Bankruptcy Regulations 2021

PART 8 - TRUSTEES  

Division 2 - Controlling trustees other than Official Trustee or registered trustees  

SECTION 49   INELIGIBILITY OF CERTAIN PERSONS TO ACT AS CONTROLLING TRUSTEE  
Prescribed circumstances

49(1)    
For the purposes of subsection 188(2A) of the Act, a person (other than the Official Trustee or a registered trustee) is ineligible to act under Part X of the Act as a controlling trustee in relation to a debtor in any of the following circumstances:

(a)    the person is or was convicted of an offence involving fraud or dishonesty at any time during the 10 year period ending on the day the debtor signs an authority under subsection 188(1) of the Act purportedly naming and authorising the person;

(b)    the person is not insured against the liabilities the person may become subject to as a controlling trustee;

(c)    the person is a solicitor who does not hold an Australian practising certificate (within the meaning of the Evidence Act 1995 );

(d)    the person is or was an insolvent under administration at any time during the 10 year period ending on the day the debtor signs an authority under subsection 188(1) of the Act purportedly naming and authorising the person;

(e)    a determination under subsection (3) of this section is in force in relation to the person;

(f)    both of the following apply:

(i) the person is not a full member of the Australian Restructuring Insolvency and Turnaround Association;

(ii) the person has not satisfactorily completed a course in insolvency approved by the Inspector-General.

49(2)    
For the purposes of subparagraph (1)(f)(ii), the Inspector-General may approve a course in insolvency by notice published on the Australian Financial Security Authority ' s website.

Determination by Inspector-General

49(3)    
The Inspector-General may make a determination under this subsection in relation to a person if:

(a)    the person is, or has been, a controlling trustee; and

(b)    the Inspector-General is satisfied that the person:

(i) has failed to properly exercise the powers, or carry out the duties, of a controlling trustee; or

(ii) has refused or failed to cooperate with the Inspector-General in an inquiry or investigation under paragraph 12(1)(b) of the Act.

49(4)    
Before making a determination under subsection (3) in relation to a person, the Inspector-General must:

(a)    give the person a written notice that:

(i) specifies the grounds on which the Inspector-General proposes to make the determination; and

(ii) invites the person to give the Inspector-General, within 20 business days after the day the notice is given or such longer time as is specified in the notice, a written statement showing cause why the determination should not be made; and

(b)    consider the person ' s written statement (if any).

49(5)    
If the Inspector-General makes a determination under subsection (3) in relation to a person, the Inspector-General must give the person a written notice stating the following:

(a)    that the Inspector-General has made a determination under subsection (3) in relation to the person;

(b)    the reasons for the determination.