EXPLANATORY STATEMENT

Issued by the Authority of the Attorney-General

Bankruptcy (Fees and Remuneration) Determination 2006

Purpose

The Bankruptcy (Fees and Remuneration) Determination 2006 implements cost recovery arrangements for the provision of personal insolvency services by the Insolvency and Trustee Service Australia (ITSA) consistent with the Government’s cost recovery policy.

In line with Government policy, the Bankruptcy Legislation Amendment (Fees and Charges) Act 2006 (the Fees and Charges Act) introduced subsection 316(1) of the Bankruptcy Act 1966 (the Act) which enables the Minister to make legislative instruments determining the amounts of the Official Receiver’s and other fees, and the Official Trustee’s remuneration payable under the Act. Enabling the Minister to determine the fees and charges in a legislative instrument will allow greater flexibility to reflect stakeholders’ concerns and the current costs of the personal insolvency services provided by ITSA.

This Determination provides the amounts of the fees for the purposes of paragraphs 316(1)(a) and (1)(b) of the Act and the amount of remuneration of the Official Trustee for the purposes of paragraph 316(1)(c).

Paragraph 316(1)(a) refers to fees relating to:

1. a third party’s access to the statements of affairs filed in bankruptcies and which are set out in subsections 54(4), 55(9), 56G(2) and 57(11) of the Act;
2. applications for registration as a trustee and which are set out in paragraphs 154A(3)(b), 155C(1)(b) and 155D(1)(b) of the Act;
3. the exercise of the Official Receiver’s powers under the Act and which are set out in subsections 163A(2) of the Act, and
4. a third party’s access to documents filed under Part X of the Act and which are set out in subsections 188B(3), 226(3) and (4) and 246(5) (as they apply of their own force or as they apply because of another provision).

Paragraph 316 (1)(b) refers to other fees relating to one or more of the following:

(i) proceedings under this Act;

(ii) inspection of material entered in the National Personal Insolvency Index;

(iii) obtaining extracts of material entered in the National Personal Insolvency Index;

(iv) inspection and copying of documents given to Official Receivers;

(v) the making of other requests or applications under this Act or the presentation or lodgement of other documents under this Act;

Paragraph 316 (1)(c) refers to the remuneration of the Official Trustee.

The Determination is a legislative instrument for the purposes of the Legislative Instruments Act 2003.

Operation

The Determination commences on 1 July 2006. The amounts of the fees and remuneration set in this Determination apply to the Official Receiver’s and other fees, and the Official Trustee’s remuneration payable under the Act in accordance respectively, with item 15, Part 1, Schedule 1 and items 1 and 2 of Part 1, Schedule 3 and item 13 of Part 1, Schedule 1 of the Fees and Charges Act.

Official Trustee’s remuneration

Section 163 of the Act provides that the Official Trustee is remunerated as prescribed by the Bankruptcy Regulations 1996 (the Regulations). The Fees and Charges Act amended section 163 effectively to provide that the Official Trustee will be remunerated as determined by the Minister. The Bankruptcy Amendment Regulations 2006 effectively repealed the regulations dealing with the Official Trustee’s remuneration as from 1 July 2006.

Item 13 of the Fees and Charges Act provides that the amendments of section 163 of the Act apply to remunerate the Official Trustee for work arising from any of the following events happening on or after 1 July 2006:

(a) the making of a direction under section 50 of that Act;

(b) a person becoming bankrupt;

(c) lodgement of a proposal for a composition or scheme of arrangement under section 73 of that Act;

(d) the giving of a proposal for a debt agreement under section 185C of that Act;

(e) signature of an authority under section 188 of that Act;

(f) the making of an order for the Official Trustee to act as the trustee of an estate.

Therefore the former regulations apply to remunerate the Official Trustee for work arising from any of the above events which occurred before 1 July 2006.

The following examples illustrate whether the work performed by the Official Trustee is subject to the remuneration set out in this Determination.

1. if a person became bankrupt before 1 July 2006, the former regulations provide for the Official Trustee’s remuneration for acting as trustee of the bankrupt estate.
2. if the Official Trustee performs work by acting as trustee of a Personal Insolvency Agreement arising out of an authority under section 188 that was signed on or after 1 July 2006, the Official Trustee’s remuneration is provided by this Determination.

Official Receiver’s and other fees

Subsection 163A(2) provides that if an Official Receiver exercises any power under the Act at the request of the trustee of the estate of a bankrupt, the trustee is to pay to the Official Receiver the fee prescribed in the Regulations. The Fees and Charges Act amended section 163A to provide that the trustee is to pay to the Official Receiver the fee determined by the Minister by legislative instrument. The Bankruptcy Amendment Regulations 2006 effectively repealed the regulations dealing with the Official Receiver’s and other fees as from 1 July 2006.

Item 15 of the Fees and Charges Act provides that the amendment of section 163A of the Act applies to the fee for the exercise of a power at the request of a trustee made on or after 1 July 2006. Therefore the former regulations apply to provide the fee for the exercise of a power at the request of a trustee made before 1 July 2006.

For example, item 9 at the table in clause 2.01(1) of the Determination provides the fee for the purposes of subsection 163A(2). That provision concerns the fee that the trustee must pay to an Official Receiver for their exercise of a power under the Act including the issue of a notice under section 77C of the Act. The new fee applies if a trustee makes a request to the Official Receiver on or after 1 July 2006.

However, if a trustee makes a request for the Official Receiver to issue a notice under section 77C of the Act before 1 July 2006 and for which the Official Receiver has yet to issue such a notice, regulation 16.12(1) which formerly prescribed the fees of the Official Receiver or officer assisting the Official Receiver under subsection 15(1), applies to provide the fee payable to the Official Receiver.

The Fees and Charges Act also deals with the repeal of the Bankruptcy (Registration Charges) Act 1997 (the BRCA). That Act provided for charges relating to the registration of trustees under the Act. The BRCA charges are now included as fees that are able to be determined by the Minister by legislative instrument made under paragraph 316(1)(a) of the Act. Part 1, Schedule 3 of the Fees and Charges Act repealed the BRCA provisions that set the charges. The repeal of those provisions apply to applications, or registrations or extensions resulting from applications, made on or after 1 July 2006. 

Subsection 315(1) of the Act provided for the Governor–General to make regulations prescribing matters required or permitted by the Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to the Act.  Subsection 315(2) sets out particular functions of the regulations including, at paragraph (2)(j), providing for the charging and payment of fees in relation to various personal insolvency services including inspection and obtaining extracts of material from the National Personal Insolvency Index.

Item 17 of the Fees and Charges Act amended paragraph 315(2)(j) to provide that the regulations which provide for the charging and payment of fees will continue to apply but not in so far as they set the amount of fees [other than the fees mentioned in paragraph 81(17)(b)]. That paragraph refers to the notes and transcript of evidence of an examination before the Court or a Registrar which is conducted under section 81 of the Act and for which a fee is provided by regulation because that fee is set by another agency.

Item 18 of that Act explains that the effect of the amendment made to paragraph 315(2)(j) is to cause the regulations to cease setting the amounts of fees—other than the fees mentioned in paragraph 81(17)(b)—on 1 July 2006. For example, regulation 16.06 which provides for payment of fees before the document is filed or otherwise dealt with or a matter or thing is done, continues to apply. However, regulation 16.09 which provided data fees in respect of searches of the Index ceased on 1 July 2006 and the new fees set by this Determination applied from that date.

The application of the new fee or remuneration will be dealt with below at Notes on Clauses.

Further information about ITSA’s review of its activities and the resulting fees and charge for its services is set out in ITSA’s Cost Recovery Impact Statement.

Nature of Consultation

ITSA has completed a review of its activities to determine those which should be charged for, the type of fee to apply, who should pay those fees and those activities which would more appropriately be funded through general taxation. A Cost Recovery Impact Statement (CRIS) was prepared using the ‘Commonwealth Cost Recovery Guidelines for Information and Regulatory Agencies’ issued by the Department of Finance and Administration in March 2003.

Stakeholders have been promptly and extensively consulted as part of the cost recovery review. In late 2004, information sessions on other legislative reforms foreshadowed ITSA’s cost recovery policies and consultations specifically on cost recovery have since continued. Stakeholders will be consulted as part of any future reviews of fees and charges.

In addition, the Bankruptcy Reform Consultative Forum has been consulted on the cost recovery arrangements and the Cost Recovery Reference Group was formed specifically to provide ongoing advice and assistance in setting the amount of the fees and charges.  The Forum comprises representatives from the Finance Industry, Financial Counselling Services, Banking sector, Government, the Law Council and the Insolvency Practitioners Association of Australia. The Cost Recovery Reference Group includes a debt agreement administrator.

Notes on clauses

Part 1 Preliminary

Clause 1—Name of Determination

This clause provides that this Determination is the Bankruptcy (Fees and Remuneration) Determination 2006.

Clause 1.02—Commencement

This clause provides that this Determination commences on 1 July 2006. A note indicates that before 1 July 2006, the fees in relation to the Act (including the remuneration of Official Trustee) were provided under Divisions 2 and 3 of Part 16 of the Regulations.

In relation to the remuneration of the Official Trustee, the Bankruptcy Amendment Regulations 2006 made consequential changes to the Regulations to reflect the operation of this Determination. Therefore the operation of this Determination should be read together with the changes made to the Regulations by the Bankruptcy Amendment Regulations 2006 which also commenced on 1 July 2006.

Clause 1.03—Definitions

This clause deals with the definitions of some terms or expressions used in this Determination.

Subclause 1.03(1) provides definitions of the terms ‘Act’, ‘GST’ and ‘Regulations’. In this Determination, a reference to the ‘Act’ means the Bankruptcy Act 1966, ‘GST’ has the same meaning given by section 195-1 of the A New Tax System (Goods and Services Tax) Act 1999 and ‘Regulations’ means the Bankruptcy Regulations 1996.

Subclause 1.03(2) provides that an expression used in this Determination and in the Act or the Regulations, or in a provision of the Act or Regulations, has the same meaning in this Determination as it has in the Act or Regulations or the provision of the Act or Regulations. Note 1 indicates that ‘controlling trustee’ is defined in subsection 187(1) of the Act. Note 2 indicates that ‘the Index’ is defined in subregulation 1.03(1) of the Regulations.

Clause 1.04—Amounts include GST

This clause provides that the amount of a fee or remuneration specified in, or calculated in accordance with, this Determination includes GST, if payable.

Part 2 Fees

Division 2.1 Fees for the purposes of certain provisions of the Act

Clause 2.01—Inspection, application etc (Act, para 316(1)(a))

This clause deals with the fees payable under paragraph 316(1)(a) of the Act.

Subclause 2.01(1) sets out a table which provides a fee for the service referred to in a provision of the Act. Those provisions deal with fees for:

• access by third parties to Statements of Affairs, documents relating to examinations under section 77C of the Act, and Part X documents;
• applications for registration as trustees under the Act; and
• the exercise by an Official Receiver of a power under the Act at the request of a trustee.

The new fee will apply to applications, including requests by the trustee, made on or after 1 July 2006.

Subclause 2.01(2) sets out the fee for making copies of, or taking extracts from, a document mentioned in column 3 of items 1, 2, 3, 4, 5, 10, 11 or 13 of the table provided in subclause 2.01(1).

The new fees will apply to applications, including requests by trustees, made on or after 1 July 2006.

Division 2.2 Other fees under paragraph 316(1)(b) of the Act

Clause 2.02—Inspecting and obtaining extracts of material in the Index

This clause deals with fee for inspecting or obtaining an extract of material recorded on the National Personal Insolvency Index. The Index is defined in subregulation 1.03(1) of the Regulations.

Subclause 2.02(1) provides the fee for inspecting material in the Index and giving the extract (if any) following an application to an Official Receiver under subregulation 13.06(1) of the Regulations. That subregulation provides for a person’s access to the Index by asking an Official Receiver to inspect material on the Index and for an extract of that material.

The new fee is also payable where a browse list is provided to the applicant. A browse list indicates that several persons may answer the search criteria and it is provided to reduce the search results.

Subclause 2.02(2) deals with the fee charged to a person when another person, other than the Official Receiver, inspects material on the Index. The new fee is payable whether or not the person obtains an extract of that material.

The new fees in subclauses 2.02(1) and (2) apply to applications made to the Official Receiver, or inspections made by another person other than the Official Receiver, on or after 1 July 2006.

Clause 2.03—Giving items of information

Subclause 2.03(1) provides that this clause applies to agreements between the Inspector-General and other parties under which the Inspector-General’s undertakes to give to the other party items of information entered on the Index.

Subclause 2.03(2) provides the fee for providing each item of information in accordance with an agreement made under subclause 2.03(1).

Examples of items of information that may be covered by the agreement include:

(a) the names of persons who are bankrupt; and

(b) the names of persons who have been discharged from bankruptcy; and

(c) the names of persons against whose discharge from bankruptcy a notice of objection has been lodged.

The new fees will apply to agreements made on or after 1 July 2006.

Clause 2.04—Issuing bankruptcy notice

Under subsection 41(1) of the Act, an Official Receiver may issue a bankruptcy notice on the application of a creditor who has obtained a final judgment or order under the conditions specified in paragraphs 41(1)(a) and (1)(b). This clause provides the fee for an application by a creditor to an Official Receiver to issue a bankruptcy notice under subsection 41(1).

The CRIS indicates that

More often than not, the issue of a Bankruptcy Notice results in the payment or the settlement of the debt and only one in five notices issued results in a bankruptcy. In effect, these notices are often used as a debt collection tool. Creditors who request the issue of these notices rely on the effectiveness of the personal insolvency system as a ‘threat’ for non payment of their debt. The cost of this activity therefore includes the direct cost of issuing the Notice as well as a component of ITSA’s Bankruptcy Regulation costs.

The new fee will apply to applications made on or after 1 July 2006.

Clause 2.05—Extending period to serve bankruptcy notice

Subregulation 4.02A(2) provides that a bankruptcy notice must be served within:

(a) the period of six months commencing on the date of issue of the bankruptcy notice; or

(b) any further period that the Official Receiver allows (whether within or outside that period of six months).

Clause 2.05 provides the fee for making an application for a further period mentioned in paragraph 4.02A(b). This is a new fee which the Minister is able to determine for the purposes of subparagraph 316(1)(b)(v).

The new fee applies to applications made on or after 1 July 2006.

Clause 2.05A—Inspecting or copying composition or arrangement lodged with trustee

This clause provides the fee for inspecting a copy of a composition or scheme of arrangement accepted by creditors under subsection 73(4) of the Act whether or not the person obtains a copy of the composition or scheme.

Clause 2.06—Giving of authority and statement of affairs

Formerly, a fee was provided by regulation 16.04 which specified the Official Receiver’s fee for the matters set out in Schedule 9 of the Regulations. The former fee related to the filing under paragraph 218(1)(b) of the Act, of a copy of the personal insolvency agreement entered into under Part X.

This clause provides the fee for giving to the Official Receiver a copy of the Part X authority and the debtor’s statement of affairs. That requirement is provided by subsection 188(5) of the Act. The new fee relates to the services performed when processing the proposal which must accompany an authority for it to be effective for the purposes of Part X of the Act.

The new fee applies to applications made on or after 1 July 2006.

Clause 2.07—Taxation of trustee’s remuneration

Regulation 8.09 enables a bankrupt or creditor to request a taxing officer to tax a trustee’s remuneration that is claimed under s 162 of the Act. Regulation 8.11 deals with the hearing of the taxation. This clause provides the fee that is payable for the work performed by the taxing officer under regulations 8.09 and 8.11.

The new fee applies to applications for taxation made to the Official Receiver on or after 1 July 2006.

Clause 2.07—Taxation of costs

Under subsection 167(1) of the Act, a trustee may require a bill of costs for services provided by a person in relation to the administration of the estate to be taxed. The taxing officer is a person appointed by the Inspector-General for the purposes of this section and performs the taxation under subsection 167(5). Clause 2.08 provides the fee for the work performed by the taxing officer.

Part 3 Remuneration

Division 3.1—Preliminary

This Division deals with preliminary matters in calculating the remuneration payable to the Official Trustee.

Clause 3.01—Realised balance

Subclause 3.01(1) provides that subject to subclause 3.02, the formula for determining the ‘realised balance’ in respect of an estate or debtor at a particular time is the amount realised less the total of business costs and securities. Those terms are defined below.  

The ‘amount realised’ is subject to subclauses (2) and (3) and means the total amount realised, or brought to credit, in the estate or debtor by the Official Trustee up to that time.

The ‘business costs’ means the amount paid by the Official Trustee in carrying on the business of the abrupt, debtor or deceased person up to that time.

The reference to ‘securities’ means the amount paid to secured creditors in respect of their securities up to that time.

Subclause 3.01(2) provides for the situation where the bankrupt or a person acting on behalf of the bankrupt or deceased person applies property that has vested in the Official Trustee in payment of a creditor of the estate and the Official Trustee is consequently prevented from realising or bringing to credit the value of that property. Unless the court otherwise orders, the property is taken for subclause 3.01(1), to have been realised or brought to credit by the Official Trustee. This subclause does not change existing policy.

Subclause 3.01(3) provides that the total amount realised or brought to credit does not include any amounts paid to the trustee by creditors under an indemnity in respect of costs or under section 50 of the Act. There is no change to this aspect of existing policy. Former subregulation 16.07A(7) included amounts offered under a proposal for a composition or scheme of arrangement accepted by creditors under Division 6, Part IV. It is unnecessary to include those amounts in the total amount realised because the Official Trustee’s remuneration for work is provided separately in each of those administrations.

Clause 3.02—Restriction on amount of realised balance

This clause deals with the restrictions on the definition of ‘realised balance’ set out in clause 3.01(1).

Subclause 3.02(1) provides that for clause 3.01, the realised balance is not to exceed the total of the costs of the administration of the estate and the amount of the debts of the estate or the debtor. There is no change to existing policy.

Subclause 3.01(2) provides the definitions of ‘costs of administration’ and ‘debts’ used in subclause 3.01(1).

The definition of ‘costs of administration’ changes existing policy. Formerly fees payable to the Official Receiver under subdivision 2.3, Part 16 of the Regulations were not included as the costs of the administration. Those fees related to fees for access to the Index, exercise of the Official Receiver’s power under the Act, taxation of costs provided by subsection 167(1) and of the trustee’s remuneration under regulation 8.09, and for access to Part X and Part XI documents. In line with costs recovery policy, those fees paid to the Official Receiver are included as the costs of administration similar to other costs paid by the trustee in relation to administering the estate.

The definition of ‘debts’ means the total of the taxed costs of the petitioning creator, the provided or provable debts of the estate or the debtor, including interest accrued before the date of bankruptcy and interest accrued on or after that date on those debts if they are interest-bearing debts. There is no change to existing policy.

Division 3.2 Remuneration of Official Trustee

Clause 3.03—Work in relation to carrying on business or taking control of property under section 50 of Act

This clause provides the remuneration payable to the Official Trustee for work performed in relation to carrying on the business of a bankrupt or deceased person, or in relation to taking control of the property of a debtor under section 50 of the Act including carrying on the business of the debtor.

This clause applies to remunerate the Official Trustee for work arising from a direction made under section 50 of the Act that was made on or after 1 July 2006 or from a person becoming bankrupt on or after 1 July 2006.

Clause 3.04—Work in relation to compositions or arrangements with creditors

Subject to subclause 3.04(2) and clause 3.10 which deal with the Official Trustee’s remuneration in transfers of these administrations, subclause 3.04(1) provides the remuneration of the Official Trustee for performing work in relation to compositions or arrangements with creditors made under Division 6 of Part IV of the Act.

This clause applies to remunerate the Official Trustee for work arising from a proposal for a composition or scheme of arrangement that is lodged with the trustee on or after 1 July 2006. 

Subclause 3.04(2) provides the remuneration payable to the Official Trustee if the Official Trustee transfers the administration of the composition or scheme of arrangement to, or is replaced by, a registered trustee.

Subclause 3.04(3) provides that the remuneration that is payable to the Official Trustee is available from the composition or scheme of arrangement accepted by creditors if work is performed under subclause 3.04(1). Subclause 3.04(3)(b) provides that if work is performed under subclause 3.04(2), the remuneration that is payable to the Official Trustee is available from the estate. This clause clarifies that the Official Trustee’s remuneration is available from either the compositions or scheme or arrangement or estate and not from the bankrupt.

Clause 3.05—Work in relation to bankruptcy that is annulled

Subject to subclause 3.05(2) which deals with remuneration in transfers of the administration, subclause 3.05(1) provides the remuneration payable to the Official Trustee for work performed in relation to a bankruptcy that is annulled under sections 153A or 153B of the Act. Subject to subclause 3.05(2), if there is an annulment of the bankruptcy under those provisions, the remuneration that is payable to the Official Trustee is the greater of $3000 and $3000 plus 20% of the realised balance. Clause 3.09 sets out the remuneration payable to the Official Trustee for work in relation to a bankrupt estate or administration of a deceased person.

Clause 3.06—Work in relation to debt agreements

Subject to subclause 3.06(2) and clause 3.10 which deal with Official Trustee’s remuneration in transfers of these administrations, subclause 3.06(1) provides the remuneration payable to the Official Trustee for work performed as the administrator of the debt agreement by appointment under section 185H.

This subclause applies to remunerate the Official Trustee for work arising from a proposal for a debt agreement that was given to the Official Receiver under section 185C of the Act on or after 1 July 2006.

Subclause 3.06(2) provides the remuneration payable to the Official Trustee if the Official Trustee transfers the administration of the debt agreement to, or is replaced by, an administrator or a registered trustee.

Clause 3.07—Work as controlling trustee

Subclause 3.07(1) provides the remuneration payable to the Official Trustee for acting under Part X of the Act as controlling trustee. This clause applies to remunerate the Official Trustee for work arising from a debtor’s authority under section 188 of the Act that was signed on or after 1 July 2006.

Subclause 3.07(2) provides that the remuneration is payable out of the estate. This provision clarifies that the Official Trustee’s remuneration is available from the estate and not from the debtor.

This clause also applies to remunerate the Official Trustee if the administration is transferred to or from a registered trustee.

Clause 3.08—Work in relation to personal insolvency agreements

Subject to subclause 3.08(2) which deals with the Official Trustee’s remuneration in transfers of these administrations, subclause 3.08(1) provides the remuneration payable to the Official Trustee for acting under Part X of the Act as trustee of a personal insolvency agreement.

Subclause 3.08(1) applies to remunerate the Official Trustee for work arising from an authority under section 188 that was signed on or after 1 July 2006.

Subclause 3.08(2) provides the remuneration payable to the Official Trustee if the Official Trustee transfers the administration of the personal insolvency agreement to, or is replaced by, a registered trustee.

Subclause 3.08(3) provides that the remuneration is payable out of the estate. This provision clarifies that the Official Trustee’s remuneration is available from the estate and not from the bankrupt.

Clause 3.09—Work in relation to estate of bankrupt or administration of estate of deceased person

Subject to subclause 3.09(2) which deals with Official Trustee’s remuneration in transfers of these administrations, subclause 3.09(1) provides the remuneration payable to the Official Trustee in relation to work performed as trustee of a bankrupt estate or of a deceased person whose estate is being administered under Part XI of the Act.

Subclause 3.09(1) provides that the remuneration payable to the Official Trustee is $3000 plus 20% of the realised balance. The formula that provides the ‘realised balance’ in an estate is set out in clause 3.01 and that amount is restricted at clause 3.02.  

For example,

1. if $40,000 is received in a bankruptcy where the debts and expenses of administration totalled $25,000, the Official Trustee’s remuneration is calculated on the $25,000, being ($3,000 + 20% of 25,000) $8,000

2. if $1,000 is received in a bankruptcy where debts ($1,000) and expenses of administration ($200) total $1,200, the Official Trustee’s remuneration is ($3000 + 20% of $1200) $3240.  

The $3000 flag fall is representative of the cost of general enquiries conducted by the Official Trustee in any bankrupt estate.  The cost of further detailed investigations and realisation of monies is reflected in the percentage component of the fee.  The fee structure has been set having regard to creditor preference for some certainty in the amount that a trustee can claim in fees and also that the fee is not disproportionate to the total value of the estate.

Subclause 3.09(2) deals with the remuneration payable to the Official Trustee if the Official Trustee transfers administration of the estate to, or is replaced by, a registered trustee before the bankruptcy is annulled under sections 153A or 153B of the Act. It also deals with the remuneration payable to the Official Trustee if a registered trustee transfers work to, or is replaced by, the Official Trustee in relation to work as a trustee of the bankrupt estate or of a deceased person in respect of whose estate an order for administration has been made under Part XI of the Act.

The remuneration provided in subclause 3.09(2) applies to work arising from the administration of a bankrupt estate in which the person was declared bankrupt on or after 1 July 2006.

Subclause 3.09(3) provides that for work mentioned in subclauses (1) or (2), the remuneration is payable out of the estate. This provision clarifies that the Official Trustee’s remuneration is available from the estate and not from the bankrupt.

Clause 3.10—Work performed in place of registered trustee

This clause deals with the remuneration payable to the Official Trustee if a registered trustee is replaced by the Official Trustee in relation to certain work or an administration, or if a registered trustee transfers that work or administration to the Official Trustee. Subclause 3.10(1) sets out the relevant work or administration and refers to work performed in relation to compositions or schemes of arrangements, debt agreements or personal insolvency agreements.

Subclause 3.10(2) provides the remuneration payable to the Official Trustee in those circumstances.

Clause 3.11—Remuneration in addition to realised balance amount

This clause clarifies that if different types of work are performed in a bankruptcy administration, the Official Trustee is entitled to be remunerated at different rates for the types of work performed. For example, in a bankrupt estate where the Official Trustee performs work in carrying on the business and has also made realisations, remuneration for carrying on a business is additional to the remuneration payable to the Official Trustee calculated under the realised balance formula.

Clause 3.11 provides that the remuneration payable to the Official Trustee in administrations for which work performed is remunerated at an hourly rate, is to be additional to the remuneration provided in clause 3.09(1) which is calculated on the realised balance formula. Those administrations refer to work performed in carrying on the business of a bankrupt or deceased person, or in relation to taking control of the property of a debtor under section 50 of the Act including carrying on the business of the debtor, work in relation to compositions or schemes of arrangements, or work as controlling trustee.