BANKRUPTCY ACT 1966

PART II - ADMINISTRATION  

Division 1 - General  

SECTION 18   THE OFFICIAL TRUSTEE IN BANKRUPTCY   Corporate status of Official Trustee

18(1)  
The corporation sole known as the Official Trustee in Bankruptcy, that existed immediately before this subsection commenced, continues in existence as a body corporate with the same name.

18(2)  
The body corporate continued in existence by force of subsection (1):


(a) has perpetual succession;


(b) may acquire, hold and dispose of real and personal property; and


(c) may sue and be sued in its corporate name.

Extra function of Official Trustee

18(3)  


The functions of the Official Trustee include acting in accordance with an order of a court relating to the payment of a debt due by a person to the Commonwealth or a Commonwealth authority.
Example:

Such an order may, for example, provide for the Official Trustee to:

  • (a) take custody of, control and own property as security for payment of such a debt; and
  • (b) sell the property; and
  • (c) apply the proceeds of the sale wholly or partly towards the payment of the debt.
  • Note:

    Other provisions of this Act and other laws of the Commonwealth confer other functions on the Official Trustee.

    Official Trustee ' s seals

    18(4)  
    The Official Trustee shall have such seals as the Minister directs by writing under his or her hand.

    18(5)  
    The designs of the seals of the Official Trustee shall be as determined by the Minister by writing under his or her hand.

    18(6)  
    (Omitted by No 168 of 1986, s 3, Sch 1.)

    18(7)  
    All courts (whether exercising federal jurisdiction or not), and all persons acting judicially, shall take judicial notice of the mark of such a seal affixed on a document and shall, in the absence of proof to the contrary, presume that it was duly affixed.

    Official Receiver acting for Official Trustee

    18(8)  


    The Official Receiver may exercise the powers, and perform the functions, of the Official Trustee.

    18(8AA)  
    In exercising powers or performing functions under subsection (8), an Official Receiver must act in the name of, and on behalf of, the Official Trustee.

    18(8A)  
    All acts and things done in the name of, or on behalf of, the Official Trustee by any Official Receiver, shall be deemed to have been done by the Official Trustee.

    Inspector-General acting for Official Trustee

    18(8B)  


    The Inspector-General may exercise any of the powers, and perform any of the functions, of the Official Trustee that are not related to any of the following matters:


    (a) a bankruptcy;


    (b) control of a debtor ' s property under section 50;


    (c) a scheme of arrangement or composition under Division 6 of Part IV;


    (d) a matter relating to a debt agreement proposal;


    (e) Part X administration;


    (f) administration under Part XI.

    18(8C)  
    In exercising powers or performing functions under subsection (8B), the Inspector-General must act in the name of, and on behalf of, the Official Trustee.

    18(8D)  
    Anything done by the Inspector-General in the name of, or on behalf of, the Official Trustee is taken to have been done by the Official Trustee.

    18(8E)  


    In subsection (8B):

    matter relating to a debt agreement proposal
    includes:


    (a) a debt agreement; and


    (b) an activity required or permitted by a debt agreement.

    Part X administration
    means:


    (a) an activity that a controlling trustee may or must carry out after consenting to exercise powers given by an authority under section 188 (including control of a debtor ' s property under Division 2 of Part X); or


    (b) a personal insolvency agreement.

    State of mind of Official Trustee

    18(9)  
    Where, under a provision of this Act, the exercise of a power or the performance of a function by the Official Trustee is dependent upon the opinion, belief or state of mind of the Official Trustee in relation to a matter:


    (a) the power may be exercised or the function performed by a person who may exercise the power or perform the function under subsection (8) or (8B), in the name of, or on behalf of, the Official Trustee upon the opinion, belief or state of mind in relation to that matter of the person exercising the power or performing the function; and


    (b) any act or thing done in accordance with this subsection shall be deemed to have been done by the Official Trustee.

    18(10)  


    Where the Official Trustee is one of the trustees of a personal insolvency agreement, composition or scheme of arrangement, a power the exercise of which, or a function the performance of which, is dependent upon the opinion, belief or state of mind of those trustees in relation to a matter may be exercised or performed by those trustees as if the opinion, belief or state of mind in relation to that matter of:


    (a) an Official Receiver who; or


    (b) another person who with the authority of an Official Receiver;

    acts in the name of, or on behalf of, the Official Trustee in the exercise of the power or the performance of the function were the opinion, belief or state of mind in relation to the matter of the Official Trustee.

    General interpretation provisions

    18(11)  
    A reference in a law of the Commonwealth to the Official Receiver of the estate of a bankrupt shall, in relation to the vesting, holding or disposal of property, be read as including a reference to the Official Trustee.

    18(12)  
    A reference in a law of the Commonwealth to the Official Receiver in Bankruptcy shall be read as including a reference to the Official Trustee.




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