Bankruptcy Act 1966
This Act may be cited as the Bankruptcy Act 1966.
View history note
Hide history noteThis Act shall come into operation on a date to be fixed by Proclamation.
[ CCH Note: Date of commencement: This Act was proclaimed to commence operation on 4 March 1968.]
(Repealed by No 216 of 1973, s 3.) SECTION 4 REPEAL 4(1) [Specified Acts]
The Acts specified in Schedule 1 are repealed.
4(2) [Saving provision]Notwithstanding the repeal of the Bankruptcy Act 1958 or the Bankruptcy Act 1959 effected by subsection (1) of this section:
(a) the provisions of section 7 of the Bankruptcy Act 1958, as amended by the Bankruptcy Act 1959, continue to apply to a purported extension of time or a purported fixing of a time to which those provisions applied immediately before the commencement of this Act; and
(b) the provisions of section 5 of the Bankruptcy Act 1959 continue to apply to a seal or stamp to which those provisions applied immediately before the commencement of this Act;
as if those Acts had not been repealed.
SECTION 4A 4A INSOLVENCY PRACTICE SCHEDULESchedule 2 has effect.
In this Act, unless the contrary intention appears:
ADI
(authorised deposit-taking institution) means:
(a) a body corporate that is an ADI for the purposes of the Banking Act 1959; or
(b) the Reserve Bank of Australia; or
(c) any other bank approved in writing for the purposes of this definition:
(i) by the Treasurer; or
(ii) by a person authorised in writing by the Treasurer to give approvals for the purposes of this definition.
administrator,
in relation to a debt agreement, means the person:
(a) authorised by the agreement to deal with property under the agreement; or
(b) who becomes the replacement administrator under section 185ZB; or
(c) appointed by an Official Receiver under section 185ZC.
affidavit
includes affirmation and statutory declaration.
approved bank
(Omitted by No 48 of 1998, Sch 1, item 11.)
approved form
: a document is in the
approved form
if it is in accordance with section 6D.
associated entity,
in relation to a person, means:
(a) an entity (other than a company) that is, or has been, associated with the person; or
(b) a company that is, or has been, associated with the person at a time when the company is, or was, as the case may be, a private company.
Australia
(Repealed by No 154 of 2020)
authorised employee
means an APS employee whose duties include either or both of the following:
(a) supporting the Inspector-General in the performance of his or her functions, or in the exercise of his or her powers, under this Act;
(b) supporting the Official Receivers in the performance of their functions, or in the exercise of their powers, under this Act.
authority
, in relation to a Territory, means an authority established by or under a law of the Territory, and includes the holder of an office established by or under a law of the Territory.
available act of bankruptcy,
in relation to a debtor, means an act of bankruptcy available for a petition against the debtor at the date of the presentation of the petition on which, or by virtue of the presentation of which, the debtor becomes a bankrupt.
bank
means an ADI or any other bank.
(a) against whose estate a sequestration order has been made; or
(b) who has become a bankrupt by virtue of the presentation of a debtor's petition.
bankruptcy,
in relation to jurisdiction or proceedings, means any jurisdiction or proceedings under or by virtue of this Act.
books
includes any account, deed, paper, writing or document and any record of information however compiled, recorded or stored, whether in writing, on microfilm, by electronic process or otherwise.
breach of duty
means malfeasance, misfeasance, negligence, wilful default or breach of trust.
business day
means a day that is not a Saturday, a Sunday or a public holiday or bank holiday in the place concerned.
child:
without limiting who is a child of a person for the purposes of this Act, each of the following is the
child
of a person:
(a) an adopted child, stepchild or exnuptial child of the person;
(b) someone who is a child of the person within the meaning of the Family Law Act 1975.
close relative,
in relation to a person, means a spouse, de facto partner, parent, child, brother, sister, half-brother, or half-sister, of the person.
Commonwealth proceeds of crime authority
means a proceeds of crime authority within the meaning of the Proceeds of Crime Act 2002.
Note:
Under that Act, the proceeds of crime authority is either the Commissioner of the Australian Federal Police or the Director of Public Prosecutions (see the definition of proceeds of crime authority in section 338 of that Act). Responsibility can be transferred between these authorities (see section 315B of that Act).
company
means a corporation, other than a corporation that is incorporated within Australia or an external Territory and is:
(a) a public authority; or
(b) an instrumentality or agency of the Crown in right of the Commonwealth, in right of a State or in right of a Territory.
company officer,
in relation to a corporation, includes:
(a) a director or secretary of the corporation;
(b) a receiver and manager of property of the corporation appointed under a power contained in an instrument;
(ba) an administrator, within the meaning of the Corporations Act 2001, of the corporation;
(bb) an administrator of a deed of company arrangement executed by the corporation under Part 5.3A of that Act;
(c) (Repealed by No 8 of 2007)
(d) a liquidator of the corporation appointed in a voluntary winding up of the corporation; and
(e) a trustee or other person administering a compromise or arrangement made between the corporation and another person or other persons;
but does not include:
(f) a receiver who is not also a manager;
(g) a receiver and manager appointed by a court; or
(h) a liquidator appointed by a court.
confiscation order
has the same meaning as in the Proceeds of Crime Act 2002.
constable
means a member or special member of the Australian Federal Police or a member of the Police Force of a State or Territory.
corporation
includes any body corporate.
corresponding law
has the same meaning as in the Proceeds of Crime Act 2002.
court of summary jurisdiction
includes a court of a Territory sitting as a court for the making of summary orders or the summary punishment of offences under the law of the Territory.
creditor,
in relation to a liability under a maintenance order, includes the Child Support Registrar referred to in the Child Support (Registration and Collection) Act 1988.
creditor's petition
means a petition presented by a creditor or by 2 or more creditors jointly.
debt agreement
means an agreement under section 185H resulting from the acceptance of a debt agreement proposal.
debt agreement proposal
means a written proposal referred to in subsection 185C(1).
debtor's petition
means a petition presented by a debtor against himself or herself and includes a petition presented against a partnership in pursuance of section 56A and a petition presented by joint debtors against themselves in pursuance of section 57.
declaration of intention
means a declaration that has been presented under section 54A and accepted under section 54C.
declared debtor
means a debtor who has presented under section 54A a declaration of intention.
de facto partner
has the meaning given by the Acts Interpretation Act 1901.
de facto spouse
(Repealed by No 144 of 2008, s 3 and Sch 2, Pt 2, item 14.)
(a) if a period longer than 21 days is prescribed - the prescribed period; or
(b) otherwise - 21 days.
Deputy Registrar
(Omitted by No 44 of 1996, Sch 1, Pt 1(6).)
director,
in relation to a corporation, includes:
(a) any person occupying or acting in the position of director of the corporation, by whatever name called and whether or not validly appointed to occupy, or duly authorised to act in, the position;
(b) any person in accordance with whose directions or instructions the directors of the corporation are accustomed to act; and
(c) if the corporation has a committee of management, council or other governing body:
(i) a member of that committee of management, council or other governing body;
(ii) any person occupying or acting in the position of member of that committee of management, council or other governing body, by whatever name called and whether or not validly appointed to occupy, or duly authorised to act, in the position; and
(iii) any person in accordance with whose directions or instructions the members of that committee of management, council or other governing body are accustomed to act.
District
(Repealed by No 106 of 2010, Sch 3 item 1.)
eligible judge
means a judge of the Court declared by the Minister to be an eligible judge under subsection 129A(2).
(a) in relation to a bankruptcy - the discharge of the bankrupt from the bankruptcy or the annulment of the bankruptcy; or
(b) in relation to a composition or scheme of arrangement under Division 6 of Part IV - the time when the composition or scheme, as the case may be, ceases to be in effect; or
(ba) in relation to a personal insolvency agreement - the time when all the obligations that the agreement created have been discharged; or
(c) in relation to an administration under Part XI - the end of the administration.
enforcement process,
in relation to a frozen debt, means, in the case of a judgment debt:
(a) process of a court issued to enforce in any manner payment of the judgment debt; or
(b) without limiting the generality of paragraph (a), process of a court for attaching, in order to meet the judgment debt, a debt or other money payable or owing, or to become payable or owing, to the declared debtor.
entity
means a natural person, company, partnership or trust.
examinable affairs,
in relation to a person, means:
(a) the person's dealings, transactions, property and affairs; and
(b) the financial affairs of an associated entity of the person, in so far as they are, or appear to be, relevant to the person or to any of his or her conduct, dealings, transactions, property and affairs.
examinable matter
(Omitted by No 44 of 1996, Sch 1, Pt 1(7).)
examinable period
has the meaning given by section 139CA.
examinable person,
in relation to a person (in this definition called the
relevant person
), means:
(a) if the relevant person is a debtor and property of the debtor is known or suspected to be in the possession of a person - that person;
(b) if the relevant person has become a bankrupt and any of the property of the bankrupt is known or suspected to be in the possession of a person - that person;
(c) in any case - a person who is believed to be indebted to the relevant person;
(d) if a person, including:
(i) a person who is an associated entity of the relevant person; or
may be able to give information about the relevant person or any of the relevant person's examinable affairs - that person; or
(ii) a person with whom an associated entity of the relevant person is or has been associated;
(e) if books (including books of an associated entity of the relevant person):
(i) are in the possession of a person, including a person of a kind referred to in subparagraph (d)(i) or (ii); and
that person.
(ii) may relate to the relevant person or any of the relevant person's examinable affairs;
Family Court Judge
(Repealed by No 13 of 2021)
Federal Circuit Court
(Repealed by No 13 of 2021)
Finance Minister
means the Minister administering the Public Governance, Performance and Accountability Act 2013.
forfeiture order
means a forfeiture order made under a proceeds of crime law.
frozen debt
means a debt that:
(a) is owed by a declared debtor; and
(b) would, if the debtor had become a bankrupt when the declaration of intention was accepted under section 54C, be provable in the bankruptcy;
but does not include a debt in respect of the debtor's liability under a maintenance agreement or maintenance order (whenever entered into or made).
goods
includes all chattels personal.
(a) a law of the Commonwealth, a State or a Territory regulating conditions of employment; or
(b) an award, determination or agreement made under such a law.
Insolvency Practice Rules
means the rules made by the Minister under section 105-1 of Schedule 2.
Inspector-General
means the Inspector-General in Bankruptcy, and includes a person acting as the Inspector-General.
interstate confiscation order
means an interstate forfeiture order or an interstate pecuniary penalty order.
interstate forfeiture order
has the same meaning as in the Proceeds of Crime Act 2002.
interstate pecuniary penalty order
has the same meaning as in the Proceeds of Crime Act 2002.
in the possession of
includes in the custody of or under the control of.
law
, in relation to a Territory, means a law in force in the Territory.
Example:A law in force in a Territory that is an applied law of a State or another Territory.
(a) a person who holds office as a Magistrate of a State, being a person in respect of whom an arrangement under subsection 17B(1) applies;
(b) a person who holds office as a Judge of the Local Court of the Northern Territory, being a person in respect of whom an arrangement under subsection 17B(2) applies; or
(c) a person who holds office as a Magistrate of a Territory.
(a) a maintenance agreement (within the meaning of the Family Law Act 1975) that has been registered in, or approved by, a court in Australia or an external Territory; or
(b) any other agreement with respect to the maintenance of a person that has been registered in, or approved by, a court in Australia or an external Territory;
but does not include a financial agreement, or Part VIIIAB financial agreement, within the meaning of the Family Law Act 1975.
(a) an order relating to the maintenance of a person, including an order relating to the payment of arrears of maintenance, that is made or registered under a law of the Commonwealth or of a State or Territory; or
(b) an assessment made under the Child Support (Assessment) Act 1989.
modifications
includes additions, omissions and substitutions.
National Personal Insolvency Index
means the Index of that name established under the regulations.
net value,
in relation to property, means:
(a) if the property is unencumbered - the value of the property;
(b) if the property is encumbered and the unencumbered value of the property exceeds the amount or value of the encumbrances - the amount of the excess; or
(c) in any other case - a nil amount.
net worth,
in relation to an entity, in relation to a time, means:
(a) if the entity is a trust and the total value of the trust property as at that time exceeds the total of the amounts of the trustee's liabilities as at that time (other than liabilities constituted by the rights of persons as beneficiaries under the trust) - the amount of the excess;
(b) if the entity is not a trust and the total value of the entity's assets as at that time exceeds the total of the amounts of the entity's liabilities as at that time - the amount of the excess; or
(c) in any other case - a nil amount.
oath
includes affirmation and statutory declaration.
offence against this Act
includes an offence against section 137.1 or 137.2 of the Criminal Code, being an offence that relates to this Act.
officer
means an officer of the Court or of the Commonwealth.
Official Receiver
includes a person acting as an Official Receiver.
Official Trustee
means the Official Trustee in Bankruptcy.
operations,
in relation to an entity, means all of the following:
(a) the business, trading, transactions and dealings of the entity:
(i) whether alone or jointly with another entity or other entities; and
(ii) whether or not as agent, bailee or trustee;
(b) the profits, income and receipts of the entity;
(c) the losses, outgoings and expenditure of the entity.
parent:
a person is the
parent
of anyone who is the person's child.
pecuniary penalty order
means:
(a) a pecuniary penalty order made under a proceeds of crime law; or
(b) a literary proceeds order within the meaning of the Proceeds of Crime Act 2002; or
(c) an unexplained wealth order within the meaning of the Proceeds of Crime Act 2002.
personal insolvency agreement
means a personal insolvency agreement executed under Part X.
Note:
Section 188A sets out requirements for personal insolvency agreements.
personal services,
in relation to a bankrupt, means services of a physical, intellectual or other kind supplied by the bankrupt himself or herself:
(a) whether or not in a capacity as employee; and
(b) whether or not the supply of the services by the bankrupt discharged the obligations of an entity to supply services.
petition
means a petition under this Act.
policy for pure endowment
(Omitted by No 82 of 1993, s 6.)
PPSA grantor or debtor
(short for Personal Property Securities Act grantor or debtor), in relation to a PPSA security interest, means a grantor or debtor within the meaning of the Personal Property Securities Act 2009.
PPSA secured party
(short for Personal Property Securities Act secured party), in relation to a PPSA security interest, means a secured party within the meaning of the Personal Property Securities Act 2009.
PPSA security agreement
(short for Personal Property Securities Act security agreement), in relation to a PPSA security interest, means a security agreement within the meaning of the Personal Property Securities Act 2009.
PPSA security interest
(short for Personal Property Securities Act security interest) means a security interest within the meaning of the Personal Property Securities Act 2009 and to which that Act applies, other than a transitional security interest within the meaning of that Act.
Note 1:
The Personal Property Securities Act 2009 applies to certain security interests in personal property. See the following provisions of that Act:
Note 2:
For the meaning of transitional security interest , see section 308 of the Personal Property Securities Act 2009.
(a) any land;
(b) any structure, building, aircraft, vehicle, vessel or place (whether built on or not); and
(c) any part of such a structure, building, aircraft, vehicle, vessel or place.
prescribed
(Omitted by No 44 of 1996, Sch 1, Pt 1(10).)
private company,
in relation to a particular time, means a company other than a company that, as at that time:
(a) has been admitted to the official list of a prescribed financial market (as defined by section 9 of the Corporations Act 2001); and
(b) has not been removed from that official list.
proceeding
means proceeding under this Act.
proceeds,
in relation to enforcement process in respect of a debt, means:
(a) the proceeds of selling property under the enforcement process;
(b) money taken under the enforcement process;
(c) money received as a result of attachment under the enforcement process; or
(d) money paid to avoid the taking or sale of property under, or to avoid attachment under, the enforcement process.
(a) the Proceeds of Crime Act 2002; or
(b) the Proceeds of Crime Act 1987; or
(c) a corresponding law.
proceeds of crime order
means:
(a) a restraining order; or
(b) a forfeiture order; or
(c) a pecuniary penalty order.
proclaimed law
means a law specified for the time being in a Proclamation in force under section 253B.
professional advice
means financial, business or legal advice given by a person in the performance of the functions attaching to the person's professional capacity.
property
means real or personal property of every description, whether situate in Australia or elsewhere, and includes any estate, interest or profit, whether present or future, vested or contingent, arising out of or incident to any such real or personal property.
provable debt
means a debt or liability that is, under this Act, provable in bankruptcy.
provider,
in relation to an RSA, has the same meaning as in the Retirement Savings Accounts Act 1997.
public examination
(Omitted by No 115 of 1990, s 4(a).)
registered trustee
has the same meaning as in section 5-5 of Schedule 2.
Register of Trustees
has the same meaning as in section 15-1 of Schedule 2.
(a) the Chief Executive Officer and Principal Registrar, a Registrar, a District Registrar or a Deputy District Registrar of the Federal Court; or
(b) a Registrar of the Federal Circuit and Family Court of Australia (Division 2).
related entity,
in relation to a person, means any of the following:
(a) a relative of the person;
(b) a body corporate of which the person, or a relative of the person, is a director;
(c) a body corporate that is related to the body corporate referred to in paragraph (b);
(d) a director, or a relative of a director, of a body corporate referred to in paragraph (b) or (c);
(e) a beneficiary under a trust of which the person, or a relative of the person, is a trustee;
(f) a relative of such a beneficiary;
(g) a relative of the spouse, or de facto partner, of such a beneficiary;
(h) a trustee of a trust under which the person, or a relative of the person, is a beneficiary;
(i) a member of a partnership of which the person, or a relative of the person, is a member.
For the purposes of paragraph (c) of this definition, the question whether a body corporate is related to another body corporate is to be determined in the same manner as that question is determined for the purposes of the Corporations Act 2001.
relative,
in relation to a person, means:
(a) the spouse of the person; or
(b) a parent or remoter lineal ancestor of the person or of the person's spouse; or
(c) a child or remoter lineal descendant of the person or of the person's spouse; or
(d) a brother or sister of the person or of the person's spouse; or
(e) an uncle, aunt, nephew or niece of the person or of the person's spouse; or
(f) the spouse of a person specified in paragraph (b), (c), (d) or (e).
For the purposes of this definition, spouse includes de facto partner.
Note:
Parent and child are defined by this subsection.
resolution
: a
resolution
is passed by creditors of a regulated debtor's estate:
(a) in a meeting - in the circumstances prescribed under paragraph 75-50(2)(k) of Schedule 2; or
(b) without a meeting - in the circumstances prescribed under paragraph 75-40(5)(b) of Schedule 2.
restraining order
means a restraining order made under a proceeds of crime law.
RSA
has the same meaning as in the Retirement Savings Accounts Act 1997.
RSA holder
has the same meaning as in the Retirement Savings Accounts Act 1997.
rural support scheme
means a program or scheme that:
(a) is administered by or on behalf of the Commonwealth, a State or a Territory; and
(b) relates to:
(i) agriculture or the cultivation of land; or
(ii) the maintenance of animals for commercial purposes; or
(iii) horticulture; or
(iv) any other primary industry activity.
secured creditor,
in relation to a debtor, means:
(a) in the case of a debt secured by a PPSA security interest - the PPSA secured party in relation to the interest, if the interest:
(i) arose as security for the debt; and
(ii) is perfected (within the meaning of the Personal Property Securities Act 2009); or
(b) in the case of any other debt - a person holding a mortgage, charge or lien on property of the debtor as a security for a debt due to him or her from the debtor.
sheriff
includes any person charged with the execution of a writ or other process.
special resolution
: a
special resolution
is passed by creditors of a regulated debtor's estate:
(a) in a meeting - in the circumstances prescribed under paragraph 75-50(2)(k) of Schedule 2; or
(b) without a meeting - in the circumstances prescribed under paragraph 75-40(5)(b) of Schedule 2.
State Court
(Omitted by No 44 of 1996, Sch 1, Pt 1(14).)
state of affairs,
in relation to an entity, means all of the following:
(a) the property and assets of the entity:
(i) whether held alone or jointly with another person or other persons; and
(ii) whether or not held as agent, bailee or trustee;
(b) the liabilities of the entity:
(i) whether actual or contingent;
(ii) whether owed alone or jointly with another person or other persons; and
(iii) whether or not owed as trustee.
(a) if an amount greater than $5,000 is prescribed - the prescribed amount; or
(b) otherwise - $5,000.
(a) if a period longer than 21 days is prescribed - the prescribed period; or
(b) otherwise - 21 days.
stay period,
in relation to a declaration of intention presented by a debtor, means the period beginning on the day on which the declaration was accepted under section 54C and ending when:
(a) the default period, beginning on that day, ends; or
(b) a creditor's petition or a debtor's petition is presented against the debtor; or
(c) the debtor signs an authority under section 188; or
(d) a sequestration order is made against the debtor.
whichever happens first.
stay under a proclaimed law,
in relation to a person or the estate of a deceased person, means a stay, by or under a proclaimed law, of proceedings or of execution in relation to all or any of the debts of that person or of that estate, as the case may be.
stepchild:
without limiting who is a stepchild of a person for the purposes of this Act, someone is the
stepchild
of a person if he or she would be the person's stepchild except that the person is not legally married to the person's de facto partner.
Territory
(Repealed by No 154 of 2020)
Territory of the Commonwealth
(Repealed by No 154 of 2020)
the commencement of the bankruptcy,
in relation to a bankrupt, means the time at which his or her bankruptcy is, by virtue of section 115, to be deemed to have commenced.
the Court
means a Court having jurisdiction in bankruptcy under this Act.
the date of the bankruptcy,
in relation to a bankrupt, means the date on which a sequestration order was made against his or her estate or, if he or she became a bankrupt by virtue of the presentation of a debtor's petition, the date on which he or she became a bankrupt by force of section 55, 56E or 57, as the case requires.
the Family Court
(Repealed by No 13 of 2021)
the Federal Court
means the Federal Court of Australia.
the first meeting of creditors
(Omitted by No 119 of 1987, s 4(1)(f).)
the Official Receiver
means any Official Receiver.
the property of the bankrupt,
in relation to a bankrupt, means:
(a) except in subsections 58(3) and (4):
(i) the property divisible among the bankrupt's creditors; and
(ii) any rights and powers in relation to that property that would have been exercisable by the bankrupt if he or she had not become a bankrupt; and
(b) in subsections 58(3) and (4):
(i) the property, rights and powers referred to in paragraph (a) of this definition; and
(ii) any other property of the bankrupt.
the repealed Act
(Omitted by No 44 of 1996, Sch 1, Pt 1(17).)
the rules
(Omitted by No 44 of 1996, Sch 1, Pt 1(18).)
(a) in relation to a bankruptcy - the trustee of the estate of the bankrupt; or
(b) in relation to a composition or scheme of arrangement under Division 6 of Part IV - the trustee of the composition or scheme of arrangement; or
(c) in relation to a personal insolvency agreement - the trustee of the agreement; or
(d) in relation to the estate of a deceased person in respect of which an order has been made under Part XI - the trustee of the estate; or
(e) in relation to a trust:
(i) if only one person is a trustee of the trust - that person; or
in his, her or its capacity as a trustee, or in their respective capacities as trustees, as the case may be, of the trust.
(ii) if 2 or more persons are trustees of the trust - any one or more of those persons;
this Act
includes the regulations and the Insolvency Practice Rules.
time fixed
, for compliance with a bankruptcy notice, means the period specified in the notice (as required by subsection 41(2A)).
A reference in this Act to books of an associated entity of a person does not limit the generality of any other reference in this Act to books.
A reference in this Act to an entity includes, in the case of a trust, a reference to the trustee of the trust.
Paragraph (b) of the definition of examinable affairs in subsection (1) does not limit the generality of a reference in this Act to a person's conduct, dealings, transactions, property or affairs.
A person is solvent if, and only if, the person is able to pay all the person's debts, as and when they become due and payable.
A person who is not solvent is insolvent .
Unless the contrary intention appears, a reference in this Act to the trustee of the estate of a bankrupt, or to the trustee of a personal insolvency agreement, shall:
(a) in relation to an estate or a personal insolvency agreement in respect of which there are 2 or more joint trustees - be read as a reference to all the trustees; or
(b) in relation to an estate or a personal insolvency agreement in respect of which there are 2 or more joint and several trustees - be read as a reference to all of the trustees or any one or more of the trustees.
(Repealed by No 13 of 2013, s 3 and Sch 1 item 56.)
For the purposes of this Act, the members of a person's family are taken to include the following (without limitation):
(a) a de facto partner of the person;
(b) someone who is the child of the person, or of whom the person is the child, because of the definition of child in this section;
(c) anyone else who would be a member of the person's family if someone mentioned in paragraph (a) or (b) is taken to be a member of the person's family.
(Repealed by No 106 of 2010, Sch 3 item 3.)
For the purposes of this Act, a person shall not be regarded as a person in accordance with whose directions or instructions the directors of a body corporate are accustomed to act merely because the directors act on advice given by the person in the proper performance of the functions attaching to the person's professional capacity or to the person's business relationship with the directors or with the body corporate.
For the purposes of this Act, a company is associated with a person if the person:
(a) is a company officer of the company or otherwise is concerned, or takes part, in the company's management; or
(b) is able to control, or to influence materially, the company's activities or internal affairs; or
(c) is a member of the company; or
(d) is in a position to cast, or to control the casting of, a vote at a general meeting of the company; or
(e) has power to dispose of, or to exercise control over the disposal of, a share in the company; or
(f) is financially interested in the company's success or failure or apparent success or failure; or
(g) is owed a debt by the company; or
(h) is employed, or is engaged under a contract for services, by the company; or
(j) acts as agent for the company in any transaction or dealing; or
(k) gives professional advice to the company.
For the purposes of this Act, a company is also associated with a person if the company:
(a) holds property jointly with the person; or
(b) is dealing with the person's property as an agent for the person; or
(c) is a trustee of a trust under which the person is capable of benefiting; or
(d) acquires or disposes of property as a result of dealing with the person.
The circumstances set out in subsections (1) and (2) are the only circumstances in which a company is associated with a person for the purposes of this Act.
For the purposes of this Act, a natural person (in this section called the associate ) is associated with another person if the other person:
(a) holds property jointly with the associate; or
(b) is a trustee of a trust under which the associate is capable of benefiting; or
(ba) can benefit under a trust of which the associate is a trustee; or
(c) is employed, or is engaged under a contract for services, by the associate; or
(d) acts as agent for the associate in any transaction or dealing; or
(da) is a principal for whom the associate acts as an agent; or
(e) is an attorney of the associate under a power of attorney; or
(f) has appointed the associate as the other person's attorney under a power of attorney; or
(g) gives professional advice to the associate; or
(h) is given professional advice by the associate.
A natural person (the associate ) is also associated with another person if the associate has acquired or disposed of property as a result of dealing with the other person.
The circumstances set out in subsections (1) and (2) are the only circumstances in which a natural person is associated with another person for the purposes of this Act.
For the purposes of this Act, a partnership is associated with a person if, and only if, the person:
(a) is a partner in the partnership;
(b) is able to control, or to influence materially, the partnership's activities or internal affairs;
(c) is financially interested in the partnership's success or failure or apparent success or failure;
(d) is a creditor of the partnership;
(e) is employed, or is engaged under a contract for services, by the partnership;
(f) acts as agent for the partnership in any transaction or dealing; or
(g) gives professional advice to the partnership.
For the purposes of this Act, a trust is associated with a person if, and only if, the person:
(a) is the settlor, or one of the settlors, of the trust;
(b) has power under the terms of the trust to appoint or remove a trustee of the trust or to vary, or cause to be varied, any of the terms of the trusts;
(c) is a trustee of the trust;
(d) is able to control, or to influence materially, the activities of the trustee of the trust;
(e) if a trustee of the trust is a company - is a company officer of the company or otherwise is concerned, or takes part, in the company's management;
(f) is capable of benefiting under the trust;
(g) is a creditor of the trustee of the trust;
(h) is employed, or is engaged under a contract for services, by the trustee of the trust;
(j) acts as agent for the trustee of the trust in any transaction or dealing; or
(k) gives professional advice to the trustee of the trust.
Subject to this section, a person shall be taken, for the purposes of this Act, to control an entity at a particular time in relation to a matter if, and only if:
(a) no act, omission or decision inconsistent with the person's directions, instructions or wishes was; and
(b) having regard to all the circumstances, it may reasonably be expected that no such act, omission or decision would have been;
done or made at that time, in relation to the matter, by or on behalf of the entity.
5F(2) [Person not taken to control entity]A person shall not be taken to control an entity at a particular time in relation to a matter merely because:
(a) no act, omission or decision inconsistent with advice given by the person in the proper performance of the functions attaching to his or her professional capacity, or to his or her business relationship with the entity, was; and
(b) having regard to all the circumstances, it may reasonably be expected that no such act, omission or decision would have been;
done or made at that time, in relation to that matter, by or on behalf of the entity.
5F(3) [Act, omission or decision of substantial importance]A reference in subsection (1) or (2), in relation to a matter, to an act, omission or decision is a reference to an act, omission or decision that, having regard to the nature of that matter, is of substantial importance.
5F(4) [Company not a private company]A person shall not be taken to control a company at a particular time in relation to a matter if the company is not a private company at that time.
For the purposes of this Act, a company's financial affairs include:
(a) the company's promotion, formation, membership, control, operations and state of affairs;
(b) the management and proceedings of the company;
(c) any act or thing done (including any contract made and any transaction entered into) by or on behalf of the company, or to or in relation to the company or its business or property, at a time when:
(i) a receiver, or a receiver and manager, is in possession of, or has control over, property of the company;
(ia) the company is under administration within the meaning of the Corporations Act 2001;
(ib) a deed of company arrangement that the company executed under Part 5.3A of that Act has not yet terminated;
(ii) (Repealed by No 8 of 2007)
(iii) a compromise or arrangement made between the company and another person or other persons is being administered; or
and, without limiting the generality of the foregoing, any conduct of such a receiver or such a receiver and manager, of an administrator (within the meaning of that Act) of the company, of an administrator of such a deed, of any person administering such a compromise or arrangement or of any liquidator or provisional liquidator of the company;
(iv) the company is being wound up;
(d) the ownership of shares in, and debentures of, the company;
(e) the power of persons to exercise, or to control the exercise of, the rights to vote attached to shares in the company or to dispose of, or to exercise control over the disposal of, such shares;
(f) the circumstances under which a person acquired or disposed of, or became entitled to acquire or dispose of, shares in, or debentures of, the company; and
(g) matters concerned with ascertaining the persons with whom the company is or has been associated.
For the purposes of this Act, the financial affairs of a natural person include:
(a) the person's operations and state of affairs;
(b) any act or thing done (including any contract made and any transaction entered into) by or on behalf of the person, or to or in relation to the person or his or her business or property, at a time when:
(i) the person was, under this Act or the law of an external Territory, a bankrupt in respect of a bankruptcy from which the person had not been discharged;
(ii) the person had, under the law of an external Territory or the law of a country other than Australia, the status of an undischarged bankrupt;
(iii) the property of the person was subject to control under Division 2 of Part X by reason of an authority given by the person under section 188; or
(iv) a personal insolvency agreement under Part X or under the corresponding provisions of a law of an external Territory or a country other than Australia was in effect in relation to the person or the person's property;
(c) without limiting the generality of paragraph (b), any conduct of the trustee of such a bankrupt estate or of such a personal insolvency agreement or a person acting under such an authority; and
(d) matters concerned with ascertaining the persons with whom the person is or has been associated.
For the purposes of this Act, the financial affairs of a partnership include:
(a) the partnership's promotion, formation, membership, control, operations and state of affairs;
(b) the management and proceedings of the partnership;
(c) any act or thing done (including any contract made and transaction entered into) on behalf of the partnership, or to or in relation to the partnership, at a time when the partnership is being wound up; and
(d) matters concerned with ascertaining the persons with whom the partnership is or has been associated.
For the purposes of this Act, the financial affairs of a trust include:
(a) the creation of the trust;
(b) matters arising under, or otherwise relating to, the terms of the trust;
(c) the appointment and removal of a trustee of the trust;
(d) the business, trading, transactions and dealings of the trustee of the trust;
(e) the profits, income and receipts of the trustee of the trust;
(f) the losses, outgoings and expenditure of the trustee of the trust;
(g) the trust property, including transactions and dealings in, and the income arising from, the trust property;
(h) the liabilities of the trustee of the trust;
(j) the management of the trust;
(k) any act or thing done (including any contract made and transaction entered into) by or on behalf of the trustee of the trust, or to or in relation to the trust, at a time when the trust is being wound up;
(m) matters concerned with ascertaining the persons with whom the trust is or has been associated; and
(n) matters concerned with ascertaining the rights of the beneficiaries under the trust and any payments, or distributions of property, that the beneficiaries have received, or are entitled to receive, under the terms of the trust.
A reference in this Act to an intent to defraud the creditors of a person or to defeat or delay the creditors of a person shall be read as including an intent to defraud, or to defeat or delay, any one or more of those creditors. SECTION 6A STATEMENT OF AFFAIRS FOR PURPOSES OTHER THAN PART XI 6A(1) [Purposes]
This section has effect for the purposes of the following provisions of this Act, namely, subsections 54(1) and (2) and subsection 54A(2), paragraphs 55(2)(b), 56B(3)(a) and (b), 56F(1)(a) and (b), 57(2)(a) and (b) and sections 77CA and 185D and Part X.
A reference in a provision of this Act referred to in subsection (1) to a statement of affairs is a reference to a statement that:
(a) is in an approved form; and
(b) includes a statement identifying any creditor who is a related entity of the debtor or bankrupt; and
(c) contains a declaration that, so far as the debtor or bankrupt is aware, the particulars set out in the statement are correct.
If the trustee has reasonable grounds to suspect that:
(a) any particulars set out in a statement of affairs that was filed by a person are false or misleading in a material respect; or
(b) any material particulars have been omitted from that statement;
the trustee may, by written notice given to the person, require the person, within a specified period of not less than 14 days, to provide such information or to produce such books as are specified in the notice for the purpose of enabling the trustee to decide whether the particulars set out in the statement are correct.
For the purposes of the application of subsection (3) to a statement of affairs that is required to be given under Part X, a reference in that subsection to the trustee is a reference to whichever of the following is applicable:
(a) the controlling trustee within the meaning of that Part;
(b) the trustee of the personal insolvency agreement concerned.
(Repealed by No 34 of 2006)
A reference in paragraph 246(1)(a) or subsection 247(1) to a statement of a deceased person's affairs and of administration of the deceased person's estate is a reference to a statement, in an approved form, of those affairs and of that administration.
If the trustee administering the estate of a deceased person under Part XI has reasonable grounds to suspect that:
(a) any particulars set out in a statement of affairs that was filed by a person under subsection 246(1) or 247(1) are false or misleading in a material respect; or
(b) any material particulars have been omitted from that statement;
the trustee may give the person a written notice requiring the person to provide specified information or books within a specified period of at least 14 days to enable the trustee to decide whether the particulars set out in the statement are correct.
For the purposes of this Act, property is covered by a restraining order or a forfeiture order during the period:
(a) starting when the order comes into force in relation to the property; and
(b) ending when the earliest of the following occurs:
(i) the order ceases to be in force;
(ii) a court excludes the property from the order;
6C(2) Satisfaction of pecuniary penalty orders.
(iii) if the order is a restraining order - a court excludes the property from forfeiture that would or may result from conviction for an offence.
Without limiting the circumstances in which a pecuniary penalty order ceases to be in force, a pecuniary penalty order ceases to be in force if it is satisfied.
6C(3) When applications for proceeds of crime orders are finally determined.For the purposes of this Act, an application for a proceeds of crime order is taken to be finally determined when:
(a) the application is withdrawn; or
(b) if the application is successful - the resulting proceeds of crime order comes into force; or
(c) if the application is unsuccessful - the time within which an appeal can be made has expired and any appeals have been finally determined or otherwise disposed of.
A document that this Act requires to be in an approved form must:
(a) be in the form approved by the Inspector-General for the document; and
(b) include the information, statements, explanations or other matters required by the form; and
(c) be accompanied by any other material required by the form. 6D(2)
A reference in this Act to a document in the approved form, includes a reference to any other material included with or accompanying the document as required by the relevant form. 6D(3)
If:
(a) this Act requires a document to be in an approved form; and
(b) a provision of this Act specifies, or provides for the Insolvency Practice Rules to specify, information, statements, explanations or other matters that must be included in the document, or other material that must accompany the document;
that other provision is not taken to exclude or limit the operation of subsection (1) in relation to the approved form (and so the approved form may also require information etc. to be included in the form or material to accompany the form).
6D(4)The Insolvency Practice Rules may make provision for and in relation to:
(a) methods of verifying any information required by or in approved forms; and
(b) the manner in which, the persons by whom, and the directions or requirements in accordance with which, approved forms are required or permitted to be signed, prepared, or completed.
This Act extends to debtors being persons who are not Australian citizens and persons who have privilege of Parliament.
This Act applies to debtors whether or not they have attained the age of 18 years.
A sequestration order shall not be made against, nor a debtor's petition presented by: (a) a corporation; or (b) a partnership or association registered under a law of the Commonwealth, of a State or of a Territory, that provides for the winding up of a partnership or association registered under that law.
This Act applies, with any modifications prescribed by the regulations, in relation to limited partnerships as if they were ordinary partnerships and, upon all the general partners of a limited partnership becoming bankrupt, the assets of the limited partnership shall vest in the trustee.
(Omitted by No 119 of 1987, s 7(c).) SECTION 7A 7A APPLICATION OF THE CRIMINAL CODE
Chapter 2 of the Criminal Code applies to all offences against this Act.
Note:
Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
This Act binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory.
This Act does not affect a law of a State or Territory relating to matters not dealt with expressly or by necessary implication in this Act.
9(2)-(4)(Omitted by No 12 of 1980, s 6.) SECTION 9A 9A ACT DOES NOT EXTEND TO NORFOLK ISLAND
(Repealed by No 154 of 2020)
The Minister may, either generally or as otherwise provided in the instrument of delegation, by writing signed by him or her, delegate to an officer all or any of the Minister's powers under this Act, other than the powers under subsections 185C(4B), 186F(4) and 186G(2B), the power under subsection 105-1(1) of Schedule 2 and this power of delegation.
A power delegated under subsection (1) shall, when exercised by a delegate, be deemed to have been exercised by the Minister. 10(3)
A delegation under subsection (1) does not prevent the exercise of a power by the Minister. 10(4)
The Secretary may, either generally or as otherwise provided in the instrument of delegation, by writing signed by him or her, delegate to an officer all or any of the Secretary's powers under this Act, other than this power of delegation. 10(5)
A power delegated under subsection (4) shall, when exercised by a delegate, be deemed to have been exercised by the Secretary. 10(6)
A delegation under subsection (4) does not prevent the exercise of a power by the Secretary. 10(7)
In this section:
officer
(Omitted by No 115 of 1990, s 5.)
Secretary
means the Secretary of the Department.
For the purposes of this Act, there shall be an Inspector-General in Bankruptcy.
11(2) [Powers and functions](a) the general administration of this Act; and
(b) the other powers and other functions conferred or imposed on him or her by this Act.
The Inspector-General may exercise any of the powers (including the power under section 18), and perform any of the functions, of an Official Receiver, in the same way as the Official Receiver.
The Inspector-General may by signed instrument delegate to an authorised employee all or any of the powers and functions of the Inspector-General under this Act.
The Inspector-General:
(a) shall make such inquiries and investigations as the Minister directs; and
(b) may make such inquiries and investigations as the Inspector-General thinks fit with respect to the administration of, or the conduct of a trustee (including a controlling trustee) in relation to:
(i) a bankruptcy; or
(ii) a composition or scheme of arrangement under Division 6 of Part IV; or
(iii) a personal insolvency agreement; or
(iv) an administration under Part XI; or
(v) property in relation to which a direction has been given under subsection 50(1); or
(vi) property in relation to which the trustee is the controlling trustee under an authority given under section 188; and
(ba) may make such inquiries and investigations as the Inspector-General thinks fit with respect to so much of the conduct and examinable affairs of:
(i) a bankrupt; or
(ii) a bankrupt or debtor under a composition or scheme of arrangement under Division 6 of Part IV; or
(iia) a debtor under a debt agreement proposal or debt agreement under Part IX; or
(iib) a debtor whose property is subject to control under Division 2 of Part X; or
as is relevant to the bankruptcy, composition, scheme or agreement, as the case may be; and
(iii) a debtor under a personal insolvency agreement;
(bb) may make such inquiries and investigations as the Inspector-General thinks fit with respect to any conduct of an administrator that relates to a debt agreement; and
(bc) may make such inquiries and investigations as the Inspector-General thinks fit with respect to whether a person has committed an offence against this Act; and
(bd) may make such inquiries and investigations as the Inspector-General thinks fit with respect to any conduct of a registered debt agreement administrator (including conduct engaged in before a debt agreement proposal, specifying the administrator under paragraph 185C(2)(c), is given to the Official Receiver), except conduct covered by paragraph (bb) or (bc); and
(c) shall from time to time obtain from Official Receivers and other officers and from registered trustees reports as to the operation of this Act; and
(d) must give the Minister, after the end of each financial year, a report on the operation of this Act during that financial year for presentation by the Minister to the Parliament.
Where the Inspector-General requests a registered trustee or the administrator of a debt agreement, for the purposes of subsection (1), to provide a report as to the operation of this Act, the registered trustee or administrator, as the case may be, shall forthwith provide the report requested.
The Inspector-General may make an inquiry or investigation under paragraph (1)(b), (ba), (bb) or (bc) at any time, whether before or after the end of the bankruptcy, composition, scheme or agreement or administration concerned.
Where the Inspector-General makes an inquiry or investigation referred to in paragraph (1)(b), (ba), (bb) or (bc), the Inspector-General may give a copy of the report of the results of the inquiry or investigation to any person the Inspector-General thinks fit.
Without limiting the generality of paragraphs (1)(a) and (b), the Inspector-General may make inquiries and investigations under those paragraphs at the request of:
(a) if the Inspector-General is satisfied that the request relates to an application, or proposed application, for a confiscation order - the Commonwealth proceeds of crime authority that is the responsible authority, or that is proposed to be the responsible authority, for the application or proposed application under the Proceeds of Crime Act 2002; or
(b) if the Inspector-General is satisfied that the request relates to an application, or proposed application, for an interstate confiscation order - a person who is entitled, under a corresponding law, to apply for an order of that kind.
For the purposes of paragraph (1)(bb), any conduct engaged in by the administrator of a debt agreement:
(a) in fulfilment, or purported fulfilment, of a duty of the administrator under this Act; or
(b) in breach of a duty of the administrator under this Act;
is taken to be conduct of the administrator that relates to a debt agreement, even if the conduct does not relate to a particular debt agreement.
For the purposes of paragraph (1)(bb), if a person signs a certificate under subsection 185C(2D) in relation to a debt agreement proposal, the person's conduct in relation to the certificate is taken to be conduct of an administrator that relates to a debt agreement.
For the purposes of paragraph (1)(bb), if a person:
(a) gives a notification in compliance, or purported compliance with subsection 185N(5); or
(b) breaches subsection 185N(5);
the giving of the notification, or the breach, as the case may be, is taken to be the conduct of an administrator that relates to a debt agreement.
For the purposes of discharging his or her functions under this Act, the Inspector-General may:
(a) require the production of any books kept by an Official Receiver or by a trustee; and
(b) require a trustee to answer an inquiry made to him or her in relation to any of the following matters in which the trustee is, or has been, engaged:
(i) a bankruptcy;
(ii) the control of property under an authority given under section 188;
(iii) an administration under Part XI;
(iv) a personal insolvency agreement, scheme of arrangement or composition; and
(c) at any time investigate the books of a trustee; and
(d) require the production of any books kept by the administrator, or former administrator, of a debt agreement; and
(e) require the administrator, or former administrator, of a debt agreement to answer an inquiry made of the administrator or former administrator, as the case may be, in relation to the administration of the debt agreement; and
(f) at any time investigate the books of the administrator, or former administrator, of a debt agreement.
If the Inspector-General believes on reasonable grounds that a person has information that is relevant to an inquiry or investigation under paragraph (1)(bc), the Inspector-General may, by written notice given to the person, require the person to give to the Inspector-General, within the period and in the manner specified in the notice, any such information.
The period specified in a notice given under subsection (2A) must be at least 14 days after the notice is given.
A person commits an offence if:
(a) the person has been given a notice under subsection (2A); and
(b) the person fails to comply with the notice.
Penalty: Imprisonment for 12 months.
A notice under subsection (2A) must set out the effect of the following provisions:
(a) subsection (2C);
(b) section 137.1 of the Criminal Code (about giving false or misleading information).
Subsection (2A) does not limit the application of subsection (2) in relation to an inquiry or investigation under paragraph (1)(bc).
(Omitted by No 44 of 1996, Sch 1, Pt 1(55).) 12(4)
The Inspector-General may disclose information obtained by the Inspector-General in the course of exercising powers or performing functions under this Act to any of the following bodies, if the Inspector-General is satisfied that the information will enable or assist the body to exercise any of its powers or perform any of its functions:
(a) a Commonwealth entity (within the meaning of the Public Governance, Performance and Accountability Act 2013);
(b) a prescribed professional disciplinary body.
For the purposes of the finance law (within the meaning of the Public Governance, Performance and Accountability Act 2013):
(a) the following group of persons is a listed entity:
(i) the Inspector-General;
(ii) persons engaged under the Public Service Act 1999 to assist the Inspector-General; and
(b) the listed entity is to be known as the Australian Financial Security Authority; and
(c) the Inspector-General is the accountable authority of the Australian Financial Security Authority; and
(d) the persons referred to in paragraph (a) are officials of the Australian Financial Security Authority; and
(e) the purposes of the Australian Financial Security Authority include the functions of the Inspector-General referred to in subsection 11(2) and section 12.
(Omitted by No 44 of 1996, Sch 1, Pt 1(57).) SECTION 15 OFFICIAL RECEIVERS 15(1) [As Minister thinks necessary]
There is to be such number of Official Receivers as the Minister thinks necessary.
(Omitted by No 44 of 1996, Sch 1, Pt 1(58).) 15(3) [Powers and functions]
Each Official Receiver has such powers and functions as are conferred or imposed on an Official Receiver by this Act.
An Official Receiver may by signed instrument delegate to an authorised employee all or any of the powers and functions of the Official Receiver under this Act.
The Court may review an act done by an Official Receiver.
Note:
Section 303 explains who may apply to the Court for review of an Official Receiver's action.
The Inspector-General and each Official Receiver shall be appointed by the Minister.
The Minister may appoint a person to act as Inspector-General:
(a) during a vacancy in the office of Inspector-General; or
(b) during any period, or during all periods, when the Inspector-General is absent from duty or from Australia or is, for any other reason, unable to perform the functions of his or her office.
Note:
For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.
The Inspector-General may appoint a person to act as Official Receiver:
(a) during a vacancy in the office of Official Receiver; or
(b) during any period, or during all periods, when the Official Receiver is absent from duty or from Australia or is, for any other reason, unable to perform the functions of his or her office.
Note:
For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.
(Repealed by No 131 of 2002)
(Repealed by No 131 of 2002)
(Repealed by No 131 of 2002)
(Repealed by No 131 of 2002)
(Repealed by No 46 of 2011)
(Omitted by No 44 of 1996, Sch 1, Pt 1(61).) SECTION 17B ARRANGEMENTS FOR SERVICES OF STATE MAGISTRATES AND NORTHERN TERRITORY LOCAL COURT JUDGES 17B(1)
The Governor-General may arrange with the Governor of a State for the performance of the functions of a magistrate under this Act by all or any of the persons who from time to time hold office as Magistrates of the State. 17B(2)
The Governor-General may arrange with the Administrator of the Northern Territory for the performance of the functions of a magistrate under this Act by all or any of the persons who from time to time hold office as Judges of the Local Court of the Northern Territory.
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.
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.
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.
The Official Trustee shall have such seals as the Minister directs by writing under his or her hand.
The designs of the seals of the Official Trustee shall be as determined by the Minister by writing under his or her hand.
(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.
The Official Receiver may exercise the powers, and perform the functions, of the Official Trustee.
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.
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.
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.
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.
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.
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.
(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.
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.
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.
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.
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.
Despite paragraph 10(1)(d) of the Public Governance, Performance and Accountability Act 2013, the Official Trustee is not a Commonwealth entity for the purposes of that Act.
The Official Trustee is subject to the same personal liability in respect of an act done, or omitted to be done, by it as:
(a) the trustee of the estate of a bankrupt; or
(b) the trustee of the estate of a deceased debtor; or
(c) the trustee of a composition or scheme of arrangement accepted under Division 6 of Part IV; or
(d) the controlling trustee in relation to a debtor whose property is subject to control under Division 2 of Part X; or
(e) the trustee of a personal insolvency agreement;
as an individual would be subject if the individual had done, or omitted to do, that act as such a trustee.
The Commonwealth is by force of this subsection liable to indemnify the Official Trustee against any personal liability, including any personal liability as to costs, incurred by it:
(a) by reason of subsection (1); or
(b) for any act done, or omitted to be done, by it in carrying out, or purporting to carry out, a direction given, or an order made, by the Court under section 50; or
(c) for any act done, or omitted to be done, by the Official Trustee:
(i) under Part IX; or
(ii) under the authority contained in a debt agreement to deal with the property of the person who is a party (as debtor) to the agreement.
Nothing in subsection (2) affects any right that the Official Trustee has, apart from that subsection, to be reimbursed in respect of any personal liability referred to in that subsection or any other indemnity given to the Official Trustee in respect of any such liability.
Where the Commonwealth makes a payment in accordance with the indemnity referred to in subsection (2), the Commonwealth has the same right to reimbursement in respect of the payment (including reimbursement under another indemnity given to the Official Trustee) as the Official Trustee would have if the Official Trustee had made the payment.
The duties of the trustee of the estate of a bankrupt include the following:
(a) notifying the bankrupt's creditors of the bankruptcy;
(b) determining whether the estate includes property that can be realised to pay a dividend to creditors;
(c) reporting to creditors within 3 months of the date of the bankruptcy on the likelihood of creditors receiving a dividend before the end of the bankruptcy;
(d) (Repealed)
(e) determining whether the bankrupt has made a transfer of property that is void against the trustee;
(f) taking appropriate steps to recover property for the benefit of the estate;
(g) taking whatever action is practicable to try to ensure that the bankrupt discharges all of the bankrupt's duties under this Act;
(h) considering whether the bankrupt has committed an offence against this Act;
(i) referring to the Inspector-General or to relevant law enforcement authorities any evidence of an offence by the bankrupt against this Act;
(j) administering the estate as efficiently as possible by avoiding unnecessary expense;
(k) exercising powers and performing functions in a commercially sound way;
(l) the duties imposed on the trustee under Schedule 2.
(Omitted by No 44 of 1996, Sch 1, Pt 1(74).) 19(2)
Where a person who became a bankrupt on a creditor's petition is unable to prepare a proper statement of affairs, the trustee may employ, at the expense of the estate, a qualified person to assist in the preparation of the statement.
The trustee of the estate of a bankrupt may investigate:
(a) the bankrupt's conduct and examinable affairs; and
(b) books, accounts and records kept by the bankrupt;
so far as they relate to the bankruptcy.
(Repealed by No 131 of 2002)
The Commonwealth shall indemnify a person to whom this section applies against any liability incurred by him or her:
(a) for any act done negligently, or negligently omitted to be done, by him or her in the course of the performance of his or her duties under this Act; and
(b) for any act done by him or her in good faith in the purported performance of his or her duties under this Act.
The Commonwealth has the same liability for acts of, or omissions by, a person to whom this section applies in the course of the performance or purported performance of his or her duties under this Act as a master has for acts of, or omissions by, his or her servants.
A reference in this section to a person to whom this section applies shall be read as a reference to the Inspector-General, a Registrar, an Official Receiver, an officer performing any of the functions or duties, or exercising any of the powers, of an Official Receiver or an officer or other person assisting a Registrar or an Official Receiver in the performance of his or her functions or duties or the exercise of his or her powers.
The trustee of the estate of a bankrupt must give the Official Receiver such information, access to and facilities for inspecting the bankrupt's books and generally such assistance as is necessary for enabling the Official Receiver to perform his or her duties. 19B(2)
This section does not apply to the Official Trustee.
(Omitted by No 44 of 1996, Sch 1, Pt 1(79).) Division 2 - Common Investment Fund SECTION 20A 20A INTERPRETATION
In this Division, unless the contrary intention appears:
Common Fund
means the Common Investment Fund established in pursuance of section 20B.
Equalization Account
means the Common Investment Fund Equalization Account continued in existence by section 20G.
Equalization Account
(Repealed by No 152 of 1997)
Equalization Reserve
(Repealed by No 8 of 2005)
The Official Trustee shall open and maintain an account to be known as the Common Investment Fund.
All moneys (other than moneys to which subsection (8) applies) received by the Official Trustee after the commencement of this section shall be paid into the Common Fund.
All moneys (other than moneys to which subsection (8) applies) held by the Official Trustee at the commencement of this section, including moneys that, at that time, are held on deposit with a bank under subsection 172(1), and all investments made under that subsection and held by the Official Trustee at that time, shall form part of the Common Fund.
The Official Trustee shall open and maintain, with an ADI or ADIs, such accounts for the purposes of the Common Fund as are necessary for the purposes of the Common Fund.
(Repealed by No 106 of 2010, Sch 3 item 9.)
The payment of moneys into an account referred to in subsection (4) shall be deemed to be the payment of those moneys into the Common Fund.
Any payment that the Official Trustee is authorized, required or permitted, by or under a provision of this Act, to make out of moneys standing to the credit of the estate of a bankrupt or a deceased debtor shall be made out of moneys in the Common Fund.
Any payment that the Official Trustee is authorised, required or permitted to make under:
(a) a debt agreement; or
(b) a personal insolvency agreement;
is to be made out of money in the Common Fund.
This subsection applies to moneys held or received by the Official Trustee:
(aa) 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; or
(a) under a direction given, or order made, under section 50; or
(b) (Omitted by No 168 of 1986, s 3, Sch 1.)
(c) as the controlling trustee in relation to a debtor whoseproperty is subject to control under Division 2 of Part X.
(d)-(e) (Omitted by No 168 of 1986, s 3, Sch 1.)
(Repealed by No 168 of 1986, s 3, Sch 1.) SECTION 20D INVESTMENT OF MONEY IN COMMON FUND 20D(1)
The moneys in the Common Fund not immediately required for the purposes of this Act may be invested by the Official Trustee: (a) in public securities; or (b) in a loan the repayment of which is guaranteed by the Commonwealth, a State or a Territory; or (c) in a loan to a municipal corporation or other local governing body in Australia; or (d) in a loan to, or on deposit with, an ADI; or (e) in bank bills accepted or endorsed by an ADI.
(Omitted by No 168 of 1986, s 3, Sch 1.) 20D(4)
The Official Trustee: (a) shall endeavour to ensure that the moneys in the Common Fund lodged in accounts at call with an ADI or ADIs are, as far as practicable, at all times sufficient to meet the payments that under this Act are to be made out of moneys in the Common Fund; and (b) will ensure that moneys in the Common Fund that, in the opinion of the Official Trustee, are not required to be kept in accounts at call with an ADI or ADIs in accordance with paragraph (a) are, as far as practicable, invested in accordance with subsection (1).
(Omitted by No 44 of 1996, Sch 1, Pt 1(81).) 20D(6)
Interest derived from the investment of moneys in the Common Fund is not subject to taxation under a law of the Commonwealth, a State or a Territory.
The Common Fund is not subject to taxation under a law of the Commonwealth, or to taxation under a law of a State or Territory to which the Commonwealth is not subject, and the Official Trustee is not otherwise subject to taxation under such a law in respect of anything done in the exercise of powers conferred on it by subsection (1).
In this section, public securities means: (a) bonds, debentures, stock and other securities issued under an Act; (b) bonds, debentures, stock and other securities issued by:
(i) a State;
(ii) a Territory;
(iii) a municipal corporation or other local governing body; or
(c) securities issued in respect of a loan to a body (whether incorporated or not) whose principal business is the supply and distribution, by a system of reticulation, in Australia or in a Territory, of water, gas or electricity; and (d) other securities specified in the regulations as public securities for the purposes of this section;
(iv) a public authority constituted by or under a law of a State or Territory;
but does not include:
(e) securities referred to in paragraph (a) or (b) that are issued in respect of a loan raised outside Australia and the Territories unless the securities are public securities for the purposes of the Income Tax Assessment Act 1936; or (f) securities issued after 12 April 1976 by an ADI.Where the Official Trustee is of the opinion:
(a) that moneys in the Common Fund deposited in accounts at call with an ADI or ADIs are likely to be insufficient to meet payments that under this Act are to be made out of moneys in the Common Fund; and
(b) that it would be undesirable to convert into money investments made under section 20D for the purpose of enabling those payments to be so made;
the Official Trustee may apply to the Finance Minister to borrow from the Commonwealth under this section moneys not exceeding such amount as is specified in the instrument.
The Finance Minister may, on behalf of the Commonwealth, lend to the Official Trustee, on such terms and conditions as he or she determines, moneys that the Official Trustee has applied under subsection (1) to borrow.
Moneys borrowed by the Official Trustee from the Commonwealth under this section shall be paid into the Common Fund.
Interest is not payable on moneys lent to the Official Trustee by the Commonwealth under this section.
Moneys lent to the Official Trustee by the Commonwealth under this section shall be paid out of moneys available under an appropriation made by the Parliament.
No moneys in the Common Fund shall be held, or be deemed for any purpose to be held, on account of any particular estate or fund.
Investments made from moneys in the Common Fund shall not be made, and shall not be deemed for any purpose to be made, on account of any particular estate or fund.
Any capital appreciation or depreciation in the value of investments made from moneys in the Common Fund shall not increase or decrease the amount payable under this Act in respect of any estate or fund.
The making of a capital profit or capital loss on the realization of investments made from moneys in the Common Fund shall not increase or decrease the amount payable under this Act in respect of any estate or fund.
Interest derived from the investment of moneys in the Common Fund shall not increase the amount payable under this Act in respect of any estate or fund.
The Official Trustee shall cause accounts to be kept showing the amount in the Common Fund from time to time standing to the credit of each estate or fund in respect of which moneys have been paid into the Common Fund.
Moneys received or held by the Official Trustee as trustee of any estate or fund do not cease to be moneys in hand for the purposes of this Act by reason only that those moneys have been paid into or become part of the Common Fund.
In this section:
estate
means the estate of a bankrupt or of a deceased debtor.
fund
means a fund of moneys referred to in paragraph 20J(1)(b).
There is continued in existence the Common Investment Fund Equalization Account.
Note:
The Account was established by subsection 5(3) of the Financial Management Legislation Amendment Act 1999.
20G(2)The Account is a special account for the purposes of the Public Governance, Performance and Accountability Act 2013.
Interest derived from the investment of money in the Common Fund must be paid to the Commonwealth.
20H(2) [Capital profits]An amount equal to the amount of any capital profit made upon the realization of an investment made from money in the Common Fund must be paid out of the Common Fund to the Commonwealth.
20H(3) [Equalization Account]Whenever a payment is made to the Commonwealth under subsection (1) or (2), an equal amount must be credited to the Equalization Account.
20H(4) [Debits](a) the amount of any capital loss incurred upon the realization of an investment made from money in the Common Fund; or
(b) each amount of interest that:
(i) forms part of the estate of a bankrupt or of a deceased debtor by virtue of subsection 20J(2) or (3); or
(ii) forms part of a fund referred to in paragraph 20J(1)(b) by virtue of subsection 20J(2) or (3A); or
(iii) is payable to a person by virtue of subsection 20J(4);
is to be debited from the Equalization Account and paid into the Common Fund.
20H(5) [Amounts not required for payment]The Inspector-General must, at such times as the Inspector-General considers appropriate and, in any event, at least once every 6 months, determine whether any amounts standing to the credit of the Equalization Account are not required for the purposes of subsection (4). If the Inspector-General determines that any amounts are not so required, the Inspector-General may direct that the amounts not so required, or any part of those amounts, are to be debited from the Equalization Account.
Whenever an amount required by subsection (4) to be debited from the Equalization Account exceeds the amount standing to the credit of the Equalization Account, an amount equal to the excess must be credited to the Equalization Account.
Where the Official Trustee is:
(a) the trustee of the estate of a bankrupt or of a deceased debtor; or
(b) the trustee of a fund of moneys held or received by the Official Trustee in respect of a particular debtor or bankrupt by reason of being:
(i) the trustee of a composition, or of a scheme of arrangement, accepted under Division 6 of Part IV; or
(ii) the trustee of a personal insolvency agreement;
the estate or the fund is not entitled, except as provided by subsections (2), (3) and (3A), to interest on moneys held bythe Official Trustee as trustee of the estate or fund, as the case may be.
Where moneys have been held, or are likely to be held, for a prescribed reason, or for one prescribed reason and then for another prescribed reason, by the Official Trustee as the trustee of the estate of a bankrupt or of a deceased debtor, or as trustee of a fund referred to in paragraph (1)(b), for not less than one year longer than those moneys would have been held, or would be likely to be held, by the Official Trustee but for that reason or those reasons, the Inspector-General may direct, by writing under his or her hand, that interest on those moneys, at the rate prescribed by the regulations for the purposes of this section and in respect of such period as he or she determines, shall form part of that estate or fund, as the case may be.
Where, on or after the date of commencement of this section (in the subsection referred to as the commencing date ), the Official Trustee receives an amount by way of interest on moneys (other than moneys of the kind referred to in paragraph (1)(b)), or on investments, that form part of the Common Fund by virtue of subsection 20B(3):
(a) if the interest accrued in respect of a period that ended before the commencing date - the amount of the interest forms part of the estate in respect of which those moneys or investments were held immediately before the commencing date; or
(b) if the interest accrued in respect of a period that commenced before, but ended on or after, the commencing date - an amount that bears to the amount of that interest the same proportion as the number of days in the part of the period in respect of which the interest accrued that occurred before the commencing date bears to the number of days in that period forms part of the estate in respect of which those moneys or investments were held immediately before the commencing date.
Where, on or after the date of commencement of this subsection (in this subsection referred to as the commencing day ), theOfficial Trustee receives an amount by way of interest on moneys held or received by the Official Trustee by reason of being trustee of a fund referred to in paragraph (1)(b) (in this subsection referred to as the appropriate fund ), being moneys that form part of the Common Fund:
(a) if the interest accrued in respect of a period that ended before the commencing date - the amount of the interest forms part of the appropriate fund; or
(b) if the interest accrued in respect of a period that commenced before, but ended on or after, the commencing day - an amount that bears to the amount of that interest the same proportion as the number of days in the part of the period in respect of which the interest accrued that occurred before the commencing day bears to the number of days in that period forms part of the appropriate fund.
(a) moneys held by the Official Trustee as the trustee of the estate of a bankrupt or of a deceased debtor do not form part of the estate; or
(b) moneys held by the Official Trustee as part of a fund referred to in paragraph (1)(b) do not form part of the fund;
interest on those moneys is payable to the person to whom those moneys are payable, out of the Common Fund, at the rate prescribed by the regulations for the purposes of this section and in respect of the period during which those moneys are held by the Official Trustee.
For the purposes of subsection (2), moneys shall be taken to have been held, or to be likely to be held, by the Official Trustee for a prescribed reason if the moneys have been held, or are likely to be held, as the case may be, by the Official Trustee:
(a) by reason of the institution or defending of legal proceedings in good faith;
(b) by reason that a person has, or has had, under consideration, in good faith, the institution or defending of legal proceedings; or
(c) for any other reason declared by the regulations to be a prescribed reason for the purposes of this section.
The Federal Court and the Federal Circuit and Family Court of Australia (Division 2) have concurrent jurisdiction in bankruptcy, and that jurisdiction is exclusive of the jurisdiction of all courts other than: (a) the jurisdiction of the High Court under section 75 of the Constitution; or (b) the jurisdiction of the Federal Circuit and Family Court of Australia (Division 1) under section 35 or 35A of this Act.
To avoid doubt, subsection (1) does not: (a) confer jurisdiction in a criminal matter; or (b) exclude the jurisdiction of a court of a State or Territory under the Judiciary Act 1903 in a criminal matter relating to this Act.
(Omitted by No 44 of 1996, Sch 1, Pt 1(91).) SECTION 29 COURTS TO HELP EACH OTHER 29(1) [All Courts with jurisdiction]
All Courts having jurisdiction under this Act, the Judges of those Courts and the officers of or under the control of those Courts shall severally act in aid of and be auxiliary to each other in all matters of bankruptcy.
29(2) [Aid to external Territories, other countries]In all matters of bankruptcy, the Court:
(a) shall act in aid of and be auxiliary to the courts of the external Territories, and of prescribed countries, that have jurisdiction in bankruptcy; and
(b) may act in aid of and be auxiliary to the courts of other countries that have jurisdiction in bankruptcy.
Where a letter of request from a court of an external Territory, or of a country other than Australia, requesting aid in a matter of bankruptcy is filed in the Court, the Court may exercise such powers with respect to the matter as it could exercise if the matter had arisen within its own jurisdiction.
The Court may request a court of an external Territory, or of a country other than Australia, that has jurisdiction in bankruptcy to act in aid of and be auxiliary to it in any matter of bankruptcy.
In this section, prescribed country means:
(a) the United Kingdom, Canada and New Zealand;
(b) a country prescribed by the regulations for the purposes of this subsection; and
(c) a colony, overseas territory or protectorate of a country specified in paragraph (a) or of a country so prescribed.
(a) has full power to decide all questions, whether of law or of fact, in any case of bankruptcy or any matter under Part IX, X or XI coming within the cognizance of the Court; and
(b) may make such orders (including declaratory orders and orders granting injunctions or other equitable remedies) as the Court considers necessary for the purposes of carrying out or giving effect to this Act in any such case or matter.
The Court may direct such inquiries to be made and accounts to be taken for the purposes of any proceeding before the Court as the Court considers necessary and may, when directing an account to be taken, or subsequently, give special directions as to the manner in which the account is to be taken or vouched.
30(3) [Trial by jury of question of fact]If in a proceeding before the Federal Court under this Act a question of fact arises that a party desires to have tried before a jury, the Federal Court may, if it thinks fit, direct the trial of that question to be had before a jury, and the trial may be had accordingly in the same manner as if it were the trial of an issue of fact in an action.
(Omitted by No 44 of 1996, Sch 1, Pt 1(94).) 30(5) [Court may enforce certain orders etc by officers]
(a) a bankrupt, a debtor or any other person has failed to comply with an order or direction of a Registrar, or with a direction or requirement of an Official Receiver or trustee, under this Act; or
(b) a trustee has failed to comply with an order, direction or requirement of a Registrar, or with a requirement or request of the Inspector-General, under this Act;
the Court may, on the application of the Registrar, Official Receiver, trustee or Inspector-General, as the case requires:
(c) order the person who has failed to comply with the order, direction, requirement or request, as the case may be, to comply with it; or
(d) if it thinks fit, make an immediate order for the committal to prison of that person.
The power conferred on the Court by subsection (5) is in addition to, and not in substitution for, any other right or remedy in respect of the failure to comply with the order, direction, requirement or request, as the case may be.
In exercising jurisdiction under this Act, the Court shall hear and determine the following matters in open Court:
(a) creditors' petitions;
(b) examinations under this Act;
(ba) (Omitted by No 143 of 1992, Sch.)
(c) proceedings in connection with the consideration of an annulment of a bankruptcy under section 153B;
(d) applications under:
(i) section 222 (as applied by section 76B); or
for an order setting aside or terminating a composition or scheme of arrangement under Division 6 of Part IV;
(ii) section 222C (as applied by section 76B);
(da) (Repealed by No 80 of 2004.)
(e) applications to set aside or avoid a charge, charging order, settlement, disposition, conveyance, transfer security or payment;
(ea) applications under section 139A;
(f) applications to declare for or against the title of the trustee to any property;
(g) applications for the committal of a person to prison or for the release from prison of a person committed to prison;
(h) (Omitted by No 44 of 1996, Sch 1, Pt 1(95).)
(i) applications for the trial of questions of fact with a jury and the trial of those questions;
(j) applications under Part X:
(i) for an order setting aside or terminating a personal insolvency agreement; or
(ii) for a sequestration order against the estate of a debtor;
(ja) applications for an order of annulment of the administration of the estate of a deceased person under Part XI; and
(k) summary trials under Part XIV.
All other matters under this Act may, in the discretion of the Court, be heard in open Court or in Chambers. SECTION 31A 31A (OMITTED)
(Omitted by No 44 of 1996, Sch 1, Pt 1(96).) SECTION 32 32 COSTS
The Court may, in any proceeding before it, including a proceeding dismissed for want of jurisdiction, make such orders as to costs as it thinks fit. SECTION 33 ADJOURNMENT, AMENDMENT OF PROCESS AND EXTENSION AND ABRIDGMENT OF TIMES 33(1)
The Court may:
(a) upon such terms as it thinks fit, at any time adjourn any proceeding before it, either to a fixed date or generally;
(b) at any time allow the amendment of any written process, proceeding or notice under this Act; or
(c) extend before its expiration or, if this Act does not expressly provide to the contrary, after its expiration, any time limited by this Act, or any time fixed by the Court or the Registrar under this Act (other than the time fixed for compliance with a bankruptcy notice), for doing an act or thing or abridge any such time.
(Omitted by No 44 of 1996, Sch 1, Pt 1(97).) SECTION 33A ALTERATION OF FILING DATE FOR STATEMENT OF AFFAIRS 33A(1) [Application]
This section applies to a statement of affairs that was filed for the purposes of section 54, 55, 56B, 56F or 57 by a bankrupt, or by a person who later became a bankrupt.
33A(2) [Reasonable grounds]If the Court is satisfied that the person believed, on reasonable grounds, that the statement had already been filed at a time before it was actually filed, the Court may order that the statement is to be treated as having been filed at a time before it was actually filed.
33A(3) [30-day period]The Court cannot make an order that would result in the person being discharged from bankruptcy earlier than 30 days after the order is made.
33A(4) [Interpretation]In this section:
filed
includes presented, lodged or given.
The Court may, for the purposes of any proceeding before it:
(a) order the examination upon oath of a person before an officer of the Court or other person, at any place within Australia; or
(b) order that a commission issue to a person either within or beyond Australia authorizing him or her to take the testimony of a person upon oath;
and may:
(c) by the same or a subsequent order, give any necessary directions concerning the time, place and manner of the examination; and
(d) admit in evidence, saving all just exceptions, the testimony obtained at the examination or in pursuance of the commission. SECTION 34A STANDARD OF PROOF 34A(1) [Proof on balance of probabilities]
Where, in proceedings in the Court (other than proceedings for an offence), it is necessary, for a purpose relating to a matter arising under this Act, to establish, or for the Court to be satisfied as to, a particular fact (including a contravention of this Act), it is sufficient if that fact is established, or the Court is satisfied as to that fact, as the case may be, on the balance of probabilities.
34A(2) [Effect of section]Subsection (1) has effect except to the extent that this Act expressly provides otherwise.
If, at a particular time: (a) a party to a marriage is a bankrupt; and (b) the trustee of the bankrupt's estate is:
(i) a party to property settlement proceedings in relation to either or both of the parties to the marriage; or
(ii) an applicant under section 79A of the Family Law Act 1975 for the variation or setting aside of an order made under section 79 of that Act in property settlement proceedings in relation to either or both of the parties to the marriage; or
(iia) an applicant for an order under subsection 90K(1) or (3) of the Family Law Act 1975 in relation to the setting aside of a financial agreement of the parties to the marriage; or
(iii) a party to spousal maintenance proceedings in relation to the maintenance of a party to the marriage;
then, at and after that time, the Federal Circuit and Family Court of Australia (Division 1) has jurisdiction in bankruptcy in relation to any matter connected with, or arising out of, the bankruptcy of the bankrupt.
If, at a particular time: (a) a party to a de facto relationship is a bankrupt; and (b) the trustee of the bankrupt's estate is:
(i) a party to property settlement proceedings in relation to either or both of the parties to the de facto relationship; or
(ii) an applicant under section 90SN of the Family Law Act 1975 for the variation or setting aside of an order made under section 90SM of that Act in property settlement proceedings in relation to either or both of the parties to the de facto relationship; or
(iia) an applicant for an order under subsection 90UM(1) or (6) of the Family Law Act 1975 in relation to the setting aside of a Part VIIIAB financial agreement of the parties to the de facto relationship; or
(iii) a party to maintenance proceedings under Part VIIIAB of the Family Law Act 1975 in relation to the maintenance of one of the parties to the de facto relationship;
then, at and after that time, the Federal Circuit and Family Court of Australia (Division 1) has jurisdiction in bankruptcy in relation to any matter connected with, or arising out of, the bankruptcy of the bankrupt.
Subsections (1) and (1A) do not limit the jurisdiction of the Federal Circuit and Family Court of Australia (Division 1) under section 35A.
In this section:
property settlement proceedings
has the same meaning as in the Family Law Act 1975.
spousal maintenance proceedings
means proceedings under the Family Law Act 1975 with respect to the maintenance of a party to a marriage.
An expression used in subsection (1A) that is also used in the Family Law Act 1975 has the same meaning in that subsection as it has in that Act.
If a proceeding is pending in the Federal Court, the Federal Court may, on the application of a party to the proceeding or of its own motion, transfer the proceeding to the Federal Circuit and Family Court of Australia (Division 1).
(Repealed by No 13 of 2021)
If a proceeding is pending in the Federal Circuit and Family Court of Australia (Division 2), the Court may, on the application of a party to the proceeding or on its own initiative, transfer the proceeding to the Federal Circuit and Family Court of Australia (Division 1).
Subject to subsection (4), where a proceeding is transferred to the Federal Circuit and Family Court of Australia (Division 1): (a) the Court has jurisdiction to hear and determine the proceeding; (b) the Court also has jurisdiction to hear and determine matters not otherwise within its jurisdiction (whether by virtue of paragraph (a) or otherwise):
(i) that are associated with matters arising in the proceeding; or
(c) the Court may, in and in relation to the proceeding:
(ii) that, apart from subsection 32(1) of the Federal Court of Australia Act 1976, the Federal Court would have had jurisdiction to hear and determine in the proceeding;
(i) grant such remedies;
(ii) make orders of such kinds; and
as the Federal Court could have granted, made, issued or directed the issue of, as the case may be, in and in relation to the proceeding; (d) remedies, orders and writs granted, made or issued by the Court in and in relation to the proceeding have effect, and may be enforced by the Court, as if they had been granted, made or issued by the Federal Court; (e) appeals lie from judgments of the Court given in and in relation to the proceeding as if the judgments were judgments of the Federal Court constituted by a single Judge, and do not otherwise lie; and (f) subject to paragraphs (a) to (e) (inclusive), this Act, the Federal Court of Australia Act 1976, and other laws of the Commonwealth, apply in and in relation to the proceeding as if:
(iii) issue, and direct the issue of, writs of such kinds;
(i) a reference to the Federal Court (other than in the expression "the Court or a Judge") included a reference to the Federal Circuit and Family Court of Australia (Division 1);
(ii) a reference to a Judge of the Federal Court (other than in the expression "the Court or a Judge") included a reference to a Judge of the Federal Circuit and Family Court of Australia (Division 1);
(iii) a reference to the expression "the Court or a Judge" when used in relation to the Federal Court included a reference to a Judge of the Federal Circuit and Family Court of Australia (Division 1) sitting in Chambers;
(iv) a reference to a Registrar included a reference to a Registrar of the Federal Circuit and Family Court of Australia (Division 1); and
(v) any other necessary changes were made.
Note:
Rules of Court made under Chapter 3 of the Federal Circuit and Family Court of Australia Act 2021 (rather than Rules of Court made under the Federal Court of Australia Act 1976) apply in relation to proceedings transferred to the Federal Circuit and Family Court of Australia (Division 1) under this section.
Where any difficulty arises in the application of paragraphs (3)(c), (d) and (f) in or in relation to a particular proceeding, the Federal Circuit and Family Court of Australia (Division 1) may, on the application of a party to the proceeding or of its own motion, give such directions, and make such orders, as it considers appropriate to resolve the difficulty.
An appeal does not lie from a decision of the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) in relation to the transfer of a proceeding under this Act to the Federal Circuit and Family Court of Australia (Division 1).
Sections 27, 35 (other than subsection (1A)) and 35A apply to the Family Court of Western Australia in a corresponding way to the way in which they apply to the Federal Circuit and Family Court of Australia (Division 1).
Despite subsection (1), section 35A does not apply to the Family Court of Western Australia in relation to a de facto financial cause (within the meaning of the Family Law Act 1975).
Paragraph 35A(3)(f) has effect, in relation to a proceeding transferred to the Family Court of Western Australia, as if: (a) each reference in subparagraph 35A(3)(f)(ii) or (iii) to a Judge of the Federal Circuit and Family Court of Australia (Division 1) were a reference to a judge of the Family Court of Western Australia; and (b) the reference in subparagraph 35A(3)(f)(iv) to a Registrar of the Federal Circuit and Family Court of Australia (Division 1) were a reference to a registrar of the Family Court of Western Australia.
An order of the Court made, or a warrant issued, under this Act may be enforced throughout Australia by a constable.
36(2) [Warrant may be issued]A warrant for the arrest or detention of a person for the purpose of giving effect to an order of committal or a sentence of imprisonment made or imposed by the Court under this Act may be issued under the seal of the Court.
Where the Court commits a person to prison under this Act, the committal may be to such prison as the Court thinks fit.
SECTION 37 POWER OF COURT TO RESCIND ORDERS ETC. 37(1) [Power]Subject to subsection (2), the Court may rescind, vary or discharge an order made by it under this Act or may suspend the operation of such an order.
The Court does not have power to rescind or discharge, or to suspend the operation of:
(a) a sequestration order; or
(b) an order for the administration of the estate of a deceased person under Part XI.
(Omitted by No 9 of 1992, s 8.) SECTION 38 38 (OMITTED)
(Omitted by No 44 of 1996, Sch 1, Pt 1(101).) SECTION 39 39 (REPEALED)
(Repealed by No 161 of 1976, s 6(1).) PART IV - PROCEEDINGS IN CONNEXION WITH BANKRUPTCY Division 1 - Acts of bankruptcy SECTION 40 ACTS OF BANKRUPTCY 40(1)
A debtor commits an act of bankruptcy in each of the following cases:
(a) if in Australia or elsewhere he or she makes a conveyance or assignment of his or her property for the benefit of his or her creditors generally;
(b) if in Australia or elsewhere:
(i) he or she makes a conveyance, transfer, settlement or other disposition of his or her property or of any part of his or her property;
(ii) he or she creates a charge on his or her property or on any part of his or her property;
(iii) he or she makes a payment; or
that would, if he or she became a bankrupt, be void as against the trustee;
(iv) he or she incurs an obligation;
(c) if, with intent to defeat or delay his or her creditors:
(i) he or she departs or remains out of Australia;
(ii) he or she departs from his or her dwelling-house or usual place of business;
(iii) he or she otherwise absents himself or herself; or
(iv) he or she begins to keep house;
(d) if:
(i) execution has been issued against him or her under process of a court and any of his or her property has, in consequence, either been sold by the sheriff or held by the sheriff for 21 days; or
(ii) execution has been issued against him or her under process of a court and has been returned unsatisfied;
(daa) if the debtor presents a debtor's petition under this Act;
(da) if the debtor presents to the Official Receiver a declaration under section 54A;
(e) if, at a meeting of any of his or her creditors:
(i) he or she consents to present a debtor's petition under this Act and does not, within 7 days from the date on which he or she so consented, present the petition; or
(ii) he or she consents to sign an authority under section 188 and does not, within 7 days from the date on which he or she so consented, sign such an authority and inform the chair of the meeting, in writing, of the name of the person in whose favour the authority has been signed;
(f) if, at a meeting of any of his or her creditors, he or she admits that he or she is in insolvent circumstances and, having been requested by a resolution of the creditors to bring his or her affairs under the provisions of this Act, he or she does not, within 7 days from the date of the meeting, either:
(i) present a debtor's petition; or
(ii) sign an authority under section 188 and inform the chair of the meeting, in writing, of the name of the person in whose favour the authority has been signed;
(g) if a creditor who has obtained against the debtor a final judgment or final order, being a judgment or order the execution of which has not been stayed, has served on the debtor in Australia or, by leave of the Court, elsewhere, a bankruptcy notice under this Act and the debtor does not:
(i) where the notice was served in Australia - within the time fixed for compliance with the notice; or
comply with the requirements of the notice or satisfy the Court that he or she has a counter-claim, set-off or cross demand equal to or exceeding the amount of the judgment debt or sum payable under the final order, as the case may be, being a counter-claim, set-off or cross demand that he or she could not have set up in the action or proceeding in which the judgment or order was obtained;
(ii) where the notice was served elsewhere - within the time specified by the order giving leave to effect the service;
(h) if he or she gives notice to any of his or her creditors that he or she has suspended, or that he or she is about to suspend, payment of his or her debts;
(ha) if the debtor gives the Official Receiver a debt agreement proposal;
(hb) if a debt agreement proposal given by the debtor to the Official Receiver is accepted by the debtor's creditors;
(hc) if the debtor breaches a debt agreement;
(hd) if a debt agreement to which the debtor was a party (as a debtor) is terminated under section 185P, 185Q or 185QA;
(i) if he or she signs an authority under section 188;
(j) if a meeting of his or her creditors is called in pursuance of such an authority;
(k) if, without sufficient cause, he or she fails to attend a meeting of his or her creditors called in pursuance of such an authority;
(l) if, having been required by a special resolution of a meeting of his or her creditors so called to execute a personal insolvency agreement or to present a debtor's petition, he or she fails, without sufficient cause:
(i) to comply with the requirements of this Act as to the execution of the agreement by him or her; or
as the case may be;
(ii) to present a debtor's petition within the time specified in the resolution;
(m) if a personal insolvency agreement executed by him or her under Part X is:
(i) set aside by the Court; or
(ii) terminated;
(n) if a composition or scheme of arrangement accepted by the debtor's creditors under Division 6 of Part IV is:
(i) set aside by the Court; or
(ii) terminated;
(o) if the debtor becomes insolvent as a result of one or more transfers of property in accordance with:
(i) a financial agreement (within the meaning of the Family Law Act 1975); or
(ii) a Part VIIIAB financial agreement (within the meaning of the Family Law Act 1975);
to which the debtor is a party.
In calculating for the purposes of subparagraph (1)(d)(i) the period for which property has been held by the sheriff, any time between the date on which an interpleader summons in respect of the property is taken out and the date on which the proceedings on the summons are finally disposed of, settled or discontinued shall not be taken into account. 40(3)
For the purposes of paragraph (1)(g):
(a) where leave is given by a court to enforce an award made on a submission to arbitration, being an award under which money is payable by a debtor to another person:
(i) the award shall be deemed to be a final order obtained by that person against the debtor; and
(ii) the arbitration proceedings shall be deemed to be the proceeding in which that final order was obtained;
(b) a judgment or order that is enforceable as, or in the same manner as, a final judgment obtained in an action shall be deemed to be a final judgment so obtained and the proceedings in which, or in consequence ofwhich, the judgment or order was obtained shall be deemed to be the action in which it was obtained;
(c) (Omitted by No 44 of 1996, Sch 1, Pt 1(107).)
(d) a person who is for the time being entitled to enforce a final judgment or final order for the payment of money shall be deemed to be a creditor who has obtained a final judgment or final order;
(e) a judgment or order for the payment of money made by the Court in the exercise of jurisdiction conferred on it by this Act shall be deemed to be a judgment or order the execution of which has not been stayed notwithstanding that it may not be enforceable at law by execution; and
(f) an order made after the commencement of this paragraph under the Family Law Act 1975 for the payment by a person of arrears of maintenance for another person shall be deemed to be a final order against the first-mentioned person obtained by the other person.
The act of bankruptcy specified in paragraph (1)(j) shall be deemed to be committed on the day on which the notices calling the meeting are delivered or sent to the creditors or, if they are not all delivered or sent on the one day, on the day on which the last of the notices is so delivered or sent.
The act of bankruptcy specified in paragraph (1)(l) shall be deemed to be committed on the day after the day on which the period within which the agreement is required to be executed by the debtor or the period within which the petition is required to be presented, as the case may be, expires.