BANKRUPTCY ACT 1966

PART IV - PROCEEDINGS IN CONNEXION WITH BANKRUPTCY  

Division 2 - Creditors ' petitions  

SECTION 44   CONDITIONS ON WHICH CREDITOR MAY PETITION  

44(1)   [Conditions]  

A creditor ' s petition shall not be presented against a debtor unless:


(a) there is owing by the debtor to the petitioning creditor a debt that amounts to $5,000 or 2 or more debts that amount in the aggregate to $5,000, or, where 2 or more creditors join in the petition, there is owing by the debtor to the several petitioning creditors debts that amount in the aggregate to $5,000;


(b) that debt, or each of those debts, as the case may be:


(i) is a liquidated sum due at law or in equity or partly at law and partly in equity; and

(ii) is payable either immediately or at a certain future time; and


(c) the act of bankruptcy on which the petition is founded was committed within 6 months before the presentation of the petition.

44(2)   [Secured creditors]  

Subject to subsection (3), a secured creditor shall, for the purposes of paragraph (1)(a), be deemed to be a creditor only to the extent, if any, by which the amount of the debt owing to him or her exceeds the value of his or her security.

44(3)   [May surrender security]  

A secured creditor may present, or join in presenting, a creditor ' s petition as if he or she were an unsecured creditor if he or she includes in the petition a statement that he or she is willing to surrender his or her security for the benefit of creditors generally in the event of a sequestration order being made against the debtor.

44(4)   [Particulars of security]  

Where a petitioning creditor is a secured creditor, he or she shall set out in the petition particulars of his or her security.

44(5)   [Surrender of security on request]  

Where a secured creditor has presented, or joined in presenting, a creditor ' s petition as if he or she were an unsecured creditor, he or she shall, upon request in writing by the trustee within 3 months after the making of a sequestration order, surrender his or her security to the trustee for the benefit of the creditors generally.

44(6)   [Failure to surrender is contempt of court]  

A secured creditor to whom subsection (5) applies who fails to surrender his or her security when requested to do so by the trustee in accordance with that subsection is guilty of contempt of court.




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