Statutory Rules 1980 No. 386 RULES UNDER THE BANKRUPTCY ACT 19661 I, THE GOVERNOR-GENERAL of the Commonwealth of Australia, acting with the advice of the Federal Executive Council and in pursuance of section 4 of the Acts Interpretation Act 1901, hereby make the following Rules under the Bankruptcy Act 1966. Dated this twenty-second day of December 1980. ZELMAN COWEN Governor-General By His Excellency’s Command, JOHN MOORE Minister of State for Business and Consumer Affairs
Amendments of the Bankruptcy Rules2 Interpretation 1. Rule 4 of the Bankruptcy Rules is amended — (a) by inserting in the definition of “official copy” in sub-rule (1) “and stamped” after “signed”; and (b) by inserting after sub-rule (2) the following sub-rule: “(3) A reference, however expressed, in these Rules to a document being stamped by the Registrar shall be read as a reference to the document being stamped with the stamp referred to in section 14A of the Act.”. Application for issue of bankruptcy notice 2. Rule 7 of the Bankruptcy Rules is amended — (a) by inserting in paragraph (b) of sub-rule (2) “and stamping” after “signature”; and (b) by inserting in sub-rule (5) “and stamp” after “sign”. Procedure for presentation of petition 3. Rule 12 of the Bankruptcy Rules is amended by inserting in sub-rule (2) “and stamping” after “signature”. Copies of petition for service 4. Rule 13 of the Bankruptcy Rules is amended — (a) by inserting in paragraph (b) of sub-rule (1) “and stamp” after “sign”; (b) by adding at the end of that paragaph “and”; and (c) by omitting paragraph (ba) of sub-rule (1). 5. After rule 14 of the Bankruptcy Rules the following rule is inserted in Division 2: Notice to sheriff or registrar by creditor for maintenance '”14A. A notice under sub-section 119 (3) or 119 (6) of the Act shall be in accordance with Form 6A.”. Personal service of bankruptcy notice or creditor's petition 6. Rule 15 of the Bankruptcy Rules is amended by inserting in paragraph (a) “and stamped” after “signed”. Proof of service 7. Rule 16 of the Bankruptcy Rules is amended by inserting in paragraph (a) “and stamped” after “signed”. Application for receiver before sequestration 8. Rule 17 of the Bankruptcy Rules is amended by adding at the end thereof the following sub-rule: “(3) Where the Court gives a direction under sub-section 50 (1) of the Act, the applicant shall, as soon as practicable, serve on the Official Trustee a copy of — (a) the application; and (b) the affidavit in support of the application.”. Expenses of Official Trustee before sequestration 9. Rule 18 of the Bankruptcy Rules is amended — (a) by omitting sub-rule (1) and substituting the following sub-rule: “(1) Where the Court — (a) has given a direction under sub-section 50 (1) of the Act; or (b) having given a direction under sub-section 50 (1) of the Act, has issued a summons under sub-section 50 (2) of the Act, and the amount deposited with the Official Trustee in accordance with the direction of the Court is insufficient to meet the fees and expenses incurred by the Official Trustee — (c) as a result of the direction; or (d) in carrying out an examination of a person as a result of the issue of the summons, the Official Trustee may apply to the Court for an order directing the creditor by whom the application under sub-section 50 (1) of the Act was made to deposit with the Official Trustee such additional sum as the Court directs.”; (b) by omitting from sub-rule (2) “the official receiver” (wherever occurring) and substituting “the Official Trustee”; and (c) by omitting from sub-rule (2) “in taking control of the property of the debtor” and substituting “incurred as a result of the direction, or in carrying out an examination of a person as the result of the issue of a summons, or both, as the case requires,”. Application for damages where petition dismissed 10. Rule 19 of the Bankruptcy Rules is amended by omitting “official receiver” and substituting “Official Trustee”. 11. After rule 23 of the Bankruptcy Rules the following rule is inserted in Division 5: Notice of application to consolidate proceedings “23A. Where application is made to the Court for an order under sub-section 53 (1) or section 248A of the Act that the Court consolidate proceedings, the trustee of the estates of the bankrupts or the deceased persons in respect of which an order for administration has been made under Part XI of the Act shall give notice of the application to — (a) the bankrupts or the legal personal representatives of the estates of the deceased persons, as the case requires; (b) each creditor the name and address of whom is known to the trustee; and (c) where the trustee is the trustee of the estates of deceased persons — to each beneficiary to whom property has passed.”. Form of debtor’s petition 12. Rule 24 of the Bankruptcy Rules is amended by adding at the end thereof the following sub-rules: “(2) For the purposes of sub-section 56 (3) of the Act, a debtor's petition against a partnership shall be in accordance with Form 9A. “(3) For the purposes of sub-section 57 (3) of the Act, a debtor's petition by joint debtors who are not partners shall be in accordance with Form 9B.”. 13. After rule 24 of the Bankruptcy Rules the following rules are inserted: Registrar’s endorsement on debtor’s petition to be stamped “24A. Where the Registrar endorses a petition in pursuance of sub-section 55 (3) of the Act, the Registrar shall stamp the endorsement. Notice by attachment creditor “24B. A notice under sub-paragraph 118 (5) (b) (i) or 118 (6) (b) (i) of the Act shall be in accordance with Form 11A.”. 14. Rule 25 of the Bankruptcy Rules is repealed and the following rule substituted: Notice of hearing of reference of debtor’s petition by Court “25. (1) Where the Registrar refers — (a) a debtor’s petition and statement of affairs to the Court in accordance with sub-section 55 (4) or 56 (5) of the Act; or (b) a joint debtor’s petition and statements of affairs to the Court in accordance with sub-section 57 (5) of the Act, the Registrar shall serve on the solicitor for the debtor, or the solicitor for each debtor, as the case requires, notice of the date, time and place fixed for the hearing of the reference by the Court. “(2) Where the Registrar refers a debtor’s petition and statement of affairs to the Court in accordance with sub-section 56 (6) of the Act, the Registrar shall serve on each of the partners who did not join in presenting the petition notice of the date, time and place fixed for the hearing of the reference by the Court.”. Form of sequestration order and number of copies to be produced to Registrar 15. Rule 26 of the Bankruptcy Rules is amended by omitting from sub-rule (4) “official receiver” and substituting “Official Receiver”. Notification of bankruptcy 16. Rule 27 of the Bankruptcy Rules is amended — (a) by omitting from sub-rule (1) “official receiver” and substituting “Official Receiver”; (b) by omitting from paragraph (c) of sub-rule (2) “official receiver” and substituting “Official Receiver”; and (c) by adding at the end thereof the following sub-rules: “(3) The Official Receiver shall, within 28 days of the date on which a person becomes bankrupt, or within such further period as the Registrar, on application made by the Official Receiver, allows — (a) cause notice of the fact of the bankruptcy to be served on each creditor of the bankrupt, being a creditor whose address is known to the Official Receiver; and (b) where the bankrupt has lodged his statement of affairs — forward to each of those creditors a summary of the statement of affairs. “(4) For the purposes of sub-section 246 (2) of the Act, where an order is made under section 244 or 245 of the Act for the administration of the estate of a deceased person, the Official Receiver shall notify the legal personal representative of the deceased person of the making of the order by posting a sealed copy of the order by certified mail, postage being prepaid, to the legal personal representative at the last-known address of the legal personal representative.”. 17. After rule 29 of the Bankruptcy Rules the following rule is inserted in Division 7: Demand by trustee under section 129 of the Act “29A. For the purposes of sub-section 129 (4B) of the Act, a demand under sub-section 129 (4A) of the Act shall be in accordance with Form 12A.”. Form of statement of affairs 18. Rule 30 of the Bankruptcy Rules is amended by omitting "sub-section 56 (6)" and substituting "sub-sections 55 (2), 56 (3) and (14) and 57 (3)". Application for extension of time for filing statement of affairs 19. Rule 31 of the Bankruptcy Rules is amended — (a) by omitting from sub-rules (1) and (2) “54 (2) or 56 (6)” (wherever occurring) and substituting “54 (1), 56 (13) or 246 (1)”; and (b) by omitting from sub-rules (3) and (4) “official receiver” (wherever occurring) and substituting “Official Receiver”. Examination of bankrupts 20. Rule 32 of the Bankruptcy Rules is amended — (a) by omitting from sub-rule (1) “sub-section 69 (1)” and substituting “sub-section 69 (3)”; (b) by inserting after sub-rule (1) the following sub-rule: “(1A) A summons issued under sub-rule (1) shall be signed and stamped by the Registrar.”; and (c) by omitting from sub-rule (3) "official receiver" and substituting "Official Receiver". 21. Rule 34 of the Bankruptcy Rules is repealed and the following rule substituted: Dispensing with, or postponement of, public examination “34. (1) An application for a direction under sub-section 69 (15) of the Act may be made by — (a) the Official Receiver; (b) the trustee; or (c) the bankrupt or another person acting on behalf of the bankrupt. “(2) An application referred to in sub-rule (1) may be made to the Registrar ex parte by the Official Receiver by filing a request in writing, together with — (a) a certificate of a legally qualified medical practitioner giving particulars of the bankrupt's mental or physical disability; and (b) a report by the Official Receiver or the trustee, as the case may be, setting out any other matters that the Official Receiver, or the trustee, wishes the Registrar to consider in connection with the application. “(3) Where an application referred to in sub-rule (1) is made by a person other than the Official Receiver or the trustee — (a) the applicant may file, in support of the application, a certificate of a legally qualified medical practitioner giving particulars of the bankrupt's mental or physical disability; and (b) a copy of the application, being a copy on which particulars of the date, time and place fixed for hearing of the application appear, shall be served on the Official Receiver and on the trustee. “(4) Before making a recommendation referred to in sub-section 69 (13) of the Act, the Official Receiver shall give notice in writing to the bankrupt's creditors that he proposes to make the recommendation.”. Application for approval of composition or scheme 22. Rule 35 of the Bankruptcy Rules is amended by omitting paragraphs (a) and (b) of sub-rule (2) and substituting the following paragraphs: “(a) on the Official Receiver; and (b) on the trustee.”. Form of proof of debt 23. Rule 37 of the Bankruptcy Rules is amended by omitting sub-rule (3) and substituting the following sub-rules: “(3) A notice by a trustee for the purposes of sub-section 84 (3) or 85 (2A) of the Act shall be in accordance with Form 16A. “(4) For the purposes of sub-section 84 (4) or 85 (2B) of the Act, a prescribed person, in relation to a statutory declaration verifying matters in a proof of debt lodged by a creditor, is a person who — (a) knows of his own knowledge the facts set out in the statutory declaration and in the proof of debt; and (b) is authorized by the creditor to make the declaration on behalf of the creditor.”. 24. Rule 39 of the Bankruptcy Rules is repealed and the following rule substituted: Trustee to file list of proofs of debt “39. A trustee shall, within 14 days after declaring a dividend that is the first dividend paid in respect of a proof of debt, file a list, in accordance with Form 17, certified by him, setting out the particulars required by that form in respect of all proofs of debt received by him, being proofs of debt in respect of which no previous dividend has been declared.”. Prescribed order for the purposes of paragraph 109 (1) (a) of the Act 25. Rule 40 of the Bankruptcy Rules is amended — (a) by omitting “paragraph 109 (1) (b)” and substituting “paragraph 109 (1) (a)”; and (b) by omitting from paragraph (b) “official receiver” and substituting “Official Receiver”. 26. Rule 44 of the Bankruptcy Rules is repealed and the following rule substituted: Notice requiring trustee to apply to Court “44. A notice under paragraph 133 (4) (b) of the Act shall be in accordance with Form 19A.”. Redirection order 27. Rule 45A of the Bankruptcy Rules is amended by inserting in paragraph (b) of sub-rule (1) “and stamped” after “signed”. Statement as to realization and distribution of an estate 28. Rule 47 of the Bankruptcy Rules is amended by omitting “sub-section 140 (5)” and substituting “sub-section 140 (8)”. 29. Rule 48 of the Bankruptcy Rules is repealed and the following rule substituted: Notice of final dividend “48. A notice for the purposes of sub-section 145 (3) of the Act shall be in accordance with Form 22.”. Objection to discharge 30. Rule 49 of the Bankruptcy Rules is amended — (a) by omitting from sub-rule (1) “paragraph 149 (3) (b)” and substituting “paragraph 149 (3) (c)”; and (b) by omitting sub-rule (2) and substituting the following sub-rules: “(2) A person who enters an objection to the discharge of a bankrupt shall cause a copy of the notice and, where the objection is entered by leave of the Court, a copy of the order granting leave, to be posted, by pre-paid certified mail, to — (a) the Official Receiver; (b) the trustee; and (c) the bankrupt. “(3) Where the Court makes an order under sub-section 149 (8) of the Act, the person on whose application the order is made shall serve a copy of the order on the bankrupt.”. Withdrawal of objection 31. Rule 50 of the Bankruptcy Rules is amended — (a) by omitting from sub-rule (1) “sub-section 149 (4)” and substituting “sub-section 149 (5)”; and (b) by omitting from sub-rule (2) “to the bankrupt, by pre-paid registered post” and substituting “, signed and stamped by the Registrar, to the bankrupt, by pre-paid certified mail”. 32. Rule 51 of the Bankruptcy Rules is repealed and the following rules substituted: Certificate of discharge “51. A certificate of discharge issued under sub-paragraph 260 (1) (a) (iii) of the Act shall be in accordance with Form 25. Matters prescribed for the purposes of sub-section 149 (10) of the Act “51A. The following matters are prescribed for the purposes of sub-section 149 (10) of the Act: (a) whether the bankrupt is able, or is likely within 5 years from the date of the bankruptcy to be able, to make a significant contribution to his estate; (b) whether the discharge of the bankrupt would prejudice the administration of his estate; (c) whether the bankrupt has co-operated in the administration of his estate; (d) the conduct of the bankrupt, in respect of the period both before and after the date of the bankruptcy; (e) any matters arising out of the conduct of the bankrupt as a bankrupt, being matters that are the subject of an investigation that is not completed; (f) the age and state of health of the bankrupt; (g) any evidence adduced by the bankrupt, the Official Receiver, the trustee or a creditor relating to — (i) the circumstances in which the debts of the bankrupt were incurred, including the bankrupt’s experience in, and understanding of, financial matters and of the obligations imposed on the bankrupt as a result of incurring the debts; and (ii) the conduct of the bankrupt’s creditors, including the nature and extent of any inquiries made by the creditors into the bankrupt's ability to pay his debts and whether the bankrupt was induced to incur debts by conduct on the part of the creditors that departed from the standards of normal and reasonable commercial practice.”. Application to Court for discharge 33. Rule 52 of the Bankruptcy Rules is amended by omitting sub-paragraph (ii) of paragraph (a) of sub-rule (2) and substituting the following sub-paragraph: “(ii) the Official Receiver; and”. Notice of opposition to discharge 34. Rule 55 of the Bankruptcy Rules is amended by omitting paragraph (b) and substituting the following paragraph: “(b) cause a copy of the notice to be served on the bankrupt, the trustee and the Official Receiver.”. Variation of order of discharge 35. Rule 56 of the Bankruptcy Rules is amended by omitting paragraph (b) and substituting the following paragraph: “(b) the Official Receiver; and”. Applications for annulment under section 154 or 252A of the Act 36. Rule 57 of the Bankruptcy Rules is amended — (a) by omitting sub-rule (2) and substituting the following sub-rule: “(2) The application shall be served on — (a) the Official Receiver; (b) the trustee; and (c) each of the creditors of the bankrupt or of the estate of the deceased person, as the case requires, whose address is known to the applicant.”; and (b) by omitting from sub-rule (3) “official receiver or a trustee who is not an official receiver, he shall file, not later than 4” and substituting “Official Receiver or the trustee, he shall file, not later than 10”. Application to register as a trustee 37. Rule 58 of the Bankruptcy Rules is amended by omitting from sub-paragraph (ii) of paragraph (b) of sub-rule (2) “official receiver” and substituting “Official Receiver”. Official Receiver to furnish report on applicant 38. Rule 59 of the Bankruptcy Rules is amended by omitting “official receiver” (wherever occurring) and substituting “Official Receiver”. Bonds 39. Rule 61 of the Bankruptcy Rules is amended by omitting from paragraph (b) of sub-rule (1) “an official receiver” and substituting “the Official Receiver”. Notice of acceptance to be given to Registrar 40. Rule 62 of the Bankruptcy Rules is amended by omitting “official receiver” (wherever occurring) and substituting “Official Receiver”. 41. After rule 62 of the Bankruptcy Rules the following rule is inserted: Certificate of appointment of Trustee “62A. A certificate of appointment of a trustee issued under sub-section 157 (3) or (8) shall — (a) be in accordance with Form 30A; and (b) be signed and stamped by the Registrar.”. Objection to appointment of trustee of an estate 42. Rule 63 of the Bankruptcy Rules is amended — (a) by omitting from sub-rules (2) and (3) “lodged with the Court” (wherever occurring) and substituting “filed with the Registrar”; and (b) by omitting from sub-rule (3) “official receiver” and substituting “Official Receiver”. Trustee’s remuneration 43. Rule 64 of the Bankruptcy Rules is amended by omitting sub-rule (1) and substituting the following sub-rule: “(1) For the purposes of sub-section 162 (2) of the Act, the rate is — (a) if the moneys received by the trustee do not exceed $30,000 — 10 per cent; (b) if the moneys received by the trustee exceed $30,000 but do not exceed $50,000 — 10 per cent in respect of the first $30,000 and 7½ per cent in respect of the balance of those moneys; or (c) if the moneys received by the trustee exceed $50,000 — 10 percent in respect of the first $30,000, 7½ per cent in respect of the second $20,000 and 5 per cent in respect of the balance of those moneys.”. Examination of trustee, &c. 44. Rule 66 of the Bankruptcy Rules is amended — (a) by omitting sub-rule (1) and substituting the following sub-rules: “(1) Where the Court — (a) upon application made under section 179 or 212B of the Act; or (b) in connection with the hearing of an application under section 212 or 212A of the Act, makes an order for the examination of a trustee, the Official Receiver or another person, the Registrar shall, at the request of the applicant, issue a summons requiring the attendances of the trustee, Official Receiver or other person, as the case requires, for examination before the Court. “(1A) A summons issued under sub-rule (1) shall be signed and stamped by the Registrar.”; and (b) by omitting from sub-rule (2) “or other person” (wherever occurring) and substituting “, Official Receiver or other person, as the case requires,”. Application for release from trusteeship 45. Rule 67 of the Bankruptcy Rules is amended by omitting sub-rules (1) and (2) and substituting the following sub-rules: “(1) An application under sub-section 183 (1) of the Act by a trustee, or under sub-section 183 (6) of the Act by the person administering the estate of a deceased trustee, shall be served on — (a) the Official Receiver; (b) the bankrupt; and (c) each creditor of the bankrupt whose name and address are known to the trustee or the person administering the estate. “(2) An application referred to in sub-rule (1) shall be accompanied by a statement, in accordance with Form 21, of the realization and distribution of the estate by the trustee.”. Delivery of books, &c., by released trustee 46. Rule 68 of the Bankruptcy Rules is amended by omitting from paragraph (b) “official receiver” and substituting “Official Trustee”. 47. After rule 68 of the Bankruptcy Rules the following rule is inserted: Application for release of Official Trustee “68A. (1) An application by the Official Trustee under sub-section 184A (2) of the Act shall be accompanied by a statement setting out details of the realization and disbursement of the property of the bankrupt and shall be served on — (a) the bankrupt; and (b) each creditor of the bankrupt whose name and address is known to the Trustee. “(2) The report prepared for the purposes of sub-section 184A (4) of the Act shall be filed not less than 3 days before the date fixed for the hearing of the application.”. Notice of removal of Trustee 48. Rule 69 of the Bankruptcy Rules is amended by omitting from paragraph (a) “official receiver” and substituting “Official Trustee”. Officer who assists Official Receiver may appear on hearing of an examination 49. Rule 70 of the Bankruptcy Rules is amended by omitting “official receiver” (wherever occurring) and substituting “Official Receiver”. 50. Rule 71 of the Bankruptcy Rules is repealed and the following rule substituted: Official Receiver may appoint person to vote at first meeting of creditors “'71. Where the Official Receiver has been appointed to vote as proxy of a creditor at a first meeting of creditors, the Official Receiver may, by instrument in writing, appoint a person to attend and vote at the first meeting of creditors as proxy of the creditor in place of the Official Receiver.”. Applications to the Court by Official Receiver may be made ex parte 51. Rule 72 of the Bankruptcy Rules is amended by omitting “an official receiver otherwise than in his capacity of trustee of the estate of a bankrupt or debtor” and substituting “the Official Receiver”. 52. Before rule 75 of the Bankruptcy Rules the following rule is inserted in Part VII: Form of authority to call meeting of creditors “74. (1) An authority for the purposes of sub-section 188 (1) of the Act to a registered trustee to call a meeting of creditors and take over control of property shall be in accordance with Form 33A. “(2) An authority for the purposes of sub-section 188 (1) of the Act to a solicitor to call a meeting of creditors shall be in accordance with Form 33B.”. 53. After rule 80 of the Bankruptcy Rules the following rule is inserted: Form of deed of assignment “80A. For the purposes of section 214 of the Act, a deed of assignment shall be in accordance with Form 36A.”. Modifications of provisions of Act applied by section 231 54. Rule 82 of the Bankruptcy Rules is amended by omitting paragraphs (c), (d), (e) and (f) and substituting the following word and paragraph: “and (c) section 125 of the Act is omitted.”. Modifications of provisions of Act applied by section 237 55. Rule 83 of the Bankruptcy Rules is amended by omitting paragraphs (c), (d), (e) and (f) of sub-rule (1) and substituting the following word and paragraph: “and (c) section 148 of the Act is modified by omitting all words after the word ‘after’ and substituting ‘there has been full compliance with the terms of the deed of arrangement,’.”. First meeting of creditors 56. Rule 92 of the Bankruptcy Rules is amended — (a) by omitting “official receiver” (wherever occurring) and substituting “Official Receiver”; and (b) by adding at the end thereof the following sub-rule: “(2) Where the Official Receiver is not of the opinion that it is desirable that he should cause a first meeting of creditors to be held, he shall inform each of the creditors whose address is known to him that he does not propose to call such a meeting.”. Other meetings of creditors 57. Rule 93 of the Bankruptcy Rules is amended — (a) by omitting “by the official receiver or, if another person is the trustee of the estate of the bankrupt, by the trustee” and substituting “by the trustee of the estate of the bankrupt”; and (b) by omitting paragraphs (b) and (c) and substituting the following word and paragraph: “and (b) to the Official Receiver,”. Proceedings at other meetings of creditors 58. Rule 94 of the Bankruptcy Rules is amended — (a) by omitting from sub-rule (2) “an officer appointed by the official receiver” and substituting “a person appointed by the Official Receiver”; and (b) by omitting from that sub-rule “the officer shall” and substituting “the person shall”. Quorum 59. Rule 96 of the Bankruptcy Rules is amended — (a) by omitting from sub-rule (2) “official receiver or other trustee” and substituting “Official Receiver or trustee”; and (b) by omitting from sub-rule (2) “official receiver or trustee” and substituting “Official Receiver or trustee”. Minutes of meeting 60. Rule 98 of the Bankruptcy Rules is amended by omitting from sub-rule (3) “official receiver” and substituting “Official Receiver”. 61. After Part IX of the Bankruptcy Rules the following Part is inserted: “PART IXA SPECIAL PROVISIONS RELATING TO JOINT DEBTORS Division 1 — Joint Bankruptcies Interpretation “100A. (1) In this Division, unless the contrary intention appears — ‘joint bankruptcy’ means — (a) a bankruptcy that occurs as the result of a sequestration order made under section 52 of the Act, being an order made on a petition presented under section 46 of the Act; (b) a bankruptcy that occurs by force of section 56 or 57 of the Act; or (c) bankruptcies in respect of which an order under section 53 of the Act has been made; ‘joint creditors’ means the creditors of joint debtors made bankrupt in a joint bankruptcy; ‘separate creditors’, in relation to a joint bankruptcy, means creditors other than joint creditors. “(2) Where an order has been made under section 248A of the Act, the provisions of this Part apply to and in relation to the joint and separate estates to which the order relates. Trustee in joint bankruptcy “100B. In a joint bankruptcy, notice under rule 92 of the first meeting of creditors shall be given to both the joint and separate creditors. Voting at meetings of creditors “100C. At a meeting of joint and separate creditors — (a) separate creditors shall not vote on a resolution proposed for consideration by joint creditors; and (b) joint creditors shall not vote on a resolution proposed for consideration by separate creditors. Petitioning partner to give trustee certain information "100D. Where some only of the members of a partnership present a debtor's petition under section 56 of the Act, each petitioning partner shall furnish the trustee with the name and address of each other person who is known to that petitioning partner to be a member of the partnership and who is not a petitioning partner. “Division 2 — Joint Arrangements under Part X of the Act Modifications of Part X of Act for purposes of section 187A “100E. The following modifications of Part X of the Act are prescribed for the purposes of section 187A of the Act: (a) section 188 of the Act is modified by adding at the end thereof the following sub-section: ‘(5) Where some only of the members of a partnership sign an authority under this section, each member who signs the authority shall furnish the trustee or the solicitor to whom the authority is given with the name and address of each other person who is known to that member to be a member of the partnership and who did not sign the authority.’; and (b) section 195 of the Act is modified by inserting after sub-section (1) the following sub-section: ‘(1A) Joint debtors shall submit both a statement of their joint affairs and a statement of the separate affairs of each debtor.’. Application to meetings held under Part X of Act “100F. The provisions of Division 1 of this Part with respect to the holding and conduct of a meeting held in pursuance of section 64 of the Act apply, so far as they are applicable, to the holding and conduct of a meeting held in pursuance of section 188 of the Act and to any subsequent meetings held under Part X of the Act.”. Summons to witness 62. Rule 125 of the Bankruptcy Rules is amended by omitting sub-rule (2) and substituting the following sub-rule: “(2) A summons under sub-rule (1) — (a) shall be in accordance with Form 48; and (b) shall be signed and stamped by the Registrar.”. Conduct money and witnesses’ expenses 63. Rule 127 of the Bankruptcy Rules is amended by omitting “section 81” and substituting “section 50 or 81”. Summons under section 50 or 81 of the Act 64. Rule 129 of the Bankruptcy Rules is amended — (a) by omitting from sub-rule (1) “sub-section 81 (1)” and substituting “sub-section 50 (2) or 81 (1)”; and (b) by omitting sub-rule (2) and substituting the following sub-rules: “(2) A summons under sub-section 50 (2) or 81 (1) of the Act shall be in accordance with Form 49. “(3) The Registrar shall — (a) in the case of a summons issued in accordance with an order of the Federal Court of Bankruptcy — sign and seal the summons; (b) in the case of a summons issued in the exercise of a jurisdiction in bankruptcy by a court having that jurisdiction — cause the summons to be signed and sealed on behalf of that court; and (c) in the case of a summons issued by the Registrar — sign and stamp the summons.”. 65. After rule 130 of the Bankruptcy Rules the following rule is inserted: Approval for purposes of section 255 to be stamped “130A. An approval by the Registrar for the purposes of section 255 shall be signed and stamped by the Registrar.”. Transcript of evidence 66. Rule 131 of the Bankruptcy Rules is amended — (a) by inserting in sub-rule (1) “or a magistrate” after “Registrar”; (b) by inserting in sub-rule (2) “or a magistrate” after “Registrar” (first occurring); and (c) by omitting sub-rule (3). Defects in affidavits 67. Rule 138 of the Bankruptcy Rules is amended by inserting after sub-rule (1) the following sub-rule: “(1A) A memorandum written on an affidavit in pursuance of sub-rule (1) shall be stamped by the Registrar.”. Power of the Registrar to summon witnesses 68. Rule 156 of the Bankruptcy Rules is amended by omitting sub-rule (2) and substituting the following sub-rule: “(2) A summons under sub-rule (1) — (a) shall be in accordance with Form 48; and (b) shall be signed and stamped by the Registrar.”. Fees and percentages 69. Rule 179 of the Bankruptcy Rules is amended — (a) by omitting from sub-rule (4) “official receiver” and substituting “Official Trustee”; and (b) by omitting from paragraph (a) of sub-rule (9) “an official receiver acting otherwise than as trustee of an estate” and substituting “the Official Receiver”. Fees payable by Official Trustee 70. Rule 181 of the Bankruptcy Rules is amended — (a) by omitting sub-rule (1) and substituting the following sub-rule: “(1) Where the Official Trustee — (a) acts as trustee of the estate of a bankrupt or a deceased person in respect of whose estate an order for administration has been made under Part XI of the Act; or (b) acts as controlling trustee, or as trustee as the result of a deed of assignment or deed of arrangement under Part X of the Act, a fee is payable to the Registrar by the Official Trustee in respect of the estate — (c) upon the declaration of a dividend by the Official Trustee; or (d) upon the Official Trustee's ceasing to act as the trustee.”; and (b) by omitting from sub-rule (2) “official receiver” and substituting “Official Trustee”. Fees and percentages payable to the Official Receiver and the Official Trustee 71. Rule 182 of the Bankruptcy Rules is amended — (a) by omitting from sub-rule (1) “official receiver” and substituting “Official Receiver”; (b) by omitting sub-rules (1A) and (2) and substituting the following sub-rules: “(1A) The fees specified in Schedule 6 are payable to the Official Trustee in respect of the matters in relation to which they are so specified. “(2) Where the Official Trustee — (a) acts as trustee of the estate of a bankrupt or a deceased person in respect of whose estate an order for administration has been made under Part XI of the Act; (b) takes control of the property of a debtor by virtue of a direction of the Court under section 50 of the Act; or (c) acts as controlling trustee, or as trustee as the result of a deed of assignment or deed of arrangement, under Part X of the Act, the Official Trustee is entitled to receive — (d) if the prescribed amount in respect of the estate or the debtor does not exceed $1,000 — a fee of $150; (e) if the prescribed amount in respect of the estate or the debtor exceeds $1,000 but does not exceed $20,000 — a fee equal to the sum of $150 and an amount equal to 10 per centum of the amount by which the prescribed amount exceeds $1,000; (f) if the prescribed amount exceeds $20,000 but does not exceed $40,000 — a fee equal to the sum of $2,050 and an amount equal to 7½ per centum of the amount by which the prescribed amount exceeds $20,000; or (g) if the prescribed amount exceeds $40,000 — a fee equal to the sum of $3,550 and an amount equal to 5 per centum of the amount by which the prescribed amount exceeds $40,000.”; (c) by omitting from sub-rule (3) “official receiver” (wherever occurring) and substituting “Official Trustee”; (d) by omitting from sub-rule (4) “official receiver” (wherever occur- ring) and substituting “Official Trustee”; and (e) by adding at the end thereof the following sub-rule: “(5) Where — (a) the Official Trustee administers the estate of a bankrupt or deceased person; (b) the bankrupt, or a person acting on behalf of the bankrupt or deceased person, applies property that has vested in the Official Trustee by virtue of section 58 of the Act in payment of a creditor of the estate; and (c) the Official Trustee is thereby prevented from realizing or bringing to credit the value of that property, the property so applied shall, unless the Court otherwise orders, be deemed, for the purposes of sub-rule (4), to have been realized or brought to credit by the Official Trustee.”. Order appointing guardian ad litem 72. Rule 191 of the Bankruptcy Rules is amended by adding at the end of sub-rule (2) “and shall be signed and stamped by the Registrar”. 73. After rule 196 of the Bankruptcy Rules the following rule is inserted: Certificate under section 260 to be stamped “196A. A certificate given by the Registrar under sub-section 260 (1) of the Act shall be stamped by the Registrar.”. Unclaimed moneys 74. Rule 198 of the Bankruptcy Rules is amended by omitting sub-rule (2) and substituting the following sub-rules: “(2) Where the Official Trustee or Official Receiver pays moneys into the Consolidated Revenue Fund in accordance with sub-section 254 (2A) of the Act, the Official Trustee or the Official Receiver, as the case may be, shall furnish to the officer to whom the moneys are paid a statement setting out — (a) the name and address of the debtor; and (b) the names and addresses, so far as known to the Official Trustee or the Official Receiver, as the case may be, of the persons entitled to receive the moneys. “(3) Where — (a) a trustee, under sub-rule (1); or (b) the Official Trustee or the Official Receiver, under sub-rule (2), pays moneys into the Consolidated Revenue Fund, the trustee, Official Trustee or Official Receiver, as the case may be, shall cause a copy of the statement referred to in sub-rule (1) or (2), as the case may be, to be filed.”. Schedule 1 75. Schedule 1 to the Bankruptcy Rules is amended — (a) by inserting after Form 6 the following form: FORM 6A Rule 14A NOTICE TO SHERIFF BY CREDITOR FOR MAINTENANCE (Title) To: I (full name and address of creditor) do solemnly and sincerely declare as follows: 1. I am a judgement creditor of (full name and address of judgement debtor) . 2. The judgement order was made by (name of the Court awarding the judgement) on (date of order) . 3. The judgement debt represents $ due and owing to me for arrears accrued under a maintenance agreement entered into by me and the said (full name of judgement debtor) on (date of agreement) whereby it was agreed that the said (full name of judgement debtor) would pay to me the sum of $ each for a term of (period) . 4. On (date) I caused a process of execution to issue out of your Court against the property of the said (full name of judgement debtor) . or 4. On (date) I caused a process of attachment to issue out of your Court against an amount of $ owing to (full of judgement debtor) by (full name and address of garnishee) . 5. On (date) I searched the indexes kept by the Registrar in Bankruptcy for the Bankruptcy District of and found that a bankruptcy petition was filed by against the said (full name of judgement debtor) on (date of petition) . And I make this solemn declaration by virtue of the Statutory Declarations Act 1959, and subject to the penalties provided by that Act for the making of false statements in statutory declarations, conscientiously believing the statements contained in this declaration to be true in every particular. Declared at the day of 19 . Before me, (Signature and title of person before whom declaration is made) (b) by inserting after Form 9A the following form: FORM 9B Rule 24 DEBTOR’S PETITION UNDER SECTION 57 (Title) 1. We, (full name of debtor) residing at (residential address) and (full name of debtor) residing at (residential address) being joint debtors who are not and have not been in partnership with one another petition the Registrar in Bankruptcy for the abovementioned Bankruptcy District for the purpose of becoming bankrupts by force of section 57 of the Bankruptcy Act 1966. 2. (If any of the debtors are carrying on any business, or have carried on a business in respect of which liabilities are set out in that debtor's statement of affairs, here set out that fact and the address at which, and the business name (if any) under which, they are carrying on the business) Dated this day of 19 .
}
Signed by the debtors in my/our presence (Signature/s and address/es of witness/es) (c) by inserting after Form 11 the following form: FORM 11A Rule 24B NOTICE OF PRESENTATION OF PETITION IN BANKRUPTCY (Title) To……………………………………….. I (full name and address of attachment creditor), a person to whom you have been ordered to pay moneys under an attachment order made by (name of the Court by which the attachment order was made) on (date of the order) against (full name of judgement debtor) hereby give you notice that a petition in bankruptcy was presented by/against the said (full name of the judgement debtor) on (date of petition) . And Take Notice that pursuant to section 118 of the Bankruptcy Act 1966 the attachment of the debt is suspended until the petition is dealt with by the Court or lapses. Dated this day of 19 . (d) by inserting after Form 12 the following form: FORM 12A Rule 29A NOTICE OF DEMAND BY TRUSTEE (Title) To……………………………………….. Take notice that pursuant to sub-section (4A) of the Bankruptcy Act 1966 I (full name and address), being the (*trustee of the estate of the abovenamed bankrupt/*Official Receiver on behalf of the Official Trustee in Bankruptcy, the trustee of the estate of the abovenamed bankrupt) hereby demand that you pay to me all moneys you are holding on behalf of the abovenamed bankrupt, being moneys payable to him pursuant to (insert details of bankrupt’s claim to moneys) and claimed by me as property divisible amongst the creditors in the bankruptcy. And Take Further Notice that pursuant to sub-section 129 (5) of the Bankruptcy Act 1966 if you do not pay those moneys to me you will be guilty of contempt of court. Dated this day of 19 . Trustee Strike out whichever is inapplicable (e) by adding at the end of Form 13 the following: “NOTE: Section 264B of the Bankruptcy Act 1966 authorizes the issue of a warrant for the apprehension of a person who, having been served with a summons, fails to attend as required by the summons, or fails to appear and report himself from day to day, as required by the Court, the Registrar or magistrate, as the case may be.”; (f) by omitting Forms 15 and 16 and substituting the following forms: FORM 15 Rule 37 PROOF OF DEBT (Title) I (full name, address and occupation of person lodging proof of debt) lodge the following proof of debt: 1. (full name of bankrupt) was at the date on which he became a bankrupt, namely (date of bankruptcy), and still is, justly and truly indebted to * in the sum of $ , in accordance with the particulars specified in the statement of account annexed hereto. *2. Security is not held by * or by any person on behalf for the payment of the whole or any part of the sum specified in paragraph 1. *3. The following security is held by * for the payment of * of the sum specified in paragraph 1. *4. The vouchers by which the debt can be substantiated are specified in the statement of account. Dated this day of 19 . (Signature of person lodging proof of debt) STATEMENT OF ACCOUNT
Date of transaction
Consideration or nature of debt
Amount
Vouchers (if any)
Here insert details of Judgement (if obtained)
Date obtained: Judgment No.: Court: Judgment Debt and Costs on Judgment:
* Strike out whichever is inapplicable.
FORM 16 Rule 37 PROOF OF DEBT DUE TO EMPLOYEES (Title) I (insert full name, address and occupation of person lodging proof of debt) lodge the following proof of debt: 1. (insert full name of bankrupt) was at the date on which he became a bankrupt, namely (insert date of bankruptcy), and still is, justly and truly indebted to a person whose name, address and occupation are specified in the statement annexed hereto in respect of wages or salary due to the person as an employee of the bankrupt for serviced rendered to the bankrupt during the period and in the amount specified in the statement opposite to the name of that person. 2. I am an employee of the bankrupt and I lodge this proof of debt on behalf of all persons whose names are specified in the statement 3. To the best of my knowledge and belief, none of the persons whose names are specified in the statement holds any security for payment of the whole or any part of the amount due to him in respect of wages or salary specified in the statement opposite to the name of that person. *4. The name of each person specified in the statement who holds security for payment of the whole or part of the amount due to him, and particulars of the security held by him, are as follows: (insert name and details of security) Dated this day of 19 . (Signature of person lodging proof of debt) STATEMENT Particulars of Employees’ claims
Full name of employees
Address
Dates of wages accrued
Amount
Details of security held (if any)
* Strike out if inapplicable
FORM 16A Rule 37 NOTICE THAT STATUTORY DECLARATION IN SUPPORT
OF PROOF OF DEBT REQUIRED (Title) To............................................................................ A proof of debt has been lodged by you/on your behalf claiming an amount of $............... Pursuant to section 84 (3) of the Bankruptcy Act 1966 I have formed the opinion that you should lodge with me a statutory declaration verifying the following matters contained in the proof of debt: (here set out details of matters required to be verified) Should a statutory declaration verifying these matters not be lodged with me within 21 days of the date of receipt of this notice or such extension of time as agreed to by me on your written request, I will administer the estate as if your proof of debt had not been lodged. Dated this day of 19 . Trustee (g) by inserting after Form 19 the following form: FORM 19A Rule 44 NOTICE REQUIRING TRUSTEE TO APPLY FOR LEAVE TO DISCLAIM LEASE (Title) To: (full name and address of trustee) I (full name and address of person giving notice), the (lessor or sub-lessee or mortgagee) of the lease (set out particulars of the lease) which you, by notice dated gave me notice that you intend to disclaim, hereby, in pursuance of paragraph 133 (4) (b) of the Bankruptcy Act 1966, require you to apply to the Court for leave to disclaim the lease. Dated this date of 19 . Lessor/Sub-lessee/Mortgagee (h) by inserting after Form 30 the following form: FORM 30A Rule 62A CERTIFICATE OF APPOINTMENT OF TRUSTEE (Title) This is to certify that (name and address of trustee) has been appointed by the creditors/ Court to the office of trustee of the estate of (insert name of bankrupt) who became bankrupt on the day of 19 . Registrar (j) by inserting after Form 33 the following forms: FORM 33A Rule 74A Bankruptcy Act 1966 AUTHORITY TO REGISTERED TRUSTEE TO CALL MEETING OF CREDITORS AND TAKE OVER CONTROL OF PROPERTY In pursuance of section 188 of the Bankruptcy Act 1966, I (name of debtor) of (address and occupation) hereby authorize (name and address of registered trustee) to call a meeting of my creditors for the purposes of Part X of that Act and to take over control of my property in accordance with that Part. Signed by the said (name of debtor) this day of 19 . in the presence of — (Signature of witness) I, the said (name of registered trustee) , do hereby consent to exercise the powers conferred on me by the above-mentioned authority. Signed by the said (name of registered trustee) this day of 19 , in the presence of — (Signature of witness)
FORM 33B Rule 74A Bankruptcy Act 1966 AUTHORITY TO SOLICITOR TO CALL MEETING OF CREDITORS In pursuance of section 188 of the Bankruptcy Act 1966, I (name of debtor) of (address and occupation) hereby authorize (name and address of solicitor) to call a meeting of my creditors for the purpose of Part X of that Act. Signed by the said (name of debtor) this day of 19 , in the presence of — (Signature of witness) I, the said (name of solicitor), do hereby consent to call a meeting of creditors of the abovenamed debtor for the purposes of Part X of the Bankruptcy Act 1966. Signed by the said (name of solicitor) this day of 19 , in the presence of — (Signature of witness) (k) by inserting after Form 36 the following forms: FORM 36A Rule 80A Bankruptcy Act 1966 DEED OF ASSIGNMENT THIS DEED made the day of One thousand nine hundred and in pursuance of Part X of the Bankruptcy Act 1966 BETWEEN of in the State of (or as the case may be) (hereinafter called “the Debtor”) of the one part and in the said State (or as the case may be) registered Trustee or the other part (hereinafter called “the Trustee”): WITNESSETH that — (a) the Debtor conveys and assigns to the Trustee all his divisible property within the meaning of Part X of the Bankruptcy Act 1966 UPON TRUST to deal with the same in accordance with Part X of that Act for the benefit of the creditors of the Debtor and as to any surplus after paying in full the several debts and liabilities of the Debtor proved under this Deed together with the costs charges and expenses of or incidental to the execution of the trusts of this Deed (including the remuneration and expenses of the Trustee) UPON TRUST for the Debtor his executors administrators or assigns; and (b) the Trustee accepts appointment as trustee of this Deed and the conveyance and assignment of the said property upon the trusts hereinbefore set out. IN WITNESS whereof the parties have hereunto set their hands and seals. Signed, sealed and delivered by the said (name of debtor) this day of , 19 , in the presence of — (Signature of witness) Signed, sealed and delivered by the said (name of Trustee) this day of , 19 , in the presence of — (Signature of witness)
FORM 36B Rule 84A Bankruptcy Act 1966 CERTIFICATE BY TRUSTEE OF DEED OF ASSIGNMENT I (full name and address of trustee) , trustee of a Deed of Assignment dated the day of 19 of the property of (full name and address of debtor) , a debtor, hereby certify that I am satisfied that the divisible property of the debtor has, so far as is practicable, been realized and a final dividend has been paid to the creditors. Dated this day of 19 . Trustee
FORM 36C Rule 84A Bankruptcy Act 1966 CERTIFICATE BY TRUSTEE OF DEED OF ARRANGEMENT I, (full name and address of trustee) , trustee of a Deed of Assignment date the day of 19 of the property of (full name and address of debtor) , a debtor, hereby certify that I am satisfied that the provisions of the deed of arrangement have been carried out. Dated this day of 19 . Trustee
FORM 36D Rule 84A Bankruptcy Act 1966 CERIFICATE BY TRUSTEE OF COMPOSITION I, (full name and address of trustee) , trustee of a composition accepted by the creditors of (full name and address of debtor) , a debtor, hereby certify that I am satisfied that the terms of the composition have been carried out. Dated this day of 19 . Trustee (l) by omitting from Form 49 all the words from and including “Dated” to the end of the form and substituting the following: “Dated this day of 19 .
By the Court
*Strike out whichever
*Registrar
is inapplicable
or
*Registrar in Bankruptcy
NOTE: Section 264B of the Bankruptcy Act 1966 authorizes the issue of a warrant for the apprehension of a person who, having been served with a summons, fails to attend as required by the summons or fails to appear and report himself from day to day as required by the Court, the Registrar or Magistrate, as the case may be.”. Schedule 6 76. Schedule 6 to the Bankruptcy Rules is amended by omitting — “FEES WHERE OFFICIAL RECEIVER ACTS AS TRUSTEE” and substituting — “OFFICIAL TRUSTEE’S FEES”. Notes
1. Notified in the Commonwealth of Australia Gazette on 31 December 1980. 2. Statutory Rules 1968 No. 2 as amended by Statutory Rules 1975 No. 52; 1976 Nos. 105, 143 and 235; 1977 Nos. 32 and 136; 1978 No. 19; 1979 Nos. 157 and 243; 1980 No. 385.
