(2) A person who intends to oppose an application shall, within a
reasonable time before the hearing of the application commences, file
an affidavit setting out the facts, not being facts set out in an
affidavit filed in support of the application, on which he intends to
rely on the hearing of the application.
(3) A person filing an affidavit referred to in subrule (2) shall
cause a copy of the affidavit to be served on the applicant as soon as
practicable after the affidavit has been filed.
(4) Notwithstanding subrule (2), the Court may permit the use, in
opposition to an application, of an affidavit that is filed
subsequently to the commencement of the hearing of the application.
(5) A corporation, other than the Official Trustee, that files a
notice or an affidavit must do so by a solicitor unless the Court or a
judge has excused it from compliance with this subrule.
(6) The Registrar must stamp the notice and any copy upon filing,
and return any copy to the person who filed it.
(7) The person must serve a stamped copy of the notice on the person
to whom it is addressed.
BANKRUPTCY RULES
- REG 107
Affidavit in answer or in reply
107. (1) A person to whom this subrule applies may, before the
hearing of the application or, by leave of the Court, during the
hearing of the application file an affidavit in answer to an affidavit
in support of the application.
(2) Subrule (1) applies:
(a) in the case of an application to the Court sitting in chambers -
to any person affected by the application; or
(b) in any other case - to a person who has filed a notice, in
relation to the application, in accordance with rule 106.
(3) A person filing an affidavit in accordance with subrule (1)
shall cause a copy of the affidavit to be served on the applicant as
soon as practicable after the affidavit has been filed.
(4) A person on whom a copy of an affidavit in answer is served may,
before the hearing of the application or, by leave of the Court,
during the hearing of the application, file an affidavit in reply to
that affidavit.
(5) The person filing an affidavit in reply to an affidavit filed by
another person shall cause a copy of the affidavit in reply to be
served on the other person as soon as practicable after the affidavit
in reply has been filed.
BANKRUPTCY RULES
- REG 108
Amendments
108. (1) Where the Court or the Registrar allows the amendment of a
document, being a written process, proceeding or notice, under section
33 of the Act, the person who filed the document shall amend the
document:
(a) by writing the alteration or addition on the document in red ink
or otherwise in such manner as to distinguish the alteration or
addition from the original matter or any previous amendment; or
(b) by adding to, or interleaving in, the document pages on which
the alteration or addition is written.
(2) When a document is amended, the solicitor for the person who
filed the document shall write at the top of the front page of the
document, particulars of the order allowing the amendment and of the
date on which the amendment is made, in accordance with the following
form:
"Amended the day of , 19 , in pursuance of the order of
dated the day of , 19 .".
(3) A solicitor writing on a document the particulars required by
subrule (2) shall sign his name immediately under those particulars.
BANKRUPTCY RULES
- REG 109
Amendments not effective until served
109. (1) Where a process, proceeding or notice is amended before the
process, proceeding or notice has been served on a person on whom it
is required or intended to be served, service on the person of the
process, proceeding or notice, otherwise than is amended, is not due
service for the purpose of these Rules.
(2) Subject to these Rules and to any order made by the Court, where
a process, proceeding or notice is amended after service of it has
been effected on a person, service of the amended process, proceeding
or notice on the person shall be effected:
(a) if the person has an address for service - by serving a copy of
the amended process, proceeding or notice on the person on the day on
which it is amended or on the next following day; or
(b) in any other case - by serving a copy of the amended process,
proceeding or notice on the person as soon as practicable after the
amendment is made.
BANKRUPTCY RULES
- REG 110
Reply to amended process etc.
110. Where a process, proceeding or notice has been amended, the
person on whom service of a copy of the amended process, proceeding or
notice has been effected shall not file a document in reply to the
first-mentioned process, proceeding or notice but may file a document
in reply to the amended process, proceeding or notice.
BANKRUPTCY RULES
- REG 111
Consequential amendment of document
111. (1) Where a document is amended after a document (in this rule
referred to as "the subsequent document") has been filed in reply to
that document, the person who filed the subsequent document may,
within such time after service of the amended document was effected on
him as is specified in the order allowing the amendment of the
document, amend the subsequent document, without the leave of the
Court or the Registrar, in such manner as he considers desirable.
(2) Rules 108, 109 and 110 apply to and in relation to an amendment
of a document made under subrule (1) in like manner as they apply to
an amendment made to a document by leave of the Court.
BANKRUPTCY RULES
- REG 112
Dispensing with service of amended process
112. The Court may dispense with the service of a process,
proceeding or notice that has been amended on a person on whom the
process, proceeding or notice had been served before its amendment in
such circumstances as it thinks fit or may allow notice of the
amendment to be given to the person in place of service of the amended
process, proceeding or notice.
BANKRUPTCY RULES
- REG 113
Directions as to practice and procedure
113. (1) Where the Court is satisfied that:
(a) the provisions of the Act relating to practice and procedure and
the rules made under the Act do not make provision with respect to the
practice and procedure applicable in the circumstances of a particular
case; or
(b) difficulty arises or doubt exists as to the practice or
procedure applicable in the circumstances of a particular case;
the Court may give such directions with respect to the practice and
procedure to be followed in the case as the Court considers necessary.
(2) Subject to any order made by a court on appeal, an act done or
proceeding taken in accordance with a direction in force under subrule
(1) shall be deemed to have been duly done or taken.
(3) Where a direction given by the Court under subrule (1) is varied
by a court on appeal, any act done or proceeding taken in accordance
with the direction as so varied shall be deemed to have been duly done
or taken.
BANKRUPTCY RULES
- REG 114
Trial by jury
114. (1) Where the Court directs, in accordance with subsection 30
(3) of the Act, the trial of a question of fact to be had before a
jury, the party who desires to have the question tried before a jury
shall reduce the question to writing and submit it to the Court for
the Court's approval.
(2) The Court may:
(a) at any time after it has approved a question but before the
trial commences, allow the question to be amended; or
(b) at any time after the trial has commenced but before the jury
returns its verdict, amend the question;
on such terms as the Court thinks fit.
BANKRUPTCY RULES
- REG 114A
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.
BANKRUPTCY RULES
- REG 114B
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.
BANKRUPTCY RULES
- DIVISION 3
Division 3 - The Registrar
BANKRUPTCY RULES
- REG 115
Records of Court
115. (1) A Registrar has the custody of the following, that is to
say:
(a) the records of the Court that are kept in the custody of the
Registrar;
(b) documents filed with the Registrar;
(c) documents that are, or are ordered to be:
(i) deposited with the Registrar for safe custody; or
(ii) impounded by the Registrar or by the Court.
(2) Records and documents in the custody of the Registrar shall not,
without the permission of the Registrar, be removed from the
Registrar's custody, except:
(a) as provided by subsection 35 (2) of the Act; or
(b) for use by the Court, a Judge or an officer of the Court.
BANKRUPTCY RULES
- REG 116
Sealing of process
116. The Registrar may:
(a) in the case of a summons, order or warrant (other than a warrant
referred to in subsection 36 (2) of the Act), or any other process or
document, that has been issued out of the Federal Court of Bankruptcy
- sign and seal the summons, order, warrant, process or document; and
(b) in the case of a summons, order or warrant (other than a warrant
referred to in subsection 36 (2) of the Act), or any other process or
document, that has been issued out of any other court having
jurisdiction in bankruptcy in the exercise of that jurisdiction -
cause the summons, order, warrant, process or document to be signed
and sealed on behalf of that court and file the summons, order,
warrant, process or document.
BANKRUPTCY RULES
- REG 117
Office copies
117. (1) Subject to subrule (2), where:
(a) a copy of a document filed with a Registrar in Bankruptcy is
lodged with the Registrar;
(b) the copy is a true copy; and
(c) the fees specified in item 4 in Schedule 3 have been paid;
the Registrar shall:
(d) in the case of a document that was filed in connection with a
proceeding in the Federal Court of Bankruptcy - seal the copy; and
(e) in any other case - cause the copy to be sealed on behalf of the
court by whom the document was issued or certify that the copy is a
true copy of the document.
(2) The Registrar may decline to seal, cause to be sealed or certify
a copy of a document if it is not clearly and legibly written or
printed or, in the case of photographic copy or a copy of a like
nature, if it is not approximately the same size as the document of
which it is a copy.
(3) The Registrar may, instead of sealing, causing to be sealed or
certifying a copy of a document lodged with him for the purpose, on
payment of the fees specified in item 1 in Schedule 4, cause a copy of
the document to be made and seal, cause to be sealed or certify, as
the case requires, that copy.
BANKRUPTCY RULES
- REG 118
Proceedings before the Registrar
118. (1) Subject to subrule (2), the provisions of these Rules
relating to proceedings before the Court apply, insofar as they are
capable of application, to and in relation to proceedings under the
Act or under these Rules before the Registrar in like manner as those
provisions apply to and in relation to proceedings before the Court.
(2) Where these Rules make separate provision in relation to
proceedings before the Court sitting in Chambers and the Court sitting
in Court, those provisions apply to and in relation to proceedings
before the Registrar in like manner as they apply to and in relation
to proceedings before the Court sitting in Chambers.
(3) Where a form is specified or referred to in a provision that
applies to and in relation to proceedings before the Registrar, the
form shall be altered in such manner as the circumstances of the case
require for the purpose of rendering it applicable in respect of such
a proceeding.
BANKRUPTCY RULES
- REG 119
Submission of questions of law to Court
119. (1) If, either before or after the Registrar has given his
decision on an application made to him under these Rules, a question
of law arises which the Registrar or a party to the application wishes
to have determined by the Court, the Registrar shall:
(a) state the facts in the form of a special case for the opinion of
the Court; and
(b) refer the special case for hearing and determination by the
Court.
(2) Where a question of law is referred to the Court under subrule
(1), the Registrar may give directions with respect to the giving of
notice of the date on which, and time and place at which, the question
of law will be heard by the Court to the parties to the application
who have an address for service for the purpose of the proceeding to
which the application relates, and the parties shall comply with any
such directions.
(3) Where a question of law referred to the Court under subrule (1)
is heard and determined by the Court, the Court may dispose of the
question of law or refer it back to the Registrar with such directions
as it may think fit.
BANKRUPTCY RULES
- DIVISION 3A
Division 3A - Exercise of powers by certain officials
BANKRUPTCY RULES
- REG 119A
Prescribed time - subsection 31A (6) of the Act
119A. (1) For the purposes of subsection 31A (6) of the Act, the
prescribed time is the period of 21 days after the day on which the
Registrar has exercised any of the powers of the Court pursuant to
subsection 31A (1) of the Act.
(1A) For the purposes of subsection 31A (6) of the Act, the
prescribed time in relation to the Registrar's power under paragraph
31A (1) (o) of the Act is 24 hours after the day on which the
Registrar exercises that power.
(2) Where a party to a proceeding referred to in subsection 31A (6)
of the Act has not applied to the Court to review the exercise of a
power of the Court under subsection 31A (1) within the time prescribed
under subrule (1), further time for such an application may be allowed
by the Court or a Registrar upon such terms as the Court or the
Registrar thinks fit.
(3) The Court or a Registrar may allow further time for an
application referred to in subrule (2) whether or not, when a decision
so to allow that further time is made, the prescribed time referred to
in subrule (1) has expired.
(4) In this Rule, "Registrar" and "the Court" have the same meanings
respectively as in subsection 31A (10) of the Act.
BANKRUPTCY RULES
- DIVISION 4
Division 4 - Service of Process
BANKRUPTCY RULES
- REG 120
Service at address for service
120. (1) Where a person has an address for service in connexion with
a proceeding, service on the person of a document in connexion with
the proceeding may be effected by posting (under prepaid post) the
document as a letter addressed to the person or his solicitor, as the
case may be, at his address for service or by delivering the document
at that address.
(2) Subrule (1) does not apply in relation to the service of a
document service of which is, in accordance with these rules, to be
effected personally.
(3) Where service of a document is effected on a person, in
accordance with subrule (1), by posting the document to the person or
to his solicitor, service of the document shall, unless the contrary
is proved, be deemed to have been effected on the person at the time
when the letter would, in the ordinary course of post, be delivered at
the address to which it is posted.
BANKRUPTCY RULES
- REG 121
Persons under sixteen not to serve documents
121. A document shall be deemed not to have been duly served on a
person in Australia for the purposes of the Act or of these Rules if
the document is delivered to the person in Australia by a person who
has not attained the age of 16 years.
BANKRUPTCY RULES
- REG 122
Proof of personal service of document
122. (1) Where service of a document is effected on a person by
delivering the document or a copy of the document to the person
personally, the due service of the document shall be deemed not to
have been proved by affidavit unless the person who delivered the
document to the person to be served states in an affidavit:
(a) the date on which and the place at which the document was
delivered; and
(b) the means by which he established that the person to whom the
document was delivered was the person required to be served with the
document.
(2) An affidavit of service of a document on a person personally
shall be in accordance with Form 47.
(3) Where:
(a) a document relating to a proceeding is, or is about to be,
delivered to a person for the purpose of effecting service of the
document on the person; and
(b) the person admits to the person who delivered, or is about to
deliver, the document to the first-mentioned person that the first-
mentioned person is:
(i) a specified person referred to in the document; or
(ii) a specified person to whom the proceeding relates;
the admission is evidence that the first-mentioned person is that
specified person.
BANKRUPTCY RULES
- REG 123
Service on companies etc.
123. (1) Where a company, corporation, association, society or body
of persons has a registered office under a law of the Commonwealth, a
State or a Territory, a document may be served on the company,
corporation, association, society or body of persons by leaving it at,
or sending it by post as a prepaid letter to, that registered office.
(2) Where the Court is satisfied that a document has been brought to
the knowledge of a company, corporation, association, society or body
of persons but has not been served in accordance with subrule (1), it
may order that service of the document shall be deemed to have been
effected in accordance with these Rules.
BANKRUPTCY RULES
- DIVISION 5
Division 5 - Judgments and Orders
BANKRUPTCY RULES
- REG 124
Filing of judgments and orders
124. (1) Subject to these Rules, the person on whose application an
order has been made by the Court has the carriage of the order.
(2) The person having the carriage of an order shall, within 7 days
after the making of the order, deliver to the Registrar a draft of the
order for settling by the Registrar.
(3) Subject to subrule (4), the Registrar shall settle a draft order
informally unless a person who appeared before the Court on the
hearing of the application has requested the Registrar to settle the
order formally or the Registrar is of the opinion that the order ought
to be settled formally.
(4) Where an order is made under paragraph 34 (b) of the Act, the
Court may settle the order or may direct the Registrar to settle the
order.
(5) Where the Registrar settles a draft order informally, he shall,
forthwith after settling the draft order, inform the person having the
carriage of the order that he has settled the order and that person
shall then lodge with the Registrar a fair copy of the order as so
settled.
(6) Where an order is required to be settled formally, the Registrar
shall fix a date, time and place for settling it and give notice of
the date, time and place so fixed to the person having the carriage of
the order.
(7) Where notice under subrule (6) is given to a person, the person
shall cause a copy of the draft order and notice of the date, time and
place fixed for settling the draft to be served on each person who
appeared before the Court on the hearing of the application to which
the order relates.
(8) As soon as possible after the Registrar has settled an order
formally, the person having the carriage of the order shall lodge with
the Registrar a fair copy of the order as so settled.
(9) Where the person having the carriage of an order fails to
perform any act that he is required to perform by this rule, within
the time limited for performing that act or, if no time is limited,
within a reasonable time, any other person who appeared on the
hearing of the application to which the order relates, or the
Registrar, may do the act on his behalf.
(10) Where a fair copy of an order as settled by the Registrar is
lodged with the Registrar, the Registrar shall:
(a) if the order was made by the Federal Court of Bankruptcy - sign,
seal and file the order; or
(b) in any other case - cause the order to be signed and sealed as
an order of the court by which it was made, and when it has been so
signed and sealed, file the order.
BANKRUPTCY RULES
- PART XI
PART XI - EVIDENCE
BANKRUPTCY RULES
- DIVISION 1
Division 1 - Witnesses
BANKRUPTCY RULES
- REG 125
Summons to witness
125. (1) The Registrar may, at the request of a prescribed person,
summon a person to attend before the Court on a day and at a time and
place specified in 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.
(2) A summons under subrule (1):
(a) shall be in accordance with Form 48; and
(b) shall be signed and stamped by the Registrar.
(3) A summons for the attendance of a witness to give evidence may
be directed to 2 or more witnesses.
(4) A summons to produce documents shall not be directed to more
than one witness.
(5) A person who has been summoned to attend before the Court as a
witness shall appear and report himself on the day and at the time and
place specified in the summons and then from day to day, unless
excused by the Court.
(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.
BANKRUPTCY RULES
- REG 126
Service of summons
126. (1) Service of a summons on a person named in the summons shall
be effected by delivering the summons to the person personally.
(2) Where a summons is directed to 2 or more witnesses, the summons
delivered to one of the witnesses need not specify the name of any
other witness.
BANKRUPTCY RULES
- REG 127
Conduct money and witnesses' allowances
127. (1) Where a summons issued under section 50, 81, 179B or 212D
of the Act or under rule 125 is served on a person who is not a debtor
or a bankrupt (in this subrule referred to as "the witness"), the
witness is entitled to be paid such sum as conduct money as is
sufficient to pay the reasonable expenses of the witness in travelling
to and from his place of residence to the place where he is required
by the summons to attend and of his residential accommodation at the
last-mentioned place if it is reasonable that he should be provided
with accommodation.
(2) A person, other than a relevant person within the meaning of
section 81 of the Act when summoned under that section, who:
(a) attends to give evidence in a proceeding;
(b) attends to give evidence and produce documents in a proceeding;
or
(c) attends to produce documents in a proceeding;
in accordance with a summons or at the request of a party to the
proceeding is entitled to payment:
(d) by the person on whose behalf he is summoned to give evidence or
at whose request he attends; and
(e) whether or not he is called to give evidence;
of such fees, and allowances for expenses in respect of his
attendance, in accordance with the items relating to witnesses'
expenses in the Second Schedule to the Federal Court Rules as in force
from time to time, as are fixed by the Court or, where he was summoned
to appear before the Registrar, by the Registrar.
(3) Where the Court or the Registrar, as the case may be, determines
that such higher amount as the Court or the Registrar fixes is payable
to a person referred to in subrule (2), that higher amount is payable
in lieu of the amount payable in accordance with that subrule.
BANKRUPTCY RULES
- REG 128
Compliance with summons to produce documents
128. Where a summons under rule 125 is served on an officer of a
Department of State of the Commonwealth or of a State or on an officer
of an authority of the Commonwealth or a State requiring the officer
to produce documents in the custody of the Department or the
authority, as the case may be, the officer shall be deemed to have
complied with the summons if, before the time specified in the
summons, he causes the documents specified in the summons to be lodged
with the Registrar for the District specified in the summons.
BANKRUPTCY RULES
- REG 129
Application for summons under subsection 81 (1) of the Act
129. (1) Unless the person to be examined is a relevant person
within the meaning of section 81 of the Act, an application to the
Court or the Registrar for a summons under subsection 81 (1) of the
Act must:
(a) be in writing;
(b) identify the person whom it is sought to examine, and the
bankruptcy in relation to which it is sought to examine the person;
and
(c) if the summons applied for is to contain a requirement mentioned
in subsection 81 (1B) of the Act - specify the books or classes of
books that the person is to produce at the examination;
(d) be supported by an affidavit setting out:
(i) the enquiries that have been made concerning the subject-
matter of the proposed examination and, where applicable, the reason
for requiring the production of any books or classes of books;
(ii) details of the request made to the person to provide the
required information and, where applicable, to produce the books or
classes of books for inspection, and the result or, where no request
has been made, the reason; and
(iii) the circumstances of any refusal or failure of the person to
co-operate in complying with the request.
(2) If the application is of a kind referred to in paragraph (1)
(c), the applicant must serve on the person to be examined:
(a) a copy of the application; and
(b) a copy of the affidavit in support of the application; and
(c) a notice setting out the effect of subrule (2A).
(2A) The person to be examined may file with the Registrar, within 7
days of being served with the documents referred to in subrule (2):
(a) a notice objecting to the production of:
(i) the books or classes of books referred to in the application
for a summons; or
(ii) any of the books or classes of books that are referred to in
the notice; and
(b) an affidavit that states the grounds of the objection.
(3) The Registrar shall consider any documents filed under subrule
(2A) and, if the Registrar issues a summons in the matter under
subsection 81 (1) of the Act, he or she shall either grant or dismiss
the application for a direction, and shall in either case record and
file a statement of reasons.
(4) When the Registrar has issued, or refused to issue, a summons
under subsection 81 (1) of the Act, he or she shall provide, upon
request by the applicant or the person whose examination was
requested, a statement of reasons.
BANKRUPTCY RULES
- REG 129A
Summons under subsection 81 (1) of the Act
129A. (1) Unless the person to be examined is a relevant person
within the meaning of section 81 of the Act, a summons under
subsection 81 (1) of the Act must:
(a) be in accordance with Form 49;
(b) be signed and stamped by the Registrar; and
(c) be served personally on the person to be examined.
(2) Where the summons contains a requirement mentioned in subsection
81 (1B) of the Act, the Registrar may:
(a) require the person being examined to produce specified books, or
classes of books, to the Court or a person, on a day and at a time and
place, specified in the direction;
(b) order that a specified person, or specified persons, be at
liberty to inspect, and copy or make extracts of, all or any specified
part or parts of the books produced in accordance with the direction;
and
(c) give directions concerning the marking for identification, and
the retention or disposal, of the books produced.
(3) The Court, the Registrar or a magistrate shall not commence an
examination under section 81 of the Act unless:
(a) the Court, the Registrar or magistrate is satisfied by evidence:
(i) that the summons was served personally on the person to be
examined; or
(ii) that the summons came to the notice of the person and that
the person is not likely to be prejudiced by the absence of due
service; or
(b) the person does not object to being examined.
(4) Where the person sought to be examined fails to appear in
accordance with the summons, the Court, the Registrar or magistrate
may:
(a) hear submissions by or on behalf of any person entitled to
appear or be represented at the examination;
(b) either:
(i) adjourn the examination to a fixed day and time, or generally;
or
(ii) discharge the summons; and
(c) if the Court, the Registrar or magistrate is satisfied by
evidence that the summons was served on the person to be examined in
accordance with subrule (1), and the Court, the Registrar or
magistrate does not discharge the summons - issue a warrant for the
arrest of the person.
BANKRUPTCY RULES
- REG 129AA
Summons to relevant person under subsection 81 (1) of the Act
129AA. (1) If the person to be examined is a relevant person within
the meaning of section 81 of the Act, an application to the Registrar
for a summons under subsection 81 (1) of the Act must:
(a) be in writing; and
(b) identify the person; and
(c) if the summons applied for is to contain the requirement
mentioned in subsection 81 (1B) of the Act - specify the books or the
classes of books that the person is to produce at the examination.
(2) When the Registrar receives an application, he or she may:
(a) issue a summons, in accordance with Form 49; and
(b) if the summons contains a requirement mentioned in subsection 81
(1B) of the Act:
(i) direct the relevant person to produce specified books, or
classes of books, at the examination; and
(ii) order that a specified person may inspect, and copy or make
extracts of, all or any specified part of the books produced in
accordance with the direction; and
(iii) give directions about the marking for identification, and
the retention or disposal, of the books produced.
(3) If the Registrar issues a summons under subrule (2), he or she
must:
(a) sign and stamp the summons; and
(b) send it to the applicant for service on the relevant person.
(4) When the applicant receives a summons forwarded to him or her
under subrule (3), he or she must:
(a) serve the summons on the relevant person; and
(b) give notice, in writing, of the date, time and place fixed for
the examination to each creditor of the relevant person of whose debt
the applicant has knowledge.
(5) If the relevant person fails to appear in accordance with the
summons, the Court, the Registrar or magistrate may:
(a) adjourn the examination to another day, time or place, or
generally; or
(b) discharge the summons; or
(c) if the Court, the Registrar or magistrate:
(i) is satisfied that the summons was served on the relevant
person by personal service or in accordance with subsection 309 (1) of
the Act; and
(ii) does not discharge the summons;
issue a warrant for the arrest of the person.
(NOTE: Under subsection 81 (1) of the Act, a "relevant person" is a
person who becomes a bankrupt.)
BANKRUPTCY RULES
- REG 129B
Application during examination for production of books
129B. (1) During an examination, the applicant for the examination
or any person who is represented, or is participating in person, at
the examination may apply orally or in writing to the Court, the
Registrar or magistrate under subsection 81 (1) of the Act for a
summons in relation to the person being examined.
(2) Where an application is made under subrule (1), the Court, the
Registrar or magistrate may hear:
(a) the applicant for the examination;
(b) if that applicant is not the person applying for the direction -
that person; and
(c) the person being examined;
on the application, and may:
(d) require the person being examined to produce specified books, or
classes of books, to a person, on a day and at a time and place,
specified in the direction;
(e) adjourn the examination in order to give the person being
examined a reasonable period of time to comply with the direction;
(f) order that a specified person, or specified persons, be at
liberty to inspect, and copy or make extracts of, all or any specified
part or parts of the books produced in accordance with the direction;
and
(g) give directions concerning the marking for identification, and
the retention or disposal, of the books produced.
BANKRUPTCY RULES
- REG 129C
Notice of adjournment of examination
129C. Where an examination under section 81 of the Act is adjourned
otherwise than to the next sitting day, the applicant shall give to
the person being examined and to any person who has been represented,
or who has participated in person, at the examination notice in
writing of the place, date and time fixed for the resumption of the
examination.
BANKRUPTCY RULES
- REG 130
Registrar may settle commission to take evidence
130. Where an order is made under paragraph 34 (b) of the Act, the
Court may settle the form of the commission that is to be issued or
direct that the form of that commission be settled by the Registrar.
BANKRUPTCY RULES
- REG 131
Transcript of evidence
131. For the purposes of subsections 255 (6) and (9) of the Act, a
transcript of any evidence, argument, ruling or direction is to be
taken to have been certified as prescribed:
(a) if it bears the signature and stamp of the Registrar; or
(b) in the case of a document purporting to be a transcript of an
examination under section 50, 81, 179A or 212D of the Act - if it
bears an endorsement, signed by the applicant for the examination, in
the words:
"This document is a transcript of an examination of (name of person
examined) on the application of ( name of applicant) conducted before
(name of Judge, Registrar or magistrate) on (date or dates of
examination).";
or in substantially similar words.
BANKRUPTCY RULES
- DIVISION 2
Division 2 - Affidavits
BANKRUPTCY RULES
- REG 132
Form of affidavit
132. (1) An affidavit shall:
(a) be drawn up in the first person;
(b) state the full name, address and occupation of the deponent;
(c) state the source of the information of any facts or
circumstances set out in the affidavit that are not within the
deponent's own knowledge; and
(d) as far as practicable, be divided into paragraphs.
(2) Where an affidavit is divided into paragraphs in accordance with
paragraph (1) (d):
(a) each paragraph shall, as far as practicable, be confined to a
distinct part of the subject of the affidavit; and
(b) the paragraphs shall be numbered consecutively.
(3) Where reference is made to a date in an affidavit, the ordinal
number of the day of the month, or the ordinal number of the day of
the month and the year, as the case may be, shall be written in
figures.
(4) Where reference is made to a sum of money in an affidavit, the
sum of money shall be written in figures and symbols.
BANKRUPTCY RULES
- REG 133
Alterations
133. Where an affidavit that is filed in connexion with a proceeding
contains, in the jurat or in the body of the affidavit, an
interlineation, alteration or erasure, the affidavit shall not,
without leave of the Court or the Registrar, as the case may be, be
used in the proceeding unless:
(a) in the case of an interlineation or alteration, not being an
alteration by erasure - the interlineation or alteration is initialled
by the person before whom the affidavit is sworn; or
(b) in the case of an erasure - the erasure is initialled by the
person before whom the affidavit is sworn and any words or figures
that appear, at the time the affidavit is sworn, to be written over
the erasure, are written in the margin of the affidavit and initialled
by that person.
BANKRUPTCY RULES
- REG 134
Abuse of process
134. (1) The Court may, on the application of a party to
proceedings, order that scandalous, irrelevant or objectionable matter
included in a document filed in connexion with proceedings be struck
out and may further order that the costs of the application be paid as
between solicitor and client by the person by or on whose behalf the
document was filed.
(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.
BANKRUPTCY RULES
- REG 135
Cross-examination of deponent
135. (1) Where a party to a proceeding has served on another party
to the proceeding a copy of an affidavit filed by that first-mentioned
party in connexion with the proceeding, the second-mentioned party
may, a reasonable time before the date fixed for the hearing of the
proceeding, serve on the first-mentioned party a notice in writing
requiring the production of the deponent for cross-examination on the
hearing.
(2) Where a notice under subrule (1) has been served on a party who
filed an affidavit, the affidavit shall not be used as evidence unless
the deponent is produced for cross-examination before the Court or the
Court gives special leave to use the affidavit.
(3) The party producing a deponent for cross-examination is not
entitled to demand or receive the expenses of producing the deponent,
in the first instance, from the party requiring the production of the
deponent.
(4) The party on whom a notice under subrule (1) has been served may
compel the attendance of the deponent to whom the notice relates for
cross-examination in the same way as he might compel the attendance of
a witness to give evidence before the Court.
BANKRUPTCY RULES
- REG 136
Presumption of proper execution of affidavits
136. Where an affidavit purports to have been sworn at a place
before a person before whom an affidavit is permitted by section 262
of the Act to be sworn, the affidavit shall, without proof of the
signature of that person or of his title, be deemed, unless the
contrary is proved, to have been sworn before such a person.
BANKRUPTCY RULES
- REG 137
Affirmations
137. Where a deponent of an affidavit objects to swearing on oath to
the truth of the statements contained in the affidavit, he may
solemnly and sincerely declare and affirm that he objects to swearing
an oath and that the statements contained in the affidavit are true,
and the introductory words of the affidavit, and the jurat to the
affidavit, shall be altered accordingly.
BANKRUPTCY RULES
- REG 138
Defects in affidavits
138. (1) Where, in an affidavit filed for the purpose of a
proceeding, there is a defect, by misdescription of parties or
deponents or otherwise, in the title or jurat to the affidavit, or
there is any irregularity in the form of the affidavit, the Court by
which the proceeding is tried, or the Registrar, as the case may be,
may direct that a memorandum be written on the affidavit authorizing
the use of the affidavit notwithstanding the defect or irregularity,
and the affidavit may then be used in the proceeding.
(1A) A memorandum written on an affidavit in pursuance of subrule
(1) shall be stamped by the Registrar.
(2) An affidavit to be used in a proceeding shall, unless the Court
or the Registrar, as the case may be, otherwise directs, be filed
before it is so used.
BANKRUPTCY RULES
- REG 139
Form of attestation clause where deponent is illiterate or blind
139. (1) Where a person before whom an affidavit is to be made has
reason to believe that the deponent is illiterate or blind, that
person shall, before the deponent is sworn:
(a) ensure that the affidavit is read to the deponent in the
presence of that person;
(b) satisfy himself that the deponent appears to understand the
matter contained in the affidavit; and
(c) ensure that the deponent signs the affidavit (whether by making
his mark or otherwise) in the presence of that person;
and, after the deponent is sworn, certify, in the jurat to the
affidavit, that the affidavit was so read and signed and that the
deponent appeared to understand the matter contained in the affidavit.
(2) Where an affidavit that is sworn by a person who is illiterate
or blind does not bear the certificate referred to in subrule (1) in
the jurat, the affidavit is not admissible in evidence in a proceeding
unless the Court or the Registrar, as the case may be, is satisfied
that the affidavit was read over to the deponent and that the deponent
appeared to understand the matter contained in the affidavit.
BANKRUPTCY RULES
- REG 140
Form of attestation clause where there are two or more deponents
140. (1) Subject to subrule (2), where an affidavit is sworn by two
or more deponents, the full name of each deponent who swears before a
person shall be inserted in the attestation clause relating to the
swearing of the affidavit by that deponent or those deponents.
(2) Where an affidavit referred to in subrule (1) is made by all the
deponents at the same time before the same person, the attestation
clause may specify that the affidavit was made by all of the deponents
named in the affidavit.
BANKRUPTCY RULES
- REG 141
Extracts from documents
141. (1) Instead of annexing a document to an affidavit or marking a
document an exhibit to an affidavit, the relevant portion of the
document may be included in the body of the affidavit.
(2) Where a portion of a document is included in the body of an
affidavit, the party filing the affidavit shall produce the document
to the Court or the Registrar, as the case may be, whenever the party
uses the affidavit in a proceeding.
BANKRUPTCY RULES
- REG 141A
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.
BANKRUPTCY RULES
- DIVISION 3
Division 3 - Interrogatories, Discovery, Inspection and Admissions
BANKRUPTCY RULES
- REG 142
Interrogatories
142. (1) A party to a proceeding in the Court may apply to the Court
for leave to deliver interrogatories in writing for the examination of
another party to the proceeding.
(2) A party to a proceeding in the Court may apply to the Court for
leave to deliver further interrogatories arising from the answers
given by a party to previous interrogatories.
(3) Where the Court gives leave, in accordance with this rule, to
deliver interrogatories or further interrogatories, a copy of the
interrogatories that are to be delivered shall be filed before the
interrogatories are delivered.
(4) An application under subrule (1) may be made ex parte.
(5) The Court may, on an application under this rule, give leave to
the applicant to deliver interrogatories or further interrogatories to
be answered by a specified officer, servant or agent of a body
corporate or body of persons.
BANKRUPTCY RULES
- REG 143
Affidavit in answer
143. (1) Interrogatories shall be answered by filing an affidavit in
answer and serving a copy of the affidavit on the person who delivered
the interrogatories within the period fixed by the Court when giving
leave to deliver the interrogatories or, if a period was not so fixed,
within a period of 14 days after delivery of the interrogatories.
(2) Where a body corporate or other body of persons is interrogated,
the affidavit in answer may, subject to an order made by the Court in
accordance with subrule 142 (5), be made by the secretary or other
proper officer or by a servant or agent of the body.
BANKRUPTCY RULES
- REG 144
Affidavit in answer may include objections
144. (1) Objection to answering a question included in
interrogatories may be taken in the affidavit in answer to the
interrogatories filed and served in accordance with subrule 143 (1):
(a) on the ground that the question is scandalous, irrelevant,
unreasonable, prolix, oppressive or unnecessary;
(b) on the ground that the matter inquired into by the question is
not sufficiently material at that stage; or
(c) on any other ground.
(2) Where objection is taken in accordance with subrule (1) the
grounds of objection shall be set out in the affidavit in reply.
BANKRUPTCY RULES
- REG 145
Order to answer or to answer further
145. Where a person objects to answering a question, or refuses or
omits to answer, within the period required by subrule 143 (1), a
question included in interrogatories delivered in accordance with this
Division or where a person answers interrogatories so delivered
insufficiently, the Court may, on the application of the person who
delivered the interrogatories, require the first-mentioned person to
answer or to answer further, as the case may be, either by affidavit
or on oral examination.
BANKRUPTCY RULES
- REG 146
Discovery
146. A party to a proceeding in the Court may, not later than 14
days before the date set down for the hearing of the proceeding, serve
on another party to the proceeding a notice of discovery, in
accordance with Form 50, requiring the last-mentioned party to make
discovery on oath of the documents that are or have been in his
possession, custody or power relating to a matter in question in the
proceeding.
BANKRUPTCY RULES
- REG 147
Affidavit of discovery
147. (1) Where a party to a proceeding is served with a notice of
discovery:
(a) if the party is a body corporate or other body of persons - the
secretary or other proper officer or servant or agent of the body; or
(b) in any other case - the party;
shall make discovery of documents by filing an affidavit of discovery,
and serving a copy of the affidavit on the party who caused the notice
of discovery to be served on him, not later than 10 days after service
of the notice on him.
(2) A party's affidavit of discovery shall:
(a) specify the documents relating to matters in question in the
proceeding that are in the possession, custody or power of the party;
(b) specify the documents relating to matters in question in the
proceeding that are not but have been in the possession, custody or
power of the party and state, to the best of the knowledge and belief
of the party, whether they are still in existence and, if so, who has
possession of them;
(c) specify the documents that he objects to producing, and the
grounds of his objection to producing them;
(d) state that he has not at the time of swearing the affidavit and
has never had in his possession, custody or power, or in the
possession, custody or power of a solicitor, agent or other person on
his behalf:
(i) any book that relates to matters in question in the proceeding
or in which an entry relating to such a matter has been made; or
(ii) a copy of, or an extract from, any such book;
that is not specified or referred to in the affidavit; and
(e) specify a reasonable time and place as the time and place at
which the documents that the party does not object to producing may be
inspected.
(3) In an affidavit of discovery, it is not necessary to specify
each letter from a person to another person, but it is sufficient to
specify the number of letters from the person to the other person and
the dates of the first such letter and the last such letter,
respectively.
(4) Where the specification in an affidavit of discovery of
documents in respect of which privilege is claimed would derogate from
the privilege attached to the documents, it is not necessary to
specify each of the documents in the affidavit but it is sufficient
if:
(a) the documents are tied in a bundle that is marked as an exhibit
to the affidavit and are referred to in the affidavit as the documents
in that bundle;
(b) the number of documents in that bundle is stated in the
affidavit; and
(c) the documents in that bundle are numbered consecutively and each
of those documents is initialled by the person before whom the
affidavit is sworn.
BANKRUPTCY RULES
- REG 148
Order for discovery
148. (1) Upon application made to the Court by a party to a
proceeding, the Court may make such order for the filing of an
affidavit of discovery or a further affidavit of discovery as the
Court considers necessary in order to dispose fairly of the matters in
question or to save costs in the proceedings.
(2) Where an order has been made requiring a party to a proceeding
to file an affidavit of discovery, the party shall, within 10 days
after the date of the order or within such other time as the Court
orders, file the affidavit and serve a copy of the affidavit on the
applicant for the order.
BANKRUPTCY RULES
- REG 149
Failure to discover document
149. Where:
(a) a party to a proceeding has filed an affidavit of discovery;
(b) a document relating to matters in question in the proceeding
was, at the time the party swore the affidavit, in the possession,
custody or power of the party or such a document was not at that time,
but had been, in the possession, custody or power of the party; and
(c) the document was not specified or referred to in that affidavit
of discovery or in another affidavit of discovery filed by the party
in pursuance of an order of the Court;
the party is not entitled, except by leave of the Court, to put the
document or a copy of the document in evidence, or to furnish or cause
to be furnished evidence of the document, at the trial of the
proceeding.
BANKRUPTCY RULES
- REG 150
Inspection of documents
150. (1) Subject to subrule (2), a party to a proceeding may, by
notice in writing to another party, request the other party to
produce, for inspection by the party giving the notice, a document
specified in the notice, being a document that is referred to in a
petition, application to the Court, affidavit or other document filed
on behalf of that other party in connexion with the proceeding.
(2) A document referred to in an affidavit of discovery filed on
behalf of a party shall not be specified in a notice given to the
party under subrule (1) if, in the affidavit, the party:
(a) objected to producing the document on a ground stated in the
affidavit; or
(b) stated that the document was not in his possession, custody or
power.
(3) A party to whom a notice under subrule (1) has been given shall,
within 4 days after receipt of the notice, specify in writing to the
party who gave the notice:
(a) the ground on which he objects to the production of a document
specified in the notice; or
(b) the date on which and the time and place at which he will
produce the document for inspection.
(4) A document produced for inspection in pursuance of a notice
under subrule (1) may be inspected and copied by the party to whom it
is produced or by his solicitor.
(5) Where a party to a proceeding to whom a notice to produce a
document has been given under subrule (1) fails to produce the
document for inspection and copying, the party is not entitled, except
by leave of the Court, to put the document or a copy of the document
in evidence, or to furnish or cause to be furnished evidence of the
document, at the trial of the proceeding.
BANKRUPTCY RULES
- REG 151
Notice to admit documents
151. (1) A party to a proceeding may, at any time not less than 5
days before the date fixed for the trial of the proceeding, by notice,
in accordance with Form 51, served on another party to the proceeding,
call upon that other party to make the admissions with respect to a
document that are indicated in that notice, and that other party may,
by notice served on the first-mentioned party, make such of those
admissions as he is willing to make.
(2) If the other party desires to challenge the authenticity of the
document, the party shall, before the trial of the proceeding, serve
on the party giving the notice a notice that he does not admit the
document and requires it to be proved at the trial.
(3) If the other party refuses or fails to serve a notice under
subrule (2) within the time prescribed by that subrule, and fails to
serve, before the trial of the proceeding, a notice under subrule (1),
the party shall be deemed to have made the admission indicated in the
notice served on him, unless the Court otherwise orders.
(4) Where a party to a proceeding does not admit a document after
service on him of a notice under subrule (1), the costs of proving the
document shall, unless the Court certifies that the refusal to admit
was reasonable, be paid by the party.
(5) Where a notice to admit a document has not been given by a party
to a proceeding, the party is not entitled to the costs of proving the
document unless the taxing officer is of the opinion that the omission
to give the notice saved expense.
(6) An admission made or deemed to have been made under this rule
with respect to a document does not prevent the party who made or is
deemed to have made the admission from objecting to the admission of
the document in evidence on a ground that is not inconsistent with his
admission.
(7) A party to a proceeding who has made or is to be deemed to have
made an admission with respect to a document under this rule may, by
leave of the Court given on such terms as the Court thinks fit, amend
or withdraw the admission.
BANKRUPTCY RULES
- REG 152
Notice to admit facts
152. (1) Subject to subrule (5), a party to a proceeding may, at any
time not later than five days before the date fixed for the trial of
the proceeding, by notice in writing served on another party to the
proceeding, call upon the other party to admit, for the purpose of the
proceeding, any specific fact or facts mentioned in the notice, and
that other party may, by notice in writing, admit the fact or any of
those facts.
(2) If the party on whom a notice to admit has been served refuses
or fails to admit in writing a fact mentioned in the notice within 2
days before the date fixed for the trial of the proceeding, the Court
may order that party to pay the costs of proving the fact.
(3) An admission of a party to a proceeding in pursuance of a notice
to admit served under subrule (1) shall be deemed to be made only for
the purpose of the proceeding and shall not be used:
(a) against the party in any other proceeding; or
(b) in favour of any person other than the party giving the notice.
(4) The Court may at any time allow the party to amend or withdraw
an admission made under this rule upon such terms as the Court thinks
fit.
(5) Nothing in this rule shall be deemed to authorize a party to a
proceeding to call upon another party to admit a fact which that other
party has denied in a document filed in connexion with the proceeding.
(6) A notice referred to in subrule (1) shall be in accordance with
Form 52 and an admission of a fact in answer to such notice shall be
in accordance with Form 53.
(7) An admission made under this rule with respect to a fact does
not prevent the party who made the admission from objecting to the
admission of the fact in evidence on a ground that is not inconsistent
with his admission.
BANKRUPTCY RULES
- REG 153
Affidavit of signature of admission
153. An affidavit by the solicitor representing a party, or by a
clerk of that solicitor, of the due signature of admissions made in
pursuance of a notice to admit documents or facts is sufficient
evidence of those admissions, if that evidence is required.
BANKRUPTCY RULES
- REG 154
Notice to produce documents
154. (1) A party to a proceeding may, by notice in writing served on
another party to the proceeding not less than 5 days before the date
set down for the hearing of the proceeding, require the other party to
produce, at the trial of the proceeding, a document specified in the
notice, being a document that is in the possession, custody or power
of that other party.
(2) A notice referred to in subrule (1) shall be in accordance with
Form 54.
BANKRUPTCY RULES
- DIVISION 4
Division 4 - Inquiries and Accounts
BANKRUPTCY RULES
- REG 155
Verification of accounts
155. (1) Where the Court directs, under subsection 30 (2) of the
Act, that an account be taken, the person whose account is to be taken
shall, unless the Court otherwise orders, make out the account and
verify it by affidavit.
(2) The account shall be exhibited to the affidavit verifying the
account and shall be filed with the affidavit.
(3) The items on each side of the account shall be numbered
consecutively.
BANKRUPTCY RULES
- REG 156
Power of Registrar to summon witnesses
156. (1) Where the Court directs inquiries to be made or accounts to
be taken by the Registrar or by another person:
(a) if the inquiries are to be made or accounts are to be taken by
the Registrar - the Registrar may, of his own motion, summon a person
to attend before the Registrar; or
(b) in any other case - the Registrar may, at the request of the
person by whom the inquiries are directed to be made or the accounts
are to be taken, summon a person to attend before the person at whose
request the summons is issued;
on a day and at a time and place specified in 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.
(2) A summons under subrule (1):
(a) shall be in accordance with Form 48; and
(b) shall be signed and stamped by the Registrar.
(3) Service of a summons under subrule (1) shall be effected on a
person by serving the summons on the person personally.
BANKRUPTCY RULES
- REG 157
Duty of witness to continue in attendance
157. A person who has been summoned to attend before another person
under rule 156 shall appear and report himself on the day and at the
time and place specified in the summons and then from day to day,
unless excused by that last-mentioned person.
BANKRUPTCY RULES
- PART XII
PART XII - REVIEW AND APPEALS
BANKRUPTCY RULES
- REG 158
Review of order, direction or act of Registrar
158. An application under subsection 14 (5) of the Act may be made
within 21 days from the date on which the order, direction or act
sought to be reviewed was made, given or done.
BANKRUPTCY RULES
- PART XIII
PART XIII - TAXATION OF COSTS
BANKRUPTCY RULES
- REG 160
Application for order for costs
160. Where a party to, or a person affected by, a proceeding who did
not, at the time when the proceeding was disposed of by the Court,
make application for an order for costs in the proceeding makes such
an application to the Court, the party or person shall serve the
application:
(a) if a sequestration order was made in the proceeding - on the
trustee of the bankrupt; or
(b) in any other case - on each other party or each party, as the
case may be, to the proceeding.
BANKRUPTCY RULES
- REG 161
Form of bill of costs
161. (1) A bill of costs:
(a) shall be written on one side only of the paper with a margin
upon one side of each sheet; and
(b) subject to subrule (2) and to subrule 162 (3) shall be so
prepared that:
(i) the items are numbered consecutively;
(ii) there is specified in relation to each item the date on which
the work to which the item refers was done; and
(iii) professional charges and disbursements, respectively, are
shown separately.
(2) Subrule (1) applies in relation to a bill of costs for a gross
sum as if subparagraphs (1) (b) (i) and (ii) had been omitted.
BANKRUPTCY RULES
- REG 161A
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 $2,000 is prescribed.
BANKRUPTCY RULES
- REG 161B
Official Receiver's charges and fees
161B. (1) For the purposes of subsection 163A (2) of the Act, the
following fees are prescribed for the exercise of a power under the
Act, these Rules or regulations made under the Act (other than a power
referred to in subrule (4) or (5)) by the Official Receiver
personally, at the request of the trustee of the estate of a bankrupt:
(a) if the Official Receiver is a Band 1 officer in the Senior
Executive Service of the Australian Public Service, or an officer of a
higher classification - $200 for each hour, or part of an hour, during
which the power is exercised;
(b) if the Official Receiver is an Insolvency and Trustee Officer
Grade 2 in the Australian Public Service, or an officer of an
equivalent or higher classification who is not referred to in
paragraph (a) - $135 for each hour, or part of an hour, during which
the power is exercised.
(2) For the purposes of subsection 163A (2) of the Act, the
following fees are prescribed for the exercise of a power under the
Act, these Rules or regulations made under the Act (other than a power
referred to in subrule (4) or (5)) by an officer assisting the
Official Receiver for the purposes of subsection 15 (1) of the Act, at
the request of the trustee of the estate of a bankrupt:
(a) if the officer is a Band 1 officer in the Senior Executive
Service of the Australian Public Service, or an officer of a higher
classification - $200 for each hour, or part of an hour, during which
the power is exercised;
(b) if the officer is an Insolvency and Trustee Officer Grade 2 in
the Australian Public Service, or an officer of an equivalent or
higher classification who is not referred to in paragraph (a) - $135
for each hour, or part of an hour, during which the power is
exercised;
(c) if the officer is an Insolvency and Trustee Officer Grade 1 in
the Australian Public Service, or an officer of an equivalent or lower
classification - $100 for each hour, or part of an hour, during which
the power is exercised.
(3) For the purposes of subrule (1), a person who for the time being
performs the duties of an office of a particular classification in the
Australian Public Service while acting as Official Receiver is taken
to be an officer of that classification.
BANKRUPTCY RULES
- REG 162
Scale of costs
162. (1) Subject to this rule and except where otherwise ordered, in
all proceedings, solicitors are entitled to charge and be allowed
costs as set forth in Schedule 3.
(2) Where a sequestration order is made in a proceeding instituted
by a petition in which non-compliance with a bankruptcy notice is
specified as the act of bankruptcy or one of the acts of bankruptcy
committed by the debtor, 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, $1091, and, if the petitioning
creditor has been granted his costs of an adjournment of the
proceeding, a further amount in respect of that adjournment:
(a) if counsel attended on the hearing when the proceeding was
adjourned - of $97; or
(b) in any other case - of $109.
(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 $939, and, if the
petitioning creditor has been granted his or her costs of an
adjournment of the proceeding, a further amount in respect of that
adjournment:
(a) if counsel attended on the hearing when the proceeding was
adjourned - of $97; or
(b) in any other case - $109.
(2B) The costs specified in this rule and the costs specified in
Schedule 3, being costs incurred on or after the commencement of this
subrule, are increased by 9.01%.
(3) Where a solicitor brings in a bill of costs under subrule (2) or
(2A), the solicitor is not required:
(a) to itemize details of the work involved or services performed;
or
(b) to attend or cause a clerk to attend on the taxing of the bill.
(4) Where:
(a) a solicitor for a trustee represents the trustee in a proceeding
in a court other than a court having jurisdiction in bankruptcy under
the Act; and
(b) the solicitor's costs in respect of the proceeding are to be
taxed under section 167 of the Act;
the solicitor is entitled to charge and be allowed costs in accordance
with the scale of costs applicable in the court in which the
proceeding was instituted or, if there is no scale of costs so
applicable, such costs as are reasonable having regard to the work
involved.
(5) Where a solicitor's costs relating to conveyancing work
performed by the solicitor for a trustee are to be taxed under section
167 of the Act, the solicitor is entitled to charge and be allowed
costs in accordance with the scale of solicitors' costs applicable to
conveyancing work in the State or Territory where the property to
which the work relates is situated.
BANKRUPTCY RULES
- REG 163
Appointment to tax bill
163. (1) A bill of costs shall be filed before it is taxed.
(2) Where a solicitor files a bill of costs in which he seeks to be
allowed costs under subrule 162 (2):
(a) the taxing officer shall:
(i) inform the trustee that the bill has been lodged for taxing
and may be inspected at the office of the Registrar; and
(ii) afford the trustee an opportunity of inspecting the bill and
informing him whether or not he requires a time to be fixed for taxing
the bill; and
(b) the taxing officer shall not appoint a time for taxing the bill
unless the trustee requires him to do so or the taxing officer is of
the opinion that the solicitor who brought in the bill should be
afforded an opportunity of being present at the taxation of the bill.
(3) Where the taxing officer does not appoint a time for taxing a
bill referred to in subrule (2), the taxing officer shall tax the bill
in the absence of the solicitor who brought in the bill and then
inform that solicitor of the amount allowed on the taxing of the bill.
(4) Where a bill of costs, not being a bill referred to in subrule
(2), is filed, the taxing officer shall appoint a date, time and place
for the taxing of the bill.
(5) When the taxing officer appoints a date, time and place for the
taxing of a bill:
(a) the taxing officer shall give notice of the date, time and place
so appointed to the person who filed the bill; and
(b) the person who filed the bill shall cause a copy of the bill and
notice of the date, time and place so appointed to be served:
(i) if the bill relates to a proceeding in which a sequestration
order was made or relates to a bankrupt - on the trustee of the
bankrupt; or
(ii) in any other case - on each other party to the proceeding;
not less than 5 days before the day appointed for taxing the bill.
(6) A party on whom a bill of costs is served may, by notice, object
to any item in the bill.
(7) The notice must:
(a) list each item or part of an item in the bill that is objected
to; and
(b) state briefly the nature and grounds of objection to each item
or part of an item objected to.
(8) The party objecting to the bill must file the notice and serve
it on each interested party not less than 2 clear days before the day
appointed for taxing the bill.
BANKRUPTCY RULES
- REG 164
Disallowance of unreasonable etc. costs
164. (1) The taxing officer may, on the taxation of a bill of costs,
disallow in whole or in part fees, disbursements or charges that, in
his opinion, were incurred or increased:
(a) by a payment of unusually high fees to counsel or unusually high
charges or expenses to witnesses or other persons;
(b) improperly, unreasonably, negligently or unnecessarily; or
(c) in any other unusual manner.
(1A) Where:
(a) separate petitions are presented by a creditor against each of 2
of more joint debtors; and
(b) the proceedings in respect of the petitions are subsequently
consolidated by the Court in pursuance of section 53 of the Act;
the taxing officer may, on taxation of a bill of costs in connection
with proceedings in respect of the petition, disallow so much of the
costs as he considers were unnecessarily incurred by the institution
of separate proceedings.
(2) Where the same solicitor acts in a proceeding for 2 or more
parties in the same interest, the taxing officer may, on the taxation
of the bill of costs of the solicitor, disallow so much of the costs
as he considers were unnecessarily incurred by the delivery or service
of separate papers or the institution of separate proceedings.
(3) Where, in the opinion of the taxing officer, 2 or more documents
could have been served at the same time, he may, on the taxation of a
bill of costs, allow only one fee in respect of the service of those
documents.
BANKRUPTCY RULES
- REG 165
General provisions in connection with drawing and perusing certain
documents
165. (1) Where a sum is allowed on taxation of a bill of costs in
respect of the drawing of a document by a solicitor, a sum is not to
be allowed in respect of a copy made for the use of the solicitor or
his agent or for inclusion in a brief to counsel to settle the
document.
(2) Items 10, 11 and 12 in Schedule 3 do not apply in respect of a
document drawn by counsel.
(3) An allowance is not to be made in relation to the drawing of a
part of a document that, in the opinion of the taxing officer,
constitutes the unnecessary repetition or adaptation of matter in
respect of the drawing or perusing of which an allowance in respect of
costs is made in the same proceeding.
(4) A sum in respect of instructions for an affidavit to be used in
a proceeding, being an affidavit made by the solicitor who has the
conduct of the proceeding or his clerk, is not to be allowed by the
taxing officer on the taxation of a bill of costs in relation to the
proceeding.
(5) The allowances for instructions for a special affidavit, and for
attending on the deponent to be sworn, include all attendances on the
depondent to settle and read over the affidavit.
BANKRUPTCY RULES
- REG 166
Restriction of allowances for drawing and perusing documents
166. A sum is not to be allowed on the taxation of a bill of costs
in respect of:
(a) the perusal of a document with the contents of which a solicitor
is already familiar; or
(b) the delivery, service or perusal of a document in a proceeding
in which the same solicitor acts for all parties;
unless the taxing officer is of opinion that an allowance should be
made in respect of the matter and, in that event, he may make such
allowance in respect of the matter as he thinks fit.
BANKRUPTCY RULES
- REG 167
Evidence
167. (1) Such just and reasonable charges and expenses as appear to
have been properly incurred in procuring evidence and the attendance
of witnesses shall be allowed.
(2) A witness who attends to give evidence in more than one matter
is entitled to a proportionate part only of his expenses in each
matter.
BANKRUPTCY RULES
- REG 168
Calculation of folios
168. (1) For the purposes of the taxation of a bill of costs, a
folio comprises 72 words, and a figure shall be counted as one word.
(2) Where, in a document:
(a) reference is made to a date and the ordinal number of the day of
the month or the year is not written in figures; or
(b) reference is made to a sum of money and the sum of money is not
written in figures and symbols;
the words in the reference shall be reckoned as figures or figures and
symbols, as the case may be, for the purpose of calculating the number
of folios in the document.
BANKRUPTCY RULES
- REG 169
Disbursements
169. (1) Subject to this Part, the party whose bill of costs or
charges is being taxed is entitled to have allowed by the taxing
officer all disbursements that, in the opinion of the taxing officer,
have been properly incurred.
(2) For the purposes of subrule (1), the taxing officer may decline
to allow a disbursement unless payment is proved by the production of
vouchers in respect of the payment or is otherwise proved to the
satisfaction of the taxing officer.
BANKRUPTCY RULES
- REG 170
Counsel's fees
170. (1) Subject to subrule 169 (1) and to the next succeeding
subrule, the taxing officer may, on the taxation of a bill of costs,
allow such sums in respect of fees paid to counsel as he considers
reasonable in the circumstances.
(2) Where a hearing (whether in open Court or in Chambers and
whether witnesses are examined or cross-examined or not) extends
beyond the day on which the hearing began, the taxing officer may
allow such refresher fees as he considers reasonable in the
circumstances in respect of each 5 hours or part of 5 hours (including
any luncheon adjournment) of the hearing that occurs:
(a) on a day subsequent to the day on which the hearing began; and
(b) subsequent to the expiration of the first 5 hours (including any
luncheon adjournment) beyond which the hearing is extended without
being concluded.
(3) Where a practitioner acts in the capacities of both barrister
and solicitor, or in the capacity of counsel, instructed by his
partner acting as solicitor, the taxing officer shall (in cases where
a fee would have been allowed to independent counsel) allow to the
practitioner in respect of:
(a) the drawing or settling of any document; or
(b) the appearance of the practitioner as counsel at the trial of a
proceeding;
such sum as counsel's fee as the taxing officer in his discretion
thinks just and reasonable having regard to the fact that the
practitioner is acting both as barrister and solicitor, or as counsel
instructed by his partner acting as solicitor, as the case may be.
(4) Where a practitioner acts in the capacities of both barrister
and solicitor, or in the capacity of counsel, instructed by his
partner acting as solicitor, items 7 and 21 in Schedule 3 do not apply
but the taxing officer may allow such sum as he considers reasonable
in the circumstances in respect of the work done by the practitioner
in preparing for the hearing and in preparing notes, being notes known
as "brief notes", for use on the hearing.
BANKRUPTCY RULES
- REG 171
Taxing officer's discretion
171. (1) Where a fee or allowance specified in Schedule 3 is
discretionary, it shall, unless otherwise provided, be allowed at the
discretion of the taxing officer.
(2) The taxing officer, in the exercise of his discretion, shall
take into consideration:
(a) the other fees and allowances of the solicitor and counsel (if
any) in respect of the work to which such a fee or allowance applies;
(b) the nature and importance of the proceeding;
(c) the amount involved;
(d) the interest of the parties;
(e) the estate or person liable to bear the costs;
(f) the general conduct and costs of the proceeding; and
(g) the other circumstances of the particular case.
(3) Notwithstanding any other provision of this Part, where the
taxing officer is of the opinion that the amount that would otherwise
be allowed in respect of an item in a bill of costs, being an amount
calculated by reference to an item in Schedule 3, is, in the
circumstances of the particular case, inadequate having regard to the
nature or amount of the work performed to which the item relates, the
taxing officer may allow such larger amount as he considers
reasonable.
(4) Such amount shall be allowed as the taxing officer in his
discretion thinks reasonable, having regard to all the circumstances
of the particular case, for work and labour properly performed and not
specifically provided for by these Rules, but in respect of which, in
the opinion of the taxing officer, an allowance should be made.
(5) Where it was necessary for a solicitor to travel from his place
of business in connexion with a matter for which a fee is allowed on
taxation of the solicitor's bill of costs, the taxing officer may
allow such additional sum as he considers reasonable in respect of the
expense incurred by the solicitor in so travelling and of his
residential accommodation (if any) while living away from his
residence together with such further sum as compensation for his
absence from his place of business in respect of each day that he is
so absent.
BANKRUPTCY RULES
- REG 172
Certificate of taxation
172. (1) Where a bill of costs or a bill of charges has been taxed,
the taxing officer shall, if the person by whom the bill was filed
furnishes to him a certificate of taxation, in accordance with Form
55, relating to the bill, sign the certificate and return it to that
person.
(2) Where the taxing officer taxes a bill of costs or a bill of
charges in pursuance of an order of the Court and the costs or charges
are payable otherwise than out of the estate of the bankrupt to whose
estate the costs or charges relate, particulars of the order, insofar
as it relates to payment of the costs or charges, shall be included in
the certificate of taxation relating to that bill.
(3) The person who lodges a bill of costs for taxation shall, upon
the issue to him of a certificate of taxation in relation to that
bill, serve the certificate of taxation on the person liable to pay
the costs or charges.
BANKRUPTCY RULES
- REG 173
Review of taxation
173. (1) An appeal under subsection 167 (8) of the Act from a
decision of the taxing officer with respect to the taxation of a bill
of costs or bill of charges shall be instituted by filing an
application to the Court to review the taxation of the bill within 21
days after the day on which the taxing officer signs a certificate of
taxation in relation to that bill.
(2) A person who appeals against the allowing or disallowing of an
item or items in a bill of costs or bill of charges shall specify that
item or those items in the application by which he institutes the
appeal.
(3) An application to review the taxation of a bill of costs or a
bill of charges shall be heard and determined by the Court upon the
evidence that had been brought in before the taxing officer, and
further evidence shall not be received upon the hearing of the
application unless the Court otherwise directs.
BANKRUPTCY RULES
- PART XIV
PART XIV - WARRANTS
BANKRUPTCY RULES
- REG 174
Warrant under section 264B
174. (1) Where a person is arrested in pursuance of a warrant issued
under subsection 264B (1) of the Act and it is impracticable for the
person to be brought before the Court, Registrar or magistrate by
which or by whom the warrant was issued on the day on which the person
is arrested, the person by whom he is arrested shall forthwith inform
the Registrar of the District in which the warrant was issued of the
arrest of the person and of the day on which it will be practicable
for the person to be brought before the Court, Registrar or
magistrate.
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