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 188A
PERSONAL INSOLVENCY AGREEMENT
Requirements for a personal insolvency agreement
188A(1)
A personal insolvency agreement is a deed that:
(a)
is expressed to be entered into under this Part; and
(b)
complies with subsection
(2)
.
188A(2)
A personal insolvency agreement must:
(a)
identify the debtor
'
s property (whether or not already owned by the debtor when he or she executes the agreement) that is to be available to pay creditors
'
claims; and
(b)
specify how the property is to be dealt with; and
(c)
identify the debtor
'
s income (whether or not already derived by the debtor when he or she executes the agreement) that is to be available to pay creditors
'
claims; and
(d)
specify how the income is to be dealt with; and
(e)
specify the extent (if any) to which the debtor is to be released from his or her provable debts; and
(f)
specify the conditions (if any) for the agreement to come into operation; and
(g)
specify the circumstances in which, or the events on which, the agreement terminates; and
(h)
specify the order in which proceeds of realising the property referred to in paragraph (a) are to be distributed among creditors; and
(i)
specify the order in which income referred to in paragraph (c) is to be distributed among creditors; and
(j)
specify whether or not the antecedent transactions provisions of this Act apply to the debtor; and
(k)
make provision for a person or persons to be trustee or trustees of the agreement; and
(l)
provide that the debtor will execute such instruments and generally do all such acts and things in relation to his or her property and income as is required by the agreement.
[
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 188A(2) of the Act is modified by substituting
"
each joint debtor
'
s property (whether or not already owned by that joint debtor when the joint debtors execute the agreement)
"
for
"
the debtor
'
s property (whether or not already owned by the debtor when he or she executes the agreement)
"
in para (a), substituting
"
each joint debtor
'
s income (whether or not already derived by that joint debtor when the joint debtors execute the agreement)
"
for
"
the debtor
'
s income (whether or not already derived by the debtor when he or she executes the agreement)
"
in para (c) and substituting
"
each joint debtor
"
for
"
the debtor
"
in para (e) and (l).]
188A(3)
Subsection
(2)
does not limit the provisions that may be included in a personal insolvency agreement.
Antecedent transactions provisions
188A(4)
If a personal insolvency agreement specifies that the antecedent transactions provisions of this Act apply to the debtor, sections
120
to
125
apply, with any modifications prescribed by the regulations, in relation to the debtor as if:
(a)
a creditor
'
s petition had been presented against the debtor on the day on which the special resolution requiring the execution of the agreement was passed; and
(b)
a sequestration order had been made against the debtor on that petition on the day on which the debtor executed the agreement; and
(c)
the trustee of the agreement were the trustee in the debtor
'
s bankruptcy.
188A(5)
In the application, by virtue of subsection (4), of the provisions referred to in that subsection:
(a)
a reference to the property of the bankrupt is to be read as a reference to the divisible property of the debtor; and
(b)
a reference to a provable debt is to be read as a reference to a provable debt within the meaning of this Part; and
(c)
a reference to the end of the bankruptcy is to be read as a reference to the end of the personal insolvency agreement.
Definition
188A(6)
In this section:
income
has the meaning given by section
139L
.
History
S 188A and s 188B substituted for s 188A by No 80 of 2004, s 3 and Sch 1 item 55, effective 1 December 2004. For transitional provisions, see note under Part X heading. S 188A formerly read:
188A STATEMENT OF DEBTOR
'
S AFFAIRS AND PROPOSAL FOR DEALING WITH THEM
188A
Within 14 days after an authority under section 188 becomes effective, the debtor must give the controlling trustee a statement of the debtor
'
s affairs and a proposal for dealing with them under this Part.
S 188A inserted by No 44 of 1996, Sch 1, Pt 1(332).
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