Bankruptcy Act 1966
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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 5 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 5 formerly read:
SECTION 233 DEED OF ARRANGEMENT TO BIND ALL CREDITORS
233(1)
A deed of arrangement 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.
233(2)
Subject to subsections (3) and (4), where a deed of arrangement has become binding on the debtor ' s creditors, it is not competent for a creditor, so long as the deed remains in force:
(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; or
(b) except with the leave of the Court and on such terms as the Court imposes:
(i) to enforce any remedy against the property or person of the debtor in respect of a provable debt; or
(ii) to commence any legal proceeding in respect of a provable debt or take any fresh step in such a proceeding.HistoryS 233(2) amended by No 12 of 1980, s 127.
233(3)
Nothing in this section affects the right of a secured creditor to realize or otherwise deal with his or her security.
233(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 arrangement, 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 233(4) inserted by No 12 of 1980, s 127.
SECTION 234 DEED OF ARRANGEMENT NOT TO RELEASE DEBTS UNLESS OTHERWISE PROVIDED
234(1)
Except in so far as the deed provides for the release of the debtor from his or her debts, a deed of arrangement does not operate to release the debtor from any of his or her debts.
234(2)
Where a deed of arrangement provides that the debtor is to be released from one or more of his or her debts, the release is binding on the creditor or creditors to whom that debt or those debts was or were owing.
SECTION 234A VARIATION OF DEED OF ARRANGEMENT
234A(1) Variation by special resolution of creditors.The creditors, with the written consent of the debtor, may vary a deed of arrangement by special resolution at a meeting called for the purpose.
234A(2) Variation by trustee.The trustee, with the written consent of the debtor, may, in writing, propose a variation of a deed of arrangement.
234A(3)
The trustee must give notice of the proposed variation to all the creditors who would be entitled under section 64A (as that section applies in accordance with section 223A) to receive notice of a meeting of creditors.
234A(4)
The notice must:
(a) include a statement of the reasons for the variation and the likely impact it will have on creditors (if it takes effect); and
(b) specify a date (at least 14 days after the notice is given) from which it is proposed that the variation will take effect; and
(c) state that any creditor may, by written notice to the trustee at least 2 days before the specified date, object to the variation taking effect without there being a meeting of creditors.
234A(5)
If no creditor lodges a written notice of objection with the trustee at least 2 days before the specified date, then the proposed variation takes effect on the date specified in the notice.
234A(6)
A certificate signed by the trustee stating any matter relating to a proposed variation under subsection (2) is prima facie evidence of the matter.HistoryS 234A inserted by No 131 of 2002, s 3 and Sch 1 items 177 and 212, effective 5 May 2003.
Act No 131 of 2002 contains the following transitional provision:
212(1)
The amendment applies to compositions, schemes of arrangement and deeds of arrangement that are made after 5 May 2003.
212(2)
For the purposes of this item:
(a) a composition or scheme of arrangement is made when it is accepted by the creditors; and
(b) a deed of arrangement is made when it is executed.
SECTION 234B TERMINATION OF DEED OF ARRANGEMENT BY TRUSTEE
234B(1)
The trustee may, in writing, propose the termination of a deed of arrangement if the trustee is satisfied that the debtor is in default.
234B(2)
The trustee must give notice of the proposed termination to all the creditors who would be entitled under section 64A (as that section applies in accordance with section 223A) to receive notice of a meeting of creditors.
234B(3)
The notice must:
(a) include a statement of the reasons for the termination and the likely impact it will have on creditors (if it takes effect); and
(b) specify a date (at least 14 days after the notice is given) from which it is proposed that the termination will take effect; and
(c) state that any creditor may, by written notice to the trustee at least 2 days before the specified date, object to the termination taking effect without there being a meeting of creditors.
234B(4)
If:
(a) the debtor is in default; and
(b) no creditor lodges a written notice of objection with the trustee at least 2 days before the specified date;then the proposed termination takes effect on the date specified in the notice.
234B(5)
For the purposes of this section, the debtor is in default if, and only if:
(a) the debtor has failed to carry out or comply with a provision of the deed; or
(b) if the debtor has died, the debtor or the person administering the estate of the debtor has failed to carry out or comply with a provision of the deed.
234B(6)
A certificate signed by the trustee stating any matter relating to a proposed termination under this section is prima facie evidence of the matter.HistoryS 234B inserted by No 131 of 2002, s 3 and Sch 1 items 177 and 212, effective 5 May 2003.
Act No 131 of 2002 contains the following transitional provision:
212(1)
The amendment applies to compositions, schemes of arrangement and deeds of arrangement that are made after 5 May 2003.
212(2)
For the purposes of this item:
(a) a composition or scheme of arrangement is made when it is accepted by the creditors; and
(b) a deed of arrangement is made when it is executed.
SECTION 235 TERMINATION OF DEED OF ARRANGEMENT
235
A deed of arrangement is terminated by:
(a) (Omitted by No 12 of 1980, s 128.)
(b) the passing of a special resolution to that effect by a meeting of creditors called for the purpose;
(c) an order of the Court to that effect under section 236; or
(d) the occurrence of any circumstances or event on the occurrence of which the deed provides that it is to terminate. SECTION 236 COURT MAY TERMINATE DEED
236(1)
The Court may, upon application by the trustee, a creditor or the debtor, or, if the debtor has died, the person administering the estate of the debtor, if it is satisfied:
(a) that the debtor, or, if the debtor has died, the debtor or the person administering the estate of the debtor has failed to carry out or comply with a provision of the deed of arrangement.
(b) that the deed of arrangement cannot be proceeded with without injustice or undue delay to the creditors, the debtor or, if the debtor has died, the estate of the debtor; or
(c) that for any other reason the deed of arrangement ought to be terminated;make an order terminating the deed.
HistoryS 236(1) substituted by No 12 of 1980, s 129.
236(2)
The Court shall not make an order terminating a deed on the ground specified in paragraph (1)(a) or (c) unless it is satisfied that it would be in the interests of the creditors to do so.
236(3)
The trustee or a creditor may include in an application under subsection (1) an application for a sequestration order against the estate of the debtor and, if the Court makes an order on the first-mentioned application terminating the deed of arrangement, it may, if it thinks fit, forthwith make the sequestration order sought.
236(4)
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.
236(5)
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.HistoryS 236(5) amended by No 122 of 1970, s 12.
SECTION 237 APPLICATION OF GENERAL PROVISIONS OF ACT TO DEEDS OF ARRANGEMENT
237(1)
Section 81 applies in relation to a debtor who has executed a deed of arrangement 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 237(1) substituted by No 119 of 1987, s 84(1)(a).
237(2)
Subsection 58(4) and sections 61, 62, 70, 71, 72, 82 to 114 (inclusive), 133 to 139 (inclusive) and 140 to 147 (inclusive) apply, with the prescribed modifications (if any), in relation to such a deed of arrangement as if:
(a) a sequestration order had been made against the debtor on the day on which he or she executed the deed; and
(b) the trustee of the deed were the trustee in his or her bankruptcy.HistoryS 237(2) amended by No 12 of 1980, s 130; No 119 of 1987, s 84(1)(b); No 9 of 1992, s 37.
237(3)
In the application, by virtue of subsections (1) and (2), of the provisions referred to in those subsections:
(a) a reference to a provable debt shall be deemed to be a reference to a debt that is, for the purposes of this Part, a provable debt in relation to the deed of arrangement; and
(b) a reference to the end of the bankruptcy shall be deemed to be a reference to the end of the deed of arrangement.HistoryS 237(3) substituted by No 119 of 1987, s 84(1)(c).
237(4)
Part VIII applies, with any modifications prescribed by the regulations, in relation to a trustee of a deed of arrangement 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 237(4) amended by No 12 of 1980, s 130; No 193 of 1985, s 3, Sch 1; No 119 of 1987, s 84(1)(d); No 44 of 1996, Sch 1, Pt 1(380).
237(5)
If, after taking into account the 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 arrangement, or the trustee of such a deed, as the case requires, or is inconsistent with this Part, that provision does not so have application.HistoryS 237(5) amended by No 119 of 1987, s 84(1)(e).
237(6)
Nothing in this Division empowers the Court to stay any proceedings under a proceeds of crime law.HistoryS 237(6) inserted by No 86 of 2002, s 3 and Sch 4 item 27, effective 1 January 2003.
S 237(6) omitted by No 119 of 1987, s 84(1)(f).
SECTION 237AA RIGHT OF DEBTOR TO REMAINING PROPERTY
237AA(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 arrangement; and
(b) all provable debts; and
(c) interest on interest-bearing provable debts.
237AA(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 237AA(2) amended by No 86 of 2002, s 3 and Sch 4 item 43, 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.
237AA(3)
The Court, on application made to it, may vary or revoke an order made under subsection (1).
SECTION 237A CERTIFICATE BY TRUSTEE THAT PROVISIONS OF DEED HAVE BEEN CARRIED OUT[ S 237AA inserted by No 9 of 1992, s 38.]
237A(1)
Where the trustee of a deed of arrangement is satisfied that the provisions of the deed have been carried out, the trustee shall, upon request in writing by the debtor, furnish to the debtor a certificate signed by him or her to that effect.
237A(2)
A certificate signed by a trustee under this section is prima facie evidence of the facts stated in it.
[ S 237A inserted by No 12 of 1980, s 131.]
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