"income" has the meaning given by section 139L.

188B Inspection of statement of debtor's affairs

(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:

189AAA Stay of proceedings relating to creditor's petition until meeting of debtor's creditors

(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:

189AC Right of indemnity for controlling trustee

(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:

190A Additional duties of controlling trustee

(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:

194 Time for calling meeting

(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.

194A Statement of affairs and declarations of relationships to be tabled at meeting

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:

211 Other provisions about debtor

(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:

215 Eligibility to be trustee of personal insolvency agreement

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:

221A Variation of personal insolvency agreement

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:

222 Court may set aside personal insolvency agreement

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.

222A Termination of personal insolvency agreement by trustee

(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.

222B Termination of personal insolvency agreement by creditors

(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.
222C Court may terminate personal insolvency 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.

222D Termination of personal insolvency agreement by occurrence of terminating event

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:

224 Validity of acts if personal insolvency agreement set aside or terminated

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.

224A Notice that a personal insolvency agreement has been set aside, varied or terminated

(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:

229 Personal insolvency agreement to bind all creditors

(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).

230 Release of provable debts

(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.
231 Application of general provisions of Act to personal insolvency agreements

(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.

231A Right of debtor to remaining property

(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).

232 Certificate relating to discharge of obligations

(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: