Bankruptcy (Fees and Remuneration) Determination 2013 Amendment Determination 2013 (No. 1)
Bankruptcy Act 1966
I, GEORGE BRANDIS, Attorney-General, make this Determination under subsection 316 (1) of the Bankruptcy Act 1966.
Dated                                          22 October 2013
 
GEORGE BRANDIS QC
Attorney-General
 
 
Part 1                 Preliminary
  
1.01        Name of Determination
                This Determination is the Bankruptcy (Fees and Remuneration) Determination 2013 Amendment Determination 2013 (No. 1).  
1.02        Commencement
                This Determination commences on the day after registration.
1.03        Amendment of Bankruptcy (Fees and Remuneration) Determination 2013
                Schedule 1 amends the Bankruptcy (Fees and Remuneration) Determination 2013.
Schedule 1        Amendments
[1]           Part 3, substitute
Part 3 Remuneration not exempt from GST
Division 3.1           Preliminary
3.01        Realised balance
         (1)   For this Part, realised balance, for an estate or debtor at a time, is the lesser of:
                (a)    amount realised – (business costs + securities); and
               (b)    costs of administration + debts;
where:
amount realised means the total amount realised, or brought to credit, in the estate or for the debtor by the Official Trustee up to that time, other than any amounts paid to the trustee by creditors:
                (a)    under an indemnity for costs; or
               (b)    under section 50 of the Act.
business costs means the amount paid by the Official Trustee in carrying on the business of the bankrupt, debtor or deceased person up to that time.
costs of administration means the proper costs, charges and expenses of administration of the estate, other than:
                (a)    any realisation charge paid or payable by the Official Trustee under an Act; and
               (b)    any remuneration paid or payable to the Official Trustee under this Determination.
debts means the total of:
                (a)    the taxed costs of the petitioning creditor; and
               (b)    proved or provable debts of the estate or debtor, including interest accrued before the date of bankruptcy; and
                (c)    if they are interest‑bearing debts — interest accrued on and after that date on those debts.
securities means the amount paid to secured creditors in relation to their securities up to that time.
Example
If the realised balance calculated under paragraph (a) is $3 500, but under paragraph (b) the costs of administration and the amount of debts totals only $3 000, the realised balance is taken to be $3 000.
         (2)   For subsection (1), property vested in the Official Trustee because of section 58 of the Act in connection with the estate of a bankrupt or deceased person is taken, unless the Court otherwise orders, to have been realised or brought to credit by the Official Trustee if:
                (a)    the property is applied by the bankrupt, or a person acting on behalf of the bankrupt or deceased person, in payment of a creditor of the estate; and
               (b)    the Official Trustee is consequently prevented from realising or bringing to credit the value of the property.
Division 3.2           Remuneration not exempt from GST
3.03        Work in relation to carrying on business or taking control of property under section 50 of Act
         (1)   This section applies if the Official Trustee:
                (a)    takes control of the property of a debtor under a direction of the Court under section 50 of the Act; or
               (b)    carries on the business of a bankrupt or deceased person; or
                (c)    having been directed to take control of the property of a debtor under section 50 of the Act, carries on the business of the debtor.
         (2)   The remuneration that is payable to the Official Trustee for work mentioned in subsection (1) is $62.50 for each period of 15 minutes, or part of 15 minutes.
3.04        Work in relation to compositions or arrangements with creditors
         (1)   Subject to subsection (2) and section 3.10, if the Official Trustee performs work under Division 6 of Part IV of the Act, the remuneration payable to the Official Trustee is 20% of the value of the composition or scheme of arrangement accepted by the creditors in accordance with that Division.
         (2)   If the Official Trustee transfers work mentioned in subsection (1) to, or is replaced by, a registered trustee, the remuneration payable to the Official Trustee for work performed is $62.50 for each period of 15 minutes, or part of 15 minutes.
         (3)   The remuneration payable to the Official Trustee is payable:
                (a)    for work under subsection (1) — out of the composition or scheme of arrangement; or
               (b)    for work under subsection (2) — out of the estate.
3.05        Work in relation to bankruptcy that is annulled
                If a bankruptcy is annulled under section 153A or 153B of the Act, the remuneration payable to the Official Trustee for acting as trustee in a bankruptcy is $4 000 plus 20% of the realised balance.
3.06        Work in relation to debt agreements
         (1)   Subject to subsection (2) and section 3.10, if the Official Trustee is appointed to be an administrator for a debt agreement made under section 185H of the Act, the remuneration payable to the Official Trustee is 20% of the value of the debt agreement.
         (2)   If the Official Trustee transfers administration of a debt agreement to, or is replaced by, an administrator or a registered trustee, the remuneration payable to the Official Trustee for acting as administrator of the debt agreement is $62.50 for each period of 15 minutes, or part of 15 minutes.
3.07        Work as controlling trustee
         (1)   If the Official Trustee acts under Part X of the Act as controlling trustee, the remuneration payable to the Official Trustee is $62.50 for each period of 15 minutes, or part of 15 minutes, for work as controlling trustee.
         (2)   The remuneration of the Official Trustee for work mentioned in section (1) is payable out of the estate.
3.08        Work in relation to personal insolvency agreements
         (1)   Subject to subsection (2) and section 3.10, if the Official Trustee acts under Part X of the Act as trustee of a personal insolvency agreement, the remuneration payable to the Official Trustee is 20% of the value of the personal insolvency agreement.
         (2)   If the Official Trustee transfers administration of a personal insolvency agreement to, or is replaced by, a registered trustee, the remuneration payable to the Official Trustee for acting as trustee of the personal insolvency agreement is $62.50 for each period of 15 minutes, or part of 15 minutes.
         (3)   The remuneration of the Official Trustee for work mentioned in subsection (1) or (2) is payable out of the estate.
3.09        Work in relation to estate of bankrupt or administration of estate of deceased person
         (1)   If the Official Trustee acts as trustee of the estate of a bankrupt, or of a deceased person for whose estate an order for administration has been made under Part XI of the Act, the remuneration payable to the Official Trustee is $4 000 plus 20% of the realised balance.
         (2)   If the Official Trustee acts as trustee in any of the following circumstances, the remuneration payable is $62.50 for each period of 15 minutes, or part of 15 minutes:
                (a)    if the Official Trustee transfers administration of the estate to, or is replaced by, a registered trustee before the bankruptcy is annulled under section 153A or 153B of the Act;
               (b)    if a registered trustee is replaced by the Official Trustee for work as trustee of the estate of a bankrupt, or of a deceased person for whose estate an order for administration has been made under Part XI of the Act;
                (c)    if a registered trustee transfers work mentioned in paragraph (b) to the Official Trustee.
         (3)   The remuneration of the Official Trustee for work mentioned in this section is payable out of the estate.
3.10        Work performed in place of registered trustee or debt agreement administrator
         (1)   This section applies if:
                (a)    a registered trustee or debt agreement administrator is replaced by the Official Trustee for work or administration of the kind mentioned in subsection 3.04 (1), 3.06 (1) or 3.08 (1); or
               (b)    a registered trustee or debt agreement administrator transfers work or administration of the kind mentioned in subsection 3.04 (1), 3.06 (1) or 3.08 (1) to the Official Trustee.
         (2)   The remuneration payable to the Official Trustee for work performed in place of a registered trustee or a debt agreement administrator is $62.50 for each period of 15 minutes, or part of 15 minutes.
3.11        Remuneration in addition to realised balance amount
                The remuneration payable to the Official Trustee for work performed under section 3.03, subsection 3.04 (1) or section 3.07 is in addition to any remuneration payable to the Official Trustee for work performed under subsection 3.09 (1).
Note
1.       All legislative instruments and compilations are registered on the Federal Register of Legislative Instruments kept under the Legislative Instruments Act 2003. See http://www.frli.gov.au.