents)

* to produce to a Registrar at that place any *books/ *and/ *or/ *documents in your custody or control in relation to (give brief particulars of the proceedings), and, in particular, the following documents:

(specify documents)

Dated 19 .

Registrar

* Cross out if not applicable

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Transitional

40. (1) The amendment of rule 161a of the Bankruptcy Rules effected by rule 35 of these Rules applies in relation to any bill of costs or bill of charges delivered for taxation after the commencement of these Rules, whether the services to which the bill relates were rendered before or after that commencement.

(2) The amendment of rule 162 of the Bankruptcy Rules effected by rule 36 of these Rules applies in relation to a petition dismissed after the commencement of these Rules, whether the petition was presented before or after that commencement.

(3) The rate prescribed:

(a) under rule 195a of the Bankruptcy Rules as in force immediately before the commencement of these Rules applies in relation to moneys held by the Official Trustee before that commencement as if these Rules had not been made; and

(b) under rule 195a of the Bankruptcy Rules as amended by these Rules applies in relation to moneys held by the Official Trustee on or after that commencement.

NOTES

1. Notified in the Commonwealth of Australia Gazette on 25 February 1988.

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.