Bankruptcy Act 1966

PART IV - PROCEEDINGS IN CONNEXION WITH BANKRUPTCY  

Division 3 - Debtors ' petitions  

SECTION 55   DEBTOR ' S PETITION  

55(1)    
Subject to this section, a debtor may present to the Official Receiver a petition against himself or herself.

55(2)    
A petition presented by a debtor under this section:

(a)    shall be in accordance with the approved form; and

(b)    shall be accompanied by a statement of the debtor ' s affairs and a copy of that statement.

55(2A)    

The Official Receiver must reject a debtor ' s petition unless, at the time when the petition is presented, the debtor:

(a)    was personally present or ordinarily resident in Australia; or

(b)    had a dwelling-house or place of business in Australia; or

(c)    was carrying on business in Australia, either personally or by means of an agent or manager; or

(d)    was 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.

55(3)    
The Official Receiver may reject a debtor ' s petition if:

(a)    the petition does not comply substantially with the approved form; or

(b)    the petition is not accompanied by a statement of affairs; or

(c)    

both:

(i) the Official Receiver has given the debtor notice under subsection 57B(3) that the Official Receiver has refused to accept a statement of affairs filed for the purposes of paragraph (2)(b) of this section; and

(ii) an updated statement of affairs has not been filed for the purposes of that paragraph within the period specified in the notice.

55(3AA)    

The Official Receiver may reject a debtor ' s petition (the current petition ) if:

(aa)    

the Official Receiver has accepted under subsection 57B(1) a statement of affairs filed by the debtor for the purposes of paragraph (2)(b) of this section; and

(a)    it appears from the information in the statement of affairs (and any additional information supplied by the debtor) that, if the debtor did not become a bankrupt, the debtor would be likely (either immediately or within a reasonable time) to be able to pay all the debts specified in the statement of affairs; and

(b)    at least one of the following applies:

(i) it appears from the information in the statement of affairs (and any additional information supplied by the debtor) that the debtor is unwilling to pay one or more debts to a particular creditor or creditors, or is unwilling to pay creditors in general;

(ii) before the current petition was presented, the debtor previously became a bankrupt on a debtor ' s petition at least 3 times, or at least once in the period of 5 years before presentation of the current petition.

55(3AB)    

The Official Receiver is not required to consider in each case whether there is a discretion to reject under subsection (3AA) .

55(3AC)    

The debtor may apply to the Administrative Review Tribunal for the review of a decision by the Official Receiver to reject a petition under subsection (3AA) .

55(3A)    
Before accepting a debtor ' s petition the Official Receiver must give the debtor the information prescribed by the regulations.

55(3B)    
The Official Receiver must refer a debtor ' s petition to the Court for a direction to accept or reject it if there is a creditor ' s petition pending against a group of debtors (whether they are joint debtors or members of a partnership) that includes the debtor against whom the debtor ' s petition is presented.

Example 1: When Anna presents a debtor ' s petition against herself, there is a creditor ' s petition pending against Anna and Tim as joint debtors. The Official Receiver must refer the debtor ' s petition to the Court.

Example 2: When Peter presents a debtor ' s petition against himself, there are 2 creditor ' s petitions pending against him alone. The Official Receiver is not required to refer the debtor ' s petition to the Court, because Peter does not form a group by himself.

55(3C)    
If the Court directs the Official Receiver to accept the debtor ' s petition, the Court must specify the time of the commencement of the bankruptcy that results from acceptance of the debtor ' s petition.

55(4)    

The Official Receiver must accept a debtor ' s petition, unless the Official Receiver rejects it under this section or is directed by the Court to reject it.

55(4A)    
Where the Official Receiver accepts a petition presented under this section:

(a)    he or she shall endorse the petition accordingly; and

(b)    upon the Official Receiver endorsing the petition, the debtor who presented the petition becomes a bankrupt by force of this section and by virtue of presentation of the petition.

55(5)    
If a registered trustee is the trustee of the estate of a debtor who becomes a bankrupt under this section, the Official Receiver must:

(a)    notify the trustee of the bankruptcy; and

(b)    give the trustee a copy of the statement of affairs that accompanied the debtor ' s petition.

55(5A)    
A debtor who is a party (as debtor) to a debt agreement must not present a debtor ' s petition unless the Court gives the debtor permission to do so.

55(6)    

A debtor who has executed a personal insolvency agreement is not, except with the leave of the Court, entitled to present a petition against himself or herself unless:

(a)    the agreement has been set aside; or

(b)    the agreement has been terminated; or

(c)    all the obligations that the agreement created have been discharged.

55(6A)    
A debtor in relation to whom a stay under a proclaimed law applies is not, except with the leave of the Court, entitled to present a petition against himself or herself.

55(7)    
Where a petition is presented by a debtor against himself or herself in contravention of subsection (5A), (6) or (6A), the debtor does not become a bankrupt by virtue of its presentation.

55(8)    
A person who becomes a bankrupt by force of this section continues to be a bankrupt until:

(a)    

he or she is discharged by force of subsection 149(1) ; or

(b)    his or her bankruptcy is annulled by force of subsection 74(1) or 153A(1) or under section 153B .

(c)    (Omitted by No 143 of 1992, Sch.)

55(9)    

A person who states in writing that he or she is a creditor of a bankrupt who has become a bankrupt by force of this section may without fee, and any other person may on payment of the fee determined by the Minister by legislative instrument, inspect, personally or by an agent, the statement of affairs that accompanied the petition presented by the bankrupt, and may obtain a copy of, or take extracts from, the statement.

55(10)    

A bankrupt who has become a bankrupt by force of this section may, without fee and either personally or by an agent:

(a)    inspect the bankrupt ' s statement of affairs; and

(b)    obtain a copy of, or make extracts from, the bankrupt ' s statement of affairs.

55(11)    

If the approved form for a statement of affairs indicates that particular information in the statement will not be made available to the public, then the Official Receiver must ensure that the information is not made available under this section to any person other than the bankrupt (or an agent of the bankrupt).

55(11A)    

Subsection (11) does not prevent the making available of information as required by law.

55(12)    

The Official Receiver may refuse to allow a person access under this section to particular information in a bankrupt ' s statement of affairs on the ground that access to that information would jeopardise, or be likely to jeopardise, the safety of any person.