Bankruptcy Act 1966
View history note
Hide 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
Div 4 repealed by No 80 of 2004, s 3 and Sch 1 item 156, effective 1 December 2004. For transitional provisions, see note under Part X heading. Div 4 formerly read:
228 DEED OF ASSIGNMENT TO BIND ALL CREDITORS
228(1)
A deed of assignment that is entered into in accordance with this Part and complies with the requirements of this Part is, upon being duly executed by the debtor and the trustee, binding on all the creditors of the debtor.
228(2)
Subject to subsections (3) and (4), where a deed of assignment has become binding on the creditors of the debtor, it is not competent for a creditor, so long as the deed remains valid:
(a) to present a creditor ' s petition against the debtor, or to proceed with such a petition presented before the deed became so binding, in respect of a provable debt;
(b) to enforce any remedy against the person or property of the debtor in respect of a provable debt; or
(c) to commence any legal proceeding in respect of a provable debt or take any fresh step in such a proceeding.HistoryS 228(2) amended by No 12 of 1980, s 124.
228(3)
Nothing in this section:
(a) affects the right of a secured creditor to realize or otherwise deal with his or her security; or
(b) prevents a creditor, after the final dividend has been paid under a deed of assignment, from taking any proceeding or enforcing any remedy in respect of a provable debt from which the debtor is not released by the operation of the deed.
228(4)
Nothing in this section shall be taken to prevent a creditor from enforcing any remedy against a debtor who has executed a deed of assignment, or against any property of such a debtor that is not vested in the trustee of the deed, in respect of any liability of the debtor under a maintenance agreement or maintenance order (whether entered into or made, as the case may be, before or after the commencement of this subsection).HistoryS 228(4) inserted by No 12 of 1980, s 124.
229 VESTING OF PROPERTY IN TRUSTEE
229(1)
Subject to this section, the due execution by a debtor of a deed of assignment that is entered into in accordance with this Part and complies with the requirements of this Part operates to vest in the trustee forthwith, upon the trusts and for the purposes of the deed, all the divisible property of the debtor.
229(2)
The vesting of the property under subsection (l) is subject to the due execution of the deed by the trustee.
229(3)
Where a law of the Commonwealth or of a State or Territory of the Commonwealth requires the transmission of property to be registered and enables the trustee of a deed of assignment to be registered as the owner of any such property that is part of the divisible property of the debtor, that property, notwithstanding that it vests in equity in the trustee by virtue of this section, does not vest at law in the trustee until the requirements of that law have been complied with.
230 RELEASE OF PROVABLE DEBTS
230(1)
Subject to this section, a deed of assignment that has become binding on the creditors of the debtor operates, unless declared void under this Part, to release the debtor from all provable debts, other than those (if any) that would not be released by his or her discharge from bankruptcy if he or she had become a bankrupt on the day on which he or she executed the deed.
230(2)
Subsection (l) does not affect the right of a secured creditor, or any person claiming through or under him or her, to realize or otherwise deal with his or her security:
(a) if the secured creditor has not proved under the deed for any part of the secured debt - for the purpose of obtaining payment of the secured debt; or
(b) if the secured creditor has proved under the deed for part of the secured debt - for the purpose of obtaining payment of the part of the secured debt for which he or she has not proved under the deed;and, for the purposes of enabling the secured creditor or a person claiming through or under him or her so to realize or deal with his or her security, but not otherwise, the secured debt, or the part of the secured debt, as the case may be, shall be deemed not to have been released.
230(3)
A deed of assignment does not release from any liability a person who, at the date on which the debtor executed the deed, was a partner or a co-trustee with the debtor or was jointly bound or had made a joint contract with him or her, or a person who was surety or in the nature of a surety for the debtor.
231 APPLICATION OF GENERAL PROVISIONS OF ACT TO DEEDS OF ASSIGNMENT
231(1)
Section 81 applies in relation to a debtor who has executed a deed of assignment that has become binding on his or her creditors and so applies as if:
(a) the debtor were a bankrupt; and
(b) the trustee of the deed were the trustee in the debtor ' s bankruptcy.HistoryS 231(1) substituted by No 119 of 1987, s 83(1)(a).
231(2)
Subsection 58(4) and sections 60, 61, 62, 70, 71, 72, 82 to 118 (inclusive), 120 to 125 (inclusive), 127 to 130 (inclusive) and 133 to 139H (inclusive), Subdivision J of Division 4B of Part VI and sections 140 to 147 (inclusive) apply, with the prescribed modifications (if any), in relation to such a deed of assignment as if -
(a) a creditor ' s petition had been presented against the debtor by whom the deed was executed on the day on which the special resolution requiring the execution of the deed was passed;
(b) a sequestration order had been made against him or her on that petition on the day on which he or she executed the deed; and
(c) the trustee of the deed were the trustee in his or her bankruptcy.HistoryS 231(2) amended by No 12 of 1980, s 125; No 119 of 1987, s 83(1)(b); No 9 of 1992, s 35.
231(3)
In the application, by virtue of subsections (1) and (2), of the provisions referred to in those subsections:
(a) a reference to the property of the bankrupt shall be read as a reference to the divisible property of the debtor;
(b) a reference to a provable debt shall be read as a reference to a provable debt within the meaning of this Part; and
(c) a reference to the end of the bankruptcy shall be read as a reference to the end of the deed of assignment.HistoryS 231(3) amended by No 119 of 1987, s 83(1)(c) - (e).
231(4)
Part VIII applies, with any modifications prescribed by the regulations, in relation to a trustee of a deed of assignment as if the debtor by whom the deed was executed were a bankrupt and the trustee of the deed were the trustee in his or her bankruptcy.HistoryS 231(4) amended by No 12 of 1980, s 125; No 193 of 1985, s 3, Sch 1; No 119 of 1987, s 83(1)(f); No 44 of 1996, Sch 1, Pt 1(380).
231(5)
If, after taking into account prescribed modifications and the provisions of subsection (3), a provision specified in subsection (2) or (4) is incapable of application in relation to a deed of assignment, or the trustee of such a deed, as the case requires, or is inconsistent with the Part, that provision does not so have application.HistoryS 231(5) amended by No 119 of 1987, s 83(1)(g).
231(6)
(Omitted by No 119 of 1987, s 83(1)(h).)
SECTION 231A RIGHT OF DEBTOR TO REMAINING PROPERTY
231A(1)
The debtor is entitled to any property remaining after payment in full of:
(a) the costs, charges and expenses of the administration of the deed of assignment; and
(b) all provable debts; and
(c) interest on interest-bearing provable debts.
231A(2)
The Court may make an order directing the trustee not to pay or transfer the property, or a specified part of the property, referred to in subsection (1), to the debtor if:
(a) the Director of Public Prosecutions, or a person who is entitled to apply for an interstate confiscation order under a corresponding law, applies to the Court for an order under this subsection; and
(b) the Court is satisfied that:
(i) proceedings are pending under a proceeds of crime law; and
(ii) property of the debtor may:
(A) become subject to a forfeiture order or interstate forfeiture order made in the proceedings; or
(B) be required to satisfy a pecuniary penalty order or interstate pecuniary penalty order made in the proceedings.HistoryS 231A(2) amended by No 86 of 2002, s 3 and sch 4 item 42, by substituting in (b)(i) " a proceeds of crime law " for " the Proceeds of Crime Act 1987 or a corresponding law " , effective 1 January 2003.
231A(3)
The Court, on application made to it, may vary or revoke an order made under subsection (1).
SECTION 232 CERTIFICATE RELATING TO RELEASEHistoryS 231A inserted by No 9 of 1992, s 36.
232(1)
Where the trustee of a deed of assignment is satisfied that the divisible property of the debtor has, so far as is practicable, been realized and a final dividend has been paid to the creditors, he or she shall, upon request in writing by the debtor, furnish to the debtor a certificate signed by him or her to that effect.
232(2)
A certificate signed by a trustee under this section is prima facie evidence of the facts stated in it.HistoryS 232(2) amended by No 12 of 1980, s 126.
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