Bankruptcy Regulations 1996
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Hide history notePt 8 substituted by FRLI No F2016L01926, Sch 1 item 54, effective 1 September 2017. Pt 8 formerly read:
PART 8 - TRUSTEES
Division 1 - Application for registration, or extension of registration, as a trustee
REGULATION 8.01 DOCUMENTS TO ACCOMPANY APPLICATION FOR REGISTRATIONHistoryDiv 1 note omitted by SR No 255 of 2002, reg 3 and Sch 1 item 10, effective 6 November 2002. The note formerly read:
Note: For committees that deal with such applications, see Part 15.
8.01(1)
For the purposes of paragraph 154A(3)(a) of the Act, the following documents must accompany an application to be registered as a trustee:
(a) if the applicant relies on a qualification referred to in paragraph 8.02(1)(a):
(i) an original statement in accordance with subregulation (2), certified by the appropriate officer of the university, college of advanced education or other tertiary institution; or
(ii) a copy of the statement, certified as a copy by a person before whom an affidavit may be sworn under section 262 of the Act;
(b) 2 references, signed by the respective referees, who are familiar with relevant work undertaken by the applicant within the 12 months before the application, that contain the particulars specified in subregulation (3).HistoryReg 8.01(1) amended by SR No 76 of 2003, reg 3 and Sch 1 item 4, by substituting " referees, who are familiar with relevant work undertaken by the applicant within the 12 months before the application, " for " referees, " in para (b), effective 5 May 2003.
8.01(2)
A statement referred to in subparagraph (1)(a)(i) must set out the relevant qualification of the applicant and state that the qualification represents:
(a) a course of study in accountancy of not less than 3 years ' duration; and
(b) a course of study in commercial law of not less than 2 years ' duration.
8.01(3)
For the purposes of paragraph (1)(b), each reference must contain the following particulars:
(a) the name, address and telephone number of the referee;
(b) the occupation of the referee;
(c) the period during which, and the circumstances under which, the referee has known the applicant;
(d) the referee's opinion about the following matters:
(i) the applicant's abilities in oral and written communication;
(ii) the applicant's knowledge of the powers, duties and functions of a registered trustee or registered liquidator;
(iii) (Omitted by No 76 of 2003)
(iv) the applicant's knowledge of business management and his or her ability to successfully conduct business activities;
(e) whether, in the referee's opinion, the applicant has experience in assisting a registered trustee or a registered liquidator within the meaning of the Companies Act 1981 or the Corporations Law in carrying out the functions of the trustee or liquidator and, if so:
(i) the nature of the activities that the applicant was required to carry out in acquiring that experience; and
(ii) the length of the period of time during which the applicant carried out those activities; and
(iii) whether the applicant carried out those activities in a competent manner;
(f) the referee's reasons for supporting the application.HistoryReg 8.01(3) amended by SR No 76 of 2003, s 3 and Sch 1 item 5, by omitting para (d)(iii), effective 5 May 2003. Para (d)(iii) formerly read:
(iii) if the applicant has insufficient knowledge, or no knowledge, of the powers, duties and functions of a registered trustee or registered liquidator - whether the applicant has the capacity to acquire that knowledge within a short period of time;
REGULATION 8.02 QUALIFICATIONS, EXPERIENCE, KNOWLEDGE AND ABILITIES OF APPLICANTS
8.02(1)
For the purposes of paragraph 155A(2)(a) of the Act, the following qualifications, experience, knowledge and abilities are prescribed in relation to an applicant for registration as a trustee:
(a) completion of the academic requirements for the award of a degree, diploma or similar qualification from an Australian university or college of advanced education, or other Australian tertiary institution of an equivalent standard, being a degree, diploma or similar qualification granted to a person who has completed:
(i) a course of study in accountancy of not less than 3 years ' duration; and
(ii) a course of study in commercial law of not less than 2 years ' duration;
(b) engagement in relevant employment on a full-time basis for a total of not less than 2 years in the preceding 5 years;
(c) the ability to perform satisfactorily the duties of a registered trustee immediately after registration.Note:
If the committee considering the application considers that the applicant is suitable to be registered as a trustee, it may decide that the applicant should be registered even if it is not satisfied that the applicant has the qualifications, experience, knowledge and abilities prescribed in subregulation 8.02(1); see subsection 155A(3) of the Act.
HistoryReg 8.02(1) amended by SR No 76 of 2003, reg 3 and Sch 1 item 6, by substituting " trustee immediately after registration. " for " trustee. " in para (c), effective 5 May 2003.
8.02(2)
In this regulation:relevant employment
means employment that:
(a) involves assisting a liquidator or trustee in the performance of his or her duties as a liquidator or trustee; and
(b) involves the providing of advice in relation to bankruptcy matters; and
(c) provides experience in insolvency administrations outside bankruptcy, including administration of receiverships, the winding up of corporations and any other similar functions.
SECTION 8.03 REGULATION 8.03 SUBSECTION 155C(2) OF THE ACT - PRESCRIBED PARTICULARS OF APPLICANT FOR REGISTRATION AS A TRUSTEE
8.03
For the purposes of subsection 155C(2) of the Act, the following details are prescribed in relation to an applicant referred to in that subsection:
(a) the applicant's full name, and any alias;
(b) the applicant's business address (including, where applicable, the postal address) and telephone number;
(c) a statement or summary of any conditions applying to the person's entitlement to practise as a registered trustee;
(d) the date on which details in respect of the applicant are entered on the Index.REGULATION 8.04 EXTENSION OF REGISTRATION - PROOF OF INSURANCEHistoryReg 8.03 amended by SR No 76 of 1997, rr 13.1 and 13.2.
8.04
A person who applies under section 155D of the Act must provide proof, of a kind reasonably acceptable to the Inspector-General, that the applicant has insurance of the kind mentioned in paragraph 155A(2)(b) of the Act.
Division 1A - Change in trustee's particulars
REGULATION 8.04A TRUSTEE TO NOTIFY CHANGE IN PARTICULARSHistoryDiv 1A inserted by SR No 76 of 1997, r 14.1.
8.04A(1)
A trustee must promptly give notice in writing to the Inspector-General of any change, in relation to the trustee, of the particulars specified in paragraph 8.03(a), (b) or (c).Penalty: 1 penalty unit
HistoryReg 8.04A(1) amended by SLI 2010 No 195, reg 3 and Sch 1 item 13, by substituting " Inspector-General " for " Official Receiver " , effective 1 August 2010.
8.04A(2)
An offence against subregulation (1) is an offence of strict liability.Note:
For strict liability , see section 6.1 of the Criminal Code .
HistoryReg 8.04A amended by SR No 262 of 2001, reg 3 and Sch 1 items 10 and 11 by substituting " (1) A trustee " for " A trustee " and inserting reg 8.04(2), effective 5 October 2001.
Reg 8.04A inserted by SR No 76 of 1997, r 14.1.
Division 2 - Registration of trustees
HistoryDiv 2 substituted by SR No 255 of 2002, reg 3 and Sch 1 item 11, effective 6 November 2002. Div 2 formerly read:
Division 2 - Application for change or removal of conditions on practising as a registered trustee
8.05 DOCUMENTS TO ACCOMPANY APPLICATION FOR CHANGE OR REMOVAL OF CONDITIONS
For the purposes of paragraph 155E(3)(a) of the Act, an application to change or remove any conditions that apply to the applicant's practice as a registered trustee must have with it 2 references, signed by the respective referees, that contain the particulars specified in subregulation 8.01(3).Subdivision 1 - Preliminary
HistorySubdiv 1 inserted by SR No 255 of 2002, reg 3 and Sch 1 item 11, effective 6 November 2002.
SECTION 8.05 REGULATION 8.05 DEFINITIONS
8.05
In this Division, unless the contrary intention appears:application
means an application under subsection 154A(1) of the Act.chairperson
means the chairperson of a committee.committee
means a committee convened under subsection 155(1) of the Act.member
, in relation to a committee, includes the chairperson.HistoryReg 8.05 substituted by SR No 255 of 2002, reg 3 and Sch 1 item 11, effective 6 November 2002. For former wording of reg 8.05, see note under Div 2 heading.
Subdivision 2 - Constitution and procedure of committees generally
HistorySubdiv 2 inserted by SR No 255 of 2002, reg 3 and Sch 1 item 11, effective 6 November 2002.
SECTION 8.05A REGULATION 8.05A CHAIRPERSON OF A COMMITTEE
8.05A
The chairperson of a committee is:
(a) the Inspector-General; or
(b) if the Inspector-General appoints another member of the committee as chairperson - that person.HistoryReg 8.05A inserted by SR No 255 of 2002, reg 3 and Sch 1 item 11, effective 6 November 2002.
SECTION 8.05B REGULATION 8.05B TRUSTEE CHOSEN BY THE INSOLVENCY PRACTITIONERS ASSOCIATION OF AUSTRALIA
8.05B
A registered trustee chosen by the Insolvency Practitioners Association of Australia under paragraph 155(2)(c) of the Act must have practised as a registered trustee for at least 5 years.REGULATION 8.05C RESIGNATION OF CHAIRPERSONHistoryReg 8.05B inserted by SR No 255 of 2002, reg 3 and Sch 1 item 11, effective 6 November 2002.
8.05C(1)
A chairperson other than the Inspector-General may resign the office of chairperson by notice in writing signed by the chairperson and given to the Inspector-General.
8.05C(2)
A notice of resignation takes effect when the Inspector-General receives it.HistoryReg 8.05C inserted by SR No 255 of 2002, reg 3 and Sch 1 item 11, effective 6 November 2002.
REGULATION 8.05D RESIGNATION OF MEMBERS
8.05D(1)
A member of a committee, other than the Inspector-General, may resign from the committee by notice in writing signed by the member and given to the Inspector-General.
8.05D(2)
A notice of resignation takes effect when the Inspector-General receives it.HistoryReg 8.05D inserted by SR No 255 of 2002, reg 3 and Sch 1 item 11, effective 6 November 2002.
SECTION 8.05E REGULATION 8.05E DISCLOSURE OF INTERESTS
8.05E
If a member of a committee:
(a) is a close relative of the applicant; or
(b) has a financial or personal relationship with the applicant;the member must, as soon as practicable after becoming aware of the identity of the applicant, disclose the nature of the relationship to the other members of the committee and to the Inspector-General.
REGULATION 8.05F REMOVAL OF MEMBERS FROM A COMMITTEEHistoryReg 8.05E inserted by SR No 255 of 2002, reg 3 and Sch 1 item 11, effective 6 November 2002.
8.05F(1)
The Inspector-General may terminate the appointment of a member of a committee if:
(a) the member becomes physically or mentally incapable of performing the duties of a member; or
(b) the member becomes a bankrupt; or
(c) the member signs an authority under section 188 of the Act that is effective for the purposes of Part X of the Act; or
(d) the member becomes a party, as a debtor, to a debt agreement; or
(e) the member has been convicted of an offence involving fraud or dishonesty; or
(f) the member neglects his or her duty as a member.
8.05F(2)
The Inspector-General may terminate the appointment of a member of a committee if:
(a) the member:
(i) is a close relative of the applicant; or
(ii) has a financial or personal relationship with the applicant; and
(b) the Inspector-General believes that relationship may affect the impartiality of the member.HistoryReg 8.05F inserted by SR No 255 of 2002, reg 3 and Sch 1 item 11, effective 6 November 2002.
REGULATION 8.05G CONVENING OF A REPLACEMENT COMMITTEE
8.05G(1)
This regulation applies if:
(a) either of the following events occurs:
(i) a member of a committee resigns or dies;
(ii) the appointment of a member of a committee is terminated under regulation 8.05F; and
(b) at the time of that occurrence, the committee has not made a decision under subsection 155A(1) of the Act.
8.05G(2)
If this regulation applies:
(a) the Inspector-General must convene another committee (the new committee ) in place of the committee referred to in subregulation (1) (the previous committee ); and
(b) the new committee must not have regard to any proceedings of the previous committee.HistoryReg 8.05G inserted by SR No 255 of 2002, reg 3 and Sch 1 item 11, effective 6 November 2002.
REGULATION 8.05H GENERAL PROCEDURES OF A COMMITTEE
8.05H(1)
Subject to the Act and this Division, a committee may determine its procedure.
8.05H(2)
A committee must observe natural justice.
8.05H(3)
A committee is not bound by any rules of evidence but may inform itself on any matter as it sees fit.
8.05H(4)
A committee must keep a written record of its decisions.HistoryReg 8.05H inserted by SR No 255 of 2002, reg 3 and Sch 1 item 11, effective 6 November 2002.
REGULATION 8.05I PROCEDURE AT COMMITTEE MEETINGS
8.05I(1)
Subject to this regulation, all members of a committee must be present in order to constitute a quorum for a meeting of the committee.
8.05I(2)
At a meeting of a committee a matter is to be decided by a majority of the votes of the members.
8.05I(3)
Any member may participate in a meeting by telephone.
8.05I(4)
A member who participates in a meeting by telephone is taken to be present at the meeting.
8.05I(5)
A committee may keep minutes of proceedings at its meetings.HistoryReg 8.05I inserted by SR No 255 of 2002, reg 3 and Sch 1 item 11, effective 6 November 2002.
REGULATION 8.05J RESOLUTIONS WITHOUT MEETING
8.05J(1)
If the majority of the members of a committee sign a document containing a statement that they are in favour of a resolution in the terms set out in the document, the resolution is taken to have been passed at a meeting of the committee:
(a) on the day on which the document is signed; or
(b) if the members sign the document on different days - on the day on which the document is signed by the member who makes up the majority.
8.05J(2)
Two or more separate documents that are identical in all material respects (apart from signatures), each of which is signed by 1 or more members, are taken for the purposes of subregulation (1) to constitute a single document.HistoryReg 8.05J inserted by SR No 255 of 2002, reg 3 and Sch 1 item 11, effective 6 November 2002.
Subdivision 3 - Inquiries and interviews
REGULATION 8.05K INQUIRIES BY THE COMMITTEEHistorySubdiv 3 inserted by SR No 255 of 2002, reg 3 and Sch 1 item 11, effective 6 November 2002.
8.05K(1)
A committee considering an application may make inquiries of any person for the purposes of deciding whether the applicant should be registered as a trustee or not.
8.05K(2)
If the committee decides that the applicant should be registered, the committee may make inquiries of any person for the purposes of deciding what conditions, if any, should apply to the applicant's practice as a registered trustee.
8.05K(3)
Inquiries made must be inquiries:
(a) that are reasonable, for the purpose of making an informed decision; or
(b) that the Chairperson of the committee believes are appropriate in order for the committee to have sufficient information to make the decision.
8.05K(4)
Before making a decision that is adverse to the applicant, a committee must:
(a) inform the applicant of any information or material that the committee relies on, or proposes to rely on, in making the decision; and
(b) give the applicant a reasonable opportunity to reply to, or rebut, the information or material.HistoryReg 8.05K inserted by SR No 255 of 2002, reg 3 and Sch 1 item 11, effective 6 November 2002.
SECTION 8.05L REGULATION 8.05L NOTICE OF INTERVIEW
8.05L
For subsection 155(3) of the Act, the Inspector-General or authorised employee on the committee must, after consultation with the other members of the committee:
(a) fix a date, time and place for the interview; and
(b) give written notice of that date, time and place to the applicant and the other members of the committee.REGULATION 8.05M APPLICANT INTERVIEWSHistoryReg 8.05L amended by SR No 76 of 2003, reg 3 and Sch 1 item 28, by substituting " authorised employee " for " officer of the Department " , effective 5 May 2003.
Reg 8.05L inserted by SR No 255 of 2002, reg 3 and Sch 1 item 11, effective 6 November 2002.
8.05M(1)
A committee must interview the applicant as soon as practicable and, for that purpose:
(a) any member of the committee may participate in the interview by telephone; and
(b) the applicant may participate in the interview by telephone.
8.05M(2)
A member or applicant who participates in an interview as provided by paragraph (1)(a) or (b) is taken to be present at the interview.
8.05M(3)
If the applicant fails to attend, or participate by telephone in, the interview and does not, within 7 days, give the committee a reasonable excuse for that failure:
(a) the application is taken to have lapsed; and
(b) the application fee is not refundable.
8.05M(4)
If an applicant who fails to attend, or participate by telephone in, an interview gives the committee, within 7 days, a reasonable excuse for that failure, the committee must arrange another interview date, time and place.
8.05M(5)
At an interview, the committee may ask the applicant any question that the committee reasonably believes to be related to:
(a) the application; or
(b) a reference accompanying the application; or
(c) the issue of whether the applicant has the qualifications, experience, knowledge and abilities to perform the functions of a registered trustee.
8.05M(6)
A committee must not interview an applicant until:
(a) the Inspector-General has received the information and documents in relation to the application that are prescribed by regulation 8.01; and
(b) any charge imposed by an Act for making the application has been paid.HistoryReg 8.05M inserted by SR No 255 of 2002, reg 3 and Sch 1 item 11, effective 6 November 2002.
REGULATION 8.05N REPORT OF COMMITTEE DECISION
8.05N(1)
A report under subsection 155A(6) of the Act must:
(a) be in writing; and
(b) be signed by each member of the committee; and
(c) in the case of a majority decision - set out the reasons of the minority member.
8.05N(2)
The report must be given to the applicant and to the Inspector-General within 14 days of the committee making its decision.HistoryReg 8.05N inserted by SR No 255 of 2002, reg 3 and Sch 1 item 11, effective 6 November 2002.
Subdivision 4 - Other matters
HistorySubdiv 4 inserted by SR No 255 of 2002, reg 3 and Sch 1 item 11, effective 6 November 2002.
SECTION 8.05O REGULATION 8.05O CONFIDENTIALITY
8.05O
A committee must take all reasonable measures to protect from unauthorised use or disclosure information given to it in confidence in, or in connection with, the performance of its functions or the exercise of its powers under the Act or these Regulations.HistoryReg 8.05O inserted by SR No 255 of 2002, reg 3 and Sch 1 item 11, effective 6 November 2002.
SECTION 8.05P REGULATION 8.05P EVIDENCE OF PROCEEDINGS AT COMMITTEE MEETINGS
8.05P
In any proceedings, a copy of the minutes of proceedings at a committee meeting, signed by the Chairperson of the committee:
(a) is evidence of the proceedings as recorded in the minutes; and
(b) may be tendered in evidence without further proof.HistoryReg 8.05P inserted by SR No 255 of 2002, reg 3 and Sch 1 item 11, effective 6 November 2002.
Division 3 - Consent to act, and appointment, as trustee of estate
REGULATION 8.06 CONSENT TO ACT AS TRUSTEE - SUBSECTION 156A(1) OF THE ACTHistoryDiv 3 substituted by SR No 76 of 1997, r 15.1.
8.06(1)
A trustee who signs an instrument under subsection 156A(1) of the Act in relation to a debtor must file the instrument with the Official Receiver as soon as practicable after signing it or, if the Court makes a sequestration order against the debtor's estate, not later than 2 working days after the day on which the order is made.HistoryReg 8.06(1) substituted by SR No 76 of 1997, r 15.1.
8.06(2)
A certificate under subsection 156A(6) of the Act or under regulation 8.06A may be given in the form of an extract of the Index setting out the matters required to be shown by the certificate.Note:
For the admissibility in evidence of an extract of the Index, see r. 13.07.
HistoryReg 8.06(2) and Note to Reg 8.06 inserted by SR No 76 of 1997, r 15.1.
SECTION 8.06A REGULATION 8.06A CERTIFICATE OF APPOINTMENT UNDER SUBSECTION 156A(3) OF THE ACT
8.06A
Where a registered trustee becomes, under subsection 156A(3) of the Act, the trustee of an estate or of joint and separate estates, the Official Receiver may give the registered trustee a certificate to that effect.HistoryReg 8.06A inserted by SR No 76 of 1997, r 15.1.
Division 4 - Trustee's remuneration
HistoryDiv 4 substituted by SLI 2010 No 287, reg 3 and Sch 1 item 2, effective 1 December 2010.
SLI 2010 No 287, reg 1 [ 4] contains the following transitional provisions:
4 Transitional
(1)
The amendments made by items 2, 7 and 8 of Schedule 1 apply to any bankruptcy for which the date of bankruptcy is on or after the day this regulation commences.
(2)
Despite the amendments made by item 2 of Schedule 1, Division 4 of Part 8 of the Bankruptcy Regulations 1996 , as in force immediately before the commencement of this regulation, continues to apply to a bankruptcy if the date of bankruptcy is before the day this regulation commences.
Div 4 formerly read:
Division 4 - Trustee's remuneration
REGULATION 8.07 FIXED REMUNERATION - PRESCRIBED RATES UNDER SUBSECTIONS 162(2) AND (3) OF THE ACT
8.07(1)
For the purposes of subsection 162(2) of the Act, the rate is:
(a) if the moneys received by the trustee do not exceed $30,000 - 10 percent; or
(b) if the moneys received by the trustee exceed $30,000 but do not exceed $50,000 - 10 percent in respect of the first $30,000 and 7.5 percent in respect of the balance of those moneys; or
(c) if the moneys received by the trustee exceed $50,000 - 10 percent in respect of the first $30,000, 7.5 percent in respect of the next $20,000 and 5 percent in respect of the balance of those moneys.
8.07(2)
For the purposes of subsection 162(3) of the Act, the prescribed rate is 2.5 percent.
SECTION 8.08 REGULATION 8.08 OTHER REMUNERATION - PRESCRIBED RATE UNDER SUBSECTION 162(4) OF THE ACT
8.08
For the purposes of subsection 162(4) of the Act, the remuneration of a trustee is to be:
(a) in accordance with the scale of charges that is:
(i) set out in the IPAA Guide to Hourly Rates published by the Insolvency Practitioners Association of Australia; and
(ii) applicable to the work to be remunerated; and
(b) at the level of 85 percent of those charges.REGULATION 8.09 TAXATION OF TRUSTEE'S REMUNERATION AND COSTS - PRELIMINARYHistoryReg 8.08 amended by SR No 76 of 1997, r 17.1.
8.09(1)
Where the trustee of the estate of a bankrupt claims remuneration under section 162 of the Act, the bankrupt or a creditor who is dissatisfied with the amount of the claim may, by notice in writing lodged within 28 days of being notified in writing or becoming aware of the amount of the claim, request a taxing officer to tax the claim.HistoryReg 8.09(1) amended by SR No 255 of 2002, reg 3 and Sch 1 item 12, by substituting ``28 days " for ``14 days " , effective 6 November 2002.
8.09(2)
The taxing officer must, promptly after receiving a request in accordance with subregulation (1), give notice in writing to the trustee to lodge a detailed bill of costs, in accordance with regulation 8.10, with the taxing officer within 28 days or such further period as the taxing officer may, in writing, allow.
8.09(3)
On receiving the bill of costs, the taxing officer must give notice in writing of the date, time and place for the taxation, at least 5 days before the taxation, to the trustee and the person requesting the taxation.
8.09(4)
Subject to subregulation (5), if the trustee fails to comply with a notice given under subregulation (2):
(a) the trustee forfeits his or her right to disbursements and expenses; and
(b) any amount that, apart from this subregulation, would have been applied as the trustee's remuneration is to be applied for the benefit of the creditors.
8.09(5)
A trustee who is aggrieved by the operation of subregulation (4) in respect of his or her claim, or intended claim, for costs may apply to the Court for relief, and the Court may:
(a) grant such relief; and
(b) grant the relief on such terms, if any;as it thinks fit.
REGULATION 8.10 BILL OF COSTS
8.10(1)
A bill of costs required under subsection 167(1) of the Act or regulation 8.09 must:
(a) be typed or printed on only one side of each sheet of paper; and
(b) have a margin on the left-hand side of each sheet of paper; and
(c) show separately the trustee's:
(i) professional fees; and
(ii) disbursements and expenses; and
(d) in the case of a detailed bill of costs:
(i) number each item consecutively; and
(ii) in respect of each item - specify the date or dates on which the work referred to in the item was done, or the disbursement or expenditure referred to in the item was made, as the case may require.
8.10(2)
If a bill of costs complies substantially, but not strictly, with subregulation (1), it is taken, for the purposes of subregulation (1), to be duly lodged. However, the taxing officer may require trustee to rectify the bill of costs in accordance with any direction that the taxing officer thinks fit, and if the trustee defaults the bill ceases to be so taken.HistoryReg 8.10(2) amended by SR No 278 of 1996, r 5.1.
REGULATION 8.11 TAXATION - HEARING
8.11(1)
The trustee and the person requesting a taxation may attend, or be represented at, the hearing of the taxation.
8.11(2)
At the hearing of the taxation the person requesting the taxation may object to an item in the bill of costs:
(a) if the person has given notice in writing, at least 2 clear days before the hearing, of the nature and grounds of the objection; or
(b) with the leave of the taxing officer - without having given such notice.
8.11(3)
The taxing officer may disallow an item or part of an item, or reduce the amount of an item or part of an item, if:
(a) he or she considers that:
(i) the amount of the costs or disbursements in the item is unreasonably high; or
(ii) any of the costs or disbursements in the item were incurred or made improperly, unreasonably, negligently or unnecessarily; or
(b) in the case of any disbursements in the item - they are not proved, to the taxing officer's satisfaction, by production of a receipt, voucher or similar document.
8.11(4)
The taxing officer must, within 7 days of concluding the taxation, sign a certificate of taxation and send it to the trustee and the person requesting the taxation.
8.11(5)
An account in respect of the fee for taxation must be sent to the person requesting the taxation, and the fee is payable by that person within 7 days of receipt.
8.11(6)
In this regulation:taxation
means a taxation of costs for the purposes of subsection 167(1) of the Act or regulation 8.09.
REGULATION 8.11A COSTS OF TAXATION
8.11A(1)
If taxation under regulation 8.09 results in a reduction of at least 15% in the amount of a claim for remuneration, the trustee must meet the costs of the taxation.
8.11A(2)
Except in a case mentioned in subregulation (1), the person who asks for the taxation under regulation 8.09 must meet the costs of the taxation.HistoryReg 8.11A inserted by SR No 255 of 2002, reg 3 and Sch 1 item 13, effective 6 November 2002.
SECTION 8.12 REGULATION 8.12 REMUNERATION OF TRUSTEES - NOTICES
8.12
For subsection 162(6A) of the Act, a trustee must give the following notices to the bankrupt and creditors:
(a) a notice that includes the basis and the method on which the trustee seeks to be remunerated, and, if appropriate, an estimate of the expected level of the trustee's remuneration;
(b) if the trustee claims remuneration calculated by reference to an hourly rate - a notice that includes:
(i) the type of work undertaken by the trustee and the trustee's staff; and
(ii) the number of hours charged by each person; and
(iii) the hourly rate charged for each person; and
(iv) the total remuneration claimed;
(c) a notice advising the bankrupt and creditors of their right, within 28 days of receiving notice of a trustee's claim for remuneration, to request the claim be taxed.HistoryReg 8.12 inserted by SR No 76 of 2003, reg 3 and Sch 1 item 7, effective 5 May 2003.
Former Reg 8.12 repealed by SR No 255 of 2002, reg 3 and Sch 1 item 14 effective 6 November 2002. Reg 8.12 formerly read:
8.12 REMUNERATION OF OFFICIAL TRUSTEE
For the purposes of subsection 163(1) of the Act, the fees and charges specified in regulation 16.07 and Schedule 10 are prescribed as the remuneration of the Official Trustee.Div 4 heading amended by SR No 76 of 1997, r 16.1.
Subdivision 1 - Prescribed rates - subsections 162(2) and (3) of Act
HistorySubdiv 1 inserted by SLI 2010 No 287, reg 3 and Sch 1 item 2, effective 1 December 2010. For transitional provision on Subdiv 1 see note under Div 4 heading.
SECTION 8.07 REGULATION 8.07 PRESCRIBED RATE - SUBSECTION 162(2) OF THE ACT
8.07
For subsection 162(2) of the Act, the rate is:
(a) if the money received by the trustee does not exceed $30,000 - 10%; or
(b) if the money received by the trustee exceeds $30,000 but does not exceed $50,000 - 10% for the first $30,000 and 7.5% for the balance of the money; or
(c) if the money received by the trustee exceeds $50,000 - 10% for the first $30,000, 7.5% for the next $20,000 and 5% for the balance of the money.HistoryReg 8.07 substituted by SLI 2010 No 287, reg 3 and Sch 1 item 2, effective 1 December 2010. For transitional provision on Reg 8.07 see note under Div 4 heading.
SECTION 8.08 REGULATION 8.08 PRESCRIBED RATE - SUBSECTION 162(3) OF THE ACT
8.08
For subsection 162(3) of the Act, the rate is 2.5%.HistoryReg 8.08 substituted by SLI 2010 No 287, reg 3 and Sch 1 item 2, effective 1 December 2010. For transitional provision on Reg 8.08 see note under Div 4 heading.
Subdivision 2 - Trustee ' s remuneration decided by Inspector-General
HistorySubdiv 2 inserted by SLI 2010 No 287, reg 3 and Sch 1 item 2, effective 1 December 2010. For transitional provision on Subdiv 2 see note under Div 4 heading.
SECTION 8.09 REGULATION 8.09 CIRCUMSTANCES IN WHICH TRUSTEE MAY APPLY TO INSPECTOR-GENERAL TO DECIDE REMUNERATION
8.09
For subsection 162(4) of the Act, the following circumstances are prescribed:
(a) the creditors or the committee of inspection:
(i) fail to vote on a motion relating to remuneration put forward by the trustee at a meeting of creditors under section 64U of the Act; or
(ii) reject a motion relating to remuneration put forward by the trustee at a meeting of creditors under section 64U of the Act;
(b) the creditors or the committee of inspection:
(i) fail to vote on a proposal relating to remuneration put forward by the trustee under section 64ZBA of the Act; or
(ii) reject a proposal relating to remuneration put forward by the trustee under section 64ZBA of the Act;
(c) it is not cost effective to seek the approval of creditors for the trustee ' s remuneration;
(d) it is not practicable to seek the approval of creditors for the trustee ' s remuneration.Example for paragraph (c):
It may not be cost-effective to seek the approval of creditors if the value of the assets in the estate is so small that the expense of holding a creditors ' meeting or sending a notice to creditors cannot be justified.
Examples for paragraph (d):
1 It may not be practicable to seek the approval of creditors if the bankruptcy is annulled and there are no longer any creditors to vote on a remuneration proposal.
2 It may not be practicable to seek the approval of creditors if a meeting is cancelled because of a lack of quorum.
HistoryReg 8.09 substituted by SLI 2010 No 287, reg 3 and Sch 1 item 2, effective 1 December 2010. For transitional provision on Reg 8.09 see note under Div 4 heading.
SECTION 8.10 REGULATION 8.10 APPLICATION TO INSPECTOR-GENERAL TO DECIDE REMUNERATION
8.10
For subsection 162(4) of the Act, the application:
(a) must be in writing; and
(b) must:
(i) state which circumstance prescribed in regulation 8.09 applies to the application; and
(ii) include evidence that the prescribed circumstance applies to the application; and
(c) must contain a single proposal about the trustee ' s proposed remuneration; and
(d) must include the information required by subsections 64U(5) and (5A) of the Act about the trustee ' s statement; and
(e) must explain:
(i) why any work already performed by the trustee was necessary; and
(ii) why any work proposed to be performed by the trustee will be necessary; and
(iii) why the proposed remuneration for the work, or proposed work, is appropriate for the particular administration; and
(f) must be accompanied by the following:
(i) any notices issued by the trustee to the bankrupt and creditors under subsection 162(6A) of the Act;
(ii) any other notices issued by the trustee to the bankrupt and creditors under Subdivision 3.HistoryReg 8.10 substituted by SLI 2010 No 287, reg 3 and Sch 1 item 2, effective 1 December 2010. For transitional provision on Reg 8.10 see note under Div 4 heading.
SECTION 8.11 REGULATION 8.11 MATTERS TO WHICH INSPECTOR-GENERAL MUST HAVE REGARD
8.11
For subsection 162(4A) of the Act, the Inspector-General must have regard to the following matters when deciding the trustee ' s remuneration:
(a) whether the trustee has followed the procedure in section 64U of the Act for estimating remuneration, including whether the trustee has adequately described to creditors the work performed or to be performed;
(b) whether the trustee has given the bankrupt and creditors the notices required to be given under these Regulations;
(c) whether the trustee has explained why the work already performed was necessary;
(d) whether the trustee has explained why the work proposed to be performed will be necessary;
(e) whether, taking into account the nature and complexity of the work, the proposed remuneration is commensurate with:
(i) the work already performed; or
(ii) the work proposed to be performed;
(f) any other relevant matters.Note:
A decision on the application is made under subsection 162(4A) of the Act. The Inspector-General must advise the trustee and the bankrupt and creditors of the decision in accordance with subsection 162(4B) of the Act.
HistoryReg 8.11 substituted by SLI 2010 No 287, reg 3 and Sch 1 item 2, effective 1 December 2010. For transitional provision on Reg 8.11 see note under Div 4 heading.
Subdivision 3 - Remuneration of trustees - notices
HistorySubdiv 3 inserted by SLI 2010 No 287, reg 3 and Sch 1 item 2, effective 1 December 2010. For transitional provision on Subdiv 3 see note under Div 4 heading.
SECTION 8.12 REGULATION 8.12 NOTICES
8.12
This Subdivision is made for subsection 162(6A) of the Act and sets out the notices that the trustee is required to give to the bankrupt and creditors in relation to the trustee ' s remuneration.REGULATION 8.12A INITIAL REMUNERATION NOTICEHistoryReg 8.12 substituted by SLI 2010 No 287, reg 3 and Sch 1 item 2, effective 1 December 2010. For transitional provision on Reg 8.12 see note under Div 4 heading.
8.12A(1)
The trustee must give the bankrupt and creditors notice of:
(a) the method by which the trustee seeks to be remunerated; and
(b) the rate of remuneration; and
(c) an estimate of the expected amount of the trustee ' s remuneration.
8.12A(2)
The notice must:
(a) include a brief explanation of the types of methods that could be used to calculate remuneration; and
(b) specify the method the trustee proposes to use to calculate remuneration; and
(c) explain why the method is appropriate.
8.12A(3)
If the trustee proposes to charge on a time-cost basis, the notice must include details about the respective rates at which the remuneration of the trustee and the other persons who will be assisting, or will be likely to assist, the trustee in the performance of his or her duties are to be calculated.
8.12A(4)
The notice must be in writing and must be given to the bankrupt and creditors:
(a) in the case of a trustee of a personal insolvency agreement who was not the controlling trustee for a debtor under section 188 or 192 of the Act before the agreement for the debtor was executed - within 28 days after the day the agreement is executed as required by section 216 of the Act; and
(b) in any other case:
(i) within 28 days after the day the trustee receives the bankrupt ' s statement of affairs; or
(ii) if the trustee does not receive the bankrupt ' s statement of affairs within 60 days after the date of bankruptcy - within 7 days after the end of the 60 day period.
8.12A(5)
This regulation does not apply to:
(a) a person who is the controlling trustee for a debtor under section 188 or 192 of the Act; or
(b) a trustee of a personal insolvency agreement who was the controlling trustee for a debtor under section 188 or 192 of the Act before the agreement for the debtor was executed.
REGULATION 8.12B REMUNERATION APPROVAL NOTICEHistoryReg 8.12A inserted by SLI 2010 No 287, reg 3 and Sch 1 item 2, effective 1 December 2010. For transitional provision on Reg 8.12A see note under Div 4 heading.
8.12B(1)
If the trustee proposes to have his or her remuneration fixed by creditors or the committee of inspection in accordance with subsection 162(1) of the Act, the trustee must give the creditors or the committee a notice that complies with this regulation.
8.12B(2)
The notice must include the following information:
(a) a description of the work that the trustee has undertaken or will, or is likely to, undertake, including details of the particular tasks to be performed by the trustee and any person assisting the trustee;
(b) details of:
(i) the number of hours to be charged by the trustee and each person assisting the trustee; and
(ii) the hourly rate charged by the trustee and each person assisting the trustee; and
(iii) the proposed total remuneration for the work;
(c) a statement that the costs incurred, or to be incurred, are necessary and reasonable having regard to the value and complexity of the administration;
(d) a report on work that has been completed, that is in progress and that is still to be undertaken.
8.12B(3)
The information in the notice must be sufficient to enable the creditors or the committee of inspection to be satisfied that the costs incurred, or to be incurred, are necessary and reasonable having regard to the value and complexity of the administration.
8.12B(4)
The notice must be given:
(a) if the trustee proposes to have his or her remuneration fixed at a meeting of creditors - at the same time as the meeting of creditors is convened; or
(b) if the trustees proposes to have his or her remuneration fixed by putting a proposal to the creditors under section 64ZBA of the Act - at the same time as the notice under that section is given to the creditors.
8.12B(5)
This regulation does not apply to:
(a) a person who is the controlling trustee for a debtor under section 188 or 192 of the Act; or
(b) a trustee of a personal insolvency agreement who was the controlling trustee for a debtor under section 188 or 192 of the Act before the agreement for the debtor was executed.
REGULATION 8.12C REMUNERATION CLAIM NOTICEHistoryReg 8.12B inserted by SLI 2010 No 287, reg 3 and Sch 1 item 2, effective 1 December 2010. For transitional provision on Reg 8.12B see note under Div 4 heading.
8.12C(1)
Subject to subregulation (3), the trustee must give the bankrupt and the creditors a notice that complies with this regulation when the remuneration claimed by the trustee reaches the amount (the fixed amount ):
(a) fixed by the creditors or the committee of inspection; or
(b) decided by the Inspector-General; or
(c) if the trustee claims the statutory minimum or less under subsection 161B(1) of the Act - claimed by the trustee under that subsection.
8.12C(2)
The notice must be given within 14 days after the fixed amount is reached.
8.12C(3)
If the remuneration claimed does not reach the fixed amount, the trustee must give the creditors a notice that complies with this regulation:
(a) at the time the trustee declares a final dividend; or
(b) if the trustee determines that no final dividend will be declared - at the time the administration of the estate is finalised.
8.12C(4)
A notice under subregulation (1) or (3) must include the following information:
(a) the total remuneration claimed;
(b) details of:
(i) the work performed for which remuneration is claimed; and
(ii) the names of the persons who performed the work; and
(iii) the number of hours charged by, or in relation to, each person for the work; and
(iv) the hourly rate charged by, or in relation to, each person for the work;
(c) an explanation of any variation from the amounts set out in any notice under regulation 8.12B in relation to:
(i) the remuneration claimed; and
(ii) the number of hours charged; and
(iii) the hourly rate charged; and
(iv) the persons performing the work.
8.12C(5)
A notice under subregulation (1) or (3) must also include a statement advising the bankrupt and the creditors that they may, within 28 days after receiving the notice, request the Inspector-General to review the amount of remuneration claimed by the trustee.
Note:
Subdivision 4 deals with applications to the Inspector-General to review decisions in relation to a trustee ' s remuneration. Subdivision 6 sets out how reviews are undertaken.
HistoryReg 8.12C inserted by SLI 2010 No 287, reg 3 and Sch 1 item 2, effective 1 December 2010. For transitional provision on Reg 8.12C see note under Div 4 heading.
Subdivision 4 - Review of remuneration
HistorySubdiv 4 inserted by SLI 2010 No 287, reg 3 and Sch 1 item 2, effective 1 December 2010. For transitional provision on Subdiv 4 see note under Div 4 heading.
SECTION 8.12D REGULATION 8.12D REVIEW OF REMUNERATION
8.12D
This Subdivision is made for subsection 167(1) of the Act and provides for the Inspector-General to review decisions about the trustee ' s remuneration on application by a bankrupt or a creditor of the bankrupt.REGULATION 8.12E APPLICATION FOR REVIEW - REMUNERATIONHistoryReg 8.12D inserted by SLI 2010 No 287, reg 3 and Sch 1 item 2, effective 1 December 2010. For transitional provision on Reg 8.12D see note under Div 4 heading.
8.12E(1)
A bankrupt or a creditor of the bankrupt (the applicant ) may apply to the Inspector-General for a review of the amount of remuneration claimed by the trustee.
8.12E(2)
The application must be in writing and must, subject to subregulation (3), be made within 28 days after the day the applicant receives notification under regulation 8.12C.
8.12E(3)
The Inspector-General may, before or after the end of the 28 days mentioned in subregulation (2), extend the period in which an application for review may be made if the Inspector-General is satisfied that:
(a) the applicant and the trustee have been engaged in an alternative dispute resolution process to try to resolve the matter; or
(b) it is appropriate, in all the circumstances, to extend the period.
8.12E(4)
The Inspector-General may extend the period for any period the Inspector-General considers appropriate in all the circumstances.
8.12E(5)
The applicant may apply to the Administrative Appeals Tribunal for the review of a decision by the Inspector-General under subregulation (3) to refuse to extend the period in which an application for review may be made.
8.12E(6)
The trustee may apply to the Administrative Appeals Tribunal for the review of a decision by the Inspector-General under subregulation (3) to extend the period in which an application for review may be made.
REGULATION 8.12F APPLICATION THRESHOLDHistoryReg 8.12E inserted by SLI 2010 No 287, reg 3 and Sch 1 item 2, effective 1 December 2010. For transitional provision on Reg 8.12E see note under Div 4 heading.
8.12F(1)
The Inspector-General must refuse to accept an application:
(a) unless the Inspector-General is satisfied on reasonable grounds that 1 or more of the following apply:
(i) the trustee ' s remuneration may have been fixed in a manner that is inconsistent with the requirements of the Act or these Regulations;
(ii) the trustee may have acted improperly, or without due care and diligence, in the administration of the estate; or
(b) if the Inspector-General is satisfied on reasonable grounds that:
(i) the applicant does not have an interest in the outcome of the review; or
(ii) the applicant has not adequately particularised the issue giving rise to the review; or
(iii) the application is frivolous or vexatious.
8.12F(2)
However, the Inspector-General may accept an application if the Inspector-General is satisfied that there are exceptional circumstances to justify the review.
8.12F(3)
The Inspector-General may refuse to accept an application if the Inspector-General is satisfied on reasonable grounds that:
(a) it was appropriate in all the circumstances for the applicant to attempt to resolve the matter without seeking a review under this Subdivision; and
(b) the applicant did not do so; and
(c) the applicant did not provide a reasonable explanation for not doing so.
REGULATION 8.12G NOTIFICATION OF DECISIONHistoryReg 8.12F inserted by SLI 2010 No 287, reg 3 and Sch 1 item 2, effective 1 December 2010. For transitional provision on Reg 8.12F see note under Div 4 heading.
8.12G(1)
If the Inspector-General refuses to accept the application, the Inspector-General must give the applicant and the trustee written notice of the refusal.
8.12G(2)
The notice must be given to the applicant and the trustee within 14 days after the day the Inspector-General refuses the application and must include the reasons for the refusal.
HistoryReg 8.12G inserted by SLI 2010 No 287, reg 3 and Sch 1 item 2, effective 1 December 2010. For transitional provision on Reg 8.12G see note under Div 4 heading.
Subdivision 5 - Review of bill of costs
HistorySubdiv 5 inserted by SLI 2010 No 287, reg 3 and Sch 1 item 2, effective 1 December 2010. For transitional provision on Subdiv 5 see note under Div 4 heading.
SECTION 8.12H REGULATION 8.12H REVIEW OF BILL OF COSTS
8.12H
This Subdivision is made for subsection 167(2) of the Act and provides for the Inspector-General to review a bill of costs for services provided by a third party in relation to the administration of a bankrupt ' s estate.REGULATION 8.12I APPLICATION FOR REVIEW - THIRD PARTY BILL OF COSTSHistoryReg 8.12H inserted by SLI 2010 No 287, reg 3 and Sch 1 item 2, effective 1 December 2010. For transitional provision on Reg 8.12H see note under Div 4 heading.
8.12I(1)
The trustee of the bankrupt ' s estate may apply to the Inspector-General to review a bill of costs for services provided by a third party in relation to the administration of the bankrupt ' s estate.
8.12I(2)
The application must be in writing.
8.12I(3)
The application must, subject to subregulation (4), be made within 28 days after the trustee receives the bill of costs from the third party.
8.12I(4)
The Inspector-General may, before or after the end of the 28 days mentioned in subregulation (3), extend the period in which an application for review may be made if the Inspector-General is satisfied that:
(a) the trustee and the third party have been engaged in an alternative dispute resolution process to try to resolve the matter; or
(b) it is appropriate, in all the circumstances, to extend the period.
8.12I(5)
The Inspector-General may extend the period for any period the Inspector-General considers appropriate in all the circumstances.
8.12I(6)
The trustee may apply to the Administrative Appeals Tribunal for review of a decision by the Inspector-General under subregulation (4) to refuse to extend the period in which an application for review may be made.
8.12I(7)
The third party may apply to the Administrative Appeals Tribunal for the review of a decision by the Inspector-General under subregulation (4) to extend the period in which an application for review may be made.
HistoryReg 8.12I inserted by SLI 2010 No 287, reg 3 and Sch 1 item 2, effective 1 December 2010. For transitional provision on Reg 8.12I see note under Div 4 heading.
Subdivision 6 - Review by Inspector-General
REGULATION 8.12J REVIEW BY INSPECTOR-GENERALHistorySubdiv 6 inserted by SLI 2010 No 287, reg 3 and Sch 1 item 2, effective 1 December 2010. For transitional provision on Subdiv 6 see note under Div 4 heading.
8.12J(1)
If the Inspector-General accepts an application under regulation 8.12E or 8.12I, the Inspector-General must conduct a review in accordance with this Subdivision.
8.12J(2)
The Inspector-General may:
(a) affirm the amount claimed by the trustee or the third party; or
(b) disallow all or part of the trustee ' s claim for remuneration and substitute another amount for the amount claimed; or
(c) disallow all or part of the third party ' s bill of costs and substitute another amount for the amount claimed; or
(d) dismiss the application.
REGULATION 8.12K HOW REVIEW TO BE CONDUCTEDHistoryReg 8.12J inserted by SLI 2010 No 287, reg 3 and Sch 1 item 2, effective 1 December 2010. For transitional provision on Reg 8.12J see note under Div 4 heading.
8.12K(1)
The Inspector-General must conduct the review with as little formality and technicality, and with as much expedition, as the Act and these Regulations, and a proper consideration of the matter, permit.
8.12K(2)
In conducting the review, the Inspector-General:
(a) is not bound by legal technicalities, legal forms or rules of evidence; and
(b) may inform himself or herself on any matter relevant to the review in such manner as he or she thinks appropriate.
HistoryReg 8.12K inserted by SLI 2010 No 287, reg 3 and Sch 1 item 2, effective 1 December 2010. For transitional provision on Reg 8.12K see note under Div 4 heading.
SECTION 8.12L REGULATION 8.12L POWERS OF INSPECTOR-GENERAL
8.12L
In conducting the review, the Inspector-General may do any of the following:
(a) conduct the review:
(i) with the parties present; or
(ii) on the papers; or
(iii) in part with the parties present and in part on the papers;
(b) adjourn or discontinue the review if the Inspector-General considers it necessary or appropriate to do so;
(c) engage an expert to assist in the review and arrange for payment to be made to the expert;
(d) direct the trustee to provide an itemised invoice in a form, and within the time, specified in the direction for work undertaken by the trustee;
(e) direct a third party to give an itemised bill of costs in a form, and within the time, specified in the direction in relation to work undertaken by the third party;
(f) interview any party to the review and allow the other party or their representative to question that party;
(g) direct a person to give a written statement, in a specified form and signed by the person, about a matter relevant to the review;
(h) direct the trustee to produce to the Inspector-General or to a party to the review, all or part of the trustee ' s files or documents in relation to the administration of the bankrupt ' s estate;
(i) copy documents, or arrange for copies to be made and delivered to the Inspector-General or a party to the review;
(j) direct a party seeking inspection, production or copies of documents to comply with conditions (including conditions relating to payment) in relation to the inspection, production or copying;
(k) proceed with the review in the absence of a party if the Inspector-General considers it necessary or appropriate to do so;
(l) direct the trustee to take particular action for the administration of the estate, including refunding any remuneration not properly claimed or supported.Note:
This regulation does not exclude the need for the Inspector-General to provide procedural fairness when conducting the review.
REGULATION 8.12M NON-COMPLIANCE WITH DIRECTIONSHistoryReg 8.12L inserted by SLI 2010 No 287, reg 3 and Sch 1 item 2, effective 1 December 2010. For transitional provision on Reg 8.12L see note under Div 4 heading.
8.12M(1)
If a person to whom the Inspector-General gives a direction under regulation 8.12L does not comply with the direction, the Inspector-General may conduct the review on the basis of the information available to the Inspector-General.
8.12M(2)
If the trustee does not comply with a direction of the Inspector-General under paragraph 8.12L(d), (h) or (l), the Inspector-General may direct that the trustee is not entitled to the remuneration, or part of the remuneration, that is the subject of the review.
8.12M(3)
If a third party does not comply with a direction of the Inspector-General under paragraph 8.12L(e), the Inspector-General may order that the trustee may declare and distribute a final dividend in the bankruptcy without regard to any claim of the third party.
8.12M(4)
If the Inspector-General makes an order under subregulation (3), the estate of the bankrupt has no liability to the third party for the bill of costs that is the subject of the review.
REGULATION 8.12N DECISION OF INSPECTOR-GENERALHistoryReg 8.12M inserted by SLI 2010 No 287, reg 3 and Sch 1 item 2, effective 1 December 2010. For transitional provision on Reg 8.12M see note under Div 4 heading.
8.12N(1)
The Inspector-General must complete the review, and make a decision on the application, within 60 days after the day the Inspector-General accepts the application for review.
8.12N(2)
When the Inspector-General makes his or her decision, the Inspector-General must prepare a written statement that:
(a) sets out the decision of the Inspector-General; and
(b) sets out the reasons for the decision; and
(c) sets out the findings on any material questions of fact; and
(d) refers to evidence or other material on which the findings of fact are based; and
(e) sets out the effect of subsection 167(6) of the Act in relation to the Inspector-General ' s decision.
8.12N(3)
The Inspector-General must give each party to the review a copy of the statement within 14 days after making the decision.
HistoryReg 8.12N inserted by SLI 2010 No 287, reg 3 and Sch 1 item 2, effective 1 December 2010. For transitional provision on Reg 8.12N see note under Div 4 heading.
SECTION 8.12O REGULATION 8.12O REPAYMENTS OF EXCESS
8.12O
For subsection 167(4) of the Act, if the Inspector-General is satisfied that a withdrawal by the trustee of funds from the estate of the bankrupt for payment of the trustee ' s remuneration exceeds the amount of remuneration the trustee is entitled to under Division 2 of Part VIII of the Act, the Inspector-General may require the trustee to repay the excess to the estate.HistoryReg 8.12O inserted by SLI 2010 No 287, reg 3 and Sch 1 item 2, effective 1 December 2010. For transitional provision on Reg 8.12O see note under Div 4 heading.
Division 5 - Registered trustee ceasing to be trustee of an estate
REGULATION 8.13 NOTICE OF REMOVAL OF TRUSTEE OF ESTATE
8.13(1)
This regulation applies in relation to the removal of a registered trustee if:
(a) the Court removes the trustee, under subsection 156A(5) or 179(1) of the Act, from the office of trustee of an estate; or
(b) the creditors remove the trustee, under section 181 of the Act, from that office.
8.13(2)
In the event of such a removal, the person specified in paragraph (3)(a) or (b) (as the case requires) must give notice in writing to the Official Receiver, in accordance with the applicable paragraph, stating the name of the registered trustee, the fact and the date of the removal and whether the removal was by the Court or the creditors.
8.13(3)
The notice must be given:
(a) where paragraph (1)(a) applies - by the applicant to the Court for the removal, as soon as practicable after the making of the order for removal; or
(b) where paragraph (1)(b) applies - by the new trustee of the estate appointed by the creditors under section 181 of the Act, as soon as practicable after the appointment.HistoryReg 8.13(3) amended by SR No 262 of 2001, reg 3 and Sch 1 item 12 by omitting the penalty, effective 5 October 2001. The penalty formerly read:
Penalty: 1 penalty unit.
8.13(4)
An offence against this regulation is an offence of strict liability.Penalty: 1 penalty unit.
Note:
For strict liability , see section 6.1 of the Criminal Code .
HistoryReg 8.13(4) inserted by SR No 262 of 2001, reg 3 and Sch 1 item 13, effective 5 October 2001.
REGULATION 8.14 NOTICE OF FINALISATION OF ADMINISTRATION; ENTRY ON THE INDEX
8.14(1)
A registered trustee must, within 7 days of finalising the administration of an estate, give notice in writing of the finalisation to the Official Receiver.Penalty: 1 penalty unit
HistoryReg 8.14(1) amended by SR No 262 of 2001, reg 3 and Sch 1 item 14 by omitting the note. The note formerly read:
NOTE: For penalty units, see the Crimes Act 1914 , s 4AA. At the date of making these Regulations the amount of a penalty unit is $100.
8.14(2)
The Official Receiver must promptly enter on the Index the fact that the administration of an estate has been finalised, where:
(a) the Official Receiver receives notice under subregulation (1); or
(b) the estate was administered by the Official Trustee.
8.14(3)
An offence against subregulation (1) is an offence of strict liability.Note:
For strict liability , see section 6.1 of the Criminal Code .
HistoryReg 8.14(3) inserted by SR No 262 of 2001, reg 3 and Sch 1 item 15, effective 5 October 2001.
Division 5A - (Omitted)
HistoryDiv 5A, comprising reg 8.14A, omitted by SR No 76 of 1997, r 18.2.
Reg 8.14A inserted by SR No 278 of 1996, r 6.1; amended by SR No 76 of 1997, r 18.1; omitted by SR No 76 of 1997, r 18.2. Reg 8.14A formerly read:
8.14A PRESCRIBED TIMES FOR GIVING ACCOUNTS - SECTION 175 OF THE ACT
For the purposes of subsection 175(1) of the Act, the following times are prescribed:
(a) while the trustee continues to act as trustee:
(i) 28 days after the last day of the period of 6 months commencing when the trustee commenced to act as trustee; and
(ii) 28 days after the last day of each succeeding period of 6 months; and
(b) 28 days after the trustee ceases, for any reason, to act as trustee.R 18 of SR No 76 of 1997 contained the following note:
Note: The amendment made by subr. 18.1 is taken to have commenced on 16 December 1996, and the amendment made by subr. 18.2 commences on the commencement of the Bankruptcy (Estate Charges) Act 1997 : see r. 1. For the continued application, in respect of certain matters, of a regulation after its repeal, see Acts, Interpretation Act 1901 , s. 50.
Division 6 - Variation and termination of registration
HistoryDiv 6 substituted by SR No 255 of 2002, reg 3 and Sch 1 item 15, effective 6 November 2002. Div 6 formerly read:
Division 6 - Transitional
8.15 APPLICATIONS UNDER SUBSECTION 162(5) OF THE ACT
8.15(1)
Where, before the commencement day:
(a) an application was lodged under subsection 162(5) of the Act for review of the amount of remuneration; and
(b) the review had not commenced;the review is to be undertaken by the taxing officer.
8.15(2)
The rules and procedure that applied in relation to a review under subsection 162(5) of the Act are taken to apply, as nearly as practicable, in relation to a review under subregulation (1).
Subdivision 1 - Preliminary
HistorySubdiv 1 inserted by SR No 255 of 2002, reg 3 and Sch 1 item 15, effective 6 November 2002.
SECTION 8.15 REGULATION 8.15 DEFINITIONS
8.15
In this Division, unless the contrary intention appears:application
means an application under subsection 155E(1) of the Act.chairperson
means the chairperson of a committee.committee
means a committee convened under subsection 155E(4) or 155H(2) of the Act.member ,
in relation to a committee, includes the chairperson.HistoryReg 8.15 substituted by SR No 255 of 2002, reg 3 and Sch 1 item 15, effective 6 November 2002. For former wording of reg 8.15, see note under Div 6 heading.
SECTION 8.16 REGULATION 8.16 DOCUMENTS TO ACCOMPANY APPLICATION FOR CHANGE OR REMOVAL OF CONDITIONS
8.16
For paragraph 155E(3)(a) of the Act, an application must be accompanied by 2 references signed by the respective referees, containing the particulars specified in subregulation 8.01(3).HistoryReg 8.16 inserted by SR No 255 of 2002, reg 3 and Sch 15, effective 6 November 2002.
Subdivision 2 - Constitution and procedure of committees generally
HistorySubdiv 2 inserted by SR No 255 of 2002, reg 3 and Sch 1 item 15, effective 6 November 2002.
SECTION 8.17 REGULATION 8.17 CHAIRPERSON OF A COMMITTEE
8.17
The chairperson of a committee is:
(a) the Inspector-General; or
(b) if the Inspector-General appoints another member of the committee as chairperson - that person.HistoryReg 8.17 inserted by SR No 255 of 2002, reg 3 and Sch 1 item 15, effective 6 November 2002.
SECTION 8.18 REGULATION 8.18 TRUSTEE CHOSEN BY THE INSOLVENCY PRACTITIONERS ASSOCIATION OF AUSTRALIA
8.18
A registered trustee chosen by the Insolvency Practitioners Association of Australia under paragraph 155E(5)(c) or 155H(3)(c) of the Act must have practised as a registered trustee for at least 5 years.REGULATION 8.19 RESIGNATION OF CHAIRPERSONHistoryReg 8.18 inserted by SR No 255 of 2002, reg 3 and Sch 1 item 15, effective 6 November 2002.
8.19(1)
A chairperson other than the Inspector-General may resign the office of chairperson by notice in writing signed by the chairperson and given to the Inspector-General.
8.19(2)
A notice of resignation takes effect when the Inspector-General receives it.HistoryReg 8.19 inserted by SR No 255 of 2002, reg 3 and Sch 1 item 15, effective 6 November 2002.
REGULATION 8.20 RESIGNATION OF MEMBERS
8.20(1)
A member of a committee, other than the Inspector-General, may resign from the committee by notice in writing signed by the member and given to the Inspector-General.
8.20(2)
A notice of resignation takes effect when the Inspector-General receives it.HistoryReg 8.20 inserted by SR No 255 of 2002, reg 3 and Sch 1 item 15, effective 6 November 2002.
SECTION 8.21 REGULATION 8.21 DISCLOSURE OF INTERESTS
8.21
If:
(a) a member of a committee convened under subsection 155E(4) of the Act:
(i) is a close relative of the applicant; or
(ii) has a financial or personal relationship with the applicant; or
(b) a member of a committee convened under subsection 155H(2) of the Act:
(i) is a close relative of the trustee concerned; or
(ii) has a financial or personal relationship with the trustee;the member must, as soon as practicable after becoming aware of the identity of the applicant or trustee, disclose the nature of the relationship to the other members of the committee and to the Inspector-General.
REGULATION 8.22 REMOVAL OF MEMBERS FROM A COMMITTEEHistoryReg 8.21 inserted by SR No 255 of 2002, reg 3 and Sch 1 item 15, effective 6 November 2002.
8.22(1)
The Inspector-General may terminate the appointment of a member of a committee if:
(a) the member becomes physically or mentally incapable of performing the duties of a member; or
(b) the member becomes a bankrupt; or
(c) the member signs an authority under section 188 of the Act that is effective for the purposes of Part X of the Act; or
(d) the member becomes a party, as a debtor, to a debt agreement; or
(e) the member has been convicted of an offence involving fraud or dishonesty; or
(f) the member neglects his or her duty as a member.
8.22(2)
The Inspector-General may terminate the appointment of a member of a committee convened under subsection 155E(4) or 155H(2) of the Act if:
(a) the member:
(i) is a close relative of the applicant, or trustee, concerned; or
(ii) has a financial or personal relationship with the applicant or trustee; and
(b) the Inspector-General believes that relationship may affect the impartiality of the member.HistoryReg 8.22 inserted by SR No 255 of 2002, reg 3 and Sch 1 item 15, effective 6 November 2002.
REGULATION 8.23 CONVENING OF A REPLACEMENT COMMITTEE
8.23(1)
This regulation applies if:
(a) either of the following events occurs:
(i) a member of a committee resigns or dies;
(ii) the appointment of a member of a committee is terminated under regulation 8.22; and
(b) at the time of that occurrence, the committee has not made a decision under subsection 155F(1) or 155I(1) of the Act.
8.23(2)
If this regulation applies:
(a) the Inspector-General must convene another committee (the new committee ) in place of the committee referred to in subregulation (1) (the previous committee ); and
(b) the new committee must not have regard to any proceedings of the previous committee.HistoryReg 8.23 inserted by SR No 255 of 2002, reg 3 and Sch 1 item 15, effective 6 November 2002.
REGULATION 8.24 GENERAL PROCEDURES OF A COMMITTEE
8.24(1)
Subject to the Act and this Division, a committee may determine its procedure.
8.24(2)
A committee must observe natural justice.
8.24(3)
A committee is not bound by any rules of evidence but may inform itself on any matter as it sees fit.
8.24(4)
A committee must keep a written record of its decisions.HistoryReg 8.24 inserted by SR No 255 of 2002, reg 3 and Sch 1 item 15, effective 6 November 2002.
REGULATION 8.25 PROCEDURE AT COMMITTEE MEETINGS
8.25(1)
Subject to this regulation, all members of a committee must be present in order to constitute a quorum for a meeting of the committee.
8.25(2)
At a meeting of a committee a matter is to be decided by a majority of the votes of the members.
8.25(3)
Any member may participate in a meeting by telephone.
8.25(4)
A member who participates in a meeting by telephone is taken to be present at the meeting.
8.25(5)
A committee may keep minutes of proceedings at its meetings.HistoryReg 8.25 inserted by SR No 255 of 2002, reg 3 and Sch 1 item 15, effective 6 November 2002.
REGULATION 8.26 RESOLUTIONS WITHOUT MEETING
8.26(1)
If the majority of the members of a committee sign a document containing a statement that they are in favour of a resolution in the terms set out in the document, the resolution is taken to have been passed at a meeting of the committee:
(a) on the day on which the document is signed; or
(b) if the members sign the document on different days - on the day on which the document is signed by the member who makes up the majority.
8.26(2)
Two or more separate documents that are identical in all material respects (apart from signatures), each of which is signed by 1 or more members, are taken for the purposes of subregulation (1) to constitute a single document.HistoryReg 8.26 inserted by SR No 255 of 2002, reg 3 and Sch 1 item 15, effective 6 November 2002.
Subdivision 3 - Inquiries and interviews
REGULATION 8.27 INQUIRIES BY THE COMMITTEEHistorySubdiv 3 inserted by SR No 255 of 2002, reg 3 and Sch 1 item 15, effective 6 November 2002.
8.27(1)
A committee considering an application may make inquiries of any person for the purposes of making a decision under subsection 155F(1) or 155I(1) of the Act.
8.27(2)
Inquiries made must be:
(a) inquiries that are reasonable for the purpose of making an informed decision; or
(b) inquiries that the Chairperson of the committee believes are appropriate in order for the committee to have sufficient information to make the decision.
8.27(3)
Before making a decision that is adverse to a person, a committee must:
(a) inform the person of any information or material that the committee relies on, or proposes to rely on, in making the decision; and
(b) give the person a reasonable opportunity to reply to, or rebut, the information or material.HistoryReg 8.27 inserted by SR No 255 of 2002, reg 3 and Sch 1 item 15, effective 6 November 2002.
SECTION 8.28 REGULATION 8.28 NOTICE OF INTERVIEW (ACT S 155E(6))
8.28
For subsection 155E(6) of the Act, the Inspector-General or authorised employee on the committee must, after consultation with the other members of the committee:
(a) fix a date, time and place for the interview; and
(b) give written notice of that date, time and place to the applicant and the other members of the committee.REGULATION 8.29 CHANGE OF CONDITIONS ON PRACTISING AS A REGISTERED TRUSTEE - INTERVIEWHistoryReg 8.28 amended by SR No 76 of 2003, reg 3 and Sch 1 item 28, by substituting " authorised employee " for " officer of the Department " , effective 5 May 2003.
Reg 8.28 inserted by SR No 255 of 2002, reg 3 and Sch 1 item 15, effective 6 November 2002.
8.29(1)
A committee must interview the applicant as soon as practicable and, for that purpose:
(a) any member of the committee may participate in the interview by telephone; and
(b) the applicant may participate in the interview by telephone.
8.29(2)
A member, or applicant, who participates in an interview in accordance with paragraph (1)(a) or (b) is taken to be present at the interview.
8.29(3)
If the applicant fails to attend, or participate by telephone in, the interview and does not, within 7 days, give the committee a reasonable excuse for that failure:
(a) the application is taken to have lapsed; and
(b) the application fee is not refundable.
8.29(4)
If an applicant who fails to attend, or participate by telephone in, an interview gives the committee, within 7 days, a reasonable excuse for that failure, the committee must arrange another interview date, time and place.
8.29(5)
At an interview, the committee may ask the applicant any question that the committee reasonably believes to be related to:
(a) the application; or
(b) a reference accompanying the application; or
(c) the issue of whether the applicant has the qualifications, experience, knowledge and abilities to perform the functions of a registered trustee.
8.29(6)
A committee must not interview an applicant until:
(a) the Inspector-General has received the references, in relation to the application, mentioned in regulation 8.16; and
(b) any charge imposed by an Act for making the application has been paid.HistoryReg 8.29 inserted by SR No 255 of 2002, reg 3 and Sch 1 item 15, effective 6 November 2002.
REGULATION 8.30 INVOLUNTARY TERMINATION OF REGISTRATION - INTERVIEW
8.30(1)
If the Inspector-General is required under subsection 155H(2) of the Act to convene a committee to consider whether a trustee should continue to be registered, the Inspector-General or authorised employee on the committee must, after consultation with the other members of the committee:
(a) fix a date, time and place for the interview; and
(b) give written notice of that date, time and place to the trustee and the other members of the committee.HistoryReg 8.30(1) amended by SR No 76 of 2003, reg 3 and Sch 1 item 28, by substituting " authorised employee " for " officer of the Department " , effective 5 May 2003.
8.30(2)
The committee must interview the trustee as soon as practicable and, for that purpose:
(a) any member of the committee may participate in the interview by telephone; and
(b) the trustee may participate in the interview by telephone.HistoryReg 8.30(2) amended by SR No 76 of 2003, reg 3 and Sch 1 item 29, by substituting " trustee " for " applicant " , effective 5 May 2003.
8.30(3)
A member, or trustee, who participates in an interview in accordance with paragraph (1)(a) or (b) is taken to be present at the interview.
8.30(4)
If the trustee fails to attend, or participate by telephone in, the interview and does not, within 7 days, give the committee a reasonable excuse for that failure, the committee may proceed with its consideration of the matter.
8.30(5)
If an trustee who fails to attend, or participate by telephone in, an interview gives the committee, within 7 days, a reasonable excuse for that failure, the committee must arrange another interview date, time and place.HistoryReg 8.30(5) amended by SR No 76 of 2003, reg 3 and Sch 1 item 29, by substituting " trustee " for " applicant " , effective 5 May 2003.
Reg 8.30 inserted by SR No 255 of 2002, reg 3 and Sch 1 item 15, effective 6 November 2002.
REGULATION 8.31 REPORT OF COMMITTEE DECISION
8.31(1)
A report under subsection 155F(2) or 155I(4) of the Act must:
(a) be in writing; and
(b) be signed by each member of the committee; and
(c) in the case of a majority decision - set out the reasons of the minority member.
8.31(2)
The report must be given to the applicant or trustee, and to the Inspector-General, within 14 days of the committee making its decision.HistoryReg 8.31 inserted by SR No 255 of 2002, reg 3 and Sch 1 item 15, effective 6 November 2002.
Subdivision 4 - Other committee-related matters
HistorySubdiv 4 (heading) substituted by SR No 256 of 2004, reg 3 and Sch 1 item 4, effective 1 December 2004. The heading formerly read:
Subdivision 4 - Other matters
Subdiv 4 inserted by SR No 255 of 2002, reg 3 and Sch 1 item 15, effective 6 November 2002.
SECTION 8.32 REGULATION 8.32 CONFIDENTIALITY
8.32
A committee must take all reasonable measures to protect from unauthorised use or disclosure information given to it in confidence in, or in connection with, the performance of its functions or the exercise of its powers under the Act or these Regulations.HistoryReg 8.32 inserted by SR No 255 of 2002, reg 3 and Sch 1 item 15, effective 6 November 2002.
SECTION 8.33 REGULATION 8.33 EVIDENCE OF PROCEEDINGS AT COMMITTEE MEETINGS
8.33
In any proceedings, a copy of the minutes of proceedings at a committee meeting, signed by the Chairperson of the committee:
(a) is evidence of the proceedings as recorded in the minutes; and
(b) may be tendered in evidence without further proof.HistoryReg 8.33 inserted by SR No 255 of 2002, reg 3 and Sch 1 item 15, effective 6 November 2002.
SECTION 8.34 REGULATION 8.34 TIME FOR DECIDING MATTERS (ACT S 155I(1))
8.34
A committee must decide a matter under subsection 155I(1) of the Act within 60 days of being convened.HistoryReg 8.34 inserted by SR No 255 of 2002, reg 3 and Sch 1 item 15, effective 6 November 2002.
Subdivision 4A - Standards for trustees
REGULATION 8.34A PERFORMANCE STANDARDS FOR TRUSTEES (INCLUDING CONTROLLING TRUSTEES)HistorySubdiv 4A inserted by SR No 256 of 2004, reg 3 and Sch 1 item 5, effective 1 December 2004.
8.34A(1)
For subsection 155H(5) of the Act, the standards applicable to the exercise of powers, or the carrying out of duties, of registered trustees are set out in Schedule 4A.
8.34A(2)
For subsection 188(2A) of the Act, the standards in Parts 1, 2 and 5 of Schedule 4A also apply to a solicitor who is a controlling trustee.HistoryReg 8.34A inserted by SR No 256 of 2004, reg 3 and Sch 1 item 5, effective 1 December 2005.
Subdivision 5 - Controlling trustees other than Official Trustee or registered trustees
REGULATION 8.35 ELIGIBILITY OF CONTROLLING TRUSTEES, OTHER THAN OFFICIAL TRUSTEE OR REGISTERED TRUSTEESHistorySubdiv 5 inserted by SR No 76 of 2003, reg 3 and Sch 1 item 8, effective 5 May 2003.
8.35(1)
For subsection 188(2A) of the Act, a person (other than the Official Trustee or a registered trustee) is not eligible to act as a controlling trustee if the person:
(a) is convicted of a criminal offence involving fraud or dishonesty, or was so convicted within the 10 years before the proposed authorisation; or
(b) is not insured against the liabilities the trustee may become subject to as a controlling trustee; or
(c) is a solicitor who no longer holds a practising certificate; or
(d) is an undischarged bankrupt or insolvent under administration, or became a party (as debtor) to a debt agreement or a Part X administration within the 10 years before the proposed authorisation; or
(e) is a person who the Inspector-General decides under subregulation (2) has failed to properly exercise powers or carry out duties or to cooperate with an inquiry or investigation, or in relation to whom such a decision was made within the 3 years before the proposed authorisation; or
(f) either:
(i) is not a full member of the Insolvency Practitioners Association of Australia; or
(ii) has not satisfactorily completed a course in insolvency approved by the Inspector-General.HistoryReg 8.35(1) amended by SLI 2010 No 195, reg 3 and Sch 1 item 14, by substituting para (f), effective 1 August 2010. Para (f) formerly read:
(f) has not, by 1 December 2006
(i) become a full member of the Insolvency Practitioners Association of Australia; or
(ii) satisfactorily completed a course in insolvency approved by the Inspector-General.Reg 8.35(1) amended by SR No 256 of 2004, reg 3 and Sch 1 items 6 and 7, by substituting " authorisation; or " for " authorisation. " in para (e) and inserting para (f), effective 1 December 2004.
8.35(1A)
The Inspector-General may approve a course in insolvency by notice published on the Insolvency and Trustee Service Australia's website.Note:
Paper copies of the notice are available from the Insolvency and Trustee Service Australia on request.
HistoryReg 8.35(1A) inserted by SR No 256 of 2004, reg 3 and Sch 1 item 8, effective 1 December 2004.
8.35(2)
In addition to subregulation (1), a person who is, or has been, a controlling trustee is not eligible to act as a controlling trustee if the Inspector-General determines that the person:
(a) has failed to properly exercise the powers, or carry out the duties, of a controlling trustee, including meeting a standard applicable to a controlling trustee set out in Schedule 4A; or
(b) has refused, or failed to cooperate with the Inspector-General in an inquiry or investigation under paragraph 12(1)(b) of the Act.HistoryReg 8.35(2) amended by SR No 256 of 2004, reg 3 and Sch 1 item 9, by substituting para (a), effective 1 December 2004. Para (a) formerly read:
(a) has failed to properly:
(i) exercise the powers of a controlling trustee; or
(ii) carry out the duties or obligations of a controlling trustee; or
8.35(3)
If the Inspector-General forms an opinion of the kind mentioned in paragraph (2)(a) or (b), the Inspector-General must:
(a) by written notice, tell the person; and
(b) invite the person to respond within 28 days or such longer time as is specified in the notice.
8.35(4)
After the expiry of the time mentioned in paragraph (3)(b), the Inspector-General may, having regard to the response (if any) of the person, make a determination under subregulation (2).
8.35(5)
If the Inspector-General makes a determination under subregulation (2), the Inspector-General must give the person a written notice of the determination, setting out the reasons.HistoryReg 8.35 inserted by SR No 76 of 2003, reg 3 and Sch 1 item 8, effective 5 May 2003.
REGULATION 8.36 REVIEW BY TRIBUNAL OF DETERMINATION UNDER SUBREGULATION 8.35(2)
8.36
Application may be made to the Administrative Appeals Tribunal for a review of a determination of the Inspector-General under subregulation 8.35(2).REGULATION 8.37 OFFICIAL TRUSTEE TO PERFORM DUTIESHistoryReg 8.36 inserted by SR No 76 of 2003, reg 3 and Sch 1 item 8, effective 5 May 2003.
8.37
If a controlling trustee becomes ineligible to act as a controlling trustee then, unless and until the debtor appoints a controlling trustee who is eligible to so act, the Official Trustee must perform the duties of the controlling trustee.HistoryReg 8.37 amended by SLI No 4 of 2006, reg 3 and Sch 1 item 3, by substituting " to act as a controlling trustee " for " to act a controlling trustee " , effective 17 February 2006.
Reg 8.37 inserted by SR No 76 of 2003, reg 3 and Sch 1 item 8, effective 5 May 2003.
Div 2 substituted by FRLI No F2016L01926, reg 4 and Sch 1 item 54, effective 1 September 2017. For former wordings, see note under pt 8 heading.
For the purposes of subsection 188(2A) of the Act, a person (other than the Official Trustee or a registered trustee) is not eligible to act as a controlling trustee if the person:
(a) is convicted of a criminal offence involving fraud or dishonesty, or was so convicted within the 10 years before the proposed authorisation; or
(b) is not insured against the liabilities the person may become subject to as a controlling trustee; or
(c) is a solicitor who no longer holds a practising certificate; or
(d) is an undischarged bankrupt or insolvent under administration, or became a party (as debtor) to a debt agreement or a Part X administration within the 10 years before the proposed authorisation; or
(e) is a person who the Inspector-General decides under subregulation (3) has failed to properly exercise powers or carry out duties or to cooperate with an inquiry or investigation, or in relation to whom such a decision was made within the 3 years before the proposed authorisation; or
(f) either:
(i) is not a full member of the Australian Restructuring Insolvency and Turnaround Association; or
(ii) has not satisfactorily completed a course in insolvency approved by the Inspector-General.
8.35(2)
The Inspector-General may approve a course in insolvency by notice published on the Australian Financial Security Authority ' s website.
8.35(3)
In addition to subregulation (1), a person who is, or has been, a controlling trustee is not eligible to act as a controlling trustee if the Inspector-General determines that the person:
(a) has failed to properly exercise the powers, or carry out the duties, of a controlling trustee; or
(b) has refused, or failed to cooperate with the Inspector-General in an inquiry or investigation under paragraph 12(1)(b) of the Act.
8.35(4)
If the Inspector-General forms an opinion of the kind mentioned in paragraph (3)(a) or (b), the Inspector-General must:
(a) by written notice, tell the person; and
(b) invite the person to respond within 28 days or such longer time as is specified in the notice.
8.35(5)
After the expiry of the time mentioned in paragraph (4)(b), the Inspector-General may, having regard to the response (if any) of the person, make a determination under subregulation (3).
8.35(6)
If the Inspector-General makes a determination under subregulation (3), the Inspector-General must give the person a written notice of the determination, setting out the reasons.
Reg 8.35 substituted by FRLI No F2016L01926, reg 4 and Sch 1 item 54, effective 1 September 2017. For former wordings, see note under pt 8 heading.
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