PART X
-
PERSONAL INSOLVENCY AGREEMENTS
History
Pt X heading substituted by No 80 of 2004, s 3 and Sch 1 item 44, effective 1 December 2004. No 80 of 2004, s 3 and Sch 1 items 212, 213 and 215 contained the following transitional provisions:
212 Transitional
-
pre-commencement deeds and compositions
(1)
For the purposes of this item, if a deed of assignment or a deed of arrangement was executed by a debtor and a trustee under Part X of the
Bankruptcy Act 1966
before 1 December 2004, the deed is a
pre-commencement deed
.
(2)
For the purposes of this item, if a composition was accepted before 1 December 2004 by a special resolution of a meeting of creditors under section 204 of the
Bankruptcy Act 1966
, the composition is a
pre-commencement composition
.
(3)
Despite the repeals and amendments made by Parts 1 and 2 of this Schedule:
(a)
the
Bankruptcy Act 1966
and regulations under that Act; and
(b)
the Acts amended by Part 2 of this Schedule;
continue to apply, in relation to:
(c)
a pre-commencement deed; and
(d)
a pre-commencement composition; and
(e)
any matter connected with, or arising out of:
(i)
a pre-commencement deed; or
(ii)
a pre-commencement composition;
as if those repeals had not happened and those amendments had not been made.
213 Transitional
-
pre-commencement authorities
(1)
For the purposes of this item, if:
(a)
an authority given by a debtor under section 188 of the
Bankruptcy Act 1966
became effective before 1 December 2004; and
(b)
as at 1 December 2004, none of the following had happened:
(i)
the execution by the debtor and the trustee of a deed of assignment under Part X of the
Bankruptcy Act 1966
;
(ii)
the execution by the debtor and the trustee of a deed of arrangement under Part X of the
Bankruptcy Act 1966
;
(iii)
the acceptance of a composition by a special resolution of a meeting of the debtor
'
s creditors under section 204 of the
Bankruptcy Act 1966
;
the authority is a
pre-commencement authority
.
(2)
Despite the repeals and amendments made by Parts 1 and 2 of this Schedule:
(a)
the
Bankruptcy Act 1966
and regulations under that Act; and
(b)
the Acts amended by Part 2 of this Schedule;
continue to apply, in relation to:
(c)
a pre-commencement authority; and
(d)
the control of the debtor
'
s property following a pre-commencement authority becoming effective; and
(e)
a meeting of the debtor
'
s creditors called under a pre-commencement authority; and
(f)
whichever of the following is applicable:
(i)
a deed of assignment executed after 1 December 2004 by the debtor and the trustee under Part X of the
Bankruptcy Act 1966
in accordance with a special resolution of such a meeting;
(ii)
a deed of arrangement executed after 1 December 2004 by the debtor and the trustee under Part X of the
Bankruptcy Act 1966
in accordance with a special resolution of such a meeting;
(iii)
a composition accepted after 1 December 2004 by a special resolution of such a meeting; and
(g)
any other matter connected with, or arising out of:
(i)
a pre-commencement authority; or
(ii)
a deed of assignment mentioned in subparagraph (f)(i); or
(iii)
a deed of arrangement mentioned in subparagraph (f)(ii); or
(iv)
a composition mentioned in subparagraph (f)(iii);
as if those repeals had not happened and those amendments had not been made.
…
215 Transitional
-
regulations
(1)
The regulations may make provision for matters of a transitional nature arising from the amendments made by Parts 1 and 2 of this Schedule.
(2)
The Governor-General may make regulations for the purposes of subitem (1).
Part X heading formerly read:
PART X
-
ARRANGEMENTS WITH CREDITORS WITHOUT SEQUESTRATION
Division 2
-
Meeting of creditors and control of debtor
'
s property
SECTION 188
DEBTOR MAY AUTHORISE TRUSTEE OR SOLICITOR TO BE CONTROLLING TRUSTEE
188(1)
A debtor who desires that his or her affairs be dealt with under this Part without his or her estate being sequestrated and:
(a)
is personally present or ordinarily resident in Australia;
(b)
has a dwelling-house or place of business in Australia;
(c)
is carrying on business in Australia, either personally or by means of an agent or manager; or
(d)
is 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;
may sign an authority in accordance with the approved form naming and authorising a registered trustee, a solicitor or the Official Trustee to call a meeting of the debtor
'
s creditors and to take control of the debtor
'
s property.
[
CCH Note: Modification Declaration FRLI No F2021L00261
(
Bankruptcy Regulations 2021
: FRLI No F2021L00261, registered on 19 March 2021 and effective from 1 April 2021.)
Subsection 188(1) of the Act is modified by substituting
"
If each joint debtor is a person
"
for
"
A debtor
"
and inserting
"
the joint debtors
"
before
"
may sign
"
.]
History
S 188(1) amended by No 12 of 1980, s 102; No 44 of 1996, Sch 1, Pt 1(326) and (327).
188(2)
An authority signed by a debtor under this section is not effective for the purposes of this Part unless:
(a)
if the person authorised is a registered trustee or solicitor
-
the person has consented in writing to exercise the powers given by the authority; and
(aa)
if the person authorised is the Official Trustee
-
an Official Receiver has given the debtor written approval to name the Official Trustee in the authority.
History
S 188(2) amended by No 34 of 2006, s 3 and Sch 4 items 11 and 12, by repealing para (b), effective 3 May 2006. Para (b) formerly read:
(b)
the signature of the debtor to the authority and the signature of the trustee or solicitor to the consent are each attested by a witness.
S 188(2) amended by No 119 of 1987, s 62(1); No 44 of 1996, Sch 1, Pt 1(328)
-
(330).
188(2AA)
If the person authorised is a registered trustee or a solicitor, then, before the person consents to exercise the powers given by the authority, the person must give the debtor the information prescribed by the regulations.
[
CCH Note: Modification Declaration FRLI No F2021L00261
(
Bankruptcy Regulations 2021
: FRLI No F2021L00261, registered on 19 March 2021 and effective from 1 April 2021.)
Subsections 188(2AA) and (2AB) of the Act are modified by substituting
"
each joint debtor
"
for
"
the debtor
"
.]
History
S 188(2AA) inserted by No 80 of 2004, s 3 and Sch 1 item 52, effective 1 December 2004. For transitional provisions, see note under Part X heading.
188(2AB)
If the person authorised is the Official Trustee, then, before the Official Receiver gives approval to name the Official Trustee in the authority, the Official Receiver must give the debtor the information prescribed by the regulations.
[
CCH Note: Modification Declaration FRLI No F2021L00261
(
Bankruptcy Regulations 2021
: FRLI No F2021L00261, registered on 19 March 2021 and effective from 1 April 2021.)
Subsections 188(2AA) and (2AB) of the Act are modified by substituting
"
each joint debtor
"
for
"
the debtor
"
.]
History
S 188(2AB) inserted by No 80 of 2004, s 3 and Sch 1 item 52, effective 1 December 2004. For transitional provisions, see note under Part X heading.
188(2A)
The regulations may prescribe the circumstances in which a person (other than the Official Trustee or a registered trustee) is ineligible to act as a controlling trustee under this Part.
History
S 188(2A) inserted by No 131 of 2002, s 3 and Sch 1 items 169 and 233, applicable to authorities that are signed after 5 May 2003.
188(2B)
An authority signed by a debtor under this section is not effective for the purposes of this Part if, at the time the authority is signed, the person authorised:
(a)
is not the Official Trustee or a registered trustee; and
(b)
is ineligible, under the regulations, to act as a controlling trustee under this Part.
History
S 188(2B) inserted by No 131 of 2002, s 3 and Sch 1 items 169 and 233, applicable to authorities that are signed after 5 May 2003.
188(2C)
If the person authorised is a registered trustee or solicitor, the authority signed by the debtor under this section is not effective for the purposes of this Part unless, before the person authorised consents to exercise the powers given by the authority, the debtor gives to the person authorised:
(a)
a statement of the debtor
'
s affairs; and
(b)
a proposal for dealing with them under this Part.
Note:
Section
6A
sets out requirements for statements of affairs.
[
CCH Note: Modification Declaration FRLI No F2021L00261
(
Bankruptcy Regulations 2021
: FRLI No F2021L00261, registered on 19 March 2021 and effective from 1 April 2021.)
Subsections 188(2C) and (2D) of the Act are modified by substituting
"
each joint debtor
"
for
"
the debtor
"
(second occurring).]
History
S 188(2C) inserted by No 80 of 2004, s 3 and Sch 1 item 53, effective 1 December 2004. For transitional provisions, see note under Part X heading.
188(2D)
If the person authorised is the Official Trustee, the authority signed by the debtor under this section is not effective for the purposes of this Part unless, before an Official Receiver gives approval to name the Official Trustee in the authority, the debtor gives to the Official Receiver:
(a)
a statement of the debtor
'
s affairs; and
(b)
a proposal for dealing with them under this Part.
Note:
Section
6A
sets out requirements for statements of affairs.
[
CCH Note: Modification Declaration FRLI No F2021L00261
(
Bankruptcy Regulations 2021
: FRLI No F2021L00261, registered on 19 March 2021 and effective from 1 April 2021.)
Subsections 188(2C) and (2D) of the Act are modified by substituting
"
each joint debtor
"
for
"
the debtor
"
(second occurring).]
History
S 188(2D) inserted by No 80 of 2004, s 3 and Sch 1 item 53, effective 1 December 2004. For transitional provisions, see note under Part X heading.
188(2E)
A proposal for dealing with the debtor
'
s affairs under this Part must include a draft personal insolvency agreement.
Note:
Section
188A
sets out requirements for personal insolvency agreements.
History
S 188(2E) inserted by No 80 of 2004, s 3 and Sch 1 item 53, effective 1 December 2004. For transitional provisions, see note under Part X heading.
188(3)
An authority under this section that is effective for the purposes of this Part is not revocable by the debtor.
188(4)
Subject to subsection
192(1)
, a debtor cannot give an authority within 6 months of giving another authority, unless the Court grants leave to do so.
[
CCH Note: Modification Declaration FRLI No F2021L00261
(
Bankruptcy Regulations 2021
: FRLI No F2021L00261, registered on 19 March 2021 and effective from 1 April 2021.)
Subsection 188(4) of the Act is modified by inserting
"
joint
"
before
"
debtor
"
.]
History
S 188(4) inserted by No 12 of 1980, s 102; amended by No 119 of 1987, s 62(1); substituted by No 44 of 1996, Sch 1, Pt 1(331).
188(5)
A registered trustee or solicitor who consents to exercise the powers given by an authority must, within 2 business days of consenting, give a copy of:
(a)
the authority; and
(b)
the debtor
'
s statement of affairs;
to the Official Receiver.
History
S 188(5) amended by No 11 of 2016, s 3 and Sch 1 item 70, by substituting
"
business days
"
for
"
working days
"
, effective 1 March 2017.
S 188(5) amended by No 106 of 2010, Sch 3 item 16, by omitting
"
for the District in which the debtor resides
"
, commenced 15 July 2010.
No 106 of 2010, Sch 3[17(1)] contains the following transitional provision:
17 Transitional
(1)
A person who is an Official Receiver for a District immediately before the commencement of this item is taken to have been appointed, at the commencement of this item, under section 16 of the
Bankruptcy Act 1966
as an Official Receiver.
S 188(5) and (5A) substituted for s 188(5) by No 80 of 2004, s 3 and Sch 1 item 54, effective 1 December 2004. For transitional provisions, see note under Part X heading. S 188(5) formerly read:
188(5)
A registered trustee or solicitor who consents to exercise the powers given by an authority must, within 14 days of consenting, give a copy of the authority to the Official Receiver for the District in which the debtor resides.
S 188(5) inserted by No 44 of 1996, Sch 1, Pt 1(331).
188(5A)
(Repealed by No 11 of 2016)
History
S 188(5A) repealed by No 11 of 2016, s 3 and Sch 1 item 71, effective 1 March 2017. S 188(5A) formerly read:
188(5A)
For the purposes of subsection (5), a
working day
is a day that is not a Saturday, Sunday or public holiday in the place where the registered trustee or solicitor consented to exercise the powers given by the authority.
S 188(5) and (5A) substituted for s 188(5) by No 80 of 2004, s 3 and Sch 1 item 54, effective 1 December 2004. For transitional provisions, see note under Part X heading.
188(6)
When an authority becomes effective, the person authorised by it becomes the controlling trustee.
History
S 188(6) inserted by No 44 of 1996, Sch 1, Pt 1(331).
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