PART IV
-
PROCEEDINGS IN CONNEXION WITH BANKRUPTCY
Division 6
-
Composition or arrangement with creditors
[
CCH Note:
Act No 80 of 2004, s 3 and Sch 2 item 12 contained the following transitional provision, effective 1 December 2004:
12 Transitional
-
annulments
(1)
For the purposes of this item, if a composition or scheme of arrangement under Division 6 of Part IV of the
Bankruptcy Act 1966
was annulled before 1 December 2004, the annulment is a
pre-commencement annulment
.
(2)
For the purposes of this item, if:
(a)
an application is made before 1 December 2004 under subsection 75(4) of the
Bankruptcy Act 1966
for the annulment of a composition or scheme of arrangement; and
(b)
as at 1 December 2004, proceedings in relation to that application have not been finally determined;
the application is a
pre-commencement annulment application
.
(3)
Despite the repeals and amendments made by items 1, 2, 3, 7, 8, 9 and 10 of this Schedule and item 41 of Schedule 1, the
Bankruptcy Act 1966
and regulations under that Act continue to apply, in relation to:
(a)
a pre-commencement annulment; and
(b)
a pre-commencement annulment application; and
(c)
an annulment that results from a pre-commencement annulment application;
as if those repeals had not happened and those amendments had not been made.
]
SECTION 73
COMPOSITION OR ARRANGEMENT
73(1)
Where a bankrupt desires to make a proposal to his or her creditors for:
(a)
a composition in satisfaction of his or her debts; or
(b)
a scheme of arrangement of his or her affairs;
he or she may lodge with the trustee a proposal in writing signed by him or her setting out the terms of the proposed composition or scheme of arrangement and particulars of any sureties or securities forming part of the proposal.
[
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 73(1) of the Act is modified by substituting
"
the legal personal representative of a deceased debtor
"
for
"
a bankrupt
"
and substituting
"
the deceased debtor
'
s
"
for
"
his or her
"
(wherever occurring).]
73(1A)
The trustee must, within 2 business days after receiving the proposal, give a copy of the proposal to the Official Receiver.
Penalty: 5 penalty units.
Note:
See also section
277B
(about infringement notices).
History
S 73(1A) amended by No 11 of 2016, s 3 and Sch 1 item 25, by substituting
"
business days
"
for
"
working days
"
, effective 1 March 2017.
S 73(1A) amended by No 106 of 2010, Sch 2 item 10, by inserting the penalty and note at the end, effective 1 December 2010.
S 73(1A) amended by No 106 of 2010, Sch 3 item 12, by omitting
"
for the District in which the bankrupt resides
"
, effective 15 July 2010.
No 106 of 2010, Sch 3[17(1)] contains the following transitional provision:
17 Transitional
(1)
A person who is an Official Receiver for a District immediately before the commencement of this item is taken to have been appointed, at the commencement of this item, under section 16 of the
Bankruptcy Act 1966
as an Official Receiver.
S 73(1A) inserted by No 80 of 2004, s 3 and Sch 2 item 4, applicable to a proposal lodged with a trustee after 1 December 2004.
73(1B)
(Repealed by No 11 of 2016)
History
S 73(1B) repealed by No 11 of 2016, s 3 and Sch 1 item 26, effective 1 March 2017. S 73(1B) formerly read:
73(1B)
For the purposes of subsection (1A), a
working day
is a day that is not a Saturday, Sunday or public holiday in the place in which the bankrupt resides.
S 73(1B) amended by No 106 of 2010, Sch 3 item 13, by substituting
"
District
"
for
"
place
"
, commenced 15 July 2010.
No 106 of 2010, Sch 3[17(1)] contains the following transitional provision:
17 Transitional
(1)
A person who is an Official Receiver for a District immediately before the commencement of this item is taken to have been appointed, at the commencement of this item, under section 16 of the
Bankruptcy Act 1966
as an Official Receiver.
S 73(1B) inserted by No 80 of 2004, s 3 and Sch 2 item 4, applicable to a proposal lodged with a trustee after 1 December 2004.
73(1C)
Subsection
(1A)
is an offence of strict liability.
Note:
For strict liability, see section
6.1
of the
Criminal Code
.
History
S 73(1C) inserted by No 106 of 2010, Sch 2 item 11, effective 1 December 2010.
[
CCH Note: Modification Declaration FRLI No F2021L00261
(
Bankruptcy Regulations 2021
: FRLI No F2021L00261, registered on 19 March 2021 and effective from 1 April 2021.)
Section 73 of the Act is modified by inserting subsection (2):
73(2)
In this section:
legal personal representative
, in relation to a deceased debtor, means:
(a)
the executor under the deceased debtor
'
s will; or
(b)
the administrator under letters of administration or court order;
of the deceased debtor
'
s estate, or a part of that estate.
]
73(2)
(Repealed by No 11 of 2016)
History
S 73(2) repealed by No 11 of 2016, s 3 and Sch 1 item 27, applicable in relation to the administration of regulated debtors
'
estates on and after 1 September 2017. S 73(2) formerly read:
73(2)
The trustee shall call a meeting of creditors and shall send to each creditor before the meeting a copy of the proposal accompanied by a report on it.
73(2A)
(Repealed by No 11 of 2016)
History
S 73(2A) repealed by No 11 of 2016, s 3 and Sch 1 item 27, applicable in relation to the administration of regulated debtors
'
estates on and after 1 September 2017. S 73(2A) formerly read:
73(2A)
The report must indicate whether the proposal would benefit the bankrupt
'
s creditors generally.
S 73(2A) inserted by No 44 of 1996, Sch 1, Pt 1(166).
History
S 73(2A) inserted by No 44 of 1996, Sch 1, Pt 1(166).
73(2AA)
(Repealed by No 11 of 2016)
History
S 73(2AA) repealed by No 11 of 2016, s 3 and Sch 1 item 27, applicable in relation to the administration of regulated debtors
'
estates on and after 1 September 2017. S 73(2AA) formerly read:
73(2AA)
The report must name each creditor who was identified as a related entity of the bankrupt in the bankrupt
'
s statement of affairs.
S 73(2AA) inserted by No 80 of 2004, s 3 and Sch 2 item 5, applicable in relation to a bankrupt
'
s proposal for a composition or scheme of arrangement unless a copy of the trustee
'
s report on the proposal was sent to a creditor before 1 December 2004.
73(2B)
(Repealed by No 11 of 2016)
History
S 73(2B) repealed by No 11 of 2016, s 3 and Sch 1 item 27, applicable in relation to the administration of regulated debtors
'
estates on and after 1 September 2017. S 73(2B) formerly read:
73(2B)
The trustee may refuse to call the meeting if the proposal does not make adequate provision for payment to the trustee of accrued fees that:
(a)
are owing to the trustee (at the time the proposal is lodged) in respect of the administration of the bankrupt
'
s estate, but are not able to be taken out of the bankrupt
'
s estate; and
(b)
have been approved by the creditors before the proposal is considered.
S 73(2B) inserted by No 131 of 2002, s 3 and Sch 1 items 55 and 211, applicable to proposals lodged after 5 May 2003 under subsection 73(1) of the Bankruptcy Act.
73(3)
(Repealed by No 11 of 2016)
History
S 73(3) repealed by No 11 of 2016, s 3 and Sch 1 item 27, applicable in relation to the administration of regulated debtors
'
estates on and after 1 September 2017. S 73(3) formerly read:
73(3)
The bankrupt may, at the meeting, amend the terms of his or her proposal, but not in a way that reduces any provision for payment to the trustee of fees referred to in subsection (2B).
S 73(3) amended by No 131 of 2002, s 3 and Sch 1 items 56 and 211, by inserting
"
, but not in a way that reduces any provision for payment to the trustee of fees referred to in subsection (2B)
"
at the end, applicable to proposals lodged after 5 May 2003 under subsection 73(1) of the Bankruptcy Act.
73(4)
(Repealed by No 11 of 2016)
History
S 73(4) will be repealed by No 11 of 2016, s 3 and Sch 1 item 27, applicable in relation to the administration of regulated debtors
'
estates on and after 1 September 2017. S 73(4) formerly read:
73(4)
The creditors may, by special resolution, accept the proposal.
73(5)
(Repealed by No 11 of 2016)
History
S 73(5) will be repealed by No 11 of 2016, s 3 and Sch 1 item 27, applicable in relation to the administration of regulated debtors
'
estates on and after 1 September 2017. S 73(5) formerly read:
73(5)
A creditor who has proved his or her debt may assent to or dissent from the proposal by written notice to that effect delivered to the trustee before the meeting or sent by post to the trustee and received by him or her before the meeting, and in that case the creditor shall, for the purposes of this Division, be deemed to have been present at the meeting and to have voted according to his or her assent or dissent.
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