PART X
-
PERSONAL INSOLVENCY AGREEMENTS
History
Pt X heading substituted by No 80 of 2004, s 3 and Sch 1 item 44, effective 1 December 2004. No 80 of 2004, s 3 and Sch 1 items 212, 213 and 215 contained the following transitional provisions:
212 Transitional
-
pre-commencement deeds and compositions
(1)
For the purposes of this item, if a deed of assignment or a deed of arrangement was executed by a debtor and a trustee under Part X of the
Bankruptcy Act 1966
before 1 December 2004, the deed is a
pre-commencement deed
.
(2)
For the purposes of this item, if a composition was accepted before 1 December 2004 by a special resolution of a meeting of creditors under section 204 of the
Bankruptcy Act 1966
, the composition is a
pre-commencement composition
.
(3)
Despite the repeals and amendments made by Parts 1 and 2 of this Schedule:
(a)
the
Bankruptcy Act 1966
and regulations under that Act; and
(b)
the Acts amended by Part 2 of this Schedule;
continue to apply, in relation to:
(c)
a pre-commencement deed; and
(d)
a pre-commencement composition; and
(e)
any matter connected with, or arising out of:
(i)
a pre-commencement deed; or
(ii)
a pre-commencement composition;
as if those repeals had not happened and those amendments had not been made.
213 Transitional
-
pre-commencement authorities
(1)
For the purposes of this item, if:
(a)
an authority given by a debtor under section 188 of the
Bankruptcy Act 1966
became effective before 1 December 2004; and
(b)
as at 1 December 2004, none of the following had happened:
(i)
the execution by the debtor and the trustee of a deed of assignment under Part X of the
Bankruptcy Act 1966
;
(ii)
the execution by the debtor and the trustee of a deed of arrangement under Part X of the
Bankruptcy Act 1966
;
(iii)
the acceptance of a composition by a special resolution of a meeting of the debtor
'
s creditors under section 204 of the
Bankruptcy Act 1966
;
the authority is a
pre-commencement authority
.
(2)
Despite the repeals and amendments made by Parts 1 and 2 of this Schedule:
(a)
the
Bankruptcy Act 1966
and regulations under that Act; and
(b)
the Acts amended by Part 2 of this Schedule;
continue to apply, in relation to:
(c)
a pre-commencement authority; and
(d)
the control of the debtor
'
s property following a pre-commencement authority becoming effective; and
(e)
a meeting of the debtor
'
s creditors called under a pre-commencement authority; and
(f)
whichever of the following is applicable:
(i)
a deed of assignment executed after 1 December 2004 by the debtor and the trustee under Part X of the
Bankruptcy Act 1966
in accordance with a special resolution of such a meeting;
(ii)
a deed of arrangement executed after 1 December 2004 by the debtor and the trustee under Part X of the
Bankruptcy Act 1966
in accordance with a special resolution of such a meeting;
(iii)
a composition accepted after 1 December 2004 by a special resolution of such a meeting; and
(g)
any other matter connected with, or arising out of:
(i)
a pre-commencement authority; or
(ii)
a deed of assignment mentioned in subparagraph (f)(i); or
(iii)
a deed of arrangement mentioned in subparagraph (f)(ii); or
(iv)
a composition mentioned in subparagraph (f)(iii);
as if those repeals had not happened and those amendments had not been made.
…
215 Transitional
-
regulations
(1)
The regulations may make provision for matters of a transitional nature arising from the amendments made by Parts 1 and 2 of this Schedule.
(2)
The Governor-General may make regulations for the purposes of subitem (1).
Part X heading formerly read:
PART X
-
ARRANGEMENTS WITH CREDITORS WITHOUT SEQUESTRATION
Division 2
-
Meeting of creditors and control of debtor
'
s property
SECTION 207
SURRENDER OF SECURITY ETC. WHERE SECURED CREDITOR HAS VOTED
207(1)
[Circumstances where Court approval required]
Where a secured creditor has estimated the value of his or her security for the purposes of voting at a meeting of creditors at which a special resolution requiring the debtor to execute a personal insolvency agreement was passed:
(a)
he or she is not entitled to estimate the value of the security for the purposes of proving part of his or her debt under the agreement at any other amount except with the approval of the Court; and
(b)
he or she shall, upon request in writing by the trustee of a personal insolvency agreement executed in accordance with the special resolution, surrender the security upon payment of the amount at which he or she has estimated the value of his or her security for the purposes of voting or, if the Court has approved his or her estimating the value of his or her security at another amount under paragraph (a), upon payment of that other amount.
History
S 207(1) amended by No 80 of 2004, s 3 and Sch 1 items 111 to 113, by substituting
"
personal insolvency agreement
"
for
"
deed of assignment or a deed of arrangement or accepting a composition
"
, substituting
"
agreement
"
for
"
deed or composition
"
in para (a) and substituting
"
personal insolvency agreement executed in accordance with the special resolution
"
for
"
deed executed in pursuance of the special resolution or of the composition, as the case may be
"
in para (b), effective 1 December 2004. For transitional provisions, see note under Part X heading.
S 207(1) amended by No 131 of 2002, s 3 and Sch 1 item 171, by omitting
"
under section 198
"
after
"
or her security
"
, effective 5 May 2003.
207(2)
[Circumstances where surrender approved]
The Court shall not grant its approval under paragraph (1)(a) unless it is satisfied that:
(a)
the estimate made for the purposes of voting was made in good faith on a mistaken basis; or
(b)
the value of the security has changed since that estimate was made.
207(3)
[Effect of voting]
Subject to subsection (4), where a secured creditor has voted at a meeting of creditors at which a special resolution referred to in subsection (1) was passed in respect of the whole of his or her debt without having surrendered his or her security:
(a)
he or she shall be deemed to have estimated his or her security as having no value; and
(b)
he or she shall, upon request in writing by the trustee of a personal insolvency agreement executed in accordance with the special resolution, surrender the security.
History
S 207(3) amended by No 80 of 2004, s 3 and Sch 1 item 114, by substituting
"
personal insolvency agreement executed in accordance with the special resolution
"
for
"
deed executed in pursuance of the special resolution or the trustee of the composition, as the case may be
"
in para (b), effective 1 December 2004. For transitional provisions, see note under Part X heading.
S 207(3) amended by No 131 of 2002, s 3 and Sch 1 item 172, by omitting
"
as required by section 198
"
after
"
or her security
"
, effective 5 May 2003.
207(4)
[Secured creditor may apply to Court for relief]
The Court may, upon application by a secured creditor to whom subsection (3) applies, if it is satisfied that his or her failure to estimate the value of his or her security was due to inadvertence, upon such terms as the Court considers just and equitable:
(a)
relieve him or her from the obligation to surrender the security; and
(b)
permit him or her to estimate its value for the purposes of proving part of his or her debt under the personal insolvency agreement.
History
S 207(4) amended by No 80 of 2004, s 3 and Sch 1 item 115, by substituting
"
personal insolvency agreement
"
for
"
deed or composition
"
in para (b), effective 1 December 2004. For transitional provisions, see note under Part X heading.
207(5)
[Failure to reply to request to surrender]
Subject to subsection (4), if a creditor referred to in subsection (1) or (3) fails to comply with a request in writing under that subsection, the trustee by whom the request was made may apply to the Court for an order requiring the creditor to surrender the security to which the request related and the Court may make an order accordingly.
207(6)
[Limitation of rights of secured creditor]
The right conferred on a secured creditor under section
90
, as applied in relation to personal insolvency agreements, to realize his or her security and prove for the balance due to him or her is not exercisable where the trustee of such an agreement has requested the surrender of the security under this section.
History
S 207(6) amended by No 80 of 2004, s 3 and Sch 1 items 116 and 117, by substituting
"
personal insolvency agreements
"
for
"
deeds of assignment, deeds of arrangement and compositions under this Part
"
and substituting
"
an agreement
"
for
"
a deed or composition
"
, effective 1 December 2004. For transitional provisions, see note under Part X heading.
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