Insolvency Act 1881 (SA)

ANNO QUADRAGESIMO QUARTO ET QUADRAGESIMO

QUINTO

A. D. 1881.

No. 232.

An Act to repeal the " Insolvency Act, 1880," and to amend the Law of Insolvency, and for other purposes.

[Assented to, Novembev 18t/i, 1881.1

'REAS it is expedient to repeal the " Insolvency Act,

W"" therefore Enacted by the Governor of the Province of South 1880," and to amend the law relating to insolvency-Be it	Australia, by and with the consent of the Legislative Council and
House of Assembly of the said province, in this present Parliament assembled, as follows:
Act, 1881," and shall come into operation on a day to be fixed cammencement. 1. This Act may be cited for all purposes as the Insolvency sh0rttifle.d
by the Governor, by Proclamation to be published in the Govern-
mmt Gazette.

A-232.

2. This Act and '' The Insolvent Act, 1860," and other Inmrpomtion.

enactments amending the same and not hereby repealed, shall be

incorporated and read and construed together as one Act.

3. I n this Act, unless inconsistent with the c o n t e x t Intrapwtim

Trustees" means the persons chosen by the creditors of an insolvent at the first or some other sitting under his insolvency, or some adjournment thereof, as trustees of the insolvent's estate and effects, when such choice shall have been con- firmed by the Court; and means aa well the trustees first appointed as any trustees appointed on the death or removal of any first or subsequent trustees:

" Principal

44O & 45' VICTORIE, No. 232.

l

i	Insolvency Act.-1881.
*

principal Act, or thie Act, and the general rule8 therein or herein referred to, shall during such time, and so often as there shall be no &rnrnissioner of Insolvency, be vested in and exercisable by any Judge of the Supreme Court of the said province.

I n addition to the acts of insolvency mentioned in the principal Act the following shall be a& p a d i w *W

6.

of insolvency, namely, that execu- maolrenq.

tion iasued against a debtor on any legal procesa for the purpose of obtaining payment of a judgment against him of not less than Twenty Pounds has been levied by seizure or sale of his goods, or that any such execution has been returned unsatisfied to the extent of Twenty Pounds or upwards, or tbat a t a meeting of his creditors or some adjournment thereof under the twenty-fourth section of this Act the resolution provided in that section was not carried, or, if carried, that the deed was not executed pursuant to such resolution: Pro- vided that an insolvency petition be presented against or by the debtor within four weeks after the date of such sale or uneatisfied execution, or of such meeting or adjournment

7. The office of Official Assignee ia hereby abolished. The O f h i d b a i v a r a ~ d

Governor shall appoint an officer of the Court of Insolvency to be hia dntim. styled the Official Receiver, whose duties shall be as follows-

(1.) To investigate and report to the Court upon the account. of the trustees under every insolvency:

(2.) To act aa sole trustee of every insolvent eatate in cases where no trustee is appointed at the instance of the creditors, and in such case the principal Act shall be read and construed as if the words " Official Receiver " were inserted therein in lieu of the word " a a e e s " wherever the same occunr, unless such substitution shall conflict with this Act:

(3.) To iasue forms of proxy to be used by creditow:

(4.) To perform all other duties imposed on him by this Act.

The Official Receiver shall also have and exercise all powers and	authorities, and perform all dutiea, and be subject to all liabilities,
veated in and imposed on the Official Assignee by the principal Act, except where the same shall be varied by this Act; and the principal Act shall be read and construed as if the words " Official Receiver" were therein inserted in lieu of the words '' Official Assignee" wherever the same m m unless such substitution shall conflict with this Act.

8. (1.) The duties heretofore performed by assignees generally Dotiesoftmuhand

under the principal Act in regard to the sale, realisation, and getting in of the estate of any insolvent, shall in future be performed by one or more trustees who shall themselves be creditors, m d who may be chosen by the creditors in the same manner as creditors' assignees under

the

T

44" & 45O VICTORIK, No. 232. -

Insolveny Act.-1881.

the principal Act; and all proviaions as to choice of creditors' nssignees, and confirmation of such choice by the Court contained in the principal Act, shall apply to the choice of trustees by creditors, and confirmation of such choice by the Court.

(2.) Such trustees when appointed, and the appointment ia

confirmed by the Court, shall in all matters and things

under the insolvency have the same powers, authorities,

discretions, and duties as assignees generally under the

principal Act, excepting such of the said power5 antho-

rities, discretions, m d duties as are hereby conferred or	'
imposed on the Official Receiver, and shall also have and	'
perform the further powers, authorities, discretions, and duties conferred and imposed upon them by this Act; and wherever such trustees shall be appointed, and the appoinb ment is confined by the Court as aforesaid, the principal Act shall be read and construed as if the word 'L trustees" was inserted therein in lieu of the word " assignees" wherever the same oocur, u n l w such substitution shall conflict with this Act; such trustees shall give security in such amount and in such manner as the Cou~t shall in each case determine, and that such security shall be for the proper discharge of their duties as trustees:

(3.) Such trustees s h a ~ be liable to removal by the Court, and

new trustees may be appointed in the same manner and under the same circumstances as creditorg' assignees under the principal Act, and the trustees for the time being shall obey all orders of, and in all respects be, under the con- trol of the Court:

(4.) The remuneration of the trustees for their services under any insolvency8hall be fixed by a majority of the creditors present in person, or by proxy, at any meeting of the Court for the purpose of declaring a dividend, as provided

in the principal Act: Provided that such remuneration

may exceed the two and a half per cent. limited by the principal Act, but shall not be greater than five per cent. upon the amount applicable for dividend, and that the remuneration so fixed shall be subject to the approval of the Court.

9. Not later than six days before the first public sitting under

the insolvency, or such extended time as the Court may for special reasons allow, the insolvent shall file in Court a schedule which shall set out, as far ss pmctimble, the particulars of his a w t s and liabilities, the names, residences, and occupations of hi creditors, and the securities held by them respectively, and the value at which he estima'tes their securities, and the dates on which auch securities were respectively given, and the amount provable after deducting such v8lue. The schedule shall be dgned by the indvent and

verified

44" & 45' VICTORIE, No. 232.

section may be enforced by the Court on a motion made in a summary manner by any person interested, and any dis- obedience of an order of the Court made on the motion shall be deemed a contempt of Court:

(8.) If the insolvent makes default in payment of any sum due by him in pursuance of a wmposition or scheme undh this section, the Court shall, on application by the peraon to whom the sum is due, order that the insolvency be revived, and thereupon the insolvency shall be revived, and continue as if the composition or scheme had not been approved.

F ~ X ~ M. 12. (1) Every proxy for the purpose of proceedings under an insolvency petition shall be in a form issued by the Official Receiver, and stamped as such:

(2). A proxy shall not be available except for the purpoae of voting at a specified sitting of the Court, or at any adjournment thereof:

(3). Not more than one form of proxy shall be imec! to the same creditor for the same meeting:

(4.)

A person shall not be appointed as proxy for a creditor if

he ia solicitor for the insolvent, or a partner with or a

person in the employment of the insolvent's solicitor:

(5.) The holder of a proxy shall not use it for the purpose of

voting for the appointment of himself as trustee unless he

is specially authorised to do so by the instrument of proxy:

(6.) A creditor may appoint the Official Receiver aa his proxy.

mnt.toTatin

Odlcisl Bsoeiver m	13. (1. The real and personal property constituting the estate	]or distribution among the creditcm of an insolvent shall, until the appointment of trustees, vest in the Official Receiver, and on such appointment vest in the trustees
kudees.

to realise the same for distribution among the creditors only, and such trustees shall hold such estate upon trust

of the insolvent according to the law of insolvency:

(2.) If no trustees shall be appointed the estate shall remain vested in the Official Receiver alone upon the like trust; and should the trustees die or be removed, the estate shall re-vest in the Official Receiver upon the like trusts, and the Court.shal1 make order accordingly:

(3.) All moneys arising from the realisation of the estate shall be paid into Court by the trustees within ten days after receiving the same, together with a full statement of account relating thereto, who shall give the Official Receiver such further information with reference thereto m he may require; and any trustee retaining in his hands any such money exceeding the sum of Twenty

Pounds

\

44' & 45O VICTORIE, No. 232.

Imolamq Act.-1881.

Pounds for a period exceeding ten days, or failing to furnish such account, or failing to furnish the Official Receiver with such information with reference thereto as he may require, shall suffer the following consequences, that is to say-

(a.)

H e shall pay interest at the rate of Twenty Pounds per centum per annum on the amount of such moneys so retained by him, and such interest shall be deemed to be portion of the estate for which such trustee is liable to account:

(b.)

Unless he can prove to the satisfaction of the Court that his reason for retaining the money was sufficient, he shall, on the application of any creditor, be dismissed from his office by the Court, and shall have no claim for remuneration, and be liable for any expenses the creditors may have been put to by reason of his d i i s a l, and shall also be liable, on the order of the Court, to pay into Court, to the credit of the estate, a sum not exceeding One Hundred Pounds for every such default:

(4.) The trustees, in realising the estate shall, as far

practicable, consult the wishes of the creditors thereon, and for that purpose may summon meetings of the persons claiming to be creditors, and shall a t all times furnish the Official Receiver with such information and particulars relating to the estate as the Official Receiver shall require:

(5.)

All provisions contained in the principal Act, as to audit of amounts and making of dividends, shall apply to the accounts of the Official Receiver and the trustees, and the moneys under their control respectively, and the statement uopn oath, to be delivered under the one hundred and sixty-first section of "The Insolvent Act, 1860," shall be made and delivered jointly by the Official Receiver and

trustees when trustees have been appointed.

14. At any public sitting under the insolvency for the purpose cd orediton

:	of appointing trustees, or deciding upon the acceptance or otherwise of a composition, or any scheme, creditors may be present and vote
1	either in person or by proxy: Provided that-

(1.) A person shall not be entitled to vote as a creditor un lm

,	he shall have proved, or shall a t such sitting of the Court
L
I	prove, a debt that is due to him:

i (2.) A creditor shall not vote in respect of any unliquidated or

L	contingent debt, or any debt the value of which is not
L	ascertained:

k (3.) A secured creditor shall, for the purpose of voting, be

deemed to be a creditor only in respect of the balance (if

1 any) due to him after deducting the value of his security;

t i and

44" & 45" VICTORIE, No. 232. .

1

Insolverncf, Act.-1881.

: or agreed to be made at the time of the execution thereof, and in

: any bid of sale registered not less than ninety days before the date

C	of the act of insolvency upon which an insolvency petition against
any dcbtor shall be founded, shall not be deemed goods and chattels
:	in the ostensible possession of such debtm at the time of committing
mch act of insolvency.

18. All summonses, orders, and other instumenta, the forms td"$;$gned

whereof are contained in the schedules to the principal Act, and by ~ ~ i p i a l ~ w e i r e r

which, under such Act, are required to be signed by the Commis- orRe@stmt. signed by the Commissioner.

sioner, may be signed by the Official Receiver or the Registrar of the

19. Any surety proposing to enter into a recognizance, aa provided ~ ~ ~ m M ~

by the sixtieth section of "The Insolvent Act, 1860," may enter OfBcialReoeiwr, Registrar, or Spwial

into and acknowledge the before the Official Receiver or ~ ~ or ~4- ~ a ~ ~ ~ ,

Registrar of the Court, or before any Special Magistrate or Justice of the Pea-.

of the Peace for the said province, and the same shall thereupon

be of the like validity, force, and effect as if such recognizance had been entered into before the Court itself,.and the form of recog- nizance contained in the Schedule Q to the said Act may be altered accordingly.

20. In addition to the offences enumerated in the one hundred :-S?,"=

and twenty-fifth section of &<The Insolvent Act, 1860," the fnllowing

shall be an offence thereunder, that is to say-the pawning, pledging, or disposing of bp the insolvent, otherwise than in the way of hi. trade, any property which he has obtained on credit and has not paid for, unless the Court is satisfied that he had no intent to defraud: and the principal Act shall be read and construed as if such additional offence were therein h r t e d.

21. If any insolvent, with intent to defraud, shall, after or within. Pandtj. for a h d -

four months before the adjudication, quit the said province, and mg	PralwrtY.
province, and for taking with him any part of his property to the take with him, or attempt to make preparation for quitting the said	amount of Ten Pounds or upwards, which ought by law to be
divided amongst his creditors, he shall be guilty of felony, punishable with imprisonment for a term not exceeding two years, with or without hard labor.

22. Tbe &urt feespayable under the principal Act shall in future E y m ot o o h

be reduced by one-half.

23. (1) The trustee of every deed made or purporting to be ea t~ tea to~p ofd$i"ed ~ C S S

made in pursuance of Division vr. of the Insolvent ~nto	, corn.
Act, 1860, shall open a banking account in the name of the trust estate with some incorporated bank, and shall pay into such account all moneys payable by such trustee on account of the trust estate, and shall pay all moneys

payable

B--282

'3

4.4" & 45' VICTORIR, No. 232.

Insolvency Act.-1881.

payable by such trustee on m m t of the h a t estate, by

cheques drawn oh such account, and no trustee shall at any

+

time keep in his hands any sum exceeding Twenty Pounds

for more than ten days:

(2.)

The trustees of all such deeds made or purportkg to be made more than twelve months before the passing of this Act shall, on the application of the Official Receiver, a t the request of any creditor, forthwith pay into Court, and the trustees of all such deeds made within such twelve months, or after the passing of this Act, shall, at the expiration of twelve months from the making thereof on the like application, pay into Court all moneys in their hands or to their credlt belonging to the assigned estate, and every such trustee retaining any such moneys in his hands or under his control in contravention of this section for a period of one month after such application, and every trustee retaining money in his hands in contravention of the last subsection, shall be subject to the like penalties as if he had been a trustee under this Act and failed to pay moneys it his hands into Court pursuant to the third subsection of the thirteenth section of this Act:

(3.)

Out of the moneys so paid in the Official Receiver shall, on the order of the trustee, pay any disbursements that it may be necessary to make on account of the estate:

(4.) Previously to declaring a dividend among the creditors in any snch assigned estate in respect of the money so paid into Court the trustee shall file in Court a dividend- sheet, showing the amount of the dividends due to the respective creditors, and the Official Receiver shall thereupon, on application by such creditors, pay to them the amounts appearing to be due to them by such dividend- sheet, providing the full amount of such dividend does not exceed the amount paid in as aforesaid and available for snch purpose. The provisions in the principal Act as to

unclaimed dividends shall apply to dividends under this

section which shall be unclaimed for the time mentioned

in such Act:

(5.)

It shall be the duty of the Official Rkceiver to enforce the

observance by trustees of the provisions of this section.

deed 24. (1.) Notwithstanding anything to the contrary in the prin-

cipal Act,no deedof assignment hereafter made in pursuance

of Division VI. of the "Insolv~nt Act, 1860," shall have any force or effect, and such deed shall be deemed fraudulent and void and an act of insolvency, unless before the execution thereof by the debtor a meeting of the creditors of such debtor shall have been held, and a resolution carried thereat that the debtor shall execute such deed:

2. Such

44O & 45" VICTORIE, No. 232.

Insolvency Act.-1881.

(2.) Such meeting shall be called by the debtor by written or printed circular, delivered or posted to the residence or place of business of each of his creditors, not less than three nor mcjre than ten days before the day of meeting, and shall be held a t a place and time convenient to the

majority in value of the +tor% :

(3.) The creditors present at such nieeting shall elect a chair-

man:

(4.) The debtor shall attend such meeting, and submit a state- ment in writing of his assets and liabilities, and if in such statement he shall make any wilful and material error or omission he shall be deemed guilty of a misdemeanor:

j(5.)

Three-fourths in value and, one-half in number (no creditor whose debt does not exceed Five Pounds being reckoned in number) of the creditors present in person or by proxy at such meeting may thereupon resolve that the debtor execute a deed of assignment to the person or persons in such resolution mentioned, under the provisions of Division vr. of the Insolvent Act, 1860. I n the event of any dispute as to the amount of the debt due to such creditors or any of them, the chairman shall, for the purpose of such meeting and the resolution hereinafter provided, determine the amount thereof; the Chairman shall also, at such meeting determine, and his decision, if b u d fide, shall be

final, whether or not the meeting haa been held a t a time

and place convenient to the majority in value of the

creditors:

.(6.) The Chairman shall thereupon make a minute of such resolution, and shall forward a certificate to the Court of Insolvency in the form in the schedule to this Act, and such certificate (in the absence of fraud) shall be conclusive evidence that such meeting was duly convened and held

and the resolution duly carried:

(7.)

Should no such resolutioh be carried at the said meeting, or

if the majority of the creditors present adjourn the me&

ing at some adjournment thereof, or, if the resolution

be caried, should the debtor fail to make and execute

such deed within seven days of such resolution, the

debtor shall, unless the majority in value of such creditors

shall at such meeting have resolved otherwi8e, be deemed.
to have committed an act of	insolvency on the fvst day on

which such meeting was held:

(8.)

The Court of Insolvency, or any Local Court of Insolvency, may, after the delivery or posting of the mid oirculars, or any of them, on the application of the debtor or any creditor, restrain further proceedings in any action, execu- tion, or other legal process in respect of any debt which, if the debtor were adjudged insolvent, would be provable

under