Bankruptcy Regulations 1996

Div 3 repealed by SLI No 138 of 2007, reg 3 and Sch 2 item 4, effective 1 July 2007. Div 3 formerly read:

6.05 INTERPRETATION  
In this Division, unless the contrary intention appears:

actuary
has the same meaning as in the Superannuation Industry (Supervision) Act 1993 .

accumulation fund
has the same meaning as in the Superannuation Industry (Supervision) Regulations.

approved deposit fund
has the same meaning as in the Superannuation Industry (Supervision) Act 1993 .

defined benefit fund
has the same meaning as in the Superannuation Industry (Supervision) Regulations.

member
means:

(a) in relation to a regulated superannuation fund - a person who:

(i) is a member of the fund; or

(ii) receives a pension from the fund; or

(iii) has deferred his or her entitlement to receive a benefit from the fund; and

(b) in relation to an approved deposit fund - a depositor in the fund.

pension RBL
, in relation to a bankrupt, means the bankrupt's pension RBL worked out under section 140ZD of the Income Tax Assessment Act 1936 .

preserved component
means the component of a bankrupt's interest in a fund that consists of preserved benefits (ascertained in accordance with Subdivision 6.1.2 of the Superannuation Industry (Supervision) Regulations).

regulated superannuation fund
has the same meaning as in the Superannuation Industry (Supervision) Act 1993 .

restricted non-preserved component
means the component of a bankrupt's interest in a fund that consists of restricted non-preserved benefits (ascertained in accordance with Subdivision 6.1.3 of the Superannuation Industry (Supervision) Regulations).

unrestricted non-preserved component
means the component of a bankrupt's interest in a fund that consists of unrestricted non-preserved benefits (ascertained in accordance with Subdivision 6.1.4 of the Superannuation Industry (Supervision) Regulations).

withdrawal benefit
has the same meaning as in the Superannuation Industry (Supervision) Regulations.

6.06 METHOD OF APPORTIONMENT - SUBSECTION 116(6) OF THE ACT  
6.06(1) Purposes and application.  

This regulation is made under subsection 116(6) of the Act and, accordingly, it sets out the method for apportioning items of property for the purposes of paragraph 116(5)(b) of the Act. The method is to apply in respect of property of a bankrupt (in this regulation called the bankrupt's property ), where:

(a) that property is covered by paragraph 116(2)(d) of the Act; and

(b) the total value of the bankrupt's property exceeds the amount of the bankrupt's pension RBL.

6.06(2) One item of property - life assurance or endowment assurance.  

If the bankrupt's property:

(a) consists of only 1 item; and

(b) is in the form of:

(i) a policy of life assurance or endowment assurance; or

(ii) proceeds of a policy of that kind, being proceeds that are received by the bankrupt on or after the date of the bankruptcy;

the method of determining how the property is to be apportioned is to extend subsection 116(1) of the Act to the proportion of that property that exceeds the amount of the bankrupt's pension RBL.

6.06(3) One item of property - payment from regulated superannuation fund or approved deposit fund.  

If the bankrupt's property:

(a) consists of only 1 item; and

(b) is in the form of a payment from a regulated superannuation fund or an approved deposit fund, being a payment that:

(i) is received by the bankrupt on or after the date of the bankruptcy; and

(ii) is not a pension, within the meaning of the Superannuation Industry (Supervision) Act 1993 ;

the method of determining how the property is to be apportioned is to extend subsection 116(1) of the Act to the proportion of that property that exceeds the amount of the bankrupt's pension RBL.

6.06(4) One item of property - interest in regulated superannuation fund or approved deposit fund.  

If the bankrupt's property:

(a) consists of only 1 item; and

(b) is in the form of an interest in a regulated superannuation fund or an approved deposit fund;

the method of determining how the property is to be apportioned is to extend subsection 116(1) of the Act to the components of the property in the following order:

(c) the unrestricted non-preserved component of the property;

(d) the restricted non-preserved component of the property;

(e) the preserved component of the property;

until the value of the bankrupt's residuary interest in the property equals the value of the bankrupt's pension RBL.

EXAMPLE: Assume that the bankrupt has one item of property, namely an interest of $1,200,000 in a regulated superannuation fund. This property has the following components:

(a) an unrestricted non-preserved component of $100,000;

(b) a restricted non-preserved component of $200,000;

(c) a preserved component of $900,000.

The amount ($400,000) by which the property exceeds the pension RBL ($800,000) is available towards satisfying the creditors in the bankruptcy.

The amount of $400,000 is met by applying the whole of the non-preserved components ($100,000 + $200,000 = $300,000) and $100,000 from the preserved component.

Note:

The amount of the pension RBL (in the above example, $800,000) is always protected and remains in the fund.

6.06(5) More than 1 item of property.  

If the bankrupt's property consists of more than 1 item, the method of determining how the property is to be apportioned is to extend subsection 116(1) of the Act to the items in the following order:

(a) proceeds of a policy of life assurance or endowment assurance received by the bankrupt on or after the date of the bankruptcy;

(b) policies of life assurance or endowment assurance;

(c) a payment from a regulated superannuation fund or an approved deposit fund, being a payment that:

(i) is received by the bankrupt on or after the date of the bankruptcy; and

(ii) is not a pension, within the meaning of the Superannuation Industry (Supervision) Act 1993 ;

(d) the unrestricted non-preserved component of any interest in an approved deposit fund;

(e) the unrestricted non-preserved component of any interest in an accumulation fund;

(f) the restricted non-preserved component of any interest in an accumulation fund;

(g) the preserved component of any interest in an approved deposit fund;

(h) the preserved component of any interest in an accumulation fund;

(i) the unrestricted non-preserved component of any interest in a defined benefit fund;

(j) the restricted non-preserved component of any interest in a defined benefit fund;

(k) the preserved component of any interest in a defined benefit fund;

until the value of the bankrupt's residuary interest in the property equals the value of the bankrupt's pension RBL.

6.07 METHOD OF WORKING OUT VALUE OF PROPERTY - SUBSECTION 116(7) OF THE ACT  
6.07(1)
This regulation is made under subsection 116(7), and for the purposes of subsection 116(5), of the Act.

6.07(2)
In the case of property that is an interest in a policy of life assurance or endowment assurance, the value of the bankrupt's interest in the property is taken to be the amount available in cash on voluntary termination of the policy at the date of bankruptcy.

6.07(3)
In the case of property that is an interest in an accumulation fund or an approved deposit fund, the value of the bankrupt's interest in the property is taken to be the withdrawal benefit of the bankrupt in the fund at the date of bankruptcy.

6.07(4)
Subject to subregulation (5), in the case of property that is an interest in a defined benefit fund, the value of the bankrupt's interest in the property is taken to be the withdrawal benefit of the bankrupt in the fund at the date of bankruptcy.

6.07(5)
If the withdrawal benefit is not an immediately payable lump sum, the amount of the withdrawal benefit is to be determined by an actuary for the purposes of subregulation (4).
6.08 EVIDENTIARY CERTIFICATE BY TRUSTEE - SUBSECTION 116(8) OF THE ACT  
6.08(1)
This regulation is made under subsection 116(8) of the Act.

6.08(2)
Where the bankrupt has an interest in a regulated superannuation fund or an approved deposit fund of the kind referred to in that subsection, the trustee of the bankrupt must give a request in writing to the trustee of the fund to provide a written certificate setting out the following particulars:

(a) the withdrawal benefit of the bankrupt in the fund at the date of bankruptcy; and

(b) the amount of each payment (if any) that the fund has paid to the bankrupt, and the date of each payment.

6.08(3)
The trustee of a fund who receives a request under subregulation (2) must sign and date a certificate setting out the requested particulars so far as it is reasonably practicable to do so, and give it to the relevant trustee in bankruptcy within 28 days of doing so or within any further period that the relevant trustee allows.

6.08(4)
A document that purports, or appears to the court, to be a certificate given under subregulation (3) is evidence of its contents and may be tendered in evidence without further proof.