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 3
-
General provisions
SECTION 222
COURT MAY SET ASIDE PERSONAL INSOLVENCY AGREEMENT
222(1)
Setting aside on grounds of unreasonableness etc.
If a personal insolvency agreement is in force, the Court may, on application by:
(a)
the Inspector-General; or
(b)
the trustee; or
(c)
a creditor;
make an order setting the agreement aside if the Court is satisfied that:
(d)
the terms of the agreement are unreasonable or are not calculated to benefit the creditors generally; or
(e)
for any other reason, the agreement ought to be set aside.
222(2)
Setting aside on grounds of non-compliance with this Part etc.
If a personal insolvency agreement is in force, the Court may, on application by:
(a)
the Inspector-General; or
(b)
the trustee; or
(c)
a creditor; or
(d)
the debtor;
make an order setting the agreement aside if the Court is satisfied that:
(e)
the agreement was not entered into in accordance with this Part; or
(f)
the agreement does not comply with the requirements of this Part.
222(3)
The Court must not make an order setting aside a personal insolvency agreement on the ground that it does not comply with the requirements of this Part if the agreement complies substantially with those requirements.
222(4)
The Court must not make an order under subsection (2) unless the application for the order is made before all the obligations that the personal insolvency agreement created have been discharged.
222(5)
Setting aside on grounds of false or misleading information etc.
If a personal insolvency agreement is in force, the Court may, on application by:
(a)
the Inspector-General; or
(b)
the trustee; or
(c)
a creditor;
make an order setting the agreement aside if the Court is satisfied that:
(d)
the debtor has given false or misleading information in answer to a question put to the debtor with respect to any of the debtor
'
s conduct or examinable affairs at the meeting of creditors at which the resolution requiring the debtor to execute the agreement was passed; or
(e)
the debtor has:
(i)
omitted a material particular from the statement of the debtor
'
s affairs given under subsection
188(2C)
or
(2D)
; or
(ii)
included an incorrect and material particular in that statement; or
(f)
the debtor was subject to a requirement under Division
75
of Schedule
2
(including rules made under that Division) to table a statement, and the debtor has:
(i)
omitted a material particular from that statement; or
(ii)
included an incorrect and material particular in that statement; or
(g)
the controlling trustee has:
(i)
omitted a material particular from the declaration given by the controlling trustee under subsection
189A(3)
; or
(ii)
included an incorrect and material particular in that declaration; or
(h)
the controlling trustee was subject to a requirement under Division
75
of Schedule
2
(including rules made under that Division) to table a statement, and the controlling trustee has:
(i)
omitted a material particular from that statement; or
(ii)
included an incorrect and material particular in that statement; or
(i)
a person who became the trustee of the agreement has:
(i)
omitted a material particular from the declaration given by the person under subsection
215A(3)
or
(4)
; or
(ii)
included an incorrect and material particular in that declaration.
History
S 222(5) amended by No 11 of 2016, s 3 and Sch 1 items 80 and 81, by substituting
"
Division 75 of Schedule 2 (including rules made under that Division)
"
for
"
subsection 194A(3)
"
in para (f) and
"
Division 75 of Schedule 2 (including rules made under that Division)
"
for
"
subsection 194A(5)
"
in para (h), applicable in relation to the administration of regulated debtors
'
estates on and after 1 September 2017.
222(6)
The Court must not make an order under subsection (5) unless it is satisfied that it would be in the interests of the creditors to do so.
222(7)
The Court must not make an order under subsection (5) unless the application for the order is made before all the obligations that the personal insolvency agreement created have been discharged.
222(8)
Ancillary orders.
If the Court makes an order under subsection (1), (2) or (5), the Court may make such other orders as the Court thinks fit.
222(9)
An order under subsection (8) may be an order directing a person to pay another person compensation of such amount as is specified in the order. This subsection does not limit subsection (8).
222(10)
Application for sequestration order.
The trustee or a creditor may include in an application under subsection (1), (2) or (5) an application for a sequestration order against the estate of the debtor. If the Court, on the first-mentioned application, makes an order under this section setting the personal insolvency agreement aside, it may, if it thinks fit, immediately make the sequestration order sought.
222(11)
The making of an application by the trustee or a creditor for a sequestration order under this section is taken, for the purposes of this Act, to be equivalent to the presentation of a creditor
'
s petition against the debtor, but the provisions of subsection
43(1)
, sections
44
and
47
, subsections
52(1)
and
(2)
and Part
XIA
do not apply in relation to such an application.
222(12)
Court may dispense with service on debtor of notice of application.
The Court may, if it thinks fit, dispense with service on the debtor of notice of an application by the Inspector-General, the trustee or a creditor under this section, either unconditionally or subject to conditions.
History
S 222, 222A, 222B, 222C and 222D substituted for s 222 by No 80 of 2004, s 3 and Sch 1 item 142, effective 1 December 2004. For transitional provisions, see note under Part X heading. S 222 formerly read:
222 POWER OF THE COURT TO DECLARE DEED OR COMPOSITION VOID
222(1)
Where there is a doubt, on a specific ground, whether a deed of assignment or a deed of arrangement was entered into in accordance with this Part or complies with the requirements of this Part, or whether a composition has been accepted by a special resolution of a meeting of creditors under section 204, the Inspector-General, the trustee, a creditor or the debtor may apply to the Court for an order under subsection (2).
History
S 222(1) amended by No 12 of 1980, s 117; No 119 of 1987, s 79(1); No 44 of 1996, Sch 1, Pt 1(371).
222(2)
Upon the hearing of an application made under subsection (1), the Court may, subject to this section, make an order:
(a)
declaring that the deed or composition is void, or that it is not void, on the ground specified in the application; or
(b)
declaring that a provision of the deed is void, or is not void, on the ground specified in the application.
History
S 222(2) substituted by No 12 of 1980, s 117.
222(3)
The Court shall not make an order declaring a deed to be void on the ground that it does not comply with the requirements of this Part if the deed complies substantially with those requirements.
222(4)
Where the Court, on the application of the Inspector-General, the trustee or a creditor, is satisfied that the debtor:
(a)
has given false or misleading information in answer to a question put to him or her with respect to any of his or her conduct or examinable affairs at the meeting of creditors at which the resolution requiring him or her to execute the deed or accepting the composition was passed; or
(b)
has omitted a material particular from the statement of the debtor
'
s affairs given under section 188A or included an incorrect and material particular in that statement;
the Court may make an order declaring the deed or composition to be void or declaring any provision of the deed or composition to be void.
History
S 222(4) amended by No 131 of 2002, s 3 and Sch 1 item 173, by substituting
"
section 188A
"
for
"
subsection 188(2)
"
in para (b), effective 5 May 2003.
S 222(4) amended by No 12 of 1980, s 117; No 119 of 1987, s 79(1); No 44 of 1996, Sch 1, Pt 1(371).
222(5)
The Court shall not make an order declaring a deed or composition, or a provision of a deed or composition, to be void on a ground specified in subsection (4) unless it is satisfied that it would be in the interests of the creditors to do so.
History
S 222(5) amended by No 12 of 1980, s 117.
222(6)
The Court shall not make an order under subsection (2) or (4) unless the application for the order is made:
(a)
in relation to a deed of assignment
-
before the final dividend has been paid under the deed;
(b)
in relation to a deed of arrangement
-
before the terms of the deed have been carried out; or
(c)
in relation to a composition
-
before the final payment has been made under the composition.
222(7)
The trustee or a creditor may include in an application under subsection (1) or (4) an application for a sequestration order against the estate of the debtor and if the Court, on the first-mentioned application, makes an order under subsection (2) or (4) declaring the deed or composition to which it relates to be void, it may, if it thinks fit, forthwith make the sequestration order sought.
222(8)
The Court may, if it thinks fit, dispense with service on the debtor of notice of an application by the trustee or a creditor under this section, either unconditionally or subject to conditions.
222(9)
The making of an application by the trustee or a creditor for a sequestration order under this section shall, for the purposes of this Act, be deemed to be equivalent to the presentation of a creditor
'
s petition against the debtor, but the provisions of subsection 43(1), sections 44 and 47, subsections 52(1) and (2) and Part XIA do not apply in relation to such an application.
History
S 222(9) amended by No 122 of 1970, s 11.
222(10)
(Omitted by No 44 of 1996, Sch 1, Pt 1(372).)
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