Part 1—Preliminary
1.01 Name of Regulations
These Regulations are the Bankruptcy Regulations 1996.
1.03 Interpretation
(1) In these Regulations, unless the contrary intention appears:
1985 Rural Adjustment Grant Scheme means a scheme established and operated by a State or the Northern Territory in accordance with:
(a) the agreement between the Commonwealth, the States and the Northern Territory the execution of which, on behalf of the Commonwealth, was approved by the States and Northern Territory Grants (Rural Adjustment) Act 1985; or
(b) that agreement as subsequently amended.
1988 Rural Adjustment Grant Scheme means a scheme established and operated by a State or the Northern Territory in accordance with:
(a) an agreement between the Commonwealth and that State or Territory whose execution, on behalf of the Commonwealth, was approved by the States Grants (Rural Adjustment) Act 1988; or
(b) that agreement as subsequently amended.
Act means the Bankruptcy Act 1966.
commencement date means 16 December 1996.
contribution assessment period has the meaning given by section 139K of the Act.
CPI rate, in relation to a financial year, means the annual average of the All Groups Consumer Price Index number, being the weighted average of the 8 capital cities, published by the Australian Statistician in respect of the quarters in the year.
Criminal Code means the Criminal Code set out in the Schedule to the Criminal Code Act 1995, being that Code as amended from time to time.
DEP scheme means the scheme mentioned in section 52C of the Farm Household Support Act 1992.
farm help re‑establishment grant scheme means the scheme mentioned in section 52A of the Farm Household Support Act 1992.
FC (Bankruptcy) Rules means the Federal Court (Bankruptcy) Rules 2016.
FCC (Bankruptcy) Rules means the Federal Circuit Court (Bankruptcy) Rules 2016.
Fees and Remuneration Determination means each determination made under subsection 316(1) of the Act, as in force from time to time.
registered liquidator has the meaning given by the Corporations Law.
Rural Adjustment Grant Scheme means a scheme established and operated by a State or the Northern Territory in accordance with:
(a) the agreement between the Commonwealth and the States the execution of which, on behalf of the Commonwealth, was approved by the States Grants (Rural Adjustment) Act 1976; or
(b) that agreement as subsequently amended, including that agreement as amended by:
(i) the agreement between the Commonwealth, the States and the Northern Territory the execution of which, on behalf of the Commonwealth, was approved by the States and Northern Territory Grants (Rural Adjustment) Act 1979; or
(ii) that agreement as subsequently amended.
Rural Adjustment Scheme has the meaning given by section 4 of the Rural Adjustment Act 1992.
Rural Reconstruction Grant Scheme means a scheme established and operated by a State in accordance with:
(a) the agreement between the Commonwealth and the States the execution of which, on behalf of the Commonwealth, was approved by the States Grants (Rural Reconstruction) Act 1971; or
(b) that agreement as subsequently amended.
rural support scheme has the meaning given by subsection 5(1) of the Act.
Sugar Industry Reform Program means the scheme known as the Sugar Industry Reform Program 2004 made under the Sugar Industry Reform Program Guidelines as in force on 29 April 2004, administered by the Department of Agriculture, Fisheries and Forestry.
Tobacco Grower Adjustment Assistance Package means the scheme known as the Tobacco Grower Adjustment Assistance Package 2006 made under the Tobacco Grower Adjustment Assistance Package Guidelines as in force on 2 March 2007, administered by the Department of Agriculture, Fisheries and Forestry.
the court, in relation to a judgment or order, means the court by which the judgment was given or the order was made.
the Index means the National Personal Insolvency Index established by subregulation 13.02(1).
(2) A reference in these Regulations to a form of a specified number is a reference to the form of that number in Schedule 1.
1.04 Application of Criminal Code
Chapter 2 of the Criminal Code applies to offences against these Regulations.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Part 2—Administration
2.01 Section 20J of the Act—prescribed rate of interest on moneys in Common Fund
For the purposes of section 20J of the Act, the prescribed rate of interest is 7 percent per year.
Note: This rate is prescribed under subsections 20J(2) and (4) of the Act.
Part 3—Courts
3.01 Paragraph 29(5)(b) of the Act—prescribed countries
For the purposes of subsection 29(5) of the Act, each of the countries specified in the following table is prescribed:
Table |
Jersey | Singapore |
Malaysia | Switzerland |
Papua New Guinea | United States of America |
Part 4—Proceedings in connexion with bankruptcy
Division 1—Bankruptcy notices
4.01 Application for bankruptcy notice
(1) Subject to subregulation (2), to apply for the issue of a bankruptcy notice, a person must lodge with the Official Receiver:
(a) an application in the approved form; and
(b) 1 of the following documents in relation to the final judgment or final order specified by the person on the approved form:
(i) a copy of the sealed or certified judgment or order;
(ii) a certificate of the judgment or order sealed by the court or signed by an officer of the court;
(iii) a copy of the entry of the judgment or order certified as a true copy of that entry and sealed by the court or signed by an officer of the court.
(2) If the final judgment or final order specified by the person on the approved form is an award mentioned in paragraph 40(3)(a) of the Act, the person must lodge with the Official Receiver:
(a) an application in the approved form; and
(b) a copy of the award certified as a true copy by the arbitrator who made the award or, failing the arbitrator, by an officer of the Court after having compared the copy with the original award; and
(c) a sealed or certified copy of the order giving leave to enforce the award.
Note 1: For bankruptcy notices, see regulation 4.02 and Form 1.
Note 2: A fee is payable to the Official Registrar for an application under this regulation—see Fees and Remuneration Determination.
4.02 Form of bankruptcy notices
(1) For the purposes of subsection 41(2) of the Act, the form of bankruptcy notice set out in Form 1 is prescribed.
(2) A bankruptcy notice must follow Form 1 in respect of its format (for example, bold or italic typeface, underlining and notes).
(3) Subregulation (2) is not to be taken as expressing an intention contrary to section 25C of the Acts Interpretation Act 1901.
Note: Under section 25C of the Acts Interpretation Act 1901, where an Act prescribes a form, then, unless the contrary intention appears, strict compliance with the form is not required and substantial compliance is sufficient; see also paragraph 46(1)(a) of that Act for the application of that Act to legislative instruments other than Acts.
4.02A Service of bankruptcy notices
A bankruptcy notice must be served within:
(a) the period of 6 months commencing on the date of issue of the bankruptcy notice; or
(b) any further period that the Official Receiver allows (whether within or outside that period of 6 months).
Note 1: If paragraph (b) applies to a bankruptcy notice, a fee is payable under the Fees and Remuneration Determination.
Note 2: A bankruptcy notice may be served by any of the methods mentioned in regulation 16.01.
4.03 Inspection of bankruptcy notices
(1) Subject to subregulation (2), the only persons who may inspect a bankruptcy notice lodged with the Official Receiver are:
(a) a person specified in the notice; and
(b) a party to a proceeding to which the notice relates; and
(c) a solicitor acting for a person mentioned in paragraph (a) or (b).
(2) If a creditor’s petition is presented that is founded on an act of bankruptcy consisting of failure to comply with a bankruptcy notice, that notice (as lodged with the Official Receiver) is open to public inspection.
4.04 Judgment or order in foreign currency
(1) This regulation applies to a bankruptcy notice if the judgment or order lodged under subregulation 4.01(1) in relation to the notice is expressed in an amount of foreign currency (whether or not the judgment or order is also expressed in an amount of Australian currency).
(2) A bankruptcy notice to which this regulation applies must:
(a) contain a statement to the effect that payment of the amount of foreign currency expressed in the judgment or order may be paid in that foreign currency or by means of a specified amount of Australian currency that is stated to be equivalent to the amount of foreign currency; and
(b) set out:
(i) the applicable rate of exchange, being the rate worked out in accordance with subregulation (3); and
(ii) the conversion calculation; and
(iii) a statement that the conversion of the amount of foreign currency into Australian currency has been made in accordance with this regulation.
(3) For paragraph (2)(b), the conversion of an amount of foreign currency into an equivalent amount of Australian currency must be done in accordance with the telegraphic rate of exchange prevailing on the second day before the day when the application to which the conversion applies is lodged under subregulation 4.01(1).
Division 2—Petitions
4.05 Copy of petition, etc to be given to Official Receiver
(1) A creditor who presents a petition under Division 2 of Part IV of the Act must, within 2 business days after the petition is endorsed by the Court, give an endorsed copy of the petition to the Official Receiver.
(3) A creditor who presents a petition under Division 2 of Part IV of the Act must give a copy of any order, endorsed by the Court, dismissing, staying or extending the petition, or adjourning the hearing of the petition, to the Official Receiver within 2 business days after the Court has endorsed the order.
4.06 Control of debtor’s property before sequestration
(1) Where the Court makes a direction or other order under subsection 50(1) of the Act, the creditor who applied for the direction or other order must, within 7 days, serve the following documents in accordance with subregulation (2):
(a) a copy of the application;
(b) a copy of any affidavit filed in support of the application;
(c) a certified copy of the direction or other order.
(2) The documents must be served:
(a) on the trustee who the Court has directed to take control of the debtor’s property; and
(b) except where that person is the Official Trustee—on the Official Receiver.
4.07 Expenses of trustee before sequestration
(1) Where:
(a) the Court makes a direction or other order under subsection 50(1) of the Act; and
(b) the amount deposited, in accordance with the direction or other order of the Court, with the Official Trustee or a registered trustee is insufficient to meet the fees and expenses incurred by the Official Trustee or registered trustee:
(i) as a result of the direction or other order; or
(ii) in carrying out an examination of a person as a result of the issue of a summons under subsection 50(2) of the Act;
the Official Trustee or registered trustee may:
(c) request the creditor who made the application under subsection 50(1) of the Act; or
(d) apply to the Court for an order directing that creditor;
to deposit with the Official Trustee or the registered trustee a specified additional sum.
(2) Where the Court, under section 50 of the Act, directs the Official Trustee or a registered trustee to take control of the property of a debtor, and subsequently any of the following events occurs:
(a) the debtor enters into a personal insolvency agreement, or the debtor’s estate is administered under Part XI of the Act, and the Court authorises the Official Trustee or the registered trustee to transfer the property to some other person;
(b) a sequestration order is made against the debtor;
(c) the creditor’s petition against the debtor is dismissed;
(d) a debtor’s petition relating to the debtor is accepted by the Official Receiver;
(e) a proposal by the debtor relating to a debt agreement is accepted under section 185B of the Act;
the creditor is entitled to a refund of the amount deposited by him or her in accordance with the direction or other order of the Court to meet the fees and expenses of the Official Trustee or the registered trustee incurred:
(f) as a result of the direction; or
(g) in carrying out an examination of a person as the result of the issue of a summons;
less the amount of any fees or expenses so incurred.
4.08 Application for damages where petition dismissed
Where:
(a) the Court has made a direction or other order under subsection 50(1) of the Act; and
(b) the creditor’s petition against the debtor is subsequently dismissed;
the debtor may, within 21 days after the day on which the petition is dismissed, apply to the Court for an order for:
(c) the assessment of the amount of any damage resulting from the control of the property of the debtor by the Official Trustee or a registered trustee in accordance with the order; and
(d) the payment by the creditor to the debtor of an amount so assessed.
4.09 Subsection 50(5) of the Act—prescribed modifications of applied provisions
For the purposes of subsection 50(5) of the Act, section 81 of the Act is modified as follows:
(a) by omitting from subsection (2) ‘An’ and substituting ‘Subject to subsection (2A), an’;
(b) by inserting after subsection (2) the following subsection:
‘(2A) The Court or a magistrate may direct that an examination, or any part of an examination, under this section shall be held in private.’;
(c) by omitting from subsection (9) ‘is the trustee’ and substituting ‘has been directed to take control of the property of the debtor’;
(d) by omitting subsection (10A);
(e) by omitting subsection (14) and substituting the following subsections:
‘(14) Subject to subsection (14A), the applicant for an examination under this section is to pay the costs incurred in connection with the examination.
‘(14A) The Court or a magistrate may order that all or some of the costs mentioned in subsection (14) are to be paid by the debtor.’.
4.10 Acceptance of debtor’s declaration
Where, under paragraph 54C(a) of the Act, the Official Receiver accepts and signs a declaration, the Official Receiver must give a copy of the signed declaration to the debtor.
4.11 Prescribed information to be supplied by Official Receiver to debtor
(1) For the purposes of subsections 54D(1), 55(3A), 56B(5) and 57(3A) of the Act, the following information is prescribed:
(a) information about alternatives to bankruptcy;
(b) information about the consequences of bankruptcy;
(c) information about sources of financial advice and guidance to persons facing or contemplating bankruptcy;
(d) information about a debtor’s right to choose whether the bankruptcy is administered by a registered trustee or the Official Trustee;
(e) a statement that it is an act of bankruptcy for a debtor to present to the Official Receiver, under section 54A of the Act, a declaration of intention to present a debtor’s petition.
(2) The information must be factual and objective.
(3) The Official Receiver must not accept a declaration of intention to present a debtor’s petition under section 54A of the Act or a debtor’s petition under section 55, 56B or 57 of the Act unless the debtor has given to the Official Receiver a signed acknowledgement (which may be included in or appended to the petition) that the debtor has received and read the prescribed information.
(4) If the debtor presents a petition without having given the acknowledgement, the Official Receiver must:
(a) if the debtor presents the petition in person—give the prescribed information to the debtor; or
(b) if the debtor presents the petition by post—post the prescribed information to the debtor.
(5) Subregulation (6) applies if a person (the intending petitioner) intends to present a petition under Division 2 of Part IV of the Act and the intending petitioner is:
(a) unable to read the relevant material, because he or she is:
(i) blind, partially sighted, illiterate or partially literate; or
(ii) insufficiently familiar with the English language; or
(b) unable to sign the petition or the acknowledgment, because of a physical incapacity.
(6) The petition and the acknowledgement may be signed by another person, who must sign a statement:
(a) if subparagraph (5)(a)(i) applies—that he or she has read the relevant material to the intending petitioner; or
(b) if subparagraph (5)(a)(ii) applies—that he or she has interpreted the relevant material to the intending petitioner in a language with which both persons are familiar; or
(c) if paragraph (5)(b) applies—that he or she believes that the intending petitioner has read and understood the relevant material.
(7) In this regulation:
relevant material means the petition, the prescribed information and the acknowledgment.
4.12 Debtor’s petition—filing of trustee’s consent
Where:
(a) a debtor presents, or 2 or more debtors present, a petition to the Official Receiver under section 55, 56B or 57 of the Act; and
(b) there is in force under section 156A of the Act the consent of a registered trustee to act as the trustee of:
(i) the estate of the debtor; or
(ii) in the case of 2 or more debtors—the separate estates, the joint estates, or the joint and separate estates, of the debtors or any of them;
the petition to the Official Receiver must have with it the original, or a clearly legible photocopy, of the instrument of consent.
4.13 Notice to partners of referral to Court of petition by other partners against the partnership
(1) Notice by the Official Receiver under subsection 56C(2) of the Act must:
(a) be in writing; and
(b) state that the petition has been referred to the Court specified in the notice; and
(c) state the date, time and place of hearing of the petition.
(2) The Official Receiver must give the notice:
(a) at least 7 days before that date; and
(b) in accordance with regulation 16.01;
to each member to whom, under that subsection, it is required to be given.
Division 3—Miscellaneous
4.14 Notification by trustee to creditors
(1) The trustee of a person who becomes bankrupt must, within 28 days after the day on which the trustee receives the bankrupt’s statement of affairs, give to each creditor of the bankrupt:
(a) a notice stating the fact and date of the bankruptcy; and
(b) a summary of the statement of affairs of the bankrupt.
(2) If the trustee does not receive the statement of affairs within 60 days after the date of bankruptcy, he or she must give notice in writing to each creditor of the bankrupt of whom the trustee is aware:
(a) stating that the trustee has not received the statement of affairs; and
(b) setting out what the trustee knows of the bankrupt’s affairs.
4.15 Exercise of proxy by trustee’s representative at meeting
A person appointed under subsection 63B(1) of the Act to represent a trustee at a meeting may exercise at the meeting any proxy exercisable by the trustee at the meeting.
4.16 Lodgment of proxies by fax—section 64M of the Act
For the purposes of section 64M of the Act:
(a) an instrument appointing a proxy may be lodged with the trustee by facsimile transmission; and
(b) an instrument so lodged may be circulated by the trustee under subsection 64M(2) of the Act.
4.17 Inspection and copying of composition or scheme of arrangement
Where a proposal for a composition or scheme of arrangement in relation to a bankrupt has been accepted under subsection 73(4) of the Act the person may, personally or by an agent, inspect and copy the composition or scheme of arrangement.
Note: Except in the case of a person who states in writing that he or she is a person who is a creditor of the bankrupt, a fee is payable under the Fees and Remuneration Determination.
4.18 Proposal and report for a composition or arrangement
Where a trustee is required, under subsection 73(2) of the Act, to send a copy of a proposal and a report to creditors before a meeting, the trustee must send those documents to each creditor so that they arrive, or should in due course of post arrive, at least 7 days before the meeting.
4.19 Meetings of creditors—modification of Division 5 of Part IV of the Act
For the purposes of section 76A of the Act, Division 5 of Part IV of the Act is modified in accordance with Schedule 2 in relation to meetings of creditors under Division 6 of that Part.
Part 5—Control over person and property of debtors and bankrupts
5.01 Where debtor or bankrupt is arrested
Where a person is arrested under section 78 of the Act, the arresting officer must immediately notify a Registrar of the arrest.
5.02 Fee for making request for consent to leave Australia
(1) This regulation applies in relation to a request by a bankrupt to the Official Trustee for the Official Trustee’s consent, under paragraph 272(1)(c) of the Act, to the bankrupt leaving Australia.
(2) A fee is payable to the Official Trustee in relation to the making of the request.
Note: For the amount of the fee, see the Fees and Remuneration Determination.
Part 6—Administration of property
Division 1—Order of payment of debts
6.01 Priority payments under section 109 of the Act—prescribed matters
(1) Payment of proceeds of the property of a bankrupt under paragraph 109(1)(a) of the Act is to be in the order set out in Schedule 3.
(2) For the purposes of item 5 of Schedule 3:
(a) a reference to the petitioning creditor is taken to include a reference to a petitioner whose petition has not been proceeded with because of the acceptance of the debtor’s petition; and
(b) paragraph (a) applies irrespective of whether the debtor’s petition was referred to the Court under subsection 55(3B) of the Act or, if the petition was so referred, the outcome of the reference.
6.02 Maximum amount payable to employee
(1) For the purposes of paragraph 109(1)(e) of the Act, the maximum amount due to or in respect of an employee of a bankrupt is:
(a) in the case of a bankruptcy occurring or continuing in the period commencing on the commencement date and ending at the end of 30 June 1997—$3,100; or
(b) in the case of a bankruptcy occurring in a financial year commencing on 1 July 1997 or on 1 July of a subsequent year—the amount worked out in accordance with subregulation (2).
(2) For the purposes of subparagraph (1)(b), the applicable amount is:
(a) in the case of the financial year commencing on 1 July 1997—$3,100 increased in accordance with the CPI rate for the financial year that commenced on 1 July 1996 and rounded down to the nearest multiple of $50; and
(b) in the case of a subsequent financial year—the amount worked out in accordance with this subregulation for the immediately preceding financial year, increased in accordance with the CPI rate for that financial year and rounded down to the nearest multiple of $50.
Example: In the case of a bankruptcy occurring in the financial year 1997‑1998, the applicable CPI rate is the rate for 1996‑1997.
Note: For the meaning of financial year, see para. 22(1)(e) of the Acts Interpretation Act 1901.
Division 2—Property available for payment of debts
6.03 Household property
(1) For the purposes of subparagraph 116(2)(b)(i) of the Act, household property of the bankrupt specified in this regulation is household property to which subsection 116(1) of the Act (which deals with property divisible among the creditors) does not extend.
(2) Subsection 116(1) of the Act does not extend to household property (including recreational and sports equipment) that is reasonably necessary for the domestic use of the bankrupt’s household, having regard to current social standards.
(3) In particular (but without limiting by implication the generality of subregulation (2)), subsection 116(1) of the Act does not extend to property of the following kinds:
(a) in the case of kitchen equipment, cutlery, crockery, foodstuffs, heating equipment, cooling equipment, telephone equipment, fire detectors and extinguishers, anti‑burglar devices, bedding, linen, towels and other household effects—that property to the extent that it is reasonably appropriate for the household, having regard to the criteria mentioned in subregulation (4);
(b) sufficient household furniture;
(c) sufficient beds for the members of the household; and
(d) educational, sporting or recreational items (including books) that are wholly or mainly for the use of children or students in the household;
(e) 1 television set;
(f) 1 set of stereo equipment;
(g) 1 radio;
(h) either:
(i) 1 washing machine and 1 clothes drier; or
(ii) 1 combined washing machine and clothes drier;
(i) either:
(i) 1 refrigerator and 1 freezer; or
(ii) 1 combination refrigerator/freezer;
(j) 1 generator, if relied on to supply electrical power to the household;
(k) 1 telephone appliance;
(l) 1 video recorder.
(4) For the purposes of deciding whether property, other than property of a kind mentioned in paragraphs (3)(b) to (l) (both inclusive), is property to which subregulation (2) applies, regard must be had to the following criteria:
(a) the number and ages of members of the bankrupt’s household;
(b) any special health or medical needs of any of those members;
(c) any special climatic or other factors (including geographical isolation) of the place where the household residence is located;
(d) whether the property is reasonably necessary for the functioning or servicing of the household as a viable and properly run household;
(e) whether the costs of seizure, storage and sale of the property would be likely to exceed the sale price of the property;
(f) if paragraph (e) does not apply—whether for any other reason (for example, costs of transport) the sale of the property would be likely to be uneconomical.
(5) The preceding provisions of this regulation do not prevent subsection 116(1) of the Act from extending to antique items.
(6) For the purposes of subregulation (5), an item is taken to be antique if, and only if, a substantial part of its market value is attributable to its age or historical significance.
6.03A Personal property
(1) For subparagraph 116(2)(ba)(ii) of the Act, sporting, cultural, military or academic awards made to the bankrupt in recognition of his or her performance are personal property to which subsection 116(1) of the Act does not extend.
(2) Subregulation (1) does not apply to a monetary award.
6.03B Property divisible among creditors—prescribed amounts
(1) For the purposes of subparagraph 116(2)(c)(i) of the Act, the maximum total value of a bankrupt’s property that is for use by the bankrupt in earning income by personal exertion is:
(a) in the case of a bankruptcy occurring or continuing in the period commencing on the commencement date and ending at the end of 30 June 1997—$2,600; or
(b) in the case of a bankruptcy occurring in a financial year commencing on 1 July 1997 or on 1 July of a subsequent year—the amount worked out in accordance with subregulation (2).
(2) For the purposes of subparagraph (1)(b), the applicable amount is:
(a) in the case of the financial year commencing on 1 July 1997—$2,600 increased in accordance with the CPI rate for the financial year that commenced on 1 July 1996 and rounded down to the nearest multiple of $50; and
(b) in the case of a subsequent financial year—the amount worked out in accordance with this subregulation for the immediately preceding financial year, increased in accordance with the CPI rate for that financial year and rounded down to the nearest multiple of $50.
(3) For the purposes of paragraph 116(2)(ca) of the Act, the maximum aggregate value of property used by the bankrupt primarily as a means of transport is:
(a) in the case of a bankruptcy occurring or continuing in the period commencing on the commencement date and ending at the end of 30 June 1997—$5,000; or
(b) in the case of a bankruptcy occurring in a financial year commencing on 1 July 1997 or on 1 July of a subsequent year—the amount worked out in accordance with subregulation (4).
(4) For the purposes of subparagraph (3)(b), the applicable amount is:
(a) in the case of the financial year commencing on 1 July 1997—$5,000 increased in accordance with the CPI rate for the financial year that commenced on 1 July 1996 and rounded down to the nearest multiple of $50; and
(b) in the case of a subsequent financial year—the amount worked out in accordance with this subregulation for the immediately preceding financial year, increased in accordance with the CPI rate for that financial year and rounded down to the nearest multiple of $50.
Division 2A—Rural support schemes
6.04A Prescribed rural support schemes (Act s 116)
For paragraph 116(2)(k) of the Act, the following rural support schemes are prescribed:
(a) DEP scheme;
(b) farm help re‑establishment grant scheme.
6.04B Prescribed rural support schemes (Act s 116)
For paragraph 116(2)(l) of the Act, each rural support scheme mentioned in the following table, and the circumstances mentioned for the scheme, are prescribed.
Item | Rural support scheme | Circumstance |
1 | 1985 Rural Adjustment Grant Scheme | Assistance is required by a person engaged in the agricultural industry, in the form of a loan for rehabilitation or household support |
2 | 1988 Rural Adjustment Grant Scheme | Assistance is required by a person engaged in the agricultural industry, in the form of a grant or loan for rehabilitation or household support |
3 | Rural Adjustment Grant Scheme | Assistance is required by a person engaged in the agricultural industry, in the form of a grant or loan for rehabilitation or household support |
4 | Rural Adjustment Scheme | Assistance is required by a person engaged in the agricultural industry, in the form of a grant or loan for rural adjustment |
5 | Rural Reconstruction Grant Scheme | Assistance is required by a person engaged in the agricultural industry, in the form of a grant or loan for rehabilitation |
6 | Sugar Industry Reform Program | Assistance is required in the form of a grant to enable a person engaged in the sugar industry, as a grower or harvester, to exit all agricultural industries |
7 | Tobacco Grower Adjustment Assistance Package | Assistance is required in the form of a grant to enable a person engaged, or previously engaged, in the tobacco industry as a grower to exit all agricultural industries |
Division 4—Undervalued transactions
6.09 Transfers exempt from being void against trustee
The kind of transfer of property to which paragraph 120(2)(d) of the Act applies is one where the costs of recovering the transferred property would, in the trustee’s opinion, be likely to exceed the value to the creditors of the property.
Division 5—Realisation of property
6.10 Disclaimer of onerous property
(1) A notice of disclaimer under subsection 133(1) or (1A) of the Act must:
(a) in every case—adequately identify:
(i) the bankrupt to whom the notice relates; and
(ii) the property or contract being disclaimed; and
(b) in the case of disclaimer, without the leave of the Court, of:
(i) a lease—set out facts showing that subsection 133(4) of the Act has been complied with; or
(ii) a contract—set out facts showing that the contract is, for the purposes of subsection 133(5A) of the Act, an unprofitable contract.
(2) A trustee who gives a notice of disclaimer under subsection 133(1) or (1A) of the Act must give the notice to each person who, to the trustee’s knowledge:
(a) in the case of disclaimer of property—has an interest in the property; or
(b) in the case of a contract—is entitled to a benefit of, or subject to a burden or liability under, the contract.
Division 6—Definition of income (Act s 139L)
6.11 Interpretation
In this Division:
FBTA Act means the Fringe Benefits Tax Assessment Act 1986 as in force at the beginning of 1 July 1992.
6.12 Fringe benefits: modification of the FBTA Act
(1) For the purposes of subparagraph (a)(v) of the definition of income in section 139L of the Act, the FBTA Act is modified in accordance with Schedule 4.
(2) For those purposes, the following modifications of the FBTA Act apply:
(a) a reference to a year of tax is taken to be a reference to a contribution assessment period;
(b) a reference to the taxable value of a benefit is taken to be a reference to the value, for the purposes of the Act, of the benefit;
(c) a reference to the declaration date is taken to be a reference to the date occurring 21 days after the end of the contribution assessment period in relation to the bankrupt;
(d) a reference to a declaration to be given to the employer is taken to be a reference to a declaration to be given to the trustee;
(e) a reference to a form approved by the Commissioner is taken to be a reference to a form approved by the Inspector‑General;
(f) subject to paragraph (d), a reference to an employer, or to the employer, is taken to be a reference to any person (other than the bankrupt);
(g) a reference to an employee, or to the employee, is taken to be a reference to a bankrupt, or to the bankrupt, as the case requires;
(h) a reference (however expressed) to:
(i) the employment of the employee; or
(ii) an associate of the employee;
is to be disregarded.
(3) In spite of subregulations (1) and (2), the modifications specified or referred to in those subregulations do not apply in relation to the provision of a fringe benefit, within the meaning of the FBTA Act, where the provider of the fringe benefit:
(a) was the employer of the bankrupt; and
(b) provided the fringe benefit to the bankrupt in respect of his or her employment by the provider; and
(c) was not an employer over whom the bankrupt exercised effective control, whether directly or indirectly.
6.12A Restart scheme payments
For subparagraph (b)(v) of the definition of income in section 139L of the Act, payments of restart income support, being payments of a kind mentioned in paragraph (a) of the definition of restart scheme payments in subsection 3(2) of the Farm Household Support Act 1992, are not income of a bankrupt.
6.12B Superannuation contributions
(1) Subject to subregulation (2), for subparagraph (b)(v) of the definition of income in section 139L of the Act, the following contributions and payments made for the purpose of providing superannuation benefits for a bankrupt person are not income of the person:
(a) contributions made by, or on behalf of, each employer of the person to the extent that the contributions reduce the employer’s potential liability for the superannuation guarantee charge imposed under section 5 of the Superannuation Guarantee Charge Act 1992;
(b) contributions made by, or on behalf of, each employer of the person in accordance with the employer’s obligation to make contributions for the person under:
(i) an industrial award or determination made under a law of the Commonwealth, a State or a Territory; or
(ii) an industrial agreement registered, made or lodged under a law of the Commonwealth, a State or a Territory; or
(iii) a law of the Commonwealth, or of a State or Territory;
that exceed the contributions, made by or on behalf of the employer, mentioned in paragraph (a);
(c) payments of shortfall components made to, or for the benefit of, the person under sections 65 to 67 of the Superannuation Guarantee (Administration) Act 1992.
(2) Contributions for a year are taken to be income of a person if:
(a) the contributions exceed 9% of the employee’s ordinary time earnings for the year; and
(b) the employer has an obligation to make the contributions that arise under an individual industrial agreement; and
(c) the contributions are not contributions of the kind mentioned in subparagraph (1)(b)(iii).
(3) For this regulation:
individual industrial agreement means an industrial agreement made solely between the employer and the person, including the following:
(a) an AWA, or an ITEA, to which the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 applies;
(b) a similar agreement under the law of a State or Territory.
ordinary time earnings has the meaning given by section 6 of the Superannuation Guarantee (Administration) Act 1992.
shortfall component has the same meaning as it has in Part 8 of the Superannuation Guarantee (Administration) Act 1992.
6.12C Family assistance and social security payments
(1) For subparagraph (b)(v) of the definition of income in section 139L of the Act, the following payments or amounts are not income of a bankrupt:
(a) a payment or amount of family tax benefit paid under the family assistance law;
(b) an amount that is not income for the purposes of the Social Security Act 1991 because of subsection 8(8) of that Act, except for a payment or amount mentioned in paragraph (a), (h), (ha), (k), (ka), (m), (z), (za) or (zb) of that subsection.
(2) For this regulation, family assistance law has the same meaning as in the A New Tax System (Family Assistance) (Administration) Act 1999.
6.12D Primary Industry rural support scheme
For subparagraph (b)(v) of the definition of income in section 139L of the Act, any of the following is not income of a bankrupt:
(a) an amount paid to a person under the DEP scheme;
(b) an amount paid to a person under the Sugar Industry Reform Program for the prescribed circumstance mentioned for it in regulation 6.04B;
(c) an amount paid to a person under the Tobacco Grower Adjustment Assistance Package for the prescribed circumstance mentioned for it in regulation 6.04B.
Division 7—Contributions by bankrupt
6.13 Interpretation
In this Division:
contributing bankrupt means a bankrupt who is liable to make contributions.
contribution means a contribution payable or paid under section 139P or 139Q of the Act.
6.14 Contributions by bankrupt—modes of payment
(1) A contributing bankrupt may pay a contribution in any of the following ways:
(a) in cash to the trustee at the trustee’s office during business hours;
(b) by bank draft, cheque, money order or postal order payable to the trustee and delivered or posted to that office;
(c) by deposit of the amount of the contribution in, or transfer of that amount to, the trustee’s bank account;
(d) any other method authorised in writing by the trustee.
(2) In the case of payment by cheque, payment is taken to occur when the cheque is cleared and the amount of the payment is credited to the account into which the cheque is deposited.
(3) The trustee may, on reasonable notice in writing to the bankrupt, vary or cancel an authorisation under paragraph (1)(d).
(4) If the trustee incurs a delivery or postal charge (including a surcharge) or bank charge in connection with the receipt or processing of payment of a contribution, the trustee may reimburse himself or herself for the amount of the charge from the bankrupt’s estate.
6.15 Contributions where bankrupt dies
If a contributing bankrupt dies during a contribution assessment period:
(a) no refund is payable in respect of any part of a contribution paid by or on behalf of the bankrupt in respect of that period; and
(b) if a contribution in respect of that period remains unpaid, the deceased bankrupt’s estate is liable for the portion of the contribution attributable to the part of the period occurring before the date of death.
Note: For proceedings in bankruptcy on the death of the bankrupt, see s. 63 of the Act.
6.15A Contribution assessment—income of dependant
(1) For paragraph (c) of the definition of dependant in section 139K of the Act, the amount is $2 500.
(2) Section 304A of the Act applies to this regulation as if the amount mentioned in subregulation (1) were an amount also mentioned in the definition of indexable amount in subsection 304A(1) of the Act.
6.17 Certificate of outstanding contribution
(1) A trustee may give a certificate, signed and dated by the trustee, stating:
(a) that the trustee has made an assessment under subsection 139W(1) or (2) of the Act in relation to a bankrupt; and
(b) the amount of the contribution to which the assessment relates that the bankrupt is liable to pay; and
(c) that the trustee has given notice setting out particulars of the assessment to the bankrupt under subsection 139W(4) of the Act; and
(d) the respective dates of the assessment and the notice.
(2) In proceedings against the bankrupt for recovery of the amount, or part of the amount, of a contribution, the certificate:
(a) is evidence that the bankrupt is liable to pay the amount of contribution stated in the certificate; and
(b) may be tendered in evidence without further proof.
6.18 Discharged bankrupt to give information if contribution unpaid
(1) If:
(a) a person is discharged from bankruptcy; and
(b) immediately before being discharged he or she was a contributing bankrupt; and
(c) after the discharge he or she remains liable, under section 139R of the Act, in respect of a contribution that is due and unpaid;
the person must at once give notice in writing to the trustee in relation to the bankruptcy if any change occurs in the particulars:
(d) set out in the person’s statement of affairs in relation to the bankruptcy; or
(e) notified by the person under section 80 of the Act.
Penalty: 10 penalty units
(2) An offence against subregulation (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
Division 8—Notice under section 139ZL of the Act
6.19 Notice under section 139ZL of the Act not to refer to protected money
A notice under section 139ZL of the Act must not specify money or property that is protected, under a law of the Commonwealth or a State or Territory, from a process such as assignment, attachment, charging, execution or garnishment.
6.20 Notice under section 139ZL of the Act (notice of ceasing or commencing employment)
(1) If the employer of a bankrupt receives a notice under section 139ZL of the Act in relation to the bankrupt and the employment of the bankrupt subsequently ceases, the employer must, within 21 days of the cessation, give notice in writing to the trustee of the bankrupt stating that, on the date specified in the notice, the bankrupt ceased to be employed by the employer.
Penalty: 2 penalty units
(2) Within 21 days after commencing employment with an employer, the bankrupt must give notice in writing to the trustee stating:
(a) the employer’s name and postal address; and
(b) the address of the place where the bankrupt is employed; and
(c) the amount of the bankrupt’s average gross weekly income from the employment.
Penalty: 2 penalty units
(3) An offence against subregulation (1) or (2) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
Division 9—Distribution of property
6.21 Minimum amount of dividend
For the purposes of subsection 140(9) of the Act, the amount of $25 is prescribed.
6.22 Manner of declaring final dividend
A notice under subsection 145(3) of the Act must be given by serving it, in accordance with subregulation 16.01(1), on each person to whom, under the subsection, it must be given.
Part 7—Discharge and annulment
7.01 Trustee to inform the Official Receiver of return of bankrupt to Australia
(1) This regulation applies to a registered trustee who is the trustee of the estate of a bankrupt, if:
(a) an objection to the discharge of the bankrupt has been made on a ground, or on grounds that include a ground, referred to in paragraph 149D(1)(a) or (h) of the Act (which refer to the bankrupt being out of Australia); and
(b) the bankrupt has returned to Australia; and
(c) the trustee becomes aware that the bankrupt has returned to Australia.
(2) Within 7 days after becoming aware that the bankrupt has returned to Australia, the registered trustee must give notice in writing to the Official Receiver stating:
(a) that the bankrupt has returned to Australia; and
(b) the date on which:
(i) the bankrupt returned; or
(ii) if the trustee does not know the date on which the bankrupt returned—the trustee became aware that the bankrupt had returned.
Penalty: 1 penalty unit
(3) An offence against subregulation (2) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
7.01A Grounds of objection—failure to provide complete and accurate information
For paragraph 149D(1)(d) of the Act, a bankrupt is taken to have failed to comply with a request to provide information if the bankrupt has provided information that is incomplete or inaccurate.
7.02 Trustee to inform the Official Receiver of cancellation of objection
(1) This regulation applies where the Administrative Appeals Tribunal (the AAT), on an application under section 149Q of the Act for review of a decision of a registered trustee to file a notice of objection to the discharge of a bankrupt, cancels or varies the decision.
(2) Where this regulation applies, the registered trustee must, by notice in writing, inform the Official Receiver of the decision of the AAT.
(3) The registered trustee must give the notice within 7 days of being notified of the decision of the AAT.
(4) An offence against subregulation (3) is an offence of strict liability.
Penalty: 1 penalty unit.
Note: For strict liability, see section 6.1 of the Criminal Code.
Part 8—Trustees
Division 1—Application for registration, or extension of registration, as a trustee
8.01 Documents to accompany application for registration
(1) For the purposes of paragraph 154A(3)(a) of the Act, the following documents must accompany an application to be registered as a trustee:
(a) if the applicant relies on a qualification referred to in paragraph 8.02(1)(a):
(i) an original statement in accordance with subregulation (2), certified by the appropriate officer of the university, college of advanced education or other tertiary institution; or
(ii) a copy of the statement, certified as a copy by a person before whom an affidavit may be sworn under section 262 of the Act;
(b) 2 references, signed by the respective referees, who are familiar with relevant work undertaken by the applicant within the 12 months before the application, that contain the particulars specified in subregulation (3).
(2) A statement referred to in subparagraph (1)(a)(i) must set out the relevant qualification of the applicant and state that the qualification represents:
(a) a course of study in accountancy of not less than 3 years’ duration; and
(b) a course of study in commercial law of not less than 2 years’ duration.
(3) For the purposes of paragraph 1(b), each reference must contain the following particulars:
(a) the name, address and telephone number of the referee;
(b) the occupation of the referee;
(c) the period during which, and the circumstances under which, the referee has known the applicant;
(d) the referee’s opinion about the following matters:
(i) the applicant’s abilities in oral and written communication;
(ii) the applicant’s knowledge of the powers, duties and functions of a registered trustee or registered liquidator;
(iv) the applicant’s knowledge of business management and his or her ability to successfully conduct business activities;
(e) whether, in the referee’s opinion, the applicant has experience in assisting a registered trustee or a registered liquidator within the meaning of the Companies Act 1981 or the Corporations Law in carrying out the functions of the trustee or liquidator and, if so:
(i) the nature of the activities that the applicant was required to carry out in acquiring that experience; and
(ii) the length of the period of time during which the applicant carried out those activities; and
(iii) whether the applicant carried out those activities in a competent manner;
(f) the referee’s reasons for supporting the application.
8.02 Qualifications, experience, knowledge and abilities of applicants
(1) For the purposes of paragraph 155A(2)(a) of the Act, the following qualifications, experience, knowledge and abilities are prescribed in relation to an applicant for registration as a trustee:
(a) completion of the academic requirements for the award of a degree, diploma or similar qualification from an Australian university or college of advanced education, or other Australian tertiary institution of an equivalent standard, being a degree, diploma or similar qualification granted to a person who has completed:
(i) a course of study in accountancy of not less than 3 years’ duration; and
(ii) a course of study in commercial law of not less than 2 years’ duration;
(b) engagement in relevant employment on a full‑time basis for a total of not less than 2 years in the preceding 5 years;
(c) the ability to perform satisfactorily the duties of a registered trustee immediately after registration.
Note: If the committee considering the application considers that the applicant is suitable to be registered as a trustee, it may decide that the applicant should be registered even if it is not satisfied that the applicant has the qualifications, experience, knowledge and abilities prescribed in subregulation 8.02(1); see subsection 155A(3) of the Act.
(2) In this regulation:
relevant employment means employment that:
(a) involves assisting a liquidator or trustee in the performance of his or her duties as a liquidator or trustee; and
(b) involves the providing of advice in relation to bankruptcy matters; and
(c) provides experience in insolvency administrations outside bankruptcy, including administration of receiverships, the winding up of corporations and any other similar functions.
8.03 Subsection 155C (2) of the Act—prescribed particulars of applicant for registration as a trustee
For the purposes of subsection 155C(2) of the Act, the following details are prescribed in relation to an applicant referred to in that subsection:
(a) the applicant’s full name, and any alias;
(b) the applicant’s business address (including, where applicable, the postal address) and telephone number;
(c) a statement or summary of any conditions applying to the person’s entitlement to practise as a registered trustee;
(d) the date on which details in respect of the applicant are entered on the Index.
8.04 Extension of registration—proof of insurance
A person who applies under section 155D of the Act must provide proof, of a kind reasonably acceptable to the Inspector‑General, that the applicant has insurance of the kind mentioned in paragraph 155A(2)(b) of the Act.
Division 1A—Change in trustee’s particulars
8.04A Trustee to notify change in particulars
(1) A trustee must promptly give notice in writing to the Inspector‑General of any change, in relation to the trustee, of the particulars specified in paragraph 8.03(a), (b) or (c).
Penalty: 1 penalty unit
(2) An offence against subregulation (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
Division 2—Registration of trustees
Subdivision 1—Preliminary
8.05 Definitions
In this Division, unless the contrary intention appears:
application means an application under subsection 154A(1) of the Act.
chairperson means the chairperson of a committee.
committee means a committee convened under subsection 155(1) of the Act.
member, in relation to a committee, includes the chairperson.
Subdivision 2—Constitution and procedure of committees generally
8.05A Chairperson of a committee
The chairperson of a committee is:
(a) the Inspector‑General; or
(b) if the Inspector‑General appoints another member of the committee as chairperson—that person.
8.05B Trustee chosen by the Insolvency Practitioners Association of Australia
A registered trustee chosen by the Insolvency Practitioners Association of Australia under paragraph 155(2)(c) of the Act must have practised as a registered trustee for at least 5 years.
8.05C Resignation of chairperson
(1) A chairperson other than the Inspector‑General may resign the office of chairperson by notice in writing signed by the chairperson and given to the Inspector‑General.
(2) A notice of resignation takes effect when the Inspector‑General receives it.
8.05D Resignation of members
(1) A member of a committee, other than the Inspector‑General, may resign from the committee by notice in writing signed by the member and given to the Inspector‑General.
(2) A notice of resignation takes effect when the Inspector‑General receives it.
8.05E Disclosure of interests
If a member of a committee:
(a) is a close relative of the applicant; or
(b) has a financial or personal relationship with the applicant;
the member must, as soon as practicable after becoming aware of the identity of the applicant, disclose the nature of the relationship to the other members of the committee and to the Inspector‑General.
8.05F Removal of members from a committee
(1) The Inspector‑General may terminate the appointment of a member of a committee if:
(a) the member becomes physically or mentally incapable of performing the duties of a member; or
(b) the member becomes a bankrupt; or
(c) the member signs an authority under section 188 of the Act that is effective for the purposes of Part X of the Act; or
(d) the member becomes a party, as a debtor, to a debt agreement; or
(e) the member has been convicted of an offence involving fraud or dishonesty; or
(f) the member neglects his or her duty as a member.
(2) The Inspector‑General may terminate the appointment of a member of a committee if:
(a) the member:
(i) is a close relative of the applicant; or
(ii) has a financial or personal relationship with the applicant; and
(b) the Inspector‑General believes that relationship may affect the impartiality of the member.
8.05G Convening of a replacement committee
(1) This regulation applies if:
(a) either of the following events occurs:
(i) a member of a committee resigns or dies;
(ii) the appointment of a member of a committee is terminated under regulation 8.05F; and
(b) at the time of that occurrence, the committee has not made a decision under subsection 155A(1) of the Act.
(2) If this regulation applies:
(a) the Inspector‑General must convene another committee (the new committee) in place of the committee referred to in subregulation (1) (the previous committee); and
(b) the new committee must not have regard to any proceedings of the previous committee.
8.05H General procedures of a committee
(1) Subject to the Act and this Division, a committee may determine its procedure.
(2) A committee must observe natural justice.
(3) A committee is not bound by any rules of evidence but may inform itself on any matter as it sees fit.
(4) A committee must keep a written record of its decisions.
8.05I Procedure at committee meetings
(1) Subject to this regulation, all members of a committee must be present in order to constitute a quorum for a meeting of the committee.
(2) At a meeting of a committee a matter is to be decided by a majority of the votes of the members.
(3) Any member may participate in a meeting by telephone.
(4) A member who participates in a meeting by telephone is taken to be present at the meeting.
(5) A committee may keep minutes of proceedings at its meetings.
8.05J Resolutions without meeting
(1) If the majority of the members of a committee sign a document containing a statement that they are in favour of a resolution in the terms set out in the document, the resolution is taken to have been passed at a meeting of the committee:
(a) on the day on which the document is signed; or
(b) if the members sign the document on different days—on the day on which the document is signed by the member who makes up the majority.
(2) Two or more separate documents that are identical in all material respects (apart from signatures), each of which is signed by 1 or more members, are taken for the purposes of subregulation (1) to constitute a single document.
Subdivision 3—Inquiries and interviews
8.05K Inquiries by the committee
(1) A committee considering an application may make inquiries of any person for the purposes of deciding whether the applicant should be registered as a trustee or not.
(2) If the committee decides that the applicant should be registered, the committee may make inquiries of any person for the purposes of deciding what conditions, if any, should apply to the applicant’s practice as a registered trustee.
(3) Inquiries made must be inquiries:
(a) that are reasonable, for the purpose of making an informed decision; or
(b) that the Chairperson of the committee believes are appropriate in order for the committee to have sufficient information to make the decision.
(4) Before making a decision that is adverse to the applicant, a committee must:
(a) inform the applicant of any information or material that the committee relies on, or proposes to rely on, in making the decision; and
(b) give the applicant a reasonable opportunity to reply to, or rebut, the information or material.
8.05L Notice of interview
For subsection 155(3) of the Act, the Inspector‑General or authorised employee on the committee must, after consultation with the other members of the committee:
(a) fix a date, time and place for the interview; and
(b) give written notice of that date, time and place to the applicant and the other members of the committee.
8.05M Applicant interviews
(1) A committee must interview the applicant as soon as practicable and, for that purpose:
(a) any member of the committee may participate in the interview by telephone; and
(b) the applicant may participate in the interview by telephone.
(2) A member or applicant who participates in an interview as provided by paragraph (1)(a) or (b) is taken to be present at the interview.
(3) If the applicant fails to attend, or participate by telephone in, the interview and does not, within 7 days, give the committee a reasonable excuse for that failure:
(a) the application is taken to have lapsed; and
(b) the application fee is not refundable.
(4) If an applicant who fails to attend, or participate by telephone in, an interview gives the committee, within 7 days, a reasonable excuse for that failure, the committee must arrange another interview date, time and place.
(5) At an interview, the committee may ask the applicant any question that the committee reasonably believes to be related to:
(a) the application; or
(b) a reference accompanying the application; or
(c) the issue of whether the applicant has the qualifications, experience, knowledge and abilities to perform the functions of a registered trustee.
(6) A committee must not interview an applicant until:
(a) the Inspector‑General has received the information and documents in relation to the application that are prescribed by regulation 8.01; and
(b) any charge imposed by an Act for making the application has been paid.
8.05N Report of committee decision
(1) A report under subsection 155A(6) of the Act must:
(a) be in writing; and
(b) be signed by each member of the committee; and
(c) in the case of a majority decision—set out the reasons of the minority member.
(2) The report must be given to the applicant and to the Inspector‑General within 14 days of the committee making its decision.
Subdivision 4—Other matters
8.05O Confidentiality
A committee must take all reasonable measures to protect from unauthorised use or disclosure information given to it in confidence in, or in connection with, the performance of its functions or the exercise of its powers under the Act or these Regulations.
8.05P Evidence of proceedings at committee meetings
In any proceedings, a copy of the minutes of proceedings at a committee meeting, signed by the Chairperson of the committee:
(a) is evidence of the proceedings as recorded in the minutes; and
(b) may be tendered in evidence without further proof.
Division 3—Consent to act, and appointment, as trustee of estate
8.06 Consent to act as trustee—subsection 156A(1) of the Act
(1) A trustee who signs an instrument under subsection 156A(1) of the Act in relation to a debtor must file the instrument with the Official Receiver as soon as practicable after signing it or, if the Court makes a sequestration order against the debtor’s estate, not later than 2 working days after the day on which the order is made.
(2) A certificate under subsection 156A(6) of the Act or under regulation 8.06A may be given in the form of an extract of the Index setting out the matters required to be shown by the certificate.
Note: For the admissibility in evidence of an extract of the Index, see r. 13.07.
8.06A Certificate of appointment under subsection 156A(3) of the Act
Where a registered trustee becomes, under subsection 156A(3) of the Act, the trustee of an estate or of joint and separate estates, the Official Receiver may give the registered trustee a certificate to that effect.
Division 4—Trustee’s remuneration
Subdivision 1—Prescribed rates—subsections 162(2) and (3) of Act
8.07 Prescribed rate—subsection 162(2) of the Act
For subsection 162(2) of the Act, the rate is:
(a) if the money received by the trustee does not exceed $30,000—10%; or
(b) if the money received by the trustee exceeds $30,000 but does not exceed $50,000—10% for the first $30,000 and 7.5% for the balance of the money; or
(c) if the money received by the trustee exceeds $50,000—10% for the first $30,000, 7.5% for the next $20,000 and 5% for the balance of the money.
8.08 Prescribed rate—subsection 162(3) of the Act
For subsection 162(3) of the Act, the rate is 2.5%.
Subdivision 2—Trustee’s remuneration decided by Inspector‑General
8.09 Circumstances in which trustee may apply to Inspector‑General to decide remuneration
For subsection 162(4) of the Act, the following circumstances are prescribed:
(a) the creditors or the committee of inspection:
(i) fail to vote on a motion relating to remuneration put forward by the trustee at a meeting of creditors under section 64U of the Act; or
(ii) reject a motion relating to remuneration put forward by the trustee at a meeting of creditors under section 64U of the Act;
(b) the creditors or the committee of inspection:
(i) fail to vote on a proposal relating to remuneration put forward by the trustee under section 64ZBA of the Act; or
(ii) reject a proposal relating to remuneration put forward by the trustee under section 64ZBA of the Act;
(c) it is not cost effective to seek the approval of creditors for the trustee’s remuneration;
(d) it is not practicable to seek the approval of creditors for the trustee’s remuneration.
Example 1: For paragraph (c), it may not be cost‑effective to seek the approval of creditors if the value of the assets in the estate is so small that the expense of holding a creditors’ meeting or sending a notice to creditors cannot be justified.
Example 2: For paragraph (d), it may not be practicable to seek the approval of creditors if the bankruptcy is annulled and there are no longer any creditors to vote on a remuneration proposal.
Example 3: For paragraph (d), it may not be practicable to seek the approval of creditors if a meeting is cancelled because of a lack of quorum.
8.10 Application to Inspector‑General to decide remuneration
For subsection 162(4) of the Act, the application:
(a) must be in writing; and
(b) must:
(i) state which circumstance prescribed in regulation 8.09 applies to the application; and
(ii) include evidence that the prescribed circumstance applies to the application; and
(c) must contain a single proposal about the trustee’s proposed remuneration; and
(d) must include the information required by subsections 64U(5) and (5A) of the Act about the trustee’s statement; and
(e) must explain:
(i) why any work already performed by the trustee was necessary; and
(ii) why any work proposed to be performed by the trustee will be necessary; and
(iii) why the proposed remuneration for the work, or proposed work, is appropriate for the particular administration; and
(f) must be accompanied by the following:
(i) any notices issued by the trustee to the bankrupt and creditors under subsection 162(6A) of the Act;
(ii) any other notices issued by the trustee to the bankrupt and creditors under Subdivision 3.
8.11 Matters to which Inspector‑General must have regard
For subsection 162(4A) of the Act, the Inspector‑General must have regard to the following matters when deciding the trustee’s remuneration:
(a) whether the trustee has followed the procedure in section 64U of the Act for estimating remuneration, including whether the trustee has adequately described to creditors the work performed or to be performed;
(b) whether the trustee has given the bankrupt and creditors the notices required to be given under these Regulations;
(c) whether the trustee has explained why the work already performed was necessary;
(d) whether the trustee has explained why the work proposed to be performed will be necessary;
(e) whether, taking into account the nature and complexity of the work, the proposed remuneration is commensurate with:
(i) the work already performed; or
(ii) the work proposed to be performed;
(f) any other relevant matters.
Note: A decision on the application is made under subsection 162(4A) of the Act. The Inspector‑General must advise the trustee and the bankrupt and creditors of the decision in accordance with subsection 162(4B) of the Act.
Subdivision 3—Remuneration of trustees—notices
8.12 Notices
This Subdivision is made for subsection 162(6A) of the Act and sets out the notices that the trustee is required to give to the bankrupt and creditors in relation to the trustee’s remuneration.
8.12A Initial remuneration notice
(1) The trustee must give the bankrupt and creditors notice of:
(a) the method by which the trustee seeks to be remunerated; and
(b) the rate of remuneration; and
(c) an estimate of the expected amount of the trustee’s remuneration.
(2) The notice must:
(a) include a brief explanation of the types of methods that could be used to calculate remuneration; and
(b) specify the method the trustee proposes to use to calculate remuneration; and
(c) explain why the method is appropriate.
(3) If the trustee proposes to charge on a time‑cost basis, the notice must include details about the respective rates at which the remuneration of the trustee and the other persons who will be assisting, or will be likely to assist, the trustee in the performance of his or her duties are to be calculated.
(4) The notice must be in writing and must be given to the bankrupt and creditors:
(a) in the case of a trustee of a personal insolvency agreement who was not the controlling trustee for a debtor under section 188 or 192 of the Act before the agreement for the debtor was executed—within 28 days after the day the agreement is executed as required by section 216 of the Act; and
(b) in any other case:
(i) within 28 days after the day the trustee receives the bankrupt’s statement of affairs; or
(ii) if the trustee does not receive the bankrupt’s statement of affairs within 60 days after the date of bankruptcy—within 7 days after the end of the 60 day period.
(5) This regulation does not apply to:
(a) a person who is the controlling trustee for a debtor under section 188 or 192 of the Act; or
(b) a trustee of a personal insolvency agreement who was the controlling trustee for a debtor under section 188 or 192 of the Act before the agreement for the debtor was executed.
8.12B Remuneration approval notice
(1) If the trustee proposes to have his or her remuneration fixed by creditors or the committee of inspection in accordance with subsection 162(1) of the Act, the trustee must give the creditors or the committee a notice that complies with this regulation.
(2) The notice must include the following information:
(a) a description of the work that the trustee has undertaken or will, or is likely to, undertake, including details of the particular tasks to be performed by the trustee and any person assisting the trustee;
(b) details of:
(i) the number of hours to be charged by the trustee and each person assisting the trustee; and
(ii) the hourly rate charged by the trustee and each person assisting the trustee; and
(iii) the proposed total remuneration for the work;
(c) a statement that the costs incurred, or to be incurred, are necessary and reasonable having regard to the value and complexity of the administration;
(d) a report on work that has been completed, that is in progress and that is still to be undertaken.
(3) The information in the notice must be sufficient to enable the creditors or the committee of inspection to be satisfied that the costs incurred, or to be incurred, are necessary and reasonable having regard to the value and complexity of the administration.
(4) The notice must be given:
(a) if the trustee proposes to have his or her remuneration fixed at a meeting of creditors—at the same time as the meeting of creditors is convened; or
(b) if the trustees proposes to have his or her remuneration fixed by putting a proposal to the creditors under section 64ZBA of the Act—at the same time as the notice under that section is given to the creditors.
(5) This regulation does not apply to:
(a) a person who is the controlling trustee for a debtor under section 188 or 192 of the Act; or
(b) a trustee of a personal insolvency agreement who was the controlling trustee for a debtor under section 188 or 192 of the Act before the agreement for the debtor was executed.
8.12C Remuneration claim notice
(1) Subject to subregulation (3), the trustee must give the bankrupt and the creditors a notice that complies with this regulation when the remuneration claimed by the trustee reaches the amount (the fixed amount):
(a) fixed by the creditors or the committee of inspection; or
(b) decided by the Inspector‑General; or
(c) if the trustee claims the statutory minimum or less under subsection 161B(1) of the Act—claimed by the trustee under that subsection.
(2) The notice must be given within 14 days after the fixed amount is reached.
(3) If the remuneration claimed does not reach the fixed amount, the trustee must give the creditors a notice that complies with this regulation:
(a) at the time the trustee declares a final dividend; or
(b) if the trustee determines that no final dividend will be declared—at the time the administration of the estate is finalised.
(4) A notice under subregulation (1) or (3) must include the following information:
(a) the total remuneration claimed;
(b) details of:
(i) the work performed for which remuneration is claimed; and
(ii) the names of the persons who performed the work; and
(iii) the number of hours charged by, or in relation to, each person for the work; and
(iv) the hourly rate charged by, or in relation to, each person for the work;
(c) an explanation of any variation from the amounts set out in any notice under regulation 8.12B in relation to:
(i) the remuneration claimed; and
(ii) the number of hours charged; and
(iii) the hourly rate charged; and
(iv) the persons performing the work.
(5) A notice under subregulation (1) or (3) must also include a statement advising the bankrupt and the creditors that they may, within 28 days after receiving the notice, request the Inspector‑General to review the amount of remuneration claimed by the trustee.
Note: Subdivision 4 deals with applications to the Inspector‑General to review decisions in relation to a trustee’s remuneration. Subdivision 6 sets out how reviews are undertaken.
Subdivision 4—Review of remuneration
8.12D Review of remuneration
This Subdivision is made for subsection 167(1) of the Act and provides for the Inspector‑General to review decisions about the trustee’s remuneration on application by a bankrupt or a creditor of the bankrupt.
8.12E Application for review—remuneration
(1) A bankrupt or a creditor of the bankrupt (the applicant) may apply to the Inspector‑General for a review of the amount of remuneration claimed by the trustee.
(2) The application must be in writing and must, subject to subregulation (3), be made within 28 days after the day the applicant receives notification under regulation 8.12C.
(3) The Inspector‑General may, before or after the end of the 28 days mentioned in subregulation (2), extend the period in which an application for review may be made if the Inspector‑General is satisfied that:
(a) the applicant and the trustee have been engaged in an alternative dispute resolution process to try to resolve the matter; or
(b) it is appropriate, in all the circumstances, to extend the period.
(4) The Inspector‑General may extend the period for any period the Inspector‑General considers appropriate in all the circumstances.
(5) The applicant may apply to the Administrative Appeals Tribunal for the review of a decision by the Inspector‑General under subregulation (3) to refuse to extend the period in which an application for review may be made.
(6) The trustee may apply to the Administrative Appeals Tribunal for the review of a decision by the Inspector‑General under subregulation (3) to extend the period in which an application for review may be made.
8.12F Application threshold
(1) The Inspector‑General must refuse to accept an application:
(a) unless the Inspector‑General is satisfied on reasonable grounds that 1 or more of the following apply:
(i) the trustee’s remuneration may have been fixed in a manner that is inconsistent with the requirements of the Act or these Regulations;
(ii) the trustee may have acted improperly, or without due care and diligence, in the administration of the estate; or
(b) if the Inspector‑General is satisfied on reasonable grounds that:
(i) the applicant does not have an interest in the outcome of the review; or
(ii) the applicant has not adequately particularised the issue giving rise to the review; or
(iii) the application is frivolous or vexatious.
(2) However, the Inspector‑General may accept an application if the Inspector‑General is satisfied that there are exceptional circumstances to justify the review.
(3) The Inspector‑General may refuse to accept an application if the Inspector‑General is satisfied on reasonable grounds that:
(a) it was appropriate in all the circumstances for the applicant to attempt to resolve the matter without seeking a review under this Subdivision; and
(b) the applicant did not do so; and
(c) the applicant did not provide a reasonable explanation for not doing so.
8.12G Notification of decision
(1) If the Inspector‑General refuses to accept the application, the Inspector‑General must give the applicant and the trustee written notice of the refusal.
(2) The notice must be given to the applicant and the trustee within 14 days after the day the Inspector‑General refuses the application and must include the reasons for the refusal.
Subdivision 5—Review of bill of costs
8.12H Review of bill of costs
This Subdivision is made for subsection 167(2) of the Act and provides for the Inspector‑General to review a bill of costs for services provided by a third party in relation to the administration of a bankrupt’s estate.
8.12I Application for review—third party bill of costs
(1) The trustee of the bankrupt’s estate may apply to the Inspector‑General to review a bill of costs for services provided by a third party in relation to the administration of the bankrupt’s estate.
(2) The application must be in writing.
(3) The application must, subject to subregulation (4), be made within 28 days after the trustee receives the bill of costs from the third party.
(4) The Inspector‑General may, before or after the end of the 28 days mentioned in subregulation (3), extend the period in which an application for review may be made if the Inspector‑General is satisfied that:
(a) the trustee and the third party have been engaged in an alternative dispute resolution process to try to resolve the matter; or
(b) it is appropriate, in all the circumstances, to extend the period.
(5) The Inspector‑General may extend the period for any period the Inspector‑General considers appropriate in all the circumstances.
(6) The trustee may apply to the Administrative Appeals Tribunal for review of a decision by the Inspector‑General under subregulation (4) to refuse to extend the period in which an application for review may be made.
(7) The third party may apply to the Administrative Appeals Tribunal for the review of a decision by the Inspector‑General under subregulation (4) to extend the period in which an application for review may be made.
Subdivision 6—Review by Inspector‑General
8.12J Review by Inspector‑General
(1) If the Inspector‑General accepts an application under regulation 8.12E or 8.12I, the Inspector‑General must conduct a review in accordance with this Subdivision.
(2) The Inspector‑General may:
(a) affirm the amount claimed by the trustee or the third party; or
(b) disallow all or part of the trustee’s claim for remuneration and substitute another amount for the amount claimed; or
(c) disallow all or part of the third party’s bill of costs and substitute another amount for the amount claimed; or
(d) dismiss the application.
8.12K How review to be conducted
(1) The Inspector‑General must conduct the review with as little formality and technicality, and with as much expedition, as the Act and these Regulations, and a proper consideration of the matter, permit.
(2) In conducting the review, the Inspector‑General:
(a) is not bound by legal technicalities, legal forms or rules of evidence; and
(b) may inform himself or herself on any matter relevant to the review in such manner as he or she thinks appropriate.
8.12L Powers of Inspector‑General
In conducting the review, the Inspector‑General may do any of the following:
(a) conduct the review:
(i) with the parties present; or
(ii) on the papers; or
(iii) in part with the parties present and in part on the papers;
(b) adjourn or discontinue the review if the Inspector‑General considers it necessary or appropriate to do so;
(c) engage an expert to assist in the review and arrange for payment to be made to the expert;
(d) direct the trustee to provide an itemised invoice in a form, and within the time, specified in the direction for work undertaken by the trustee;
(e) direct a third party to give an itemised bill of costs in a form, and within the time, specified in the direction in relation to work undertaken by the third party;
(f) interview any party to the review and allow the other party or their representative to question that party;
(g) direct a person to give a written statement, in a specified form and signed by the person, about a matter relevant to the review;
(h) direct the trustee to produce to the Inspector‑General or to a party to the review, all or part of the trustee’s files or documents in relation to the administration of the bankrupt’s estate;
(i) copy documents, or arrange for copies to be made and delivered to the Inspector‑General or a party to the review;
(j) direct a party seeking inspection, production or copies of documents to comply with conditions (including conditions relating to payment) in relation to the inspection, production or copying;
(k) proceed with the review in the absence of a party if the Inspector‑General considers it necessary or appropriate to do so;
(l) direct the trustee to take particular action for the administration of the estate, including refunding any remuneration not properly claimed or supported.
Note: This regulation does not exclude the need for the Inspector‑General to provide procedural fairness when conducting the review.
8.12M Non‑compliance with directions
(1) If a person to whom the Inspector‑General gives a direction under regulation 8.12L does not comply with the direction, the Inspector‑General may conduct the review on the basis of the information available to the Inspector‑General.
(2) If the trustee does not comply with a direction of the Inspector‑General under paragraph 8.12L(d), (h) or (l), the Inspector‑General may direct that the trustee is not entitled to the remuneration, or part of the remuneration, that is the subject of the review.
(3) If a third party does not comply with a direction of the Inspector‑General under paragraph 8.12L(e), the Inspector‑General may order that the trustee may declare and distribute a final dividend in the bankruptcy without regard to any claim of the third party.
(4) If the Inspector‑General makes an order under subregulation (3), the estate of the bankrupt has no liability to the third party for the bill of costs that is the subject of the review.
8.12N Decision of Inspector‑General
(1) The Inspector‑General must complete the review, and make a decision on the application, within 60 days after the day the Inspector‑General accepts the application for review.
(2) When the Inspector‑General makes his or her decision, the Inspector‑General must prepare a written statement that:
(a) sets out the decision of the Inspector‑General; and
(b) sets out the reasons for the decision; and
(c) sets out the findings on any material questions of fact; and
(d) refers to evidence or other material on which the findings of fact are based; and
(e) sets out the effect of subsection 167(6) of the Act in relation to the Inspector‑General’s decision.
(3) The Inspector‑General must give each party to the review a copy of the statement within 14 days after making the decision.
8.12O Repayments of excess
For subsection 167(4) of the Act, if the Inspector‑General is satisfied that a withdrawal by the trustee of funds from the estate of the bankrupt for payment of the trustee’s remuneration exceeds the amount of remuneration the trustee is entitled to under Division 2 of Part VIII of the Act, the Inspector‑General may require the trustee to repay the excess to the estate.
Division 5—Registered trustee ceasing to be trustee of an estate
8.13 Notice of removal of trustee of estate
(1) This regulation applies in relation to the removal of a registered trustee if:
(a) the Court removes the trustee, under subsection 156A(5) or 179(1) of the Act, from the office of trustee of an estate; or
(b) the creditors remove the trustee, under section 181 of the Act, from that office.
(2) In the event of such a removal, the person specified in paragraph (3)(a) or (b) (as the case requires) must give notice in writing to the Official Receiver, in accordance with the applicable paragraph, stating the name of the registered trustee, the fact and the date of the removal and whether the removal was by the Court or the creditors.
(3) The notice must be given:
(a) where paragraph (1)(a) applies—by the applicant to the Court for the removal, as soon as practicable after the making of the order for removal; or
(b) where paragraph (1)(b) applies—by the new trustee of the estate appointed by the creditors under section 181 of the Act, as soon as practicable after the appointment.
(4) An offence against this regulation is an offence of strict liability.
Penalty: 1 penalty unit.
Note: For strict liability, see section 6.1 of the Criminal Code.
8.14 Notice of finalisation of administration; entry on the Index
(1) A registered trustee must, within 7 days of finalising the administration of an estate, give notice in writing of the finalisation to the Official Receiver.
Penalty: 1 penalty unit
(2) The Official Receiver must promptly enter on the Index the fact that the administration of an estate has been finalised, where:
(a) the Official Receiver receives notice under subregulation (1); or
(b) the estate was administered by the Official Trustee.
(3) An offence against subregulation (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
Division 6—Variation and termination of registration
Subdivision 1—Preliminary
8.15 Definitions
In this Division, unless the contrary intention appears:
application means an application under subsection 155E(1) of the Act.
chairperson means the chairperson of a committee.
committee means a committee convened under subsection 155E(4) or 155H(2) of the Act.
member, in relation to a committee, includes the chairperson.
8.16 Documents to accompany application for change or removal of conditions
For paragraph 155E(3)(a) of the Act, an application must be accompanied by 2 references signed by the respective referees, containing the particulars specified in subregulation 8.01(3).
Subdivision 2—Constitution and procedure of committees generally
8.17 Chairperson of a committee
The chairperson of a committee is:
(a) the Inspector‑General; or
(b) if the Inspector‑General appoints another member of the committee as chairperson—that person.
8.18 Trustee chosen by the Insolvency Practitioners Association of Australia
A registered trustee chosen by the Insolvency Practitioners Association of Australia under paragraph 155E(5)(c) or 155H(3)(c) of the Act must have practised as a registered trustee for at least 5 years.
8.19 Resignation of chairperson
(1) A chairperson other than the Inspector‑General may resign the office of chairperson by notice in writing signed by the chairperson and given to the Inspector‑General.
(2) A notice of resignation takes effect when the Inspector‑General receives it.
8.20 Resignation of members
(1) A member of a committee, other than the Inspector‑General, may resign from the committee by notice in writing signed by the member and given to the Inspector‑General.
(2) A notice of resignation takes effect when the Inspector‑General receives it.
8.21 Disclosure of interests
If:
(a) a member of a committee convened under subsection 155E(4) of the Act:
(i) is a close relative of the applicant; or
(ii) has a financial or personal relationship with the applicant; or
(b) a member of a committee convened under subsection 155H(2) of the Act:
(i) is a close relative of the trustee concerned; or
(ii) has a financial or personal relationship with the trustee;
the member must, as soon as practicable after becoming aware of the identity of the applicant or trustee, disclose the nature of the relationship to the other members of the committee and to the Inspector‑General.
8.22 Removal of members from a committee
(1) The Inspector‑General may terminate the appointment of a member of a committee if:
(a) the member becomes physically or mentally incapable of performing the duties of a member; or
(b) the member becomes a bankrupt; or
(c) the member signs an authority under section 188 of the Act that is effective for the purposes of Part X of the Act; or
(d) the member becomes a party, as a debtor, to a debt agreement; or
(e) the member has been convicted of an offence involving fraud or dishonesty; or
(f) the member neglects his or her duty as a member.
(2) The Inspector‑General may terminate the appointment of a member of a committee convened under subsection 155E(4) or 155H(2) of the Act if:
(a) the member:
(i) is a close relative of the applicant, or trustee, concerned; or
(ii) has a financial or personal relationship with the applicant or trustee; and
(b) the Inspector‑General believes that relationship may affect the impartiality of the member.
8.23 Convening of a replacement committee
(1) This regulation applies if:
(a) either of the following events occurs:
(i) a member of a committee resigns or dies;
(ii) the appointment of a member of a committee is terminated under regulation 8.22; and
(b) at the time of that occurrence, the committee has not made a decision under subsection 155F(1) or 155I(1) of the Act.
(2) If this regulation applies:
(a) the Inspector‑General must convene another committee (the new committee) in place of the committee referred to in subregulation (1) (the previous committee); and
(b) the new committee must not have regard to any proceedings of the previous committee.
8.24 General procedures of a committee
(1) Subject to the Act and this Division, a committee may determine its procedure.
(2) A committee must observe natural justice.
(3) A committee is not bound by any rules of evidence but may inform itself on any matter as it sees fit.
(4) A committee must keep a written record of its decisions.
8.25 Procedure at committee meetings
(1) Subject to this regulation, all members of a committee must be present in order to constitute a quorum for a meeting of the committee.
(2) At a meeting of a committee a matter is to be decided by a majority of the votes of the members.
(3) Any member may participate in a meeting by telephone.
(4) A member who participates in a meeting by telephone is taken to be present at the meeting.
(5) A committee may keep minutes of proceedings at its meetings.
8.26 Resolutions without meeting
(1) If the majority of the members of a committee sign a document containing a statement that they are in favour of a resolution in the terms set out in the document, the resolution is taken to have been passed at a meeting of the committee:
(a) on the day on which the document is signed; or
(b) if the members sign the document on different days—on the day on which the document is signed by the member who makes up the majority.
(2) Two or more separate documents that are identical in all material respects (apart from signatures), each of which is signed by 1 or more members, are taken for the purposes of subregulation (1) to constitute a single document.
Subdivision 3—Inquiries and interviews
8.27 Inquiries by the committee
(1) A committee considering an application may make inquiries of any person for the purposes of making a decision under subsection 155F(1) or 155I(1) of the Act.
(2) Inquiries made must be:
(a) inquiries that are reasonable for the purpose of making an informed decision; or
(b) inquiries that the Chairperson of the committee believes are appropriate in order for the committee to have sufficient information to make the decision.
(3) Before making a decision that is adverse to a person, a committee must:
(a) inform the person of any information or material that the committee relies on, or proposes to rely on, in making the decision; and
(b) give the person a reasonable opportunity to reply to, or rebut, the information or material.
8.28 Notice of interview (Act s 155E(6))
For subsection 155E (6) of the Act, the Inspector‑General or authorised employee on the committee must, after consultation with the other members of the committee:
(a) fix a date, time and place for the interview; and
(b) give written notice of that date, time and place to the applicant and the other members of the committee.
8.29 Change of conditions on practising as a registered trustee—interview
(1) A committee must interview the applicant as soon as practicable and, for that purpose:
(a) any member of the committee may participate in the interview by telephone; and
(b) the applicant may participate in the interview by telephone.
(2) A member, or applicant, who participates in an interview in accordance with paragraph (1)(a) or (b) is taken to be present at the interview.
(3) If the applicant fails to attend, or participate by telephone in, the interview and does not, within 7 days, give the committee a reasonable excuse for that failure:
(a) the application is taken to have lapsed; and
(b) the application fee is not refundable.
(4) If an applicant who fails to attend, or participate by telephone in, an interview gives the committee, within 7 days, a reasonable excuse for that failure, the committee must arrange another interview date, time and place.
(5) At an interview, the committee may ask the applicant any question that the committee reasonably believes to be related to:
(a) the application; or
(b) a reference accompanying the application; or
(c) the issue of whether the applicant has the qualifications, experience, knowledge and abilities to perform the functions of a registered trustee.
(6) A committee must not interview an applicant until:
(a) the Inspector‑General has received the references, in relation to the application, mentioned in regulation 8.16; and
(b) any charge imposed by an Act for making the application has been paid.
8.30 Involuntary termination of registration—interview
(1) If the Inspector‑General is required under subsection 155H(2) of the Act to convene a committee to consider whether a trustee should continue to be registered, the Inspector‑General or authorised employee on the committee must, after consultation with the other members of the committee:
(a) fix a date, time and place for the interview; and
(b) give written notice of that date, time and place to the trustee and the other members of the committee.
(2) The committee must interview the trustee as soon as practicable and, for that purpose:
(a) any member of the committee may participate in the interview by telephone; and
(b) the trustee may participate in the interview by telephone.
(3) A member, or trustee, who participates in an interview in accordance with paragraph (1)(a) or (b) is taken to be present at the interview.
(4) If the trustee fails to attend, or participate by telephone in, the interview and does not, within 7 days, give the committee a reasonable excuse for that failure, the committee may proceed with its consideration of the matter.
(5) If an trustee who fails to attend, or participate by telephone in, an interview gives the committee, within 7 days, a reasonable excuse for that failure, the committee must arrange another interview date, time and place.
8.31 Report of committee decision
(1) A report under subsection 155F(2) or 155I(4) of the Act must:
(a) be in writing; and
(b) be signed by each member of the committee; and
(c) in the case of a majority decision—set out the reasons of the minority member.
(2) The report must be given to the applicant or trustee, and to the Inspector‑General, within 14 days of the committee making its decision.
Subdivision 4—Other committee‑related matters
8.32 Confidentiality
A committee must take all reasonable measures to protect from unauthorised use or disclosure information given to it in confidence in, or in connection with, the performance of its functions or the exercise of its powers under the Act or these Regulations.
8.33 Evidence of proceedings at committee meetings
In any proceedings, a copy of the minutes of proceedings at a committee meeting, signed by the Chairperson of the committee:
(a) is evidence of the proceedings as recorded in the minutes; and
(b) may be tendered in evidence without further proof.
8.34 Time for deciding matters (Act s 155I(1))
A committee must decide a matter under subsection 155I(1) of the Act within 60 days of being convened.
Subdivision 4A—Standards for trustees
8.34A Performance standards for trustees (including controlling trustees)
(1) For subsection 155H(5) of the Act, the standards applicable to the exercise of powers, or the carrying out of duties, of registered trustees are set out in Schedule 4A.
(2) For subsection 188(2A) of the Act, the standards in Parts 1, 2 and 5 of Schedule 4A also apply to a solicitor who is a controlling trustee.
Subdivision 5—Controlling trustees other than Official Trustee or registered trustees
8.35 Eligibility of controlling trustees, other than Official Trustee or registered trustees
(1) For subsection 188(2A) of the Act, a person (other than the Official Trustee or a registered trustee) is not eligible to act as a controlling trustee if the person:
(a) is convicted of a criminal offence involving fraud or dishonesty, or was so convicted within the 10 years before the proposed authorisation; or
(b) is not insured against the liabilities the trustee may become subject to as a controlling trustee; or
(c) is a solicitor who no longer holds a practising certificate; or
(d) is an undischarged bankrupt or insolvent under administration, or became a party (as debtor) to a debt agreement or a Part X administration within the 10 years before the proposed authorisation; or
(e) is a person who the Inspector‑General decides under subregulation (2) has failed to properly exercise powers or carry out duties or to cooperate with an inquiry or investigation, or in relation to whom such a decision was made within the 3 years before the proposed authorisation; or
(f) either:
(i) is not a full member of the Insolvency Practitioners Association of Australia; or
(ii) has not satisfactorily completed a course in insolvency approved by the Inspector‑General.
(1A) The Inspector‑General may approve a course in insolvency by notice published on the Insolvency and Trustee Service Australia’s website.
Note: Paper copies of the notice are available from the Insolvency and Trustee Service Australia on request.
(2) In addition to subregulation (1), a person who is, or has been, a controlling trustee is not eligible to act as a controlling trustee if the Inspector‑General determines that the person:
(a) has failed to properly exercise the powers, or carry out the duties, of a controlling trustee, including meeting a standard applicable to a controlling trustee set out in Schedule 4A; or
(b) has refused, or failed to cooperate with the Inspector‑ General in an inquiry or investigation under paragraph 12(1)(b) of the Act.
(3) If the Inspector‑General forms an opinion of the kind mentioned in paragraph (2)(a) or (b), the Inspector‑General must:
(a) by written notice, tell the person; and
(b) invite the person to respond within 28 days or such longer time as is specified in the notice.
(4) After the expiry of the time mentioned in paragraph (3)(b), the Inspector‑General may, having regard to the response (if any) of the person, make a determination under subregulation (2).
(5) If the Inspector‑General makes a determination under subregulation (2), the Inspector‑General must give the person a written notice of the determination, setting out the reasons.
8.36 Review by Tribunal of determination under subregulation 8.35(2)
Application may be made to the Administrative Appeals Tribunal for a review of a determination of the Inspector‑ General under subregulation 8.35(2).
8.37 Official Trustee to perform duties
If a controlling trustee becomes ineligible to act as a controlling trustee then, unless and until the debtor appoints a controlling trustee who is eligible to so act, the Official Trustee must perform the duties of the controlling trustee.
Part 9—Debt agreements
9.01 Prescribed information to be supplied to the debtor
(1) For paragraph 185C(2D)(b) and subsection 185E(1) of the Act, the following information is prescribed:
(a) information about alternatives to entering into a debt agreement;
(b) information about the consequences of making a debt agreement proposal;
(c) information about sources of financial advice and guidance to persons facing or contemplating entering into a debt agreement;
(d) a statement that it is an act of bankruptcy for a debtor to give to the Official Receiver a debt agreement proposal.
(2) The information must be factual and objective.
(3) The Official Receiver must not accept a debtor’s debt agreement proposal under Division 2 of Part IX of the Act, unless the debtor has given to the Official Receiver a signed acknowledgment that the debtor has received and read the prescribed information.
(4) If the debtor presents a debt agreement proposal without having given the acknowledgement, the Official Receiver must:
(a) if the debtor presents the debt agreement proposal in person—give the prescribed information to the debtor; or
(b) if the debtor presents the debt agreement proposal by post—post the prescribed information to the debtor.
(5) Subregulation (6) applies if a debtor intends to present a debt agreement proposal and the debtor is:
(a) unable to read the relevant material, because he or she is:
(i) blind, partially sighted, illiterate or partially literate; or
(ii) insufficiently familiar with the English language; or
(b) unable to sign the debt agreement proposal or the acknowledgment, because of a physical incapacity.
(6) The debt agreement proposal and the acknowledgement may be signed by another person, who must sign a statement:
(a) if subparagraph (5)(a)(i) applies—that he or she has read the relevant material to the debtor; or
(b) if subparagraph (5)(a)(ii) applies—that he or she has interpreted the relevant material to the debtor in a language with which both persons are familiar; or
(c) if paragraph (5)(b) applies—that he or she believes that the debtor has read and understood the relevant material.
(7) In this regulation:
relevant material means the debt agreement proposal, the prescribed information and the acknowledgment.
9.02 Qualifications of applicants
For paragraph 186C(2)(e) of the Act, the following qualifications are prescribed after 30 June 2009:
(a) a Certificate IV in Financial Services (Accounting) from an Australian college of advanced education;
(b) a degree, diploma or similar qualification from an Australian university, college of advanced education or other Australian tertiary institution that is of an equivalent or higher level to, and contains the same or similar subject matter as, the qualification mentioned in paragraph (a).
Part 10—Personal insolvency agreements
10.01 Modifications of Part X of the Act—joint debtors
For section 187A of the Act, a provision of Part X of the Act specified in Part 1 of Schedule 6 is modified in accordance with that Part in relation to its application, in accordance with that section, to joint debtors, whether partners or not.
10.02 Information to be given to debtor (Act ss 188(2AA) and (2AB))
(1) For subsections 188(2AA) and (2AB) of the Act, the following information is prescribed:
(a) information about the consequences of entering into a personal insolvency agreement;
(b) information about sources of financial advice and guidance to persons facing or contemplating entering into a personal insolvency agreement;
(c) information about whether a personal insolvency agreement may be administered by a registered trustee or the Official Trustee;
(d) a statement that it is an act of bankruptcy if a debtor does any of the things mentioned in paragraphs 40(1)(i) to (m) of the Act;
(e) information about the processes under Part X of the Act;
(f) information about a debtor’s rights and responsibilities under Part X of the Act, including a debtor’s obligation to disclose all related entities;
(g) information about a controlling trustee’s obligation to disclose his or her relationship with a debtor.
(2) The information must be factual and objective.
(3) A person authorised under subsection 188(1) of the Act to take control of a debtor’s property must not consent to exercise the powers given by the authority unless the debtor has given the person a signed acknowledgement (which may be included with or appended to the authority) that the debtor has received and read the prescribed information.
(4) Subregulation (5) applies if a debtor intends to sign an authority and the debtor is:
(a) unable to read the relevant material, because he or she is:
(i) blind, partially sighted, illiterate or partially literate; or
(ii) insufficiently familiar with the English language; or
(b) unable to sign the authority or the acknowledgment, because of a physical incapacity.
(5) The authority and the acknowledgement may be signed by another person, who must sign a statement:
(a) if subparagraph (5)(a)(i) applies—that he or she has read the relevant material to the debtor; or
(b) if subparagraph (5)(a)(ii) applies—that he or she has interpreted the relevant material to the debtor in a language with which both persons are familiar; or
(c) if paragraph (5)(b) applies—that he or she believes that the debtor has read and understood the relevant material.
(6) In this regulation:
relevant material means the authority, the prescribed information and the acknowledgment.
10.03 Documents under section 188 of Act
(1) A registered trustee or solicitor who consents to exercise the powers given by an authority under section 188 of the Act must sign a consent in accordance with the approved form.
(2) The registered trustee or solicitor must, within 2 business days after consenting, give a copy of the signed consent to an Official Receiver.
(3) The registered trustee or solicitor must, within 2 business days after a proposal for dealing with the debtor’s affairs under Part X of the Act is finalised, give a copy of the proposal to:
(a) an Official Receiver; and
(b) each creditor of the bankrupt of whom the registered trustee or solicitor is aware.
Note: Under subsection 188(5) of the Act, a registered trustee or solicitor who consents to exercise the powers given by an authority must also give a copy of the authority and the debtor’s statement of affairs to an Official Receiver.
10.04 Documents for meeting called under an authority under section 188 of the Act
At least 10 days before the first meeting of creditors called under an authority under section 188 of the Act is held, the controlling trustee must give an Official Receiver, the debtor and each creditor:
(a) notice in writing of the date, time and place of the meeting; and
(b) a copy of the controlling trustee’s report, prepared in accordance with subsection 189A(1) of the Act, in relation to the debtor’s affairs; and
(c) a copy of the controlling trustee’s statement, prepared in accordance with subsection 189B(1) of the Act, in relation to special resolutions expected to be passed at the meeting; and
(d) a notice that includes the basis and the method on which the controlling trustee seeks to be remunerated, and, if appropriate, an estimate of the expected level of the controlling trustee’s remuneration; and
(e) if the controlling trustee claims remuneration calculated by reference to an hourly rate—a notice stating:
(i) the type of work undertaken by the trustee and the trustee’s staff; and
(ii) the number of hours charged by each person; and
(iii) the hourly rate charged for each person; and
(iv) the total remuneration claimed.
Note: Section 194 of the Act sets out the time for when a meeting that is to be called under an authority under section 188 of the Act must be held.
10.05 Modifications of Division 5 of Part IV of the Act—meetings called under authorities under section 188 of the Act
For section 196 of the Act, a provision of Division 5 of Part IV of the Act specified in Part 2 of Schedule 6 is modified in accordance with that Part in relation to its application, in accordance with that section, to a meeting called under an authority under section 188 of the Act.
10.06 Controlling trustee to give Official Receiver copy of special resolution and certain particulars for the Index
(1) If, at a meeting called under an authority under section 188 of the Act, a special resolution is passed under subsection 204(1) of the Act, the controlling trustee must give to the Official Receiver, within 7 days after the date when the resolution is passed:
(a) a copy of the resolution; and
(b) written notice specifying the following particulars for entry in the Index:
(i) the date of the resolution;
(ii) in respect of the debtor:
(A) the debtor’s full name, and any alias;
(B) the debtor’s address;
(C) the debtor’s occupation (if any);
(iii) if the resolution requires the debtor to execute a personal insolvency agreement—the name of each person nominated under subsection 204(3) of the Act to be a trustee of the agreement.
Penalty: 1 penalty unit.
(2) An offence against subregulation (1) is an offence of strict liability.
10.07 Modifications of Part VIII of the Act—controlling trustees and trustees of personal insolvency agreements
For section 210 of the Act, a provision of Part VIII of the Act specified in Part 3 of Schedule 6 is modified in accordance with that Part in relation to its application, in accordance with that section, to the controlling trustee in relation to a debtor.
10.08 Modifications of Division 1 of Part V of the Act—debtors whose property is subject to control under Division 2 of Part X of the Act
For subsection 211(1) of the Act, a provision in Division 1 of Part V of the Act specified in Part 4 of Schedule 6 is modified in accordance with that Part in relation to its application, in accordance with that subsection, to a debtor whose property is subject to control under Division 2 of Part X of the Act.
10.09 Meeting if trustee does not execute personal insolvency agreement
(1) A meeting of creditors under subsection 217(1) of the Act must be called in accordance with a written notice of the meeting that was given at least 7 days before the meeting to each of the following persons (other than the person giving the notice):
(a) the debtor;
(b) the trustee required to execute the personal insolvency agreement;
(c) each creditor whose identity and address are known to, or can reasonably be discovered by, the person giving the notice.
(2) A notice under subregulation (1) must set out the terms of any resolution proposed under subsection 217(1) of the Act that is known to the person giving the notice.
10.10 Notification of personal insolvency agreement
A notification under paragraph 218(1)(a) of the Act must be in writing.
Note: Regulation 16.01 applies to a notification under paragraph 218(1)(a) of the Act.
10.11 Sequestration order, or order terminating or setting aside a personal insolvency agreement—notice to Official Receiver (Act s 221, s 222 and s 222C)
(1) This regulation does not apply in relation to an applicant who is the Official Trustee, the Inspector‑General or a person authorised by the Inspector‑General under subsection 222(1) or (5) of the Act.
(2) If the Court makes a sequestration order under subsection 221(1), 222(10) or 222C(5) of the Act, the applicant for the order must give a copy of the order to the Official Receiver.
(3) If the Court makes an order:
(a) under subsection 222(1), (2) or (5) of the Act, setting aside a personal insolvency agreement; or
(b) under subsection 222C(1) of the Act, terminating a personal insolvency agreement;
the applicant for the order must give a copy of the order to the Official Receiver.
(4) A copy of an order required by this regulation to be given to the Official Receiver must be given within 2 days after the order is made.
Penalty: 1 penalty unit.
(5) An offence against subregulation (4) is an offence of strict liability.
10.12 Termination of personal insolvency agreement by trustee (Act s 222A)
(1) If a personal insolvency agreement is terminated in accordance with section 222A of the Act, the trustee of the agreement must immediately give written notice of the termination to the Official Receiver.
Penalty: 1 penalty unit.
(2) An offence against subregulation (1) is an offence of strict liability.
10.13 Modifications of Parts V and VI of the Act—personal insolvency agreements
(1) For subsection 231(1) of the Act, the provision specified in Part 5 of Schedule 6 is modified in accordance with that Part in relation to its application, in accordance with that subsection, to a debtor who has executed a personal insolvency agreement.
(2) For subsection 231(3) of the Act, a provision specified in Part 6 of Schedule 6 is modified in accordance with that Part in relation to its application, in accordance with that subsection, to a personal insolvency agreement.
(3) For subsection 231(5) of the Act, the provision specified in Part 7 of Schedule 6 is modified in accordance with that Part in relation to its application, in accordance with that subsection, to a trustee of a personal insolvency agreement.
10.14 Certificate relating to realisation of divisible property and non‑availability of dividend
(1) If the trustee of a personal insolvency agreement is satisfied that the divisible property of the debtor has, so far as practicable, been realised and no dividend is payable to the creditors, the trustee must, on written request by the debtor, give the debtor a certificate signed by the trustee to that effect.
(2) The trustee must give the certificate to the debtor within 7 days of receiving the written request.
(3) In any proceeding, a certificate signed by the trustee under subregulation (1):
(a) is evidence of the facts stated in it; and
(b) may be tendered in evidence without further proof.
(4) If the trustee gives a certificate to the debtor under subsection 232(1) of the Act or subregulation (1), the trustee must, within 7 days of giving the certificate, give a copy of the certificate to the Official Receiver.
Penalty: 1 penalty unit.
(5) An offence against subregulation (4) is an offence of strict liability.
Part 11—Administration of estates of deceased persons in bankruptcy
11.01 Statement of affairs and of administration of estate
A statement under paragraph 246(1)(a) or subsection 247(1) of the Act must state, so far as applicable, the following particulars:
(a) in relation to the capital account of the deceased person’s estate:
(i) particulars of each amount received, including the name of the payer, the date received and the bank account into which the amount was paid; and
(ii) particulars of each amount paid, including the name of the payee, the date of payment and the bank account from which the amount was drawn;
(b) in relation to each of the assets of the deceased person transferred to beneficiaries—the particulars of the asset, the date of transfer and the name and address of the relevant beneficiary;
(c) in relation to the income account of the deceased person:
(i) particulars of each amount received, including the name of the payer, the date received and the bank account into which the amount was paid; and
(ii) particulars of each amount paid, including the name of the payee, the date of payment and the bank account from which the amount was drawn;
(d) in relation to each of the unsecured debts owed by the deceased person:
(i) the name and address of the creditor and the amount (if any) owed by the creditor to the deceased person; and
(ii) the amount of the debt; and
(iii) the year when the debt was contracted; and
(iv) the nature of the debt;
(e) in relation to each of the secured debts owed by the deceased person:
(i) the name and address of the creditor and the amount (if any) owed by the creditor to the deceased person; and
(ii) the amount of the debt and particulars of the security relating to it; and
(iii) the date when the security was given; and
(iv) the estimated present value of the security; and
(v) the estimated deficiency or surplus if the security were to be realised;
(f) in relation to each of current hire purchase, credit purchase, lease purchase or similar agreements:
(i) the name and address of the finance company; and
(ii) the date of the agreement; and
(iii) particulars of the goods to which the agreement relates; and
(iv) any arrears of payment under the agreement; and
(v) the amount required to complete the agreement; and
(vi) the present value of the goods and the estimated deficiency or surplus if the goods were to be realised;
(g) in relation to any other assets and liabilities, including contingent assets and liabilities, of the deceased person’s estate—particulars of each asset and liability, including its present value.
11.01A Copy of petition etc to be given to Official Receiver
(1) A person who presents a petition under section 244 or 247 of the Act must, within 2 business days after the petition is endorsed by the Court, give a copy of the petition to the Official Receiver.
(2) The time within which, under subsection 244(14) of the Act, a creditor must give to the Official Receiver a copy of an order under subsection 244(11) of the Act is 2 business days after the order is endorsed by the Court.
11.01B Proof of statement of affairs
(1) Subregulation (2) applies in any proceedings to a document or copy of a document that purports to be a certificate signed by the Inspector‑General stating that, at a particular point in time, the form of statement of affairs that is attached to the certificate was the approved form for section 6A of the Act.
(2) The document or copy:
(a) is proof, in the absence of evidence to the contrary, of information that is stated in it; and
(b) may be tendered in evidence without further proof.
11.02 Modifications of the Act—administration of estates of deceased persons
For the purposes of subsections 248(1) and (3) of the Act, the provisions specified in Schedule 7 are modified in accordance with that Schedule in relation to proceedings under Part XI of the Act and the administration of estates under that Part.
Part 12—Unclaimed dividends or moneys
12.01 Statement where moneys are paid to the Commonwealth
(1) Where a trustee pays moneys, under subsection 254(2) of the Act, to the Commonwealth, he or she must, at the time of payment, give to the officer to whom the moneys are paid a statement setting out the name and address of:
(a) the trustee; and
(b) the relevant bankrupt, debtor or (subject to subregulation (2)) deceased person, as the case requires; and
(c) each person who, so far as the trustee is aware, is entitled to the moneys or any part of the moneys.
(2) For the purposes of paragraph (1)(b), where the relevant person is a deceased person, the address to be stated is that person’s address at the date of his or her death.
(3) Where the Official Trustee or Official Receiver, or a registered trustee, pays moneys, under subsection 254(2A) of the Act, to the Commonwealth, that person must, at the time of payment give to the officer to whom the moneys are paid a statement setting out the name and address of:
(a) the trustee; and
(b) each person who, so far as the Official Trustee, Official Receiver or registered trustee is aware, is entitled to the moneys or any part of the moneys.
(4) A registered trustee who gives a statement to an officer in accordance with subregulation (1) or (3) must, within 7 days, give a copy of the statement to the Official Receiver.
(5) An offence against subregulation (4) is an offence of strict liability.
Penalty: 1 penalty unit.
Note: For strict liability, see section 6.1 of the Criminal Code.
Part 13—National Personal Insolvency Index
Division 1—Preliminary
13.01 Interpretation
In this Part:
BIOS means the electronic database, known as the Bankruptcy Index Online System, maintained before the commencement date by Registrars in Bankruptcy.
13.02 Establishment and maintenance of the National Personal Insolvency Index
(1) For the purposes of the definition of National Personal Insolvency Index in subsection 5(1) of the Act, there is established an electronic index to be known as the National Personal Insolvency Index.
(2) The Inspector‑General has responsibility for the operation of the Index.
(3) Each Official Receiver is to maintain the Index on behalf of the Inspector‑General.
Division 2—Information to be entered on the Index
13.03 What information is to be entered on the Index?
(1) Subject to this regulation, the following information is to be entered on the Index:
(a) in respect of each creditor’s petition, bankruptcy, debt agreement under Part IX of the Act, personal insolvency agreement, administration under Part XI of the Act or order under section 253E of the Act, occurring or made on or after the commencement date—information of the kind specified in Schedule 8, to the extent applicable;
(b) the information on BIOS in respect of bankruptcies (including completed bankruptcies);
(c) in respect of each registered trustee or controlling trustee (other than the Official Trustee):
(i) the trustee’s full name, and any alias;
(ii) the trustee’s business address (including, where applicable, the postal address) and telephone number;
(iii) a statement or summary of any conditions applying to the person’s entitlement to practise as a registered trustee;
(iv) the date on which details in respect of the trustee are entered on the Index;
(v) the date (if any) of termination of the trustee’s registration as a trustee;
(d) in respect of each applicant for registration as a trustee:
(i) the applicant’s full name, and any alias;
(ii) the applicant’s business address (or, if none, his or her residential address);
(iii) the applicant’s occupation;
(iv) the date on which details in respect of the applicant are entered on the Index;
(e) in respect of each debtor specified in subregulation (3):
(i) the debtor’s full name, and any alias;
(ii) the debtor’s address;
(iii) the debtor’s occupation (if any);
(iv) the date on which details in respect of the debtor are entered on the Index;
(f) information that, under these Regulations, the Official Receiver:
(i) receives for entry on the Index; or
(ii) is required to enter on the Index;
(g) information concerning a creditor’s petition (including details of any orders made in relation to the petition, or the withdrawal of the petition).
(1A) In relation to a matter mentioned in paragraph (1)(a), a document described in an item in Schedule 8 must be given to the Official Receiver by the person mentioned in column 4 of the item within the period mentioned in column 5 of the item.
(1B) Item 13 of Schedule 8 applies in relation only to a bankruptcy dated 4 May 2003 or earlier.
(2) Paragraph (1)(a) is taken to apply also to bankruptcies that:
(a) occurred before the commencement date; and
(b) were not completed before the commencement date.
(3) For the purposes of paragraph (1)(e), the following debtors are specified:
(a) a debtor whose property is subject, by reason of a direction of the Court under paragraph 50(1)(a) of the Act, to the control of the Official Trustee or a registered trustee;
(b) a debtor who signed an authority under subsection 188(1) of the Act;
(c) subject to subregulation (5), in the case of a deceased debtor—where a petition for an order for the administration of the debtor’s estate has been presented under Part XI of the Act;
(d) a debtor who has applied to the Court under subsection 253E(1) of the Act for an order staying all or any proceedings under a petition.
(4) In the application of paragraph (3)(c) (concerning certain deceased debtors) to paragraph (1)(e), the information to be entered is the information that applied in respect of the debtor immediately before his or her death.
(5) Subregulation (1) applies subject to:
(a) any decision of the Inspector‑General under paragraph 13.04(3)(a); and
(b) any order or direction of the Administrative Appeals Tribunal on an application under regulation 13.05.
(6) If an entry on the Index contains information that is, in the opinion of the Official Receiver, in any particular:
(a) contrary to, or inconsistent with, a decision, order or direction of a kind mentioned in subregulation (5); or
(b) out of date, inaccurate or misleading;
the Official Receiver must correct the entry without delay.
13.04 Application for certain information not to be on the Index
(1) Subject to subregulation (4), a person who is a debtor or bankrupt may apply in writing to the Inspector‑General for information in respect of the person:
(a) not to be entered on the Index, on the ground that the entry of the information would jeopardise, or be likely to jeopardise, the person’s safety; or
(b) on the Index to be removed on the ground that:
(i) its inclusion jeopardises, or is likely to jeopardise, the person’s safety; or
(ii) it is inaccurate or misleading; or
(c) on the Index to be corrected on the ground that it is inaccurate or misleading.
Note: Under subregulation (4), an application cannot be made for the removal of information in respect of a person’s name or date of birth.
(2) The application must specify the ground relied and contain, or have with it, full particulars in support of the ground.
Example: A person may rely on a court order (such as a domestic violence order) to show that publication of the information in question would jeopardise, or be likely to jeopardise, the person’s safety.
(3) The Inspector‑General must, without delay:
(a) decide an application; and
(b) give notice in writing to the applicant of:
(i) the decision and the reasons for it; and
(ii) the applicant’s right, if aggrieved by the decision, to apply under regulation 13.05 to the Administrative Appeals Tribunal for review of the decision.
(4) An application or a decision must not be made under this regulation to remove from the Index any of the following items of information in respect of a person:
(a) the person’s name;
(b) the person’s date of birth.
13.05 Application to the AAT
A person who made an application under subregulation 13.04(1) and who is aggrieved by a decision under paragraph 13.04(3) (a) in respect of the application may apply to the Administrative Appeals Tribunal for review of the decision.
Division 2A—Removal of information from the Index
13.05A Removal of information relating to debt agreement from the Index
(1) If a debt agreement ends under section 185N of the Act, the Official Receiver must remove information relating to the debt agreement from the Index within 1 month after the later of the following days:
(a) 5 years after the day on which the debt agreement was made;
(b) the day on which the debt agreement ends.
(2) If a debt agreement is terminated under section 185P, 185Q, 185QA or 185R of the Act, the Official Receiver must remove information relating to the debt agreement from the Index within 1 month after the later of the following days:
(a) 5 years after the day on which the debt agreement was made;
(b) 2 years after the day on which the debt agreement is terminated.
(3) If an order is made under section 185U of the Act declaring all of a debt agreement void, the Official Receiver must remove information relating to the debt agreement from the Index within 1 month after the later of the following days:
(a) 5 years after the day on which the debt agreement was made;
(b) 2 years after the day on which the order is made.
13.05B Removal of information relating to debt agreement proposal from the Index
The Official Receiver must remove information relating to a debt agreement proposal from the Index within 1 year after the day on which any of the following occurs:
(a) the proposal is withdrawn;
(b) the proposal is not accepted under section 185EC of the Act;
(c) the acceptance of the proposal for processing is cancelled under section 185ED of the Act;
(d) the proposal lapses under section 185G of the Act.
Division 3—Miscellaneous
13.06 Inspection of the Index
(1) A person may, by application in writing, ask an Official Receiver to inspect material in the Index and give an extract of material specified in the application.
(2) On receipt of an application, the Official Receiver:
(a) if the fee determined under the Fees and Remuneration Determination is paid—must inspect the Index and, within 14 days of receiving the application:
(i) give the requested extract to the applicant; or
(ii) tell the applicant, in writing, that the requested extract is not entered in the Index; or
(b) may give the applicant a list of Index search agents who may be able to inspect material entered in the Index for the applicant.
(3) A person who has been granted access to the Index by the Inspector‑General may, after paying the fee determined under the Fees and Remuneration Determination:
(a) inspect material entered in the Index; or
(b) obtain an extract of material entered in the Index.
Example: For paragraph (b), making notes of information shown on a computer screen, or obtaining a print‑out of information stored electronically.
(4) However, prior payment is not required under subregulation (3) if the person has an alternative arrangement with the Inspector‑General about the method of payment.
Example: An arrangement for payment by bulk billing.
(5) The Inspector‑General may specify conditions that apply to:
(a) the use of information entered in the Index; and
(b) the use of an extract of material entered in the Index.
Note: Under regulation 13.09, the Inspector‑General has control of access to the Index.
13.07 Extract, etc of the Index to be admissible in evidence
(1) In any proceedings, a document or copy of a document that qualifies under subregulation (2):
(a) is proof, in the absence of evidence to the contrary, of information on the Index that is stated in it; and
(b) may be tendered in evidence without further proof.
(2) A document or copy qualifies if it:
(a) purports (irrespective of the form of wording used) to be an extract of information on the Index; and
(b) does not appear to the Court to have been revised or tampered with in a way that affects, or is likely to affect, the information.
13.08 Immunity from defamation
(1) The Inspector‑General, and any officer acting at the direction or with the authority of the Inspector‑General, have immunity from actions for defamation arising out of publication of material in the Index or publication of extracts of material from the Index.
(2) An officer has immunity from actions for defamation arising out of publication of material in the Index or publication of extracts of material from the Index, if the publication was done:
(a) by an officer acting in the course of his or her duty; and
(b) in good faith.
(3) A person who provides material for entry in the Index has immunity from actions for defamation arising out of publication of the material by way of providing it for such inclusion, publication of the material in the Index or publication of extracts of the material from the Index, if the publication was done:
(a) in the performance of a function or duty under these Regulations or any other law of the Commonwealth; and
(b) in good faith.
(4) Nothing in subregulation (2) or (3) affects by implication the generality of subregulation (1).
(5) The immunity of the Inspector‑General or another officer under this regulation arising out of publication of material extends to the Commonwealth and the Official Trustee to the extent that the Commonwealth or the Official Trustee would, apart from this subregulation, be liable in respect of the publication.
(6) Nothing in this regulation affects by implication any other ground of defence.
13.09 Access to the Index
The Inspector‑General has control of access to the Index.
13.10 Information extracted from the Index to be evidence
Information extracted from the Index is evidence, in the absence of proof to the contrary, of the truth of the information.
Part 14—Offences under the Act
Division 1—Offences
14.01 Apprehension under a warrant—notification to Registrar in certain cases
(1) This regulation applies where:
(a) a warrant issued under subsection 264B(1) of the Act for the apprehension of a person is executed; and
(b) the person executing the warrant considers that it is impracticable to bring the apprehended person forthwith before the Court, a Registrar or a magistrate.
(2) Where this regulation applies, the person executing the warrant must immediately notify a Registrar of the apprehension and of the date and time when the person considers that it will be practicable to bring the apprehended person before the Court, a Registrar or a magistrate.
14.02 Registrar to act on notification; direction to person executing warrant
(1) Where a Registrar receives a notification under subregulation 14.01(2), he or she must, without delay:
(a) fix a date, time and place for the apprehended person to be brought before the Court, a Registrar or a magistrate; and
(b) direct the person who gave the notification to bring the apprehended person before the Court, a Registrar or a magistrate accordingly.
(2) The time and date fixed under paragraph (1)(a) must be the earliest that, in the Registrar’s opinion, are practicable.
(3) A person to whom a direction is given under paragraph (1)(b) must comply with it.
Division 2—Infringement notices
14.03 Purpose and effect of Division
(1) For section 277B of the Act, this Division establishes an infringement notice scheme, as an alternative to prosecution, for infringement notice offences.
(2) This Division does not:
(a) require an infringement notice to be issued to a person for an infringement notice offence; or
(b) affect the liability of a person to be prosecuted for an infringement notice offence if an infringement notice is not issued to the person for the offence; or
(c) prevent the issue of 2 or more infringement notices to a person for an infringement notice offence; or
(d) affect the liability of a person to be prosecuted for an infringement notice offence if the person does not comply with an infringement notice for the offence; or
(e) limit or otherwise affect the penalty that may be imposed by a court on a person convicted of an infringement notice offence.
14.04 Definitions
In this Division:
infringement notice means an infringement notice served under regulation 14.05.
infringement notice offence means an offence mentioned in the table in subsection 277B(2) of the Act.
infringement penalty, for an infringement notice offence, means the penalty for the offence mentioned in the table in subsection 277B(2) of the Act.
14.05 When infringement notices can be issued
If the Inspector‑General has reasonable grounds to believe that a person has committed an infringement notice offence, the Inspector‑General may, within 12 months after the alleged commission of the offence, issue the person with an infringement notice for the offence.
14.06 Contents of infringement notice
(1) An infringement notice must:
(a) be identified by a unique number; and
(b) state that the notice is issued under these Regulations; and
(c) state the name of the person who issued the notice and how the person may be contacted; and
(d) be signed by the person who issued the notice; and
(e) state the name and address of the person to whom it is issued; and
(f) set out brief details of the offence the person is alleged to have committed, including:
(i) the infringement notice offence that was allegedly contravened; and
(ii) the maximum penalty that may be imposed by a court for the offence; and
(g) state the amount of the infringement penalty that is payable under the notice; and
(h) state how and where the infringement penalty can be paid, including:
(i) the period in which the penalty may be paid; and
(ii) if the penalty can be paid by posting the payment—the place to which it should be posted; and
(i) state that if the person pays the infringement penalty in time:
(i) any liability of the person for the offence is discharged; and
(ii) a prosecution of the offence may not be brought against the person; and
(iii) the person is not regarded as having admitted guilt or liability for the offence; and
(iv) the person is not regarded as having been convicted of the offence; and
(j) state that the person may apply to the Inspector‑General for an extension of time in which to pay the infringement penalty; and
(k) set out how the notice may be withdrawn; and
(l) state that if the notice is withdrawn:
(i) any amount of penalty paid under the notice must be refunded to the person; and
(ii) the person may be prosecuted in a court for the offence; and
(m) state that the person may apply in writing to the Inspector‑General requesting the withdrawal of the notice.
(2) An infringement notice may contain any other information that the Inspector‑General considers necessary.
14.07 Method of serving infringement notices
(1) An infringement notice must be served on the person to whom it is issued.
(2) An infringement notice may be served on an individual:
(a) personally or by post; or
(b) by leaving the notice:
(i) at the last‑known place of residence or business of the person; and
(ii) with a person, apparently over the age of 16 years, who appears to live or work at the place.
(3) An infringement notice may be served on a corporation:
(a) by leaving it at, or by sending it by post to, the address of the head office, a registered office or a principal office, of the corporation; or
(b) by giving it, at an office mentioned in paragraph (a), to someone who is, or who the person serving the notice reasonably believes is, an officer or employee of the corporation.
(4) Subject to subregulation (5), an infringement notice may be served on a registered trustee or a registered debt agreement administrator by sending it by electronic communication to the trustee’s or administrator’s business email address.
(5) An infringement notice must not be sent by electronic communication unless the Inspector‑General believes, on reasonable grounds, that the registered trustee or a registered debt agreement administrator will access the email account to which the notice is sent.
14.08 Time for payment of infringement penalty
The penalty specified in an infringement notice must be paid:
(a) within 28 days after the day the notice is served on the person to whom it is issued; or
(b) if the person applies for an extension of time in which to pay the infringement penalty and that application is granted—within the extension period allowed; or
(c) if the person applies for an extension of time in which to pay the infringement penalty and the application is refused—before the end of the later of:
(i) 7 days after day the notice of the refusal is served on the person; and
(ii) 28 days after the day the infringement notice is served on the person; or
(d) if the person applies for the notice to be withdrawn and the application is refused—within 28 days after the day the notice of the refusal is served on the person.
14.09 Extension of time to pay infringement penalty
(1) A person served with an infringement notice may apply, in writing, to the Inspector‑General for an extension of time of up to 28 days in which to pay the infringement penalty specified in the notice.
(2) If the application is made after the end of the 28 day period specified in the notice for payment of the infringement penalty, the application must include a statement explaining why the person could not deal with the notice within that period.
(3) Within 14 days after receiving the application, the Inspector‑General must:
(a) grant, or refuse to grant, an extension of time to pay the infringement penalty; and
(b) notify the person in writing of the decision, and, if the decision is a refusal, the reasons for the decision.
(4) Notice of the decision may be served on the person in any way in which the infringement notice could have been served on the person.
14.10 Withdrawal of infringement notice
(1) Before the end of 28 days after receiving an infringement notice, a person may apply, in writing, to the Inspector‑General for the infringement notice to be withdrawn.
(2) Within 14 days after receiving the application, the Inspector‑General must:
(a) withdraw, or refuse to withdraw, the notice; and
(b) notify the person in writing of the decision, and, if the decision is a refusal, the reasons for the decision.
(3) Before withdrawing, or refusing to withdraw, a notice, the Inspector‑General must consider:
(a) the circumstances of the offence stated in the notice; and
(b) whether there are exceptional circumstances to justify the withdrawal; and
(c) any other relevant matter.
(4) The Inspector‑General may also withdraw an infringement notice without an application having been made if he or she believes it is appropriate to do so in all the circumstances of the particular case.
14.11 Notice of withdrawal of infringement notices
(1) Notice of the withdrawal of an infringement notice may be served on a person in any way in which the infringement notice could have been served on the person.
(2) A notice withdrawing an infringement notice served on a person for an offence:
(a) must include the following information:
(i) the name and address of the person;
(ii) the number of the infringement notice;
(iii) the date of issue of the infringement notice; and
(b) must state that the notice is withdrawn; and
(c) if it is proposed that a prosecution be brought against the person for the offence—must state that the person may be prosecuted in a court for the offence.
14.12 Refund of infringement penalty
If an infringement notice is withdrawn after the infringement penalty specified in it has been paid, the Inspector‑General must refund the amount of the penalty to the person who paid it.
14.13 Effect of payment of infringement penalty
If a person served with an infringement notice pays the infringement penalty specified in the notice within the period specified in the notice (or any further period of time allowed under regulation 14.09):
(a) any liability of the person for the offence is discharged; and
(b) a prosecution of the offence may not be brought against the person for the offence; and
(c) the person is not regarded as having admitted guilt or liability for the offence; and
(d) the person is not regarded as having been convicted of the offence.
14.14 Payment of infringement penalty—cheques
If a person pays an infringement penalty by cheque, payment is not taken to have been made until the cheque has been honoured on presentation.
14.15 Evidentiary certificates
(1) The Inspector‑General may sign a certificate that states any of the following in relation to an infringement notice served on a person:
(a) that the infringement penalty specified in the infringement notice was not paid by the person within the time specified in the notice;
(b) that the Inspector‑General granted, or refused to grant, an extension of time to the person to pay the infringement penalty;
(c) that the infringement penalty was not paid by the person within the period specified in the extension;
(d) that the infringement notice was withdrawn under regulation 14.10 on a day specified in the certificate.
(2) At a hearing of a prosecution for an offence mentioned in an infringement notice, a certificate signed by the Inspector‑General in accordance with subregulation (1) is evidence of the matters specified in the certificate.
(3) A certificate that purports to be signed by the Inspector‑General is taken to have been signed by the Inspector‑General unless the contrary is proved.
Part 15A—Provisions relating to the Bankruptcy Charges Acts
15A.01 Interpretation
(1) In this Part:
charge means an interest charge, a realisations charge or a registration charge.
charge period has the same meaning as in the Estate Charges Act.
penalty means a late payment penalty.
trustee includes a debt agreement administrator.
(2) An expression defined for Part XV of the Act has the same meaning in this Part.
15A.02 Mode of payment
An amount of charge or penalty may be paid to the Inspector‑General:
(a) in cash; or
(b) by cheque; or
(c) by any other means (for example, by direct debit or electronic transfer) that the Inspector‑General approves in writing.
15A.03 Overpayments to be refunded or offset
The amount of an overpayment by a trustee of a charge or penalty may be:
(a) refunded to the trustee; or
(b) unless the trustee, by notice in writing to the Inspector‑General, directs otherwise—offset against an amount of charge or penalty payable by the trustee.
15A.04 Information to accompany payment of interest charge
(1) A payment of interest charge by a trustee must have with it, in the approved form, any information required by the approved form.
(2) Where a payment of interest charge is made by or on behalf of a trustee by non‑physical means (for example, by direct debit or electronic transfer), the trustee must without delay give the Inspector‑General that information.
(3) This regulation does not apply to the Official Trustee.
15A.05 Information to accompany payment of realisations charge
(1) A payment of realisations charge by a trustee must have with it, in the approved form, any information required by the approved form.
(2) Where a payment of realisations charge is made by or on behalf of a trustee by non‑physical means (for example, by direct debit or electronic transfer), the trustee must without delay give the Inspector‑General that information.
(3) This regulation does not apply to the Official Trustee.
15A.07 Lodgment of request for remission
A request by a trustee for remission of a charge or penalty must be in writing and lodged with an Official Receiver.
Part 16—Miscellaneous
Division 1—Provisions concerning documents (including inventories)
16.01 Service of documents
(1) Unless the contrary intention appears, where a document is required or permitted by the Act or these Regulations to be given or sent to, or served on, a person (other than a person mentioned in regulation 16.02), the document may be:
(a) sent by post, or by a courier service, to the person at his or her last‑known address; or
(b) left, in an envelope or similar packaging marked with the person’s name and any relevant document exchange number, at a document exchange where the person maintains a document exchange facility; or
(c) left, in an envelope or similar packaging marked with the person’s name, at the last‑known address of the person; or
(d) personally delivered to the person; or
(e) sent by facsimile transmission or another mode of electronic transmission:
(i) to a facility maintained by the person for receipt of electronically transmitted documents; or
(ii) in such a manner (for example, by electronic mail) that the document should, in the ordinary course of events, be received by the person.
(2) A document given or sent to, or served on, a person in accordance with subregulation (1) is taken, in the absence of proof to the contrary, to have been received by, or served on, the person:
(a) in the case of service in accordance with paragraph (1)(a) or (b)—when the document would, in the due course of post or business practice, as the case requires, be delivered to the person’s address or document exchange facility; and
(b) in the case of service in accordance with paragraph (1)(c), (d) or (e)—when the document is left, delivered or transmitted, as the case requires.
16.02 Documents for the Inspector‑General, the Official Receiver or the Official Trustee
(1) Unless the contrary intention appears, where a document is required or permitted by the Act or these Regulations to be given or sent to, or filed or lodged with, the Inspector‑General, the Official Receiver or the Official Trustee, the document must:
(a) be posted to, or delivered at:
(i) in the case of a document for the Inspector‑ General—the office of the Inspector‑General; or
(ii) in the case of a document for the Official Receiver or the Official Trustee—the office of the Official Receiver; or
(b) sent by facsimile transmission:
(i) in the case of a document for the Inspector‑ General—to a facility maintained by the Inspector‑ General for receipt of facsimile transmissions; or
(ii) in the case of a document for the Official Receiver or the Official Trustee—to a facility maintained by the Official Receiver for receipt of facsimile transmissions; or
(c) sent by another mode of electronic transmission (for example, by electronic mail):
(i) in the case of a document for the Inspector‑ General—to the office of the Inspector‑General; or
(ii) in the case of a document for the Official Receiver or the Official Trustee—to the office of the Official Receiver.
(2) Where subregulation (1) applies, the document is taken to be received, filed or lodged only when the document (or, where applicable, a copy of it) is actually received by, or on behalf of, the Inspector‑General or the Official Receiver (as the case requires).
16.03 Inventory by trustee taking possession of, or attaching, property
Where, under the Act, a trustee takes possession of, or attaches, the property of a bankrupt, debtor or deceased person, the trustee must, as soon as is reasonably practicable:
(a) make, sign and date an inventory of the property; and
(b) give a copy of the inventory to any person who has custody of the property or part of the property.
16.03A Document filed by Inspector‑General or Official Receiver—fee not payable
A fee is not payable by the Inspector‑General or the Official Receiver in respect of an application to, or the filing of a document in, the Court.
Division 2—Matters relevant to fees
Note: Divisions 2 and 3 of Part 16 of the Regulations formerly provided for the fees in relation to the Act (including remuneration of the Official Trustee). As a result of the amendment of the Act by the Bankruptcy Legislation Amendment (Fees and Charges) Act 2006, the remuneration of the Official Trustee and fees in relation to the Act are now set out in the Fees and Remuneration Determination.
16.06 Payment of fees
(1) If a fee is payable in respect of:
(a) the making of a request or an application to an Official Receiver; or
(b) the presentation or lodgment of a document with an Official Receiver;
the request, application or document must not be dealt with unless the fee has been paid.
(2) If a fee is payable in respect of the doing of a matter or thing by an Official Receiver, the matter or thing must not be done unless the fee has been paid.
(3) However, prior payment of a fee is not required under subregulation (1) or (2) if the person has an alternative arrangement with the Inspector‑General about the method of payment.
Example: An arrangement under which fees payable by a registered trustee are paid monthly in arrears.
16.07 Official Trustee’s entitlement to interim remuneration
(1) The Official Trustee’s entitlement to remuneration under the Fees and Remuneration Determination arises when the Official Trustee:
(a) performs work or first acts in accordance with clause 3.03, 3.04, 3.07 or 3.08 of the Fees and Remuneration Determination; or
(b) is appointed as described in clause 3.06 of the Fees and Remuneration Determination; or
(c) first acts in accordance with subclause 3.09(1) of the Fees and Remuneration Determination; or
(d) performs work as described in subclause 3.09(2) or clause 3.10 of the Fees and Remuneration Determination.
(2) For paragraph (1)(a), (b) or (d), remuneration is payable to the Official Trustee in respect of an amount received by the Official Trustee:
(a) when the amount is received; and
(b) at the rate applicable when the amount is received.
(3) For paragraph (1)(c), remuneration is payable to the Official Trustee:
(a) from time to time as the funds are realised; and
(b) at the rate applicable when the funds are realised.
16.08 Reimbursement of Official Trustee for expenses
(1) An amount equal to the amount of expenses incurred by the Official Trustee, in performing work of a kind mentioned in clause 3.03, 3.04, 3.08 or 3.09 of the Fees and Remuneration Determination in relation to an estate or debtor, is payable to the Official Trustee:
(a) for work under clause 3.03, 3.08 or 3.09—out of the estate; or
(b) for work under clause 3.04—out of the composition or scheme of arrangement.
(2) In this regulation:
amount realised has the meaning given by clause 3.01 of the Fees and Remuneration Determination.
16.09 Fees—notes and transcript of evidence
For paragraph 81(17)(b) of the Act, the prescribed fee is $20.
16.11 Waiver or remission of fees by Inspector‑General
(1) Subject to subregulation (2), the Inspector‑General may waive or remit the whole or part of any fee.
(2) A fee may only be waived or remitted, whether wholly or in part, if the Inspector‑General is reasonably satisfied that:
(a) payment of the fee by the person liable to pay it has imposed, or would impose, undue hardship on the person; or
(b) because of other exceptional circumstances, it is proper and reasonable to do so.
(3) For paragraph (2)(a), undue hardship means hardship that is unusual and exceptional in comparison to the hardship arising in the normal course of bankruptcy.
(4) A decision under subregulation (1) must be notified in writing to:
(a) the person concerned; and
(b) except where the fee is payable to the Inspector‑ General—the officer to whom the fee is or, but for the waiver or remission, would be payable.
(5) In this regulation:
fee means a fee payable under:
(a) regulation 16.09; or
(b) item 1, 2, 3, 4, 9, 13, 14 or 15 of the table following clause 2.01 of the Fees and Remuneration Determination; or
(c) clause 2.02, 2.08 or 2.09 of the Fees and Remuneration Determination.
16.12 Review by AAT of decision of Inspector‑General
Application may be made to the Administrative Appeals Tribunal for review of a decision of the Inspector‑General under subregulation 16.11(1) to refuse to waive or remit the whole or part of a fee that became payable under a provision or item mentioned in the definition of fee in regulation 16.11.
Note: Under section 27A of the Administrative Appeals Tribunal Act 1975, the decision‑maker must give any person whose interests are affected by the decision notice, in writing or otherwise, of the making of the decision and of the person’s right to have the decision reviewed. In giving that notice, the decision‑maker must have regard to the Code of Practice determined under section 27B of that Act (Gazette No. S 432, 7 December 1994).
Division 3—Transitional
16.13 Application of Same‑Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Act 2008
(1) The amendments made by items 20, 21, 22, 23, 29, 30 and 31 of Schedule 2 to the Same‑Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Act 2008 apply to a bankruptcy the date of which is on or after the commencement of those amendments.
(2) The amendments made by items 25 to 28 of Schedule 2 to the Same‑Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Act 2008 apply to a transfer of property that is made on or after the commencement of those amendments.
(3) The amendment made by item 16 of Schedule 2 to the Same‑Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Act 2008 applies to an examinable period, within the meaning of section 139CA of the Act, that begins on or after the commencement of that amendment.
(4) For sections 265 and 268 of the Act, the amendments made by items 11, 13, 18 and 19 of Schedule 2 to the Same‑Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Act 2008 applies to a disposition of property that is made on or after the commencement of those amendments.
16.14 Transitional provisions relating to the Bankruptcy Amendment (National Personal Insolvency Index) Regulation 2015
(1) If:
(a) subregulation 13.05A(1), (2) or (3) requires the Official Receiver to remove information relating to a debt agreement from the Index; and
(b) the later of the days referred to in the subregulation was before 19 November 2015;
the Official Receiver is taken to have complied with the subregulation if the Official Receiver removes the information as soon as practicable after 19 November 2015.
(2) If:
(a) regulation 13.05B requires the Official Receiver to remove information relating to a debt agreement proposal from the Index; and
(b) the day on which one of the events referred to in the regulation occurred was before 19 November 2015;
the Official Receiver is taken to have complied with the regulation if the Official Receiver removes the information as soon as practicable after 19 November 2015.
Schedule 6—Modifications in relation to Part X of the Act
(regulations 10.01, 10.05, 10.07, 10.08 and 10.13)
Part 1—Modifications of Part X of the Act—joint debtors
1 Section 187A
omit
This Part
insert
(1) This Part
2 Section 187A
insert
(2) In the application of this Part (other than subsection 187(1A)) to joint debtors, whether partners or not, an expression specified in one of the following rules of interpretation applies to the extent that the context reasonably permits:
(a) ‘a debtor’ is to be read as ‘joint debtors’;
(b) ‘the debtor’ is to be read as ‘the joint debtors’;
(c) ‘the debtor’s’ is to be read as ‘the joint debtors’;
(d) if used in relation to a debtor:
(i) ‘he or she’ is to be read as ‘they’; and
(ii) ‘his or her’ is to be read as ‘their’; and
(iii) ‘him or her’ is to be read as ‘them’; and
(iv) a noun or verb in the singular form is to be read as being in the plural form.
(3) Subsection (2) applies, subject to any specific modifications of this Part by the Bankruptcy Regulations 1996.
(4) To the extent that the context reasonably permits, a reference (by operation of subsection (2)) to joint debtors includes a reference to any of the joint debtors.
(5) A reference to the affairs, or examinable affairs, of a debtor includes a reference to the separate affairs, or separate examinable affairs, of a joint debtor.
3 Subsection 188(1)
omit
A debtor
insert
If each joint debtor is a person
4 Subsection 188(1)
before
may sign
insert
the joint debtors
5 Subsections 188(2AA) and (2AB)
omit
the debtor
insert
each joint debtor
6 Subsection 188(2C)
omit the second occurrence of
the debtor
insert
each joint debtor
7 Subsection 188(2D)
omit the second occurrence of
the debtor
insert
each joint debtor
8 Subsection 188(4)
before
debtor
insert
joint
10 Paragraphs 188A(2)(a) and (c)
omit
the debtor’s
insert
each joint debtor’s
11 Paragraph 188A(2)(e)
omit
the debtor
insert
each joint debtor
12 Paragraph 188A(2)(l)
omit
the debtor
insert
each joint debtor
13 Subsection 189AB(1)
omit
(1) When the debtor’s property becomes subject to control under this Division, the debtor’s property is charged with:
insert
(1) When the property of joint debtors becomes charged under this Division, the charges specified in subsection (1A) are created with respect to:
14 After subsection 189AB(1)
insert
(1A) The charges are:
(a) a charge over the joint property of the joint debtors; and
(b) a separate charge over the separate property of each joint debtor.
15 Subsection 189AB(2)
omit
the charge is not affected
insert
none of the charges is affected
16 Subsections 189AB(3) and (4)
omit
The charge
insert
Each charge
17 Paragraph 189A(1)(a)
substitute
(a) summarising and commenting on the information about:
(i) the joint estates of the joint debtors; and
(ii) the separate estate of each joint debtor;
that is available to the controlling trustee; and
Part 2—Modifications of Division 5 of Part IV of the Act—meetings called under authorities under section 188 of the Act
1 Subsection 63A(1), definition of joint bankruptcy, subparagraph (d)(ii)
omit
jointly.
insert
jointly; or
2 Subsection 63A(1), definition of joint bankruptcy, after paragraph (d)
insert
(e) the situation arising out of the signing, by joint debtors for the purposes of section 188, of a joint authority or separate authorities for the administration of their joint estate.
3 Subsection 64A(2)
substitute
(2) Notice of a meeting:
(a) for the first meeting of creditors—must be published in a manner approved by the Inspector‑General; and
(b) for any other meeting of creditors—must be given in a manner specified in the regulations.
3A After subsection 64A(2)
insert
(3) The notice of the first meeting of creditors must include any matter approved by the Inspector‑General.
(4) For the purposes of paragraph (2)(a) and without limiting the power of the Inspector‑General under that paragraph, the Inspector‑General may:
(a) approve, as the manner of publication of the notice of the first meeting of creditors, publication on a website; and
(b) specify in the approval:
(i) the website where the notice must be published; and
(ii) any conditions relating to the approval.
Example: The Inspector‑General may specify:
(a) the format in which the notice is to be made available; and
(b) the period of time for which the notice must remain on the website; and
(c) whether related documents are to be made available for downloading from the website or in hard copy.
(5) An approval made by the Inspector‑General for the purposes of paragraph (2)(a) or subsection (3) must be published on the Insolvency and Trustee Service Australia’s website.
3B After section 64A
insert
64AA Immunity from civil actions and proceedings
(1) A civil action or proceeding does not lie against a person who operates a website, specified in an approval for the purposes of paragraph 64A(2)(a) or subsection 64A(3), in respect of a publication of a notice of the first meeting of creditors (or a notice that appears to be a notice of the first meeting of creditors) if the publication was made in good faith and without negligence.
(2) Nothing in this section affects by implication any other ground of defence.
4 After subsection 64B(5)
insert
(6) If the meeting is the first meeting of creditors called under an authority given under section 188, the notice must state that an information sheet about Part X, dealing with the following matters, may be obtained from the Insolvency and Trustee Service Australia:
(a) meetings under Part X;
(b) controlling trustees;
(c) the administration of an authority under section 188;
(d) the application of Part X to an authority under section 188;
(e) personal insolvency agreements;
(f) the rights of creditors under Part X.
5 After paragraph 64D(aa)
insert
(ab) whether the creditor, in relation to the debtor, is a related entity; and
6 Paragraph 64G(g)
substitute
(g) if the meeting is the first meeting—tabling of the following documents:
(i) the statement of affairs, and the proposal for dealing with them, required by subsection 188(2C) or (2D);
(ii) the report by the controlling trustee required by section 189A;
(iii) the written statement by the controlling trustee required by section 189B;
7 Section 64P, heading
substitute
64P Controlling trustee to preside at meeting under section 188
8 Subsections 64P(1) and (2)
substitute
(1) Subject to subsection (2), the controlling trustee must preside at a meeting called under an authority under section 188.
(2) The creditors and their representatives may:
(a) vote to remove the controlling trustee as President; and
(b) nominate another person to preside at the meeting.
9 Subsection 64P(6)
omit each mention of
the trustee
insert
the controlling trustee
10 Subsection 64P(7)
omit
the trustee
insert
the controlling trustee
11 Subsection 64R(1)
substitute
(1) If the meeting is the first meeting, the President must then request the controlling trustee to lay before the meeting the documents specified in paragraph 64G(g), and the controlling trustee must comply with the request.
12 Subsection 64R(2)
omit
the statement of affairs,
insert
those documents,
13 Subsection 64U(1)
substitute
(1) At the first meeting called under an authority under section 188 that is attended by:
(a) the controlling trustee; or
(b) if the creditors have passed a special resolution under paragraph 204(1)(b)—the trustee of a personal insolvency agreement;
the President must ask the trustee to state the basis on which he or she wishes to be remunerated.
14 Before subsection 64Y(1)
insert
(1A) The controlling trustee may adjourn a meeting to undertake further investigations, in relation to the controlling trusteeship, that the controlling trustee considers necessary.
(1B) The creditors attending the meeting may, by special resolution, revoke the trustee’s decision to adjourn the meeting.
15 After subsection 64ZC(5)
insert
(5A) An instrument appointing a proxy must include:
(a) a statement disclosing whether or not the creditor has received, or will receive, a financial incentive:
(i) to appoint the proxy; or
(ii) to direct the proxy as to the manner in which the proxy is to vote on a particular matter or matters that may arise, or on a particular motion or motions that may be proposed, at a meeting to which the proxy relates; and
(b) if the proxy or creditor has received, or will receive, a financial incentive in relation to a matter mentioned in paragraph (a)—a statement specifying the amount of financial incentive paid or to be paid and the name of the person who paid, or is to pay, the financial incentive.
16 After subsection 64ZE(2)
insert
(3) This section applies in relation to a personal insolvency agreement only if:
(a) a joint estate forms part of the property that is to be dealt with under the agreement; and
(b) the agreement does not specifically provide for distribution of the joint estate.
Part 3—Modifications of Part VIII of the Act—controlling trustees and trustees of personal insolvency agreements
1 Before Part VIII, Division 1
insert in Part VIII
Division 1A—Interpretation
154AA Interpretation
In this Part, in its application to Part X, a reference to a registered trustee includes a reference to a controlling trustee and a trustee of a personal insolvency agreement.
2 Section 156A
omit
3 Subsection 157(1)
substitute
(1) If:
(a) the Official Trustee is:
(i) under section 188 or 192, the controlling trustee in relation to a debtor; or
(ii) under Part X, the trustee of a personal insolvency agreement; and
(b) the creditors wish to appoint, in place of the Official Trustee:
(i) a registered trustee or a solicitor as the controlling trustee; or
(ii) a registered trustee as the trustee of the personal insolvency agreement;
the creditors may do so by resolution at a meeting of creditors.
4 Section 158
substitute
158 Appointment of more than 1 controlling trustee
The creditors may appoint 2 or more controlling trustees jointly, or jointly and severally.
5 Section 159
omit
6 Section 160
substitute
160 Vacancy in position of trustee—Official Trustee to act
If at any time there is no controlling trustee in relation to a debtor, or no trustee of a personal insolvency agreement under Part X, the Official Trustee is to act as the trustee.
7 After subsection 161(1)
insert
(1A) This section does not apply in relation to a trustee of a personal insolvency agreement.
8 Subsection 173(1)
substitute
(1) A controlling trustee who has consented to exercise powers given by an authority under section 188 must keep such accounts and records as are necessary to exhibit a full and correct account of the debtor’s affairs and must permit a creditor:
(a) to inspect, at all reasonable times, either personally or by an agent, the accounts and records relating to the controlling trusteeship; and
(b) to take a copy of those accounts and records.
Penalty: 5 penalty units.
9 Section 180
omit
trustee of an estate.
insert
trustee, other than controlling trustee, under Part X.
10 Section 181
substitute
181 Removal of trustee
The creditors may, by resolution, at a meeting of which at least 7 days notice has been given, remove a controlling trustee or the trustee of a personal insolvency agreement and may, at that meeting or a later meeting, appoint another trustee to replace the removed trustee.
11 Subsection 181A(1)
substitute
(1) The current controlling trustee or the current trustee of a personal insolvency agreement may, with the written consent of another trustee (either a registered trustee or the Official Trustee), nominate the other trustee as the new trustee.
12 Subsection 181A(4)
substitute
(4) If no creditor lodges a written notice of objection with the current trustee at least 2 days before the specified date, the new trustee replaces the current trustee on the date specified in the notice.
Part 4—Modifications of Division 1 of Part V of the Act—debtors whose property is subject to control under Division 2 of Part X of the Act
1 Section 77F
substitute
77F Allowances and expenses to be paid out of debtor’s property subject to control under Division 2 of Part X
If the evidence that a person gives, or the books that a person produces, under section 77C, relate to matters concerning the property of a debtor that is subject to control under Division 2 of Part X, any amount payable to the person under section 77D or 77E is to be paid out of that property.
2 Subsection 81(1)
substitute
(1) Where a person (in this section called the relevant person) becomes a debtor whose property is subject to control under Division 2 of Part X, the Court or a Registrar may at any time (whether before or after control over that property has ended), on the application of:
(a) a person (in this section called a creditor) who has or had a debt that would be provable if the debtor were a bankrupt;
(b) the controlling trustee; or
(c) the Official Receiver;
summon the relevant person for examination in relation to the property that is subject to control under Division 2 of Part X.
Part 5—Modification under subsection 231(1) of the Act—personal insolvency agreements
1 Section 77F
substitute
77F Allowances and expenses to be paid out of debtor’s property subject to personal insolvency agreement
If the evidence that a person gives, or the books that a person produces, under section 77C, relate to matters concerning the property of a debtor that is subject to a personal insolvency agreement, any amount payable to the person under section 77D or 77E is to be paid out of that property.
Part 6—Modifications under subsection 231(3) of the Act—personal insolvency agreements
1 Subsection 113(1)
omit
presentation of a petition on which, or by virtue of the presentation of which, a person became a bankrupt,
insert
making of a sequestration order,
2 Subsection 113(1)
omit
or, in the case of a debtor’s petition, the presentation of the petition
3 After subsection 133(13)
insert
(14) This section does not apply in relation to a personal insolvency agreement.
4 After paragraph 134(1)(b)
insert
(ba) carry on a business of the debtor in accordance with an authorisation given under subsection (5);
5 After subsection 134(4)
insert
(5) If a personal insolvency agreement provides for the business of the debtor to be assigned to the trustee, the agreement may:
(a) authorise the trustee to carry on a business of a debtor; and
(b) specify the period during which, and the conditions (if any) subject to which, the trustee may carry on the business.
(6) The creditors may vary or terminate an authority under subsection (5) by passing a special resolution to that effect at a meeting called for the purpose.
(7) This section extends only in relation to property of the debtor that is subject to the personal insolvency agreement.
6 Subsection 136(1)
omit
Where any property of the bankrupt is subject to a mortgage,
insert
Where any property of the debtor that is subject to the personal insolvency agreement is also subject to a mortgage,
7 Subsection 137(1)
omit
Where goods of a bankrupt
insert
Where goods of a debtor that are subject to a personal insolvency agreement
8 Paragraphs 138(1)(a) and (b)
substitute
(a) the property of a debtor that is subject to a personal insolvency agreement includes rights in respect of industrial property; and
(b) the debtor is liable to pay royalties or a share of profits to a person in respect of those rights;
9 Paragraph 138(1)(c)
omit
the bankrupt;
insert
the debtor;
10 Paragraph 138(1)(d)
omit
the bankrupt
insert
the debtor
11 Paragraphs 139(1)(a) and (b)
substitute
(a) the trustee has seized or disposed of any goods in the possession or on the premises of a debtor that are subject to a personal insolvency agreement without notice of any claim by any person in respect of those goods; and
(b) the goods were not, at the date of execution of the personal insolvency agreement, the property of the debtor;
12 Subsection 139(2)
omit everything after
in respect of property
insert
that is subject to the personal insolvency agreement, being rates, land tax or municipal or other statutory charges that fall due on or after the date of execution of the personal insolvency agreement, except to the extent, if any, of the rents and profits received by the trustee in respect of that property on or after the date of execution of the personal insolvency agreement.
13 Subsection 139(3)
substitute
(3) Where the trustee of a personal insolvency agreement carries on a business previously carried on by the debtor, the trustee is not personally liable for any payment in respect of long service leave or extended leave:
(a) for which the debtor was liable; or
(b) to which a person employed by the trustee in his or her capacity as trustee of the personal insolvency agreement, or the legal personal representative of such a person, becomes entitled after the date of execution of the personal insolvency agreement.
14 Subsection 139(4)
omit
trustee of the estate of a bankrupt
insert
trustee of a personal insolvency agreement
15 Section 139ZJ
omit
In this Subdivision:
insert
(1) In this Subdivision:
16 Section 139ZJ
insert
(2) In sections 139ZK, 139ZL and 139ZP, a reference to a bankrupt is to be read as a reference to a debtor.
(3) In subsection (2):
debtor means a person who has executed a personal insolvency agreement.
17 Paragraphs 139ZK(1)(e) and (f)
omit
bankruptcy,
insert
personal insolvency agreement,
18 Subsection 139ZL(1)
omit everything before paragraph (a), insert
(1) If a debtor is liable to pay a specified amount of his or her income to the trustee in accordance with a personal insolvency agreement, the Official Receiver:
19 Subsection 139ZL(1)
omit
make the contribution.
insert
pay that amount.
20 Paragraphs 139ZL(3)(a) and (b)
omit
the contribution
insert
the amount of income
21 Subsection 139ZQ(1)
omit
bankrupt under Division 3,
insert
personal insolvency agreement because of the application of any of sections 120 to 125,
22 Subsection 139ZR(3)
omit
Division 3.
insert
any of sections 120 to 125.
Part 7—Modification under subsection 231(5) of the Act—trustees of personal insolvency agreements
1 Subsection 173(1)
substitute
(1) The trustee of a personal insolvency agreement must keep such accounts and records as are necessary to exhibit a full and correct account of the administration of the agreement and must permit a creditor of the debtor:
(a) to inspect, at all reasonable times, either personally or by an agent, the accounts and records relating to the personal insolvency agreement; and
(b) to take a copy of those accounts and records.
Penalty: 5 penalty units.
Schedule 7—Modifications under Part XI of the Act—administration of estates of deceased persons
(regulation 11.02)
1 Section 49 (Change of petitioners):
1.1 Omit ‘debtor’, substitute ‘deceased debtor’s estate’.
2 Section 50 (Taking control of debtor’s property before sequestration)
2.1 Subsection 50(1):
Omit ‘debtor, but before the debtor becomes’, substitute ‘debtor who dies after presentation of a creditor’s petition but before becoming’.
2.2 Paragraph 50(1)(a):
Omit ‘debtor’s property;’, substitute ‘deceased debtor’s estate;’.
2.3 Paragraph 50(1)(b):
Omit ‘property.’, substitute ‘estate.’.
2.4 Paragraph 50(1A)(c):
Omit ‘debtor’, substitute ‘deceased debtor’s legal personal representative’.
2.5 Subsection 50(1B):
Omit ‘debtor’s property’, insert ‘deceased debtor’s estate’.
2.6 Subsection 50(2):
Omit ‘debtor’ (first occurring), substitute ‘legal personal representative of the deceased debtor’.
2.7 Subsection 50(2):
Before ‘debtor’ (second and third occurring), insert ‘deceased debtor’.
2.8 Subsection 50(3):
Omit ‘debtor and the debtor’s’, substitute ‘deceased debtor and the debtor’s’.
2.9 Subsection 50(4):
Before ‘debtor’ (twice occurring) and ‘debtor’s’, insert ‘deceased’.
2.10 Paragraph 50(5)(a):
Omit ‘a sequestration order had been made against the debtor’, insert ‘an order had been made for the administration of the estate of the deceased debtor’.
2.11 Paragraph 50(5)(c):
Omit ‘debtor’s bankruptcy if a sequestration’, substitute ‘administration of the deceased debtor’s estate if an’.
2.12 Section 50:
Add at the end:
‘(6) In this section:
legal personal representative, in relation to a deceased debtor, means:
(a) the executor under the deceased debtor’s will; or
(b) the administrator under letters of administration or court order;
of the deceased debtor’s estate, or a part of that estate.’.
3 Section 63A (Definitions)
3. Insert the following definition:
‘legal personal representative, in relation to a deceased person, means:
(a) the executor under the deceased person’s will; or
(b) the administrator under letters of administration or court order;
of the deceased person’s estate, or a part of that estate;’
4 Section 64A (Persons to whom notice of meeting to be given)
4.1 Paragraph 64A(1)(a):
Omit ‘the bankrupt has told the trustee,’, substitute ‘before his or her death the deceased person had told the trustee,’.
5 Section 64B (Certain matters to be included in notice of meeting)
5.1 Subsection 64B(1):
Before ‘place’, insert ‘former’.
6 Section 64G (Agenda to be set out in notice of meeting)
6.1 Paragraphs 64G(a) and (i):
Omit ‘bankrupt;’, substitute ‘legal personal representative of the deceased person;’.
7 Section 64J (Preparation of attendance record)
7.1 Subsection 64J(3):
Omit ‘bankrupt’, substitute ‘legal personal representative of the deceased person’.
8 Section 64K (Opening of meeting)
8.1 Subsection 64K(2):
Omit ‘bankrupt’ (first occurring), substitute ‘legal personal representative of the deceased person’.
8.2 Subsections 64K(2):
Omit ‘the bankrupt.’ (second occurring), substitute ‘the legal personal representative.’.
8.3 Subsections 64K(3) and (6):
Omit ‘the bankrupt’ (wherever occurring), substitute ‘the legal personal representative’.
9 Section 64L (Appointment of minutes secretary)
9.1 Subsection 64L(2):
Omit ‘bankrupt’, substitute ‘legal personal representative of the deceased person’.
10 Section 64P (Election of person to preside at meeting)
10.1 Subsection 64P(2):
Omit ‘bankrupt’, substitute ‘legal personal representative of the deceased person’.
11 Section 64S (Statements and questions)
11.1 Subsection 64S(2):
Omit ‘bankrupt’ (first occurring), substitute ‘legal personal representative of the deceased person’.
11.2 Subsection 64S(2):
Omit ‘the bankrupt.’ (second occurring), substitute ‘the legal personal representative.’.
11.3 Subsection 64S(3):
Omit ‘bankrupt’, substitute ‘legal personal representative’.
12 Section 64Z (Duties of minutes secretary)
12.1 Paragraph 64Z(5)(d):
Omit ‘bankrupt,’, substitute ‘legal personal representative of the deceased person,’.
13 Section 64ZC (Appointment of proxies)
13.1 Subsection 64ZC(6):
Omit ‘bankrupt’ (first occurring), substitute ‘legal personal representative of the deceased person’.
13.2 Subsection 64ZC(6):
Omit ‘the bankrupt’ (second occurring), substitute ‘the legal personal representative’.
14 Section 73 (Composition or arrangement)
14.1 Subsection 73(1):
Omit ‘a bankrupt’, substitute ‘the legal personal representative of a deceased person’.
14.2 Subsection 73(1):
Omit ‘his or her’ (wherever occurring), substitute ‘the deceased person’s’.
14.3 Subsection 73(2A):
Omit ‘bankrupt’s’, substitute ‘deceased person’s’.
14.4 Subsection 73(3):
Omit ‘bankrupt’, substitute ‘legal person representative’.
14.5 Section 73:
Add at the end:
‘(6) In this section:
legal personal representative, in relation to a deceased person, means:
(a) the executor under the deceased person’s will; or
(b) the administrator under letters of administration or court order;
of the deceased person’s estate, or a part of that estate.’.
15 Section 74 (Annulment of bankruptcy)
15.1 Omit the section, substitute:
‘74 Annulment of administration
‘(1) A special resolution under subsection 73(4) takes effect on the date on which it is passed to annul the administration of the estate to which it relates.
‘(2) As soon as practicable after that date the trustee of the estate must give to the Official Receiver a certificate, signed by the trustee, of the following matters:
(a) the name of the estate;
(b) the number of the administration;
(c) the terms and date of the special resolution.
‘(3) The Official Receiver must enter those matters in the official records.’.
16 Section 75 (Effect of composition or scheme of arrangement)
16. Subsection 75(2):
Omit the subsection.
16.2 Subparagraphs 75(4)(b)(i), (ii), (iii) and (iv):
Omit the subparagraphs, substitute:
‘(i) the creditors or the estate of the deceased person will suffer injustice or undue delay if the composition or scheme of arrangement proceeds; or
(ii) the approval of the creditors resulted from a misrepresentation by the legal personal representative; or
(iii) it is desirable that the deceased person’s:
(A) affairs be investigated; or
(B) estate be administered;
under this Act; or
(iv) it is likely that the creditors will receive a greater dividend if the estate is again administered under this Act;’.
16.3 Subsection 75(4):
Omit ‘trustee’, substitute ‘trustee, the legal personal representative’.
16.4 Subsection 75(6), (7) and (8):
Omit the subsections, substitute:
‘(6) In this section:
legal personal representative, in relation to a deceased person, means:
(a) the executor under the deceased person’s will; or
(b) the administrator under letters of administration or court order;
of the deceased person’s estate, or a part of that estate.’
17 Section 81 (Discovery of bankrupt’s property etc)
17.1 Subsection 81(1):
Omit the subsection, substitute:
‘(1) At any time during or after the administration under Part XI of the estate of a deceased person (in this section called ‘the relevant person’), the Court may, on the application of:
(a) a person (in this section called a ‘creditor’) who has or had a debt provable in the administration; or
(b) the trustee of the estate; or
(c) the Official Receiver;
summon an examinable person in relation to the estate for examination in relation to the administration.
‘(1AA) For the purposes of subsection (1):
examinable person, in relation to an estate of the relevant person, means:
(a) a person who is believed to be indebted to the estate; or
(b) a person who may be able to give information the relevant person or the examinable affairs of the relevant person; or
(c) a person who has possession of books that may relate to:
(i) the relevant person; or
(ii) the examinable affairs of the relevant person; or
(iii) the estate; or
(d) the executor under the relevant person’s will; or
(e) the administrator under letters of administration or court order;
of the relevant person’s estate, or a part of that estate.’.
17.2 Subsection 81(1B):
Omit paragraph (b), substitute:
‘(b) relate to:
(i) the relevant person; or
(ii) the examinable affairs of the relevant person; or
(iii) the estate.’.
17.3 Subsection 81(11AA):
Omit the subsection.
17.4 Subsection 81(12):
Before ‘relevant person’ (first occurring), insert ‘estate of the’.
17.5 Subsection 81(14):
Omit ‘person, other than the relevant person,’, substitute ‘person’.
18 Section 82 (Debts provable in bankruptcy)
18.1 Subsection 82(1):
Omit all the words from and including ‘a bankrupt’ to the end, substitute ‘the estate of a deceased person was subject at the date of the order for the administration of the estate, or to which the estate may become subject because of an obligation incurred before that date, are provable in the administration of the estate.’.
18.2 Subsection 82(1A):
Omit ‘bankrupt under a maintenance agreement or maintenance order before the date of the bankruptcy.’, substitute ‘by the deceased person under a maintenance agreement or maintenance order during the person’s lifetime and before the date of the order for the administration of the person’s estate.’.
18.3 Paragraph 82(8)(b):
Omit ‘discharge of the bankrupt;’, substitute ‘end of the administration of the deceased person’s estate;’.
19 Section 87 (Deduction of discounts)
19.1 Omit ‘debtor had not become a bankrupt.’, substitute ‘estate had not become subject to administration under Part XI.’.
20 Section 88 (Apportionment to principal and interest of payments made before bankruptcy)
20.1 Omit ‘by a debtor to a creditor before the debtor became a bankrupt’, substitute:
‘to a creditor by:
(a) the deceased person before his or her death; or
(b) the deceased person’s estate before the date of the order for the administration of the estate;’.
21 Section 95 (Proof in respect of distinct contracts)
21.1 Omit ‘person was, at the time when he or she became a bankrupt,’, substitute ‘deceased person whose estate is being administered under Part XI was, at the date of his or her death,’.
22 Section 104 (Appeal against decision of trustee in respect of proof)
22.1 Subsection 104(1):
omit
bankrupt
insert
legal personal representative of the bankrupt
22.2 After subsection 104(1):
insert
‘(1A) An application may be made under subsection (1) on the grounds that the proof was wrongly admitted.’.
22.2 After subsection 104(3):
insert
‘(4) In this section:
legal personal representative, for a deceased person, means:
(a) the executor under the deceased person’s will; or
(b) the administrator under letters of administration or court order;
of the deceased person’s estate, or a part of that estate.’.
23 Section 109 (Priority payments)
23.1 Paragraph 109(1)(a):
After ‘petitioning creditor’, insert ‘or the trustee of the deceased person’s estate’.
23.2 Paragraph 109(1)(b):
Omit the paragraph.
24 Section 109A (Debts due to employees)
24.1 Subsection 109A(1):
Omit the subsection, substitute:
‘Where:
(a) a contract of employment with a person who has since died and whose estate is being administered under Part XI was subsisting immediately before the date of the person’s death; or
(b) a contract of employment with the trustee, in his or her capacity as trustee, of an estate that is being administered under Part XI was subsisting immediately before the date of the order for the administration;
the employee under the contract is, whether or not the employee is a person referred to in subsection (2), entitled to payment under section 109 as if the employee’s employment had been terminated:
(c) where paragraph (a) applies:
(i) by the person; and
(ii) on the date;
mentioned in that paragraph; or
(d) where paragraph (b) applies:
(i) by the trustee; and
(ii) on the date;
mentioned in that paragraph.’.
24.2 Subsection 109A(2):
After ‘trustee (twice occurring), insert ‘or legal personal representative’.
24.3 After subsection 109A(2), insert:
‘(2A) In subsection (2):
legal personal representative, in relation to a deceased person, means:
(a) the executor under the deceased person’s will; or
(b) the administrator under letters of administration or court order;
of the deceased person’s estate, or a part of that estate.’.
25 Section 110 (Application of estates of joint debtors)
25.1 Omit the section.
26 Section 114 (Payment of liabilities etc incurred under terminated deed etc)
26.1 Omit ‘becomes a bankrupt’, substitute ‘dies, and his or her estate becomes subject to administration under Part XI,’.
27 Section 116 (Property divisible among creditors)
27.1 After subsection 116(1), insert:
‘(1A) In the application of this section to Part XI, a reference in subsection (1) to the discharge of a bankrupt is taken to be a reference to the termination of the administration, under that Part, of the estate of the deceased person.’.
27.2 Paragraphs 116(2)(c) and (ca):
Omit the paragraph.
27.3 Paragraph 116(2)(g):
Omit the paragraph, substitute:
‘(g) any right of the estate of the deceased person to recover damages or compensation:
(i) for personal injury (including injury resulting in death) or wrong done to the deceased person in his or her lifetime; or
(ii) for personal injury (including injury resulting in death) or wrong done to the spouse or a member of the family of the deceased person (whether the injury or wrong was done before or after the death of the deceased person);
‘(h) any damages or compensation recovered by the deceased person in his or her lifetime, or by the estate of the deceased person, in respect of an injury or wrong specified in subparagraph (g)(i) or (ii);’.
27.4 Subsection 116(2B):
Omit ‘(c) or (ca),’.
27.5 Subsection 116(2C):
Omit the subsection.
28 Section 117 (Policies of insurance against liabilities to third parties)
28.1 Paragraph 117(1)(b):
Omit ‘(whether before or after he or she became a bankrupt);’, substitute ‘at any time;’.
29 Section 118 (Execution by creditor against property of debtor who becomes a bankrupt etc)
29.1 Paragraph 118(1)(i)(a):
Omit ‘the presentation of a petition, or after the presentation of a petition, against a’, substitute ‘the making of an order under Part XI, or after the making of such an order, for the administration of the estate of a deceased’.
29.2 Subparagraph 118(1)(a)(ii):
Omit ‘and’.
29.3 Paragraph 118(1)(b):
Omit the paragraph.
29.4 Subsections 118(1), (3) and (4):
Omit ‘bankrupt’ (wherever occurring), substitute ‘debtor’.
29.5 Subsection 118(3):
Omit ‘bankruptcy’, substitute ‘administration of the estate’.
29.6 Paragraph 118(9)(a):
Omit ‘the presentation of a petition, or after the presentation of a petition, against a’, substitute ‘the making of an order under Part XI, or after the making of such an order, for the administration of the estate of a deceased’.
29.7 Subsection 118(9):
Omit ‘in the bankruptcy.’, substitute ‘of the estate.’.
29.8 Subsection 118(10):
Omit ‘debtor,’ (twice occurring), substitute ‘deceased person’s estate’.
29.9 Paragraphs 118(11)(a) and (b):
Omit ‘who, after the sale, becomes a bankrupt;’, substitute ‘who dies and whose estate becomes, or of a deceased person’s estate that becomes, after the sale, subject to an administration order under Part XI;’.
29.10 Subsection 118(11):
Omit ‘of the bankrupt’.
30 Section 119 (Duties of sheriff after receiving notice of presentation of petition etc)
30.1 Subsection 119(1):
Omit ‘against a debtor’, substitute ‘for an order for the administration of a deceased person’s estate’.
30.2 Paragraphs 119(1)(a) and (b):
Omit ‘debtor’ (wherever occurring), substitute ‘estate’.
30.3 Subsection 119(2):
Omit ‘the reference to the Court of a debtor’s petition against a debtor’, substitute ‘the presentation to the Court of a petition by a person administering the estate of a deceased person for an order for the administration of the estate’.
30.4 Paragraphs 119(2)(a) and (b):
Omit ‘debtor’ (wherever occurring), substitute ‘estate’.
30.5 Subsection 119(3):
Omit ‘a creditor’s petition against a debtor has been given under subsection (1) to a sheriff or notice of the reference to the Court of a debtor’s petition against a debtor has been given under subsection’, substitute ‘a petition has been given under subsection (1) or’.
30.6 Subsection 119(3):
Omit ‘the debtor’ (wherever occurring), substitute ‘the estate’.
30.7 Subsection 119(4):
Omit ‘against a debtor’, substitute ‘for an order for the administration of a deceased person’s estate’.
30.8 Paragraphs 119(4)(a) and (b):
Omit ‘debtor’ (wherever occurring), substitute ‘estate’.
30.9 Subsection 119(5):
Omit ‘the reference to the Court of a debtor’s petition against a debtor’, substitute ‘the presentation to the Court of a petition by a person administering the estate of a deceased person for an order for the administration of the estate’.
30.10 Paragraphs 119(5)(a) and (b):
Omit ‘debtor’ (wherever occurring), substitute ‘estate’.
30.11 Subsection 119(6):
Omit ‘against a debtor’, substitute ‘for an order for the administration of a deceased person’s estate’.
30.12 Subsection 119(6):
Omit ‘the debtor’ (wherever occurring), substitute ‘the estate’.
30.13 Subsection 119(7):
Omit ‘a debtor’, substitute ‘a deceased person’s estate’.
30.14 Subsection 119(7):
Omit ‘the debtor becomes a bankrupt’, substitute ‘the estate is administered under Part XI’.
31 Section 119A (Duties of sheriff after receiving notice of bankruptcy etc)
31.1 Subsection 119A(1):
Omit ‘has become a bankrupt’, substitute ‘has died, and his or her estate has become subject to administration under Part XI,’.
31.2 Subparagraph 119A(1)(a)(i):
Omit ‘bankrupt’, substitute ‘estate’.
31.3 Subparagraph 119A(1)(a)(ii):
Omit ‘bankrupt’ (first occurring), substitute ‘estate’.
31.4 Subparagraph 119A(1)(a)(ii):
Omit ‘bankrupt became a bankrupt,’ (twice occurring), substitute ‘debtor died,’.
31.5 Subparagraph 119A(1)(a)(ii):
Omit ‘bankrupt’ (third occurring), substitute ‘debtor or estate’.
31.6 Subparagraph 119A(1)(a)(iii):
Omit ‘bankrupt;’, substitute ‘estate;’.
31.7 Subparagraph 119A(1)(b)(i):
Omit ‘the bankrupt’ (first and third occurring), substitute ‘the estate’.
31.8 Subparagraphs 119A(1)(b)(i) and (ii):
Omit ‘bankrupt became a bankrupt,’, substitute ‘debtor died,’.
31.9 Subparagraph 119A(1)(b)(ii):
Omit ‘to the bankrupt;’, substitute ‘to the estate;’.
31.10 Subsection 119A(5):
Omit the subsection.
31.11 Paragraph 119A(6)(a):
Omit ‘bankrupt’, substitute ‘deceased person’.
31.12 Paragraph 119A(6)(b):
Omit ‘bankrupt’, substitute ‘estate’.
31.13 Subsection 119A(7):
Omit ‘a bankrupt’, substitute ‘the estate of a deceased person’.
32 Section 122 (Avoidance of preferences)
32.1 Subsection 122(1):
Omit ‘insolvent (the debtor)’, substitute ‘insolvent and who subsequently dies (the deceased debtor)’.
32.2 Subsection 122(1):
Omit ‘in the debtor’s bankruptcy’, substitute ‘of the deceased debtor’s estate being administered under Part XI’.
32.3 Paragraph 122(1)(b):
Omit the paragraph (including the table), substitute:
‘(b) was made in the period beginning 6 months before the presentation of the petition for an order for the administration of the estate and ending immediately before the date of the order.’.
32.4 Subsection 122(1A):
Omit ‘debtor’, substitute ‘deceased debtor before his or her death’.
32.5 Paragraphs 122(1A)(a) and (b):
Before ‘debtor’, insert ‘deceased’.
32.6 Paragraph 122(1A)(b):
Before ‘debtor’s’, insert ‘deceased’.
32.7 Paragraph 122(2)(b):
After ‘debtor’, insert ‘or the estate of the deceased debtor’.
32.8 Subsection 122(4A):
After ‘debtor’ (twice occurring), insert ‘or the estate of the deceased debtor’.
33 Section 123 (Protection of certain transfers of property against relation back etc)
33.1 Subsection 123(1):
Omit ‘becomes a bankrupt:’, substitute ‘has died, and his or her estate has become subject to administration under Part XI:’.
33.2 Paragraphs 123(1)(a), (b) and (c):
After ‘debtor’ insert ‘before he or she died’.
33.3 Paragraph 123(1)(e):
Omit ‘before the day on which the debtor became a bankrupt;’, substitute ‘on or before the day on which the debtor died;’.
33.4 Subsection 123(4):
Before ‘debtor’, insert ‘deceased’.
33.5 Subsection 123(4):
Omit ‘became a bankrupt,’, substitute ‘died,’.
33.6 Subsection 123(6):
Omit ‘a debtor becomes’, substitute ‘a deceased debtor before his or her death became’.
33.7 Subsection 123(6):
Before ‘debtor’ (second and third occurring), insert ‘deceased’.
34 Section 124 (Protection of certain payments to bankrupt etc)
34.1 Subsection 124(1):
Omit ‘becomes, or has become, a bankrupt’, substitute ‘has died, and his or her estate has become subject to administration under Part XI’.
34.2 Paragraph 124(1)(a):
After ‘made’, insert ‘on or’.
34.3 Paragraph 124(1)(a):
Omit ‘becomes a bankrupt’, substitute ‘dies’.
34.4 Paragraph 124(1)(b):
Omit ‘on or’.
34.5 Paragraph 124(1)(b):
Omit ‘became a bankrupt’, substitute ‘died’.
35 Section 125 (Certain accounts of undischarged bankrupt)
35.1 Subsection 125(1):
Omit ‘an undischarged bankrupt’, substitute ‘deceased and that his or her estate is being administered under Part XI’.
36 Section 126 (Dealings with undischarged bankrupt in respect of after‑acquired property)
36.1 Omit the section.
37 Section 127 (Limitation of time for making of claims by trustee etc)
37.1 After subsection 127(1), insert:
‘(1A) In the application of Part XI to this section, the reference in subsection (1) to the date on which a person became bankrupt is taken to be a reference to the date on which administration of a deceased person’s estate commenced.’.
38 Section 134 (Powers exercisable at discretion of trustee)
38.1 Paragraph 134(1)(m):
Omit ‘the bankrupt: (first occurring), substitute ‘the legal personal representative of a deceased person:’.
38.2 Subparagraph 134(1)(m)(i):
Omit ‘the bankrupt;’, substitute ‘the estate of the deceased person;’.
38.3 Subparagraph 134(1)(m)(ii):
Omit ‘bankrupt’s’ (twice occurring), substitute ‘estate’s’.
38.4 Subparagraph 134(1)(m)(iii):
Omit ‘bankrupt;’, substitute ‘estate’.
38.5 Paragraph 134(1)(m):
Omit ‘bankrupt’s services, make such allowance to the bankrupt’, substitute ‘services of the legal personal representative of the deceased person, pay such remuneration to him or her’.
38.6 Paragraphs 134(1)(n) and (o):
Omit ‘the bankrupt’, substitute ‘the estate of the deceased person’.
38.7 After subsection 134(1), insert:
‘(1AA) In subsection (1):
legal personal representative, in relation to a deceased person, means:
(a) the executor under the deceased person’s will; or
(b) the administrator under letters of administration or court order;
of the deceased person’s estate, or a part of that estate.’.
38.7 Subsection 134(1A):
Omit ‘An allowance made to the bankrupt’, substitute ‘Remuneration paid to the legal personal representative of a deceased person’.
39 Section 134 (Powers exercisable at discretion of trustee)
39.1 Paragraphs 134(1)(b) and (c):
Omit ‘the bankrupt;’, substitute ‘the estate of the deceased person;’.
39.2 Paragraph 134(1)(ma):
Omit the paragraph, substitute:
‘(j) pay such remuneration out of the estate of the deceased person as he or she thinks fit to the legal personal representative of the deceased person.’.
39.3 Section 134:
Add at the end:
‘(5) In this section:
legal personal representative, for a deceased person, means:
(a) the executor under the deceased person’s will; or
(b) the administrator under letters of administration or court order;
of the deceased person’s estate, or a part of that estate.’.
40 Section 138 (Limitation on trustee’s power in respect of copyright, patents etc)
40.1 Paragraph 138(1)(a):
Omit ‘bankrupt’, substitute ‘estate of a deceased person’.
40.2 Paragraphs 138(1)(b), (c) and (d):
Omit ‘bankrupt’, substitute ‘estate’.
41 Section 139ZL (Official Receiver may require persons to make payments)
41.1 Subsection 139ZL(6):
Omit ‘bankrupt’, substitute ‘legal personal representative of the deceased person’.
41.2 After subsection 139ZL(6), insert:
‘(6A) In subsection (6):
legal personal representative, in relation to a deceased person, means:
(a) the executor under the deceased person’s will; or
(b) the administrator under letters of administration or court order;
of the deceased person’s estate, or a part of that estate.’.
42 Section 139ZQ (Official Receiver may require payment)
42.1 Subsection 139ZQ(5):
Omit ‘bankrupt’, substitute ‘legal personal representative of the deceased person’.
42.2 After subsection 139ZQ(5), insert:
‘(5A) In subsection (5):
legal personal representative, in relation to a deceased person, means:
(a) the executor under the deceased person’s will; or
(b) the administrator under letters of administration or court order;
of the deceased person’s estate, or a part of that estate.’.
43 Section 143 (Provision to be made for creditors residing at a distance etc)
43.1 Paragraph 143(a):
Omit ‘bankrupt’s statement of’, substitute ‘statement of a deceased person’s’.
44 Section 146 (Distribution of dividends where bankrupt fails to file statement of affairs)
44.1 Omit ‘a bankrupt’, substitute ‘the legal personal representative of a deceased person’.
44.2 Omit ‘his or her affairs’ (twice occurring), substitute ‘the deceased person’s affairs’.
44.3 Omit ‘bankrupt’ (second occurring), substitute ‘legal personal representative’.
45 Section 156A (Consent to act as trustee)
45.1 Paragraph 156A(1)(a):
Before ‘debtor’ (first occurring), insert ‘deceased’.
45.2 Paragraphs 156A(1)(a) and (3)(a):
Omit ‘debtor becomes a bankrupt;’, substitute ‘deceased debtor’s estate is administered under Part XI;’.
45.3 Paragraph 156A(3)(a):
Omit ‘estate of the bankrupt;’, substitute ‘estate;’.
46 Section 161B (Trustee’s remuneration—minimum entitlement)
46.1 Subsection 161B(2):
Omit the subsection.
47 Section 162 (Trustee’s remuneration—general)
47.1 Subsection 162(3):
Omit ‘bankrupt’ (second occurring), substitute ‘legal personal representative of the deceased person’.
47.2 After subsection 162(3), insert:
‘(3A) In subsection (3):
legal personal representative, in relation to a deceased person, means:
(a) the executor under the deceased person’s will; or
(b) the administrator under letters of administration or court order;
of the deceased person’s estate, or a part of that estate.’.
48 Section 170 (Trustee to give Official Receiver and bankrupt information etc)
48.1 Subsection 170(2):
Omit the subsection, substitute:
‘(2) At the request of the legal personal representative of the deceased person, the trustee must give to the legal personal representative information reasonably required by the legal personal representative concerning the affairs of the deceased person.
‘(3) In subsection (2):
legal personal representative, in relation to a deceased person, means:
(a) the executor under the deceased person’s will; or
(b) the administrator under letters of administration or court order;
of the deceased person’s estate, or a part of that estate.’.
Schedule 8—Information on the National Personal Insolvency Index
(regulation 13.03)
Note: References in this Schedule to sections, subsections and paragraphs are references to those provisions of the Act.
Item No. | Provision of the Act | Document from which information may be entered in the Index | Person who must give the document to the Official Receiver | Period within which the document must be provided to the Official Receiver | Information to be entered in the Index |
1 | Section 50 trustee to take control of debtor’s property before sequestration | court order | applicant (creditor) | as soon as practicable | - date of order
- particulars of debtor
- date when trustee’s control ends (subsection
50(1B))
|
2 | Sections 43 and 47 creditor’s petition | creditor’s petition and verifying affidavit (subsections
47(1) and (1A)) | petitioning creditor | within 3 business days | - date of petition
- particulars of debtor
- name of petitioning creditor
- name and telephone number of petitioning creditor’s solicitors
- date of court hearing for sequestration order
|
3 | Section 43 sequestration order | sequestration order (subsection
43(1), section 52) | Creditor who obtained the order (subsection
52(1A)) | within 2 days | - date of order
- particulars of bankrupt
- name of petitioning creditor
- name and telephone number of petitioning creditor’s solicitors
- name of trustee
- date of filing of Statement of Affairs
|
4 | Section 55 debtor’s petition | debtor’s petition and statement of affairs (subsection
55(2)) | debtor (subsection
55(1)) | not applicable | - particulars of debtor
- date of acceptance (or, if the Court orders the Official Receiver to accept the petition, the date of commencement of the bankruptcy (subsection
55(3B)) - name of trustee
- date of filing of Statement of Affairs
|
5 | Section 56B debtor’s petition against partnership | debtor’s petition and statements of affairs (section 56B) | petitioning partners (subsection
56A(1)) | not applicable | - particulars of each debtor/ partner
- date of acceptance (or, if the Court orders the Official Receiver to accept the petition, the date of commencement of the bankruptcy of each partner (section 56C))
- name of trustee
- date of filing of Statement of Affairs
|
6 | Section 57 debtor’s petition by joint debtors who are not partners | debtor’s petition and statements of affairs (subsection
57(2)) | 2 or more petitioning debtors (subsection
57(1)) | not applicable | - particulars of each debtor
- date of acceptance (or, if the Court orders the Official Receiver to accept the petition, the date of commencement of the bankruptcy of each debtor subsection
57(3B)) - name of trustee
- date of filing of Statement of Affairs
|
7 | Section 74 annulment of bankruptcy by special resolution of creditors | written notice (subsection
74(5A)) | trustee (subsection
74(5A)) | as soon as practicable after passage of special resolution (subsection
74(5A)) | - date of annulment of the bankruptcy
|
7A | Section 76B record of the termination or setting aside of a composition or scheme of arrangement | copy of record | trustee | immediately | - date of termination or setting aside
|
8 | Section 149 automatic discharge from bankruptcy | not applicable | not applicable | not applicable | |
9 | Sections
149B, 149C objection to discharge | Notice of objection (section
149B) | trustee (section
149B) | at any time before discharge | - date objection takes effect (ie day on which details of notice entered in the Index section 149G)
- grounds of objection
- person lodging the notice (i.e. trustee)
|
10 | Section 149H trustee ceasing to object on a particular ground | notice of ceasing to object (subsection
149H(1)) | trustee (subsection
149H(1)) | at any time before discharge (subsection
149H(1)) | - date objection ceases to have effect (if at all) (ie day on which details of notice entered in the Index subsection
149H(3)) - grounds of objection to which notice relates
- person lodging the notice (i.e. trustee)
|
11 | Section 149J trustee or Official Receiver withdrawing objection | notice of withdrawal (subsection
149J(1)) | trustee (subsection
149J(1))
(see also subsection
149J(2) for Official Receiver) | at any time before discharge (subsections
149J(1) and (2)) | - date withdrawal of objection takes effect (ie day on which details of notice entered in the Index subsection
149J(3)) - person lodging the notice (i.e. trustee or Official Receiver)
|
12 | Section 149N Inspector General’s review of decision to object (also: section
149Q‑AAT review of decision) | if the Inspector General cancels the objection—written notice that objection cancelled | trustee | as soon as practicable after objection cancelled | - date the cancellation takes effect (subsection
149N(2))
|
13 | Sections 149S and 149ZF early discharge from bankruptcy | [application for early discharge (subsection
149S(2)] certificate of discharge (subsection
149ZF (3)) | certificate—registered trustee (subsection
149ZF(3)) (see also Official Receiver: subsection
149ZF(3); see also subsection
149ZK(2) for decision on review) | as soon as practicable after trustee signs certificate (subsection
149ZF(3)) | - date on which bankruptcy is discharged (subsection
149ZF(1); see also subsection
149ZK(2))
|
14 | Section 153A annulment of bankruptcy on payment of debts | certificate (subsection
153A(2)) | trustee (subsection
153A(2)) | as soon as practicable after debts paid in full (subsection
153A(2)) | |
15 | Section 153B annulment of bankruptcy by Court | court order (section
153B) | applicant (Rule 7.04
of FC
(Bankruptcy) Rules and of FCC (Bankruptcy) Rules) | 2 days after the order is entered (Rule 7.04 of FC (Bankruptcy) Rules and
of FCC (Bankruptcy) Rules) | |
20 | Sections 184 and 184A release of trustee by operation of law after 7 years | no document specified | registered trustee | not applicable | - fact that the administration of an estate is finalised
|
21 | Part IX debt agreement proposal | debt agreement proposal, explanatory statement and statement of affairs | debtor | not applicable | date that acceptance of proposal for processing and name and address of debt agreement processor are entered in the Index particulars of debtor particulars of whether proposal accepted or rejected following processing date that a proposal lapses (if at all) date of withdrawal or cancellation of proposal |
22 | Part IX debt agreements | debt agreement notification of completion or termination of the debt agreement notification of a designated 6‑month arrears default | notification of completion: the debt agreement administrator notification of 6‑month arrears default: the debt agreement administrator | notification of completion: 5 business days after end of debt agreement notification of 6‑month arrears default: 10 business days after occurrence of designated 6‑month arrears default | particulars of debtor (if different from particulars in debt agreement proposal) date that making of debt agreement entered in the Index date at end or termination of debt agreement particulars of reason for debt agreement termination or end |
22A | Section 185N ending a debt agreement by discharging obligations | certificate given under subsection
185N(3) | not applicable | not applicable | - date of giving of certificate
|
22B | Section 185P (as in force immediately before 1 July 2007) terminating a debt agreement (made as the result of the acceptance of a debt agreement proposal given to the Official Receiver before 1 July 2007) by proposal | Minutes of creditors meeting called under section 185A (as in force immediately before 1 July 2007), or the record made by the Official Receiver of acceptance of proposal under subsection
185B(3) (as in force immediately before 1 July 2007) | not applicable | not applicable | date of acceptance of proposal |
22C | Section 185Q terminating a debt agreement by court order | court order | applicant (Rule 9.05
of FC
(Bankruptcy) Rules and of FCC (Bankruptcy) Rules) | 2 days after the order is entered (Rule 9.05
of FC
(Bankruptcy) Rules and of FCC (Bankruptcy) Rules) | |
22D | Section
185QA (as in force immediately before 1 July 2007) terminating a debt agreement (made as the result of the acceptance of a debt agreement proposal given to the Official Receiver before 1 July 2007) by special resolution of creditors | Minutes of meeting called under section
185QA (as in force immediately before 1 July 2007) | not applicable | not applicable | date of passing of special resolution |
23 | Sections
185T and 185U voiding a debt agreement | court order (subsection
185U(1)) | applicant (Rule 9.05
of FC
(Bankruptcy) Rules and of FCC (Bankruptcy) Rules) | 2 days after the order is entered (Rule 9.05 of FC (Bankruptcy) Rules and of FCC (Bankruptcy) Rules) | - whether agreement is voided in whole or in part
|
23A | Section 186B Application for registration as a debt agreement administrator | application | Inspector‑
General | not applicable | - date of application
- particulars of applicant
|
23B | Section 186D Registration as a debt agreement administrator | application approval or refusal of registration application under section 186C (including any conditions specified for subsection
186C(9)). | Inspector‑
General | not applicable | particulars of applicant details of the approval or refusal (including specified conditions applying to the debt agreement administrator on registration) |
23C | Section 186F Conditions of registration | notice of imposition of conditions | Inspector‑
General | not applicable | particulars of conditions imposed on debt agreement administrator’s registration |
23D | Sections
185ZCA, 186J, 186K and 186L Debt agreement administrator registration ceases | approval of registration notice of request to accept surrender of registration (section 186J) notice of cancellation of registration (section 186K or 186L) | Inspector‑
General | not applicable | date debt agreement administrator registration ceases particulars of reason for end of registration |
24 | Section 188 and subsection
189(1B) authority to be controlling trustee (personal insolvency agreement); notice of event causing end of control by trustee | authority (subsection
188(1)); notice (subsection
189(1B)) | registered trustee or solicitor (subsection
188(5); subsection
189(1B)) | authority: 2 business days of consent to act; notice: 7 days after becoming aware that control has ended | - date of filing of statement of affairs
- name of controlling trustee
- particulars of debtor
- date of termination of control
|
24A | Section 192 authority to be controlling trustee passing to Official Trustee | Evidence of event mentioned in subsection
192(1) (death, cessation, incapacity written request) | Official Trustee | 14 days of control passing | - date of passing of control
|
25 | Section 204 and subsection
218(1) personal insolvency agreement | copy of agreement (paragraph
218(1)(b)) | trustee (paragraph
218(1)(b)) | within 21 days after executing agreement | - date of execution of agreement
- particulars of debtor (if different from particulars in section 188 authority)
- name of each nominated trustee of the agreement
- (subsection
204(3); see also section 215A) - date of filing of statement of affairs
|
26 | Section 221 sequestration order for certain failures under Part X | court order (subsection
221(1)) | applicant | 2 days after the order is made | - date of order
- particulars of bankrupt (if different from particulars in section 188 authority))
- name of petitioning creditor (if any)
- name and telephone number of petitioning creditor’s solicitors (if any)
- name of trustee
- date of filing of Statement of Affairs
|
27 | Subsection
222(10) sequestration order against estate of debtor | sequestration order | applicant for sequestration order | 2 days after the order is made (regulation
10.11) | - date of order
- particulars of debtor
|
28 | Section 222A termination of personal insolvency agreement by trustee | copy of written
notice of termination (regulation
10.12) | trustee of the agreement | immediately (regulation
10.12) | |
28A | Subsection
222C (5) sequestration order against estate of debtor | sequestration order | applicant for sequestration order | 2 days after the order is made (regulation
10.11) | - date of order
- particulars of debtor
|
28B | Subsections
224A(1) and (3) terminating personal insolvency agreement by creditors or event specified in agreement | copy of resolution or special resolution (subsection
224A(1)); written notice (subsection
224A(3)) | trustee (subsections
224A(1) and (3)) | immediately (subsections
224A(1) and (3)) | |
28C | Subsection
224A(4) court order setting aside
or terminating a personal insolvency agreement | written notice | registered trustee | 2 days after the order is made (regulation 10.11) | - date when agreement set aside or terminated
|
28D | Section 232 certificate relating to discharge of obligations under personal insolvency agreement | certificate given to debtor under subsection
232(1) | trustee | not applicable | - date when trustee signed certificate
|
29 | Section 244 creditor’s petition for Part XI administration (deceased estates) | creditor’s petition and verifying affidavit (subsections
244(1) and (5)) | petitioning creditor | not applicable | - date of petition
- particulars of deceased
- name of petitioning creditor
- name and telephone number of petitioning creditor’s solicitors
- date of hearing for administration order
- date of filing of Statement of Affairs
|
30 | Section 244 and section 245 (death of debtor after creditor’s petition under section 47) Part XI
administration (deceased estates) | court order (subsections
244(14); 245(3)) | petitioning creditor (subsections
244(14);
245(3)) | 2 days beginning on the day the order is made (subsection 244(14)) | - date of order
- particulars of deceased (if particulars different from particulars in relevant creditor’s petition)
- name of trustee
|
31 | Section 247 administrator’s petition for Part XI administration of deceased estate | petition and statement
of affairs (subsection
247(1)) | administrator (subsection
247(1)) | not applicable | - date of petition
- particulars of deceased
- name of administrator
- name and telephone number of administrator’s solicitors
- date of filing of Statement of Affairs
|
32 | Section 247 court order
for Part XI administration on administra‑
tor’s petition | court order (subsection
247(1A)) | applicant (subsection 247(3)) | 2 days beginning on the day the order is made (subsection 247(3)) | - date of order
- the following particulars
if different from those in administrator’s petition: - particulars of deceased
- name of administrator
- name and telephone number of administrator’s solicitors
- name of trustee
- date of filing of Statement of Affairs
|
33 | Section 253E stay of proceedings in relation to farmers’ debts assistance | court order (subsection
253E(1)) | applicant | 7 days | - date of order
- period of stay (subsection
253E(3))
|
