Bankruptcy Rules (Amendment) (Cth)

Statutory Rules 1981 No. 3051

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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 and in pursuance of section 4 of the Acts Interpretation Act 1901, hereby make the following Rules under the Bankruptcy Act 1966.

Dated 21 October 1981.

ZELMAN COWEN

Governor-General

By His Excellency’s Command,

JOHN MOORE

Minister of State for Business and Consumer Affairs

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Procedure for presentation of petition

1. Rule 12 of the Bankruptcy Rules is amended—

(a) by omitting from paragraph (3) (b) “and”; and

(b) by inserting after paragraph (3) (b) the following paragraphs:

“(ba) where a registered trustee has, under sub-section 156a (1) of the Act, consented to act as the trustee of the estate of the debtor, or as the trustee of the joint and separate estates of the joint debtors, as the case may be—file a copy of the trustee’s consent;

(bb) where paragraph (ba) does not apply—file an affidavit by the petitioning creditor stating that—

(i) he believes that the value of the property of the debtor, or of the property comprising the joint estate of the joint debtors, as the case may be, that would be divisible amongst the creditors by virtue of section 116 of the Act if a sequestration order were made (but not including any property acquired by or devolving on the debtor, or on the joint debtors jointly, as the case may be, after the

 

making of the sequestration order, that would be so divisible) is less than $10,000 or, if another amount is for the time being prescribed for the purposes of sub-paragraph 52 (1a) (b) (i) of the Act, that other amount, and stating the grounds on which he holds that belief; or

(ii) he has, in all the circumstances of the case, taken all reasonable steps to obtain from a registered trustee a consent under sub-section 156a (1) of the Act in respect of the estate of the debtor, or in respect of the joint and separate estates of the joint debtors who would become bankrupts upon the making of a sequestration order, as the case may be, but has been unable to obtain any such consent; and”.

Personal service of bankruptcy notice or creditor’s petition

2.Rule 15 of the Bankruptcy Rules is amended by omitting paragraph (b) and substituting the following paragraph:

“(b) service of a creditor’s petition shall be effected on a debtor by delivering—

 (i) an official copy of the petition;

 (ii) a copy of the affidavit or of each affidavit verifying the petition; and

(iii) a copy of the consent referred to in paragraph 12 (3) (ba) or of the affidavit referred to in paragraph 12 (3) (bb), as the case requires,

to the debtor personally—

(iv) if service is effected in Australia—not less than 8 days before the hearing date for the petition; or

(v) in any other case—not less than such reasonable time before the hearing date for the petition as is determined by the Registrar.”.

Application for receiver before sequestration

3.Rule 17 of the Bankruptcy Rules is amended by inserting in sub-rule (3) “or, where the direction has been given to a registered trustee, on the registered trustee,” after “Official Trustee”.

Expenses of receiver before sequestration

4. Rule 18 of the Bankruptcy Rules is amended—

(a) by inserting in sub-rule (1) “or, where the direction has been given to a registered trustee, with the registered trustee” after “Official Trustee” (first occurring);

 

(b) by inserting in that sub-rule “or registered trustee” after “by the Official Trustee”;

(c) by omitting from that sub-rule “Official Trustee may” and substituting “Official Trustee or registered trustee, as the case requires, may”;

(d) by omitting from that sub-rule “deposit with the Official Trustee” and substituting “deposit with the Official Trustee or the registered trustee”;

(e) by omitting from sub-rule (2) “directed the Official Trustee” and substituting “directed the Official Trustee or a registered trustee”;

(f) by inserting in paragraph (2) (a) “or the registered trustee” after “Official Trustee”;

(g) by omitting from sub-rule (2) “expenses of the Official Trustee” and substituting “expenses of the Official Trustee or the registered trustee”; and

(h) by omitting from that sub-rule “by the Official Trustee” and substituting “by the Official Trustee or the registered trustee”.

Application for damages where petition dismissed

5.Rule 19 of the Bankruptcy Rules is amended by inserting “or, where the order gives a direction to a registered trustee, the registered trustee” after “Official Trustee”.

Registrar’s certificate

6. Rule 22 of the Bankruptcy Rules is amended—

(a) by omitting from paragraph (1) (c) “and”; and

(b) by inserting after paragraph (1) (c) the following paragraph:

“(ca) where an instrument under sub-section 156a (1) of the Act has been filed—that, so far as the Registrar is aware, the consent of the trustee has not been revoked; and”.

7. After rule 24 of the Bankruptcy Rules the following rule is inserted:

Debtor’s petition to be accompanied by consent of registered trustee

“24aa. At the time when a debtor’s petition under section 55, 56 or 57 of the Act is filed, the debtor shall—

(a) where a registered trustee has, under sub-section 156a (1) of the Act, consented to act as the trustee of—

(i) in the case of a petition presented under section 55 of the Act—the estate of the debtor; and

(ii) in the case of a petition presented under section 56 or 57 of the Act—the joint and separate estates of the members

of the partnership who would become bankrupts upon the acceptance of the petition or of the petitioning debtors, as the case requires,

file a copy of the trustee’s consent; or

(b) if paragraph (a) does not apply—file an affidavit by the petitioning debtor or, in the case of a petition presented under section 56 or 57 of the Act, each of the petitioning partners or debtors, as the case requires, stating that—

 (i) the petitioning debtor or partner, as the case requires, believes that the value of the property—

(A) in the case of a petition presented under section 55 of the Act—of the debtor;

(B) in the case of a petition presented under section 56 of the Act—comprising the joint estate of the members of the partnership who would become bankrupts upon acceptance of the petition; or

(C) in the case of a petition presented under section 57 of the Act—comprising the joint estate of the petitioning debtors,

that would be divisible amongst the creditors by virtue of section 116 of the Act if the petition were to be accepted (but not including any property acquired by or devolving on the debtor, those members of the partnership or the petitioning debtors jointly, as the case requires, after the acceptance of the petition that would be so divisible) is less than $10,000 or, if another amount is for the time being prescribed for the purposes of sub-paragraph 55 (4a) (b) (i), 56 (7a) (b) (i) or 57 (5a) (b) (i) of the Act, that other amount, and stating the grounds on which he holds that belief; or

 (ii) he has, in all the circumstances of the case, taken all reasonable steps to obtain from a registered trustee a consent under sub-section 156a (1) in respect of his estate or, in the case of a petition presented under section 56 or 57 of the Act, the joint and separate estates of those members of the partnership or of the petitioning debtors, as the case requires, but has been unable to obtain any such consent.”.

Form of sequestration order and number of copies to be produced to Registrar

8.Rule 26 of the Bankruptcy Rules is amended by omitting from sub-rule (4) “Official Receiver for the District” and substituting “trustee”.

Notification of bankruptcy

9.Rule 27 of the Bankruptcy Rules is amended by omitting from sub-rules (1), (2) and (3) “Official Receiver” (wherever occurring) and substituting “trustee”.

Application for extension of time for filing statement of affairs

10. Rule 31 of the Bankruptcy Rules is amended—

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

“(1) An application to the Court for an extension of the time prescribed by sub-section 54 (1) or 56 (13) of the Act for a person to file a statement of affairs shall be served on the trustee.

“(1a) An application to the Court for an extension of the time prescribed by sub-section 246 (1) of the Act for a person to file a statement of affairs shall be served on the Official Receiver.”;

(b) by omitting sub-rule (3) and substituting the following sub-rule:

“(3) A person may, before filing a request to the Registrar under sub-rule (2), submit the request to—

(a) in the case of a request for an extension of the time prescribed by sub-section 54 (1) or 56 (13) of the Act—the trustee; and

(b) in the case of a request for an extension of the time prescribed by sub-section 246 (1)—the Official Receiver,

and afford the trustee or the Official Receiver, as the case requires, an opportunity to write on the request or attach to the request a note of any matters that the trustee or Official Receiver wishes the Registrar to take into account when determining the request.”; and

(c) by inserting in sub-rule (4) “trustee or” before “Official Receiver” (wherever occurring).

Examination of bankrupts

11. Rule 32 of the Bankruptcy Rules is amended—

(a) by omitting from sub-rule (1) “69 (3)” and substituting “69 (2)”;

(b) by omitting from sub-rules (1) and (2) “official receiver” (wherever occurring) and substituting “trustee”; and

(c) by omitting from sub-rule (3) “Official Receiver” and substituting “trustee”.

Procedure where examinations under sections 69 and 81 of the Act have been adjourned

12. Rule 33 of the Bankruptcy Rules is amended—

(a) by omitting paragraph (1) (a); and

(b) by omitting from paragraph (1) (b) “that section” and substituting “section 69”.

Dispensing with or postponement of public examination

13.Rule 34 of the Bankruptcy Rules is repealed.

Application for approval of composition or scheme

14.Rule 35 of the Bankruptcy Rules is amended by omitting paragraph (2) (a).

Prescribed order for the purposes of section 109 (1) (b) of the Act

15.(1) Rule 40 of the Bankruptcy Rules is amended by omitting paragraph (b).

(2) Notwithstanding the amendment of rule 40 of the Bankruptcy Rules made by sub-rule (1), the provisions of that rule as in force immediately before the date of commencement of this rule continue to apply in relation to the payment of the fees, costs, charges and expenses referred to in paragraph 40 (b) of the Bankruptcy Rules as in force immediately before that date in respect of the estate of a person who became a bankrupt before that date, not being a person of the kind referred to in paragraph 123 (2) (b) of the Commonwealth Functions (Statutes Review) Act 1981.

Objection to discharge

16.Rule 49 of the Bankruptcy Rules is amended by omitting paragraph (2) (a) and substituting the following paragraph:

“(a) the Inspector-General;”.

Matters prescribed for the purposes of sub-section 149 (10) of the Act

17. Rule 51a of the Bankruptcy Rules is amended by omitting from paragraph (g) “Official Receiver” and substituting “Inspector-General”.

Application for discharge

18.Rule 52 of the Bankruptcy Rules is amended by omitting paragraph (2) (a) and substituting the following paragraph:

“(a) not less than 28 days before the hearing date of the application, serve notice of the date, time and place fixed for the hearing on the trustee; and”.

Notice of intention to dispute report

19.Rule 54 of the Bankruptcy Rules is amended by omitting “or to the official receiver, as the case may be,”.

Notice of opposition to discharge

20.Rule 55 of the Bankruptcy Rules is amended by omitting from paragraph (b) “, the trustee and the Official Receiver” and substituting “and the trustee”.

Variation of order of discharge

21. Rule 56 of the Bankruptcy Rules is amended—

(a) by adding at the end of paragraph (a) “and”; and

(b) by omitting paragraph (b).

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

22. Rule 57 of the Bankruptcy Rules is amended—

(a) by omitting paragraph (2) (a); and

(b) by omitting from sub-rule (3) “the Official Receiver or”.

Notice of acceptance of office to be given to the Registrar

23. Rule 62 of the Bankruptcy Rules is amended—

(a) by omitting “Official Receiver” (wherever occurring) and substituting “relevant trustee”; and

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

“(2) In sub-rule (1), ‘relevant trustee’ has the same meaning as in section 157 of the Act.”.

Certificate of appointment of trustee

24. Rule 62a of the Bankruptcy Rules is amended by inserting “156a (6) or” after “sub-section”.

25. The Bankruptcy Rules are amended by inserting after rule 62a the following rules:

Consent of registered trustee

“62b. An instrument under sub-section 156a (1) of the Act shall be in accordance with Form 30b or 30c.

Certificate of trusteeship

“62c. Where a registered trustee becomes the trustee of the estate of a bankrupt by force of sub-section 156a (3) of the Act, the Registrar may issue to the person a certificate of trusteeship in accordance with Form 30d.”.

Official Receiver may be represented on hearing of an examination under the Act

26.Rule 70 of the Bankruptcy Rules is amended by inserting “, otherwise than by virtue of rule 70a,” after “entitled”.

27. After rule 70 of the Bankruptcy Rules the following rule is inserted:

Inspector-General may be represented by Official Receiver

“70a. Where the Inspector-General is entitled, by virtue of sub-section 149 (3), (8) or (12) of the Act, to be heard on the hearing of an application or to present evidence or examine or cross-examine witnesses during the hearing, and is for any reason unable to be present in person at the hearing, the Court may permit the Official Receiver to appear on behalf of the Inspector-General and take such part in the hearing as the Inspector-General could have taken if he had been present in person at the hearing.”.

Trustee may appoint person to vote at first meeting of creditors

28.Rule 71 of the Bankruptcy Rules is amended by omitting “Official Receiver” (wherever occurring) and substituting “trustee”.

Summoning of first meeting of creditors

29.Rule 92 of the Bankruptcy Rules is amended by omitting from sub-rules (1) and (2) “Official Receiver” (wherever occurring) and substituting “trustee”.

Summoning of other meetings of creditors

30.Rule 93 of the Bankruptcy Rules is amended by omitting all the words from and including “posted—” to the end of the rule and substituting “posted to each creditor of the bankrupt whose business or residential address is known to him”.

Proceedings at other meetings of creditors of a bankrupt

31.Rule 94 of the Bankruptcy Rules is amended by omitting from sub-rule (2) “Official Receiver” and substituting “trustee”.

Minutes of meeting

32.Rule 98 of the Bankruptcy Rules is amended by omitting from sub-rule (3) “served on the Official Receiver and on the trustee referred to in the resolution” and substituting “served on the trustee who has been removed from office and on the trustee who has been appointed in his place”.

Appointment to tax bill

33.Rule 163 of the Bankruptcy Rules is amended by omitting from sub-rule (2) “official receiver” (wherever occurring) and substituting “trustee”.

Fees and percentages payable to the Official Trustee

34.(1) Rule 182 of the Bankruptcy Rules is amended by omitting sub-rules (1) and (1a) and substituting the following sub-rule:

“(1) The fees specified in Schedule 6 are payable to the Official Trustee in respect of the matters in relation to which they are so specified.”.

(2) Notwithstanding the amendments of rule 182 of the Bankruptcy Rules made by sub-rule (1), the provisions of that rule, as in force immediately before the date of commencement of this rule, continue to apply in relation to the payment of fees to the Official Receiver in respect of the estate of a person who became a bankrupt before that date, not being a person of the kind referred to in paragraph 123 (2) (b) of the Commonwealth Functions (Statutes Review) Act 1981.

Unclaimed moneys

35.Rule 198 of the Bankruptcy Rules is amended—

(a) by omitting from sub-rule (2) “or Official Receiver” and substituting “, Official Receiver or a registered trustee”;

(b) by omitting from that sub-rule “or the Official Receiver” (wherever occurring) and substituting “, the Official Receiver or the registered trustee”;

(c) by omitting from paragraph (3) (b) “or the Official Receiver” and substituting “, the Official Receiver or a registered trustee”; and

(d) by omitting from sub-rule (3) “or Official Receiver” and substituting “, Official Receiver or registered trustee”.

Schedule 1

36. Schedule 1 to the Bankruptcy Rules is amended—

(a) by omitting from Form 23 “Registrar (or Trustee or Creditor)” and substituting “Registrar (or Inspector-General, Trustee or Creditor, as the case requires)”;

(b) by omitting from Form 24 “Registrar (or Trustee or Creditor)” and substituting “Registrar (or Inspector-General, Trustee or Creditor, as the case requires)”;

(c) by inserting after Form 30a the following forms:

FORM 30b Rule 62b

Bankruptcy Act 1966

CONSENT TO ACT AS TRUSTEE

I,

(full name of trustee)

of

(address of trustee),

being a registered trustee within the meaning of section 5 of the Bankruptcy Act 1966, hereby consent to act as the trustee of the estate of

(full name of debtor)

in the event that he becomes a bankrupt.

Dated this day of 19 .

Signed in my presence—

Registered Trustee

(Signature, address and occupation of witness)

CERTIFICATE

I certify that

(full name of trustee)

is registered in the Register of Trustees kept in pursuance of sub-section 155 (1) of the Bankruptcy Act 1966.

Dated this day of 19 .

Registrar

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FORM 30c Rule 62b

Bankruptcy Act 1966

CONSENT TO ACT AS TRUSTEE

I,

(full name of trustee)

of

(address of trustee),

being a registered trustee within the meaning of section 5 of the Bankruptcy Act 1966, hereby consent to act as the trustee of the joint and separate estates of such of the debtors

(full names of debtors)

as may become bankrupts or, if only one of them becomes a bankrupt, as trustee of the estate of that debtor.

Dated this day of 19 .

Signed in my presence—

Registered Trustee

(Signature, address and occupation of witness)

CERTIFICATE

I certify that

(full name of trustee)

is registered in the Register of Trustees kept in pursuance of sub-section 155 (1) of the Bankruptcy Act 1966.

Dated this day of 19 .

Registrar

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FORM 30d Rule 62c

Bankruptcy Act 1966

CERTIFICATE OF TRUSTEESHIP

This is to certify that

(name and address of trustee)

is, by force of sub-section 156a (3) of the Bankruptcy Act 1966, the trustee of the estate of

(name of bankrupt),

who became a bankrupt on

(date of bankruptcy).

Dated this day of 1981.

Registrar

(d) by omitting from Form 41 “Official Receiver” and substituting “Trustee”; and

(e) by omitting from Form 42 “(Signature and title of person summoning the meeting)” and substituting “(Trustee)”.

Repeal of Schedule 5

37.The Bankruptcy Rules are amended by omitting Schedule 5.

Schedule 6

38.Schedule 6 to the Bankruptcy Rules is amended by omitting from Items 3 and 4 “(other than a first meeting of creditors)” (wherever occurring).

NOTES

1. Notified in the Commonwealth of Australia Gazette on 30 October 1981.

2. Statutory Rules 1968 No. 2 as amended to date. For previous amendments see Note 2 to Statutory Rules 1981 No. 40 and see also