Commonwealth Numbered Acts

BANKRUPTCY LEGISLATION AMENDMENT ACT 2004 NO. 80, 2004 - SCHEDULE 2

Bankruptcy Act 1966

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:

73B Declaration of relationships by proposed trustee of composition or scheme of arrangement

(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.

73C Statement of affairs and declarations of relationships to be tabled at meeting

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:

76B Setting aside and termination of a composition or scheme of arrangement

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.