Bankruptcy Act 1966
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View history notePt 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
Creation of charge
189AB(1)
When the debtor ' s property becomes subject to control under this Division, the debtor ' s property is charged with: (a) the debtor ' s unsecured debts at the time the debtor signed the authority under section 188 ; and (b) any amount by which the debtor ' s secured debts exceeded the value of the property secured for payment of the debts at the time the debtor signed the authority under section 188 .
[ CCH Note: Modification Declaration FRLI No F2021L00261 ( Bankruptcy Regulations 2021 : FRLI No F2021L00261, registered on 19 March 2021 and effective from 1 April 2021.)
Subsection 189AB(1) of the Act is modified by substituting " When the property of joint debtors becomes charged under this Division, the charges specified in subsection (1A) are created with respect to " for " When the debtor ' s property becomes subject to control under this Division, the debtor ' s property is charged with " .]
[ CCH Note: Modification Declaration FRLI No F2021L00261 ( Bankruptcy Regulations 2021 : FRLI No F2021L00261, registered on 19 March 2021 and effective from 1 April 2021.)
Subsection 189AB of the Act is modified by inserting subsection (1A) after subsection (1):
]
189AB(1A)
The charges are:
(a) a charge over the joint property of the joint debtors; and
(b) a separate charge over the separate property of each joint debtor.
Charge continues despite changing ownership of charged property
189AB(2)
Subject to subsections (3) and (9) , the charge is not affected by any change of ownership of the charged property.
[ CCH Note: Modification Declaration FRLI No F2021L00261 ( Bankruptcy Regulations 2021 : FRLI No F2021L00261, registered on 19 March 2021 and effective from 1 April 2021.)
Subsection 189AB(2) of the Act is modified by substituting " none of the charges is affected " for " the charge is not affected " .]
Certain other charges have priority
189AB(3)
The charge created by subsection (1) is subject to: (a) any charge or encumbrance that was on the debtor ' s property immediately before the debtor signed the authority under section 188 ; and (b) any charge or encumbrance acquired in good faith and for market value by a person who did not have notice of the charge created by subsection (1) .
[ CCH Note: Modification Declaration FRLI No F2021L00261 ( Bankruptcy Regulations 2021 : FRLI No F2021L00261, registered on 19 March 2021 and effective from 1 April 2021.)
Subsections 189AB(3) and (4) of the Act are modified by substituting " Each charge " for " The charge " .]
Priority over some other charges
189AB(4)
The charge created by subsection (1) has priority over a charge or encumbrance that is not described in subsection (3) .
[ CCH Note: Modification Declaration FRLI No F2021L00261 ( Bankruptcy Regulations 2021 : FRLI No F2021L00261, registered on 19 March 2021 and effective from 1 April 2021.)
Subsections 189AB(3) and (4) of the Act are modified by substituting " Each charge " for " The charge " .]
Registration of charge.
189AB(5)
The controlling trustee may register a charge created by subsection (1) over particular property if a law of the Commonwealth, or of a State or Territory, provides for registration of a charge over that sort of property.
Effect of registration of charge
189AB(6)
If the trustee registers the charge over particular property, a person who acquires the property or an interest in the property after the charge is registered is taken to have notice of the charge for the purposes of subsections (3) and (9) .
Controlling trustee may sell charged property
189AB(7)
The controlling trustee may sell property that is subject to a charge under subsection (1) .
Application of proceeds of sale
189AB(8)
Any proceeds from the sale of charged property that are not needed to meet a charge or encumbrance that has higher priority than the charge created by subsection (1) are the debtor ' s property.
End of charge on property that is sold
189AB(9)
A charge created by subsection (1) ceases to have effect in relation to property if the property is acquired by a person: (a) in good faith for consideration at least as valuable as the market value of the property without notice of the charge; or (b) from the controlling trustee in a sale under subsection (7) .
Charge ends when property ceases to be subject to control
189AB(10)
Unless it has already ceased to have effect under subsection (9) , the charge ceases to have effect when control of the debtor ' s property ends under subsection 189(1A) .
Meaning of debtor ' s property
189AB(11)
In this section:
debtor
'
s property
has the meaning given in subsection
190(5)
.
S 189AB inserted by No 44 of 1996, Sch 1, Pt 1(334).
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