EXPLANATORY STATEMENT
Bankruptcy Rules (Amendment)
Statutory Rules No. 245 of 1989
These rules amend the Bankruptcy Rules to correct technical defects, repeal unnecessary rules and make new arrangements with respect to applications by persons to become registered as trustees in bankruptcy. The rules also make provision for the waiver and remission of fees payable under the Act and the Bankruptcy Rules by Registrars in Bankruptcy in the case of registry filing fees, and by the Inspector-General in Bankruptcy in the case of fees payable to the Official Trustee in Bankruptcy.
Details of Bankruptcy Rules (Amendment)
Rule 1
Rule 1 repealed subrule 6(1) of the Bankruptcy Rules. Subrule 6(1) provided that strict compliance with the forms prescribed in Schedule 1 to the Bankruptcy Rules is not necessary. The subrule itself was unnecessary because section 25C of the Acts Interpretation Act 1901 provides that where an Act prescribes a form, strict compliance is unnecessary, and substantial compliance will suffice.
Rule 2
Rule 59 of the Bankruptcy Rules empowered the Official Receiver to make inquiries about an applicant for registration as a trustee under the Bankruptcy Act 1966 (the Act) and required the Official Receiver to prepare a report about those inquiries. Rule 2 substituted a new rule 59 which sets out in greater detail how the Official Receiver is to make inquiries.
Subrule 59(1) provides that where the Official Receiver is served with a copy of an application by a person to become
registered as a trustee, the Official Receiver shall fix a date, time and place for the applicant to be interviewed, and advise the applicant in writing of the interview arrangements.
Subrule 59(2) enables the Official Receiver to ask any questions of the applicant that are relevant to the applicant’s ability to exercise the powers and perform the functions of a trustee, or relevant to whether the applicant is disqualified from succeeding in the application, by reason of his or her conviction for an offence involving dishonesty.
Subrule 59(3) provides that the Official Receiver may make additional inquiries that he or she reasonably believes to be relevant to the applicant’s ability to perform the functions of a trustee.
Under subrule 59(4), the Official Receiver must prepare a report of the interview and any additional inquiry that he or she has undertaken. The Official Receiver must serve a copy of the report on the applicant, and file the report.
Rule 3
Rule 131 of the Bankruptcy Rules specifies the method of certification of transcripts of evidence given in proceedings or at examinations under the Act. In the rule the word transcript was misspelled as ‘transcipt’. Rule 3 has corrected this spelling error.
Rule 4
Rule 179 of the Bankruptcy Rules prescribes various fees and percentages payable in respect of proceedings under the Act. Subrule 179(9) provides that in respect of various types of application to the court or to a Registrar, a fee is not payable. By Statutory Rules No. 176 of 1989, fees were imposed on applications to the court which had not previously attracted fees. As a matter of law, it was possible that some officials became subject to a liability to pay filing fees, which if it were so would be inefficient and unnecessary.
Paragraph 4(a) amended subrule 179(9) by repealing former paragraphs (a) and (b) and inserting new paragraphs (a), (b) and (ba). Under paragraph (a), applications to the court by the Inspector-General, the Registrar or the Official Receiver do not attract a fee. Under paragraph (b), applications to the Registrar by the Inspector-General or the Official Receiver do not attract a fee. Under paragraph (ba), applications to the court by a trustee for the committal of a debtor or bankrupt to prison for contempt will continue to be exempt from filing fees.
Paragraph 4(b) inserted subrules 179(10), (11) and (12). Subrule 179(10) provides that no filing fee is payable in respect of documents filed with the court by the Registrar, the Inspector-General or the Official Receiver.
Subrule 179(11) provides that a fee is not payable in respect of the filing of a document with the Registrar by the Inspector-General or the Official Receiver.
Subrule 179(12) provides that a fee of $2000 is payable to the Official Receiver at the time an applicant for registration as a trustee serves the Official Receiver with a copy of the application. This subrule relocated the requirement to pay the $2000 fee from Schedule 6 of the Bankruptcy Rules, which relates to fees payable to the Official Trustee.
Rule 5
Rule 183 empowers the Registrar to postpone payment of fees payable to the Registrar. Rule 5 inserted two new subrules into rule 183.
Under subrule 183(2), the Registrar is empowered to certify that it is proper to waive or remit a fee or part of a fee imposed under rule 179 on the ground that the payment would impose unreasonable hardship on the person.
Under subrule 183(3), where the Registrar issues a certificate under subrule 183(2), the fee or part of the fee is waived or remitted in accordance with the certificate.
Rule 6
Rule 184 of the Bankruptcy Rules formerly provided that the Minister may remit or reduce fees payable under the Rules. The Minister’s power was traditionally delegated to the Inspector-General in Bankruptcy. Rule 6 repealed the former rule 184 and inserted a new rule 184 empowering the Inspector-General to waive or remit in whole or in part fees payable to the Official Trustee. The amendments to rule 183 by rule 5 transferred the Minister’s power to remit fees payable to Registrars to the Registrars themselves.
Rule 7
Rule 7 amended Schedule 1 to the Bankruptcy Rules by repealing Form 49 and inserting the Form 49 contained in the Schedule to these rules. Statutory Rules No. 182 of 1989 inserted a Form 49 into the Bankruptcy Rules, and Statutory Rules No. 183 of 1989, made concurrently with those rules, provided for the repeal of Form 49. The Bankruptcy Rules had contained a Form 49 before being amended by these two sets of Statutory Rules. There was therefore some doubt as to which Form 49 had actually been repealed and was contained in the Bankruptcy Rules. To eliminate that doubt, the Form 49 substituted by these rules.
Rule 8
Item 8 in Schedule 6 to the Bankruptcy Rules provided that a fee of $2000 was payable to the Official Trustee for a report under subrule 59(1) in respect of an application under subsection 155(2) of the Act for a person to be registered and qualified to act as a trustee. As noted in the explanatory notes to rule 2, it is the Official Receiver who is responsible for the conduct of the interview and preparation of the report about the applicant, and accordingly the fee should in fact be payable in respect of the function carried out by the Official Receiver, rather than payable to the Official Trustee. Paragraph 4(b) of these rules inserted new subrule 179(12) which makes it clear that the fee of $2000 is
payable to the Official Receiver. Rule 8 omitted item 8 from Schedule 6, as this item became unnecessary.
Schedule to the rules
The Schedule to the rules contains Form 49, inserted into Schedule 1 of the Bankruptcy Rules by rule 7.