Bankruptcy Rules (Amendment) (Cth)

Statutory Rules 1986 No. 961

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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 15 May 1986.

N. M. STEPHEN

Governor-General

By His Excellency’s Command,

LIONEL BOWEN

Attorney-General

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Repeal of rule 39a

1. Rule 39a of the Bankruptcy Rules is repealed.

2.After rule 40 of the Bankruptcy Rules the following rule and Division are inserted:

Prescribed amount for purposes of paragraph 109 (1) (e) of the Act

“40a. For the purposes of paragraph 109 (1) (e) of the Act, the amount of $2,000 is prescribed.

“Division 2a—Property available for payment of debts

Prescribed amount for purposes of paragraph 116 (2) (c) of the Act

“40b. For the purposes of paragraph 116 (2) (c) of the Act, the amount of $2,000 is prescribed.

Prescribed amount for purposes of paragraph 116 (2) (f) of the Act

“40c. For the purposes of paragraph 116 (2) (f) of the Act, the amount of $2,000 is prescribed.

Prescribed amount per annum for purposes of paragraph 116 (2) (fa) of the Act

“40d. For the purposes of paragraph 116 (2) (fa) of the Act, the amount of $2,000 per annum is prescribed.”.

 

3. After Division 4 of Part III of the Bankruptcy Rules, the following Division is inserted:

“Division 4aa—Prescribed amount in relation to powers exercisable by trustee

Prescribed amount for purposes of section 134 of the Act

“45aa. For the purposes of section 134 of the Act, the amount of $50,000 is prescribed.”.

Withdrawal of objection

4. Rule 50 of the Bankruptcy Rules is amended by omitting sub-rule (2) and substituting the following sub-rule:

“(2) An objector who files a withdrawal of an objection to the discharge of a bankrupt shall, by pre-paid certified mail, post a copy of the withdrawal, signed and stamped by the Registrar, to—

(a) the Inspector-General;

(b) the trustee; and

(c) the bankrupt.”.

Matters prescribed for purposes of sub-sections 149 (10) and (13) of the Act

5. Rule 51a of the Bankruptcy Rules is amended by inserting in paragraph (g) “, the Official Receiver” after “trustee”.

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

6. Rule 57 of the Bankruptcy Rules is amended—

(a) by omitting sub-rules (1) and (2) and substituting the following sub-rules:

“(1) An application may be made to the Court in relation to the exercise of the Court’s powers under section 154 or 252a of the Act.

“(2) An application referred to in sub-rule (1), being an application in accordance with rule 102, shall specify the grounds on which the application is made.

“(2a) A person who makes an application referred to in sub-rule (1) shall—

(a) not later than 28 days before the hearing date of the application, serve a copy of the application on the trustee; and

(b) not later than 14 days before the hearing date of the application, serve a copy of the application on each of the creditors of the bankrupt, or of the estate of the deceased person, as the case may be.”; and

(b) by omitting from sub-rule (3) “after service of the application on him” and substituting “before the hearing date of the application”.

 

Official Receiver to inquire and report on application

7. Rule 59 of the Bankruptcy Rules is amended by omitting “qualifications and experience of the applicant,” and substituting “application”.

Trustee’s accounts

8.Rule 73 of the Bankruptcy Rules is amended by omitting sub-rule (1) and substituting the following sub-rules:

“(1) For the purposes of sub-section 175 (1) of the Act, each of the following times is a prescribed time:

(a) 31 March, or 30 September, next following the date of the bankruptcy, whichever day is later;

(b) the day immediately after the expiration of the period of 12 months that commences on the day ascertained in accordance with paragraph (a);

(c) the expiration of each successive period of 12 months after the period referred to in paragraph (b).

“(1a) In sub-rule (1)—

(a) a reference to a day shall be read as a reference to a day before the day on which the final dividend is distributed in respect of the estate of the bankrupt; and

(b) a reference to a period shall be read as a reference to a period that expires before the day-of that distribution.”.

Repeal of rule 75

9.Rule 75 of the Bankruptcy Rules is repealed.

Summons to witnesses

10.Rule 125 of the Bankruptcy Rules is amended by omitting sub-rule (6) and substituting the following sub-rule:

“(6) For the purposes of this rule—

(a) a person who initiates proceedings (whether by petition, application or otherwise);

(b) a person on whom a document has been served in relation to those proceedings; and

(c) a person who has filed a notice under rule 106,

are each a prescribed person.”.

Transcript of evidence

11.Rule 131 of the Bankruptcy Rules is amended by omitting sub-rules (1), (2) and (4) and substituting the following sub-rule:

“(1) For the purposes of sub-section 255 (6) of the Act, a person who prepares a transcript of any evidence, argument, ruling or direction that has been—

(a) taken down by an approved shorthand writer;

(b) taken down by an approved steno-type machine operator by means of a steno-type machine; or

(c) recorded by an approved person by means of sound recording apparatus,

shall certify on the transcript that it is a true transcript of the evidence, argument, ruling or direction so taken down or recorded.”.

Abuse of process

12.Rule 134 of the Bankruptcy Rules is amended—

(a) by omitting “an affidavit” and substituting “a document”;

(b) by omitting “affidavit” (second occurring) and substituting “document”; and

(c) by adding at the end the following sub-rule:

“(2) If a document presented to a Registrar in any proceedings appears to the Registrar to be an abuse of the process of the Court or to contain scandalous, irrelevant or objectionable matter, the Registrar may refuse to file or issue it or may seek the direction of a Judge who may direct the Registrar—

(a) to file or issue it; or

(b) to refuse to file or issue it.”.

13. After rule 161 of the Bankruptcy Rules the following rule is inserted:

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

“161a. For the purposes of paragraph 167 (2) (a) of the Act, the amount of $1,000 is prescribed.”.

Fees and percentages payable to the Official Trustee

14.Rule 182 of the Bankruptcy Rules is amended by adding at the end the following sub-rule:

“(6) A reference in sub-rule (4) to an amount realised or brought to credit shall be taken to include a reference to any amount—

(a) offered pursuant to a proposal for a composition or scheme of arrangement under Division 6 of Part IV of the Act;

(b) accepted by the creditors in accordance with sub-section 73 (4) of the Act; and

(c) approved by the Court pursuant to sub-section 74 (4) of the Act.”.

Inspection of documents

15.Rule 200 of the Bankruptcy Rules is amended by adding at the end the following sub-rule:

“(4) Sub-rule (3) does not apply in relation to—

(a) the Official Receiver; or

(b) the trustee of the estate of a bankrupt named in the bankruptcy notice as the debtor.”.

Schedule 1—Form 27

16. Schedule 1 to the Bankruptcy Rules is amended by adding at the end of Form 27—

“This notice is filed by.................... on behalf of ..................... whose address for service is...................................

NOTE: Rule 55 of the Bankruptcy Rules requires notice of opposition to the discharge of a bankrupt to be filed and copies to be served on the bankrupt and the trustee.”.

Schedule 1—Form 29

17. Schedule 1 to the Bankruptcy Rules is further amended by inserting after paragraph (b) in Form 29 the following paragraph:

“(ba) controlling trustee in relation to a debtor whose property is subject to control under Division 2 of Part X of the Bankruptcy Act 1966;”.

Schedule 1—Form 30

18. Schedule 1 to the Bankruptcy Rules is further amended by inserting after paragraph (b) in Form 30 the following paragraph:

“(ba) controlling trustee in relation to a debtor whose property is subject to control under Division 2 of Part X of the Bankruptcy Act 1966;”.

Transitional

19. Where, in accordance with sub-rule 73 (1) as in force before the commencement of these Rules, the trustee would be required to furnish an account pursuant to sub-section 175 (1) of the Act at a particular prescribed time after the commencement of these Rules, then, for the purposes of that sub-section, each of the following times is a prescribed time:

(a) in the case of an account required to be furnished not later than 30 September 1986—

(i) that particular prescribed time;

(ii) 1 October 1986;

(iii) the prescribed time that would be applicable if, in relation to that account, 1 October 1986 was the first-mentioned day referred to in paragraph 73 (1) (b) as amended by these Rules; and

(b) in the case of an account required to be furnished during the period commencing on 1 October 1986 and ending at the expiration of 31 March 1987—

 (i) that particular prescribed time;

(ii) 1 April 1987;

(iii) the prescribed time that would be applicable if, in relation to that account, 1 April 1987 was the first-mentioned day referred to in paragraph 73 (1) (b) as amended by these Rules.

NOTES

1. Notified in the Commonwealth of Australia Gazette on 19 May 1986.

2. Statutory Rules 1968 No. 2 as amended to date. For previous amendments see Note 2 to Statutory Rules 1986 No. 84 and see also