Bankruptcy Regulations (Amendment) 1997

(76 of 1997)

7 April 1997

Made under Bankruptcy Act 1966

1.   Commencement

1.1 Subregulation 18.1 and regulations 29 and 30 are taken to have commenced on 16 December 1996.

1.2 Subregulation 18.2, regulations 26, 32, 33 and 34, subregulations 35.2 and 38.3 and regulation 40 commence on the commencement of the Bankruptcy (Estate Charges) Act 1997.

[NOTES: 1. Some of the amendments made by the provisions specified in subregulation. 1.2 are consequent on amendments of the Bankruptcy Act 1966 made by Schedule 1 of the Bankruptcy Amendment Act 1997. That Schedule commences on the commencement of the Bankruptcy (Estate Charges) Act 1997. The remainder of those amendments relate to the Bankruptcy (Estate Charges) Act 1997.

2. The remainder of these Regulations commence on gazettal: see Acts Interpretation Act 1901, s. 48.]

2.   Amendment

2.1 The Bankruptcy Regulations are amended as set out in these Regulations.

3.   Regulation 2.01 (Section 20J of the Act - prescribed rate of interest on moneys in Common Fund)

3.1 Omit from the note following regulation 2.01 "subsection 20J (3)", substitute "subsections 20J (2) and (4)".

4.   New regulation 4.02A

4.1 After regulation 4.02, insert:

Service of bankruptcy notices

" 4.02A. (1) This regulation applies to the following kinds of bankruptcy notice:

(a) a bankruptcy notice issued on or after the commencement date;

(b) a bankruptcy notice issued before the commencement date if, immediately before the commencement date, service of the bankruptcy notice would have been effective under rule 9 of the Bankruptcy Rules.

" (2) Subject to subregulation (3), a bankruptcy notice must be served within:

(a) the period of 6 months commencing on the date of issue of the bankruptcy notice; or

(b) any further period that the Official Receiver allows (whether within or outside that period of 6 months).

" (3) A bankruptcy notice may, in any event, be served within the period of 3 months commencing on the day on which this regulation commences.".

5.   Regulation 4.05 (Copy of petition, etc to be given to Official Receiver)

5.1 Regulation 4.05:

After "3", insert "working".

5.2 Regulation 4.05:

Add at the end:

" (2) The time within which, under subsection 52 (1A) of the Act, a creditor must give a copy of a sequestration order to the Official Receiver is 2 working days after the making of the order.".

6.   Regulation 4.11 (Prescribed information to be supplied by Official Receiver to debtor)

6.1 Subregulation 4.11 (3):

Omit "Act", substitute "Act, or a debt agreement proposal under Division 2 of Part IX of the Act,".

7.   Regulation 4.17 (Inspection and copying of statement of affairs, composition or scheme of arrangement)

7.1 Omit the regulation, substitute:

Inspection and copying of composition or scheme of arrangement

" 4.17 . Where a proposal for a composition or scheme of arrangement in relation to a bankrupt has been accepted under subsection 73 (4) of the Act the person may, personally or by an agent, inspect and copy the composition or scheme of arrangement.

[NOTE: Except in the case of a person who states in writing that he or she is a person who is a creditor of the bankrupt, a fee is payable in accordance with item 6 of Schedule 9.]".

8.   Regulation 6.02 (Maximum amount payable to employee)

8.1 Paragraph 6.02 (1) (a):

After "occurring" insert "or continuing".

9.   Regulation 6.03 (Household property)

9.1 Paragraph 6.03 (3) (a):

Omit "(5);", substitute "(4);".

9.2 Paragraph 6.03 (4) (e):

After "likely", insert "to".

10.   Regulation 6.04 (Property divisible among creditors - prescribed amounts)

10.1 Subregulation 6.04 (1):

After "value of", insert "a".

10.2 Paragraphs 6.04 (1) (a) and (3) (a):

After "occurring" insert "or continuing".

11.   Regulation 6.16 (Reasons for application to Official Receiver to vary contributions)

11.1 Regulation 6.16:

Omit "(f),", substitute "(f)".

12.   Regulation 7.01 (Trustee to informthe Official Receiver of return of bankrupt to Australia)

12.1 Subparagraph 7.01 (2) (b) (ii):

Omit "that date", substitute "the date on which the bankrupt returned".

13.   Regulation 8.03 (Subsection 155C (2) of the Act - prescribed particulars of applicant for registration as a trustee)

13.1 Paragraph 8.03 (b):

Omit "address;", substitute "address (including, where applicable, the postal address) and telephone number;".

13.2 Paragraph 8.03 (c):

Omit the paragraph, substitute:

"(c) a statement or summary of any conditions applying to the person's entitlement to practise as a registered trustee;".

14.   New Division 1A of Part 8

14.1. After regulation 8.04, insert:

" Division 1A - Change in trustee's particulars

Trustee to notify change in particulars

" 8.04A. A trustee must promptly give notice in writing to the Official Receiver of any change, in relation to the trustee, of the particulars specified in paragraph 8.03 (a), (b) or (c).

Penalty: 1 penalty unit".

15.   Division 3 of Part 8

15.1 Omit the Division, substitute:

" Division 3 - Consent to act, and appointment, as trustee of estate

Consent to act as trustee - subsection 156A (1) of the Act

" 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.

" (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.]

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.".

16.   Division 4 of Part 8

16.1 Omit the Division heading, substitute:

" Division 4 - Trustee's remuneration ".

17.   Regulation 8.08 (Other remuneration - prescribed rate under subsection 162 (4) of the Act)

17.1 Paragraph 8.08 (a):

Omit the paragraph, substitute:

"(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".

18.   Division 5A of Part 8 (Trustee's accounts and audit)

18.1 Subparagraphs 8.14A (a) (i) and (ii):

Before "the last day", insert "28 days after".

18.2 Division 5A of Part 8:

Omit the Division.

[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.].

19.   Regulation 10.10 (Sequestration order, or order avoiding a deed or composition - notice to Official Receiver)

19.1 Subregulations 10.10 (2), (3) and (4):

Omit "is to", substitute "must".

20.   Regulation 13.03 (What information is to be entered on the Index?)

20.1 Paragraph 13.03 (1) (a):

After "each", insert "creditor's petition,".

20.2 Subparagraph 13.03 (1) (c) (ii):

Omit "address;", substitute "address (including, where applicable, the postal address) and telephone number;".

20.3 Subparagraph 13.03 (1) (c) (iii):

Omit the subparagraph, substitute:

"(iii) a statement or summary of any conditions applying to the person's entitlement to practise as a registered trustee;".

20.4 Subregulation 13.03 (1):

Add at the end:

"; (g) information concerning a creditor's petition (including details of any orders made in relation to the petition, or the withdrawal of the petition).".

20.5 Paragraph 13.03 (6) (a):

Omit "(6);", substitute "(5);".

20.6 Paragraph 13.03 (6) (b):

Before "inaccurate", insert "out of date,".

21.   Regulation 13.06 (Inspection of the Index)

21.1 Subregulation 13.06 (1):

Omit all the words up to and including "may", substitute "Subject to subregulation (1A), a person may, on payment of any applicable fee".

21.2 After subregulation (1), insert:

" (1A) Subregulation (1) applies subject to the following provisions:

(a) prior payment by a person of an applicable fee is not required if the person has an alternative arrangement (for example, payment by bulk billing) with the Inspector-General concerning the mode of payment;

(b) paragraph (1) (b) extends to making notes of information shown on a computer screen;

(c) paragraph (1) (c) extends to making, or obtaining, a print-out on paper of an extract stored on computer.".

22.   Regulation 13.07 (Extract, etc of the Index to be admissible in evidence)

22.1 Subregulation 13.07 (1):

After "proceedings, a", insert "document or".

22.2 Subregulation 13.07 (2):

Omit "An document", substitute "A document or copy".

23.   New regulation 13.11

23.1 After regulation 13.10, insert in Part 13:

Inspector-General may provide information from the Index

" 13.11.(1) The Inspector-General may provide to a person information that constitutes a subset of the information held on the Index.

" (2) Where the Inspector-General provides information to a person under subregulation (1), the Inspector-General may specify conditions that apply to the person's use of that information.".

24.   Regulation 15.13 (Applicant interviews)

24.1 Paragraph 15.13 (6) (a):

Omit "subsection 154A (3)", substitute "paragraph 154A (3) (a)".

24.2 Paragraph 15.13 (7) (a):

Omit "subsection 155E (3)", substitute "paragraph 155E (3) (a)".

25.   Regulation 15.14 (Involuntary termination of registration - interview)

25.1 Subregulation 15.14 (2):

After "provided", insert "for".

26.   New Part 15A

26.1 After regulation 15.19, insert:

" PART 15A - PROVISIONS RELATING TO THE BANKRUPTCY CHARGES ACTS

Interpretation

" 15A.01.(1) In this Part:

'charge' means an interest charge, a realisations charge or a registration charge;

'charge period' has the same meaning as in the Estate Charges Act;

'penalty' means a late payment penalty.

" (2) An expression defined for Part XV of the Act has the same meaning in this Part.

Mode of payment

" 15A.02. An amount of charge or penalty may be paid to the Inspector-General:

(a) in cash; or

(b) by cheque; or

(c) by any other means (for example, by direct debit or electronic transfer) that the Inspector-General approves in writing.

Overpayments to be refunded or offset

" 15A.03. The amount of an overpayment by a trustee of a charge or penalty may be:

(a) refunded to the trustee; or

(b) unless the trustee, by notice in writing to the Inspector-General, directs otherwise - offset against an amount of charge or penalty payable by the trustee.

Information to accompany payment of interest charge

" 15A.04.(1) A payment of interest charge by a trustee must have with it, in the approved form, any information required by the approved form.

" (2) Where a payment of interest charge is made by or on behalf of a trustee by non-physical means (for example, by direct debit or electronic transfer), the trustee must without delay give the Inspector-General that information.

" (3) This regulation does not apply to the Official Trustee.

Information to accompany payment of realisations charge

" 15A.05.(1) A payment of realisations charge by a trustee must have with it, in the approved form, any information required by the approved form.

" (2) Where a payment of realisations charge is made by or on behalf of a trustee by non-physical means (for example, by direct debit or electronic transfer), the trustee must without delay give the Inspector-General that information.

" (3) This regulation does not apply to the Official Trustee.

Information to accompany payment under regulation 16.14

" 15A.06. A trustee, other than the Official Trustee, who makes a payment under regulation 16.14, must lodge with the payment a statement in the approved form.

Lodgment of request for remission

" 15A.07. A request by a trustee for remission of a charge or penalty must be in writing and lodged with the Official Receiver for the District in which the trustee carries on business.".

27.   Regulation 16.02 (Documents for the Inspector-General, the Official Receiver or the Official Trustee)

27.1 Subparagraph 16.02 (1) (b) (i):

Omit "for receipt of facsimile transmissions" (second occurring).

28.   Regulation 16.07 (Fees payable to the OfficialTrustee)

28.1 Subregulation 16.07 (3):

After paragraph (a), insert:

"(aa) performs work under Division 6 of Part IV of the Act; or".

28.2 Subregulation 16.07 (3):

Omit "out of the estate".

28.3 Regulation 16.07:

After subregulation 16.07 (3), insert:

" (3A) A fee payable under subregulation (3) is payable:

(a) where paragraph (3) (aa) applies - out of the amount realised (within the meaning of that expression set out in subregulation (4) as modified by subregulations (5) and (6)) under Division 6 of Part IV of the Act; or

(b) in any other case - out of the estate.".

28.4 Subregulation 16.07 (8):

Omit "exercising control of the property,", substitute "performing any of those functions,".

29.   Regulation 16.08 ("Prescribed amount" - restriction on amount of fee payable)

29.1 Subregulation 16.08 (2) (paragraph (b) of the definition of "costs of administration"):

Omit "C", substitute "B".

30.   Regulation 16.11 (Application to the AAT)

30.1 Regulation 16.11:

Omit "13.04", substitute "16.10".

31.   Regulation 16.12 (Prescribed fees of Official Receiver and fees payable on taxation)

31.1 Regulation 16.12:

Add at the end:

" (4) For the purposes of subsections 54 (4), 55 (9), 56G (2) and 57 (11), and paragraph 81 (17) (b), of the Act, the prescribed fee is $20.".

32.   Regulation 16.14 (Fees payable by trustee on payment of dividends, etc)

32.1 Subregulation 16.14 (1):

Omit the subregulation, substitute:

" (1) Subject to subregulation 16.15 (1), a trustee (other than the Official Trustee) who pays an interim or final dividend in respect of an estate or a debtor must pay to the Official Receiver the appropriate fee in accordance with this regulation.

" (1A) Subject to subregulation 16.15 (2), where the Official Trustee:

(a) acts as trustee of the estate of a bankrupt or a deceased person in respect of whose estate an order for administration has been made under Part XI of the Act; or

(b) acts as controlling trustee, or as trustee as the result of a deed of assignment or deed of arrangement under Part X of the Act;

a fee is payable to the Official Receiver by the Official Trustee, in accordance with this regulation, in respect of the estate:

(c) on the declaration of a dividend by the Official Trustee; or

(d) on the Official Trustee's ceasing to act as the trustee of the estate or debtor.".

32.2 Paragraph 16.14 (3) (a):

After "amount;", add "or".

32.3 Paragraph 16.14 (3) (e):

Omit "regulation 16.08.", substitute "this regulation.".

32.4 Subregulation 16.14 (4):

After "his", insert "or her".

33.   Regulation 16.15 (Fees payable by Official Trustee)

33. 1 Regulation 16.15:

Omit the regulation, substitute:

Application of regulation 16.14

" 16.15.(1) A fee is only payable under subregulation 16.14 (1) in respect of an estate or debtor where:

(a) a prescribed amount was received by the trustee on or before 31 October 1996; and

(b) after that date, a dividend was paid, on behalf of the estate or debtor, from that prescribed amount.

" (2) A fee is only payable under subregulation 16.14 (1A) in respect of an estate or debtor where:

(a) a prescribed amount was received by the Official Trustee on or before 31 October 1996; and

(b) after that date:

(i) a dividend was paid, on behalf of the estate or debtor, from that prescribed amount; or

(ii) the Official Trustee ceases to act as trustee of the estate or debtor.".

34.   Regulation 16.17 (Trustee's account - prescribed form)

34.1 Regulation 16.17:

Omit the regulation.

35.   Schedule 1 (Forms)

35.1 Form 1 (Bankruptcy Notice):

Omit the form, substitute Form 1 set out in the Schedule.

35.2 Form 2 (Trustee's account of receipts and payments):

Omit the form.

36.   Schedule 4 (Modifications of the Fringe Benefits Tax Assessment Act 1986)

36.1 Item 19.1 of Schedule 4:

Omit from paragraph (a) of substituted section 36 "$1; or", substitute "$1; and".

36.2 Item 30.4:

Omit from inserted subsection (1A) "(b)", substitute "(f)".

37.   Schedule 8 (Information on the National Personal Insolvency Index)

37.1 Item 2 of Schedule 8:

Omit from column 5 "not applicable", substitute "within 3 working days".

37.2 Item 9 of Schedule 8:

Omit "trustee or Official Receiver (section 149B)" (second occurring), substitute "at any time before discharge".

38.   Schedule 9 (Official Receiver's fees)

38.1 Item 2 of Schedule 9:

Omit "each application for".

38.2 Schedule 9:

Add at the end:

[NOTE: Item 6 - where a person makes a statement of the kind mentioned, no fee is payable.]".

38.3 Add at the end:

39.   Schedule 10 (Official Trustee's fees)

39.1 Item 1 of Schedule 10:

Omit "acting on behalf of officer", substitute "officer acting on behalf of".

40.   Transitional

40.1 An amount paid under Division 3 of Part 16 of the Bankruptcy Regulations in respect of an estate or a debtor is to be offset against an amount of charge payable under Part 3 of the Bankruptcy (Estate Charges) Act 1997 in respect of the estate or debtor for the charge period (within the meaning of that Act) that commenced on 1 November 1996.

__________________ SCHEDULE Subregulation 35.1

FORM 1 Regulation 4.02

Bankruptcy Act 1966

BANKRUPTCY NOTICE

This Bankruptcy Notice is prescribed, under subs. 41 (2) of the Bankruptcy Act 1966 ("the Act"), by r. 4.02 of the Bankruptcy Regulations.

[NOTE: Words appearing below in italics are for guidance in the completion of this Notice, and are not to be reproduced in the Notice.]

To: (name)

("the debtor")

of: (address) ____

____

____

This Bankruptcy Notice is an important document. You should get legal advice if you are unsure of what to do after you have read it.

1. (name)

("the creditor")

of: (address) ____

____

____

SCHEDULE - continued

claims you owe the creditor a debt of $(amount), as shown in the Schedule.

2. The creditor claims that the debt is due and payable by you. A copy of the judgment or order relied upon by the creditor is attached. At the time of applying for this Notice, execution of the judgment or order had not been stayed.

3. You are required, within (insert number in accordance with the note to this paragraph) days after service on you of this Bankruptcy Notice:

(a) to pay to the creditor the amount of the debt; or

(b) to make an arrangement to the creditor's satisfaction for settlement of the debt.

[NOTE: The number of days to be inserted is 21 or, if an order has been made under subparagraph 40 (1) (g) (ii) of the Act, the number of days constituting the time fixed by the order.]

4. Payment of the debt can be made to:

(name) _________________________

of: (address) _________________________

_________________________

_________________________

[NOTE: The address must be within Australia.

SCHEDULE - continued

5. Bankruptcy proceedings may be taken against you if, within the time stated in paragraph 3, above:

(a) you do not comply with the requirements of either paragraph 3 (a) or paragraph 3 (b) above; and

(b) the Federal Court does not extend, or is not deemed to have extended, the time for compliance with this Bankruptcy Notice (see paragraph 6, below).

6. The Federal Court of Australia may extend the time for compliance with this Bankruptcy Notice if, within the time stated in paragraph 3 above, you apply to that Court on one or both of the following grounds:

(a) that you have instituted proceedings to set aside the judgment or order in respect of which this Bankruptcy Notice has been issued;

(b) that you have filed with the Federal Court of Australia an application (on one or more grounds, apart from the grounds mentioned in paragraph 7, below) to set aside this Bankruptcy Notice.

7. In addition, within the time specified in paragraph 3 above, you may file an application to the Federal Court of Australia for an order to set aside this Bankruptcy Notice on the specific grounds that:

(a) you have a counter-claim, set-off or cross demand equal to or exceeding the sum specified in this Bankruptcy Notice as owing to the creditor; and

(b) in the action or proceeding in which the judgment or order mentioned in paragraph 2 of this Bankruptcy Notice was obtained, you could not have set up that counter-claim, set-off or cross demand*.

* This means that, because of a legal obstacle, you could not have raised that counter-claim, set-off or cross demand in defence of the creditor's court action against you. It is not enough if, for example, you simply neglected or overlooked the matter.

SCHEDULE - continued

8. You should note the following points carefully:

(a) If you file, at the Federal Court Registry, an application mentioned in paragraph 6 (a) or (b) , you must still comply with this Bankruptcy Notice within the time stated in paragraph 3 above unless the Court extends the time for you to comply.

(b) If you file, at the Federal Court Registry, an application mentioned in paragraph 7 (a) , you need not comply with this Bankruptcy Notice until the Court decides whether you have grounds for a counter-claim, set-off or cross demand. Whether you will have to comply at that stage will depend on the Court's decision.

WARNING

9. The information in paragraphs 6, 7 and 8 is based on provisions of section 41 of the Act. The information is a summary only, and not a complete statement of the relevant law. It might be unwise to rely solely on this summary. If you need a more detailed explanation, you should seek legal advice.

10. The Federal Court Registry for your State or Territory is located at:

(set out the address and telephone number of the relevant Registry)

SCHEDULE - continued

Schedule

(NB: Amounts, where applicable, are to be inserted in column 2)

–––––––––––––––––––––––––––––––––––––––––––––––––––––––

For the Information of the Creditor -

Notes to the Schedule

Note 1: Legal costs (item 2 of the Schedule)

If legal costs are being claimed in this Bankruptcy Notice, a certificate of taxed or assessed costs in support of the amount claimed must be attached to this Bankruptcy Notice.

Note 2 : Interest accrued (item 3 of the Schedule)

If interest is being claimed in this Bankruptcy Notice, details of the calculation of the amount of interest claimed are to be set out in a document attached to this Bankruptcy Notice. The document must state:

SCHEDULE - continued

(a) the provision under which the interest is being claimed; and

(b) the principal sum on which, the period for which, and the interest rate or rates at which, the interest is being claimed.

(NB: If different rates are claimed for different periods, full details must be shown)

Note 3: Foreign currency amount conversion

(see Bankruptcy Regulations, reg. 4.04.)

Total debt owing, expressed in foreign currency (amount)

Commonwealth Bank of Australia opening telegraphic

transfer rate on __/__/__ (date) x (rate)

––––––––

Australian dollar equivalent = $ (amount)

––––––––

(delete Note 3 if not applicable)

For the Information of the Creditor

Note about use of information

It may be necessary to disclose some or all of the information provided by you on this Form to Government agencies and departments for any purpose under the Act. Also, the information may be included on a public record or given to other persons, bodies or agencies for purposes authorised by the Act.

_______________________________________________________

SCHEDULE - continued

The person who applied for this notice to be issued is:

___

(name)

who confirms by the following signature that he or she is the creditor/the creditor's authorised agent *:

(* delete as appropriate)

___

(signature)

and whose address for service is:

___

___

___

(address)

Telephone and fax numbers ___

(including STD code):

___

DX number (if applicable): ___

SCHEDULE - continued

FOR OFFICIAL USE ONLY

Dated this (date) day of (month) (year)

This notice was issued by the Official Receiver (or delegate or an officer authorised by the Official Receiver) for the Bankruptcy District of:

_______________________________________________________

address of Official Receiver:

_______________________________________________________

_______________________________________________________

_______________________________________________________

(signature or stamp of Official Receiver or delegate or authorised officer)