BANKRUPTCY AMENDMENT ACT 1985 No. 21, 1985
BANKRUPTCY AMENDMENT ACT 1985 No. 21 of 1985 - TABLE OF PROVISIONS
TABLE OF PROVISIONSSection 1. Short title, &c. 2. Commencement 3. Interpretation 4. Functions of Inspector-General 5. Registrars and Deputy Registrars 6. Appointment of Inspector-General, Registrars, &c. 7. Acting Inspector-General and Acting Official Receivers 8. Acting Registrars and Deputy Registrars 9. The Official Trustee in Bankruptcy 10. Duties, &c., of trustees and Official Receiver 11. The Common Investment Fund 12. Payment of moneys into and out of Equalization Account 13. Acts of bankruptcy 14. Conditions on which creditor may petition 15. Proceedings and order on creditor's petition 16. Bankrupt's statement of affairs 17. Debtor's petition 18. Debtor's petition against partnership 19. Debtor's petition by joint debtors who are not partners 20. First meeting of creditors 21. Public examination of bankrupt 22. Discovery of bankrupt's property 23. Priority payments 24. Insertion of new section- 109A. Debts due to employees 25. Certain accounts of undischarged bankrupt 26. Vesting and transfer of property 27. Protection of trustee from personal liability in certain cases 28. Discharge by the Court 29. Registration of natural persons as trustees 30. Gazettal of registration, &c. 31. Insertion of new section- 161A. Triennial statements by registered trustees 32. Control of trustees by the Court 33. Effect of authority to registered trustee under section 188 34. Controlling trustee's accounts 35. Administration of estates under this Part upon petition by creditor 36. Protection in respect of reports BANKRUPTCY AMENDMENT ACT 1985 No. 21 of 1985 - LONG TITLE
An Act to amend the Bankruptcy Act 1966 BANKRUPTCY AMENDMENT ACT 1985 No. 21 of 1985 - SECT 1 Short title, &c.
(Assented to 7 May 1985) 1. (1) This Act may be cited as the Bankruptcy Amendment Act 1985. (2) The Bankruptcy Act 1966*1* is in this Act referred to as the Principal Act. *1* No. 33, 1966, as amended. For previous amendments, see No. 121, 1968; No. 40, 1969; No. 122, 1970; No. 216, 1973 (as amended by No. 20, 1974); No. 56, 1975; Nos. 91 and 161, 1976; No. 111, 1977; No. 155, 1979; Nos. 12 and 70, 1980; Nos. 74 and 176, 1981; No. 18, 1983; and No. 10, 1984.(Ministers second reading speech made in- Senate on 20 March 1985 House of Representatives on 16 April 1985) BANKRUPTCY AMENDMENT ACT 1985 No. 21 of 1985 - SECT 2 Commencement
2. This Act shall come into operation on a day to be fixed by Proclamation. BANKRUPTCY AMENDMENT ACT 1985 No. 21 of 1985 - SECT 3 Interpretation
3. Section 5 of the Principal Act is amended by inserting in the definition of "maintenance order" in sub-section (1) ", including an order with respect to the payment of arrears of maintenance, being an order" after "person".
BANKRUPTCY AMENDMENT ACT 1985 No. 21 of 1985 - SECT 4 Functions of Inspector-General
4. Section 12 of the Principal Act is amended- (a) by omitting paragraph (1) (b) and substituting the following paragraphs: "(b) may make such inquiries and investigations as the Inspector-General thinks fit with respect to the administration of, or the conduct of a trustee in relation to- (i) a bankruptcy; (ii) a composition or scheme of arrangement under Division 6 of Part IV; (iii) a deed of assignment, deed of arrangement or composition under Part X; (iv) an administration under Part XI; or
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(v) property in relation to which a direction has been given under sub-section 50 (1); (ba) may make such inquiries and investigations as the Inspector-General thinks fit with respect to the conduct, trade dealings, property and affairs of- (i) a bankrupt; (ii) a bankrupt or debtor under a composition or scheme of arrangement under Division 6 of Part IV; or (iii) a debtor under a deed of assignment, deed of arrangement or composition under Part X; and"; (b) by inserting in paragraph (1) (c) "and from registered trustees" after "officers"; (c) by inserting after sub-section (1) the following sub-sections: "(1A) Where the Inspector-General requests a registered trustee, for the purposes of sub-section (1), to provide a report as to the operation of this Act, the registered trustee shall forthwith provide the report requested. "(1B) Where the Inspector-General makes an inquiry or investigation referred to in paragraph (1) (b) or (ba), the Inspector-General shall file with the Registrar a report setting out the results of the inquiry or investigation and may file such supplementary reports as the Inspector-General thinks fit."; (d) by omitting from paragraph (2) (b) "and"; and (e) by adding at the end of sub-section (2) the following word and paragraph: "; and (d) appoint an Official Receiver, in writing, to conduct an inquiry or investigation on behalf of the Inspector-General.". BANKRUPTCY AMENDMENT ACT 1985 No. 21 of 1985 - SECT 5 Registrars and Deputy Registrars
5. Section 14 of the Principal Act is amended by omitting from paragraph (1) (b) "the Governor-General by Proclamation" and substituting "the Minister, by notice published in the Gazette".
BANKRUPTCY AMENDMENT ACT 1985 No. 21 of 1985 - SECT 6 Appointment of Inspector-General, Registrars, &c.
6. (1) Section 16 of the Principal Act is amended by omitting "Governor-General" and substituting "Secretary to the Department".
(2) A person appointed by the Governor-General holding office under section 16 of the Principal Act immediately before the commencement of this section continues to hold office after the commencement of this section as if that person had been appointed by the Secretary to the Department.
BANKRUPTCY AMENDMENT ACT 1985 No. 21 of 1985 - SECT 7 Acting Inspector-General and Acting Official Receivers
7. (1) Section 17 of the Principal Act is amended by omitting "Minister" (wherever occurring) and substituting "Secretary to the Department".
(2) An appointment made by the Minister under section 17 of the Principal Act and in force immediately before the commencement of this section continues to have effect after the commencement of this section as if the appointment had been made by the Secretary to the Department.
BANKRUPTCY AMENDMENT ACT 1985 No. 21 of 1985 - SECT 8 Acting Registrars and Deputy Registrars
8. (1) Section 17A of the Principal Act is amended by omitting "Minister" (wherever occurring) and substituting "Secretary to the Department".
(2) An appointment made by the Minister under section 17A of the Principal Act and in force immediately before the commencement of this section continues to have effect after the commencement of this section as if the appointment had been made by the Secretary to the Department.
BANKRUPTCY AMENDMENT ACT 1985 No. 21 of 1985 - SECT 9 The Official Trustee in Bankruptcy
9. Section 18 of the Principal Act is amended by omitting from sub-section (8) "All" and substituting "An Official Receiver may, in the name of, and on behalf of, the Official Trustee, exercise or perform any of the powers or functions of the Official Trustee, and all".
BANKRUPTCY AMENDMENT ACT 1985 No. 21 of 1985 - SECT 10 Duties, &c., of trustees and Official Receiver
10. Section 19 of the Principal Act is amended- (a) by omitting paragraph (1) (e) and substituting the following paragraph: "(e) if the trustee has made an application under section 69 for the examination of the bankrupt-to advertise, as prescribed, the date, time and place on and at which that examination is to be held;"; (b) by omitting from paragraph (1) (f) "the public examination of the bankrupt" and substituting "any public examination of the bankrupt (including an examination pursuant to an application under section 69 by the Official Receiver)"; (c) by omitting from paragraph (1) (f) "and"; (d) by adding at the end of sub-section (1) the following word and paragraph:
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"; and (h) to take reasonable steps to ensure that the bankrupt complies with section 54."; and (e) by inserting after sub-section (1) the following sub-sections: "(1A) Where an Official Receiver makes an application under section 69 for the examination of a bankrupt, the Official Receiver shall advertise, as prescribed, the date, time and place on and at which that examination is to be held. "(1B) The Official Receiver shall take such part as the Official Receiver thinks fit in any public examination of a bankrupt (including an examination pursuant to an application under section 69 by the trustee of the estate of the bankrupt). "(1C) Where a registered trustee indicates to the Official Receiver that the registered trustee does not intend to conduct an investigation of a kind referred to in paragraph (1) (c) with respect to a bankrupt, the Official Receiver may, if the Official Receiver thinks fit, conduct such an investigation, and, if the Official Receiver does so, the Official Receiver shall file with the Registrar a report setting out the results of the investigation and may file such supplementary reports as the Official Receiver thinks fit.". BANKRUPTCY AMENDMENT ACT 1985 No. 21 of 1985 - SECT 11 The Common Investment Fund
11. Section 20B of the Principal Act is amended by adding at the end of sub-section (5) "or, if the Inspector-General thinks fit, for any 2 or more Districts having the same Official Receiver". BANKRUPTCY AMENDMENT ACT 1985 No. 21 of 1985 - SECT 12 Payment of moneys into and out of Equalization Account
12. Section 20H of the Principal Act is amended by omitting sub-section (4) and substituting the following sub-section:
"(4) The Investment Board shall, at such times as it considers appropriate and, in any event, at least once every 6 months, determine whether any amounts standing to the credit of the Equalization Account are not required for the purposes of sub-section (3), and, if the Board determines that any amounts are not so required, it may direct that the amounts not so required, or any part of those amounts, shall be paid out of that Account into the Consolidated Revenue Fund.".
BANKRUPTCY AMENDMENT ACT 1985 No. 21 of 1985 - SECT 13 Acts of bankruptcy
13. Section 40 of the Principal Act is amended- (a) by omitting from paragraph (3) (d) "and"; and (b) by adding at the end of sub-section (3) the following word and paragraph: "; and (f) an order made after the commencement of this paragraph under the Family Law Act 1975 for the payment by a person of arrears of maintenance for another person, being maintenance that was- (i) payable periodically where any periodic payment was payable at a time during the 12 months immediately preceding the making of the order; or (ii) payable (whether in one amount or by instalments) as a lump sum, shall be deemed to be a final order against the first-mentioned person obtained by the other person.". BANKRUPTCY AMENDMENT ACT 1985 No. 21 of 1985 - SECT 14 Conditions on which creditor may petition
14. (1) Section 44 of the Principal Act is amended by omitting from paragraph (1) (a) "$1,000" (wherever occurring) and substituting "$1,500".
(2) The amendment of section 44 of the Principal Act made by sub-section (1) of this section does not apply in relation to a creditor's petition presented before the commencement of this section.
BANKRUPTCY AMENDMENT ACT 1985 No. 21 of 1985 - SECT 15 Proceedings and order on creditor's petition
15. Section 52 of the Principal Act is amended- (a) by omitting from sub-section (1) ", subject to sub-section (1A),"; and (b) by omitting sub-section (1A). BANKRUPTCY AMENDMENT ACT 1985 No. 21 of 1985 - SECT 16 Bankrupt's statement of affairs
16. Section 54 of the Principal Act is amended by inserting after sub-section (3) the following sub-section: "(3A) Where a trustee to whom a copy of a statement has been furnished under sub-section (1) or (2) is not the Official Trustee, the trustee shall, as soon as practicable after that copy has been furnished, furnish a further copy to the Official Receiver.".
BANKRUPTCY AMENDMENT ACT 1985 No. 21 of 1985 - SECT 17 Debtor's petition
17. Section 55 of the Principal Act is amended- (a) by omitting from sub-section (3) "Subject to sub-section (4A), where" and substituting "Where";
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(b) by omitting from sub-section (4) "but subject to sub-section (4A),"; and (c) by omitting sub-sections (4A) and (5) and substituting the following sub-section: "(5) Where a debtor becomes a bankrupt by force of this section, the Registrar shall forthwith- (a) in a case where the trustee is the Official Trustee-give notice of the bankruptcy to the Official Receiver and forward to the Official Receiver a copy of the statement of affairs that accompanied the petition presented by the bankrupt; and (b) in a case where the trustee is not the Official Trustee-give notice of the bankruptcy to the Official Receiver and to the trustee and forward to the Official Receiver and to the trustee a copy of the statement of affairs that accompanied the petition presented by the bankrupt.". BANKRUPTCY AMENDMENT ACT 1985 No. 21 of 1985 - SECT 18 Debtor's petition against partnership
18. Section 56 of the Principal Act is amended- (a) by omitting from sub-section (4) "sub-sections (6) and (7A)" and substituting "sub-section (6)"; (b) by omitting sub-section (7A); and (c) by omitting sub-section (9) and substituting the following sub-section: "(9) Where members of a partnership become bankrupts by force of this section, the Registrar shall forthwith- (a) in a case where the trustee is the Official Trustee-give notice of the bankruptcies to the Official Receiver and furnish to the Official Receiver a copy of each statement of affairs that accompanied the petition presented by members of the partnership; and (b) in a case where the trustee is not the Official Trustee-give notice of the bankruptcies to the Official Receiver and the trustee and furnish to the Official Receiver and to the trustee a copy of each statement of affairs that accompanied the petition presented by the members of the partnership.". BANKRUPTCY AMENDMENT ACT 1985 No. 21 of 1985 - SECT 19 Debtor's petition by joint debtors who are not partners
19. Section 57 of the Principal Act is amended- (a) by omitting from sub-section (4) "Subject to sub-section (5A), where" and substituting "Where"; and (b) by omitting sub-sections (5A) and (6) and substituting the following sub-section: "(6) Where joint debtors become bankrupts by force of this section, the Registrar shall forthwith- (a) in a case where the trustee is the Official Trustee-give notice of the bankruptcies to the Official Receiver and furnish to the Official Receiver a copy of each statement of affairs that accompanied the petition presented by the debtors; or (b) in a case where the trustee is not the Official Trustee-give notice of the bankruptcies to the Official Receiver and the trustee and furnish to the Official Receiver and to the trustee a copy of each statement of affairs that accompanied the petition presented by the debtors.". BANKRUPTCY AMENDMENT ACT 1985 No. 21 of 1985 - SECT 20 First meeting of creditors
20. Section 64 of the Principal Act is amended by omitting paragraph (2) (a) and substituting the following paragraph: "(a) subject to paragraph (b), the period of 28 days immediately succeeding- (i) in a case where the bankrupt becomes bankrupt on a creditor's petition or by virtue of a sequestration order under Division 6 of Part IV or under Part X- (A) the day on which the statement of the bankrupt's affairs is filed under section 54; or (B) if no statement of the bankrupt's affairs is filed under section 54, the last day on which such a statement could have been filed in compliance with that section; or (ii) in a case where the bankrupt becomes bankrupt by virtue of the presentation of a debtor's petition-the date of bankruptcy; or". BANKRUPTCY AMENDMENT ACT 1985 No. 21 of 1985 - SECT 21 Public examination of bankrupt
21. Section 69 of the Principal Act is amended- (a) by omitting from sub-section (1) "The trustee" and substituting "The Official Receiver or the trustee"; (b) by omitting from sub-section (9) "The trustee" and substituting "The Official Receiver, the trustee"; (c) by omitting from paragraph (20) (a) "against the bankrupt" and
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substituting "in which the bankrupt is a party"; and (d) by inserting in paragraph (20) (b) ", the Official Receiver" after "trustee". BANKRUPTCY AMENDMENT ACT 1985 No. 21 of 1985 - SECT 22 Discovery of bankrupt's property
22. Section 81 of the Principal Act is amended- (a) by inserting in sub-section (1) "the Official Receiver or" before "the trustee"; and (b) by omitting from paragraph (17) (a) "against the person" and substituting "in which the person is a party". BANKRUPTCY AMENDMENT ACT 1985 No. 21 of 1985 - SECT 23 Priority payments
23. Section 109 of the Principal Act is amended- (a) by adding at the end of paragraph (1) (a) "and the costs of any audit carried out under section 175, not being an audit carried out by the Auditor-General"; (b) by omitting sub-paragraph (1) (b) (i) and substituting the following sub-paragraph: "(i) if the authority was given to a registered trustee-the remuneration of the trustee and the costs, charges and expenses properly and reasonably incurred by the trustee during the period in which the authority is in force, including any debts incurred by the trustee that are provable in the bankruptcy;"; (c) by omitting paragraph (1) (c) and substituting the following paragraph: "(c) third, in the case of a bankruptcy that occurs within 2 months after a deed of assignment or a deed of arrangement executed by the bankrupt, or a composition or scheme of arrangement accepted by the bankrupt's creditors, has (including at a time before the commencement of this paragraph) been declared to be void or been annulled, set aside or terminated, in payment of liabilities, commitments, expenses or remuneration referred to in section 114;"; (d) by inserting in paragraph (1) (e) "extended leave," after "long service leave,"; (e) by omitting paragraph (1) (f) and substituting the following paragraph: "(f) sixth, in payment of all amounts due in respect of compensation payable under any law of the Commonwealth or of a State or Territory relating to workers compensation, being compensation the liability for which accrued before the date of the bankruptcy;"; (f) by inserting in paragraph (1) (g) "extended leave," after "long service leave,"; (g) by omitting from sub-section (6) "of the Commonwealth that provides for compensation for personal injury arising out of, or in the course of, employment" and substituting "that provides for workers compensation"; (h) by inserting after sub-section (6) the following sub-section: "(6A) Where compensation payable under a law relating to workers compensation is payable by way of periodical payments, the amount of that compensation shall, for the purposes of paragraph (1) (f), be taken to be the lump sum for which those periodical payments could, if redeemable, be redeemed under the law under which those periodical payments are made."; and (j) by omitting sub-section (10) and substituting the following sub-section: "(10) Where in any bankruptcy- (a) property has been recovered, realized or preserved under an indemnity for costs of litigation given by a creditor or creditors; or (b) expenses in relation to which a creditor has, or creditors have, indemnified a trustee have been recovered, the Court may, upon the application of the trustee or a creditor, make such orders as it thinks just and equitable with respect to the distribution of that property and the amount of those expenses so recovered with a view to giving the indemnifying creditor or creditors, as the case may be, an advantage over others in consideration of the risk assumed by creditor or creditors.". BANKRUPTCY AMENDMENT ACT 1985 No. 21 of 1985 - SECT 24
24. After section 109 of the Principal Act the following section is inserted: Debts due to employees "109A. (1) Where a contract of employment with a bankrupt was subsisting immediately before the date of the bankruptcy, the employee under the contract is, whether or not the employee is a person referred to in sub-section (2), entitled to payment under section 109 as if the employee's employment had been terminated by the bankrupt on that date. "(2) Where, for the purposes of a bankruptcy, a trustee employs a person
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whose employment by the bankrupt had been terminated by reason of the bankruptcy, that person shall, for the purpose of calculating any entitlement to payment for long service leave, extended leave, annual leave, recreation leave or sick leave, be deemed, while the trustee employs that person for those purposes, to be employed by the bankrupt. "(3) Subject to sub-section (4), where, after the date of a bankruptcy, an amount in respect of long service leave or extended leave becomes due to a person referred to in sub-section (2) in respect of the employment so referred to, the amount is a cost of the bankruptcy.
"(4) Where, at the date of a bankruptcy, the length of qualifying service of a person employed by the bankrupt is insufficient to entitle that person to any amount in respect of long service leave or extended leave, but, by the operation of sub-section (2), that person becomes entitled to such an amount after that date, that amount- (a) is a cost of the bankruptcy to the extent of an amount that bears to that amount the same proportion as the length of that person's qualifying service after that date bears to the total length of that person's qualifying service; and (b) shall, to the extent of the balance of that amount, be deemed to be an amount referred to in paragraph 109 (1) (g).". BANKRUPTCY AMENDMENT ACT 1985 No. 21 of 1985 - SECT 25 Certain accounts of undischarged bankrupt
25. Section 125 of the Principal Act is amended- (a) by omitting from sub-section (1) "banker" (wherever occurring) and substituting "prescribed organization"; (b) by omitting from sub-section (1) "him" (wherever occurring) and substituting "it"; (c) by omitting from sub-section (1) "he" and substituting "it"; (d) by omitting from sub-section (2) "banker" (wherever occurring) and substituting "prescribed organization"; (e) by omitting from sub-section (2) "he" and substituting "it"; and (f) by adding at the end the following sub-section: "(3) In this section- 'building society' means a society registered or incorporated as a building society or as a co-operative housing society under the law in force in a State or Territory relating to building societies or co-operative housing societies, and includes a society registered under Part I of the Building and Co-operative Societies Act, 1901, of New South Wales; 'co-operative society' means a society whose principal business consists of borrowing moneys from its members and lending those moneys to its members and that is registered or incorporated under the law in force in a State or Territory relating to co-operative societies; 'credit union' means a society or other body of persons that is registered or incorporated as a credit union or credit society under the law in force in a State or Territory relating to credit unions or credit societies; 'prescribed organization' means a bank, a building society, a co-operative society or a credit union and any other financial organization of a kind prescribed for the purposes of this definition.". BANKRUPTCY AMENDMENT ACT 1985 No. 21 of 1985 - SECT 26 Vesting and transfer of property
26. Section 132 of the Principal Act is amended by inserting in sub-section (2) "or, if the Official Trustee becomes the trustee, in the Official Trustee" after "office". BANKRUPTCY AMENDMENT ACT 1985 No. 21 of 1985 - SECT 27 Protection of trustee from personal liability in certain cases
27. Section 139 of the Principal Act is amended by inserting in sub-section (3) "or extended leave" after "long service leave" (wherever occurring).
BANKRUPTCY AMENDMENT ACT 1985 No. 21 of 1985 - SECT 28 Discharge by the Court
28. Section 150 of the Principal Act is amended by inserting before sub-paragraph (4) (a) (ii) the following sub-paragraph:
"(i) an Official Receiver;".
BANKRUPTCY AMENDMENT ACT 1985 No. 21 of 1985 - SECT 29 Registration of natural persons as trustees
29. (1) Section 155 of the Principal Act is amended- (a) by omitting from sub-section (1) "in the prescribed amount and manner" and substituting "as provided by sub-section (3A)"; (b) by omitting sub-sections (2) and (3) and substituting the following sub-sections: "(2) A natural person may make an application to the Court for registration as a trustee. "(3) An application under sub-section (2) shall be made in writing as prescribed and shall contain such information as is prescribed.