BANKRUPTCY ACT 1966

PART XIV - OFFENCES  

SECTION 268   OFFENCES IN RELATION TO PERSONAL INSOLVENCY AGREEMENTS  

268(1)  
A debtor shall not knowingly give a false or misleading answer to a question put to him or her at a meeting called under Part X .

Penalty: Imprisonment for 1 year.

268(2)  


A debtor who has executed a personal insolvency agreement under Part X :


(a) shall fully and truly disclose to the trustee of the agreement all the property subject to the agreement and its value;


(b) shall not refuse or fail to comply with a direction of the trustee of the agreement to deliver up to the trustee property subject to the agreement that is in the possession of the debtor;


(ba) shall fully and truly disclose to the trustee of the agreement such information about any of the debtor ' s conduct and examinable affairs as the trustee requires;


(c) shall not refuse or fail to comply with a direction by the trustee of the agreement:


(i) to tell the trustee where books (including books of an associated entity of the debtor) relating to any of the debtor ' s examinable affairs may be found; or

(ii) to deliver to the trustee such books that are in the possession of the debtor;


(d) shall not omit any material particular from a statement relating to any of the debtor ' s examinable affairs;


(e) shall, if he or she knows that a person has lodged a proof of debt under the agreement that is false, forthwith inform the trustee of the fact;


(f) shall execute such instruments and do all such acts and things in relation to property subject to the agreement and its realization as are required by this Act or by the trustee or as are ordered by the Court upon the application of the trustee; and


(g) shall aid to the utmost of his or her power in the administration of his or her property and affairs under the agreement.

Penalty: Imprisonment for 1 year.

268(2A)  


A debtor is taken to have complied with paragraph (2)(a) or (ba) if he or she has fully and truly disclosed to the best of his or her knowledge and belief as required by that paragraph.
Note:

A defendant bears an evidential burden in relation to the matter in subsection (2A) (see subsection 13.3(3) of the Criminal Code ).

268(3)  


A debtor who has executed a personal insolvency agreement under Part X shall not make a false representation or commit any fraud with the intention of obtaining the consent of his or her creditors or any of them to any matter relating to any of the debtor ' s examinable affairs.

Penalty: Imprisonment for 5 years.

268(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 ).

268(5)  


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 particulars of any disposition of property made by him or her within the period of 2 years immediately preceding the date on which he or she signed the authority under section 188 authorizing the calling of the meeting of his or her creditors at which the resolution requiring the execution of the agreement was passed.

Penalty: Imprisonment for 1 year.

268(5A)  


A debtor is taken to have complied with subsection (5) if he or she has fully and truly disclosed to the best of his or her knowledge and belief as required by that subsection.
Note:

A defendant bears an evidential burden in relation to the matter in subsection (5A) (see subsection 13.3(3) of the Criminal Code ).

268(6)  
A debtor shall be deemed to have complied with subsection (5) in respect of any property if he or she shows that that property has been disposed of in the ordinary way of his or her business or in meeting the ordinary expenses of his or her family.

Note:

See also subsection 5(6) .

268(7)  


A debtor who has signed an authority under section 188 , and has, within 12 months before the date on which he or she signed that authority and after the commencement of this Act:


(a) done any of the things specified in any of paragraphs 265(4)(a) to (f) or paragraph 265(5)(a) or (b); or


(b) disposed of, or created a charge on, any property with intent to defraud his or her creditors;

commits an offence and is punishable, upon conviction, if the offence relates to the doing of a thing specified in paragraph 265(5)(a) or (b) or a thing specified in paragraph (b) of this subsection, by imprisonment for a period not exceeding 5 years or, in any other case, by imprisonment for a period not exceeding 1 year.

268(8)  
It is a defence to a charge under this section (not being a charge under paragraph (2)(b) or (c) or subsection (3) of this section or a charge relating to the doing of a thing specified in paragraph 265(5)(a) or (b) or paragraph (7)(b) of this section) if the defendant proves that the act or omission to which the charge relates was done or made without intent to defraud any of his or her creditors.




This information is provided by CCH Australia Limited Link opens in new window. View the disclaimer and notice of copyright.