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 3
-
General provisions
SECTION 230
RELEASE OF PROVABLE DEBTS
230(1)
[Effect of release provisions]
If a personal insolvency agreement provides for a debtor to be released from a provable debt, the agreement operates to release the debtor from that provable debt unless the agreement is set aside or terminated under this Part.
230(2)
[Effect conditional]
Subsection (1) has effect subject to subsections (3), (4) and (5).
230(3)
Exceptions.
Subsection (1) does not operate to release the debtor from a debt that would not be released by his or her discharge from bankruptcy if he or she had become a bankrupt on the day on which he or she executed the personal insolvency agreement.
230(4)
[Creditor
'
s other rights]
Subsection (1) does not affect the right of a secured creditor, or a person claiming through or under a secured creditor, to realise or otherwise deal with the creditor
'
s security:
(a)
if the secured creditor has not proved under the agreement for any part of the secured debt
-
for the purpose of obtaining payment of the secured debt; or
(b)
if the secured creditor has proved under the agreement for part of the secured debt
-
for the purpose of obtaining payment of the part of the secured debt for which the creditor has not proved under the agreement;
and, for the purposes of enabling the secured creditor, or a person claiming through or under a secured creditor, so to realise or deal with the creditor
'
s security, but not otherwise, the secured debt, or the part of the secured debt, as the case may be, is taken not to have been released.
230(5)
[Certain associates of debtor]
A personal insolvency agreement does not release from any liability a person who, at the date on which the debtor executed the agreement, was:
(a)
a partner or a co-trustee with the debtor; or
(b)
jointly bound or had made a joint contract with the debtor; or
(c)
surety or in the nature of a surety for the debtor.
History
S 230 inserted by No 80 of 2004, s 3 and Sch 1 item 155, effective 1 December 2004. For transitional provisions, see note under Part X heading.
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