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This is a Bill, not an Act. For current law, see the Acts databases.
2002-2003-2004
The Parliament
of the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Bankruptcy
Legislation Amendment Bill 2004
No. ,
2004
(Attorney-General)
A
Bill for an Act to amend the Bankruptcy Act 1966, and for other
purposes
Contents
Part 1—Amendment of the Bankruptcy Act
1966 3
Division 1—Amendments relating to statements of
affairs 3
Division 2—Amendments relating to Part X
agreements 5
Part 2—Amendment of other
Acts 48
Aboriginal and Torres Strait Islander Commission Act
1989 48
ACIS Administration Act
1999 48
Australian National University Act
1991 48
Customs Act
1901 48
Defence Act
1903 49
Export Market Development Grants Act
1997 49
Income Tax Assessment Act
1997 49
Petroleum Resource Rent Tax Assessment Act
1987 49
Proceeds of Crime Act
1987 50
Proceeds of Crime Act
2002 50
Social Security Act
1991 50
Student Assistance Act
1973 51
Superannuation Industry (Supervision) Act
1993 51
Tradex Scheme Act
1999 51
Witness Protection Act
1994 52
Part 3—Application and transitional
provisions 53
Bankruptcy Act
1966 56
Bankruptcy Act
1966 61
Bankruptcy Act
1966 62
Bankruptcy Act
1966 63
Bankruptcy Act
1966 64
A Bill for an Act to amend the Bankruptcy Act
1966, and for other purposes
The Parliament of Australia enacts:
This Act may be cited as the Bankruptcy Legislation Amendment Act
2004.
(1) Each provision of this Act specified in column 1 of the table
commences, or is taken to have commenced, in accordance with column 2 of the
table. Any other statement in column 2 has effect according to its
terms.
|
Commencement information |
||
|---|---|---|
|
Column 1 |
Column 2 |
Column 3 |
|
Provision(s) |
Commencement |
Date/Details |
|
1. Sections 1 to 3 and anything in this Act not elsewhere covered by
this table |
The day on which this Act receives the Royal Assent. |
|
|
2. Schedules 1, 2, 3 and 4 |
A single day to be fixed by Proclamation. However, if any of the provision(s) do not commence within the period of 6
months beginning on the day on which this Act receives the Royal Assent, they
commence on the first day after the end of that period. |
|
|
3. Schedule 5 |
A single day to be fixed by Proclamation. However, if any of the provision(s) do not commence within the period of 6
months beginning on the day on which this Act receives the Royal Assent, they
commence on the first day after the end of that period. |
|
|
4. Schedule 6 |
The day on which this Act receives the Royal Assent. |
|
|
5. Schedule 7, items 1 and 2 |
Immediately after the commencement of Schedule 1 to the Bankruptcy
Legislation Amendment Act 2002. |
5 May 2003 |
|
6. Schedule 7, item 3 |
The day on which this Act receives the Royal Assent. |
|
Note: This table relates only to the provisions of this Act
as originally passed by the Parliament and assented to. It will not be expanded
to deal with provisions inserted in this Act after assent.
(2) Column 3 of the table contains additional information that is not part
of this Act. Information in this column may be added to or edited in any
published version of this Act.
Each Act that is specified in a Schedule to this Act is amended or
repealed as set out in the applicable items in the Schedule concerned, and any
other item in a Schedule to this Act has effect according to its
terms.
Part 1—Amendment
of the Bankruptcy Act 1966
Division 1—Amendments
relating to statements of affairs
1 Subsection 5(1)
Insert:
related entity, in relation to a person, means any of the
following:
(a) a relative of the person;
(b) a body corporate of which the person, or a relative of the person, is
a director;
(c) a body corporate that is related to the body corporate referred to in
paragraph (b);
(d) a director, or a relative of a director, of a body corporate referred
to in paragraph (b) or (c);
(e) a beneficiary under a trust of which the person, or a relative of the
person, is a trustee;
(f) a relative of such a beneficiary;
(g) a relative of the spouse of such a beneficiary;
(h) a trustee of a trust under which the person, or a relative of the
person, is a beneficiary;
(i) a member of a partnership of which the person, or a relative of the
person, is a member;
For the purposes of paragraph (c) of this definition, the question
whether a body corporate is related to another body corporate is to be
determined in the same manner as that question is determined for the purposes of
the Corporations Act 2001.
2 Subsection 5(1)
Insert:
relative, in relation to a person, means:
(a) the spouse of the person; or
(b) a parent or remoter lineal ancestor of the person or of the
person’s spouse; or
(c) a child or remoter lineal descendant of the person or of the
person’s spouse; or
(d) a brother or sister of the person or of the person’s spouse;
or
(e) an uncle, aunt, nephew or niece of the person or of the person’s
spouse; or
(f) the spouse of a person specified in paragraph (b), (c), (d) or
(e).
For the purposes of this definition, spouse includes
de facto spouse.
Note: Parent and child are
defined by this subsection.
3 Subsection 6A(1)
Omit “188A”, substitute “Part X”.
4 After paragraph 6A(2)(a)
Insert:
(b) includes a statement identifying any creditor who is a related entity
of the debtor or bankrupt; and
5 At the end of section 6A
Add:
(4) For the purposes of the application of subsection (3) to a
statement of affairs that is required to be given under Part X, a reference
in that subsection to the trustee is a reference to whichever of
the following is applicable:
(a) the controlling trustee within the meaning of that Part;
(b) the trustee of the personal insolvency agreement
concerned.
Division 2—Amendments
relating to Part X agreements
6 Subsection 5(1) (at the end of paragraph (a)
of the definition of end)
Add “or”.
7 Subsection 5(1) (paragraph (b) of the
definition of end)
Repeal the paragraph, substitute:
(b) in relation to a composition or scheme of arrangement under
Division 6 of Part IV—the time when the composition or scheme,
as the case may be, ceases to be in effect; or
(ba) in relation to a personal insolvency agreement—the time when
all the obligations that the agreement created have been discharged;
or
8 Subsection 5(1)
Insert:
personal insolvency agreement means a personal insolvency
agreement executed under Part X.
Note: Section 188A sets out requirements for personal
insolvency agreements.
9 Subsection 5(1) (at the end of paragraphs (a)
and (b) of the definition of the trustee)
Add “or”.
10 Subsection 5(1) (paragraph (c) of the
definition of the trustee)
Repeal the paragraph, substitute:
(c) in relation to a personal insolvency agreement—the trustee of
the agreement; or
11 Subsection 5(4)
Omit “deed of assignment or deed of arrangement executed, or of a
composition accepted, under Part X”, substitute “personal
insolvency agreement”.
12 Paragraphs 5(4)(a) and (b)
Omit “deed or composition”, substitute “personal
insolvency agreement”.
13 Subsection 5AA(2)
Repeal the subsection, substitute:
(2) For the purposes of item 6 of the table, an authority under
section 188 relates to a personal insolvency agreement if a special
resolution relating to the agreement was passed at a meeting of creditors called
under the authority.
14 Subsection 5AA(3) (paragraphs (b), (c) and
(d) of the definition of Part X administration)
Repeal the paragraphs, substitute:
(b) a personal insolvency agreement.
15 Subparagraph 5H(b)(iv)
Omit “a deed of assignment, deed of arrangement, or
composition,”, substitute “a personal insolvency
agreement”.
16 Paragraph 5H(c)
Omit “deed of assignment or arrangement, a person acting under such
an authority or a person administering such a composition”, substitute
“personal insolvency agreement or a person acting under such an
authority”.
17 Subparagraph 12(1)(b)(iii)
Repeal the subparagraph, substitute:
(iii) a personal insolvency agreement; or
18 Subparagraph 12(1)(ba)(iii)
Repeal the subparagraph, substitute:
(iii) a debtor under a personal insolvency agreement;
19 Paragraph 12(1)(ba)
Omit “deed of assignment, scheme or deed of arrangement, or
composition”, substitute “composition, scheme or
agreement”.
20 Subsection 12(1BA)
Omit “deed of assignment, scheme or deed of arrangement,
composition”, substitute “composition, scheme or
agreement”.
21 Subparagraph 12(2)(b)(iv)
Omit “deed of assignment, deed of arrangement”, substitute
“personal insolvency agreement”.
22 Subsection 18(10)
Omit “deed of assignment, deed of arrangement”, substitute
“personal insolvency agreement”.
23 Paragraph 18A(1)(e)
Omit “deed of assignment or deed of arrangement executed, or a
composition accepted, under Part X”, substitute “personal
insolvency agreement”.
24 Subparagraph 20J(1)(b)(ii)
Repeal the subparagraph, substitute:
(ii) the trustee of a personal insolvency agreement;
25 Paragraph 31(1)(j)
Repeal the paragraph, substitute:
(j) applications under Part X:
(i) for an order setting aside or terminating a personal insolvency
agreement; or
(ii) for a sequestration order against the estate of a debtor;
26 Paragraph 40(1)(l)
Omit “deed of assignment or a deed of arrangement”, substitute
“personal insolvency agreement”.
27 Subparagraph 40(1)(l)(i)
Omit “deed”, substitute “agreement”.
28 Paragraph 40(1)(m)
Repeal the paragraph, substitute:
(m) if a personal insolvency agreement executed by him or her under
Part X is:
(i) set aside by the Court; or
(ii) terminated;
29 Subsection 40(5)
Omit “deed”, substitute “agreement”.
30 Subsection 40(6)
Omit “deed or composition is declared void or terminated or the
composition is set aside”, substitute “agreement is set aside or
terminated”.
31 Subsection 55(6)
Repeal the subsection, substitute:
(6) A debtor who has executed a personal insolvency agreement is not,
except with the leave of the Court, entitled to present a petition against
himself or herself unless:
(a) the agreement has been set aside; or
(b) the agreement has been terminated; or
(c) all the obligations that the agreement created have been
discharged.
32 Subsections 56A(3), (4) and
(5)
Repeal the subsections, substitute:
(3) A member of a partnership who has executed a personal insolvency
agreement must not join in presenting a petition against the partnership
unless:
(a) the agreement has been set aside; or
(b) the agreement has been terminated; or
(c) all the obligations that the agreement created have been discharged;
or
(d) the Court gives permission for the member to join in presenting a
petition against the partnership.
33 Subsection 57(7)
Repeal the subsection, substitute:
(7) A debtor who has executed a personal insolvency agreement is not
entitled to join in presenting a petition under this section unless:
(a) the agreement has been set aside; or
(b) the agreement has been terminated; or
(c) all the obligations that the agreement created have been discharged;
or
(d) the Court grants leave for the debtor to join in presenting a petition
under this section.
34 At the end of paragraph
71(2)(a)
Add “or”.
35 Paragraph 71(2)(b)
Repeal the paragraph, substitute:
(b) he or she executes a personal insolvency agreement; or
36 Paragraph 109(1)(c)
Omit “deed of assignment or a deed of arrangement”, substitute
“personal insolvency agreement”.
37 Paragraph 109(1)(c)
Omit “been declared to be void or”.
38 Subsection 114(1)
Omit “deed of assignment or a deed of arrangement”, substitute
“personal insolvency agreement”.
39 Subsection 114(1)
Omit “been declared to be void or”.
40 Paragraphs 114(1)(a), (b) and
(c)
Omit “deed”, substitute “agreement”.
41 Subsection 114(2)
Repeal the subsection, substitute:
(2) In this section:
the terminated agreement, composition or scheme of
arrangement means the agreement, composition or scheme of arrangement
that has been set aside or terminated.
42 Section 163 (note)
Omit “deed of arrangement”, substitute “personal
insolvency agreement”.
43 Paragraph 185S(b)
Omit “231(2)”, substitute “188A(4)”.
44 Part X (heading)
Repeal the heading, substitute:
45 Subsection 187(1) (definition of
composition)
Repeal the definition.
46 Subsection 187(1) (definition of deed of
arrangement)
Repeal the definition.
47 Subsection 187(1) (definition of deed of
assignment)
Repeal the definition.
48 Subsection 187(1) (definition of divisible
property)
Omit “deed of assignment”, substitute “personal
insolvency agreement”.
49 Subsection 187(1) (definition of divisible
property)
Omit “the deed”, substitute “the
agreement”.
50 Subsection 187(2)
Omit “deed or a composition”, substitute “personal
insolvency agreement”.
51 Subsection 187(2)
Omit “deed or on which the special resolution accepting the
composition was passed, as the case may be”, substitute “personal
insolvency agreement”.
52 After subsection 188(2)
Insert:
(2AA) If the person authorised is a registered trustee or a solicitor,
then, before the person consents to exercise the powers given by the authority,
the person must give the debtor the information prescribed by the
regulations.
(2AB) If the person authorised is the Official Trustee, then, before the
Official Receiver gives approval to name the Official Trustee in the authority,
the Official Receiver must give the debtor the information prescribed by the
regulations.
Note: The heading to section 188 is altered by omitting
“authorize” and substituting
“authorise”.
53 After subsection 188(2B)
Insert:
(2C) If the person authorised is a registered trustee or solicitor, the
authority signed by the debtor under this section is not effective for the
purposes of this Part unless, before the person authorised consents to exercise
the powers given by the authority, the debtor gives to the person
authorised:
(a) a statement of the debtor’s affairs; and
(b) a proposal for dealing with them under this Part.
Note: Section 6A sets out requirements for statements
of affairs.
(2D) If the person authorised is the Official Trustee, the authority
signed by the debtor under this section is not effective for the purposes of
this Part unless, before an Official Receiver gives approval to name the
Official Trustee in the authority, the debtor gives to the Official
Receiver:
(a) a statement of the debtor’s affairs; and
(b) a proposal for dealing with them under this Part.
Note: Section 6A sets out requirements for statements
of affairs.
(2E) A proposal for dealing with the debtor’s affairs under this
Part must include a draft personal insolvency agreement.
Note: Section 188A sets out requirements for personal
insolvency agreements.
54 Subsection 188(5)
Repeal the subsection, substitute:
(5) A registered trustee or solicitor who consents to exercise the powers
given by an authority must, within 2 working days of consenting, give a copy
of:
(a) the authority; and
(b) the debtor’s statement of affairs;
to the Official Receiver for the District in which the debtor
resides.
(5A) For the purposes of subsection (5), a working day
is a day that is not a Saturday, Sunday or public holiday in the place where the
registered trustee or solicitor consented to exercise the powers given by the
authority.
55 Section 188A
Repeal the section, substitute:
Requirements for a personal insolvency agreement
(1) A personal insolvency agreement is a deed that:
(a) is expressed to be entered into under this Part; and
(b) complies with subsection (2).
(2) A personal insolvency agreement must:
(a) identify the debtor’s property (whether or not already owned by
the debtor when he or she executes the agreement) that is to be available to pay
creditors’ claims; and
(b) specify how the property is to be dealt with; and
(c) identify the debtor’s income (whether or not already derived by
the debtor when he or she executes the agreement) that is to be available to pay
creditors’ claims; and
(d) specify how the income is to be dealt with; and
(e) specify the extent (if any) to which the debtor is to be released from
his or her provable debts; and
(f) specify the conditions (if any) for the agreement to come into
operation; and
(g) specify the circumstances in which, or the events on which, the
agreement terminates; and
(h) specify the order in which proceeds of realising the property referred
to in paragraph (a) are to be distributed among creditors; and
(i) specify the order in which income referred to in paragraph (c) is
to be distributed among creditors; and
(j) specify whether or not the antecedent transactions provisions of this
Act apply to the debtor; and
(k) make provision for a person or persons to be trustee or trustees of
the agreement; and
(l) provide that the debtor will execute such instruments and generally do
all such acts and things in relation to his or her property and income as is
required by the agreement.
(3) Subsection (2) does not limit the provisions that may be included
in a personal insolvency agreement.
Antecedent transactions provisions
(4) If a personal insolvency agreement specifies that the antecedent
transactions provisions of this Act apply to the debtor, sections 120 to
125 apply, with any modifications prescribed by the regulations, in relation to
the debtor as if:
(a) a creditor’s petition had been presented against the debtor on
the day on which the special resolution requiring the execution of the agreement
was passed; and
(b) a sequestration order had been made against the debtor on that
petition on the day on which the debtor executed the agreement; and
(c) the trustee of the agreement were the trustee in the debtor’s
bankruptcy.
(5) In the application, by virtue of subsection (4), of the
provisions referred to in that subsection:
(a) a reference to the property of the bankrupt is to be read as a
reference to the divisible property of the debtor; and
(b) a reference to a provable debt is to be read as a reference to a
provable debt within the meaning of this Part; and
(c) a reference to the end of the bankruptcy is to be read as a reference
to the end of the personal insolvency agreement.
Definition
(6) In this section:
income has the meaning given by section 139L.
(1) This section applies to the following documents relating to a
debtor:
(a) a copy of a statement of the debtor’s affairs given to an
Official Receiver under subsection 188(5);
(b) a statement of the debtor’s affairs given to the Official
Receiver under subsection 188(2D).
(2) A person who states in writing that he or she is a creditor of the
debtor, may, without fee:
(a) inspect, personally or by an agent, the document; and
(b) obtain a copy of, or make extracts from, the document.
(3) A person who does not state in writing that he or she is a creditor of
the debtor, may, on payment of the fee prescribed by the regulations:
(a) inspect, personally or by an agent, the document; and
(b) obtain a copy of, or make extracts from, the document.
(4) The debtor may, without fee and either personally or by an
agent:
(a) inspect the document; or
(b) obtain a copy of, or make extracts from, the document.
(5) If the approved form for a statement of affairs indicates that
particular information in the statement will not be made available to the
public, then the Official Receiver must ensure that the information is not made
available under this section to any person (other than the debtor or an agent of
the debtor).
(6) The Official Receiver may refuse to allow a person access under this
section to particular information in a debtor’s statement of affairs on
the ground that access to that information would jeopardise, or be likely to
jeopardise, the safety of any person.
56 Paragraphs 189(1A)(b) and
(c)
Repeal the paragraphs, substitute:
(b) the debtor and a trustee execute a personal insolvency agreement
following a special resolution of creditors;
57 After section 189
Insert:
(1) If:
(a) an authority signed by a debtor under section 188 has become
effective; and
(b) either:
(i) a creditor’s petition was presented against the debtor before
the authority became effective; or
(ii) a creditor’s petition is presented against the debtor after the
authority became effective but before the first or only meeting of the
debtor’s creditors called under the authority;
proceedings relating to that petition are, by force of this subsection,
stayed until:
(c) the conclusion of the meeting; or
(d) the adjournment of the meeting;
whichever is the earlier.
(2) This section does not limit subsection 206(1).
58 After section 189AB
Insert:
(1) The controlling trustee is entitled to be indemnified out of the
debtor’s property for:
(a) his or her remuneration; and
(b) any costs, charges or expenses properly and reasonably incurred by the
controlling trustee while the debtor’s property was subject to control
under this Division.
(2) To secure a right of indemnity under subsection (1), the
controlling trustee has a lien on the debtor’s property.
(3) A lien under subsection (2) ceases to have effect if the debtor
becomes a bankrupt.
59 Paragraph 189A(1)(b)
Repeal the paragraph, substitute:
(b) stating whether the controlling trustee believes that the
creditors’ interests would be better served:
(i) by accepting the debtor’s proposal for dealing with his or her
affairs under this Part; or
(ii) by the bankruptcy of the debtor; and
(c) naming each creditor who was identified as a related entity of the
debtor in the debtor’s statement of affairs.
60 At the end of subsection
189A(2)
Add:
Declaration of relationships
(3) The controlling trustee must make a written declaration stating
whether the debtor is a related entity of:
(a) the controlling trustee; or
(b) a related entity of the controlling trustee.
(4) The controlling trustee must:
(a) give a copy of the declaration to the Official Receiver; and
(b) give a copy of the declaration to each of the creditors at the same
time as the controlling trustee gives a copy of the subsection (1) report
to each creditor; and
(c) keep a copy of the declaration.
Note: The heading to section 189A is altered by
inserting “and declaration” after
“Report”.
61 Subsection 190(5)
Omit all the words after “but,”, substitute “if a
personal insolvency agreement is executed by him or her in accordance with a
special resolution of a meeting of creditors called in accordance with the
authority, does not include property that is acquired by, or devolves on, him or
her on or after the day on which he or she executes the
agreement.”.
62 After section 190
Insert:
(1) The duties of the controlling trustee include the following:
(a) notifying the debtor’s creditors of the giving by the debtor of
an authority under section 188;
(b) giving information about the administration of the controlling
trusteeship to a creditor who makes a reasonable request for it;
(c) taking whatever action is practicable to try to ensure that the debtor
discharges all of the debtor’s duties under this Act;
(d) considering whether the debtor has committed an offence against this
Act;
(e) referring to the Inspector-General or to relevant law enforcement
authorities any evidence of an offence by the debtor against this Act;
(f) making appropriate inquiries and investigations in connection with the
debtor’s property and examinable affairs;
(g) disclosing to creditors any material personal interests held by the
trustee that could conflict with the proper exercise of his or her powers or the
proper performance of his or her functions;
(h) exercising powers and performing functions in a commercially sound
way;
(i) exercising powers and performing functions in an impartial and
independent manner.
63 Paragraph 192(3)(a)
Omit “deed of assignment or a deed of arrangement”, substitute
“personal insolvency agreement”.
64 Subsection 192(3)
Omit “the deed”, substitute “the
agreement”.
65 Section 194
Repeal the section, substitute:
(1) The meeting that is to be called under an authority under
section 188 must be held:
(a) not more than 25 working days after the relevant consent or approval
was given; or
(b) if the relevant consent or approval was given in December—not
more than 30 working days after the relevant consent or approval was
given.
(2) For the purposes of subsection (1), the relevant consent or
approval is:
(a) if the person authorised is a registered trustee or
solicitor—the consent of the person to exercise the powers given by the
authority; or
(b) if the person authorised is the Official Trustee—the approval
given by the Official Receiver to name the Official Trustee in the
authority.
(3) For the purposes of subsection (1), a working day
is a day that is not a Saturday, Sunday or public holiday in the place where the
meeting is to be held.
Scope
(1) This section applies to a meeting that is called under an authority
under section 188.
Debtor’s statement of affairs
(2) The controlling trustee must table at the meeting a copy of the
debtor’s statement of affairs.
(3) If, assuming that the debtor had been required, immediately before the
start of the meeting, to prepare a statement of affairs, that statement would
have differed in one or more material respects from the statement given by the
debtor under subsection 188(2C) or (2D), the debtor must table at the meeting a
written statement identifying those differences.
Controlling trustee’s declaration
(4) The controlling trustee must table at the meeting a copy of the
declaration made by the controlling trustee under subsection 189A(3).
(5) If, assuming that the controlling trustee had been required,
immediately before the start of the meeting, to make a declaration stating
whether the debtor is a related entity of:
(a) the controlling trustee; or
(b) a related entity of the controlling trustee;
that declaration would have differed in one or more material respects from
the declaration made by the controlling trustee under subsection 189A(3), the
controlling trustee must table at the meeting a written statement identifying
those differences.
66 Paragraphs 204(1)(b) and (c)
Repeal the paragraphs, substitute:
(b) require the debtor to execute a personal insolvency agreement;
or
Note: The heading to section 204 is altered by omitting
“deed of assignment etc.” and substituting “personal
insolvency agreement”.
67 Subsections 204(2), (3) and
(4)
Repeal the subsections, substitute:
(2) A special resolution requiring a debtor to execute a personal
insolvency agreement must specify the provisions to be included in the
agreement.
(3) If a special resolution requiring the debtor to execute a personal
insolvency agreement has been passed, the creditors must, by resolution,
nominate a trustee or trustees to be trustee or trustees of the
agreement.
68 Subsection 204(5)
Omit “subsection (4)”, substitute
“subsection (3)”.
69 Paragraph 204(5)(b)
Omit “deed or composition”, substitute “personal
insolvency agreement”.
70 Subsection 204(6)
Omit “deed or composition”, substitute “personal
insolvency agreement”.
71 Subsection 205(1)
Omit “deed of assignment or a deed of arrangement or present a
debtor’s petition or accepting a composition”, substitute
“personal insolvency agreement or present a debtor’s
petition”.
72 Subsection 205(3)
Omit “deed of assignment or a deed of arrangement or present a
debtor’s petition or accepting a composition”, substitute
“personal insolvency agreement or present a debtor’s
petition”.
73 Paragraph 205(5)(a)
Omit “deed of assignment or a deed of arrangement or present a
debtor’s petition or accepting a composition”, substitute
“personal insolvency agreement or present a debtor’s
petition”.
74 Paragraph 205(5)(d)
Omit “(not being a special resolution accepting a
composition)”.
75 Paragraph 205(5)(d)
Omit “deed”, substitute “personal insolvency
agreement”.
76 Paragraph 205(6)(a)
Omit “deed of assignment or a deed of arrangement under this Part, or
a special resolution is passed under section 204 accepting a composition in
relation to the debtor, and the property vests in the trustee of the deed or is
subject to the terms of the composition, as the case may be”, substitute
“personal insolvency agreement, and the property vests in the trustee of
the agreement”.
77 Subsections 205A(1), (2) and
(3)
Repeal the subsections.
Note: The heading to section 205A is altered by
omitting “deed” and substituting “personal
insolvency agreement”.
78 Subparagraph 205A(4)(a)(i)
Repeal the subparagraph, substitute:
(i) that a debtor has executed a personal insolvency agreement;
and
79 At the end of sub-subparagraph
205A(4)(a)(ii)(A)
Add “or”.
80 Sub-subparagraph
205A(4)(a)(ii)(B)
Omit “passing of the special resolution” (wherever occurring),
substitute “execution of the agreement”.
81 Subparagraph 205A(4)(a)(ii)
Omit “terms of the composition”, substitute “the
agreement”.
82 Subparagraph 205A(4)(b)(i)
Repeal the subparagraph, substitute:
(i) that a debtor has executed a personal insolvency agreement;
and
83 Sub-subparagraphs 205A(4)(b)(ii)(A) and
(B)
Omit “passing of the special resolution” (wherever occurring),
substitute “execution of the agreement”.
84 Subparagraph 205A(4)(b)(ii)
Omit “terms of the composition”, substitute “the
agreement”.
85 Paragraph 205A(5)(c)
Omit “special resolution accepting the composition was passed”,
substitute “personal insolvency agreement was executed”.
86 Paragraph 205A(5)(d)
Omit “the composition”, substitute “or terminate the
agreement”.
87 Subparagraph 205A(6)(a)(i)
Repeal the subparagraph, substitute:
(i) that a debtor has executed a personal insolvency agreement;
and
88 At the end of sub-subparagraph
205A(6)(a)(ii)(A)
Add “or”.
89 Sub-subparagraph
205A(6)(a)(ii)(B)
Omit “passing of the special resolution” (wherever occurring),
substitute “execution of the agreement”.
90 Subparagraph 205A(6)(a)(ii)
Omit “terms of the composition”, substitute “the
agreement”.
91 Paragraph 205A(6)(a)
Omit “trustee of the composition”, substitute “trustee of
the agreement”.
92 Subparagraph 205A(6)(b)(i)
Repeal the subparagraph, substitute:
(i) that a debtor has executed a personal insolvency agreement;
and
93 Sub-subparagraphs 205A(6)(b)(ii)(A) and
(B)
Omit “passing of the special resolution” (wherever occurring),
substitute “execution of the agreement”.
94 Subparagraph 205A(6)(b)(ii)
Omit “terms of the composition”, substitute “the
agreement”.
95 Paragraph 205A(6)(b)
Omit “trustee of the composition”, substitute “trustee of
the agreement”.
96 Subsection 205A(7)
Omit “trustee of the composition”, substitute “trustee of
the agreement”.
97 Paragraph 205A(7)(c)
Omit “special resolution accepting the composition was passed”,
substitute “personal insolvency agreement was executed”.
98 Paragraph 205A(7)(d)
Omit “the composition”, substitute “or terminate the
agreement”.
99 Subsection 205A(8)
Omit “(1), (2), (3),”.
100 Subsection 205A(8)
Omit “a deed or a composition”, substitute “a personal
insolvency agreement”.
101 Subsection 205A(10)
Omit “(1), (2), (3),”.
102 Subsection 205A(10)
Omit “a deed or a composition”, substitute “a personal
insolvency agreement”.
103 Subsection 205A(10)
Omit “the deed or composition”, substitute “the
agreement”.
104 Subsection 205A(11)
Repeal the subsection.
105 Subparagraphs 205A(12)(a)(i), (ii), (iii) and
(iv)
Repeal the subparagraphs, substitute:
(i) to a debtor, or a person authorised by the debtor under
subsection (4); or
(ii) to the trustee of a personal insolvency agreement under
subsection (6); and
106 Paragraph 206(1)(a)
Omit “deed of assignment or a deed of arrangement under this
Part”, substitute “personal insolvency agreement”.
Note: The heading to section 206 is altered by omitting
“deed” and substituting “personal insolvency
agreement”.
107 Subsection 206(1)
Omit “the proposed deed”, substitute “the proposed
agreement”.
108 Subsection 206(1)
Omit “the deed” (wherever occurring), substitute “the
agreement”.
109 Subsection 206(2)
Omit “deed of assignment or a deed of arrangement under this
Part”, substitute “personal insolvency agreement”.
110 Subsection 206(2)
Omit “the deed”, substitute “the
agreement”.
111 Subsection 207(1)
Omit “deed of assignment or a deed of arrangement or accepting a
composition”, substitute “personal insolvency
agreement”.
112 Paragraph 207(1)(a)
Omit “deed or composition”, substitute
“agreement”.
113 Paragraph 207(1)(b)
Omit “deed executed in pursuance of the special resolution or of the
composition, as the case may be”, substitute “personal insolvency
agreement executed in accordance with the special resolution”.
114 Paragraph 207(3)(b)
Omit “deed executed in pursuance of the special resolution or the
trustee of the composition, as the case may be”, substitute
“personal insolvency agreement executed in accordance with the special
resolution”.
115 Paragraph 207(4)(b)
Omit “deed or composition”, substitute “personal
insolvency agreement”.
116 Subsection 207(6)
Omit “deeds of assignment, deeds of arrangement and compositions
under this Part”, substitute “personal insolvency
agreements”.
117 Subsection 207(6)
Omit “a deed or composition”, substitute “an
agreement”.
118 Paragraph 209(b)
Repeal the paragraph, substitute:
(b) subsequently a personal insolvency agreement is entered into by the
debtor or the debtor becomes a bankrupt;
Note: The heading to section 209 is altered by omitting
“deed, composition” and substituting “personal
insolvency agreement”.
119 Section 209
Omit “deed or composition”, substitute “personal
insolvency agreement”.
120 At the end of Division 2 of
Part X
Add:
(1) Sections 77, 77A, 77C, 77D, 77E, 77F, 78 (other than paragraphs
78(1)(a), (b) and (c)) and 81, with any modifications prescribed by the
regulations, apply in relation to a debtor whose property is subject to control
under this Division as if:
(a) the debtor were a bankrupt; and
(b) the controlling trustee were the trustee of the estate of the bankrupt
debtor.
(2) Section 78 (other than paragraphs 78(1)(d) and (f)), with any
modifications prescribed by the regulations, applies in relation to a debtor
whose property is subject to control under this Division as if the debtor were a
debtor against whom a bankruptcy notice has been presented.
121 Sections 213 and 214
Repeal the sections.
122 Section 215
Repeal the section, substitute:
Only a registered trustee or the Official Trustee can be a trustee of a
personal insolvency agreement.
123 Paragraph 215A(1)(a)
Omit “204(4)”, substitute “204(3)”.
Note: The heading to section 215A is altered by
omitting “deed or composition” and substituting
“personal insolvency agreement”.
124 Paragraph 215A(1)(b)
Omit “deed of assignment, deed of arrangement or composition”,
substitute “personal insolvency agreement”.
125 Subsection 215A(1)
Omit “deed or composition”, substitute
“agreement”.
126 At the end of
section 215A
Add:
(3) Before a resolution is passed at a meeting of creditors that nominates
one or more persons under subsection 204(3) to be a trustee or
trustees:
(a) the person or each of those persons must make a written declaration
stating whether the debtor is a related entity of:
(i) the person concerned; or
(ii) a related entity of the person concerned; and
(b) the person or each of those persons must:
(i) give his or her declaration to the controlling trustee; and
(ii) keep a copy of his or her declaration; and
(c) the controlling trustee must table at the meeting a copy of each
declaration given to the controlling trustee; and
(d) the controlling trustee must give a copy of each such declaration to
each of the creditors at the same time as the controlling trustee gives a copy
of the subsection 189A(1) report to each creditor.
(4) Before a resolution is passed at a meeting of creditors that appoints
a person under subsection 220(1) to a vacant office of trustee of a personal
insolvency agreement:
(a) the person must make a written declaration stating whether the debtor
is a related entity of:
(i) the person; or
(ii) a related entity of the person; and
(b) the person must:
(i) give his or her declaration to the person presiding at the meeting;
and
(ii) keep a copy of his or her declaration; and
(c) the person presiding at the meeting must table at the meeting a copy
of the declaration.
127 Subsection 216(1)
Omit “deed of assignment or a deed of arrangement shall”,
substitute “personal insolvency agreement must”.
Note: The heading to section 216 is altered by omitting
“deeds” and substituting “personal insolvency
agreements”.
128 Subsections 216(1) and (2)
Omit “the deed”, substitute “the
agreement”.
129 Subsection 217(1)
Omit “deed of assignment or deed of arrangement”, substitute
“personal insolvency agreement”.
Note: The heading to section 217 is altered by omitting
“deed” and substituting “personal insolvency
agreement”.
130 Subsections 217(1), (2) and
(3)
Omit “the deed” (wherever occurring), substitute “the
agreement”.
131 Subsection 218(1)
Omit “deed of assignment or a deed of arrangement”, substitute
“personal insolvency agreement”.
Note: The heading to section 218 is altered by omitting
“deed or acceptance of composition” and substituting
“personal insolvency agreement”.
132 Paragraphs 218(1)(a) and
(b)
Omit “the deed” (wherever occurring), substitute “the
agreement”.
133 Subsection 218(2)
Repeal the subsection.
134 Subsection 218(3)
Omit “or subsection (2)”.
135 Subsection 219(1)
Omit “deed of assignment or a deed of arrangement”, substitute
“personal insolvency agreement”.
136 Subsection 220(1)
Omit “deed of assignment or a deed of arrangement entered into in
pursuance of this Part or of a composition accepted under this Part”,
substitute “personal insolvency agreement entered into under this
Part”.
Note: The heading to section 220 is altered by omitting
“deed” and substituting “personal insolvency
agreement”.
137 Subsection 220(2)
Omit “deed of assignment or deed of arrangement or of such a
composition”, substitute “personal insolvency
agreement”.
138 Paragraph 220(5)(a)
Omit “deed or composition”, substitute “personal
insolvency agreement”.
139 Subsection 220(6)
Omit “deed or composition”, substitute “personal
insolvency agreement”.
140 Paragraph 221(1)(b)
Omit “deed of assignment or a deed of arrangement, has failed without
sufficient cause to execute the deed”, substitute “personal
insolvency agreement, has failed without sufficient cause to execute the
agreement”.
Note: The heading to section 221 is altered by omitting
“deed etc.” and substituting “personal insolvency
agreement etc.”.
141 After section 221
Insert:
Variation by special resolution of creditors
(1) The creditors, with the written consent of the debtor, may vary a
personal insolvency agreement by special resolution at a meeting called for the
purpose.
Variation by trustee
(2) The trustee, with the written consent of the debtor, may, in writing,
propose a variation of a personal insolvency agreement.
(3) The trustee must give notice of the proposed variation to all the
creditors who would be entitled under section 64A (as that section applies
in accordance with section 223A) to receive notice of a meeting of
creditors.
(4) The notice must:
(a) include a statement of the reasons for the variation and the likely
impact it will have on creditors (if it takes effect); and
(b) specify a date (at least 14 days after the notice is given) from which
it is proposed that the variation will take effect; and
(c) state that any creditor may, by written notice to the trustee at least
2 days before the specified date, object to the variation taking effect without
there being a meeting of creditors.
(5) If no creditor lodges a written notice of objection with the trustee
at least 2 days before the specified date, then the proposed variation takes
effect on the date specified in the notice.
(6) A certificate signed by the trustee stating any matter relating to a
proposed variation under subsection (2) is prima facie evidence of the
matter.
142 Section 222
Repeal the section, substitute:
Setting aside on grounds of unreasonableness etc.
(1) If a personal insolvency agreement is in force, the Court may, on
application by:
(a) the Inspector-General; or
(b) the trustee; or
(c) a creditor;
make an order setting the agreement aside if the Court is satisfied
that:
(d) the terms of the agreement are unreasonable or are not calculated to
benefit the creditors generally; or
(e) for any other reason, the agreement ought to be set aside.
Setting aside on grounds of non-compliance with this Part
etc.
(2) If a personal insolvency agreement is in force, the Court may, on
application by:
(a) the Inspector-General; or
(b) the trustee; or
(c) a creditor; or
(d) the debtor;
make an order setting the agreement aside if the Court is satisfied
that:
(e) the agreement was not entered into in accordance with this Part;
or
(f) the agreement does not comply with the requirements of this
Part.
(3) The Court must not make an order setting aside a personal insolvency
agreement on the ground that it does not comply with the requirements of this
Part if the agreement complies substantially with those requirements.
(4) The Court must not make an order under subsection (2) unless the
application for the order is made before all the obligations that the personal
insolvency agreement created have been discharged.
Setting aside on grounds of false or misleading information
etc.
(5) If a personal insolvency agreement is in force, the Court may, on
application by:
(a) the Inspector-General; or
(b) the trustee; or
(c) a creditor;
make an order setting the agreement aside if the Court is satisfied
that:
(d) the debtor has given false or misleading information in answer to a
question put to the debtor with respect to any of the debtor’s conduct or
examinable affairs at the meeting of creditors at which the resolution requiring
the debtor to execute the agreement was passed; or
(e) the debtor has:
(i) omitted a material particular from the statement of the debtor’s
affairs given under subsection 188(2C) or (2D); or
(ii) included an incorrect and material particular in that statement;
or
(f) the debtor was subject to a requirement under subsection 194A(3) to
table a statement, and the debtor has:
(i) omitted a material particular from that statement; or
(ii) included an incorrect and material particular in that statement;
or
(g) the controlling trustee has:
(i) omitted a material particular from the declaration given by the
controlling trustee under subsection 189A(3); or
(ii) included an incorrect and material particular in that declaration;
or
(h) the controlling trustee was subject to a requirement under subsection
194A(5) to table a statement, and the controlling trustee has:
(i) omitted a material particular from that statement; or
(ii) included an incorrect and material particular in that statement;
or
(i) a person who became the trustee of the agreement has:
(i) omitted a material particular from the declaration given by the person
under subsection 215A(3) or (4); or
(ii) included an incorrect and material particular in that
declaration.
(6) The Court must not make an order under subsection (5) unless it
is satisfied that it would be in the interests of the creditors to do
so.
(7) The Court must not make an order under subsection (5) unless the
application for the order is made before all the obligations that the personal
insolvency agreement created have been discharged.
Ancillary orders
(8) If the Court makes an order under subsection (1), (2) or (5), the
Court may make such other orders as the Court thinks fit.
(9) An order under subsection (8) may be an order directing a person
to pay another person compensation of such amount as is specified in the order.
This subsection does not limit subsection (8).
Application for sequestration order
(10) The trustee or a creditor may include in an application under
subsection (1), (2) or (5) an application for a sequestration order against
the estate of the debtor. If the Court, on the first-mentioned application,
makes an order under this section setting the personal insolvency agreement
aside, it may, if it thinks fit, immediately make the sequestration order
sought.
(11) The making of an application by the trustee or a creditor for a
sequestration order under this section is taken, for the purposes of this Act,
to be equivalent to the presentation of a creditor’s petition against the
debtor, but the provisions of subsection 43(1), sections 44 and 47,
subsections 52(1) and (2) and Part XIA do not apply in relation to such an
application.
Court may dispense with service on debtor of notice of
application
(12) The Court may, if it thinks fit, dispense with service on the debtor
of notice of an application by the Inspector-General, the trustee or a creditor
under this section, either unconditionally or subject to conditions.
(1) The trustee of a personal insolvency agreement may, in writing,
propose the termination of the agreement if the trustee is satisfied that the
debtor is in default.
(2) The trustee must give notice of the proposed termination to all the
creditors who would be entitled under section 64A (as that section applies
in accordance with section 223A) to receive notice of a meeting of
creditors.
(3) The notice must:
(a) include a statement of the reasons for the termination and the likely
impact it will have on creditors (if it takes effect); and
(b) specify a date (at least 14 days after the notice is given) from which
it is proposed that the termination will take effect; and
(c) state that any creditor may, by written notice to the trustee at least
2 days before the specified date, object to the termination taking effect
without there being a meeting of creditors.
(4) If:
(a) the debtor is in default; and
(b) no creditor lodges a written notice of objection with the trustee at
least 2 days before the specified date;
then the proposed termination takes effect on the date specified in the
notice.
(5) For the purposes of this section, the debtor is in
default if, and only if:
(a) the debtor has failed to carry out or comply with a term of the
personal insolvency agreement; or
(b) if the debtor has died—the debtor or the person administering
the estate of the debtor has failed to carry out or comply with a term of the
agreement.
(6) A certificate signed by the trustee stating any matter relating to a
proposed termination under this section is prima facie evidence of the
matter.
(1) The creditors may, by resolution at a meeting called for the purpose,
terminate a personal insolvency agreement if:
(a) the debtor is in default; and
(b) before the passage of the resolution, the trustee of the agreement
tabled at the meeting a written declaration to the effect that the trustee is
satisfied that the debtor is in default.
(2) The creditors may, by special resolution at a meeting called for the
purpose, terminate the personal insolvency agreement if:
(a) property of the debtor is covered by a restraining order or a
forfeiture order; or
(b) a pecuniary penalty order made against the debtor is in
force.
(3) However:
(a) paragraph (2)(a) does not apply if, when the personal insolvency
agreement was made, the restraining order or forfeiture order already covered
the property in question; and
(b) paragraph (2)(b) does not apply if, when the personal insolvency
agreement was made, the pecuniary penalty order was already in force against the
debtor.
(4) For the purposes of this section, the debtor is in
default if, and only if:
(a) the debtor has failed to carry out or comply with a term of the
personal insolvency agreement; or
(b) if the debtor has died—the debtor or the person administering
the estate of the debtor has failed to carry out or comply with a term of the
agreement.
(1) If a personal insolvency agreement is in force, the Court may, on
application by:
(a) the trustee; or
(b) a creditor; or
(c) the debtor; or
(d) if the debtor has died—the person administering the estate of
the debtor;
make an order terminating the agreement if the Court is
satisfied:
(e) that:
(i) the debtor; or
(ii) if the debtor has died—the debtor or the person administering
the estate of the debtor;
has failed to carry out or comply with a term of the agreement;
or
(f) that the agreement cannot be proceeded with without injustice or undue
delay to:
(i) the creditors; or
(ii) the debtor; or
(iii) if the debtor has died—the estate of the debtor; or
(g) that, for any other reason, the agreement ought to be
terminated.
(2) The Court must not make an order terminating a personal insolvency
agreement on the ground specified in paragraph (1)(e) or (g) unless it is
satisfied that it would be in the interests of the creditors to do so.
Ancillary orders
(3) If the Court makes an order terminating a personal insolvency
agreement, the Court may make such other orders as the Court thinks
fit.
(4) An order under subsection (3) may be an order directing a person
to pay another person compensation of such amount as is specified in the order.
This subsection does not limit subsection (3).
Application for sequestration order
(5) The trustee or a creditor may include in an application under
subsection (1) an application for a sequestration order against the estate
of the debtor. If the Court, on the first-mentioned application, makes an order
under this section terminating the personal insolvency agreement, it may, if it
thinks fit, immediately make the sequestration order sought.
(6) The making of an application by the trustee or a creditor for a
sequestration order under this section is taken, for the purposes of this Act,
to be equivalent to the presentation of a creditor’s petition against the
debtor, but the provisions of subsection 43(1), sections 44 and 47,
subsections 52(1) and (2) and Part XIA do not apply in relation to such an
application.
Court may dispense with service on debtor of notice of
application
(7) The Court may, if it thinks fit, dispense with service on the debtor
of notice of an application by the trustee or a creditor under this section,
either unconditionally or subject to conditions.
A personal insolvency agreement is terminated by the occurrence of any
circumstance or event on the occurrence of which the agreement provides that it
is to terminate.
143 Subsection 223(1)
Omit “deed of assignment, a deed of arrangement or a
composition”, substitute “personal insolvency
agreement”.
144 Subsection 223(3)
Omit “deed of assignment, a deed of arrangement or a
composition”, substitute “personal insolvency
agreement”.
145 Subsection 223(3)
Omit “deed or composition”, substitute
“agreement”.
146 Subsection 223A(2)
Omit “deed of assignment, a deed of arrangement or a
composition”, substitute “personal insolvency
agreement”.
147 Sections 224 and 224A
Repeal the sections, substitute:
Scope
(1) This section applies if a personal insolvency agreement is:
(a) set aside by the Court; or
(b) terminated.
Validity of acts
(2) All payments made, acts and things done and transactions entered into
in good faith under, or for the purposes of, the agreement by:
(a) the trustee; or
(b) any other person;
before he or she had notice of the order of the Court or of the termination
of the agreement, as the case may be, are valid and effectual and are not liable
to be set aside by the trustee of a later personal insolvency agreement or in a
subsequent bankruptcy.
(1) If a personal insolvency agreement is terminated or varied by a
resolution or special resolution at a meeting of creditors called for the
purpose, the trustee of the agreement must immediately file a copy of the
resolution or special resolution in the office of the Official
Receiver.
(2) If a personal insolvency agreement is varied in accordance with
subsection 221A(5), the trustee of the agreement must immediately file a copy of
the variation in the office of the Official Receiver.
(3) If a personal insolvency agreement is terminated by the occurrence of
any circumstance or event on the occurrence of which the deed provides that it
is to terminate, the trustee of the agreement must immediately give written
notice of that fact to the Official Receiver.
(4) If:
(a) the Court makes an order setting aside or terminating a personal
insolvency agreement; and
(b) a registered trustee was the trustee of the personal insolvency
agreement;
the registered trustee must give written notice of the order to the
Official Receiver.
(5) If:
(a) the Court makes an order setting aside or terminating a personal
insolvency agreement; or
(b) a personal insolvency agreement is terminated otherwise than because
of an order of the Court;
the trustee of the personal insolvency agreement must give written notice
of the order or termination to each of the creditors within 2 working days of
the making of the order or of the termination, as the case may be.
(6) For the purposes of subsection (5), a working day
is a day that is not a Saturday, Sunday or public holiday in:
(a) in the case of an order made by the Court—the place where the
order is made; or
(b) in the case of a termination otherwise than because of an order of the
Court:
(i) if the trustee of the personal insolvency agreement has only one
office—the place where that office is located; or
(ii) if the trustee of the personal insolvency agreement has 2 or more
offices—the place where the principal office is located.
148 Subsection 225(1)
Omit “deed of assignment or a deed of arrangement”, substitute
“personal insolvency agreement”.
Note: The heading to section 225 is altered by omitting
“deed” and substituting “personal insolvency
agreement”.
149 Subsection 226(1)
Omit “deed of assignment or a deed of arrangement”, substitute
“personal insolvency agreement”.
Note: The heading to section 226 is altered by omitting
“deed” and substituting “personal insolvency
agreement”.
150 Subsection 226(1)
Omit “the deed” (wherever occurring), substitute “the
agreement”.
151 Subsection 226(1)
Omit “section 188A”, substitute “subsection 188(2C)
or (2D)”.
152 Subsection 226(2)
Repeal the subsection.
153 Subsection 226(3)
Omit “deed of assignment or a deed of arrangement, or made a
composition,”, substitute “personal insolvency
agreement”.
154 Paragraph 227(b)
Repeal the paragraph, substitute:
(b) a personal insolvency agreement.
Note: The heading to section 227 is altered by omitting
“deeds” and substituting “personal insolvency
agreements”.
155 After section 227
Insert:
(1) A personal insolvency agreement that:
(a) is entered into in accordance with this Part; and
(b) complies with the requirements of this Part;
is, upon being duly executed by the debtor and the trustee, binding on all
the creditors of the debtor.
(2) If a personal insolvency agreement has become binding on the creditors
of the debtor, it is not competent for a creditor, so long as the agreement
remains valid:
(a) to present a creditor’s petition against the debtor, or to
proceed with such a petition presented before the agreement became so binding,
in respect of a provable debt; or
(b) to enforce any remedy against the person or property of the debtor in
respect of a provable debt; or
(c) to commence any legal proceeding in respect of a provable debt or take
any fresh step in such a proceeding.
(3) This section does not:
(a) affect the right of a secured creditor to realise or otherwise deal
with the creditor’s security; or
(b) prevent a creditor, after all the obligations that a personal
insolvency agreement created have been discharged, from taking any proceeding or
enforcing any remedy in respect of a provable debt from which the debtor is not
released by the operation of the agreement.
(4) This section does not prevent a creditor from enforcing any remedy
against:
(a) a debtor who has executed a personal insolvency agreement;
or
(b) any property of such a debtor that is not subject to the
agreement;
in respect of any liability of the debtor under a maintenance agreement or
maintenance order (whether entered into or made, as the case may be, before or
after the commencement of this subsection).
(1) If a personal insolvency agreement provides for a debtor to be
released from a provable debt, the agreement operates to release the debtor from
that provable debt unless the agreement is set aside or terminated under this
Part.
(2) Subsection (1) has effect subject to subsections (3), (4)
and (5).
Exceptions
(3) Subsection (1) does not operate to release the debtor from a debt
that would not be released by his or her discharge from bankruptcy if he or she
had become a bankrupt on the day on which he or she executed the personal
insolvency agreement.
(4) Subsection (1) does not affect the right of a secured creditor,
or a person claiming through or under a secured creditor, to realise or
otherwise deal with the creditor’s security:
(a) if the secured creditor has not proved under the agreement for any
part of the secured debt—for the purpose of obtaining payment of the
secured debt; or
(b) if the secured creditor has proved under the agreement for part of the
secured debt—for the purpose of obtaining payment of the part of the
secured debt for which the creditor has not proved under the
agreement;
and, for the purposes of enabling the secured creditor, or a person
claiming through or under a secured creditor, so to realise or deal with the
creditor’s security, but not otherwise, the secured debt, or the part of
the secured debt, as the case may be, is taken not to have been
released.
(5) A personal insolvency agreement does not release from any liability a
person who, at the date on which the debtor executed the agreement,
was:
(a) a partner or a co-trustee with the debtor; or
(b) jointly bound or had made a joint contract with the debtor;
or
(c) surety or in the nature of a surety for the debtor.
(1) Sections 77, 77A, 77AA, 77C, 77D, 77E, 77F, 78 (other than
paragraphs 78(1)(a), (b) and (c)) and 81 apply, with the prescribed
modifications (if any), in relation to a debtor who has executed a personal
insolvency agreement as if:
(a) the debtor were a bankrupt; and
(b) the trustee of the agreement were the trustee of the estate of the
bankrupt debtor.
(2) Section 78 (other than paragraphs 78(1)(d) and (f)) applies, with
the prescribed modifications (if any), in relation to a debtor who has executed
a personal insolvency agreement as if the debtor were a debtor against whom a
bankruptcy notice has been presented.
(3) Subsection 58(4) and sections 60, 61, 62, 70, 71, 72, 82 to 118,
127 to 130 and 133 to 139H, Subdivisions I and J of Division 4B of
Part VI and sections 140 to 147 apply, with the prescribed
modifications (if any), in relation to such an agreement as if:
(a) a creditor’s petition had been presented against the debtor by
whom the agreement was executed on the day on which the special resolution
requiring the execution of the agreement was passed; and
(b) a sequestration order had been made against him or her on that
petition on the day on which he or she executed the agreement; and
(c) the trustee of the agreement were the trustee in his or her
bankruptcy.
(4) In the application, by virtue of subsections (1), (2) and (3), of
the provisions referred to in those subsections:
(a) a reference to the property of the bankrupt is to be read as a
reference to the divisible property of the debtor; and
(b) a reference to a provable debt is to be read as a reference to a
provable debt within the meaning of this Part; and
(c) a reference to the end of the bankruptcy is to be read as a reference
to the end of the personal insolvency agreement.
(5) Part VIII applies, with any modifications prescribed by the
regulations, in relation to a trustee of a personal insolvency agreement as
if:
(a) the debtor by whom the agreement was executed were a bankrupt;
and
(b) the trustee of the agreement were the trustee in his or her
bankruptcy.
(6) If, after taking into account the prescribed modifications and the
provisions of subsection (4), a provision specified in subsection (1),
(2), (3) or (5) is incapable of application in relation to a personal insolvency
agreement, or the trustee of such an agreement, as the case requires, or is
inconsistent with this Part, that provision does not so have
application.
(7) This Division does not empower the Court to stay any proceedings under
a proceeds of crime law.
(1) The debtor to whom a personal insolvency agreement relates is entitled
to any property remaining after payment in full of:
(a) the costs, charges and expenses of the administration of the
agreement; and
(b) all provable debts; and
(c) interest on interest-bearing provable debts.
(2) The Court may make an order directing the trustee not to pay or
transfer the property, or a specified part of the property, referred to in
subsection (1), to the debtor if:
(a) the Director of Public Prosecutions, or a person who is entitled to
apply for an interstate confiscation order under a corresponding law, applies to
the Court for an order under this subsection; and
(b) the Court is satisfied that proceedings are pending under a proceeds
of crime law; and
(c) the Court is satisfied that property of the debtor may:
(i) become subject to a forfeiture order or interstate forfeiture order
made in the proceedings; or
(ii) be required to satisfy a pecuniary penalty order or interstate
pecuniary penalty order made in the proceedings.
(3) The Court, on application made to it, may vary or revoke an order made
under subsection (2).
(1) If the trustee of a personal insolvency agreement is satisfied that
all the obligations that the agreement created have been discharged, the trustee
must, on written request by the debtor, give the debtor a certificate signed by
the trustee to that effect.
(2) A certificate signed by a trustee under this section is prima facie
evidence of the facts stated in it.
156 Divisions 4, 5 and 6 of
Part X
Repeal the Divisions.
157 Paragraph 254(1)(b)
Omit “deed of assignment or a deed of arrangement”, substitute
“personal insolvency agreement”.
158 Subparagraphs 263(1)(a)(iii) and
(b)(i)
After “executed”, insert “a personal insolvency
agreement,”.
159 Subparagraph 263(1)(b)(iii)
Omit “a deed”, substitute “an agreement or
deed,”
160 Subparagraph 263(1)(d)(iii)
After “under”, insert “a personal insolvency
agreement,”.
161 Subparagraph 263(2)(a)(iii)
After “under”, insert “a personal insolvency
agreement,”.
162 Subsection 263C(2) (paragraph (e) of the
definition of trustee)
Repeal the paragraph, substitute:
(e) a trustee of a personal insolvency agreement under Part X;
or
163 Paragraph 267(1)(f)
Omit “to the controlling trustee under section 188A”,
substitute “under subsection 188(2C) or (2D)”.
164 Subsection 268(2)
Omit “deed of assignment or a deed of arrangement”, substitute
“personal insolvency agreement”.
Note: The heading to section 268 is altered by omitting
“deeds and compositions” and substituting “personal
insolvency agreements”.
165 Paragraph 268(2)(a)
Omit “deed all the property assigned by the deed”, substitute
“agreement all the property subject to the agreement”.
166 Paragraph 268(2)(b)
Omit “deed to deliver up to the trustee property assigned by the
deed”, substitute “agreement to deliver up to the trustee property
subject to the agreement”.
167 Paragraphs 268(2)(ba), (c), (d) and
(e)
Omit “the deed” (wherever occurring), substitute “the
agreement”.
168 Paragraph 268(2)(f)
Omit “assigned by the deed”, substitute “subject to the
agreement”.
169 Paragraph 268(2)(g)
Omit “the deed”, substitute “the
agreement”.
170 Subsection 268(3)
Omit “deed of assignment or a deed of arrangement”, substitute
“personal insolvency agreement”.
171 Subsection 268(4)
Repeal the subsection, substitute:
(4) Subsections (2) and (3) do not apply to an act or omission that
is done or made after:
(a) all the obligations that the personal insolvency agreement created
have been discharged; or
(b) the personal insolvency agreement has been set aside or
terminated.
Note: A defendant bears an evidential burden in relation to
the matter in subsection (4) (see subsection 13.3(3) of the Criminal
Code).
172 Subsection 268(5)
Omit “A debtor who has executed a deed of assignment under
Part X shall fully and truly disclose to the trustee of the deed”,
substitute “If a personal insolvency agreement specifies that the
antecedent transactions provisions of this Act apply to the debtor, the debtor
must fully and truly disclose to the trustee of the agreement”.
173 Subsection 268(5)
Omit “deed” (last occurring), substitute
“agreement”.
174 Paragraph 270(1)(c)
After “administered under”, insert “a personal insolvency
agreement,”.
175 Paragraph 275(c)
Repeal the paragraph, substitute:
(c) a personal insolvency agreement has become binding on his or her
creditors.
176 Subsection 276(1)
Omit “deed of assignment or a deed of arrangement under Part X
that has, to his or her knowledge, been declared to be void”, substitute
“personal insolvency agreement that has, to his or her knowledge, been set
aside”.
Note: The heading to section 276 is altered by omitting
“void deed” and substituting “a personal insolvency
agreement that has been set aside”.
177 Subsection 280(5) (paragraphs (b), (c) and
(d) of the definition of trustee account)
Repeal the paragraphs, substitute:
(b) subsection 231(5) (which applies section 169 to a personal
insolvency agreement).
178 Subsection 301(1)
Omit “deed of assignment or a deed of arrangement”, substitute
“personal insolvency agreement”.
179 Subsection 302(1)
Omit “deed of assignment or a deed of arrangement”, substitute
“personal insolvency agreement”.
180 Paragraph 302A(1)(e)
Omit “deed of assignment or a deed of arrangement”, substitute
“personal insolvency agreement”.
181 Paragraph 302AB(1)(e)
Omit “deed of assignment or a deed of arrangement”, substitute
“personal insolvency agreement”.
182 Section 302B
Omit “deed of assignment or a deed of arrangement”, substitute
“personal insolvency agreement”.
183 Subsection 305(4) (definition of
estate)
Repeal the definition, substitute:
estate, in relation to a personal insolvency agreement under
Part X, means the property and income subject to the agreement.
184 Subsection 306(2)
Omit “deed”, substitute “personal insolvency
agreement”.
185 At the end of paragraph
311(1)(a)
Add “or”.
186 Paragraph 311(1)(b)
Repeal the paragraph, substitute:
(b) a trustee of a personal insolvency agreement; or
187 Subsection 312(8) (paragraph (b) of the
definition of end of the administration)
Omit “deed or composition”, substitute “personal
insolvency agreement”.
Part 2—Amendment
of other Acts
Aboriginal and Torres
Strait Islander Commission Act 1989
188 Paragraph 102(1)(g)
Omit “composition, deed of arrangement or deed of assignment”,
substitute “personal insolvency agreement”.
189 Paragraph 142V(1)(d)
Omit “composition, deed of arrangement or deed of assignment”,
substitute “personal insolvency agreement”.
190 Subsection 6(1) (paragraphs (d) and (e) of
the definition of insolvent under administration)
Repeal the paragraphs, substitute:
(d) a person who has, at any time during the preceding 3 years, executed a
personal insolvency agreement under:
(i) Part X of the Bankruptcy Act 1966; or
(ii) the corresponding provisions of the law of an external Territory or
the law of a foreign country.
Australian National
University Act 1991
191 Paragraph 11(b)
Omit “composition, deed of arrangement or deed of assignment”,
substitute “personal insolvency agreement”.
192 Subsection 4(1) (paragraphs (d) and (e) of
the definition of insolvent under administration)
Repeal the paragraphs, substitute:
(d) a person who has, at any time during the preceding 3 years, executed a
personal insolvency agreement under:
(i) Part X of the Bankruptcy Act 1966; or
(ii) the corresponding provisions of the law of an external Territory or
the law of a foreign country.
193 Subsection 243A(1) (at the end of
paragraphs (a) and (b) of the definition of trustee in
bankruptcy)
Add “or”.
194 Subsection 243A(1) (paragraph (c) of the
definition of trustee in bankruptcy)
Repeal the paragraph, substitute:
(c) in relation to a personal insolvency agreement under Part X of
the Bankruptcy Act 1966—the trustee of the agreement; or
195 Paragraph 120B(15)(b)
Repeal the paragraph, substitute:
(b) in relation to whom a personal insolvency agreement is in force under
the Bankruptcy Act 1966.
Export Market Development
Grants Act 1997
196 Subparagraphs 87B(a)(iii) and
(iv)
Repeal the subparagraphs, substitute:
(iii) the individual has, in the previous 3 years, executed a personal
insolvency agreement under Part X of that Act; or
Income Tax Assessment Act
1997
197 Paragraph 106-30(2)(b)
Omit “deed of assignment or arrangement”, substitute
“personal insolvency agreement”.
Petroleum Resource Rent Tax
Assessment Act 1987
198 Subsection 40(2)
Omit “deed of assignment or arrangement”, substitute
“personal insolvency agreement”.
199 Subsection 27(1) (paragraph (c) of the
definition of insolvency trustee)
Repeal the paragraph, substitute:
(c) in relation to a personal insolvency agreement under Part X of
the Bankruptcy Act 1966—the trustee of the agreement; or
200 Paragraph 129(c)
Repeal the paragraph, substitute:
(c) in relation to a personal insolvency agreement under Part X of
the Bankruptcy Act 1966—the trustee of the agreement; or
201 Paragraph 1061ZZFQ(b)
Repeal the paragraph, substitute:
(b) the person enters into a personal insolvency agreement under
Part X of the Bankruptcy Act 1966.
202 Subsection 1061ZZFR(1)
Omit “deed of assignment, deed of arrangement or composition”,
substitute “personal insolvency agreement”.
203 Subsection 1061ZZFR(2)
Omit “bankruptcy, deed of assignment, deed of arrangement or
composition”, substitute “bankruptcy or personal insolvency
agreement”.
204 Subsection 1061ZZFR(3)
Omit “deed of assignment, deed of arrangement or composition”,
substitute “personal insolvency agreement”.
205 Paragraph 12ZW(1)(b)
Repeal the paragraph, substitute:
(b) the student enters into a personal insolvency agreement under
Part X of the Bankruptcy Act 1966.
206 Subsection 12ZW(2)
Omit “deed of assignment, deed of arrangement or composition”,
substitute “personal insolvency agreement”.
207 Subsection 12ZW(3)
Omit “bankruptcy, deed of assignment, deed of arrangement or
composition”, substitute “bankruptcy or personal insolvency
agreement”.
208 Subsection 12ZW(4)
Omit “deed of assignment, deed of arrangement or composition”,
substitute “personal insolvency agreement”.
Superannuation Industry
(Supervision) Act 1993
209 Subsection 10(1) (paragraphs (d), (e) and
(f) of the definition of insolvent under
administration)
Repeal the paragraphs, substitute:
(d) a person who has executed a personal insolvency agreement
under:
(i) Part X of the Bankruptcy Act 1966; or
(ii) the corresponding provisions of the law of an external Territory or
the law of a foreign country;
if a certificate has not been given under section 232 of that Act or
the corresponding provision of the law of the external Territory or foreign
country, as the case may be, in respect of the agreement.
210 Section 4 (definition of insolvent under
administration)
Omit all the words after “and” (first occurring),
substitute:
includes a person who has executed a personal insolvency agreement
under:
(c) Part X of the Bankruptcy Act 1966; or
(d) the corresponding provisions of the law of an external Territory or
the law of a foreign country;
where the terms of the agreement have not been fully complied
with.
211 Paragraph 7(2)(g)
Omit “a composition with creditors, a deed of arrangement or a deed
of assignment”, substitute “a personal insolvency
agreement”.
Part 3—Application
and transitional provisions
212 Transitional—pre-commencement deeds and
compositions
(1) For the purposes of this item, if a deed of assignment or a deed of
arrangement was executed by a debtor and a trustee under Part X of the
Bankruptcy Act 1966 before the commencement of this item, the deed is a
pre-commencement deed.
(2) For the purposes of this item, if a composition was accepted before the
commencement of this item by a special resolution of a meeting of creditors
under section 204 of the Bankruptcy Act 1966, the composition is a
pre-commencement composition.
(3) Despite the repeals and amendments made by Parts 1 and 2 of this
Schedule:
(a) the Bankruptcy Act 1966 and regulations under that Act;
and
(b) the Acts amended by Part 2 of this Schedule;
continue to apply, in relation to:
(c) a pre-commencement deed; and
(d) a pre-commencement composition; and
(e) any matter connected with, or arising out of:
(i) a pre-commencement deed; or
(ii) a pre-commencement composition;
as if those repeals had not happened and those amendments had not been
made.
213 Transitional—pre-commencement
authorities
(1) For the purposes of this item, if:
(a) an authority given by a debtor under section 188 of the
Bankruptcy Act 1966 became effective before the commencement of this
item; and
(b) as at the commencement of this item, none of the following had
happened:
(i) the execution by the debtor and the trustee of a deed of assignment
under Part X of the Bankruptcy Act 1966;
(ii) the execution by the debtor and the trustee of a deed of arrangement
under Part X of the Bankruptcy Act 1966;
(iii) the acceptance of a composition by a special resolution of a meeting
of the debtor’s creditors under section 204 of the Bankruptcy Act
1966;
the authority is a pre-commencement authority.
(2) Despite the repeals and amendments made by Parts 1 and 2 of this
Schedule:
(a) the Bankruptcy Act 1966 and regulations under that Act;
and
(b) the Acts amended by Part 2 of this Schedule;
continue to apply, in relation to:
(c) a pre-commencement authority; and
(d) the control of the debtor’s property following a
pre-commencement authority becoming effective; and
(e) a meeting of the debtor’s creditors called under a
pre-commencement authority; and
(f) whichever of the following is applicable:
(i) a deed of assignment executed after the commencement of this item by
the debtor and the trustee under Part X of the Bankruptcy Act 1966
in accordance with a special resolution of such a meeting;
(ii) a deed of arrangement executed after the commencement of this item by
the debtor and the trustee under Part X of the Bankruptcy Act 1966
in accordance with a special resolution of such a meeting;
(iii) a composition accepted after the commencement of this item by a
special resolution of such a meeting; and
(g) any other matter connected with, or arising out of:
(i) a pre-commencement authority; or
(ii) a deed of assignment mentioned in subparagraph (f)(i);
or
(iii) a deed of arrangement mentioned in subparagraph (f)(ii);
or
(iv) a composition mentioned in subparagraph (f)(iii);
as if those repeals had not happened and those amendments had not been
made.
214 Application—statements of
affairs
(1) The amendment made by item 4 of this Schedule, in so far as it
relates to subsection 54(1) or (2) of the Bankruptcy Act 1966, applies to
a statement filed after the commencement of this item.
(2) The amendment made by item 4 of this Schedule, in so far as it
relates to paragraph 55(2)(b), 56B(3)(a) or (b), 56F(1)(a) or (b) or 57(2)(a) or
(b) of the Bankruptcy Act 1966, applies in relation to a statement that
accompanies a petition presented after the commencement of this item.
(3) The amendment made by item 4 of this Schedule, in so far as it
relates to section 185D of the Bankruptcy Act 1966, applies to a
statement given after the commencement of this item.
215
Transitional—regulations
(1) The regulations may make provision for matters of a transitional nature
arising from the amendments made by Parts 1 and 2 of this
Schedule.
(2) The Governor-General may make regulations for the purposes of
subitem (1).
1 Paragraph 31(1)(da)
Repeal the paragraph, substitute:
(d) applications under:
(i) section 222 (as applied by section 76B); or
(ii) section 222C (as applied by section 76B);
for an order setting aside or terminating a composition or scheme of
arrangement under Division 6 of Part IV;
2 Paragraph 40(1)(n)
Repeal the paragraph, substitute:
(n) if a composition or scheme of arrangement accepted by the
debtor’s creditors under Division 6 of Part IV is:
(i) set aside by the Court; or
(ii) terminated.
3 Subsection 40(7)
Omit “annulled”, substitute “set aside or
terminated”.
4 After subsection 73(1)
Insert:
(1A) The trustee must, within 2 working days after receiving the proposal,
give a copy of the proposal to the Official Receiver for the District in which
the bankrupt resides.
(1B) For the purposes of subsection (1A), a working day
is a day that is not a Saturday, Sunday or public holiday in the District in
which the bankrupt resides.
5 After subsection 73(2A)
Insert:
(2AA) The report must name each creditor who was identified as a related
entity of the bankrupt in the bankrupt’s statement of affairs.
6 After section 73A
Insert:
(1) This section applies if the proposal provides that a person (the
proposed trustee) other than the trustee of the bankrupt’s
estate is to become the trustee of the composition or scheme of
arrangement.
(2) The proposed trustee must make a written declaration stating whether
the bankrupt is a related entity of:
(a) the proposed trustee; or
(b) a related entity of the proposed trustee.
(3) The proposed trustee must:
(a) give a copy of the declaration to the Official Receiver; and
(b) give a copy of the declaration to the trustee of the bankrupt’s
estate; and
(c) keep a copy of the declaration.
(4) The trustee of the bankrupt’s estate must give a copy of the
declaration to each of the creditors at the same time as the trustee gives a
copy of the subsection 73(2) report to each creditor.
Scope
(1) This section applies to a meeting that is called under
section 73.
Bankrupt’s statement of affairs
(2) The trustee must table at the meeting a copy of the bankrupt’s
statement of affairs.
(3) If:
(a) the bankrupt had been required, immediately before the start of the
meeting, to prepare a statement of affairs; and
(b) that statement would have differed in one or more material respects
from the statement a copy of which was tabled under
subsection (2);
the bankrupt must table at the meeting a written statement identifying
those differences.
Proposed trustee’s declaration
(4) If the proposal provides that a person (the proposed
trustee) other than the trustee of the bankrupt’s estate is to
become the trustee of the composition or scheme of arrangement, the trustee of
the bankrupt’s estate must table at the meeting a copy of the declaration
made by the proposed trustee under subsection 73B(2).
(5) If:
(a) the proposal provides that a person (the proposed
trustee) other than the trustee of the bankrupt’s estate is to
become the trustee of the composition or scheme of arrangement; and
(b) assuming that the proposed trustee had been required, immediately
before the start of the meeting, to make a declaration stating whether the
bankrupt is a related entity of:
(i) the proposed trustee; or
(ii) a related entity of the proposed trustee;
that declaration would have differed in one or more material respects
from the declaration made by the proposed trustee under subsection
73B(2);
the proposed trustee must table at the meeting a written statement
identifying those differences.
7 Subsections 75(4), (5), (6), (7) and
(8)
Repeal the subsections.
8 At the end of Division 6 of
Part IV
Add:
Sections 222 to 222D, 224 and 224A apply, with such modifications
(if any) as are prescribed by the regulations, in relation to a composition or
scheme of arrangement under this Division as if:
(a) the composition or scheme were a personal insolvency agreement
executed by the debtor; and
(b) the trustee of the composition or scheme were the trustee of the
personal insolvency agreement.
9 Paragraph 109(1)(c)
Omit “annulled,”.
10 Subsection 114(1)
Omit “annulled,”.
11 Application—notification of
proposals
The amendment made by item 4 applies to a proposal lodged with a
trustee after the commencement of this item.
12
Transitional—annulments
(1) For the purposes of this item, if a composition or scheme of
arrangement under Division 6 of Part IV of the Bankruptcy Act
1966 was annulled before the commencement of this item, the annulment is a
pre-commencement annulment.
(2) For the purposes of this item, if:
(a) an application is made before the commencement of this item under
subsection 75(4) of the Bankruptcy Act 1966 for the annulment of a
composition or scheme of arrangement; and
(b) as at the commencement of this item, proceedings in relation to that
application have not been finally determined;
the application is a pre-commencement annulment
application.
(3) Despite the repeals and amendments made by items 1, 2, 3, 7, 8, 9
and 10 of this Schedule and item 41 of Schedule 1, the Bankruptcy
Act 1966 and regulations under that Act continue to apply, in relation
to:
(a) a pre-commencement annulment; and
(b) a pre-commencement annulment application; and
(c) an annulment that results from a pre-commencement annulment
application;
as if those repeals had not happened and those amendments had not been
made.
13 Application—proposals for compositions or
schemes of arrangement
The amendments made by items 5 and 6 of this Schedule apply in
relation to a bankrupt’s proposal for a composition or scheme of
arrangement unless a copy of the trustee’s report on the proposal was sent
to a creditor before the commencement of this item.
1 At the end of subsection
155H(1)
Add:
; or (g) the trustee has failed to comply with a standard prescribed for
the purposes of subsection (5).
2 Subsection 155H(4)
Omit “paragraphs (1)(a) to (f)”, substitute
“paragraphs (1)(a) to (g)”.
3 At the end of
section 155H
Add:
(5) The regulations may prescribe standards applicable to the exercise of
powers, or the carrying out of duties, of registered trustees.
1 Subsection 263C(1)
Omit “section 64D statement knowing or reckless that the
statement”, substitute “voting document knowing or reckless that the
document”.
2 Subsection 263C(2) (definition of
section 64D statement)
Repeal the definition.
3 Subsection 263C(2)
Insert:
voting document means:
(a) a statement that is:
(i) described in section 64D, as that section applies of its own
force, or as it is applied by another provision of this Act; and
(ii) given to the trustee at or before a meeting called for the purposes
of Part IV, IX, X or XI; or
(b) a form that is:
(i) described in section 64E, as that section applies of its own
force, or as it is applied by another provision of this Act; and
(ii) given to the trustee at or before a meeting called for the purposes
of Part IV, IX, X or XI.
1 After subparagraph
64A(1)(b)(v)
Insert:
(vi) an e-mail address to which notices may be sent to the
person;
2 Subsection 64A(2)
Repeal the subsection, substitute:
(2) Notice of a meeting must be given in a manner specified in the
regulations.
3 Application of amendments
The amendments made by this Schedule apply in relation to a trustee if,
after the commencement of this item, the bankrupt tells the trustee, or the
trustee otherwise finds out, that a person is a creditor of the
bankrupt.
1 Paragraph 41(3)(c)
Omit “made by the Court in the exercise of the jurisdiction conferred
on it by this Act”.
2 Paragraph 139W(2)(c)
Omit “who were wholly or partly dependent on the bankrupt for
economic support”.
3 Subsection 267E(2)
Repeal the subsection, substitute:
(2) The Registrar must not issue a warrant under subsection (1) for
the arrest of a person unless:
(a) the Registrar is satisfied, on proof by affidavit, that the person was
offered an advance in accordance with subsection 77E(1); or
(b) both:
(i) the person is or has been a bankrupt; and
(ii) the person’s attendance was required for the purpose of giving
evidence or producing books relating to the person’s bankruptcy.
4 Application of amendments
(1) The amendment made by item 1 applies to a bankruptcy notice issued
after the commencement of this item.
(2) The amendment made by item 3 applies to a warrant issued after the
commencement of this item.
1 Item 198 of Schedule 1 (definition of
commencing date)
Omit “section 1”, substitute “this
Schedule”.
2 Item 198 of Schedule 1 (definition of
commencing time)
Omit “section 1”, substitute “this
Schedule”.
3 Validation of acts
Past acts
(1) For the purposes of this item, a past act is an act or
thing that was done on either or both of the following assumptions:
(a) the assumption that the commencing date defined in item 198 of
Schedule 1 to the Bankruptcy Legislation Amendment Act 2002 was the
date on which that Schedule commenced;
(b) the assumption that the commencing time defined in item 198 of
Schedule 1 to the Bankruptcy Legislation Amendment Act 2002 was the
time when that Schedule commenced.
Validation of past acts
(2) To avoid doubt, past acts are as valid, and are taken always to have
been as valid, as they would have been if:
(a) the commencing date defined in item 198 of Schedule 1 to the
Bankruptcy Legislation Amendment Act 2002 had been the date on which that
Schedule commenced; and
(b) the commencing time defined in item 198 of Schedule 1 to the
Bankruptcy Legislation Amendment Act 2002 had been the time when that
Schedule commenced.
Note: Schedule 1 to the Bankruptcy Legislation
Amendment Act 2002 commenced on 5 May 2003.