Bankruptcy Rules (Amendment) (Cth)

STATUTORY RULES.

1932. No. 43.

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RULES UNDER THE BANKRUPTCY ACT 1924-1930.

I,THE GOVERNOR-GENERAL, in and over the Commonwealth of Australia, acting with the advice of the Federal Executive Council, hereby make the following Rules under the Bankruptcy Act 1924-1930, to come into operation forthwith.

Dated this twenty-ninth day of April, 1932.

ISAAC A. ISAACS

Governor-General.

By His Excellency’s Command,

A. J. McLACHLAN

for Attorney-General.

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Amendment of Bankruptcy Rules 1928.

(Statutory Rules 1928, No. 8, as amended to this date.)

Computationof time.

1. Rule 4 of the Bankruptcy Rules 1928 is amended by inserting immediately before the word “Sunday” (wherever occurring) the word “Saturday,”.

Proceedings,how intituled.

2. Rule 11 of the Bankruptcy Rules 1928 is amended by omitting sub-rule (3.) and inserting in its stead the following sub-rule:—

“(3.) When a sequestration order is made, all documents relating to the matter shall bearthe number assigned by the Registrar to that order.”.

Service of subpoena.

3. Rule 65of the Bankruptcy Rules 1928 is repealed and the following rule inserted in its stead:—

“65. A sealed copy of the subpoena shall be served personally on the witness within a reasonable time before the return thereof and the person at whose instance the subpoena is issued shall be responsible for the service of such copy.”.

Recognizanceof bail.

4. After Rule 94 of the Bankruptcy Rules 1928, the following rule is inserted:—

“94a. Recognizance of bail shall be in accordance with Form 154a in the First Schedule.”.

Priority of costs and charges payableout of estate.

5. Rule 127 of the Bankruptcy Rules 1928 is amended by adding at the end of paragraph (k)the words “and the percentage payable under Item 13 of Table A in the Third Schedule”.

Personal service.

6. Rule 153 of the Bankruptcy Rules 1928 is amended by omitting sub-rule (2.) and inserting in its stead the following sub-rule:—

“(2.) A petition shall be served upon the debtor by an officer, a police officer, the bailiff of any State Court or his deputy or by the creditor or his solicitor or by some person authorized in writing by the creditor or his solicitor or by some person in the employ of the creditor or of his solicitor.”.

2876. —PRICE 5d.

Sequestration order.

7. Rule 176 of the Bankruptcy Rules 1928 is amended—

(a) by omitting from sub-rule (3.) the words “forthwith on the service” and inserting in their stead the words “or his representative immediately after the making”; and

(b) by adding at the end thereof the following sub-rule:—

“(4.) Every such order shall, unless the Court otherwise directs, be drawn up and completed within twenty-four hours of the making thereof.”.

Payment of dividends to a nominee.

8. Rule 231 of the Bankruptcy Rules 1928 is repealed.

Application.

9. Rule 232 of the Bankruptcy Rules 1928 is amended—

(a) by omitting sub-rule (1.) and inserting in its stead the following sub-rule :—

“(1.) A bankrupt intending to apply for his discharge shall produce to the Registrar a certificate in accordance with Form 135 from the Official Receiver or trustee showing the number, names and addresses of those creditors who have proved their debts. The Official Receiver or trustee shall be entitled to charge for the preparation of such certificate the amount of Sixpence per folio of seventy-two words.”;

(b) by omitting from sub-rule (2.) the words “the Official Receiver” (second occurring); and

(c)by inserting in sub-rule (3.), after the words “each creditor”, the words “who has proved his debt”.

Summary administration.

10. Rule 285 of the Bankruptcy Rules 1928 is amended by inserting in paragraph (m), after the word “despatch”, the words “by public auction or public or private tender or as the Official Receiver thinks best”.

Applications for examination of debtor or trustee.

11. Rule 296 of the Bankruptcy Rules 1928 is amended by omitting sub-rules (2.) and (4.).

Books to kept by Registrar.

12. Rule 315 of the Bankruptcy Rules 1928 is amended by omitting from sub-rule (1.) the figures “183,”.

Fees payable to unsalaried Official Receiver.

13. Rule 319 of the Bankruptcy Rules 1928 is repealed and the following rule inserted in its stead:—

“319. Where an Official Receiver is remunerated .by fees and commission only, he shall receive for his own use and benefit the fees numbered 1 (b) and 2 to 8 inclusive as prescribed in Table B in the Third Schedule.”.

Power to Official Receiver to carry on business.

14. After Rule 325 of the Bankruptcy Rules 1928 the following rule is inserted:—

“325a. Subject to any order which the Court may make, the Official Receiver may carry on the business of the bankrupt until the conclusion of the first meeting of creditors.”.

Notice of registration as trustee.

15. Rule 350 of the Bankruptcy Rules 1928 is repealed and the following rule inserted in its stead:—

“350.—(1.) The certificate of registration of a person as qualified to act as a trustee shall be in accordance with Form 92, and notification of the issue thereof shall be sent by the Registrar to the Official Receiver.

“(2.) The trustee shall forthwith publish notice of his registration in the Commonwealth Gazette and in a local paper. The expense of the publication in the Commonwealth Gazette and in a local paper shall be borne by the trustee.”.

Notice of appointment of trustee as trustee of an estate.

16. Rule 351 is repealed and the following rule inserted in its stead:—

“351.—(1.) When a trustee is appointed by the creditors as trustee of an estate, he shall be notified thereof by the Official Receiver and a certificate of the appointment shall be issued by the Registrar.

“(2.) The certificate certifying the appointment shall be in accordance with Form 93.”.

Statement of unclaimed dividends, &c. to be filed.

17. Rule 380 of the Bankruptcy Rules 1928 is amended—

(a) by inserting, after sub-rule (1.), the following sub-rule:—

“(1a.) A trustee of an estate, when furnishing the duplicate copy of any cash book, shall file a statement, verified by statutory declaration, showing the amount of any unclaimed dividends in the estate with the dates on which such dividends became payable, together with the amounts of any unclaimed or undistributed moneys paid into the Bankruptcy Estates Account.”; and

(b) by omitting, from sub-rule (3.) the words “the Official Receiver or by such other” and inserting in their stead the word “such”.

Search fees.

18. After Rule 399 of the Bankruptcy Rules 1928 the following rule is inserted:—

“399a.—(1.) Any Department of a State Government which, priorto the commencement of the Act, was permitted to search, without charge, State records (now in the custody of the Bankruptcy Administration) may make searches of such State records without charge.

“(2.) Members of the public who desire to search State Bankruptcy records (now in the custody of the Bankruptcy Administration) shall be charged fees in accordance with the prescribed scale and such fees shall be credited to the Commonwealth Public Account.

“(3.) Any Department of a State Government which searches records under the Act shall be charged fees in accordance with the prescribed scale.

“(4.) Any Department of. the Commonwealth may make searches, without charge, of Commonwealth Bankruptcy records and of State Bankruptcy records in the custody of the Bankruptcy Administration. A record of any such searches shall be kept.”.

Amendment of Forms 25 and 26.

19. Forms 25 and 26 in the First Schedule to the Bankruptcy Rules 1928 are amended—

(a) by omitting the words “service of this order upon him, to attend the Official Receiver” and inserting in their stead the words “making of this order to attend the Official Receiver or his representative”; and

(b) by omitting the words “, when they close at 12 noon”.

Amendment of Form 29.

20. Form 29 in the First Schedule to the Bankruptcy Rules 1928 is amended—

(a) by omitting the words “Official Receiver” in the introductory wording; and

(b) by adding at the end of the declaration, after the words “against me”, the words “and that the causes of my inability to pay my debts and meet my engagements arise from

(a)  and that I became unable to pay my debts in due course as they became due on or about the (b) .”.

(a) State reasons.

(b) Insert date.

Repeal of Form 121.

21. Form 121 in the First Schedule to the Bankruptcy Rules 1928 is repealed.

Form 135.

22. Form 135 in the First Schedule to the Bankruptcy Rules 1928 is repealed and the following form inserted in its stead:—

“No. 135.

Commonwealth of Australia.

The Bankruptcy Act 1924-1930.

CERTIFICATE OF NUMBER OF CREDITORS TO BE NOTIFIED (DISCHARGE).

[Title.]

I certify that the creditors of the above bankrupt who require to be notified of his. intention to apply for his discharge are in number, and that their names and addresses are as follows:—

Dated this  day of 19

Official Receiver or Trustee.”.

Recognizance of bail.

23. After Form 154 in the First Schedule to the Bankruptcy Rules 1928 the following form is inserted:—

“No. 154a.

Commonwealth of Australia.

The Bankruptcy Act 1924-1930.

RECOGNIZANCE OF BAIL.

[Title.]

Be it remembered that on the day of 19 of in the Bankruptcy District of , personally came before me, , a Judge of the

Federal Court of Bankruptcy (or, of the Court exercising jurisdiction in bankruptcy, as the case may be,),of the Bankruptcy District of , and acknowledged himself to owe to our Sovereign

Lord the King the sum of pounds of good and lawful money to be made and levied of his goods and chattels lands and tenements respectively to the use of our said Sovereign Lord the King his heirs and successors if fail in the condition hereunder.

Taken and acknowledged the day and year	}
above written at , in the said
District before me—

Judge, Federal Court of Bankruptcy (or Court

exercising jurisdiction in- bankruptcy,

as the case may be.)

Condition.

The Condition of the above written recognizance is such that if shall appear at the sittings, of the Federal Court of Bankruptcy (or Court exercising jurisdiction in bankruptcy, as the case may be) to be holden at in the District of on the day of

19 for examination before the said Court, and not depart the Court without leave:

And if, as often as leave is given by the Judge presiding thereat after surrender and before or during the said examination, he shall return to the said Court at the time appointed by the said Judge on granting such leave, and again surrender himself and appear thereat: Then this Recognizance to be void otherwise it shall stand in full force and virtue.”.

Amendment of Second Schedule.

24. The Second Schedule to the Bankruptcy Rules 1928 is amended—

(a) by inserting, after Item 19 in the Scale of Solicitors’ Costs, the following words:—

“The fees payable under Items 18 and 19 include any allowance for instructions for Statements of Affairs of a partnership, but an additional allowance may be made for the preparation of the forms necessary to disclose the individual estates, such allowance not to exceed £2.”; and

(b) by inserting in Item 35 in the Scale of Solicitors’ Costs, after the words “by hand”, the words “. . . . per folio”.

Amendment of Form A, Third Schedule.

25. Table A in the Third Schedule to the Bankruptcy Rules 1928 is amended—

(a) by omitting from Item 5 the words and figures “under section 154 or” and inserting in their stead the words “where the assets are declared not to exceed Three hundred pounds or under”;

(b) by inserting in Item 9, after the word “full”, the words “or that the bankrupt has obtained a legal acquittance of his debts”;

(c) by omitting from Item 10 the words “an application” and inserting in their stead the words “a voluntary application”;

(d) by omitting from Item 10 the word and figures “same . . . . 1 10 0” and inserting in their stead the words and figures “same and including fee for the order . . . . 2 10 0”;

(e) by omitting from Item 12 the words “an application” and inserting in their stead the words “an ex parte application”;

(f) by inserting in Item 23; after the. word “chargeable”, the words “or provided for”;

(g) by inserting in Item 25, after the word “debt”, the words “or affidavit in verification of trustee’s account”;

(h)by omitting from Item 33 the words “trustee under the Act, a fee upon the net amount” and inserting in their stead the words “trustee, other-than the Official Receiver, under the Act, a fee upon the amount”;

(i) by omitting Item 34; and

(j)by adding at the end of the Table the following words:—

“Where, in respect of the filing of any document, more than one fee would appear to be payable, the fee payable shall be the highest fee payable under this Table in respect of such filing.”.

Amendment of Table B.

26. Table B in the Third Schedule to the Bankruptcy Rules 1928 is amended—

(a) by adding at the end of paragraph (a)of Item 1 the words “or, if the Official Receiver so elects, a sum fixed in accordance with the scale in the Sixth Schedule”;

(b) by omitting from paragraph (b)of Item 1 the word “five” and inserting in its stead the word “ten”;

(c) by adding at the end of Item 1 the following paragraph:—

“(c)An Official Receiver who is a permanent officer shall receive a commission, in addition to the commission under paragraphs (a), and (b)of this Item, at the rate of Five pounds per centum on the collection of book debts.”; and

(d) by omitting from Item 5 the word “or” and inserting in its stead the word “in”.

Form 3.

27. Form 3 in the Fourth Schedule to the Bankruptcy Rules 1928 is repealed and the following form is inserted in its stead:—

“No. 3.

Commonwealth of Australia.

The Bankruptcy Act 1924-1930. (Part XI.)

AFFIDAVIT IN SUPPORT OF STAY.

In the Court of Bankruptcy,

District of .

No. of 19 .

[Title.]

and

In the matter of a (proposed) meeting of the creditors of  of in the

said State, , the said debtor,

and

In the matter of (a) certain action(s) in the Court of No.  of

wherein is* and the said debtor is the defendant,

and

In the matter of the Bankruptcy Act 1924-1930.

I of

make oath and say—

1. The action(s) abovementioned has/have been commenced and is/are now pending in the Court of against the said debtor at the suit of the *

abovementioned in respect of debts or liabilities which would be provable in bankruptcy if a sequestration order were made against the debtor.

2. As solicitor for the said debtor, and under his instructions, I have called a meeting of his creditors pursuant to section 157 of the Bankruptcy Act 1924-1930 by posting (or delivering) on the day of

19 circulars to the residence or place of business of each of the creditors of the said debtor, such meeting to be held at on the day of 19 , being not less than three nor more than twenty-one days after the day of such posting (or delivering).

3. That the paper writing attached hereto and marked with the letter “A” is a true copy of the circular referred to in paragraph 2 hereof.

4. (Ground of knowledge).

Sworn the day of 19 , at

Before me—

*Plaintiff, or as the case may be.

.”.

Form 4.

28. Form 4 in the Fourth Schedule to the Bankruptcy Rules 1928 is repealed and the following form inserted in its stead:—

“No. 4.

Commonwealth of Australia.

The Bankruptcy Act 1924-1930. (Part XI.)

ORDER FOR STAY OF PROCEEDINGS.

In the Court of Bankruptcy,

District of

No. of 19 .

[Title.]

and

In the matter of a (proposed) meeting of creditors of in

the said State, , the said debtor,

and

In the matter of (a) certain action (s) in the Court of

No. of wherein is

* and the said debtor is the defendant,

and

In the matter of the Bankruptcy Act 1924-1930.

Upon the application of and upon reading the affidavit of

this court doth order that all proceedings in the abovementioned action(s) in the

Court of numbered No. of be stayed in terms of section 159 of the Bankruptcy Act 1924-1930.

Dated this day of 19 .

By the Court,

Registrar.”.

*Plaintiff, or as the case may be.

Amendment of Statutory Rules 1928, No. 82.

29. Statutory Rules 1928 No. 82 is amended by omitting the word and figure “sub-rule (3)” (second occurring) and inserting in their stead the word and letter “sub-rule (e)”.

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By Authority: L. F. Johnston, Commonwealth Government Printer, Canberra