BANKRUPTCY ACT 1966

PART VI - ADMINISTRATION OF PROPERTY  

Division 4 - Realization of property  

SECTION 133   DISCLAIMER OF ONEROUS PROPERTY  

133(1AA)   [Property to which section applies]  

Where any part of the property of the bankrupt consists of:


(a) land of any tenure burdened with onerous covenants; or


(b) property (including land) that is unsaleable or is not readily saleable;

subsection (1) applies.

133(1AB)   [Property not being land or interest in land]  

Where:


(a) any part of the property of the bankrupt consists of property, being neither land nor an interest in land; and


(b) it may reasonably be expected that the costs, charges and expenses that the trustee would incur in realising the property would exceed the proceeds of realising the property;

subsection (1) applies.

133(1)   [Trustee may disclaim]  

Subject to this section, the trustee may, notwithstanding that he or she has endeavoured to sell or has taken possession of the property or exercised any act of ownership in relation to it and notwithstanding, in the case of property the transfer of which is required by a law of the Commonwealth or of a State or Territory of the Commonwealth to be registered, that he or she has not become the registered owner of that property, by writing signed by him or her, at any time disclaim the property.

133(1A)   [Trustee may disclaim contract]  

Subject to this section, the trustee may at any time, by writing signed by him or her, disclaim any contract that forms part of the property of the bankrupt whether or not the trustee has endeavoured to assign the property or exercised any rights in relation to it.

133(2)   [Effect of disclaimer]  

A disclaimer under subsection (1) or (1A) operates to determine forthwith the rights, interests and liabilities of the bankrupt and his or her property in or in respect of the property disclaimed, and discharges the trustee from all personal liability in respect of the property disclaimed as from the date when the property vested in him or her, but does not, except so far as is necessary for the purpose of releasing the bankrupt and his or her property and the trustee from liability, affect the rights or liabilities of any other person.

133(3)   [Notice of disclaimer where transfer required]  

If a trustee disclaims property whose transfer must be registered under a law of the Commonwealth or of a State or Territory of the Commonwealth, the trustee must give notice of the disclaimer as soon as practicable to the officer who has the function of registering the transfer.

133(4)   [Disclaimer of lease]  

A trustee is not entitled to disclaim a lease without the leave of the Court unless:


(a) the trustee has given to the lessor and, if the bankrupt has sub-let the whole or any part of the leased property or has mortgaged the lease, to each sub-lessee or mortgagee, 28 days ' written notice of his or her intention to disclaim the lease; and


(b) no person to whom the trustee has given such a notice has, within 28 days after it was given to the person, by written notice given to the trustee, required the trustee to apply to the Court for leave to disclaim the lease.

133(4A) - (4B)  
(Omitted by No 44 of 1996, Sch 1, Pt 1(232).)

133(5)   [Considerations on application]  

The Court may, in relation to an application for leave to disclaim a lease under this section:


(a) impose such terms as a condition of granting the leave; and


(b) make such orders with respect to fixtures, improvements and other matters arising out of the lease;

as the Court considers just and equitable.

133(5A)   [Disclaimer of contract]  

A trustee is not entitled to disclaim a contract (other than an unprofitable contract) without the leave of the Court.

133(5B)   [Court may make orders]  

The Court may, in relation to an application for leave to disclaim a contract under this section:


(a) impose such terms as a condition of granting the leave; and


(b) make such orders with respect to matters arising out of the contract;

as the Court considers just and equitable.

133(6)   [Failure to disclaim]  

Where:


(a) an application in writing has been made to the trustee by a person interested in property requiring him or her to decide whether he or she will disclaim the property or not; and


(b) the trustee has, for a period of 28 days after the receipt of the application, or such extended period as is allowed by the Court, declined or neglected to disclaim the property;

the trustee is not entitled to disclaim the property under this section and, in the case of a contract, he or she shall be deemed to have adopted it.

133(6A) - (6B)  
(Omitted by No 44 of 1996, Sch 1, Pt 1(232).)

133(7)   [Order to rescind]  

The Court may, on the application of a person who is, as against the trustee, entitled to the benefit or subject to the burden of a contract made with the bankrupt, make an order rescinding the contract on such terms as to payment by or to either party of damages for the non-performance of the contract, or otherwise, as the Court considers just and equitable.

133(8)   [Damages]  

Damages so payable may be proved as a debt in the bankruptcy.

133(9)   [Order to vest property]  

The Court may, on application by a person either claiming an interest in, or being under a liability not discharged by this Act in respect of, disclaimed property, and after hearing such persons as it thinks fit, make an order, on such terms as the Court considers just and equitable, for the vesting of the property in, or delivery of the property to, a person entitled to it or a person in whom, or to whom, it seems to the Court to be just and equitable that it should be vested or delivered, or a trustee for that person.

133(10)   [Terms of vesting]  

Subject to subsection (11), where an order vesting property in a person is made under subsection (9), the property to which it relates vests forthwith in the person named in the order for that purpose without any conveyance, transfer or assignment.

133(11)   [Transmission]  

Where:


(a) the property to which such an order relates is property the transfer of which is required by a law of the Commonwealth or of a State or Territory of the Commonwealth to be registered; and


(b) that law enables the registration of such an order;

the property, notwithstanding that it vests in equity in the person named in the order, does not vest in that person at law until the requirements of that law have been complied with.

133(12)   [Person aggrieved deemed creditor]  

A person aggrieved by the operation of a disclaimer under this section shall be deemed to be a creditor of the bankrupt to the extent of any loss he or she has suffered by reason of the disclaimer and may prove the loss as a debt in the bankruptcy.

133(13)   [Interpretation]  

In this section:

mortgage
includes charge.

mortgagee
includes the person entitled to the benefit of a charge.




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