Bankruptcy Act 1966
Subject to this section, where:
(a) a debt of not less than the statutory minimum was owing by a deceased person at the time of his or her death to a creditor, or debts amounting in the aggregate to not less than that amount were so owing to any 2 or more creditors;
(b) a debt incurred by the legal personal representative of a deceased person of not less than the statutory minimum is owing to a creditor, or debts so incurred amounting in the aggregate to not less than that amount are owing to any 2 or more creditors; or
(c) a debt of not less than the statutory minimum, or debts amounting in the aggregate to not less than that amount, which a deceased person would have been liable to pay to a creditor or any 2 or more creditors if he or she had not died becomes or become owing after his or her death;
the creditor or creditors to whom the debt or debts is or are owing may present a petition to the Court for an order for the administration of the estate of the deceased person (in this section referred to as the deceased debtor ) under this Part.
S 244(1) amended by No 22 of 2020, s 3 and Sch 12 item 14, by substituting " the statutory minimum " for " $5,000 " in para (a) to (c), applicable to the following: (a) bankruptcy notices issued on or after 25 March 2020; (b) petitions and declarations presented on or after 25 March 2020.
S 244(1) amended by No 106 of 2010, Sch 4 item 3, by substituting " $2,000 " for " $5,000 " in paras (a), (b) and (c), commenced 1 August 2010.
No 106 of 2010, Sch 4 contains the following application provision:
The amendment made by item 3 applies in relation to petitions presented on or after the commencement of that item.
S 244(1) amended by No 12 of 1980, s 136; No 21 of 1985, s 35; No 44 of 1996, Sch 1, Pt 1(382).
Subject to subsection (3), a secured creditor shall, for the purposes of subsection (1), be deemed to be a creditor only to the extent, if any, by which the amount of the debt owing to him or her exceeds the value of his or her security. 244(3)
A secured creditor may present, or join in presenting, a petition under this section as if he or she were an unsecured creditor if he or she includes in the petition a statement that he or she is willing to surrender his or her security for the benefit of creditors generally in the event of an order for the administration of the estate under this Part being made. 244(4)
Where a petitioning creditor is a secured creditor, he or she shall set out in the petition particulars of his or her security. 244(5)
A petition under this section shall be verified by the affidavit of a person who has knowledge of the facts. 244(6)
A petition under this section shall not be presented unless:
(a) the debt, or each of the debts, in respect of which it is presented:
(i) is a liquidated sum due at law or in equity or partly at law and partly in equity; and
(ii) is payable immediately or at a certain future time; and
(b) at the time of his or her death, the deceased debtor:
(i) was personally present or ordinarily resident in Australia;
(ii) had a dwelling-house or place of business in Australia;
(iii) was carrying on business in Australia, either personally or by means of an agent or manager; or
(iv) was a member of a firm or partnership carrying on business in Australia by means of a partner or partners, or of an agent or manager.
Where a secured creditor has presented, or joined in presenting, a petition under this section as if he or she were an unsecured creditor, he or she shall, upon request in writing by the trustee within 3 months after the making of an order for the administration of the estate under this Part, surrender his or her security to the trustee for the benefit of the creditors generally.
S 244(7) amended by No 44 of 1996, Sch 1, Pt 1(383).
A secured creditor to whom subsection (7) applies who fails to surrender his or her security when requested to do so by the trustee in accordance with that subsection is guilty of contempt of court. 244(9)
Subject to subsection (10), a sealed copy of the petition shall be served upon the legal personal representative of the deceased debtor or, if there is no legal personal representative, upon such person as the Court directs. 244(10)
The Court may, if it is satisfied that there is no legal personal representative of the deceased debtor and that there are special circumstances that justify its so doing, by order dispense with service of the petition, either unconditionally or subject to conditions. 244(11)
At the hearing of the petition, the Court shall require proof of:
(a) the matters stated in the petition (for which purpose the Court may accept the affidavit verifying the petition as sufficient);
(b) service of the petition, unless service of the petition has been dispensed with; and
(c) the fact that the debt or debts to which the petition relates is or are still owing;
and if it is satisfied with the proof of those matters, may make an order that the estate be administered under this Part.244(12)
If the Court is not satisfied with the proof of any of those matters or is of the opinion that for other sufficient cause the order sought ought not be made, it may dismiss the petition. 244(13)
Where proceedings have been commenced in a court for the administration of a deceased person ' s estate under a law of a State or Territory, a petition for an order under this section in relation to the estate shall not be presented by a creditor except by leave of the Court and on such terms and conditions (if any) as the Court thinks fit. 244(14)
If the Court makes an order that the estate be administered under this Part, the creditor who obtained the order must, before the end of the period of 2 days beginning on the day the order was made, give a copy of the order to the Official Receiver.
Penalty: 5 penalty units.
See also section 277B (about infringement notices).
S 244(14) amended by No 106 of 2010, Sch 2 item 57, effective 1 December 2010, by inserting
, before the end of the period of 2 days beginning on the day the order was made,
. Sch 2 contains the following application provision:
The amendments made by items 53, 57, 60 and 64 apply in relation to orders made on or after the commencement of those items.
S 244(14) amended by No 106 of 2010, Sch 2 item 58, effective 1 December 2010, by inserting the penalty and the note.
S 244(14) inserted by No 44 of 1996, Sch 1, Pt 1(384).
Subsection (14) is an offence of strict liability.
For strict liability, see section 6.1 of the Criminal Code .
S 244(15) inserted by No 106 of 2010, Sch 2 item 59, effective 1 December 2010.
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