Bankruptcy Amendment Regulations 2004 (No. 1) (256 of 2004)

Schedule 1   Amendments (regulation 3)

11   Part 10

substitute

Part 10 Personal insolvency agreements

10.01 Modifications of Part X of the Act  - joint debtors

For section 187A of the Act, a provision of Part X of the Act specified in Part 1 of Schedule 6 is modified in accordance with that Part in relation to its application, in accordance with that section, to joint debtors, whether partners or not.

10.02 Information to be given to debtor (Act ss 188 (2AA) and (2AB))

(1) For subsections 188 (2AA) and (2AB) of the Act, the following information is prescribed:

(a) information about the consequences of entering into a personal insolvency agreement;

(b) information about sources of financial advice and guidance to persons facing or contemplating entering into a personal insolvency agreement;

(c) information about whether a personal insolvency agreement may be administered by a registered trustee or the Official Trustee;

(d) a statement that it is an act of bankruptcy if a debtor does any of the things mentioned in paragraphs 40 (1) (i) to (m) of the Act;

(e) information about the processes under Part X of the Act;

(f) information about a debtor's rights and responsibilities under Part X of the Act, including a debtor's obligation to disclose all related entities;

(g) information about a controlling trustee's obligation to disclose his or her relationship with a debtor.

(2) The information must be factual and objective.

(3) A person authorised under subsection 188 (1) of the Act to take control of a debtor's property must not consent to exercise the powers given by the authority unless the debtor has given the person a signed acknowledgement (which may be included with or appended to the authority) that the debtor has received and read the prescribed information.

(4) Subregulation (5) applies if a debtor intending to sign an authority is unable to properly read the authority, prescribed information and acknowledgement ( the relevant material ) because he or she is:

(a) blind, partially sighted, illiterate or partially literate; or

(b) insufficiently familiar with the English language.

(5) The authority and acknowledgement may be signed by another person if that person signs a statement to the effect that:

(a) if paragraph (4) (a) applies  - he or she has carefully read the relevant material to the debtor; or

(b) if paragraph (4) (b) applies  - he or she has carefully interpreted the relevant material to the debtor in a language that both persons understand.

10.03 Documents under section 188 of Act

(1) A registered trustee or solicitor who consents to exercise the powers given by an authority under section 188 of the Act must sign a consent in accordance with the approved form.

(2) The registered trustee or solicitor must, within 2 working days of consenting, give to the Official Receiver for the District in which the debtor resides, a copy of:

(a) the signed form; and

(b) the proposal for dealing with the debtor's affairs under Part X of the Act.

Note 1   Subsection 188 (2E) of the Act provides that a proposal for dealing with a debtor's affairs under Part X of the Act must include a draft personal insolvency agreement.

Note 2   Under subsection 188 (5) of the Act, a registered trustee or solicitor who consents to exercise the powers given by an authority must also give to the Official Receiver for the District in which the debtor resides, a copy of the authority and the debtor's statement of affairs.

10.04 Documents for meeting called under an authority under section 188 of the Act

At least 10 days before the first meeting of creditors is called under an authority under section 188 of the Act, the controlling trustee must give to the Official Receiver for the District in which the debtor resides, to the debtor and to each creditor:

(a) notice in writing of the date, time and place of the meeting; and

(b) a copy of the controlling trustee's report, prepared in accordance with subsection 189A (1) of the Act, in relation to the debtor's affairs; and

(c) a copy of the controlling trustee's statement, prepared in accordance with subsection 189B (1) of the Act, in relation to special resolutions expected to be passed at the meeting; and

(d) a notice that includes the basis and the method on which the controlling trustee seeks to be remunerated, and, if appropriate, an estimate of the expected level of the controlling trustee's remuneration; and

(e) if the controlling trustee claims remuneration calculated by reference to an hourly rate  - a notice stating:

(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; and

(f) a notice informing the debtor and each creditor of their right, within 28 days of receiving notice of a controlling trustee's claim for remuneration, to request that the claim be taxed.

Note   Section 194 of the Act sets out the time for when a meeting that is to be called under an authority under section 188 of the Act must be held.

10.05 Modifications of Division 5 of Part IV of the
Act  - meetings called under authorities under section 188 of the Act

For section 196 of the Act, a provision of Division 5 of Part IV of the Act specified in Part 2 of Schedule 6 is modified in accordance with that Part in relation to its application, in accordance with that section, to a meeting called under an authority under section 188 of the Act.

10.06 Controlling trustee to give Official Receiver copy of special resolution and certain particulars for the Index

(1) If, at a meeting called under an authority under section 188 of the Act, a special resolution is passed under subsection 204 (1) of the Act, the controlling trustee must give to the Official Receiver, within 7 days after the date when the resolution is passed:

(a) a copy of the resolution; and

(b) written notice specifying the following particulars for entry in the Index:

(i) the date of the resolution;

(ii) in respect of the debtor:

(A) the debtor's full name, and any alias;

(B) the debtor's address;

(C) the debtor's occupation (if any);

(iii) if the resolution requires the debtor to execute a personal insolvency agreement  - the name of each person nominated under subsection 204 (3) of the Act to be a trustee of the agreement.

Penalty:   1 penalty unit.

(2) An offence against subregulation (1) is an offence of strict liability.

10.07 Modifications of Part VIII of the Act  - controlling trustees and trustees of personal insolvency agreements

For section 210 of the Act, a provision of Part VIII of the Act specified in Part 3 of Schedule 6 is modified in accordance with that Part in relation to its application, in accordance with that section, to the controlling trustee in relation to a debtor.

10.08 Modifications of Division 1 of Part V of the Act  - debtors whose property is subject to control under Division 2 of Part X of the Act

For subsection 211 (1) of the Act, a provision in Division 1 of Part V of the Act specified in Part 4 of Schedule 6 is modified in accordance with that Part in relation to its application, in accordance with that subsection, to a debtor whose property is subject to control under Division 2 of Part X of the Act.

10.09 Meeting if trustee does not execute personal insolvency agreement

(1) A meeting of creditors under subsection 217 (1) of the Act must be called in accordance with a written notice of the meeting that was given at least 7 days before the meeting to each of the following persons (other than the person giving the notice):

(a) the debtor;

(b) the trustee required to execute the personal insolvency agreement;

(c) each creditor whose identity and address are known to, or can reasonably be discovered by, the person giving the notice.

(2) A notice under subregulation (1) must set out the terms of any resolution proposed under subsection 217 (1) of the Act that is known to the person giving the notice.

10.10 Notification of personal insolvency agreement

A notification under paragraph 218 (1) (a) of the Act must be in writing.

Note   Regulation 16.01 applies to a notification under paragraph 218 (1) (a) of the Act.

10.11 Sequestration order, or order terminating or setting aside a personal insolvency agreement  - notice to Official Receiver (Act s 221, s 222 and s 222C)

(1) This regulation does not apply in relation to an applicant who is the Official Trustee, the Inspector-General or a person authorised by the Inspector-General under subsection 222 (1) or (5) of the Act.

(2) If the Court makes a sequestration order under subsection 221 (1), 222 (10) or 222C (5) of the Act, the applicant for the order must give a copy of the order to the Official Receiver.

(3) If the Court makes an order:

(a) under subsection 222 (1), (2) or (5) of the Act, setting aside a personal insolvency agreement; or

(b) under subsection 222C (1) of the Act, terminating a personal insolvency agreement;

the applicant for the order must give a copy of the order to the Official Receiver.

(4) A copy of an order required by this regulation to be given to the Official Receiver must be given within 2 days after the order is made.

Penalty:   1 penalty unit.

(5) An offence against subregulation (4) is an offence of strict liability.

10.12 Termination of personal insolvency agreement by trustee (Act s 222A)

(1) If a personal insolvency agreement is terminated in accordance with section 222A of the Act, the trustee of the agreement must immediately give written notice of the termination to the Official Receiver.

Penalty:   1 penalty unit.

(2) An offence against subregulation (1) is an offence of strict liability.

10.13 Modifications of Parts V and VI of the Act  - personal insolvency agreements

(1) For subsection 231 (1) of the Act, the provision specified in Part 5 of Schedule 6 is modified in accordance with that Part in relation to its application, in accordance with that subsection, to a debtor who has executed a personal insolvency agreement.

(2) For subsection 231 (3) of the Act, a provision specified in Part 6 of Schedule 6 is modified in accordance with that Part in relation to its application, in accordance with that subsection, to a personal insolvency agreement.

(3) For subsection 231 (5) of the Act, the provision specified in Part 7 of Schedule 6 is modified in accordance with that Part in relation to its application, in accordance with that subsection, to a trustee of a personal insolvency agreement.

10.14 Certificate relating to realisation of divisible property and non-availability of dividend

(1) If the trustee of a personal insolvency agreement is satisfied that the divisible property of the debtor has, so far as practicable, been realised and no dividend is payable to the creditors, the trustee must, on written request by the debtor, give the debtor a certificate signed by the trustee to that effect.

(2) The trustee must give the certificate to the debtor within 7 days of receiving the written request.

(3) In any proceeding, a certificate signed by the trustee under subregulation (1):

(a) is evidence of the facts stated in it; and

(b) may be tendered in evidence without further proof.

(4) If the trustee gives a certificate to the debtor under subsection 232 (1) of the Act or subregulation (1), the trustee must, within 7 days of giving the certificate, give a copy of the certificate to the Official Receiver.

Penalty:   1 penalty unit.

(5) An offence against subregulation (4) is an offence of strict liability.