Bankruptcy Rules (Cth)

STATUTORY RULES.

1934. No. 77.

RULES UNDER THE BANKRUPTCY ACT 1924‑1933.

 

I, THE GOVERNOR‑GENERAL in and over the Commonwealth of Australia, acting with the advice of the Federal Executive Council, hereby make the following Rules under the Bankruptcy Act 1924‑1933, to come into operation on the first day of August, One thousand nine hundred and thirty‑four.

Dated this fourth day of July, 1934,

 ISAAC A. ISAACS

 Governor‑General.

 

By His Excellency's Command,

 A. J. McLACHLAN

 Acting Attorney‑General.

   

BANKRUPTCY RULES.

 

PART I.—PRELIMINARY.

Short title and application.

1.—(1.) These Rules may be cited as the Bankruptcy Rules.

(2.) Those Rules shall apply as from the date of commencement thereof to all matters then pending or commenced on or after that date.

Repeal.

2. The Bankruptcy Rules 1928 (being Statutory Rules 1928, No. 8, as amended by Statutory Rules 1928, Nos. 63 and 82; 1929, Nos. 134 and 140; and 1932, No. 43) and the Rules set out in the First and Second Schedules to the Act are hereby repealed.

Parts.

3. These Rules are divided into Parts; as follows:—

Part I.—Preliminary, rr. 1‑6.

Part II.—Court Procedure.

Division 1.—Court and Chambers, rr. 7‑11.

Division 2.—Proceedings, rr. 12‑24.

Division 3.—Motions and Practice, rr. 25‑86.

Division 4.—Preparation of Orders, rr. 37‑42.

Division 5.—Security in Court, rr. 43‑53.

Division 6.—Affidavits, rr. 54‑60.

Division 7.—Fees, rr. 66‑68.

Division 8.—Witnesses and Depositions, rr. 69‑79.

Division 9.—Discovery and. Examination under section 80, rr. 80‑81.

Division 10.—Taking Accounts of Property mortgaged, and of the Sale thereof, rr. 82‑92.

Division 11.—Appropriation of Pay, Salary, Pensions and other Income, rr. 93, 94.

Division 12.—Warrants, Arrests, and Commitments, rr. 95-103

Division 13.—Service and Execution of Process, rr. 104‑110.

Division 14.—Trial by Jury, rr. 111‑115.

Division 15.—Costs, rr. 116‑138.

Division 16.—Appeals, rr. 139, 140.

Division 17.—Review of Order or Act of Registrar., rr. 141, 142.

Part III.—Proceedings from Act of Bankruptcy to Discharge.

Division 1.—Declaration of Inability to pay Debts, r. 143.

Division 2.—Bankruptcy Notice, rr. 144‑149.

Division 3.—Bankruptcy Petition, rr. 150‑154.

Division 4.—Creditor's Petition, rr. 155‑161.

Division 5.—Hearing of Petition, rr. 169‑180.

Division 6.—Interim Receiver, rr. 181‑186.

Division 7.—Sequestration Order, rr. 187‑194

Division 8.—Public Examination of Bankrupt, rr. 195‑201.

Division 9.—Service of Proceedings, rr. 202.

Division 10.—Composition or Scheme, rr. 203‑222.

Division 11.—Statement of Affairs, rr. 223, 224.

Division 12.—Proof of Debts, rr. 225‑263.

Division 13.—Disclaimer of Lease or Onerous Property, rr. 264.

Division 14.—Dividends, rr. 265‑268,

Division 15.—Discharge, rr. 209‑288.

Division 16.—Proxies and Voting Letters, rr. 289‑294.

Division 17.—Meetings of Creditors, rr. 295‑325.

Division 18.—Proceedings by Company or Co‑partnership, rr. 326.

Division 19.—Proceedings by or against Firm, rr. 327‑381.

Division 20.—Joint and Separate Estates, rr. 338‑343.

Division 21.—Lunatics, r. 344.

 

Part IV.—Special Proceedings,

Division 1.—Small Bankruptcies, rr. 345, 346.

Division 2.—Estates of Persons dying Insolvent, rr. 347‑358.

 

Part  V.—Compositions, Schemes and Assignments without Sequestration. (Part XI.  of Act), rr. 354-366.

 

Part

 VI.—Deeds of Arrangement (Part XII. of Act), rr. 367‑378.

 

Part VII.—Functions of Officers.

Division 1.—Books to be kept and returns to be made by Registrar, rr. 379‑385.

Division 2.—Official Receivers, rr. 386‑410.

 

Part VIII.—Trustees and Special Managers, rr. 411‑452.

 

Part

 IX.—Accounts and Audit, rr. 453‑466.

 

Part X.—Miscellaneous, rr. 467‑480.

Definitions.

4.—(1.) In these Rules, unless the contrary intention appears—

“Affidavit” includes statutory declaration and affirmation;

“Commissioner” means a Commissioner for Affidavits or a Commissioner for Declarations;

“Commissioner for Affidavits” means a person authorized under the law of the Commonwealth or of a State to take affidavits;

“Commissioner for Declarations” means a person appointed under the Statutory Declarations Act 1911 or under a State Act to be a Commissioner for Declarations;

“Court of Appeal” means any Court exercising appellate jurisdiction under the Act or these Rules;

“Creditor” includes a corporation, and a firm of creditors in partnership;

“Debtor” includes a firm of debtors in partnership, and includes any debtor proceeded against under the Act, whether he becomes a bankrupt or not;

“District” means a District proclaimed by the Governor‑General in pursuance of the Act;

“Inspector‑General” means the Inspector‑General in Bankruptcy;

“Judge” means any Judge by whom jurisdiction in bankruptcy is exercised;

“Limited partnership” means a firm registered under any law of the Commonwealth or a State or a Territory relating to limited partnerships;

“Name” in relation to a person means both the Christian name, or the initial letter or contraction of the Chris­tian name, and the surname of that person;

“Scheme” means a scheme of arrangement pursuant to the Act;

“Sealed” means sealed with the seal of the Court;

“Taxing Officer” means the officer of the Court whose duty it is to tax costs in bankruptcy proceedings;

“the Act” means the Bankruptcy Act 1924‑1933, as amended from time to time;

and any reference to a form shall be read as a reference to a form in the First Schedule to those Rules.

References to “writing”.

(2.)

 In these Rules expressions referring to writing shall, unless the contrary intention appears, be construed as including references to any mode of representing or reproducing words in a visible form.

Computation of time.

5. When the time for doing any act or taking any proceedings expires on a Saturday, Sunday or Court holiday, and by reason thereof the act or proceeding cannot be done or taken on that day, the act or proceeding shall, so far as regards the time of doing or taking it, be held to be duly done or taken on the next day which is not a Saturday, Sunday or Court holiday.

Use of forms in Schedules

6. The forms in the Schedules to these Rules, where applicable, and where they are not applicable forms of the like character, with such variations as circumstances require, shall be used.

PART II.—COURT PROCEDURE.

Division 1.—Court and Chambers.

Application of High Court Rules.

7.—(1.)Where any practice or procedure of the Court is not regulated by these Rules, the practice or procedure shall be regulated as nearly as may be by the Rules of the High Court for the time being in force.

Court may sit at any time.

(2.) Sittings of the Court shall, if there is any business to be transacted, be held on any day the Judge thinks fit to sit in Court.

Submission of doubtful questions to Judge.

8. The Registrar may in his discretion submit to the Judge any matter before him upon which he is doubtful or which the parties, or either of them, desire should be submitted to the Court for its opinion, direction and order.

Adjournment from Registrar to Court.

9. Any matter or application pending before the Registrar shall be adjourned to be heard before the Court, if the Court either specially or by any general direction applicable to the particular case, so directs.

Adjournment from Chambers to Court and vice versa.

10. Subject to the provisions of these Rules, any matter or application may, at any time, if the Court thinks fit, be adjourned, from Chambers to Court or from Court to Chambers; and, if all the contending parties require any matter or application to be adjourned from Chambers into Court, it shall be so adjourned.

Witnesses may be ordered to leave Court.

11. In any proceeding, the Judge, Magistrate or Registrar presiding may order that all or any witnesses or persons summoned for examination in the matter leave the Court or Chambers, as the case may be, until called on to give evidence.

Division 2.—Proceedings.

Proceedings, how initiated.

12.—(1.) Every proceeding before the Court shall be dated, and shall be intituled “In the Court of Bankruptcy”, with the name of the District in which it is taken, and of the matter to which it relates. Numbers and dates may be denoted by figures.

(2.) All applications and orders shall be intituled ex parte the applicant.

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

Written proceedings

(4.) All proceedings in Court shall be written on paper of the size of thirteen inches and one‑half inch in length and eight inches and one‑half inch in breadth, or thereabouts; but no objection shall be allowed to any proof, affidavit or proxy on account of its being written on paper of other size.

Records of the Court.

13.  All proceedings of the Court shall remain on record in the Court so as to form a complete record of each matter, and they shall not be removed for any purpose, except for the use of the officers of the Court, or by special direction of the Court, but they may, subject to the Act, at all reasonable times, be inspected by the trustee, the debtor and any creditor who has proved, or any person on behalf of the trustee, debtor or any such creditor.

Notices to be in writing.

14. All notices required by the Act or these Rules shall, be in writing, under these Rules otherwise provide, or the Court in any particular case otherwise orders.

Process to be sealed.

15. All summonses, petitions, notices, orders, warrants and other process issued by the Court shall be sealed.

Meetings summoned by Court.

16.—(1.)Where the Court directs a general meeting of creditors to be summoned it shall be summoned as the Court directs, and in default of any direction by the Court the Registrar shall transmit a sealed copy of the first‑mentioned direction to the trustee or the Official Receiver, as the case may be.

(2.) The trustee or Official Receiver shall, not less than seven days before the meeting, send a copy of the direction to each creditor at the address given inhis proof, or in case he has not proved, the address given in the list of creditors by the debtor, or such other address as is known to the trustee or Official Receiver.

Office copies.

17. All office copies of petitions, proceedings, affidavits, books, papers, and writings, or any parts thereof required by any trustee, or by any debtor, or by any creditor, or by the solicitor of any such trustee, debtor, or creditor, shall be provided by the Registrar; and shall, except as to figures, be fairly written at length, and be sealed and delivered out without any unnecessary delay.

Filing, Gazetting, &c.

18.—(1.) The Registrar shall file a copy of each issue of the Commonwealth Gazette, and, whenever the Commonwealth Gazette contains any advertisement relating to any proceeding under the Act in the Court, he shall at the same time file a memorandum in accordance with Form 187, referring to and giving the date of the advertisement.

 (2.) In the case of an advertisement in a local paper, the Registrar shall in like manner file a copy of the advertisement extracted from the paper and a memorandum in accordance with Form 187 referring to and giving the date of the advertisement.

 (3.) For this purpose one copy of each local paper, in which any advertisement relating to any matter under the Act in the Court is inserted, shall be left with the Registrar by the person inserting the advertisement.

 (4.) The memorandum by the Registrar shall be prima facie evidence that the advertisement to which it refers was duly inserted in the issue of the Commonwealth Gazette or paper mentioned in it, and the copy of the advertisement referred to in sub‑rule (2.) of this rule, certified by the Registrar to have been extracted from the local paper published on the date specified in the certificate, shall be prima facie evidence that the advertisement was published in the paper on the date so certified.

Transfer of proceedings by Court.

19. The Court may at any time, for good cause shown, order the proceedings in any matter under the Act, which have been commenced or are pending in the Court, to be transferred to any other Court.

Transmission of order of transfer.

20. When an order of transfer has been made by any Court, the Registrar shall send by post a sealed copy of the order of transfer to the Court affected by the order.

Transfer of Official Receiver’s duties.

21. Where the proceedings in any matter are transferred by any Court, the Official Receiver of the Court to which such proceedings are transferred shall become the Official Receiver of the debtor’s estate in place of the Official Receiver of the Court from which the proceedings are transferred.

Transmission of records.

22.—(1.) Where the proceedings in any matter are transferred from a Court to any other Court, the Registrar of the first‑mentioned Court shall send the records of proceedings transferred to the Registrar of the Court to which the transfer is made.

Notice of transfer to Inspector‑General and Official Receiver.

(2.) The Registrar of the Court to which proceedings are transferred shall give notice of the transfer to the Official Receiver of the same Court, and to the Inspector‑General, as soon as he receives the records of proceedings from the Registrar of the Court from which the transfer is made.

Proceedings commenced in wrong Court.

23. When any bankruptcy proceeding has been commenced in a Court in which it should not have been commenced, the Judge of the Court may order that the proceeding shall be transferred to the Court in which the proceeding should have been commenced, or that it be continued in the Court in which it was commenced; but, unless and until a transfer is made under these Rules, the proceeding shall continue in the Court in which it was commenced.

Transferred matter to receive new number.

24. When a matter is transferred from one Court to another, it shall receive a new distinctive number.

Division 3.—Motions and Practice.

Applications to be by motion.

25. Every application to the Court (unless otherwise provided by these Rules or the Court in any particular case otherwise directs) shall be made by motion supported by affidavit.

Notice of motion to be filed.

26.—(1.) A party intending to move shall file with the Registrar a copy of his notice of motion together with the affidavit in support.

(2.) There shall be endorsed on the copy the name of the applicant’s solicitor (if any), and also (if known) the name of the respondent's solicitor.

Notice of motion, and ex parte applications.

27. Where anyparty, other than the applicant, is affected by the motion, no order shall be made, unless upon the consent of the party duly shown to the Court, or upon proof that notice of the intended motion and a copy of the affidavits in support thereof have been duly served upon the party:

Provided that the Court, if satisfied that the delay caused by proceeding in the ordinary way would or might entail serious mischief, may make any order ex parte upon such terms as to costs and otherwise, and subject to such undertaking, if any, as the Court thinks just; and, any party affected by the order may move to set it aside.

Length of notice.

28.—(1.) Unless the Court gives leave to the contrary, notice of motion shall be served on any party to be affected thereby not less than eight days before the day named in the notice for hearing the motion.

(2.) An application for leave to serve short notice of motion may be made ex parte.

Notice and affidavits in opposition.

29. Any person who intends to oppose a motion shall lodge noticeof his opposition setting out the grounds with the Registrar a reasonable time before the return date and shall deliver to the applicant a copy of such notice together with copies of any affidavits intended to be used in opposition to the motion and shall, unless the Court otherwise directs make any exhibits to such affidavits available for inspection by the applicant, not less than four days before the day appointed for the hearing.

Notice not served on all proper parties.

30. If, on the hearing of any motion or application, the Court is of opinion that any persons to whom notice has not been given ought to have, or to have had, the notice, the Court may either dismiss the motion or application, or adjourn the hearing thereof, in order that the notice may be given, upon such terms as the Court thinks fit.

Adjournment.

31. The hearing of any motion or application may from time be adjourned, upon such terms (if any) as the Court thinks fit.

Personal service.

32. In cases in which personal service of any notice of motion, or of any order of the Court, is required, it shall be effected, in the case of a notice of motion, by delivering to each party to be served a copy of the notice of motion; and, in the case of an order, by delivering to each party to be served a sealed copy of the order.

Filing affidavits on motion.

33. Every affidavit to be used in supporting or opposing any opposed motion shall, unless the Court otherwise directs, be filed with the Registrar not later than the day before the day appointed for the hearing.

Endorsement and filing of affidavits.

34. The Registrar, upon any affidavit being left with him to be filed, shall endorse it with the day of the month and year when it was so left, and forthwith file it with the proceedings to which it relates, and any affidavit left with the Registrar to be filed shall on no account, except by order of the Court, be delivered out to any person.

Precedence of motions.

35. Except in cases of emergency, or for any other cause deemed sufficient by the Court, all motions shall be made and heard in the order in which they are set down at the sitting of the Court.

Applications in Chambers.

36.—(1.) All applications to a Judge in Chambers, unless ex parte, shall be made upon notice in writing, which shall be served twenty‑four hours before the time fixed in the notice.

(2.) Copies of the affidavits intended to be used in support of the application shall be served with the notice.

(3.) Copies of the affidavits intended to be used in opposition or in reply shall be served before the hearing.

 

Division 4.—Preparation of Orders.

Action where order to stay proceedings not enforceable.

37. Where an order has been made under section 159 or 192 of the Act staying proceedings in any action or other legal process and the composition, scheme, assignment, or arrangement does not

become binding on the creditors in due course it shall be the duty of the person upon whose application the order was made to take such action forthwith as is necessary to have the order setaside, and to notify all parties accordingly.

Carriage.

38. In all cases the party upon whose application, an order is made shall have the carriage of the order:

Provided that where the order is not procured and served within seven days next following, the opposite party may assume the carriage thereof or the Registrar may, subject to any direction of the Court, at the expense of the applicant, prepare and complete the order.

Notice of appointment to settle order.

39. A person who has the carriage of an order shall, when required by the Court or any party affected, obtain from the Registrar an appointment to settle the order, and shall give reasonable notice of the appointment to all persons who are affected by the order or to their solicitors.

Preparation of orders.

40.—(1.) If, within one week from the making of an order for the appointment of the Official receiver as Interim Receiver of the debtor’s property, a sequestration order, an order annulling a sequestration order, an order on application to approve a composition or scheme, an order annulling a composition or scheme, or an order on application for discharge, the order has not been completed, the Registrar may prepare and complete the order:

Provided that, if in any case the Court is of the opinion that the provisions of this Rule ought not to apply, it may so order:

Provided further that where an order of discharge is granted subject to the condition that judgment shall be entered against the bankrupt, nothing in this rule shall require the Registrar to prepare and complete the order until the bankrupt has given consent, in accordance with Form 144, to judgment being entered against him.

(2.) Where the petitioner is represented by a solicitor, the order shall be endorsed with the name and address of the solicitor.

Transmission of copy to Official Receiver.

41. A copy of every sequestration order, order for the appointment of the Official Receiver as Interim Receiver of the debtor’s property, and of every other order relating to the administration of an estate or the conduct of a debtor, sealed with the seal of the Court, shall forthwith be sent by the Registrar to the Official Receiver.

Signature of orders.

42. All orders of the Court shall be signed and sealed by the Registrar unless the Court otherwise orders or the Act and these Rules otherwise provide.

 

Division 5.—Security in Court.

Security by bond.

43. Except where these Rules otherwise provide, where a person is required to give security, the security shall be in the form of a bond with a surety or sureties to the person proposed to be secured.

Amount.

44. The bond shall be taken in a penal sum, which shall not be less bond than the sum for which security is to be given, and probable costs, unless the opposite party consents to it being taken for a less sum.

Deposit in lieu of bond.

45. Where, a person is required to give security he may, in lieu thereof, lodge in Court a sum equal to the sum in question in respect of which security is to be given and the probable costs of the trial of the question, together with a memorandum to be approved by the Registrar and to be signed by that person, his solicitor, or agent, setting forth the conditions on which the money is deposited.

Security account.

46. Where any sum is lodged in Court in pursuance of the last preceding rule it shall be paid to a separate account in the proceeding, to be called the “Security Account”, and to abide the order of the Court, and the person paying the sum shall give notice of the payment to the party for whose benefit the security is to be given.

Disposal of money paid into Court.

47.—(1.) In any case in which money has been paid into Court as security for costs, when the proceeding has been finally disposed of, if the party by whom the payment into, Court was made is adjudged to pay the costs of the proceeding, or any balance in respect of the costs of the proceeding, or any other balance of costs in the proceeding, to any parties for whose security the payment was made, the amount standing to the credit of the Security Account in the proceeding shall, unless the Court otherwise orders, be liable to be applied in payment of the costs so ordered to be paid to those parties.

(2.) In any other case the party by whom the payment into Court was made shall be entitled to have the sum paid out to him.

Registrar to certify at conclusion of proceeding.

48. When a proceeding has been finally disposed of by consent or otherwise the Registrar shall, on the application of any party to the proceeding, and on being satisfied that that party is entitled to have any money standing to the credit of the Security Account paid out to him, give him a certificate to that effect.

Security of guarantee society.

49. The security of any incorporated company or guarantee society approved by the Court or the opposite party may be given in lieu of a bond or a deposit.

Notice of sureties.

50. In all cases where a person proposes to give a bond by way of security, he shall serve, by post or otherwise, on the opposite party and on the Registrar, at the Court, notice of the proposed sureties, in accordance with Form 19, and the Registrar shall forthwith give notice to both parties of the time and place at which he proposes that the bond shall be executed, and shall state in the notice that, should the proposed obligee have any valid objection to make to the sureties, or either of them, it shall be made at that time.

Justification by sureties.

51. The sureties shall make an affidavit of their sufficiency in accordance with Form 20, unless the opposite party dispenses with the affidavit, and the sureties shall attend the Court to be cross‑examined, if required.

Execution of bond.

52. The bond shall be executed and attested in the presence of the Registrar or the Official Receiver, or before a justice of the peace, or a solicitor or a commissioner.

Notice of deposit.

53. Where a person makes a deposit of money in lieu of giving a bond, the Registrar shall forthwith give notice to the person to whom the security is to be given of the deposit having been made.

Division 6.—Affidavits.

Costs of unnecessary matter.

54. The costs of every affidavit which shall unnecessarily set forth matters of hearsay, or argumentative matter, or copies of or extracts from documents, shall be paid by the party filing the affidavit.

Form.

55.—(1.) Every affidavit shall be drawn up in the first person, and shall be divided into paragraphs, and every paragraph shall be numbered consecutively, and as nearly as may be shall be confined to a distinct portion of the subject, and shall be signed on each page by the deponent and the person before whom it is sworn.

(2.) No costs shall, except by leave of the Court, be allowed for any affidavit or part of an affidavit substantially departing from this rule.

Deponent’s description.

56. Every affidavit shall state the description and true place of abode of the deponent, and also what facts or circumstances deposed to are within his knowledge.

Several deponents.

57. In every affidavit made by two or more deponents the names of the several persons making the affidavit shall be inserted in the jurat, except that if the affidavit of all the deponents is taken at one time by the same officer it shall be sufficient to state that it was sworn by both (or all) of the “above‑named” deponents.

Scandalous matter.

58. The Court may order to be struck out from any affidavit any matter which in the opinion of the Court is scandalous or objectionable, and may order the costs of any application to strike out that matter to be paid as between solicitor and client.

Erasures, &c.

59. No affidavit having in the jurat or body thereof any interlineation, alteration or erasure shall, without leave of the Court, be read or made use of in any matter depending in Court unless the interlineation or alteration (other than by erasure) is authenticated by the initials of the officer or person taking the affidavit, nor, in the case of an erasure, unless the words or figures appearing at the time of taking the affidavit to be written on the erasure are re‑written and signed or initialled in the margin of the affidavit by the officer or person taking it.

Blind or illiterate persons.

60.—(1.) Where an affidavit is sworn by any person who appears to the person taking the affidavit to be illiterate or blind, the person taking the affidavit shall certify in the jurat that the affidavit was read in his presence to the deponent, that the deponent appeared perfectly to understand it, and that the deponent made his signature in the presence of that person.

(2.) No such affidavit shall be used in evidence in the absence of that certificate, unless the Court is otherwise satisfied that the affidavit was read over to and appeared to be perfectly understood by the deponent.

Formal defects.

61. The Court may receive any affidavit sworn for the purpose of being used in any matter notwithstanding any defect by misdescription of parties or otherwise in the title or jurat, or any other irregularity in the form thereof, and may direct a memorandum to be made on the document that it has been so received.

Filling office copies, &c.

62.—(1.) In cases in which an original affidavit is allowed to be used, it shall before it is used be stamped with a proper filing stamp, and shall at the time when it is used be delivered to and left in Court or in Chambers with the proper officer, who shall file it.

(2.)An office copy of an affidavit may in all cases be used, the original affidavit having been previously filed and the copy duly authenticated with the seal of the Court.

Swearing of affidavit.

63.—(1.) No affidavit (other than a proof of debt) shall be used if sworn before a solicitor acting for the party on whose behalf the affidavit is to be used, or before any agent clerk or partner of such solicitor, or before the party himself.

(2.) An affidavit may be sworn to either in print, typewriting, or manuscript, or partly in one form and partly in another.

Time for filing.

64.—(1.) Where a special time is limited for filing affidavits, no affidavit filed after that time shall be used, unless by leave of the Court.

(2.) Except by leave of the Court, no order made ex parte in Court founded on any affidavit shall be of any force unless the affidavit on which the application was made was actually made before the order was applied, for, and produced or filed at or before the time of making the motion.

Proof of affidavit.

65. The Court shall take judicial notice of the seal or signature of any person authorized by or under the Act to take affidavits or to certify to the authority.

 

Division 7.—Fees.

Fees.

66.—(1.) The fees and percentages specified in the Third Schedule to these Rules shall be charged and payable in respect of the matters specified in that Schedule.

Marking of documents.

(2.) The officer of the Court who receives any document upon which any prescribed fee is payable shall, immediately upon the receipt of the document, mark in the margin of the document the amount of the fee and the date of the filing of the document, and no such document shall be filed until the fee thereon has been so marked, and the party presenting or receiving the document shall see that the marking has been duly made.

Postponement, &c., of fees in cases of hardship.

67.—(1.) The Court may, upon good cause shown, postpone any of the fees payable in any particular case under Table A of the Third Schedule to these Rules and allow the payment of any such fees to be made by instalments within a specified period or out of the estate of the bankrupt.

(2.) Where the Court allows under the last preceding sub‑rule a debtor or bankrupt to pay any fee by instalments, the debtor or bankrupt shall pay such instalments to the Official Receiver who shall forthwith transmit them to the Registrar to be recorded in a book specially kept by the Registrar for the purpose.

Method of application.

68.—(1.) A person applying for postponement of the payment of fees under the last preceding rule or for postponement of the payment of the deposit for the expenses of the Official Receiver under rule 154 shall—

(a) fill in and sign the form of questionnaire provided for that purpose by the Registrar;

(b) supply upon affidavit any evidence required by the Court as to his or her—

 (i) debts or liabilities; and

(ii) means of livelihood, real or personal property, whether in possession, expectancy, reversion or remainder, or in respect of any debts due to the applicant;

(c)if required, attend before the Court for the purpose of being examined on oath on the matters aforesaid; and

(d)give in writing any undertaking, order or charge for payment of fees and deposit by instalments or at some future date or otherwise as the Court directs.

(2.) Instalments shall be allocated in the first instance to the deposit for the expenses of the Official Receiver and thereafter to the Court fees.

(3.) On failure to pay any such instalment or to comply with any requirement of the Court’s order, the Official Receiver shall forthwith report the matter in writing to the Registrar, who may summon the debtor for examination before the Court as to his means of payment and the reasons for his default.

Division 8.—Witnesses and Depositions.

Subpoena or summons.

69. A subpoena or summons for the attendance of a witness shall be issued by the Court at the instance of an Official Receiver, a trustee, a creditor, a debtor, or any applicant or respondent in any matter, with or without a clause requiring the production of books, deeds, papers, documents, and writings in his possession or control, and in any subpoena or summons the name of three witnesses may be inserted.

Service of subpoena.

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

Proof of service.

71. Service of the subpoena or summons may be proved by affidavit.

Limit of Witness Costs.

72.The Court may in any matter limit the number of witnesses to be allowed on taxation of costs, and their allowance for attendance shall in no case exceed the highest rate of the allowances mentioned in the scale of costs.

Costs of witnesses.

73. The costs of witnesses, whether they have been examined or not, may, in the discretion of the Court, be allowed.

Payment of shorthand writer, &c.

74. Where the Court appoints a shorthand writer other than an officer of the Commonwealth to take down the evidence of the debtor or witnesses or of any other person or of any of them, the person so appointed may be paid a sum not exceeding one guinea a day and a further sum not exceeding sixpence per folio of seventy‑two words or figures for any transcript of the evidence or such other sum per day or per folio as the Registrar deems reasonable.

Depositions, &c.

75. The Court may, in any matter where it appears necessary for the purposes of justice, make an order for the examination upon oath before the Court or any officer of the Court, or any other person, and at any place, of any witness or person, and may empower any party to any such matter to give the deposition, subject to all just exception, in evidence therein on such terms (if any) as the Court directs.

Form of commission.

76. An order for a commission or letter of request to examine witnesses, and the writ of commission or request, shall follow the forms for the time being in use in the High Court or in the Supreme Court of the State in which the proceedings are being held with such variations as circumstances require.

Production of documents.

77. The Court may, in any matter, at any stage of the proceedings, order the attendance of any person for the purpose of producing any writings or other documents named in the order, which the Court thinks necessary to be produced.

Disobediences to order.

78. Any person wilfully disobeying any subpoena, summons or order requiring his attendance for the purpose of being examined or producing any document shall be deemed guilty of an offence, and may be dealt with accordingly.

Conduct money.

79. Any witness (other than the debtor) required to attend for the purpose of being examined, or of producing any document, shall be entitled to conduct money and payment for expenses and loss of time in accordance with the scale referred to in the Second Schedule to these Rules. The Court may upon the application of the witness fix the amount to be paid by the party upon whose application the examination has been held.

Division 9.—Discovery and Examination under section 80.

Discovery.

80.—(1.) Any party to any proceeding in Court may, with the leave of the Court, administer interrogatories to, or obtain discovery of documents from, any other party to the proceeding.

(2.) Proceedings under this rule shall be regulated as nearly as may be by the Rules of the High Court or of the Supreme Court of the State in which the proceedings are being held, for the time being in force in relation to discovery and inspection.

(3.) An application for leave under this rule may be made ex parte.

(4.) A copy of the interrogatories delivered by any party shall be filed in Court on the day on which they are delivered to the opposite party.

Applications for discovery.

81.—(1.) Every application to the Court under section 80 of the Act shall be in writing, and shall state shortly the grounds upon which the application is made.

(2.) Where the application is made on behalf of the trustee or Official Receiver, it, need not be verified by affidavit.

Division 10.—Taking Accounts of Property mortgaged, and of the Sale thereof.

Inquiry into mortgage &c.

82.—(1.) Upon application by motion by any person claiming to be a mortgagee of any part of the bankrupt’s real or leasehold estate, and whether the mortgage is by deed or otherwise, and whether the mortgage is of alegal or equitable nature, the Court shall proceed to inquire whether the person is the mortgagee, and for what consideration and under what circumstances.

(2.) If it is found that the person so applying is the mortgagee, and if no sufficient objection appears to the title of the person to the sum claimed by him under the mortgage, the Court shall direct such accounts and inquiries to be taken as are necessary for ascertaining the principal, interest, and costs due upon the mortgage and of the rents and profits, or dividends, interest, or other proceeds received by the person, or by any other person by his order or for his use in case he has been in possession of the property over which the mortgage extends, or any part thereof, or which he might have received but forhis own wilful default.

(3.) The Court, if satisfied that there ought to be a sale, shall direct notice to be given in such newspapers as the Court thinks fit, when and where, and by whom and in what way the property, or the interest therein so mortgaged, is to be sold, and that the sale be made accordingly, and that the trustee (unless it be otherwise ordered), shall have the conduct of the sale.

(4.) At any such sale the mortgagee may bid and purchase.

Conveyance.

83.—(1.) All proper parties shall join in the conveyance to the purchaser, as the Court directs.

(2.) If any person, when, directed by the Court in pursuance of the last preceding sub‑rule, refuses or fails to join in the conveyance to the purchaser; the Court may direct the trustee or an officer to execute such instruments necessary to effect the conveyance as the person refuses or fails to execute.

Proceeds of sale.

84.—(1.) The moneys to arise from the sale shall be applied in the first place in payment of the costs, charges, and expenses of the trustee, of and occasioned by the application to the Court, and of the sale and attendance thereat, and in the next place in payment and satisfaction, so far as the moneys extend, of what shall be found due to the mortgagee, for principal, interest, and costs, and the surplus of the moneys (if any) shall then be paid to the trustee.

(2.) In case the moneys to arise from the sale are insufficient to pay and satisfy what are found due to the mortgagee, the mortgagee may prove as a creditor for the deficiency, and receive dividends thereon rateably with the other creditors, but so as not to disturb any dividend then already declared.

Proceedings inquiry.

85. For the better taking of the accounts and inquiries in pursuance of rule 82 of these Rules, and making a title to the purchaser, all parties may be examined by the Court upon interrogatories or otherwise as the Court thinks fit, and shall produce before the Court upon oath all deeds, certificates, papers, books, and writings in their respective custody or power relating to the estate or effects of the bankrupt, as the Court directs.

Accounts &c.

86. In any proceeding between a mortgagor and mortgagee, or the trustee of either of them, the Court may direct any necessary inquiries or accounts to be made or taken notwithstanding that it may appear that there is some special or further relief sought for or some special issue to be tried, as to which it may be proper that the matter should proceed in the ordinary way.

Special directions as to mode of taking account.

87. The Court may either by the order directing the account to be taken or by any subsequent order, give special directions with regard to the mode in which the account is to be taken or vouched, and in particular may direct that, in taking the account, the books of account in which the accounts in question have been kept shall be taken as prima facie evidence of the truth of the matters therein contained, with liberty to the parties interested to take such objections thereto as they may be advised.

Accounts to be verified.

88.—(1.) Where any account is directed to be taken, the accounting party, unless the Court otherwise directs, shall make out his account and verify it by affidavit.

(2.) The items on each side of the account shall be numbered consecutively, and the account shall be referred to in the affidavit as an exhibit and filed in the Court.

Mode of vouching accounts.

89. Upon the taking of any account the Court may direct that the vouchers shall be produced at the office of the solicitor of the accounting party, or at any other convenient place, and that only such items as are contested or surcharged shall be brought before the Court.

Surcharge.

90. Any party seeking to charge any accounting party beyond what he has by his account admitted to have received shall give notice thereof to the accounting party, stating so far as he is able, in a short and succinct manner, the amount sought to be charged and the particulars thereof.

Accounts and inquiries to be numbered.

91. Whereby any order, whether made in Court or in Chambers, any accounts are directed to be taken or inquiries to be made each such direction shall be numbered so that, as far as may be, each distinct account and inquiry may be designated by a number.

Just allowances.

92. In taking any account directed by any order, all just allowances shall be made without any direction for that purpose.

Division 11.—Appropriation of Pay, Salary, Pensions and other Income.

Notice to bankrupt of application.

93.—(1.) When a trustee intends to apply to the Court for an appropriation under section 101 of the Act, he shall give to the bankrupt notice of his intention so to do.

(2.) The notice shall specify the time and place fixed for hearing the application, and shall state that the bankrupt is at liberty to show cause against the order being made.

(3.) The notice and order shall be in Forms 100 and 102 respectively.

Copy of order to be served.

94.—(1.) Where an order is made under section 101 or 102 of the Act, the Registrar shall give to the trustee or Official Receiver, as the case may be, a sealed copy of the order, and the trustee or Official Receiver shall communicate the contents of the order to the person or proper officer by whom the pay, pension, salary, emoluments, profit, wages, earnings or income is payable.

Review of order.

(2.) Where an order has been made for the payment by a bankrupt, or by his employer for the time being, of a portion of his income or salary, the bankrupt may, upon his ceasing to receive a salary or income of the amount he received when the order was made, apply to the Court to rescind the order, or to reduce the amount ordered to be paid by him to the trustee.

Division 12.—Warrants, Arrests and Commitments.

Attachment of property on sequestration.

95.—(1.) The Official Receiver or trustee or any person authorized by warrant under the hand of the Official Receiver may seize and lay an attachment in accordance with Form 150 on the bankrupt estate, and make an inventory thereof.

(2.) The person making such attachment shall leave with the person in whose possession any such property is attached a notice of the attachment and a copy of the said inventory in accordance with Form 151 having subjoined thereto a notice that the property of the bankrupt has been attached, and that any person who, knowing the same to have been so attached, disposes of, receives, removes, retains, conceals, or embezzles the same or any part thereof with intent to defeat the said attachment shall be liable to be imprisoned for a term of not more than three years.

To whom warrants addressed.

96. A warrant of seizure, or a search warrant, or any other warrant issued under the provisions of the Act, may be addressed to any constable, peace officer, or to such officer of any Court as the Court in each case directs.

Custody and production of debtor.

97. Where a debtor is arrested under a warrant issued under section 77 of the Act, he shall begiven into the custody of the governor or keeper of the prison, mentioned in the warrant, who shall produce the debtor before the Court as it from time to time directs, and shall safely keep him until such time as the Court otherwise orders; and any books, papers, moneys, goods and chattels in the possession of the debtor, which are seized, shall forthwith be lodged with the Official Receiver or trustee, as the case may be.

Recognizance of bail.

98. Recognizance of bail shall be in accordance with Form 155.

Execution of warrant.

99.—(1.) When a person is apprehended under a warrant issued under sub‑section (2.) of section 80 of the Act, the officer apprehending him shall forthwith bring him before the Court or magistrate issuing the warrant to the end that he may be examined, and if he cannot immediately be brought up for examination or examined, the officer shall deliver him into the custody of the governor or keeper of the prison mentioned in the warrant, and the governor or keeper shall

receive him into custody and shall produce him before the Court or the magistrate as it or he from time to time directs or orders, and subject to any such direction or order shall safely keep him.

(2.) The officer executing a warrant issued under sub‑section (2.) of section 80 of the Act shall forthwith, after apprehending the person named in the warrant and bringing him before the Court or the magistrate as mentioned in the last preceding sub‑rule, or after delivering him to the governor or keeper of the prison mentioned in that sub‑rule, as the case may be, report the apprehension or delivery to the Court or magistrate issuing the warrant, and apply to the Court or magistrate to appoint a day and time for the examination of the person so apprehended, and the Court or magistrate shall thereupon appoint the earliest practicable day for the examination, and shall issue its or his direction or order to the governor or keeper to produce him for examination at a place and time to be mentioned in the direction or order.

(3.) Notice of any appointment mentioned in the last preceding sub‑rule shall forthwith be given by the Registrar to the Official Receiver, trustee or other person who has applied for the examination or warrant.

Applications to commit.

100. An application to the Court to commit any person for contempt of Court shall be supported by affidavit, and be filed in the Court which the proceedings are taken.

Notice and hearing of application.

101. Subject to the provisions of the Act and these Rules, upon the filing of an application to commit, the Registrar shall fix a time and place for the Court to hear the application, notice whereof shall be personally served on the person sought to be committed, not less than three days before the day fixed for the hearing of the application:

Provided that, in any case in which the Court thinks fit, the Court may allow substituted service of the notice by advertisement or otherwise, or shorten or extend the length of notice to be given.

Suspension of issue of committal order.

102. Where an order of committal is made against a debtor, or against a trustee, for disobeying any order of the Court, or of the Official Receiver, to do some particular act or thing, the Court may direct that the order of committal shall not be issued, provided that the debtor or trustee, as the case may be, complies with the previous order within a specified time.

Committal of contumacious debtor or witness.

103.—(1.) If a debtor or witness examined before a Registrar refuses to answer to the satisfaction of the Registrar any question which he may allow to be put, the Registrar shall report the refusal in asummary way to the Judge, and, upon the report being made, the debtor or witness in default shall be in the same position and be dealt with in the same manner as if he had made default in answering before a Judge.

(2.) The report of the Registrar shall be in writing, but without affidavit, and shall set forth the question put, and the answer (if any) given by the debtor or witness, and may refer to the evidence given.

(3.) The Registrar shall, before the conclusion of the examination at which the default in answering is made, name the time when and the place where the default will be reported to the Judge; and, upon receiving the report, the Judge may take such action thereon as he thinks fit.

(4.) If the Judge is sitting at the time when the default in answering is made, the default may be reported immediately.

(5.) The report of the Registrar may be in accordance with Form 62.

Division 13.—Service and Execution of Process.

Address of solicitor for service.

104.—Every solicitor suing out or serving any petition, notice, summons, order, or other document, shall indorse thereon his name or firm and place of business, which shall be called his address for service, but if his place of business is not within two miles of the Registry in which the cause or matter is commenced, he shall add to hisown name or firm and place of business another proper place, which shall not be more than two miles from the Registry, which shall be his address for service.

Service on solicitor.

105. All notices, orders, documents, and other written communications which do not require personal service shall be deemed to be sufficiently served on the solicitor, if left for him at his address for service.

Hours for service.

106.—(1.) Service of notices, orders, or other proceedings shall be effected not later than the hour of four o’clock in the afternoon, except on Saturdays, when it shall be effected not later than the hour of one o’clock in the afternoon.

(2.) Service effected after four o’clock in the afternoon on any week day, except Saturday, shall for the purpose of computing any period of time subsequent to that service be deemed to have been effected on the following day.

(3.) Service effected after one o’clock in the afternoon on Saturday shall for the like purpose be deemed to have been effected on the following Monday.

Duties of officers of Court.

107.—(1.) It shall be the duty of such officer as the Court directs to serve such orders, summonses, petitions, and notices as the Court requires him to serve; to execute warrants and other process; to attend any sittings of the Court; and to do and perform all such things as are required of him by the Court.

(2.) This rule shall not be construed to require any order, summons, petition, or notice to be served by an officer of the Court which is not specially by the Act or these Rules required to be so served, unless, the Court in any particular proceeding by order specially so directs.

Service by post.

108. Where notice of an order or other proceeding in Court may be served by post it shall be sent by registered letter.

Evidence of identification.

109. Every affidavit of personal service shall contain evidence to the satisfaction of the Court as to identification of the person served.

Enforcement of orders.

110. Every order of the Court may be enforced as if it were a judgment of the Court to the same effect.

Division 14.—Trial by Jury.

Settlement of issues for trial.

111. Where upon any application to the Court for a decision on any question, the Court, with or without the application of any person, has directed that a question of fact be tried with a jury, the question of fact shall be reduced into writing and submitted to the Court for its

approval, and shall, when approved, be called the record for trial; but the Court shall have power to allow any amendment thereof at any time upon such terms as the Court thinks fit.

Special or common jury.

112. An order of the Court for the trial of a question of fact before a jury shall specify the place of trial, and whether it shall be before a special or a common jury, but the order may be amended by the substitution of one jury for the other, upon such terms as the Court thinks fit.

Mode of trial by jury.

113.—(1.) If the trial takes place before the Court it shall be had in the same manner as if it were the trial by a jury of an issue of fact in an action in the High Court.

(2.) If the trial takes place in any other Court it shall be had in the manner in which jury trials in ordinary cases are by law held in that Court.

Finding of jury to be certified to Court.

114. If a trial be had elsewhere than in the Court, the finding of the jury shall be certified by the Associate or other proper officer to the Court which shall make such order in the matter as it thinks fit.

Power to grant new trial.

115. In every case the Court before which the trial is had may grant a new trial if it thinks fit, and for such purpose the ordinary rules of practice and procedure in that Court shall apply.

Division 15.—Costs.

Awarding costs.

116.—(1.) The Court in awarding costs may direct that the costs of any matter or application shall be taxed and paid as between party and party or as between solicitor and client, or that full costs, charges, and expenses shall be allowed, or the Court may fix a sum to be paid in lieu of taxed costs.

(2.) In the absence of any express direction, costs of an opposed motion shall follow the event, and shall be taxed as between party and party.

(3.) Where an action is brought against an Official Receiver or trustee as representing the estate of the debtor, or where an Official Receiver or trustee is made a party to a cause or matter, on the application of any other party thereto, he shall not be personally liable for costs unless the Court in which the action is brought otherwise directs.

(4.) Where forms in the Schedules to these Rules are applicable, any costs occasioned by the use of any other or more prolix forms shall, unless the Court otherwise directs, be borne by or disallowed to the party using the other or more prolix forms.

Orders to be sealed and filed.

117. Every order for payment of money or costs, or either of them shall be sealed, and signed by the Registrar, and shall be forthwith filed with the proceedings.

Appointment of Taxing Officer.

118. The Taxing Officer shall be the Registrar or such officer as he with the approval of the Court or the Inspector‑General, appoints.

Taxation of costs.

119. The costs directed by any order to be paid shall be taxed on production of the order or an office copy of the order, and the allocatur shall be signed and dated by the Taxing Officer, who shall be the prescribed officer for the purposes of section 136 of the Act.

Bills to be taxed and scales of costs and charges.

120. The bills to be taxed shall be bills of costs, charges, fees and disbursements of the persons specified in section 136 of the Act and any costs in any proceedings which the Act, those Rules, or the Court direct

 

to be taxed, and the scales of costs set forth in the Second Schedule to these Rules, and the general directions contained in the scales, shall, subject to these Rules, apply to the taxation and allowance of costs and charges, in all such matters.

Costs of debtor’s solicitor.

121.—(1.) Where in any “administration” as defined in section 88a of the Act a solicitor has been employed to assist the debtor in obtaining the protection of the Act and preparing his statement of affairs, the Official Receiver or trustee, as the case may be, may certify that the services of the solicitor were necessary in the interest of the estate and thereupon the bill of costs of the solicitor may be taxed and paid out of the estate in the order prescribed in paragraph (f) of Rule 135.

(2.) Costs and charges in respect to the statements of affairs may be allowed in accordance with the scale in the Second Schedule to these Rules.

Re‑taxation of costs when assets realize more than certified amounts.

122.—(1.) The solicitor employed to assist the debtor in seeking the protection of the Act by any “administration” as defined in section 88a of the Act shall, in his bill of costs, give credit for such sum or security (if any) as he has received from the debtor or any other person on account of the costs and expenses to be incurred in obtaining such protection; and the amount of any such sum or security shall be noted by the Taxing Officer upon the allocatur issued for the costs, and if the amount received from the debtor or other person exceeds the amount of the taxed costs, the solicitor shall pay the balance to the Official Receiver or trustee.

(2.)The bill of costs and credit shall be verified by affidavit.

Certificate of employment.

123. Before taxing the bill or charges of any solicitor, manager, accountant, auctioneer or other person employed by an Official Receiver or trustee, the Taxing Officer shall require a certificate of such employment in writing, signed by the Official Receiver or trustee, as the case may be, to be produced to him, setting forth whether any, and if so what, special terms of remuneration have been agreed to.

Certificate of proper performance of work.

124. Where any solicitor has been employed by the debtor or a trustee in the preparation of any statement of affairs or deed of assignment or arrangement, he shall produce to the Taxing Officer a certificate from the Official Receiver or trustee showing that such statement or deed has been prepared in a proper manner.

Costs paid otherwise than out of estate.

125. When a bill of costs is taxed under any special order of the Court, and it appears by the order that the costs are to be paid otherwise than out of the estate of the bankrupt, the Taxing Officer shall specially note upon the allocatur by whom, or the manner in which, the costs are to be paid.

Bills of costs to be filed.

126. Upon the taxation of any bill of costs, charges, or expenses, being completed, the Taxing Officer shall forthwith file the bill with the proceedings in the matter, and shall issue to the person presenting the bill for taxation his allocatur or certificate of taxation, which shall be in accordance with Form 148 or 149, as the case may be.

Sheriff’s costs.

127. In any case inwhich, pursuant to sub‑section (1.) of section 93 of the Act, a sheriff is required to deliver goods (including money) to an Official Receiver or trustee, the sheriff shall, without delay, bring

in his bill of costs for taxation, which shall be taxed by the Taxing Officer of the Court having jurisdiction in the bankruptcy; and unless the bill of costs is brought in for taxation within fourteen days from the date when the sheriff makes the delivery, the Official Receiver or trustee may decline to pay it.

Taxation of sheriff’s costs after deduction.

128.—(1.) If the Official Receiver or trustee, in writing, requires any costs which a sheriff has deducted under sub‑section (2.) of section 93 of the Act to be taxed, the sheriff shall, within seven days from the date of the request, bring in those costs for taxation, and those costs shall be taxed by the Taxing Officer of the Court having jurisdiction in the bankruptcy.

(2.) Any amount disallowed on the taxation shall forthwith be paid over by the sheriff to the Official Receiver or trustee, as the case requires.

Appointment to tax and notice thereof.

129.—(1.) Every person whose bill or charges is or are to be taxed shall lodge the bill or charges with the Taxing Officer who shall appoint a time for the taxation and thereafter the person shall give to the Official Receiver or trustee not less than five days’ notice of the appointment to tax the bill or charges, and at the same time lodge a copy of the bill or charges with the Official Receiver (if incurred prior to the appointment of a trustee) or the trustee without cost to the estate.

(2.) The Official Receiver or trustee shall call the attention of the Taxing Officer to any items which, in his opinion, ought to be disallowed or reduced.

Application for costs.

130. Where any party to, or person affected by, any proceeding desires to make an application for an order that he be allowed his costs, or any part of them, incident to the proceeding, and the application is not made at the time of the proceeding—

(a)the party or person shall serve notice of his intended application on the Official Receiver, and, if a trustee has been appointed, on the trustee and any other party interested;

(b) the Official Receiver and trustee or other party may appear on the application and object thereto;

(c) no costs of or incidental to the application shall be allowed to the applicant, unless the Court is satisfied that the application could not have been made at the time of the proceeding.

Review of taxation by Register.

131.—(1.) Where any bill of costs, charges, fees, or disbursements of any solicitor, manager, accountant, auctioneer or other person have been taxed, the Official Receiver or trustee or other person interested may require the taxation to be reviewed by the Registrar.

(2.) In any case in which the Official Receiver, trustee or other person requires a review of taxation in pursuance of the last preceding sub‑rule he shall give notice to the person whose bill has been taxed, and shall apply to the Registrar to appoint a time for the review of the taxation, and thereupon the Registrar shall appoint a time for the review of, and shall review, the taxation.

(3.) The Official Receiver, trustee or other person shall forthwith give to the person whose bill of costs is to be reviewed notice of the time appointed for the review.

(4.) The Official Receiver or trustee may appear upon the review of the taxation; and if, upon the review of taxation, the bill is allowed at a lower sum than the sum allowed upon the previous taxation, the amount disallowed shall (if the bill has been paid) be repaid to the Official Receiver, or the trustee, or other person entitled thereto.

(5.) The certificate of the Registrar shall in every case of a review by him under this rule be a sufficient authority to entitle the person to whom the amount disallowed ought to be repaid to demand the amount from the person liable to repay it.

(6.) There shall be allowed to the person whose bill is reviewed such costs of and incidental to his appearance on the review as the Registrar thinks proper, and those costs shall be paid to that person not of the estate:

Provided that the costs of the attendance of a principal shall not be allowed if in the opinion of the Register be could have been sufficiently represented at less expense by his agent.

Evidence on review by Register.

132. Upon an application for review, the Taxing Officer shall reconsider and review his taxation upon any objection, and he may, if he thinks fit, receive further evidence in respect thereof, and if so required by the solicitor or any person interested he shall state either in his certificate of taxation or allocatur or by reference to such objection the grounds and reasons of his decision thereon and any special facts or circumstances relating thereto.

Appeal to Judge.

133. Any person who may be dissatisfied with the certificate or allocatur of the Taxing Officer as to any item or part of an item which may have been objected to as aforesaid, may within fourteen days from the date of the certificate or allocatur or such other time as the Court or Judge or Taxing Officer at the time he signs his certificate or allocatur may allow, apply to the Judge for an order to review the taxation as to the same item, or part of an item, and the Judge may thereupon, without being bound by the discretion of the Taxing Officer, make such order as the Judge thinks just.

Evidence on appeal to Judge.

134. Such application shall be heard and determined by the Judge upon the evidence which shall have been brought in before the Taxing Officer, and no further evidence shall be received upon the hearing thereof unless the Judge otherwise directs.

Priority of costs and charged payable out of estate.

135. The assets in every matter remaining, after payment of the actual expenses incurred in realizing any of the assets of the debtor, shall, subject to any order of the Court, be liable to the following payments, which shall be made in the following order of priority, namely:—

(a) the actual expenses incurred by the Official Receiver in protecting the property or assets of the debtor, or any part thereof, and any expenses or outlay incurred by him or by his authority in carrying on the business of the debtor;

(b) the fees, percentages, and charges payable under Table B of the Scale of Official Fees and Percentages in the Third Schedule; and any other fees payable to, or costs, charges, and expenses incurred or authorized by the Official Receiver or ordered by the Court;

(c)the deposit or deposits lodged by the petitioning creditor pursuant to these Rules;

(d)the deposit or deposits lodged on any application for the appointment of an Interim Receiver;

(e) the remuneration of the special manager (if any);

(f) the remuneration and charges of the person (if any) appointed to assist the debtor in the preparation of his statement of affairs;

(g) any allowance made to the debtor by the Official Receiver;

(h) the taxed costs of the petitioning creditor;

(i) the remuneration of the trustee;

(j) the taxed charges of any shorthand writer appointed by the Court or the charges payable under Table A in the Third Schedule;

(k)the trustee’s necessary disbursements other than actual expenses of realization, and the percentage payable under Item 13 of Table A in the Third Schedule;

(l) the costs of any person properly employed by the trustee;

(m)any allowance made to the debtor by the trusted with the sanction of the creditors by resolution at any general meeting, or the Committee of Inspection or the Court; and

(n)the actual out‑of‑pocket expenses necessarily incurred by the Committee of Inspection.

Disallowance of costs of unnecessary petition.

136. In any case in which, after a bankruptcy petition has been presented by a creditor against a debtor, and before the hearing of the petition, the debtor files a petition, and a sequestration order is made on the petition of the debtor, unless in the opinion of the Court the estate has benefited thereby, or there are special circumstances which make it just that the costs should be allowed, no costs shall be allowed to the debtor or his solicitor out of the estate, and the sequestration order shall be deemed to have been made on the petition of the petitioning creditor, and the costs of his petition shall be allowed the petitioning creditor.

Apportionment of costs in case of partnership.

137. In the case of a bankruptcy petition against a partnership, the costs payable out of the estates incurred up to and inclusive of the sequestration order shall be apportioned between the joint and separate estates in such proportions as the Official Receiver in his discretion determines.

Costs out of joint or separate estates.

138.—(1.) Where the joint estate of any co‑debtors is insufficient to defray any costs or charges properly incurred prior to the appointment of the trustee, the Official Receiver may pay or direct the trustee to pay the costs or charges out of the separate estates of the co‑debtors, or one or more of them, in such proportions as in his discretion the Official Receiver thinks fit.

(2.) The Official Receiver may also, as in his discretion he thinks fit, pay or direct the trustee to pay any costs or charges properly incurred, prior to the appointment of the trustee, for any separate estate out of the joint estate or out of any other separate estate, and any part of the costs or charges of the joint estate incurred prior to the appointment of the trustee which affects any separate estate out of that separate estate.

(3.) Where the joint estate of any co‑debtors is insufficient to defray any costs or charges properly incurred after the appointment of the trustee, the trustee may, subject to sub‑rule (5.) of this rule, pay the costs or charges out of the separate estates of the co‑debtors, or one or more of them.

(4.) The trustee may, subject to the next succeeding sub‑rule, pay any costs or charges properly incurred for any separate estate, after his appointment out of the joint estate, and any part of the costs or charges of the joint estate incurred after his appointment which affects any separate estate out of that separate estate.

(5.) No payment under the last preceding sub‑rule shall be made out of a separate estate or joint estate by a trustee without the consent by resolution at any general meeting of the creditors of the estate out of which the payment is intended to be made, or, if the creditors withhold, refuse, or otherwise fail to give their consent, without an order of the Court.

Division 16.—Appeals.

Time for appeal.

139.—(1.) Subject to the powers of the High Court to extend the time, no appeal to the High Court from any order of the Court shall be brought after the expiration of twenty‑one days.

(2.) That period shall be calculated from the day the order is pronounced, or, in the case of the refusal of an application, from the date of the refusal.

Notice of appeal.

140. Upon entering an appeal, a copy of the notice of appeal shall forthwith be sent by the appellant to the Registrar, who shall mark thereon the date when received and forthwith file it with the proceedings.

Division 17.—Review of Order or Act of Registrar.

Review of order or act of Registrar.

141.—(1.) Whenever any person affected by any order or act of the Registrar desires that the order or act be reviewed by the Court, be may, within fourteen days after the date of the order or act, file in the office of the Registrar an application for review, signed by such person or his solicitor, which notice shall specify the order or act in question, and state shortly the particular matter complained of and the grounds upon which it is claimed that the order or act should be reviewed.

(2.) If any question arises as to what evidence was used before the Registrar, it shall be determined by his certificate.

(3.) The Court may direct notice of the application to be served upon any party interested.

Re‑hearing.

142.—(1.) If it appears to the Judge that any material evidence can be offered by the applicant which could not have been tendered or which there was reasonable excuse for not tendering on the original hearing, then the Judge may, on such terms as he deems reasonable, direct a re‑hearing before the Registrar.

(2.) The Court may set aside, vary, confirm or do anything the Registrar could have done at the original hearing.

Part III.—Proceedings from Act of Bankruptcy to Discharge.

Division 1.—Declaration of Inability to pay Debts.

Form of declaration.

143.—(1.) A declaration of a debtor of his inability to pay his debts shall be dated, signed, and witnessed, and shall be in accordance with Form 2, with such variations as circumstances require, and shall be notified in the Commonwealth Gazette.

(2.) The witness shall be a solicitor, justice of the peace, a Commissioner, an Official Receiver or Registrar.

Division 2.—Bankruptcy Notice.

Court to issue notice.

144. A bankruptcy notice issued by the Court shall be in accordance with Form 5.

Issue of notice.

145.—(1.) A creditor, desiring a bankruptcy notice to be issued shall produce to the Registrar an office copy of the judgment or final order on which the notice is founded and file the notice, together with a request for issue, which shall be in accordance with Form 4.

(2.) The creditor shall at the same time lodge with the Registrar two copies of the bankruptcy notice to be sealed and issued for service.

Indorsement of address, &c.

146.—(1.) Every bankruptcy notice shall be indorsed with the name and place of business of the solicitor actually suing out the notice, or if no solicitor is employed, with a memorandum that it is sued out by the creditor in person.

(2.) There shall also be indorsed on every bankruptcy notice an intimation to the debtor that if he has a counter claim, set off, or cross demand which equals or exceeds the amount of the judgment debt, and which he could not have set up in the action in which the judgment or final order was obtained, he must within the time specified in the notice file an affidavit to that effect with the Registrar.

(3.) In the case of a notice served in a capital city situated in any District, the time shall be three days.

(4.) In the case of a notice served elsewhere, the Court, when issuing the notice, shall fix the time.

Application to set aside.

147.—(1.) The filing of the affidavit referred to in sub‑rule (2.) of the last preceding rule shalloperate as an application to set aside the bankruptcy notice, and thereupon the Registrar shall fix a day for the hearing of the application, and not less than three days before the day so fixed shall give notice thereof both to the debtor and the creditor, and their respective solicitors, if known.

(2.) If the application cannot be heard until after the expiration of the time specified in the notice as the day on which the act of bankruptcy will be complete, the Registrar shall extend the time, and no act of bankruptcy shall be deemed to have been committed under the notice until the application has been heard and determined.

Duration of notice.

148. Subject to the power of the Court to extend the time, a bankruptcy notice shall be served within one month after the issue thereof.

Service of notice.

149. A bankruptcy notice shall be served, and service thereof shall be proved, in the like manner as is by these Rules prescribed for the service of a creditor’s petition.

Division 3.—Bankruptcy Petition.

Form of petition.

150.—(1.) Every petition shall be fairly written or printed, or partly written and partly printed, and no alterations, interlineations, or erasures shall be made without the leave of the Registrar, except so far as is necessary to adapt a printed form to the circumstances of the particular case.

(2.) A debtor’s petition shall be in accordance with Form 3, and a creditor’s petition shall be in accordance with Form 9.

Description and address of debtor.

151.—(1.) Where a petition is presented by a debtor he shall, besides inserting therein his name and description, and his address at the date when the petition was presented, further describe himself as lately residing or carrying on business at the address or several addresses, as the case may be, at which he has incurred debts and liabilities which at the date of the petition remain unpaid or unsatisfied.

(2.) Where a petition is presented against a debtor who resides or carries on business at an address other than the address at which the debtor was residing or carrying on business at the time of contracting the debt or liability in respect of which the petition is presented, the petitioning creditor, in addition to stating in the petition the description of the debtor, as of his then present address and description shall, in the petition, describe the debtor as lately residing or carrying on business at the address at which he was residing or carrying on business when the debt or liability was incurred.

(3.) Where a sequestration order is made against a debtor on the petition of a creditor the Court may amend any error or supply any omissions in the name or description of the debtor in any of the proceedings prior to or under the bankruptcy, and notice thereof shall be given by the Official Receiver by advertisement in the Commonwealth Gazette.

(4.) Where any such amendment is made, the proceedings as amended shall in all Courts be read and have the like force and effect as if they had originally been in the amended form.

(5.) The costs of and incidental to any such amendment shall be paid out of the estate of the debtor unless the Court otherwise directs.

Attestation.

152.—(1.) Every bankruptcy petition shall be attested.

(2.) If it be attested in Australia the witness shall be a solicitor, the Official Receiver, Registrar, or a Commissioner.

(3.) If it be attested out of Australia the witness shall be a judge or a magistrate or a British Consul or a notary public.

Deposit by petitioning creditor.

153.—(1.) Upon the presentation of a petition by a creditor he shall deposit with the Registrar the sum of Five pounds, and such further sum (if any) as the Court from time to time directs, to cover the fees and expenses to be incurred by the Official Receiver, and no petition shall be received unless such deposit shall have been duly made.

(2.) When the sequestration order is made the Registrar shall pay such deposit to the Official Receiver who shall account therefor to the debtor’s estate and any sum so paid by a petitioning creditor shall be repaid to the creditor (except and so far as the deposit may be required by reason of insufficiency of assets for the payment of the fees and expenses incurred by the Official Receiver) out of the proceeds of the estate in the priority prescribed by these Rules.

(3.) If a sequestration order is not made and the Court permits the petition to be withdrawn the Registrar shall account for the deposit to the creditor.

Deposit by petitioning debtor.

154. Prior to the presentation of a petition by a debtor he shall deposit with the Official Receiver the sum of Five pounds to cover the fees and expenses to be incurred by the Official Receiver, and no petition shall be received unless proof is produced to the Registrar that the deposit has been duly made or the amount of the deposit is lodged with that officer:

Provided that the Court may, upon good cause shown, in any particular case, order that the debtor pay the Official Receiver’s fees and expenses by specified instalments within a specified period. The procedure upon such an application shall be in accordance with sub‑rule (1.) of Rule 68.

Division 4.—Creditor’s Petition.

Security for costs.

155. A petitioning creditor who is resident abroad, or whose estate is vested in a trustee under any law relating to bankruptcy, or against whom a petition is pending under the Act, or who has made default in payment of any costs ordered by the Court to be paid by him to the debtor, may be ordered to give security for costs to the debtor.

Verification and copies of creditor’s petition.

156. Every creditor’s petition shall state the date of the act of bankruptcy and shall be verified by affidavit. When it is presented there shall be lodged with it two or more copies to be sealed and issued to the petitioner.

Proof of service of trustee’s petition under deed of arrangement.

157. Where a petition is presented by a trustee under a deed of arrangement as attorney, proof must be made of service upon the debtor of a sealed copy of the petition and the affidavit in support.

Who to verify.

158. When the petitioning creditor cannot himself verify all the statements contained in his petition, he shall, except ashereinafter provided, file in support of the petition the affidavit of some person who can depose to them.

Joint petitioners.

159. Where a petition is presented by two or more creditors jointly, it shall not be necessary that each creditor shall depose to the truth of all the statements which are within his own knowledge; but it shall be sufficient that each statement in the petition is deposed to by someone within whose knowledge it is.

Notice where act of bankruptcy it execution of deed of arrangement.

160. Where a petition is founded on the execution of a deed of arrangement, the petitioning, creditor shall at the time of presenting the petition furnish to the Registrar for transmission to the trustee of the deed a notice of the date and time of the hearing of the petition.

Sheriff’s affidavit to be annexed to petition under s. 52 (e) of Act.

161. Where the ground of the petition is an unsatisfied execution under paragraph (e) of section 52of the Act, the affidavit of the Sheriff with copy of warrant shall be annexed to the petition.

Investigation of petition.

162. After the presentation of a creditor’s petition, and before sealing the copies of the petition for service, the statements in the petition shall be investigated by the Registrar, and where some of the statements in the petition cannot be verified by affidavit, witnesses may be summoned to verify them.

Personal service.

163. A creditor’s petition shall be personally served by delivering to the debtor a sealed copy of the filed petition together with a copy of each affidavit in support thereof.

I, of Make Oath and say:—

* Plaintiff, or as the case may be.

1. The action(s) abovementioned has/have been commenced and is/are now pending in the  Court of  against the said debtor at the suit of the* abovementioned in respect of debts or liabilities which would be provable in bankruptcy if a sequestration order were made against the debtor.

2. Assolicitor for the said debtor, and under his instructions, I have called a meeting of his creditors pursuant to section 157 of the Bankruptcy Act 1924‑1933, by posting (or delivering) on the day of 19 circulars to the residence or place of business of each of the creditors of the said debtor, such meeting to be held at on the day of 19 , being not less than three nor more than twenty‑one days after the day of such posting (or delivering).*

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

Sworn the  day of  19  at

Before me,

_______________

No. 4.

Commonwealth of Australia.

The Bankruptcy Act 1924‑1933.—Part XI.

Order for Stay of Proceedings.

(Title.)

and

In the matter of a (proposed) meeting of creditors of in the said State,  the said debtor, and

* Plaintiff, or as the case may be.

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

and the said debtor is the defendant,  and

In the matter of the Bankruptcy Act 1924‑1933.

Upon the application of and upon reading the affidavit of  this Court doth order that all proceedings in the abovementioned action (s) in the court of numbered No. of be stayed in terms of section 159 of the Bankruptcy Act 1924‑1933.

Dated this day of 19 .

By the Court,

Registrar.

No. 5.

Commonwealth of Australia.

The Bankruptcy Act 1924‑1933.—Part XI.

Chairman’s Certificate of Extraordinary Resolution for Acceptance of Composition or Scheme of Arrangement or for Confirmation.

(Title.)

I hereby certify that at a meeting of the creditors of A.B., duly convened and held at  on the  day of    19 , the following extraordinary resolution was duly passed.

Dated this day of 19 .

Chairman.

_______________

No. 6.

Commonwealth of Australia.

The Bankruptcy Act 1924‑1933.—Part XI.

Chairman’s Certificate of Special Resolution for Deed of Assignment.

(Title.)

I hereby certify that at a meeting of the creditors of  of  duly convened and held at on the day of 19 , a special resolution was duly carried that the said   do execute a Deed of Assignment in pursuance of Part XI of the Bankruptcy Act 1924‑1933 to of

as trustee.

Chairman.

_______________

No. 7.

Commonwealth of Australia.

The Bankruptcy Act 1924‑1933.—Part XI.

Chairman’s Certificate of Confirmation of Extraordinary Resolution.

(Title.)

I, hereby certify that at a meeting of the creditors of  of  duly convened and held at  on the  day of  19 , the following extraordinary resolution was duly passed—“That the extraordinary resolution (copy resolution) be and is hereby confirmed.”

Dated this day of 19 .

Chairman.

_______________

No. 8.

Commonwealth of Australia.

The Bankruptcy Act 1924‑1933.—Part XI.

Warrant to Seize Personal Estate of Debtor.

(Title.)

Whereas at a meeting of the creditors of  of  duly convened and held at  on the  day of  19  , a special resolution was duly carried that the said  do execute a Deed of Assignment in pursuance of the Bankruptcy Act 1924‑1933 to of as trustee:

This is to authorize you to seize all the personal estate of the said

Chairman of the said meeting.

To A.B., of and his assistants.

 

No. 9.

The Bankruptcy Act 1924‑1933.—Part XI.

Declaration by Debtor Verifying Schedules to Deed.

Directions to be observed in the use of the foregoing form. The blanks to be filled up as follows:—

(1) Name of debtor.

(2) Name of trustee.

(3) Date of deed.

(4) Residence and occupation of debtor.

to wit.

In the matter of the deed and schedules 1 and 2 thereto hereto annexed, made in pursuance of the Bankruptcy Act 1924‑1933, whereby (1)  conveys and assigns his real and personal estate to (2)   as trustee for the benefit of his creditors, which deed is dated the (3) day of 19  , I (1) of (4)

make oath and say;—

1. The foregoing First Schedule contains a true and particular account of all the property which under a sequestration order would be divisible amongst my creditors of which I am or any person in trust for me is possessed, or to which I am or any such person is entitled legally or equitably in possession, reversion, remainder or expectancy, so far as I am able to set forth the same.

2. The foregoing Second Schedule contains the names of my several creditors and the amounts respectively due to such creditors, so far as I am able to set forth the same.

Sworn at  in  the State of  this  day of 19  .

before me

_________

No. 10.

The Bankruptcy Act 1924‑1933.—Part XI.

Notice of Execution of Deed.

(Title.)

Notice is hereby given that the above‑named debtor has executed a deed of assignment to  , of   , and the same is now lying for inspection and execution at

Dated this   day of   , 193 .

Trustee.

_________

No. 11.

Commonwealth of Australia.

The Bankruptcy Act 1924‑1933.—Part XI.

Certificate of due Execution and Validity of Deed of Assignment.

(Title.)

At   the   day of  19 .

In the matter of a deed made in pursuance of the Bankruptcy Act 1924‑1933 by of , dated the day of 19

 

Upon the application of  , the trustee of the above mentioned deed   , this Court doth find that the above‑mentioned deed was duly made and executed under the provisions of the Bankruptcy Act 1924‑1933, and that the provisions of the said Act affecting the validity of the said deed have been complied with.

By the Court,

Registrar.

________

No. 12.

Commonwealth of Australia.

The Bankruptcy Act 1924‑1933.—Part XI.

Application to Consider Composition or Scheme.

(Title.)

I,  , of  , a creditor in the estate of the above‑named debtor, hereby apply to the Court to fix a day for the consideration of the composition [or scheme] accepted at the meeting of creditors of the aforesaid debtor, held the day of   19 , and confirmed at a meeting held the   day of    19 .

Dated the  day of  19 .

Signature.

(Order.)

Upon hearing  it is ordered that the aforesaid composition [or scheme] be considered at  on the  day of  19 , at  o’clock in the noon.

Dated the  day of  19 .

Registrar.

_______

No. 13.

Commonwealth of Australia.

The Bankruptcy Act 1924‑1933.—Part XI.

Notice of Intention to Oppose Approval of Composition or Scheme.

(Title.)

Take notice that  of  , a creditor of the above‑named debtor, intends to oppose the approval bythe Court of the composition [or scheme of arrangement] accepted by the creditors of the said debtor, on the day of  19 , on the following grounds:—

[State grounds of objection.]

Signature.

No. 14.

The Bankruptcy Act 1924‑1933.—Part XI.

Notice under Section 175 to Creditor Who Has Not Proved Debt.

(Title.)

To

In the assigned estate of  of

Notice is hereby given that the trustee herein, in pursuance of section 175 of Part XI. of the Bankruptcy Act 1924‑1933, has this day filed in the Bankruptcy Court such account (dividend sheet) as by the said Act is required. It is proposed to pay a dividend of in the pound ( in the £) to all creditors who have proved their claims and have signed the deed or assented thereto in writing on and after , the day of 19 , at the offices of

Unless you prove your debt and assent to the deed within one month from the posting of this notice, you will be excluded from all benefits under the deed.

Dated at  , this  day of  19 .

Trustee.

_______

No. 15.

Commonwealth of Australia.

The Bankruptcy Act 1924‑1933.—Part XI.

Application to the Court to Declare Deed Void.

(Title.)

At   the   day of   19 .

In the matter of a deed made in pursuance of the Bankruptcy Act 1924‑1933 by of dated the day of 19 .

* See s. 176 (1.) (a) (b).

Take notice that the Court will be moved on  the day of   19  , at in the forenoon or as soon thereafter as counsel can be heard on behalf of a creditor of the above‑named   for an order declaring the above‑mentioned deed void on the following grounds:—*

Dated the  day of   19 .

To the Registrar,

Court of Bankruptcy.

To

Trustee.

To

Debtor.

This notice must be served personally  clear days before the day set down for hearing.

________

No. 16.

Commonwealth of Australia.

The Bankruptcy Act 1924‑1933.—Part XI.

Order Declaring Deed Void.

(Title.)

In the Court of Bankruptcy   the   day of   19 .

Upon the application made to this Court   day of   19  of   a creditor of the above‑named debtor and upon hearing    of counsel for the applicant and

 

of counsel for the said  and upon reading the notice of motion filed herein on the  day of   19 , and upon hearing the oral evidence adduced on behalf of the applicant and the said   the debtor and upon reading the documentary evidence put in upon the hearing. This Court having found   , doth hereby declare the said deed to be void accordingly and this Court doth order (as to costs).

By the Court,

Registrar.

________

No. 17.

Commonwealth of Australia.

The Bankruptcy Act 1924‑1933.—Part XI.

Statement of Account. (Section 175.)

No.   of 19 .

In the matter of   , of [here state address and description of debtor], under Deed of Assignment dated   day of  , 19 .

Statement showing position of estate at the   day of   19 .

Dr.   Cr.

—	Estimated to produce per Debtor’s Statement.			Receipts.			—	Payments.
To receipts from date of Assignment, viz.:— (Here give particulars under the headings specified in the debtor’s Statement of Affairs) and also— Book debts collected by trustee.......................................... Book debts collected by agent of trustee...............................	£	s.	d.	£	s.	d.	By— Taxed costs of deed....................................... Other law costs.............................................. Trustee’s remuneration.................................. Costs of securing and protecting assets......... Special Manager’s or Agents’ charges.......... Postage, stationery, printing, fees, &c........... Allowance to debtor...................................... Payments per Trading Account (if any)........ Amounts paid to secured creditors (if any)... Preferential creditors..................................... Dividend now declared of s. d. in the £ on £ Dividends previously declared...................... (The debtor’s estimate of amount expected to rank for dividend was £  )	£	s.	d.
Other Receipts, viz.:— Receipts per Trading Account (if any)
				Total......................................................							Total.......................................................

Assets not realized—£ .

[Add here any special remarks trustee thinks desirable.]

Dated this   day of   , 19 .

(Signature of Trustee.)

(Address.)

 

No. 18.

Commonwealth of Australia.

The Bankruptcy Act 1924‑1933.—Part XI.

Register of Compositions, Schemes of Arrangement and Deeds of Assignment.

District of

No. Name and Address of Debtor. Occupation. Date of Meeting of Creditors. Date of Filling Chairman’s Certificate of Resolutions. Date Composition or Scheme Accepted. Amount of Composition. Date of Deed of Assignment. Name and Address of Trustee. Place where Deed Available for Inspection. Date of Advertisement in Gazette. Date of Filling Copy of Deed. Amount of Debtors Property. Amount of Debtors Liability. Remarks (Solicitors, &c)

_________

No. 19.

Commonwealth of Australia.

The Bankruptcy Act 1924‑1933.—Part XI.

Notice of Composition, Scheme of Arrangement, or Deed of Assignment.

To the

District of

No. Name, Residence, and Occupation of Debtor. Name of Trustee. Place where deed is lying for inspection and execution or nature of composition or scheme of arrangement. Date of composition; scheme of arrangement or deed.

Registrar.

THE FIFTH SCHEDULE.

FORMS.

No. 1.

General Title.

(1) Add description.

(2) Strike out words in brackets if deed has not been already registered.

In the matter of a Deed of Arrangement between of  ,(1) and his creditors, dated the day of   , 19 (2) (and registered under the BankruptcyAct 1924‑1933 on the day of , 19 ).

Trustee (A.B.) of:

______

No. 2.

The Bankruptcy Act 1924‑1933.—Part XII.

Statutory Declaration by Debtor Verifying Schedules to Deed.

(1) Name of debtor.

(2) Name of trustee.

(3) Date of deed.

(4) Residence and occupation of debtor.

In the matter of the deed and Schedules 1 and 2 hereto annexed, made in pursuance of the. Bankruptcy Act 1924‑1933, whereby (1) conveys and assigns his real and personal estate to (2)  as trustee for the benefit of his creditors, which deed is dated the (3) day of   19 .

I (1)   of (4) in   do solemnly and sincerely declare that—

1. The foregoing first schedule contains a true and particular account of all the property of which I am possessed, or to which I or any person in trust for me am or is entitled legally and equitably in possession, reversion, remainder or expectancy which under a sequestration order would be divisible amongst my creditors so far as I am able to set forth the same.

2. The foregoing second schedule contains the names of my several creditors and the amounts respectively due to such creditors so far as I am able to set forth the same.

And I make this solemn declaration by virtue of the Statutory Declarations Act 1911 conscientiously believing the statements contained therein to be true in every particular.

Declared at   in  the

day of  One thousand nine hundred

and

Before me—

(A Justice of the Peace or Commissioner, &c)

_______

No. 3.

The Bankruptcy Act 1924‑1933.—Part XII.

Assent of Creditor to Deed.

(Title.).

I, (or we), being a creditor (or creditors) of   for £ , hereby assent to the above‑mentioned Deed of Arrangement.

Dated this  day of  , 19 .

(C.D)

Name, address, and description of witness to creditor’s signature.

W.B.

No. 4.

The Bankruptcy Act 1924‑1933.—Part XII.

Affidavit of Trustee or Person Registering the Deed to be Filed with Registrar as to Assents of Creditors.

(Title.)

I   being the trustee under/the person registering the above‑mentioned deed of arrangement make oath and say as follows:—

The requisite majority in number and value of the creditors of the said   stated in the debtor’s affidavit filed in accordance with the provisions of paragraph (b) of section 194 of the above‑mentioned Act or otherwise known to me have (not) assented to the said deed of arrangement.

Sworn at   in   this   day of One thousand nine hundred and

Before me—

_______

No. 5.

The Bankruptcy Act 1924‑1933.—Part XII.

Affidavit of Execution by Debtor.

(Title)

In the Court of Bankruptcy, District of  .

I,  , of  , make oath and say as follows:—

(a) State whether deed of assignment of property; or agreement for a composition, or as the case may be.

1. The document hereto annexed marked “A” is a true copy ofa deed of (a)  andof every schedule or inventory thereto annexed or therein referred to, and of every attestation of the execution thereof.

2. The deed was executed on the day of   19 , by the debtor, at  of the clock in the (fore) (after) noon. I was present when thedebtor executed the said deed and saw him execute the same.

(b) Insert name, residence, and occupation of the debtor.

3. The said (b) resides at and is a .

(c) State also in what other names (if any) debtor carries on business.

4. Theplace or places where the business of the said is carried on is(or are) as follows:—(c).

 

Sworn at  in the State of  this day of  19 .

Before me—

______

No. 6.

The Bankruptcy Act 1924‑1933.—Part XII.

Affidavit of Execution where Deed is first Executed by a Creditor.

(Title.)

In the Court of Bankruptcy, District of .

I,   of  , make oath and say as follows:—

(a)State whether deed of assignment of property; deed of agreement for a composition or as case may be.

1. The document hereto annexed marked “A” is a true copy of a deed of (a) and of every schedule or inventory thereto annexed or therein referred to.

(b) Insert name, residence, and occupation of creditor.

2. The deed was first executed by (b)   a creditor (who resides at  , and is  ), on the day of   19 , at   of the clock in the fore (after) noon. I was present when the said   executed the said deed, and saw him execute the same.

(c)Insert name, residence and occupation of debtor.

3. The debtor (c) resides at , and is .

(d) State also in what other names (if any)debtor carries on business.

4. The place or places where the business of the said debtor is carried on is (or are) as follows:—(d).

 

Sworn at    in the State of   this   day of   19 .

Before me—

 

No. 7

The Bankruptcy Act 1924‑1933.— Part XII.

Debtor’s Affidavit.

(Title.)

In the Court of Bankruptcy, District of .

I   of   in the State of  make oath and say:

(a)State whether deed of assignment of property; deed of agreement for a composition or as case may be.

1. That on the day of 19 I executed a deed of (a).

(b) The estimated surplus (if any) from securities held by creditors should not be deducted from the gross amount of property.

2. The total estimated amount of my property included under the deed is £  and the net amount of my property included under the deed after deducting £  being the value (b) of securities held by creditors and required to cover debts due to them is £ .

(c) This amount must correspond with the amount of securities deducted above. No deduction should be made in respect of the unsecured balances of partially secured debts.

3. The total estimated amount of my liabilities included under the deed is £  and the net amount of my Liabilities included under the deed after deducting £  being (c) the amount covered by securities held by creditors is £  .

(d) If there is no compositionpayable, strike this clause out.

4. (d)The total amount of the composition payable thereunder is £.

5. The trustee under the said deed is of  in

6. The names of my creditors with their full postal addresses (so far as the same are known to me) and the amount of the debt due to or claimed by each of such creditors are contained in the Schedule to this my affidavit.

Sworn by the said   at  in this   day of   19 .

Before me—

(Note.—If the deponent is a member of a partnership he should furnish another affidavit conjointly with his partners showing particulars of the joint assets and liabilities.)

_________

No. 8.

Commonwealth of Australia.

The Bankruptcy Act 1924‑1933.—Part XII.

Register of Deeds of Arrangement.

District of

Number.

Name and Address of Debtor.

Occupation.

Place or Places where Business carried on.

Title of Firm or Firms under which Debtor carried on Business.

Name and Address of Trustee.

Nature of Deed (Amount of Composition in £).

Amount of Property as estimated by Debtor.

Amount of Liabilities as estimated by Debtor.

Date of Deed.

Date of Registration.

Date of Trustee’s Affidavit of Assent by Majority of Creditors.

Nature and Amount of Trustee’s Security.

Manner and Date of Avoidance of Deed.

Remarks.

Gross Amount of Property.

Value of Security Given.

Net Value of Property.

Gross Amount of Liabilities.

Amount of Debts covered by Securities.

Net Amount of Liabilities.

No. 9.

Commonwealth of Australia.

The Bankruptcy Act 1924‑1933.—Part XII.

Notice of Registered Deeds of Arrangement.

To the

District of

Number. Name, Address, and Description of Debtor. Place or Places where Business carried on. Title of Firm or Firms under which Debtor carries on Business. Name and Address of Trustee. Nature of Deed (Amount of Composition in £). Amount of Property as estimated by Debtor. Amount of Liabilities as estimated by Debtor. Date of Deed. Date of Registration.

Dated the   day of   , 19 .

Registrar.

_________

No. 10.

The Bankruptcy Act 1924‑1933.—Part XII.

Notice to Creditors of Deed of Arrangement.

(Title.)

Take notice that a Deed of Arrangement by, for, or in respect of the affairs of   , of  , hasbeen duly executed and registered, and a certificate of the assents of creditors thereto duly filed, and that after the expiration of one month from (insert date of posting) you will not be entitled to present a bankruptcy petition against    founded on the execution of the deed, or on any other act committed by him (or them) in the course of or for the purpose of proceedings preliminary to the execution of the deed as an act of bankruptcy, unless the deed becomes void.

Dated this   day of  , 19 .

(Signed)

Trustee under the Deed of Arrangement.

To A.B.,

(a creditor of the said debtor).

 

THE SIXTH SCHEDULE.

TABLE 1.

Trustees’ Commissions.

Section 133 (1).

Rule 433.

On the amount realized or brought to credit or in case of a composition, on the amount distributed by the trustee the rate of commission fixed by the creditors shall not exceed the following limits:—

Maximum rate. Per cent.
On the first £150.......................................................................................	10
On the next £150.......................................................................................	7
„ „ „ £200 .....................................................................................	6
On any excess over £500 ........................................................................	5

In respect of the collection of book debts, a commission not exceeding 10 per cent. on the amount collected by the trustee may be fixed by the creditors (Section 133 (4.) of the Act). If the resolution does not clearly state that the commission is in additionto the remuneration of the trustee fixed under Section 133 (1.), it shall be deemed to be inclusive thereof.

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TABLE 2.

Remuneration of Official Receivers by Fixed Sums.

Maximum sum which may be fixed.
£	s.	d.
Where the amount realized or brought to credit does not exceed £50......................................................	5	0	0
Where the amount realized or brought to credit exceeds £50 but does not exceed £100......................	9	0	0
Where the amount realized or brought to credit exceeds £100 but does not exceed £200....................	16	0	0
Where the amount realized or brought to credit exceeds £200 but does not exceed £300....................	21	0	0
Where the amount realized or brought to credit exceeds £300 but does not exceed £400 ...................	24	0	0
Where the amount realized or brought to credit exceeds £400.................................................................. (Plus £5 for every £100 or fraction of £100 by which the amount exceeds £500.)	25	0	0

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