Bankruptcy Act 1966

PART IV - PROCEEDINGS IN CONNEXION WITH BANKRUPTCY  

Division 3 - Debtors ' petitions  

SECTION 57   DEBTOR ' S PETITION BY JOINT DEBTORS WHO ARE NOT PARTNERS  

57(1)    
Where joint debtors are not in partnership with one another, the debtors, or any 2 or more of the debtors, may present to the Official Receiver a petition jointly against themselves.

57(2)    
A petition under this section shall be in accordance with the approved form and shall be accompanied by:

(a)    a statement of affairs of each of the petitioning debtors;

(b)    a statement of their joint affairs; and

(c)    a copy of each of those statements.

57(2A)    

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

57(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 all the statements of affairs required by subsection (2) ; or

(c)    

both:

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

(ii) an updated statement of affairs has not been filed for the purposes of whichever of those paragraphs is applicable within the period specified in the notice.

57(3AA)    

The Official Receiver may reject a debtor ' s petition (the current petition ) if the following conditions are satisfied for at least one of the petitioning debtors:

(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 debtor ' s statement of affairs;

(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.

57(3AB)    

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

57(3AC)    

An application may be made to the Administrative Review Tribunal for the review of a decision by the Official Receiver to reject a petition under subsection (3AA) .

57(3A)    
Before accepting a debtor ' s petition against joint debtors, the Official Receiver must give each petitioning debtor the information prescribed by the regulations.

57(3B)    
The Official Receiver must refer a debtor ' s petition to the Court for a direction to accept or reject it if there is at least one creditor ' s petition that:

(a)    is pending against at least one of the debtors (whether or not the creditor ' s petition also relates to other persons); and

(b)    does not relate only to all the joint debtors who presented the debtor ' s petition.

Example 1: Peta and Abdul are joint debtors. When they present a debtor ' s petition against themselves, there is a creditor ' s petition pending against Abdul. The Official Receiver must refer the debtor ' s petition to the Court, because the creditor ' s petition does not relate to both Peta and Abdul.

Example 2: Joan and Craig are joint debtors. When they present a debtor ' s petition against themselves, there is a creditor ' s petition pending against Joan, Craig and Paul. The Official Receiver must refer the debtor ' s petition to the Court.

Example 3: Kim, Robin and Jane are joint debtors. When they present a debtor ' s petition against themselves, there is a creditor ' s petition pending against Kim, Robin and Jane, and no-one else. The Official Receiver is not required to refer the debtor ' s petition to the Court.

57(3C)    
If the Court directs the Official Receiver to accept the debtor ' s petition, the Court must specify the time of the commencement of each bankruptcy that results from acceptance of the debtor ' s petition.

57(4)    
The Official Receiver must accept a debtor ' s petition, unless the Official Receiver rejects it under subsection (3) or is directed by the Court to reject it.

57(5)    
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, each of the petitioning debtors becomes a bankrupt by force of this section and by virtue of presentation of the petition.

57(5A)    
(Omitted by No 21 of 1985, s 19.)

57(6)    
If a registered trustee is the trustee of the estate of a person 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 each statement of affairs that accompanied the debtor ' s petition.

57(6A)    
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.

57(7)    

A debtor who has executed a personal insolvency agreement is not entitled to join in presenting a petition under this section 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; or

(d)    the Court grants leave for the debtor to join in presenting a petition under this section.

57(8)    
A debtor in relation to whom a stay under a proclaimed law applies is not, except with the leave of the Court, entitled to join in presenting a petition under this section.

57(9)    
Where a petition is presented in contravention of subsection (6A) , (7) or (8) , the presentation of the petition does not have any effect.

57(10)    
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.)

57(11)    

A person who states in writing that he or she is a creditor of a bankrupt who has become a bankrupt by virtue of the presentation of a debtor ' s petition against joint debtors, or a creditor of joint debtors some or all of whom have become bankrupts 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, any statement of affairs that accompanied the petition presented by the joint debtors, and may obtain a copy of, or take extracts from, any such statement of affairs.

57(12)    

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

(a)    inspect any statement of affairs that accompanied the petition; and

(b)    obtain a copy of, or make extracts from, any statement of affairs that accompanied the petition.

57(13)    

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 a petitioning debtor or an agent of a petitioning debtor).

57(14)    

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