Bankruptcy Act 1966

PART IV - PROCEEDINGS IN CONNEXION WITH BANKRUPTCY  

Division 1 - Acts of bankruptcy  

SECTION 41   BANKRUPTCY NOTICES  

41(1)    

An Official Receiver may issue a bankruptcy notice on the application of a creditor who has obtained against a debtor:

(a) a final judgment or final order that:

(i) is of the kind described in paragraph 40(1)(g) ; and

(ii) is for an amount of at least the statutory minimum; or

(b) 2 or more final judgments or final orders that:

(i) are of the kind described in paragraph 40(1)(g) ; and

(ii) taken together are for an amount of at least the statutory minimum.

41(2)    
The notice must be in accordance with the form prescribed by the regulations.

41(2A)    

The notice must specify a period for compliance with the notice. That period must be:

(a) if the notice is to be served in Australia - the statutory period after the debtor is served with the notice; or

(b) if the notice is to be served elsewhere - the period specified by the order of the Court giving leave to effect the service.

41(2A) - (2C)    
(Omitted by No 44 of 1996, Sch 1, Pt 1(111).)

41(3)    
A bankruptcy notice shall not be issued in relation to a debtor:

(a) except on the application of a creditor who has obtained against the debtor a final judgment or final order within the meaning of paragraph 40(1)(g) or a person who, by virtue of paragraph 40(3)(d) , is to be deemed to be such a creditor;

(b) if, at the time of the application for the issue of the bankruptcy notice, execution of a judgment or order to which it relates has been stayed; or

(c) in respect of a judgment or order for the payment of money if:

(i) a period of more than 6 years has elapsed since the judgment was given or the order was made; or

(ii) the operation of the judgment or order is suspended under section 37 .

41(4)    
(Omitted by No 44 of 1996, Sch 1, Pt 1(112).)

41(5)    

A bankruptcy notice is not invalidated by reason only that the sum specified in the notice as the amount due to the creditor exceeds the amount in fact due, unless the debtor, within the time fixed for compliance with the notice, gives notice to the creditor that he or she disputes the validity of the notice on the ground of the misstatement.

41(6)    

Where the amount specified in a bankruptcy notice exceeds the amount in fact due and the debtor does not give notice to the creditor in accordance with subsection (5), he or she shall be deemed to have complied with the notice if, within the time fixed for compliance with the notice, he or she takes such action as would have constituted compliance with the notice if the amount due had been correctly specified in it.

41(6A)    

Where, before the expiration of the time fixed for compliance with a bankruptcy notice:

(a) proceedings to set aside a judgment or order in respect of which the bankruptcy notice was issued have been instituted by the debtor; or

(b) an application has been made to the Court to set aside the bankruptcy notice;

the Court may, subject to subsection (6C), extend the time for compliance with the bankruptcy notice.

41(6B)    
(Omitted by No 44 of 1996, Sch 1, Pt 1(115).)

41(6C)    
Where:

(a) a debtor applies to the Court for an extension of the time for complying with a bankruptcy notice on the ground that proceedings to set aside a judgment or order in respect of which the bankruptcy notice was issued have been instituted by the debtor; and

(b) the Court is of the opinion that the proceedings to set aside the judgment or order:

(i) have not been instituted bona fide ; or

(ii) are not being prosecuted with due diligence;

the Court shall not extend the time for compliance with the bankruptcy notice.

41(7)    

Where, before the expiration of the time fixed for compliance with a bankruptcy notice, the debtor has applied to the Court for an order setting aside the bankruptcy notice on the ground that the debtor has such a counter-claim, set-off or cross demand as is referred to in paragraph 40(1)(g) , and the Court has not, before the expiration of that time, determined whether it is satisfied that the debtor has such a counter-claim, set-off or cross demand, that time shall be deemed to have been extended, immediately before its expiration, until and including the day on which the Court determines whether it is so satisfied.

41(8) - (9)    
(Omitted by No 44 of 1996, Sch 1, Pt 1(119).)