Bankruptcy Amendment Act 1987
No. 119 of 1987
An Act relating to bankruptcy
[Assented to 16 December 1987]
BE IT ENACTED by the Queen, and the Senate and the House of Representatives of the Commonwealth of Australia, as follows:
Short title etc.
1. (1) This Act may be cited as the Bankruptcy Amendment Act 1987.
(2) The Bankruptcy Act 19661 is in this Act referred to as the Principal Act.
Commencement
2. (1) Subject to this section, the provisions of this Act shall come into operation on a day, or respective days, to be fixed by Proclamation.
(2) Sections 1 and 2 shall come into operation on the day on which this Act receives the Royal Assent.
(3) Section 3, section 4 (other than paragraph 4 (1) (f)) and sections 5, 7, 8, 12, 13, 15, 23, 33, 39, 40, 45, 48, 49, 50, 52, 61, 66, 67, 80, 81, 83, 84, 85, 88, 89, 91 to 96 (inclusive), 102, 104, 106 and 107 shall come into
operation on the twenty-eighth day after the day on which this Act receives the Royal Assent.
Insertion of heading
3. After section 4 of the Principal Act the following heading is inserted:
“PART Ia—INTERPRETATION”.
Interpretation
4. (1) Section 5 of the Principal Act is amended:
(a) by inserting “paper,” before “writing” in the definition of “books” in subsection (1);
(b) by omitting “other” from the definition of “books” in subsection (1);
(c) by omitting “or” (last occurring) from paragraph (c) of the definition of “the trustee” in subsection (1);
(d) by adding the following word and paragraph at the end of the definition of “the trustee” in subsection (1):
“or (e) in relation to a trust:
(i) if only one person is a trustee of the trust—that person; or
(ii) if 2 or more persons are trustees of the trust-any one or more of those persons;
in his, her or its capacity as a trustee, or in their respective capacities as trustees, as the case may be, of the trust;”;
(e) by omitting from subsection (1) the definitions of “corporation” and “the property of the bankrupt” and respectively substituting the following definitions:
“ ‘corporation’ includes any body corporate;
‘the property of the bankrupt’, in relation to a bankrupt, means:
(a) except in subsections 58 (3) and (4):
(i) the property divisible among the bankrupt’s creditors; and
(ii) any rights and powers in relation to that property that would have been exercisable by the bankrupt if he or she had not become a bankrupt; and
(b) in subsections 58 (3) and (4):
(i) the property, rights and powers referred to in paragraph (a) of this definition; and
(ii) any other property of the bankrupt;”;
(f) by omitting from subsection (1) the definition of “the first meeting of creditors”;
(g) by inserting in subsection (1) the following definitions in their respective appropriate alphabetical positions (determined on a letter-by-letter basis):
“ ‘associated entity’, in relation to a person, means:
(a) an entity (other than a company) that is, or has been, associated with the person; or
(b) a company that is, or has been, associated with the person at a time when the company is, or was, as the case may be, a private company;
‘breach of duty’ means malfeasance, misfeasance, negligence, wilful default or breach of trust;
‘child’, in relation to a person, includes an adopted child, a stepchild, or an ex-nuptial child, of the person;
‘close relative’, in relation to a person, means a spouse, de facto spouse, parent, child, brother, sister, half-brother, or half-sister, of the person;
‘company’ means a corporation, other than a corporation that is incorporated within Australia or an external Territory and is:
(a) a public authority; or
(b) an instrumentality or agency of the Crown in right of the Commonwealth, in right of a State or in right of a Territory of the Commonwealth;
‘company officer’, in relation to a corporation, includes:
(a) a director or secretary of the corporation;
(b) a receiver and manager of property of the corporation appointed under a power contained in an instrument;
(c) an official manager or deputy official manager of the corporation;
(d) a liquidator of the corporation appointed in a voluntary winding up of the corporation; and
(e) a trustee or other person administering a compromise or arrangement made between the corporation and another person or other persons;
but does not include:
(f) a receiver who is not also a manager;
(g) a receiver and manager appointed by a court; or
(h) a liquidator appointed by a court;
‘declaration of intention’ means a declaration that has been presented under section 54a and accepted under section 54c;
‘declared debtor’ means a debtor who has presented under section 54a a declaration of intention;
‘de facto spouse’, in relation to a person, means an individual of the opposite sex to that person who is living with that
person as his or her spouse on a bona fide domestic basis although not legally married to that person;
‘director’, in relation to a corporation, includes:
(a) any person occupying or acting in the position of director of the corporation, by whatever name called and whether or not validly appointed to occupy, or duly authorised to act in, the position;
(b) any person in accordance with whose directions or instructions the directors of the corporation are accustomed to act; and
(c) if the corporation has a committee of management, council or other governing body:
(i) a member of that committee of management, council or other governing body;
(ii) any person occupying or acting in the position of member of that committee of management, council or other governing body, by whatever name called and whether or not validly appointed to occupy, or duly authorised to act, in the position; and
(iii) any person in accordance with whose directions or instructions the members of that committee of management, council or other governing body are accustomed to act;
‘end’ means:
(a) in relation to a bankruptcy—the discharge of the bankrupt from the bankruptcy;
(b) in relation to:
(i) a deed of assignment, deed of arrangement, or composition, under Part X; or
(ii) a composition or scheme of arrangement under Division 6 of Part IV;
the time when the deed, composition or scheme, as the case may be, ceases to be in effect; or
(c) in relation to an administration under Part XI—the end of the administration;
‘enforcement process’, in relation to a frozen debt, means, in the case of a judgment debt:
(a) process of a court issued to enforce in any manner payment of the judgment debt; or
(b) without limiting the generality of paragraph (a), process of a court for attaching, in order to meet the judgment debt, a debt or other money payable or owing, or to become payable or owing, to the declared debtor;
‘entity’ means a natural person, company, partnership or trust;
‘examinable affairs’, in relation to a person, means:
(a) the person’s dealings, transactions, property and affairs; and
(b) the financial affairs of an associated entity of the person, in so far as they are, or appear to be, relevant to the person or to any of his or her conduct, dealings, transactions, property and affairs;
‘examinable matter’ means:
(a) in relation to a person who is or has been a trustee of a bankrupt’s estate—the administration by the person of a bankrupt’s estate or, without limiting the generality of the foregoing, any act done, or omitted to be done, by or on behalf of the person in connection with the administration of a bankrupt’s estate; or
(b) in relation to a person who is or has been the controlling trustee, within the meaning of Part X, in relation to a debtor whose property has become subject to control under Division 2 of that Part:
(i) the performance or exercise by the person; or
(ii) without limiting the generality of subparagraph (i), any act done, or omitted to be done, by or on behalf of the person in connection with the performance or exercise;
of a function, duty or power of the person as the controlling trustee, within the meaning of that Part, in relation to such a debtor;
‘examinable period’, in relation to an application under section 139a by the trustee of a bankrupt’s estate, means the period beginning:
(a) if, at a time or times during the period beginning 4 years before, and ending 2 years before, the commencement of the bankruptcy, the bankrupt became unable to pay his or her debts, as they became due, from his or her own money—at that time, or at the first of those times, as the case may be; or
(b) in any other case—2 years before the commencement of the bankruptcy;
and ending on the day on which the application is made;
‘examinable person’, in relation to a person (in this definition called the ‘relevant person’), means:
(a) if the relevant person is a debtor and property of the debtor is known or suspected to be in the possession of a person—that person;
(b) if the relevant person has become a bankrupt and any of the property of the bankrupt is known or suspected to be in the possession of a person—that person;
(c) in any case—a person who is believed to be indebted to the relevant person;
(d) if a person, including:
(i) a person who is an associated entity of the relevant person; or
(ii) a person with whom an associated entity of the relevant person is or has been associated;
may be able to give information about the relevant person or any of the relevant person’s examinable affairs—that person; or
(e) if books (including books of an associated entity of the relevant person):
(i) are in the possession of a person, including a person of a kind referred to in subparagraph (d) (i) or (ii); and
(ii) may relate to the relevant person or any of the relevant person’s examinable affairs;
that person;
‘frozen debt’ means a debt that:
(a) is owed by a declared debtor; and
(b) would, if the debtor had become a bankrupt when the declaration of intention was accepted under section 54c, be provable in the bankruptcy;
but does not include a debt in respect of the debtor’s liability under a maintenance agreement or maintenance order (whenever entered into or made);
‘in the possession of includes in the custody of or under the control of;
‘modifications’ includes additions, omissions and substitutions;
‘net value’, in relation to property, means:
(a) if the property is unencumbered—the value of the property;
(b) if the property is encumbered and the unencumbered value of the property exceeds the amount or value of the encumbrances—the amount of the excess; or
(c) in any other case—a nil amount;
‘net worth’, in relation to an entity, in relation to a time, means:
(a) if the entity is a trust and the total value of the trust property as at that time exceeds the total of the amounts of the trustee’s liabilities as at that time (other than liabilities constituted by the rights of
persons as beneficiaries under the trust)—the amount of the excess;
(b) if the entity is not a trust and the total value of the entity’s assets as at that time exceeds the total of the amounts of the entity’s liabilities as at that time—the amount of the excess; or
(c) in any other case—a nil amount;
‘operations’, in relation to an entity, means all of the following:
(a) the business, trading, transactions and dealings of the entity:
(i) whether alone or jointly with another entity or other entities; and
(ii) whether or not as agent, bailee or trustee;
(b) the profits, income and receipts of the entity;
(c) the losses, outgoings and expenditure of the entity,
‘parent’, in relation to a person, means a person of whom the first-mentioned person is a child;
‘personal services’, in relation to a bankrupt, means services of a physical, intellectual or other kind supplied by the bankrupt himself or herself:
(a) whether or not in a capacity as employee; and
(b) whether or not the supply of the services by the bankrupt discharged the obligations of an entity to supply services;
‘premises’ includes:
(a) any land;
(b) any structure, building, aircraft, vehicle, vessel or place (whether built on or not); and
(c) any part of such a structure, building, aircraft, vehicle, vessel or place;
‘private company’, in relation to a particular time, means a company other than a company that, as at that time:
(a) has been admitted to the official list of a securities exchange within the meaning of the Securities Industry Act 1980 or a law of a State or the Northern Territory corresponding to that Act; and
(b) has not been removed from that official list;
‘proceeds’, in relation to enforcement process in respect of a debt, means:
(a) the proceeds of selling property under the enforcement process;
(b) money taken under the enforcement process;
(c) money received as a result of attachment under the enforcement process; or
(d) money paid to avoid the taking or sale of property under, or to avoid attachment under, the enforcement process;
‘professional advice’ means financial, business or legal advice given by a person in the performance of the functions attaching to the person’s professional capacity;
‘state of affairs’, in relation to an entity, means all of the following:
(a) the property and assets of the entity:
(i) whether held alone or jointly with another person or other persons; and
(ii) whether or not held as agent, bailee or trustee;
(b) the liabilities of the entity:
(i) whether actual or contingent;
(ii) whether owed alone or jointly with another person or other persons; and
(iii) whether or not owed as trustee;
‘stay period’, in relation to a declaration of intention presented by a debtor, means the period beginning on the day on which the declaration was accepted under section 54c and ending when:
(a) the period of 7 days beginning on that day ends;
(b) a creditor’s petition or a debtor’s petition is presented against the debtor;
(c) the debtor signs an authority under section 188; or
(d) a sequestration order is made against the debtor;
whichever happens first;”; and
(h) by inserting after subsection (1) the following subsections:
“(1a) A reference in this Act to books of an associated entity of a person does not limit the generality of any other reference in this Act to books.
“(1b) A reference in this Act to an entity includes, in the case of a trust, a reference to the trustee of the trust.
“(1c) Paragraph (b) of the definition of ‘examinable affairs’ in subsection (1) does not limit the generality of a reference in this Act to a person’s conduct, dealings, transactions, property or affairs.”.
(2) The definition of “the property of the bankrupt” that subsection (1) of this section inserts in subsection 5 (1) of the Principal Act applies in relation to a bankrupt in respect of a bankruptcy whenever the date of the bankruptcy occurred.
5. After section 5 of the Principal Act the following sections are inserted:
Acting in accordance with a person’s directions or instructions
“5a. For the purposes of this Act, a person shall not be regarded as a person in accordance with whose directions or instructions the directors of a body corporate are accustomed to act merely because the directors act on advice given by the person in the proper performance of the functions attaching to the person’s professional capacity or to the person’s business relationship with the directors or with the body corporate.
Associated entities: companies
“5b. For the purposes of this Act, a company is associated with a person if, and only if, the person:
(a) is a company officer of the company or otherwise is concerned, or takes part, in the company’s management;
(b) is able to control, or to influence materially, the company’s activities or internal affairs;
(c) is a member of the company;
(d) is in a position to cast, or to control the casting of, a vote at a general meeting of the company;
(e) has power to dispose of, or to exercise control over the disposal of, a share in the company;
(f) is financially interested in the company’s success or failure or apparent success or failure;
(g) is owed a debt by the company;
(h) is employed, or is engaged under a contract for services, by the company;
(j) acts as agent for the company in any transaction or dealing; or
(k) gives professional advice to the company.
Associated entities: natural persons
“5c. For the purposes of this Act, a natural person (in this section called the ‘associate’) is associated with another person if, and only if, the other person:
(a) is a close relative of the associate;
(b) is a trustee of a trust under which the associate is capable of benefiting;
(c) is employed, or is engaged under a contract for services, by the associate;
(d) acts as agent for the associate in any transaction or dealing;
(e) is an attorney of the associate under a power of attorney;
(f) has appointed the associate as the other person’s attorney under a power of attorney;
(g) gives professional advice to the associate; or
(h) is given professional advice by the associate.
Associated entities: partnerships
“5d. For the purposes of this Act, a partnership is associated with a person if, and only if, the person:
(a) is a partner in the partnership;
(b) is able to control, or to influence materially, the partnership’s activities or internal affairs;
(c) is financially interested in the partnership’s success or failure or apparent success or failure;
(d) is a creditor of the partnership;
(e) is employed, or is engaged under a contract for services, by the partnership;
(f) acts as agent for the partnership in any transaction or dealing; or
(g) gives professional advice to the partnership.
Associated entities: trusts
“5e. For the purposes of this Act, a trust is associated with a person if, and only if, the person:
(a) is the settlor, or one of the settlors, of the trust;
(b) has power under the terms of the trust to appoint or remove a trustee of the trust or to vary, or cause to be varied, any of the terms of the trust;
(c) is a trustee of the trust;
(d) is able to control, or to influence materially, the activities of the trustee of the trust;
(e) if a trustee of the trust is a company—is a company officer of the company or otherwise is concerned, or takes part, in the company’s management;
(f) is capable of benefiting under the trust;
(g) is a creditor of the trustee of the trust;
(h) is employed, or is engaged under a contract for services, by the trustee of the trust;
(j) acts as agent for the trustee of the trust in any transaction or dealing; or
(k) gives professional advice to the trustee of the trust.
Controlling an entity in relation to a matter
“5f. (1) Subject to this section, a person shall be taken, for the purposes of this Act, to control an entity at a particular time in relation to a matter if, and only if:
(a) no act, omission or decision inconsistent with the person’s directions, instructions or wishes was; and
(b) having regard to all the circumstances, it may reasonably be expected that no such act, omission or decision would have been;
done or made at that time, in relation to the matter, by or on behalf of the entity.
“(2) A person shall not be taken to control an entity at a particular time in relation to a matter merely because:
(a) no act, omission or decision inconsistent with advice given by the person in the proper performance of the functions attaching to his or her professional capacity, or to his or her business relationship with the entity, was; and
(b) having regard to all the circumstances, it may reasonably be expected that no such act, omission or decision would have been;
done or made at that time, in relation to that matter, by or on behalf of the entity.
“(3) A reference in subsection (1) or (2), in relation to a matter, to an act, omission or decision is a reference to an act, omission or decision that, having regard to the nature of that matter, is of substantial importance.
“(4) A person shall not be taken to control a company at a particular time in relation to a matter if the company is not a private company at that time.
Financial affairs of a company
“5g. For the purposes of this Act, a company’s financial affairs include:
(a) the company’s promotion, formation, membership, control, operations and state of affairs;
(b) the management and proceedings of the company;
(c) any act or thing done (including any contract made and any transaction entered into) by or on behalf of the company, or to or in relation to the company or its business or property, at a time when:
(i) a receiver, or a receiver and manager, is in possession of, or has control over, property of the company;
(ii) the company is under official management;
(iii) a compromise or arrangement made between the company and another person or other persons is being administered; or
(iv) the company is being wound up;
and, without limiting the generality of the foregoing, any conduct of such a receiver or such a receiver and manager, of any person appointed as the official manager or deputy official manager of the company, of any person administering such a compromise or arrangement or of any liquidator or provisional liquidator of the company;
(d) the ownership of shares in, and debentures of, the company;
(e) the power of persons to exercise, or to control the exercise of, the rights to vote attached to shares in the company or to dispose of, or to exercise control over the disposal of, such shares;
(f) the circumstances under which a person acquired or disposed of, or became entitled to acquire or dispose of, shares in, or debentures of, the company; and
(g) matters concerned with ascertaining the persons with whom the company is or has been associated.
Financial affairs of a natural person
“5h. For the purposes of this Act, the financial affairs of a natural person include:
(a) the person’s operations and state of affairs;
(b) any act or thing done (including any contract made and any transaction entered into) by or on behalf of the person, or to or in relation to the person or his or her business or property, at a time when:
(i) the person was, under this Act or the law of an external Territory, a bankrupt in respect of a bankruptcy from which the person had not been discharged;
(ii) the person had, under the law of an external Territory or the law of a country other than Australia, the status of an undischarged bankrupt;
(iii) the property of the person was subject to control under Division 2 of Part X by reason of an authority given by the person under section 188; or
(iv) a deed of assignment, deed of arrangement, or composition, under Part X or under the corresponding provisions of a law of an external Territory or a country other than Australia was in effect in relation to the person or the person’s property;
(c) without limiting the generality of paragraph (b), any conduct of the trustee of such a bankrupt estate or of such a deed of assignment or arrangement, a person acting under such an authority or a person administering such a composition; and
(d) matters concerned with ascertaining the persons with whom the person is or has been associated.
Financial affairs of a partnership
“5j. For the purposes of this Act, the financial affairs of a partnership include:
(a) the partnership’s promotion, formation, membership, control, operations and state of affairs;
(b) the management and proceedings of the partnership;
(c) any act or thing done (including any contract made and transaction entered into) on behalf of the partnership, or to or in relation to
the partnership, at a time when the partnership is being wound up; and
(d) matters concerned with ascertaining the persons with whom the partnership is or has been associated.
Financial affairs of a trust
“5k. For the purposes of this Act, the financial affairs of a trust include:
(a) the creation of the trust;
(b) matters arising under, or otherwise relating to, the terms of the trust;
(c) the appointment and removal of a trustee of the trust;
(d) the business, trading, transactions and dealings of the trustee of the trust;
(e) the profits, income and receipts of the trustee of the trust;
(f) the losses, outgoings and expenditure of the trustee of the trust;
(g) the trust property, including transactions and dealings in, and the income arising from, the trust property;
(h) the liabilities of the trustee of the trust;
(j) the management of the trust;
(k) any act or thing done (including any contract made and transaction entered into) by or on behalf of the trustee of the trust, or to or in relation to the trust, at a time when the trust is being wound up;
(m) matters concerned with ascertaining the persons with whom the trust is or has been associated; and
(n) matters concerned with ascertaining the rights of the beneficiaries under the trust and any payments, or distributions of property, that the beneficiaries have received, or are entitled to receive, under the terms of the trust.”.
6. Before section 7 of the Principal Act the following section and heading are inserted:
Statements of affairs
“6a. (1) A reference in a relevant provision to:
(a) a statement of particular affairs; or
(b) a statement of a deceased person’s affairs and of a person’s administration of the deceased person’s estate;
is a reference to a statement of those affairs, or of those affairs and that administration, as the case may be, that:
(c) contains such information as is prescribed for the purposes of that provision; and
(d) is verified by affidavit.
“(2) In subsection (1):
‘relevant provision’ means subsection 54 (1) or (2) or 55 (2), paragraph 56 (2) (a) or (b) or (13) (a) or (b) or 57 (2) (a) or (b), subparagraph 188 (2) (c) (i), paragraph 246 (1) (a) or subsection 247 (1).
“PART Ib—APPLICATION OF ACT”.
Application of Act
7. Section 7 of the Principal Act is amended:
(a) by omitting paragraph (2) (b) and substituting the following paragraph:
“(b) a partnership or association registered under a law of the Commonwealth, of a State, or of a Territory of the Commonwealth, that provides for the winding up of a partnership or association registered under that law.”;
(b) by omitting from subsection (3) “Subject to such modifications and adaptations, if any, as are prescribed by the rules, the provisions of this Act apply to and” and substituting “This Act applies, with the prescribed modifications (if any),”; and
(c) by omitting subsection (4).
8. (1) Section 10 of the Principal Act is repealed and the following section is substituted:
Delegation by Minister or Secretary
“10. (1) The Minister may, either generally or as otherwise provided in the instrument of delegation, by writing signed by him or her, delegate to an officer all or any of the Minister’s powers under this Act, other than this power of delegation.
“(2) A power delegated under subsection (1) shall, when exercised by a delegate, be deemed to have been exercised by the Minister.
“(3) A delegation under subsection (1) does not prevent the exercise of a power by the Minister.
“(4) The Secretary may, either generally or as otherwise provided in the instrument of delegation, by writing signed by him or her, delegate to an officer all or any of the Secretary’s powers under this Act, other than this power of delegation.
“(5) A power delegated under subsection (4) shall, when exercised by a delegate, be deemed to have been exercised by the Secretary.
“(6) A delegation under subsection (4) does not prevent the exercise of a power by the Secretary.
“(7) In this section:
‘exercise’ includes perform;
‘officer’ means a person holding, or performing the duties of, an office in the Department;
‘power’ includes a function;
‘Secretary’ means the Secretary to the Department.”.
(2) An instrument of delegation that immediately before the commencement of this section was in force under section 10 of the Principal Act has effect after that commencement as if the instrument had been made in accordance with subsection 10 (1) of the Principal Act as amended by this Act.
Functions of Inspector-General
9. (1) Section 12 of the Principal Act is amended:
(a) by omitting from paragraph (1) (ba) “the conduct, trade dealings, property and affairs” and substituting “so much of the conduct and examinable affairs”;
(b) by omitting subparagraph (1) (ba) (iii) and substituting the following:
“(iii) a debtor under a deed of assignment, deed of arrangement, or composition, under Part X;
as is relevant to the bankruptcy, deed of assignment, scheme or deed of arrangement, or composition, as the case may be;”; and
(c) by inserting after subsection (1a) the following subsection:
“(1ba) The Inspector-General may make an inquiry or investigation under paragraph (1) (b) or (ba) at any time, whether before or after the end of the bankruptcy, deed of assignment, scheme or deed of arrangement, composition or administration concerned.”.
(2) The amendments made by subsection (1):
(a) apply in relation to a bankrupt in respect of a bankruptcy if, and only if, the date of the bankruptcy occurs on or after the day of commencement of this section;
(b) apply in relation to a bankrupt or debtor under a composition or scheme of arrangement under Division 6 of Part IV of the Bankruptcy Act 1966 if, and only if, the composition or scheme is approved by the Court on or after the day of that commencement; and
(c) apply in relation to a debtor under a deed of assignment, deed of arrangement, or composition, under Part X of the Bankruptcy Act 1966 if, and only if, the deed is executed or the composition is accepted, as the case may be, on or after the day of that commencement.
Duties etc. of trustees and of Official Receiver
10. (1) Section 19 of the Principal Act is amended:
(a) by omitting paragraphs (1) (c) and (d) and substituting the following paragraphs:
“(d) to convene a meeting of the bankrupt’s creditors whenever required by subsection 64 (1);
(da) to attend, or to arrange for a person (authorised in writing by the trustee) to attend on the trustee’s behalf, a meeting of the bankrupt’s creditors that is convened under section 64;”;
(b) by omitting from paragraph (1) (e) “has made an application” and substituting “applies”;
(c) by adding at the end of paragraph (1) (f) “and”;
(d) by omitting paragraph (1) (g);
(e) by omitting from subsections (1a) and (1b) “bankrupt” (wherever occurring) and substituting “person”; and
(f) by omitting subsection (1c).
(2) The amendments made by subsection (1) apply as provided in subsection 106 (1).
11. (1) After section 19 of the Principal Act the following section is inserted:
Investigation of bankrupt by trustee or Official Receiver
“19aa. (1) Where a person becomes a bankrupt:
(a) the trustee shall, to the extent that the trustee, having regard to all the circumstances of the case, considers it desirable to do so at any time (whether before or after the end of the bankruptcy), investigate; and
(b) the Official Receiver may, to the extent that the trustee has indicated to the Official Receiver that the trustee does not propose to do so, investigate at any time (whether before or after the end of the bankruptcy);
the following matters:
(c) so much of the bankrupt’s conduct and examinable affairs, and the books, accounts and records kept by the bankrupt, as is relevant to the bankruptcy;
(d) the cause of the bankruptcy.
“(2) A person who conducts an investigation under subsection (1) shall file with the Registrar:
(a) a written report about the results of the investigation; and
(b) such supplementary written reports about the matters to which the investigation relates as the person considers desirable, having regard to all the circumstances of the case.”.
(2) The section inserted in the Principal Act by subsection (1) applies as provided in subsection 106 (1) of this Act.
Investment of money in Common Fund
12. Section 20d of the Principal Act is amended by omitting from paragraph (8) (c) “a company the principal business of which” and substituting “a body (whether incorporated or not) whose principal business”.
General powers of Courts in bankruptcy
13. (1) Section 30 of the Principal Act is amended:
(a) by inserting in paragraph (5) (a) “or requirement” after “direction” (last occurring);
(b) by omitting paragraph (5) (b) and substituting the following paragraph:
“(b) a trustee has failed to comply with an order, direction or requirement of a Registrar, or with a requirement or request of the Inspector-General, under this Act;”;
(c) by omitting from paragraph (5) (c) “or requirement” and substituting “, requirement or request, as the case may be,”; and
(d) by omitting from subsection (6) “or requirement” and substituting “, requirement or request, as the case may be”.
(2) The amendments made by subsection (1) apply in relation to a failure to comply with an order, direction, requirement or request, whenever made or given.
Exercise of jurisdiction
14. Section 31 of the Principal Act is amended by inserting after paragraph (1) (e) the following paragraph:
“(ea) applications under section 139a;”.
15. (1) After section 34 of the Principal Act the following section is inserted:
Standard of proof
“34a. (1) Where, in proceedings in the Court (other than proceedings for an offence), it is necessary, for a purpose relating to a matter arising under this Act, to establish, or for the Court to be satisfied as to, a particular fact (including a contravention of this Act), it is sufficient if that fact is established, or the Court is satisfied as to that fact, as the case may be, on the balance of probabilities.
“(2) Subsection (1) has effect except to the extent that this Act expressly provides otherwise.”.
(2) The section inserted in the Principal Act by subsection (1) applies in relation to proceedings whenever begun.
Acts of bankruptcy
16. (1) Section 40 of the Principal Act is amended:
(a) by inserting after paragraph (1) (d) the following paragraph:
“(da) if the debtor presents to the Registrar a declaration under section 54a;”; and
(b) by omitting from paragraph (1) (k) “or to submit to such a meeting the statement referred to in section 195”.
(2) Notwithstanding subsection (1), paragraph 40 (1) (k) of the Principal Act continues to apply in relation to an authority signed, before the commencement of this section, under section 188 of the Principal Act.
Taking control of debtor’s property before sequestration
17. (1) Section 50 of the Principal Act is amended by omitting subsections (2) and (3) and substituting the following subsections:
“(2) Without limiting the generality of subsection (1), the Court may, at any time after giving a direction under subsection (1), summon the debtor, or an examinable person in relation to the debtor, for examination under this section in relation to the debtor.
“(3) A summons to a person under subsection (2) shall require the person to attend:
(a) at a specified place and at a specified time on a specified day; and
(b) before the Court, the Registrar or a magistrate, as specified in the summons;
to be examined on oath under this section about the debtor and the debtor’s examinable affairs.
“(4) A summons to a person under subsection (2) may require the person to produce at the examination books (including books of an associated entity of the debtor) that:
(a) are in the possession of the first-mentioned person; and
(b) relate to the debtor or to any of the debtor’s examinable affairs.
“(5) For the purpose of the examination under this section of a person summoned under subsection (2), subsections 81 (2) to (17), inclusive, apply, with the prescribed modifications (if any), as if:
(a) a sequestration order had been made against the debtor when the Court gave the direction under subsection (1) of this section;
(b) the examination were being held under section 81; and
(c) a reference in those subsections to a creditor were a reference to a person who has a debt that would be provable in the debtor’s bankruptcy if a sequestration order had been made as mentioned in paragraph (a) of this subsection.”.
(2) The amendment made by subsection (1) applies in relation to a direction given under subsection 50 (1) of the Bankruptcy Act 1966 on an application made after the commencement of this section.
Bankrupt’s statement of affairs
18. (1) Section 54 of the Principal Act is amended by omitting from paragraphs (1) (a) and (2) (a) “in accordance with the prescribed form and verified by affidavit”.
(2) The amendments made by subsection (1) apply as provided in subsection 106 (1).
19. After Division 2 of Part IV the following Division is inserted:
“Division 2a—Declaration of Intention to present Debtor’s Petition
Presentation of declaration
“54a. Subject to section 54b, a debtor may present to the Registrar a declaration, in accordance with the prescribed form, of the debtor’s intention to present a debtor’s petition.
When debtor disqualified from presenting declaration
“54b. A debtor is not entitled to present a declaration under section 54a:
(a) when the debtor is not entitled, except with the leave of the Court, to present a petition under section 55;
(b) after a creditor’s petition presented against the debtor is served on the debtor and before:
(i) a sequestration order is made on the petition;
(ii) the petition is withdrawn or dismissed; or
(iii) the petition lapses under subsection 52 (4);
(c) after a debtor’s petition is presented against the debtor and before the petition is accepted or rejected;
(d) while the debtor’s property is subject to control under Division 2 of Part X;
(e) within 6 months after the debtor signs an authority under section 188; or
(f) within 12 months after a declaration presented by the debtor under section 54a is accepted under section 54c.
Acceptance or rejection of declaration
“54c. Subject to section 54d, where a debtor presents a declaration under section 54a, the Registrar shall:
(a) if it appears to the Registrar that the debtor is entitled to present a declaration under section 54a and that the declaration presented is in accordance with the prescribed form:
(i) accept the declaration and endorse it accordingly; and
(ii) forthwith sign and seal a copy of the declaration; or
(b) in any other case—reject the declaration.
Registrar to supply information to debtor
“54d. (1) The Registrar shall not accept a declaration presented by a debtor under section 54a unless the Registrar is satisfied that the debtor’s attention has been directed to:
(a) the procedures under this Act for dealing with the debtor’s financial affairs; and
(b) the availability, and sources, of advice and guidance about how the debtor can deal with his or her financial difficulties.
“(2) A contravention of subsection (1) does not affect the validity of the Registrar’s acceptance under section 54c of a declaration presented under section 54a.
Enforcement suspended during stay period
“54e. (1) Where, during the stay period in relation to a declaration of intention presented by a debtor, a sealed copy of the declaration is produced to a creditor to whom the debtor owes a frozen debt, subsection (2) has effect throughout the remainder of that period.
“(2) It is not competent for the creditor:
(a) to apply for the issue of enforcement process in respect of the debt; or
(b) to enforce a remedy against the debtor’s person or property in respect of the debt.
“(3) Nothing in this section prevents a creditor from commencing a legal proceeding in respect of a debt, or from taking a fresh step in such a proceeding otherwise than in connection with enforcing a judgment.
Duties of sheriff
“54f. (1) Where, during the stay period in relation to a declaration of intention presented by a debtor, a sealed copy of the declaration is produced to a sheriff, subsections (2) and (3) have effect throughout the remainder of that period.
“(2) The sheriff shall refrain from taking action, or further action, to execute, or to sell property under, enforcement process issued in respect of a frozen debt owed by the debtor.
“(3) The sheriff shall refrain from paying to a person proceeds of enforcement process issued in respect of a frozen debt owed by the debtor.
“(4) A contravention of this section does not affect a person’s title to property that was purchased in good faith under a sale under enforcement process issued in respect of a debt.
“(5) Where:
(a) under this section, a sheriff refrains from taking action, or further action, to sell real property under enforcement process issued in respect of a debt;
(b) the debtor becomes a bankrupt; and
(c) the property vests in the trustee of the bankrupt’s estate;
the costs of executing the enforcement process are a first charge on the property.
Duty of court registrar
“54g. Where, during the stay period in relation to a declaration of intention presented by a debtor, a sealed copy of the declaration is produced to the registrar or other appropriate officer of a court, the registrar or other officer shall, throughout the remainder of that period, refrain from paying to a person proceeds of enforcement process issued in respect of a frozen debt owed by the debtor.
Duties of person entitled to deduct money owing to declared debtor
“54h. (1) Where, during the stay period in relation to a declaration of intention presented by a debtor, a sealed copy of the declaration is produced to a person who is entitled under a law of the Commonwealth, of a State, or of a Territory of the Commonwealth:
(a) to retain or deduct money from money payable or owing, or to become payable or owing, to the debtor; and
(b) to apply the retained or deducted money toward discharging a frozen debt owed by the debtor to any person;
subsections (2) and (3) apply.
“(2) The person shall, throughout the remainder of that period:
(a) refrain from so retaining or deducting money; and
(b) refrain from paying to a person (other than the debtor), or otherwise applying, money that was so retained or deducted before the sealed copy was produced to the person.
“(3) Nothing in this section affects a person’s liability to pay money to the debtor.
“(4) Nothing in this section affects the operation of section 218 of the Income Tax Assessment Act 1936.
Extension of time where this Division prevents the doing of an act
“54j. Where, throughout a particular period, this Division prevents the doing of a particular act, that period shall be disregarded in determining, for the purposes of any law, agreement or instrument, whether or not that act has been done within a particular period or before a particular time.
Section 33 not to apply to this Division
“54k. Nothing in section 33 permits the extension or abridgment of a period or time limited by this Division.
Secured creditor’s rights under security not affected
“54l. Nothing in this Division affects the right of a secured creditor to realise or otherwise deal with the creditor’s security.”.
Debtor’s petition
20. (1) Section 55 of the Principal Act is amended by omitting subsections (1), (2), (3) and (4) and substituting the following subsections:
“(1) Subject to this section, a debtor may present to the Registrar a petition against himself or herself.
“(2) A petition presented by a debtor under this section:
(a) shall be in accordance with the prescribed form; and
(b) shall be accompanied by a statement of the debtor’s affairs and a copy of that statement.
“(3) Where a petition is presented under this section, the Registrar shall:
(a) if it appears to the Registrar that the petition, and the statement of affairs accompanying the petition, comply with subsection (2)—accept the petition; or
(b) in any other case—reject the petition or refer it to the Court for a direction to accept or reject it.
“(4) The Registrar shall comply with a direction given by the Court on a reference under subsection (3).
“(4a) Where the Registrar accepts a petition presented under this section:
(a) he or she shall endorse the petition accordingly; and
(b) upon the Registrar endorsing the petition, the debtor who presented the petition becomes a bankrupt by force of this section and by virtue of presentation of the petition.”.
(2) Notwithstanding subsection (1), section 55 of the Principal Act continues to apply in relation to a petition presented under that section before the commencement of this section.
Debtor’s petition against partnership
21. (1) Section 56 of the Principal Act is amended:
(a) by inserting in subsection (2) “shall be in accordance with the prescribed form and” after “section”;
(b) by omitting from paragraphs (2) (a) and (b) “, verified by affidavit”;
(c) by omitting subsection (3);
(d) by omitting paragraphs (4) (a) and (b) and substituting the following paragraphs:
“(a) it appears to the Registrar that a petition presented under this section, and each statement of affairs accompanying the petition, comply with subsection (2); or
(b) on a reference under subsection (5) or (6), the Court directs the Registrar to accept a petition presented under this section;”;
(e) by omitting subsection (5) and substituting the following subsection:
“(5) Where it appears to the Registrar that a petition presented under this section, or a statement of affairs accompanying such a petition, does not comply with subsection (2), the Registrar shall:
(a) reject the petition; or
(b) refer the petition to the Court for a direction to accept or reject the petition.”;
(f) by omitting from paragraph (7) (c) “not to accept” and substituting “to reject”;
(g) by inserting after subsection (7) the following subsection:
“(7a) The Registrar shall reject a petition where so directed on a reference under subsection (5) or (6).”;
(h) by omitting from subsection (8) “under subsection (5) or (7) of this section” and substituting “on a reference under subsection (5) or (6)”; and
(j) by omitting subsection (14).
(2) Notwithstanding subsection (1), section 56 of the Principal Act continues to apply in relation to a petition presented under that section before the commencement of this section.
Debtor’s petition by joint debtors who are not partners
22. (1) Section 57 of the Principal Act is amended:
(a) by inserting in subsection (2) “shall be in accordance with the prescribed form and” after “section”;
(b) by omitting from paragraphs (2) (a) and (b) “, verified by affidavit”; and
(c) by omitting subsections (3), (4) and (5) and substituting the following subsections:
“(3) Where a petition is presented under this section, the Registrar shall:
(a) if it appears to the Registrar that the petition, and each statement of affairs accompanying the petition, comply with subsection (2)—accept the petition; or
(b) in any other case—reject the petition or refer it to the Court for a direction to accept or reject it.
“(4) The Registrar shall comply with a direction given on a reference under subsection (3).
“(5) Where the Registrar accepts a petition presented under this section:
(a) he or she shall endorse the petition accordingly; and
(b) upon the Registrar endorsing the petition, each of the petitioning debtors becomes a bankrupt by force of this section and by virtue of presentation of the petition.”.
(2) Notwithstanding subsection (1), section 57 of the Principal Act continues to apply in relation to a petition presented under that section before the commencement of this section.
Second or subsequent bankruptcy
23. (1) Section 59 of the Principal Act is amended:
(a) by inserting in subparagraph (1) (c) (i) “or remuneration” after “expenses”; and
(b) by inserting in sub-subparagraph (1) (c) (iii) (a) “, or his remuneration in the earlier bankruptcy that has,” after “have”.
(2) The amendments made by subsection (1) apply in relation to a bankrupt who again becomes bankrupt after the commencement of this section, whether the date of the earlier bankruptcy occurred before, on or after the day of that commencement.
Amendment of heading
24. The heading to Division 5 of Part IV of the Principal Act is amended by omitting “First Meeting” and substituting “Meetings”.
25. (1) Section 64 of the Principal Act is repealed and the following section is substituted:
Meetings of creditors
“64. (1) The trustee shall convene a meeting of the creditors of a bankrupt:
(a) whenever the creditors so direct by resolution;
(b) whenever so requested in writing by at least one-fourth in value of the creditors; and
(c) whenever so requested in writing by less than one-fourth in value of the creditors, being a creditor who has, or creditors who together have, lodged with the trustee sufficient security for the cost of holding the meeting.
“(2) The trustee may convene at any time a meeting of the creditors of a bankrupt.”.
(2) The section inserted in the Principal Act by subsection (1) applies as provided in subsection 106 (1) of. this Act.
(3) Notwithstanding subsection (1), section 64 of the Principal Act continues to apply in relation to a bankrupt in respect of a bankruptcy if the date of the bankruptcy occurred before the commencement of this section.
Election of chairman
26. (1) Section 65 of the Principal Act is amended by omitting “the first” and substituting “a”.
(2) The amendment made by subsection (1) applies as provided in subsection 106 (1).
Entitlement to vote at meeting of creditors
27. (1) Section 66 of the Principal Act is amended:
(a) by omitting from subsections (1), (2) and (5) “the first” and substituting “a”; and
(b) by inserting in subsection (5) “, or the de facto spouse,” after “spouse”.
(2) The amendments made by subsection (1) apply as provided in subsection 106 (1).
Manner of voting
28. (1) Section 67 of the Principal Act is amended by omitting from subsection (1) “the first” and substituting “a”.
(2) The amendment made by subsection (1) applies as provided in subsection 106 (1).
Admission and rejection of claim to vote
29. (1) Section 68 of the Principal Act is amended by omitting “the first” and substituting “a”.
(2) The amendment made by subsection (1) applies as provided in subsection 106 (1).
Public examination of bankrupt
30. (1) Section 69 of the Principal Act is amended:
(a) by omitting subsections (1) and (2) and substituting the following subsections:
“(1) Where a person (in this section called the ‘examinee’) becomes a bankrupt, the Official Receiver or the trustee of the examinee’s estate may, at any time (whether before or after the end of the bankruptcy), apply in writing to the Registrar for the examinee to be examined on oath under this section about his or her conduct and examinable affairs.
“(2) On receiving the application, the Registrar shall fix a reasonable day, time and place for the examination to begin and shall summon the examinee to attend on that day and at that time and place.”;
(b) by omitting from subsection (4) “of a bankrupt under this section” and “by instrument”;
(c) by omitting from paragraphs (5) (a), (b) and (c) “of the bankrupt”;
(d) by inserting in paragraph (5) (c) “with the consent in writing of the person who applied for the examination,” before “conclude”;
(e) by omitting subsection (8) and substituting the following subsection:
“(8) The examinee may be represented at the examination by counsel or a solicitor, who may re-examine the examinee after he or she has been examined.”;
(f) by omitting from subsections (9), (11), (12) and (20) “bankrupt” (wherever occurring) and substituting “examinee”;
(g) by inserting after subsection (11) the following subsection:
“(11a) Notwithstanding section (11), if the examinee has been discharged from the bankruptcy, a question about a matter or thing arising or occurring after the discharge shall not be put, or allowed to be put, to the examinee unless the question is about a matter or thing connected with the administration of the examinee’s estate.”;
(h) by inserting after subsection (12) the following subsections:
“(13) The Court, the Registrar or the magistrate may direct the examinee to produce at the examination specified books, or specified classes of books, that are in the possession of the examinee and are relevant to matters about which the examinee is being, or is to be, examined.
“(14) Without limiting the generality of subsection (13), a direction under that subsection may relate to books of an associated entity of the examinee.”;
(j) by omitting from subsection (18) “of the bankrupt under this section”; and
(k) by omitting from subsection (18) “bankrupt” (second occurring) and substituting “examinee”.
(2) The amendments made by subsection (1) apply as provided in subsection 106 (1).
Committee of inspection
31. (1) Section 70 of the Principal Act is amended by omitting from subsection (1) “the first meeting of creditors or at a subsequent meeting” and substituting “a meeting of the creditors”.
(2) The amendment made by subsection (1) applies as provided in subsection 106 (1).
Approval by Court
32. (1) Section 74 of the Principal Act is amended by omitting paragraph (3) (a) and substituting the following paragraph:
“(a) a report by the trustee about:
(i) the terms of the composition or scheme of arrangement; and
(ii) such (if any) of the bankrupt’s conduct and examinable affairs as the trustee has investigated; and”.
(2) The amendment made by subsection (1) applies as provided in subsection 106 (1).
Application of Part VIII to trustee of a composition or arrangement
33. Section 76 of the Principal Act is amended:
(a) by omitting from subsection (1) all the words before “in relation to” and substituting “Part VIII applies, with the prescribed modifications (if any),”;
(b) by omitting from subsection (2) “modifications and adaptations made by the rules” and “to or in relation to” and substituting “prescribed modifications” and “in relation to”, respectively; and
(c) by omitting subsection (3).
Duties of bankrupt as to discovery etc. of property
34. (1) Section 77 of the Principal Act is amended by omitting paragraphs (a), (b), (c) and (d) and substituting the following paragraphs:
“(a) forthwith after becoming a bankrupt, give to the trustee:
(i) all books (including books of an associated entity of the bankrupt) that are in the possession of the bankrupt and relate to any of his or her examinable affairs; and
(ii) the bankrupt’s passport, if any;
(b) attend the trustee whenever the trustee reasonably requires;
(ba) give such information about any of the bankrupt’s conduct and examinable affairs as the trustee requires;
(c) attend a meeting of creditors whenever the trustee requires;
(d) at each meeting of creditors at which the bankrupt is present, give such information about any of the bankrupt’s conduct and examinable affairs as the meeting requires;”.
(2) The amendment made by subsection (1) applies as provided in subsection 106 (1).
35. (1) After section 77 of the Principal Act the following section is inserted:
Access by trustee or Official Receiver to books of associated entity
“77a. (1) Where a person (in this section called the ‘investigator’) is conducting under section 19aa an investigation relating to a person (in this section called the ‘bankrupt’), subsections (2) and (3) of this section apply.
“(2) For the purposes of the investigation, the investigator may by writing require a person to produce:
(a) to a specified person, being the investigator or another person; and
(b) at a specified place, and within a specified period or at a specified time on a specified day, being a place, and a period or a time and day, that are reasonable in the circumstances;
specified books, or specified classes of books, that:
(c) are books of an associated entity of the bankrupt;
(d) are in the possession of the person of whom the requirement is made; and
(e) in the investigator’s opinion, are relevant to the investigation.
“(3) Where the investigator requires a person (in this subsection called the ‘relevant person’) under this section to produce books to a specified person, the investigator or the specified person:
(a) if the books are so produced:
(i) may make copies of, or take extracts from, the books; and
(ii) may require the relevant person, or any other person who was a party to the compilation of the books, to explain to the best of his or her knowledge and belief any matter about the compilation of the books or to which the books relate; or
(b) in any other case—may require the relevant person to state, to the best of his or her knowledge or belief:
(i) where the books may be found; and
(ii) who last had possession, custody or control of the books and where that person may be found.
“(4) The production of books under this section does not prejudice a lien that a person has on the books.”.
(2) The section inserted in the Principal Act by subsection (1) applies as provided in subsection 106 (1) of this Act.
36. (1) Before section 78 of the Principal Act the following section is inserted:
Bankrupt to assist Official Receiver
“77b. Where the Official Receiver conducts an investigation under section 19aa in relation to a person, the person shall, unless excused by the Official Receiver or prevented by illness or other sufficient cause:
(a) give to the Official Receiver such books (including books of an associated entity of the person) that:
(i) are in the possession of the person;
(ii) relate to any of the person’s examinable affairs; and
(iii) the person is not required to give to the trustee of the person’s estate;
as the Official Receiver requires;
(b) attend the Official Receiver whenever he or she reasonably requires;
(c) give to the Official Receiver such information about any of the person’s conduct and examinable affairs as the Official Receiver requires; and
(d) give to the Official Receiver such assistance in connection with the investigation as the Official Receiver reasonably requires.”.
(2) The section inserted in the Principal Act by subsection (1) applies as provided in subsection 106 (1) of this Act.
Arrest of debtor or bankrupt
37. (1) Section 78 of the Principal Act is amended by omitting from paragraph (1) (c) all the words after “remove,” and substituting “books (including books of an associated entity of the debtor) relating to any of the debtor’s examinable affairs”.
(2) The amendment made by subsection (1) applies in relation to a bankruptcy notice issued, or a petition presented, after the commencement of that subsection.
(3) Section 78 of the Principal Act is amended:
(a) by omitting from paragraph (1) (d) “his property” and substituting “the property of the bankrupt”; and
(b) by omitting from subsections (1) and (2) “, books, documents, papers and writings” and substituting “and books”.
(4) The amendments made by subsection (3) apply as provided in subsection 106 (1).
Discovery of bankrupt’s property etc.
38. (1) Section 81 of the Principal Act is amended:
(a) by omitting subsection (1) and substituting the following subsections:
“(1) Where a person (in this section called the ‘relevant person’) becomes a bankrupt, the Court or the Registrar may at any time (whether before or after the end of the bankruptcy), on the application of:
(a) a person (in this section called a ‘creditor’) who has or had a debt provable in the bankruptcy;
(b) the trustee of the relevant person’s estate; or
(c) the Official Receiver;
summon the relevant person, or an examinable person in relation to the relevant person, for examination in relation to the bankruptcy.
“(1a) A summons to a person by the Court or the Registrar under subsection (1) shall require the person to attend:
(a) at a specified place and at a specified time on a specified day, being a place, time and day that are reasonable in the circumstances; and
(b) before the Court or the Registrar or, if the Court or the Registrar thinks fit, a magistrate;
to be examined on oath under this section about the relevant person and the relevant person’s examinable affairs.
“(1b) A summons to a person under subsection (1) may require the person to produce at the examination books (including books of an associated entity of the relevant person) that:
(a) are in the possession of the first-mentioned person; and
(b) relate to the relevant person or to any of the relevant person’s examinable affairs.
“(1c) Before summoning a person on an application under subsection (1) by a creditor, the Court or the Registrar, as the case requires, may impose on the applicant such terms as to costs as it, or he or she, thinks fit.”;
(b) by omitting from subsection (8) “The trustee or a creditor of the bankrupt” and substituting “Where a person is summoned for examination under this section, a creditor, the trustee or the Official Receiver”;
(c) by omitting subsection (10) and substituting the following subsections:
“(10) The Court, the Registrar or the magistrate may put, or allow to be put, to a person being examined under this section such questions about the relevant person or any of the relevant person’s examinable affairs as the Court, the Registrar or the magistrate, as the case may be, thinks appropriate.
“(10a) Notwithstanding subsection (10), where a person is being examined under this section after the end of the bankruptcy, a question about a matter or thing arising or occurring after the end of the bankruptcy shall not be put, or allowed to be put, at the examination unless the question is about a matter or thing connected with the administration of the relevant person’s estate.”;
(d) by inserting after subsection (11) the following subsections:
“(11a) The Court, the Registrar or the magistrate may direct a person who is being examined under this section to produce at the examination specified books, or specified classes of books, that are in the possession of the person and are relevant to matters about which the person is being, or is to be, examined.
“(11b) Without limiting the generality of subsection (11a), a direction under that subsection may relate to books of an associated entity of the relevant person.”;
(e) by omitting from subsections (12) and (14) “bankrupt” (wherever occurring) and substituting “relevant person”;
(f) by omitting from subsection (12) “who has proved his debt”;
(g) by omitting subsection (13) and substituting the following subsection:
“(13) Where a person admits on examination under this section that there is in the possession of the person property of the relevant person that is divisible among creditors, the Court, the Registrar or the magistrate, as the case requires, may, on the application of the trustee or a creditor, order the first-mentioned person to deliver the
property to the trustee within a specified period, in a specified manner and on specified terms.”;
(h) by omitting from subsection (17) (b) “bankrupt” (first occurring) and substituting “relevant person”; and
(j) by omitting from paragraph (17) (b) “of the bankrupt”.
(2) The amendments made by subsection (1) apply as provided in subsection 106 (1).
Debts provable in bankruptcy
39. (1) Section 82 of the Principal Act is amended by inserting before subsection (4) the following subsection:
“(3b) A debt is not provable in a bankruptcy in so far as the debt consists of interest accruing, in respect of a period commencing on or after the date of the bankruptcy, on a debt that is provable in the bankruptcy.”.
(2) The amendment made by subsection (1) applies in relation to a bankruptcy if, and only if, the date of the bankruptcy is a day on or after the day of commencement of this section.
Inspection of proofs by creditors etc.
40. (1) Section 101 of the Principal Act is amended:
(a) by omitting subsection (1) and substituting the following subsection:
“(1) A creditor is entitled to examine at all reasonable times the proofs of debt of other creditors.”; and
(b) by omitting from subsection (2) “lodged a proof of debt” and substituting “a provable debt”.
(2) The amendments made by subsection (1) apply as provided in subsection 106 (1).
Priority payments
41. (1) Section 109 of the Principal Act is amended:
(a) by omitting from paragraph (1) (j) “general meeting of creditors” and substituting “meeting of the creditors”; and
(b) by omitting subsection (4).
(2) Notwithstanding subsection (1), subsection 109 (4) of the Principal Act continues to apply in relation to a bankrupt in respect of a bankruptcy if the first dividend was paid before the commencement of this section.
Repeal of sections 111 and 112
42. (1) Sections 111 and 112 of the Principal Act are repealed.
(2) Notwithstanding subsection (1), sections 111 and 112 of the Principal Act continue to apply in relation to a bankrupt in respect of a bankruptcy if the first dividend was paid before the commencement of this section.
Property divisible among creditors
43. (1) Section 116 of the Principal Act is amended:
(a) by omitting from paragraph (1) (a) “and” (last occurring); and
(b) by inserting after paragraph (1) (b) the following paragraphs:
“; (c) property that is vested in the trustee of the bankrupt’s estate by or under an order under section 139d; and
(d) money that is paid to the trustee of the bankrupt’s estate under an order under section 139e;”.
(2) The amendments made by subsection (1) apply in relation to a bankrupt in respect of a bankruptcy whenever the date of the bankruptcy occurred.
(3) Section 116 of the Principal Act is amended:
(a) by adding at the end of paragraph (2) (b) “at any time before the trustee realises that other household property”;
(b) by omitting paragraph (2) (c) and substituting the following paragraphs:
“(c) ordinary tools of trade, plant and equipment, professional instruments, and reference books, of the bankrupt whose aggregate value does not exceed the prescribed amount, and such other property, if any, being such tools, plant and equipment, professional instruments or reference books, as:
(i) the creditors determine by resolution; or
(ii) the Court, on application by the bankrupt, determines;
at any time before the trustee realises that other property;
(ca) property used by the bankrupt primarily as a means of transport, being property whose aggregate value does not exceed the prescribed amount or, if before the trustee realises the last-mentioned property the creditors determine by resolution a greater amount in relation to that property, that greater amount;”;
(c) by omitting from paragraph (f) “in the aggregate $1,200 or such greater amount as is prescribed for the purposes of this paragraph” and substituting “, in the aggregate, the prescribed amount”;
(d) by omitting from paragraph (fa) “$1,200 per annum or such greater amount per annum as prescribed for the purposes of this paragraph” and substituting “the prescribed amount per annum”;
(e) by omitting paragraph (o) and substituting the following paragraph:
“(p) amounts paid to the bankrupt under subsection (2c) or (4).”; and
(f) by omitting subsections (3) and (4) and substituting the following subsections:
“(2a) A reference in a paragraph of subsection (2) to the prescribed amount is a reference to:
(a) in the case of paragraph (2) (c)—$500;
(b) in the case of paragraph (2) (ca)—$2,500; or
(c) in the case of paragraph (2) (f) or (fa)—$1,200;
or, if at the beginning of the date of the bankruptcy a greater amount is prescribed for the purposes of that paragraph, to that greater amount.
“(2b) Where, because of a determination by the creditors, or by the Court, under paragraph (2) (b), (c) or (ca), property that is vested in the trustee ceases at a particular time to be property divisible among the creditors, then, immediately after that time:
(a) the property revests in the bankrupt;
(b) the trustee is discharged from the trustee’s liabilities in respect of the property; and
(c) the bankrupt becomes subject to those liabilities.
“(2c) Where:
(a) property used by the bankrupt primarily as a means of transport is vested in the trustee; and
(b) as at the time when the trustee realises that property:
(i) no other property has remained vested in the bankrupt by virtue of paragraph (2) (ca); and
(ii) no other property has, because of a determination by the creditors under paragraph (2) (ca), revested in the bankrupt by virtue of subsection (2b);
the trustee shall pay to the bankrupt so much of the proceeds of realising that property as, when added to the aggregate of the amounts (if any) that the trustee has previously paid to the bankrupt under this subsection, does not exceed the prescribed amount within the meaning of paragraph (2) (ca).
“(2d) In subsections (3) and (4):
‘exempt loan money’, in relation to a particular time, means so much of the principal sum of a loan to the bankrupt, or to the bankrupt and another person or other persons, as was repaid, before that time, out of exempt money;
‘exempt money’ means money of any of the following kinds:
(a) proceeds of a kind referred to in paragraph (2) (d) or (e);
(b) damages or compensation of a kind referred to in paragraph (2) (g);
(c) amounts of a kind referred to in paragraph (2) (k), (m) or (ma);
‘outlay’, in relation to property, in relation to a particular time, means all of the following:
(a) the money paid for the purchase, or used in the acquisition, of the property;
(b) the money paid before that time in respect of the extensions, alterations and improvements, if any, of the property constructed or made since that purchase or acquisition;
‘protected money’, in relation to a particular time, means:
(a) exempt money; or
(b) exempt loan money in relation to that time.
“(3) Where, as at the time when the bankrupt becomes a bankrupt, the whole, or substantially the whole, of the money paid for the purchase, or used in the acquisition, of particular property is protected money, paragraph (2) (n) applies to the property.
“(4) Where, as at the time when the trustee realises particular property to which paragraph (2) (n) does not apply, the outlay in relation to the property is in part protected money and in part other money, the trustee shall pay to the bankrupt so much of the proceeds of realising the property as can fairly be attributed to that protected money.”.
(4) The amendments made by subsection (3) apply as provided in subsection 106 (1).
Avoidance of voluntary and marriage settlements
44. (1) Section 120 of the Principal Act is amended by omitting from subsection (4) “claims under section 111, claims in respect of excess interest under section 112 and”.
(2) The amendment made by subsection (1) applies in relation to a bankruptcy if, and only if, the first dividend was paid before the commencement of that subsection.
(3) Section 120 of the Principal Act is amended by omitting from subsection (4) “bankruptcy)” and substituting “bankruptcy but not including claims under subsection 139h (1))”.
(4) The amendment made by subsection (3) applies in relation to a bankruptcy whenever the date of the bankruptcy occurred.
Protection of certain transactions against relation back etc.
45. (1) Section 123 of the Principal Act is amended by omitting from subsection (6) “Nothing” and substituting “Subject to section 121, nothing”.
(2) The amendment made by subsection (1) applies in relation to a conveyance, transfer, charge, disposition, assignment, payment or obligation executed, made or incurred by a debtor after the commencement of this section.
Trustee to take possession of property of bankrupt
46. (1) Section 129 of the Principal Act is amended by omitting from subsection (3) “the trade dealings or affairs” and substituting “any of the examinable affairs”.
(2) The amendment made by subsection (1) applies as provided in subsection 106 (1).
47. (1) Section 130 of the Principal Act is repealed and the following section is substituted:
Warrant for seizure of property connected with bankrupt
“130. (1) The trustee of a bankrupt’s estate may apply to a judge of the Court or to a magistrate for the issue of a warrant under subsection (2) if the trustee has reasonable grounds for suspecting that there is on or in any premises property (in this section called ‘relevant property’), being:
(a) any of the property of the bankrupt;
(b) property that may be connected with, or related to, the bankrupt’s examinable affairs; or
(c) books (including books of an associated entity of the bankrupt) relevant to any of the bankrupt’s examinable affairs.
“(2) On an application under subsection (1), the judge or magistrate may issue a warrant authorising a constable, together with any other person named in the warrant:
(a) to enter on or into the premises, using such force as is necessary for the purpose and is reasonable in the circumstances;
(b) to search the premises for relevant property;
(c) to break open, and search for relevant property, any cupboard, drawer, chest, trunk, box, package or other receptacle, whether a fixture or not, on or in the premises;
(d) to take possession of, or secure against interference, any relevant property found on or in the premises; and
(e) to deliver to the trustee, or to a person authorised in writing by the trustee for the purpose, any property of which possession is taken under the warrant.
“(3) A judge or magistrate shall not issue a warrant under subsection (2) unless:
(a) an affidavit has been furnished to the judge or magistrate setting out the grounds on which the issue of the warrant is sought;
(b) the applicant for the warrant (or some other person) has given to the judge or magistrate, either orally or by affidavit, such further information (if any) as the judge or magistrate requires concerning the grounds on which the issue of the warrant is sought; and
(c) the judge or magistrate is satisfied that there are reasonable grounds for issuing the warrant.
“(4) Where a judge or magistrate issues a warrant under subsection (2), he or she shall set out on the affidavit furnished in accordance with subsection (3):
(a) on which of the grounds specified in the affidavit; and
(b) on which other grounds (if any);
he or she has relied to justify the issue of the warrant.
“(5) A warrant under this section shall:
(a) state whether entry is authorised to be made at any time of the day or night or during specified hours of the day or night; and
(b) specify a day, not later than 7 days after the day of issue of the warrant, on which the warrant ceases to have effect.
“(6) Where, under this section, a person takes possession of property, or secures property against interference, a person is not entitled, as against the trustee, to claim a lien on the property, but such a lien is not otherwise prejudiced.
“(7) Where, under this section, a person takes possession of books, or secures books against interference, that person or any other person to whom the books are delivered under paragraph (2) (e):
(a) may make copies of, or take extracts from, the books;
(b) may require a person who was a party to the compilation of the books to explain to the best of the person’s knowledge and belief any matter about the compilation of the books or to which the books relate;
(c) may retain possession of the books for such period as is necessary to enable the books to be inspected, and copies of, or extracts from, the books to be made or taken, by or on behalf of the trustee; and
(d) during that period shall permit a person who would be entitled to inspect any one or more of those books if they were not in the possession of the first-mentioned person or the other person to inspect at all reasonable times such of those books as that person would be so entitled to inspect.
“(8) The powers conferred by this section are in addition to, and not in derogation of, any other powers conferred by law.”.
(2) The section inserted in the Principal Act by subsection (1) applies as provided in subsection 106 (1) of this Act.
(3) Notwithstanding subsection (1), section 130 of the Principal Act continues to apply in relation to a bankrupt in respect of a bankruptcy if the date of the bankruptcy occurred before the commencement of this section.
Disclaimer of onerous property
48. (1) Section 133 of the Principal Act is amended:
(a) by inserting before subsection (1) the following subsections:
“(1aa) Where any part of the property of the bankrupt consists of:
(a) land of any tenure burdened with onerous covenants; or
(b) property (including land) that is unsaleable or is not readily saleable;
subsection (1) applies.
“(1ab) Where:
(a) any part of the property of the bankrupt consists of property, being neither land nor an interest in land; and
(b) it may reasonably be expected that the costs, charges and expenses that the trustee would incur in realising the property would exceed the proceeds of realising the property;
subsection (1) applies.”; and
(b) by omitting from subsection (1) all the words from and including “where any” to and including “readily saleable,”.
(2) The amendments made by subsection (1) apply in relation to a bankrupt in respect of a bankruptcy whenever the date of the bankruptcy occurred.
Powers exercisable at discretion of trustee
49. (1) Section 134 of the Principal Act is amended:
(a) by omitting from paragraph (1) (da) “value not exceeding $20,000, or such greater amount as is prescribed for the purposes of this section,” and substituting “net value not exceeding the prescribed amount,”;
(b) by omitting from paragraphs (1) (e) and (g) “not exceeding $20,000 or such greater amount as is prescribed for the purposes of this section” (wherever occurring) and substituting “, not exceeding the prescribed amount,”;
(c) by omitting from paragraph (1) (f) “$20,000 or such greater amount as is prescribed for the purposes of this section” and substituting “the prescribed amount”;
(d) by omitting paragraph (1) (m) and substituting the following paragraph:
“(m) until the end of 2 months beginning on the date of the bankruptcy, employ the bankrupt:
(i) to superintend the management of the whole, or a part, of the property of the bankrupt;
(ii) to carry on the bankrupt’s trade or business for the benefit of the bankrupt’s creditors; or
(iii) to assist in any other way in administering the property of the bankrupt;
and, in consideration of the bankrupt’s services, make such allowance to the bankrupt out of the estate as the trustee considers reasonable.”;
(e) by omitting from subsection (2) “value exceeding $20,000 or such greater amount as is prescribed for the purposes of this section” and substituting “net value exceeding the prescribed amount”; and
(f) by inserting after subsection (2) the following subsection:
“(2a) A reference in subsection (1) or (2) to the prescribed amount is a reference to $20,000 or, if a greater amount is prescribed for the purposes of this section, to that greater amount.”.
(2) The amendments made by subsection (1) apply in relation to a bankrupt in respect of a bankruptcy whenever the date of the bankruptcy occurred.
Powers exercisable by the trustee with permission
50. (1) Section 135 of the Principal Act is amended:
(a) by omitting from subsection (1) “general meeting or” and substituting “meeting of the creditors, with the permission”;
(b) by inserting in paragraphs (1) (a) and (d) “net” before “value”;
(c) by omitting paragraph (1) (k) and substituting the following paragraph:
“(k) after the end of 2 months beginning on the date of the bankruptcy:
(i) employ the bankrupt as mentioned in subparagraph 134 (1) (m) (i), (ii) or (iii); and
(ii) in consideration of the bankrupt’s services, make such allowance to the bankrupt out of the estate as the trustee considers reasonable.”.
(2) The amendments made by subsection (1) apply in relation to a bankrupt in respect of a bankruptcy whenever the date of the bankruptcy occurred.
51. (1) After Division 4 of Part VI of the Principal Act the following Division is inserted:
“Division 4a—Orders in relation to Property of Entity controlled by Bankrupt
Trustee may apply to Court
“139a. The trustee of a bankrupt’s estate may, at any time within 6 years after the date of the bankruptcy, apply to the Court for an order under this Division in relation to an entity (in this Division called the ‘respondent entity’).
Application to be served on respondent entity
“139b. An applicant under section 139a:
(a) shall serve the application on the respondent entity; and
(b) may serve the application on any other person or entity.
Who may appear at hearing
“139c. At the hearing of an application under section 139a:
(a) the respondent entity may; and
(b) any other person or entity may, with the leave of the Court;
appear, adduce evidence and make submissions.
Order relating to property of entity
“139d. (1) Where, on an application under section 139a, the Court is satisfied that:
(a). the bankrupt supplied personal services to, or for or on behalf of, the respondent entity at a time or times, during the examinable period and before the date of the bankruptcy, when the bankrupt controlled the entity in relation to the supply of those services;
(b) either:
(i) the bankrupt received for those services no remuneration in money or other property; or
(ii) the remuneration in money or other property that the bankrupt received for those services was substantially less in amount or value than a person supplying those services in similar circumstances might reasonably be expected to have received if the person had dealt with the entity at arm’s length in relation to the supply of those services;
(c) during the examinable period, the entity acquired an estate in particular property as a direct or indirect result of, or of matters including, the supply by the bankrupt of those services;
(d) the bankrupt used, or derived a benefit from, the property at a time or times during the examinable period when the bankrupt controlled the entity in relation to the property; and
(e) the entity still has an estate in the property;
subsections (2) and (3) have effect, whether or not the bankrupt has ever had an estate in the property.
“(2) The Court may, by order, vest in the applicant:
(a) the entity’s estate in the whole, or in a specified part, of the property; or
(b) a specified estate in the whole, or in a specified part, of the property, being an estate that could, by virtue of the entity’s estate in the property, be so vested by or on behalf of the entity.
“(3) The Court may make an order directing:
(a) the execution of an instrument;
(b) the production of documents of title; or
(c) the doing of any other act or thing;
in order to give effect to an order under this section made on the application.
Order relating to entity’s net worth
“139e. (1) Where, on an application under section 139a, the Court is satisfied that:
(a) the bankrupt supplied personal services to, or for or on behalf of, the respondent entity at a time or times, during the examinable period and before the date of the bankruptcy, when the bankrupt controlled the entity in relation to the supply of those services;
(b) either:
(i) the bankrupt received for those services no remuneration in money or other property; or
(ii) the remuneration in money or other property that the bankrupt received for those services was substantially less in amount or value than a person supplying those services in similar circumstances might reasonably be expected to have received if the person had dealt with the entity at arm’s length in relation to the supply of those services; and
(c) the entity’s net worth at a particular time during the examinable period exceeded by a substantial amount what might reasonably be expected to have been the entity’s net worth at the last-mentioned time if those services had not been supplied;
subsection (2) has effect.
“(2) The Court may by order direct:
(a) if the entity is a partnership—a partner or partners in the partnership; or
(b) in any other case—the entity;
to pay to the applicant a specified amount not exceeding the amount referred to in paragraph (1) (c).
Court to take account of interests of other persons
“139f. (1) In considering whether or not to make under section 139d a particular order relating to property in which the respondent entity has an estate, the Court shall take account of:
(a) the nature and extent of any estate that any other person or entity has in the property and any hardship that the order might cause that other person or entity; and
(b) the respondent entity’s current net worth and any hardship the order might cause the respondent entity’s creditors.
“(2) In considering whether or not to make a particular order under section 139e, the Court shall take account of the respondent entity’s current net worth and any hardship the order might cause the entity’s creditors.
Giving effect to orders under sections 139d and 139e
“139g. (1) Where:
(a) the Court makes an order under section 139d vesting in a person an estate in property; and
(b) a law of the Commonwealth, of a State, or of a Territory of the Commonwealth, requires the creation, transfer or transmission of estates in that property to be registered;
that estate vests in equity in the person by virtue of the order but does not so vest at law until the requirements of that law have been complied with.
“(2) Where the Court makes under section 139d an order directing the execution of an instrument and:
(a) a person has refused or failed to comply with the direction; or
(b) for any other reason, the Court thinks it necessary to exercise its powers under this subsection;
the Court may, by order, appoint the Registrar:
(c) to execute the instrument in the name of a person; and
(d) to do all acts and things necessary to give effect to the instrument.
“(3) An order by the Court under section 139e is enforceable as if it were an order for the payment of money made by the Court when exercising jurisdiction otherwise than under this Act.
Entity entitled to claim in bankruptcy
“139h. (1) Where, on an application under section 139a, the Court makes an order under section 139d vesting in the applicant an estate in property, or an order under section 139e directing the payment of a specified amount to the applicant, the respondent entity may claim for dividend in the bankruptcy in respect of the value of that property as at the making of the order, or in respect of the specified amount, as the case may be.
“(2) A claim under subsection (1) shall be postponed until all claims of the other creditors (including claims for interest on interest-bearing debts in respect of a period after the date of the bankruptcy but not including claims under subsection 120 (4)) have been satisfied.”.
(2) Division 4a of Part VI of the Bankruptcy Act 1966 applies in relation to a bankrupt in respect of a bankruptcy whenever the date of the bankruptcy occurred and, if the first dividend was paid before the commencement of subsection 44 (1) of this Act, applies in relation to the bankrupt in respect of the bankruptcy as if the reference in subsection 139h (2) of that Act to claims of other creditors included:
(a) a reference to claims under section 111 of the Principal Act; and
(b) a reference to claims in respect of excess interest under section 112 of the Principal Act.
Declaration and distribution of dividends
52. (1) Section 140 of the Principal Act is amended by omitting subsection (9) and substituting the following subsection:
“(9) Where, but for this subsection, the amount due to a creditor in respect of a dividend would be less than $10 or, if a greater amount is, as at the beginning of the day on which the dividend is declared, prescribed for the purposes of this subsection, that greater amount, the trustee need not pay that dividend to the creditor.”.
(2) Notwithstanding subsection (1), subsection 140 (9) of the Principal Act continues to apply in relation to a bankruptcy if the first dividend was paid before the commencement of this section.
Discharge by the Court
53. (1) Section 150 of the Principal Act is amended by omitting subsections (1) and (2) and substituting the following subsections:
“(1) A person who becomes, or has before the commencement of this subsection become, a bankrupt may apply to the Court at any time for an order of discharge.
“(2) A person who immediately before the commencement of this Act was an undischarged bankrupt under the repealed Act may apply to the Court at any time for an order of discharge.”.
(2) Section 150 of the Principal Act is amended:
(a) by omitting from subsection (3) “concerning the bankrupt, his conduct, trade dealings, property and affairs” and substituting “about the bankrupt and the bankrupt’s conduct and examinable affairs”; and
(b) by omitting from subparagraph (4) (a) (ii) “whose debt has been proved” and substituting “who has a provable debt”.
(3) The amendments made by subsection (2) apply as provided in subsection 106 (1).
Registration of natural persons as trustees
54. Section 155 of the Principal Act is amended:
(a) by omitting from subsection (4) “company,”;
(b) by inserting in subsection (5b) “of this section or subsection 176 (2) or 212 (2)” before “applies”; and
(c) by inserting after subsection (5c) the following subsection:
“(5d) On the making of an order under subsection 176 (2) or 212 (2) cancelling a person’s registration under this section, the condition of the bond, or of the later or latest of the bonds, as the case requires, entered into by the person under this section shall be deemed to have been contravened.”.
Appointment of trustees
55. (1) Section 157 of the Principal Act is amended by omitting from subsection (1) “at the first or a subsequent” and substituting “at a”.
(2) The amendment made by subsection (1) applies as provided in subsection 106 (1).
Vacancy in office of trustee
56. Section 159 of the Principal Act is amended by omitting from subsection (1) “general meeting” and substituting “meeting of the creditors”.
57. (1) Section 176 of the Principal Act is repealed and the following section is substituted:
Court may order trustee to make good loss caused by breach of duty
“176. (1) Where, on application by the Inspector-General or by a creditor who has or had a debt provable in the bankruptcy, the Court is satisfied that a person who is or has been a trustee of a bankrupt’s estate has been guilty (whether before or after the commencement of this section) of breach of duty in relation to the bankrupt’s estate or affairs, subsection (2) applies.
“(2) The Court may make any one or more of the following orders:
(a) an order directing the person to make good any loss that the bankrupt’s estate has sustained because of the person’s breach of duty;
(b) if the person is registered under section 155—an order suspending for a specified period, or cancelling, the person’s registration under that section;
(c) any other order that the Court considers just and equitable in the circumstances.”.
(2) Notwithstanding subsection (1), section 176 of the Principal Act continues to apply in relation to an application made under that section before the commencement of this section.
Control of creditors over trustees
58. (1) Section 177 of the Principal Act is amended:
(a) by omitting from subsection (1) “general meeting” and substituting “meeting of the creditors”; and
(b) by omitting subsections (2) and (3).
(2) Notwithstanding subsection (1), subsections 177 (2) and (3) of the Principal Act continue to apply in relation to a bankrupt in respect of a bankruptcy if the date of the bankruptcy occurred before the commencement of this section.
Control of trustees by the Court
59. (1) Section 179 of the Principal Act is amended by omitting subsections (3) and (4).
(2) Notwithstanding subsection (1), subsections 179 (3) and (4) of the Principal Act continue to apply in relation to an application made under subsection 179 (3) of the Principal Act before the commencement of this section.
60. (1) After Division 4 of Part VIII of the Principal Act the following Division is inserted:
“Division 4a—Examination of Trustees and Other Persons
Application for person to be examined
“179a. Where a person (in this Division called the ‘relevant trustee’) is or has been a trustee of a bankrupt’s estate:
(a) the Inspector-General;
(b) a person authorised in writing by the Inspector-General to make the application; or
(c) a person (in this Division called a ‘creditor’) who has or had a debt provable in a bankruptcy of a person, being a bankruptcy in relation to which the relevant trustee is or has been a trustee of the person’s estate;
may at any time apply to the Registrar for a person to be examined about examinable matters in relation to the relevant trustee.
Registrar may summon trustee or other person
“179b. (1) On an application under section 179a, the Registrar may summon:
(a) in any case—the relevant trustee;
(b) if the relevant trustee is the Official Trustee—the Official Receiver;
(c) in any case—a person who may be able to give information about examinable matters in relation to the relevant trustee; or
(d) if books relating to examinable matters in relation to the relevant trustee are reasonably suspected to be in the possession of a person— that person;
to attend before the Registrar at a specified place and at a specified time on a specified day, being a place, time and day that are reasonable in the circumstances, to be examined on oath under this Division about examinable matters in relation to the relevant trustee.
“(2) Before summoning a person on an application under section 179a by a creditor, the Registrar may impose on the applicant such terms as to costs as the Registrar thinks fit.
Content of summons
“179c. (1) A summons under section 179b shall specify the bankruptcies to which the examination will in the first instance relate, but nothing in such a summons limits:
(a) the questions that may be put, or may be allowed to be put, at the examination; or
(b) the books that may be required to be produced at the examination.
“(2) A summons to a person under section 179b may require the person to produce at the examination books that are in the possession of the person and relate to examinable matters in relation to the relevant trustee.
Holding of examination
“179d. (1) The Registrar may direct that an examination, or part of an examination, under this Division be held in public or be held in private.
“(2) The Registrar may, at any time, adjourn an examination under this Division either to a fixed date or generally, or conclude the examination.
Further hearing before the Court
“179e. (1) The Registrar may at any time adjourn an examination under this Division for further hearing before the Court and may, after so adjourning the examination, submit to the Court such report about the examination as the Registrar thinks fit.
“(2) Where an examination under this Division is adjourned for further hearing before the Court, the Court may:
(a) continue the examination;
(b) at any time direct the examination to be continued before the Registrar; or
(c) make such other order as it thinks appropriate in the circumstances.
Legal representation at examination
“179f. (1) A person summoned for examination under this Division is entitled to be represented, on the examination, by counsel or a solicitor, who may re-examine the person after his or her examination.
“(2) Where a person is summoned for examination under this Division:
(a) the Inspector-General;
(b) a person authorised in writing by the Inspector-General to take part in the examination; or
(c) a creditor;
may take part in the examination and may, for that purpose, be represented by counsel or a solicitor or by an agent authorised in writing for the purpose.
Questions put at examination
“179g. (1) The Registrar or the Court, as the case requires, may put, or allow to be put, to a person being examined under this Division such questions as are relevant to examinable matters in relation to the relevant trustee and as the Registrar or the Court, as the case may be, thinks appropriate.
“(2) A question proposed to be put at an examination under this Division is not irrelevant to an examinable matter in relation to the relevant trustee merely because the question relates to:
(a) examinable matters in relation to a person (other than the relevant trustee) who is or has been a trustee of a bankrupt’s estate; or
(b) examinable matters in relation to a person (other than the relevant trustee) who is or has been the controlling trustee, within the meaning of Part X, in relation to a debtor.
“(3) A person being examined under this Division shall answer all questions that the Registrar or the Court puts, or allows to be put, to the person.
Production of books
“179h. The Registrar or the Court, as the case requires, may require a person who is being examined under this Division to produce at the examination specified books, or specified classes of books, that are in the possession of the person and relate to examinable matters in relation to the relevant trustee.
Costs of examination
“179j. (1) The Registrar or the Court, as the case requires, may direct that some or all of the costs of a person examined under this Division shall be paid:
(a) out of an estate of a bankrupt, being an estate of which the relevant trustee is or has been a trustee; or
(b) by the relevant trustee personally.
“(2) Where it is directed under subsection (1) that costs be paid by the relevant trustee personally, the relevant trustee is not entitled to be reimbursed out of a bankrupt’s estate in respect of those costs.
Notes of examination
“179k. (1) The Registrar or the Court, as the case requires, may cause to be taken down in writing such notes of the examination of a person under this Division as the Registrar or the Court, as the case may be, thinks appropriate, and the person shall sign the notes.
“(2) The power conferred on the Registrar or the Court by subsection (1) is in addition to his, her or its powers under section 255.
“(3) Notes taken down and signed by a person under subsection (1), and the transcript of evidence given in the examination of a person under this Division (being a transcript certified, or certified, signed and sealed, under section 255):
(a) may be used in evidence in any proceedings under this Act in which the person is a party; and
(b) shall be open to inspection:
(i) by the person, the relevant trustee, a creditor, the Inspector-General, or a person authorised in writing by the Inspector-General for the purpose, without fee; and
(ii) by any other person on payment of the prescribed fee.”.
(2) The Division inserted in the Principal Act by subsection (1) applies:
(a) in relation to a person who is or has been (whether before or after the commencement of this section) a trustee of a bankrupt’s estate; and
(b) in relation to acts or omissions whenever done or omitted.
61. Section 187a of the Principal Act is repealed and the following section is substituted:
Application of Part to joint debtors
“187a. This Part applies, with the prescribed modifications (if any), in relation to joint debtors, whether partners or not.”.
Debtor may authorise trustee or solicitor to call meeting of creditors etc.
62. (1) Section 188 of the Principal Act is amended:
(a) by omitting from paragraph (2) (a) “and”;
(b) by adding at the end of subsection (2) the following word and paragraph:
“; and (c) within 10 days before signing the authority, the debtor gave to the trustee or solicitor:
(i) a statement of the debtor’s affairs; and
(ii) a statement indicating how the debtor proposes that his or her affairs be dealt with under this Part.”; and
(c) by omitting from subsection (4) all the words after “within” and substituting “14 days after so consenting, file a copy of the consent, a copy of the authority, and a copy of each statement given under paragraph (2) (c), in the office of the Registrar.”.
(2) The amendments made by subsection (1) apply as provided in subsection 106 (2).
Effect of authority under section 188 to registered trustee
63. (1) Section 189 of the Principal Act is amended by omitting from paragraph (2) (b) “his property and affairs” and substituting “any of the debtor’s examinable affairs”.
(2) The amendment made by subsection (1) applies as provided in subsection 106 (2).
64. (1) After section 189 of the Principal Act the following sections are inserted:
Trustee to prepare report
“189a. (1) Within 14 days after consenting to exercise the powers conferred by an authority under section 188, a registered trustee shall prepare, and file in the office of the Registrar, a report in writing that complies with this section.
“(2) The report shall:
(a) summarise and comment on the debtor’s affairs as disclosed in the statement given under subparagraph 188 (2) (c) (i); and
(b) set out such other information relevant to those affairs as is available to the trustee and is necessary to give a true and fair view of those affairs.
“(3) The report shall state whether or not, in the trustee’s opinion, it would be in the best interests of the debtor’s creditors to deal under this Part with the debtor’s affairs in the manner indicated in the statement given under subparagraph 188 (2) (c) (ii).
Trustee or solicitor to prepare statement about possible resolution
“189b. A registered trustee who has consented to exercise the powers conferred by, or a solicitor who has consented to call a meeting of creditors under, an authority under section 188 shall prepare a statement in writing containing the prescribed information about each matter that may reasonably be expected to be dealt with or specified in a resolution by the debtor’s creditors under section 204 passed at a meeting called under that authority.”.
(2) The sections inserted in the Principal Act by subsection (1) apply as provided in subsection 106 (2) of this Act.
Duties and powers of trustee and solicitor
65. (1) Section 190 of the Principal Act is amended by inserting in paragraph (2) (b) “examinable” before “affairs”.
(2) The amendment made by subsection (1) applies as provided in subsection 106 (2).
Death of trustee to whom authority is given etc.
66. Section 192 of the Principal Act is amended by inserting in subsection (4) “and duties” after “powers”.
Remuneration of controlling trustee
67. Section 193 of the Principal Act is amended:
(a) by omitting from subsection (1) “The provisions of sections” and substituting “Sections”;
(b) by omitting from subsection (1) “subject to such modifications and adaptations (if any) as are prescribed by the rules” and substituting “with the prescribed modifications (if any)”; and
(c) by omitting subsection (2).
Calling of meeting
68. (1) Section 194 of the Principal Act is amended:
(a) by omitting from paragraph (1) (a) “28” and “35” and substituting “35” and “42”, respectively;
(b) by inserting after subsection (2) the following subsection:
“(2a) A notice under subsection (2) shall be accompanied by a copy of:
(a) each statement given under subsection 188 (2);
(b) the report (if any) required by section 189a to be prepared and filed; and
(c) the statement required by section 189b to be prepared.”; and
(c) by omitting subsection (4) and substituting the following subsection:
“(4) If subsection (2), (2a) or (3) is contravened, the meeting is incompetent to act for the purposes of this Part unless the Court, on the application of a creditor or of the controlling trustee or solicitor who called the meeting, declares that the contravention is to be disregarded.”.
(2) The amendments made by subsection (1) apply as provided in subsection 106 (2).
Debtor to attend meeting
69. (1) Section 195 of the Principal Act is amended:
(a) by omitting subsections (1) and (2) and substituting the following subsection:
“(1) The debtor shall, unless prevented by illness or other sufficient cause, attend the meeting.”; and
(b) by omitting from subsection (3) “, trade dealings, property and affairs” and substituting “and examinable affairs”.
(2) The amendments made by subsection (1) apply as provided in subsection 106 (2).
Entitlement to vote at meeting
70. (1) Section 198 of the Principal Act is amended by inserting in subsection (7) “, or the de facto spouse,” after “spouse”.
(2) The amendment made by subsection (1) applies as provided in subsection 106 (2).
Manner of voting
71. (1) Section 200 of the Principal Act is amended:
(a) by omitting from subsection (2) “A” and substituting “Subject to subsection (3a), a”; and
(b) by inserting after subsection (3) the following subsections:
“(3a) A person is not entitled to vote as proxy of a creditor on a proposed resolution under section 204 unless the instrument by which the person is appointed authorises the person to vote in a specified manner on each of the following kinds of resolution under that section:
(a) a resolution that the debtor’s property be no longer subject to control under this Division;
(b) a resolution requiring the debtor to execute a deed of assignment;
(c) a resolution requiring the debtor to execute a deed of arrangement;
(d) a resolution accepting a composition;
(e) a resolution requiring the debtor to present a debtor’s petition within 7 days after the passing of the resolution;
and the person votes on the proposed resolution in accordance with the instrument.
“(3b) For the purposes of subsection (3a), an instrument authorising a person to abstain from voting on a particular kind of resolution shall be taken to authorise the person to vote in a specified manner on that kind of resolution.”.
(2) The amendments made by subsection (1) apply as provided in subsection 106 (2).
Resolution for deed of assignment etc.
72. (1) Section 204 of the Principal Act is amended by inserting in subsection (7) “(other than a resolution of a kind referred to in subsection 215a (1))” after “section”.
(2) The amendment made by subsection (1) applies as provided in subsection 106 (2).
73. (1) Section 212 of the Principal Act is repealed and the following section is substituted:
Court may order controlling trustee to make good loss caused by breach of duty
“212. (1) Where, on application by the Inspector-General or by a creditor of the debtor, the Court is satisfied that a person who is or has been a controlling trustee in relation to a debtor has been guilty (whether before
or after the commencement of this section) of breach of duty in relation to the debtor’s property or affairs, subsection (2) applies.
“(2) The Court may make any one or more of the following orders:
(a) an order directing the person to make good any loss that has been sustained because of the person’s breach of duty;
(b) if the person is registered under section 155—an order suspending for a specified period, or cancelling, the person’s registration under that section;
(c) any other order that the Court considers just and equitable in the circumstances.”.
(2) Notwithstanding subsection (1), section 212 of the Principal Act continues to apply in relation to an application made under that section before the commencement of this section.
Control of controlling trustee by the Court
74. (1) Section 212b of the Principal Act is amended by omitting subsections (3) and (4).
(2) Notwithstanding subsection (1), subsections 212b (3) and (4) of the Principal Act continue to apply in relation to an application made under subsection 212b (3) of the Principal Act before the commencement of this section.
75. (1) After Division 2 of Part X of the Principal Act the following Division is inserted:
“Division 2a—Examination of Controlling Trustees and Other Persons
Application for person to be examined
“212c. Where a person (in this Division called the ‘relevant trustee’) is or has been the controlling trustee in relation to a debtor:
(a) the Inspector-General;
(b) a person authorised in writing by the Inspector-General to make the application; or
(c) a creditor (in this Division called a ‘creditor’) of a debtor in relation to whom the relevant trustee is or has been the controlling trustee;
may at any time apply to the Registrar for a person to be examined about examinable matters in relation to the relevant trustee.
Registrar may summon controlling trustee or other person
“212d. (1) On an application under section 212c, the Registrar may summon:
(a) in any case—the relevant trustee;
(b) if the relevant trustee is the Official Trustee—the Official Receiver;
(c) in any case—a person who may be able to give information about examinable matters in relation to the relevant trustee; or
(d) if books relating to examinable matters in relation to the relevant trustee are reasonably suspected to be in the possession of a person— that person;
to attend before the Registrar at a specified place and at a specified time on a specified day, being a place, time and day that are reasonable in the circumstances, to be examined on oath under this Division about examinable matters in relation to the relevant trustee.
“(2) Before summoning a person on an application under subsection (1) by a creditor, the Registrar may impose on the applicant such terms as to costs as the Registrar thinks fit.
Content of summons
“212e. (1) A summons under section 212d shall specify the debtors to whom the examination will in the first instance relate, but nothing in such a summons limits:
(a) the questions that may be put, or may be allowed to be put, at the examination; or
(b) the books that may be required to be produced at the examination.
“(2) A summons to a person under section 212d may require the person to produce at the examination books that are in the possession of the person and relate to examinable matters in relation to the relevant trustee.
Application of sections 179d to 179k
“212f. For the purposes of the examination under this Division of a person summoned under section 212d, the provisions of sections 179d to 179k, inclusive, apply, with the prescribed modifications (if any), as if:
(a) those provisions were provisions of this Division; and
(b) paragraph 179j (1) (a) were omitted and the following paragraph substituted:
‘(a) out of money available for payment to creditors; or’.”.
(2) The Division inserted in the Principal Act by subsection (1) applies:
(a) in relation to a person who is or has been (whether before or after the commencement of this section) the controlling trustee, within the meaning of Part X of the Bankruptcy Act 1966, in relation to a debtor whose property has become subject to control under Division 2 of that Part; and
(b) in relation to acts or omissions whenever done or omitted.
76. (1) After section 215 of the Principal Act the following sections are inserted:
Nomination or appointment of trustee of deed or composition
“215a. (1) A resolution that is passed at a meeting of creditors and purports to:
(a) nominate a person or persons under subsection 204 (4) to be trustee or trustees; or
(b) appoint a person under subsection 220 (1) to a vacant office of trustee;
of a deed of assignment, deed of arrangement or composition is void unless:
(c) before the meeting, that person, or each of those persons, as the case may be:
(i) consented in writing, in the prescribed form, to act as a trustee of the deed or composition; and
(ii) made a declaration in writing containing the prescribed information about the person’s professional, business and personal relationships and connections (if any) with the debtor, and with the creditor or creditors who proposed the resolution, respectively; and
(d) before the resolution was voted on:
(i) the consent or consents and the declaration or declarations were submitted to the meeting; and
(ii) there was a reasonable opportunity for persons entitled to vote on the resolution (whether on their own behalf or as proxy or attorney for other persons) to inspect the declaration or declarations.
“(2) Where, if this subsection had not been enacted, a resolution purporting to nominate a person or persons, or to appoint a person, would, because of a particular matter, be void by virtue of subsection (1), the Court may, on the application of the person, or of any of the persons, as the case may be, or of any other interested person, by order declare the resolution not to be void merely because of that matter.
Duties of chairman
“215b. (1) Where a resolution of a kind referred to in subsection 215a (1) is passed at a meeting, the chairman of the meeting shall:
(a) forthwith sign a certificate setting out the terms of the resolution and stating that it was passed at the meeting; and
(b) forthwith cause the certificate and a copy of each consent given, and of each declaration made, by a person in connection with the resolution to be filed in the office of the Registrar.
“(2) If the chairman of a meeting contravenes subsection (1), or dies without complying with subsection (1), a creditor who attended the meeting:
(a) if the chairman has not signed the certificate required by subsection (1)—may sign that certificate and file it; and
(b) in any case—may file such of the documents that subsection (1) requires to be filed as have not been filed.”.
(2) The sections inserted in the Principal Act by subsection (1) apply as provided in subsection 106 (2) of this Act.
Notice of execution of deed or acceptance of composition
77. (1) Section 218 of the Principal Act is amended:
(a) by omitting from paragraph (1) (b) “and a copy of the statement of the debtor’s affairs referred to in section 195”; and
(b) by omitting subsection (2) and substituting the following subsection:
“(2) Where a special resolution accepting a composition is passed under section 204, the trustee of the composition shall forthwith:
(a) give notice of that fact, in accordance with the rules, to each creditor of the debtor; and
(b) cause notice of that fact to be published in the Gazette and in such other manner (if any) as is prescribed.”.
(2) The amendments made by subsection (1) apply as provided in subsection 106 (2).
Sequestration order where debtor fails to attend meeting, execute deed etc.
78. (1) Section 221 of the Principal Act is amended:
(a) by omitting paragraph (1) (a) and substituting the following paragraphs:
“(a) a debtor has failed, without sufficient cause, to attend a meeting of creditors called under an authority signed by him or her under section 188;
(aa) a debtor has contravened subsection 189 (2);”; and
(b) by inserting in subsection (1) “the Inspector-General, a person authorised in writing by the Inspector-General,” after “application of”.
(2) The amendments made by subsection (1) apply as provided in subsection 106 (2).
Power of the Court to declare deed or composition void
79. (1) Section 222 of the Principal Act is amended:
(a) by inserting in subsection (1) “the Inspector-General, a person authorised in writing by the Inspector-General,” before “the Registrar”; and
(b) by inserting in subsection (4) “the Inspector-General, a person authorised in writing by the Inspector-General,” after “application of”.
(2) The amendments made by subsection (1) apply in relation to:
(a) a deed of assignment or deed of arrangement whenever executed; or
(b) a composition whenever accepted.
(3) Section 222 of the Principal Act is amended by omitting from paragraph (4) (a) “his conduct, trade dealings, property or affairs” and substituting “any of his conduct or examinable affairs”.
(4) Section 222 of the Principal Act is amended by omitting from paragraph (4) (b) “his affairs under section 195” and substituting “the debtor’s affairs given under subsection 188 (2)”.
(5) The amendments made by subsections (3) and (4) apply as provided in subsection 106 (2).
Calling of meetings after the first meeting
80. Section 223 of the Principal Act is amended by omitting from paragraphs (1) (a) and (b) “general”.
Application of Part in relation to meetings
81. Section 223a of the Principal Act is amended:
(a) by omitting from subsection (1) “The provisions of sections” and substituting “Sections”;
(b) by omitting from subsection (1) “subject to such modifications and adaptations (if any) as are prescribed by the rules” and substituting “with the prescribed modifications (if any)”; and
(c) by omitting subsection (2).
Creditor may inspect deed etc.
82. (1) Section 226 of the Principal Act is amended by omitting from subsections (1) and (2) “affairs referred to in section 195 of the debtor” and substituting “the debtor’s affairs given under subsection 188 (2)”.
(2) The amendments made by subsection (1) apply as provided in subsection 106 (2).
Application of general provisions of Act to deeds of assignment
83. (1) Section 231 of the Principal Act is amended:
(a) by omitting subsection (1) and substituting the following subsection:
“(1) Section 81 applies in relation to a debtor who has executed a deed of assignment that has become binding on his or her creditors and so applies as if:
(a) the debtor were a bankrupt; and
(b) the trustee of the deed were the trustee in the debtor’s bankruptcy.”;
(b) by omitting from subsection (2) all the words before “in relation to” and substituting “Subsection 58 (4) and sections 60, 61, 62, 70, 71, 72, 82 to 118 (inclusive), 120 to 125 (inclusive), 127 to 130 (inclusive) and 133 to 148 (inclusive) apply, with the prescribed modifications (if any),”;
(c) by omitting from subsection (3) “of the provisions of this Act specified in subsection (2) to and in relation to a deed of assignment—” and substituting “, by virtue of subsections (1) and (2), of the provisions referred to in those subsections:”;
(d) by omitting from paragraph (3) (a) “and”;
(e) by adding at the end of subsection (3) the following word and paragraph:
“; and (c) a reference to the end of the bankruptcy shall be read as a reference to the end of the deed of assignment.”;
(f) by omitting from subsection (4) all the words before “in relation to” and substituting “Subsections 157 (6) and (7) and sections 162 to 184 (inclusive) apply, with the prescribed modifications (if any),”;
(g) by omitting from subsection (5) “modifications and adaptations made by the rules” and “to or in relation to” and substituting “prescribed modifications” and “in relation to”, respectively; and
(h) by omitting subsection (6).
(2) The amendments made by subsection (1) apply in relation to a deed of assignment whenever executed.
Application of general provisions of Act to deeds of arrangement
84. (1) Section 237 of the Principal Act is amended:
(a) by omitting subsection (1) and substituting the following subsection:
“(1) Section 81 applies in relation to a debtor who has executed a deed of arrangement that has become binding on his or her creditors and so applies as if:
(a) the debtor were a bankrupt; and
(b) the trustee of the deed were the trustee in the debtor’s bankruptcy.”;
(b) by omitting from subsection (2) all the words before “in relation to” and substituting “Subsection 58 (4) and sections 61, 62, 70, 71, 72, 82 to 114 (inclusive), 133 to 139 (inclusive) and 140 to 148 (inclusive) apply, with the prescribed modifications (if any),”;
(c) by omitting subsection (3) and substituting the following subsection:
“(3) In the application, by virtue of subsections (1) and (2), of the provisions referred to in those subsections:
(a) a reference to a provable debt shall be deemed to be a reference to a debt that is, for the purposes of this Part, a provable debt in relation to the deed of arrangement; and
(b) a reference to the end of the bankruptcy shall be deemed to be a reference to the end of the deed of arrangement.”;
(d) by omitting from subsection (4) all the words before “in relation to” and substituting “Subsections 157 (6) and (7) and sections 162 to 184 (inclusive) apply, with the prescribed modifications (if any),”;
(e) by omitting from subsection (5) “modifications and adaptations made by the rules” and “to or in relation to” and substituting “prescribed modifications” and “in relation to”, respectively; and
(f) by omitting subsection (6).
(2) The amendments made by subsection (1) apply in relation to a deed of arrangement whenever executed.
Application of general provisions of Act to compositions
85. (1) Section 243 of the Principal Act is amended:
(a) by omitting from subsection (1) all the words before “in relation to” and substituting “Sections 82 to 107 (inclusive) and 140 to 148 (inclusive) apply, with the prescribed modifications (if any),”;
(b) by omitting from subsection (2) “to and”;
(c) by omitting from subsection (3) all the words before “in relation to” and substituting “Subsections 157 (6) and (7) and sections 162 to 184 (inclusive) apply, with the prescribed modifications (if any),”;
(d) by omitting from subsection (4) “modifications and adaptations made by the rules” and “to or in relation to” and substituting “prescribed modifications” and “in relation to”, respectively; and
(e) by omitting subsection (5).
(2) The amendments made by subsection (1) apply in relation to a composition whenever accepted.
Filing of statement of deceased debtor’s affairs etc. by legal personal representative
86. (1) Section 246 of the Principal Act is amended by omitting from subsection (1) “, in accordance with the prescribed form, verified by affidavit,”.
(2) The amendment made by subsection (1) applies as provided in subsection 106 (3).
Petition for administration under this Part by person administering deceased person’s estate
87. Section 247 of the Principal Act is amended by omitting from subsection (1) “in accordance with the prescribed form and”.
Application of Act in relation to administrations under this Part
88. Section 248 of the Principal Act is amended:
(a) by omitting from subsection (1) “the provisions of;
(b) by omitting from subsection (1) “subject to such modifications and adaptations (if any) as are prescribed by the rules, to and” and substituting “with the prescribed modifications (if any),”;
(c) by omitting from subsection (3) “to and”;
(d) by omitting from subsection (4) “modifications and adaptations made by the rules” and “to or in relation to” and substituting “prescribed modifications” and “in relation to”, respectively; and
(e) by omitting subsection (5).
Effect of order under Part where deceased person was bankrupt
89. (1) Section 250 of the Principal Act is amended:
(a) by inserting in subparagraph (1) (c) (i) “or remuneration” after “expenses”; and
(b) by inserting in sub-subparagraph (1) (c) (iii) (a) “, or his remuneration in the earlier bankruptcy that has,” after “have”.
(2) The amendments made by subsection (1) apply as provided in subsection 106 (3).
Presumption about due convening of meetings etc.
90. Section 258 of the Principal Act is amended by omitting “Unless” and substituting “Subject to this Act, unless”.
91. (1) After section 263b of the Principal Act the following section is inserted:
False particulars of debt
“263c. A person shall not, in connection with giving to the chairman of a meeting of creditors held under an authority under section 188 particulars of a debt, knowingly make a statement that is false or misleading in a material particular.
Penalty: $1,000 or imprisonment for 6 months, or both.”.
(2) The section inserted in the Principal Act by subsection (1) applies in relation to an authority under section 188 of the Bankruptcy Act 1966, whenever signed.
Failure of person to attend before the Court etc.
92. Section 264a of the Principal Act is amended by omitting from paragraph (1) (a) “section 50 or 81” and substituting “a provision of this Act (other than section 69)”.
Arrest of person failing to attend before the Court etc.
93. Section 264b of the Principal Act is amended by omitting from subsection (2) “section 50 or 81” and substituting “a provision of this Act (other than section 69)”.
Refusal to be sworn or give evidence etc.
94. Section 264c of the Principal Act is amended by omitting from subsection (1) “section 50, 69 or 81” and substituting “this Act”.
Prevarication or evasion in the course of examination
95. Section 264d of the Principal Act is amended by omitting from subsection (1) “section 50, 69 or 81” and substituting “this Act”.
Offences in relation to Registrar or magistrate conducting an examination
96. Section 264e of the Principal Act is amended by omitting “section 50, 69 or 81” (wherever occurring) and substituting “this Act”.
Failure of bankrupt or debtor to disclose property etc.
97. (1) Section 265 of the Principal Act is amended:
(a) by omitting from paragraph (1) (a) “his property” and substituting “of the property of the bankrupt”;
(b) by omitting paragraphs (1) (c), (d) and (e) and substituting the following paragraphs:
“(c) shall not refuse or fail to comply with a direction by the trustee to deliver to the trustee property in the possession of the bankrupt, being all or part of the property of the bankrupt;
(ca) shall, to the best of his or her knowledge and belief, fully and truly disclose to the trustee such information about any of the bankrupt’s conduct and examinable affairs as the trustee requires;
(d) shall not refuse or fail to tell the trustee where the books (including books of an associated entity of the bankrupt) relating to the bankrupt’s examinable affairs may be found;
(e) shall not refuse or fail to comply with a direction by the trustee to deliver to the trustee books (including books of an associated entity of the bankrupt) that are in the possession of the bankrupt and relate to any of the bankrupt’s examinable affairs;”;
(c) by omitting from paragraph (1) (f) and subsection (3) “his trade dealings, property or affairs” and substituting “any of the bankrupt’s examinable affairs”;
(d) by omitting from paragraph (4) (c) all the words after “particular” and substituting “from, a book (including a book of an associated entity of the person) affecting or relating to any of the person’s examinable affairs”; and
(e) by omitting paragraph (4) (f) and substituting the following paragraph:
“(f) prevents the production of a book (including a book of an associated entity of the person) affecting or relating to any of the person’s examinable affairs;”.
(2) The amendments made by subsection (1) apply as provided in subsection 106 (1).
98. (1) After section 265 of the Principal Act the following section is inserted:
Offences relating to exercise of powers under section 77a, 77b or 130
“265a. (1) A person shall not, without reasonable excuse, refuse or fail to comply with a requirement under section 77a, 77b or 130.
“(2) A person shall not, in purported compliance with a requirement under section 77a, 77b or 130, give information, or make a statement, that is, to the person’s knowledge, false or misleading in a material particular.
“(3) A person shall not, without reasonable excuse:
(a) obstruct or hinder a person in the exercise of a power under section 77a or 77b; or
(b) obstruct or hinder a person who is executing a warrant issued under section 130.
“(4) The occupier, or person in charge, of premises that a person enters under a warrant issued under section 130 shall provide to the last-mentioned person all reasonable facilities and assistance for the effective exercise of his or her powers under the warrant.
Penalty: $1,000 or imprisonment for 6 months, or both.”.
(2) A reference in the section inserted in the Principal Act by subsection (1) of this section to a requirement or warrant under section 130 of the Bankruptcy Act 1966 is a reference to a requirement or warrant under the section inserted in the Principal Act by subsection 47 (1) of this Act.
Offences in relation to deeds and compositions
99. (1) Section 268 of the Principal Act is amended:
(a) by omitting from paragraph (2) (b) “custody or under the control” and substituting “possession”;
(b) by omitting paragraph (2) (c) and substituting the following paragraphs:
“(ba) shall, to the best of his or her knowledge and belief, fully and truly disclose to the trustee of the deed such information about any of the debtor’s conduct and examinable affairs as the trustee requires;
(c) shall not refuse or fail to comply with a direction by the trustee of the deed:
(i) to tell the trustee where books (including books of an associated entity of the debtor) relating to any of the debtor’s examinable affairs may be found; or
(ii) to deliver to the trustee such books that are in the possession of the debtor;”; and
(c) by omitting from paragraph (2) (d) and subsection (3) “his trade dealings, property or affairs” and substituting “any of the debtor’s examinable affairs”.
(2) The amendments made by subsection (1) apply as provided in subsection 106 (2).
100. After section 268 of the Principal Act the following section is inserted:
False or misleading declaration under section 215a
“268a. Where, at the time when a declaration by a person is submitted under subsection 215a (1) to a meeting of creditors, the person knows:
(a) that the declaration is false or misleading in a material particular; or
(b) that a material matter has been omitted from the declaration;
the person is guilty of an offence punishable, on conviction, by a fine of an amount not exceeding $1,000, imprisonment for a period not exceeding 6 months, or both.”.
Bankrupt obtaining credit etc. without disclosing bankruptcy
101. Section 269 of the Principal Act is amended by omitting “A” and substituting “An undischarged”.
Bankrupts under repealed Act
102. Section 278 of the Principal Act is amended:
(a) by omitting from subsection (1) all the words after “, under this Act” and substituting “and, so far as it is capable of so applying, this Act applies, subject to this Part and with the prescribed modifications (if any), in relation to such a bankrupt as if he or she had become a bankrupt under this Act.”; and
(b) by omitting subsection (3).
Payment of expenses by Commonwealth
103. (1) Section 305 of the Principal Act is amended:
(a) by omitting subparagraphs (a) (i) and (ii) and (b) (i) and (ii) and substituting the following subparagraphs:
“(i) the estate of the bankrupt or the deceased person; or
(ii) any of the examinable affairs of the bankrupt or the deceased person;”; and
(b) by omitting from paragraph (b) “as the case may be,”.
(2) The amendments made by subsection (1):
(a) apply as mentioned in subsection 106 (1); and
(b) apply in relation to a deceased person whose estate is being administered under Part XI of the Bankruptcy Act 1966 by virtue of an order made after the commencement of this section, whether the person died before or after that commencement.
Protection of Registrars, magistrates etc. in relation to examinations
104. Section 306a of the Principal Act is amended:
(a) by omitting from subsection (1) “by section 50, 69 or 81” and substituting “or her by this Act”; and
(b) by omitting from subsections (2) and (3) “section 50, 69 or 81” (wherever occurring) and substituting “this Act’’.
Protection in respect of reports
105. Section 306b of the Principal Act is amended by omitting from subsection (1) “paragraph 19 (1) (c) or (g) or subsection 19 (1c)” and substituting “19aa (2)”.
Application of certain amendments
106. (1) The amendment or amendments made by subsection 10 (1), 18 (1), 26 (1), 27 (1), 28 (1), 29 (1), 30 (1), 31 (1), 32 (1), 34 (1), 37 (3), 38 (1), 40 (1), 43 (3), 46 (1), 53 (2), 55 (1), 97 (1) or 103 (1), or the section inserted in the Principal Act by subsection 11 (1), 25 (1), 35 (1), 36 (1) or 47 (1), of this Act applies or apply in relation to a bankrupt in respect of a bankruptcy if, and only if, the date of the bankruptcy occurred on or after the day of commencement of that subsection.
(2) The amendment or amendments made by subsection 62 (1), 63 (1), 65 (1), 68 (1), 69 (1), 70 (1), 71 (1), 72 (1), 77 (1), 78 (1), 79 (3) or (4), 82 (1) or 99 (1), or the sections inserted in the Principal Act by subsection 64 (1) or 76 (1), of this Act applies or apply in relation to:
(a) an authority signed by a person under section 188 of the Bankruptcy Act 1966 after the commencement of that subsection;
(b) a meeting called under such an authority; or
(c) a deed of assignment or deed of arrangement executed under, or a composition accepted by, a resolution passed at a meeting called under such an authority;
as the case requires, whether the registered trustee or solicitor who is named in the authority consented under subsection (2) of that section before or after that commencement.
(3) The amendment or amendments made by subsection 86 (1) or 89 (1) apply in relation to an order made under Part XI of the Bankruptcy Act 1966 after the commencement of that subsection, whether the person to whose estate the order relates died before or after that commencement.
Some amendments made for avoidance of doubt
107. Because some amendments made by this Act are for the avoidance of doubt, an amendment made by this Act shall not be taken to affect by implication the interpretation of the Bankruptcy Act 1966 as in force before that amendment came into operation.
NOTE
1. No. 33, 1966, as amended. For previous amendments, see No. 121, 1968; No. 40, 1969; No. 122, 1970; No. 216, 1973 (as amended by No. 20, 1974); No. 56, 1975; Nos. 91 and 161, 1976; No. 111, 1977; No. 155, 1979; Nos. 12 and 70, 1980; Nos. 74 and 176, 1981; No. 18, 1983; Nos. 10 and 63, 1984; Nos. 21 and 193, 1985; Nos. 154 and 168, 1986; and No. 73, 1987.
[Minister’s second reading speech made in—
Senate on 15 September 1987
House of Representatives on 7 December 1987]
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