Bankruptcy Legislation Amendment (Superannuation Contributions) Act 2007 (57 of 2007)

Schedule 1   Amendments relating to superannuation contributions

Part 2   Amendments commencing on Proclamation

Bankruptcy Act 1966

34   At the end of Division 4B of Part VI

Add:

Subdivision K - Rolled-over superannuation interests etc.

139ZU Order relating to rolled-over superannuation interests etc.

(1) If, on application by the trustee of a bankrupt’s estate, the Court is satisfied that:

(a) a transaction is void against the trustee of the bankrupt’s estate under section 128B or 128C; and

(b) the transaction was by way of a contribution to an eligible superannuation plan (the first plan ) for the benefit of a person (the beneficiary ) who may or may not be the bankrupt; and

(c) the beneficiary’s withdrawal benefit in relation to the first plan falls short of the amount of the money, or the value of the property, received as a result of the transaction; and

(d) the beneficiary has a superannuation interest in another eligible superannuation plan; and

(e) the superannuation interest referred to in paragraph (d) is attributable, in whole or in part, to the roll-over or transfer, after the transaction referred to in paragraph (a) happened, of the whole or a part of the beneficiary’s superannuation interest in the first plan;

the Court may, by order, direct the trustee of the other eligible superannuation plan to pay to the trustee of the bankrupt’s estate a specified amount not exceeding whichever is the lesser of the following:

(f) the amount of the shortfall referred to in paragraph (c);

(g) the beneficiary’s withdrawal benefit in relation to the other eligible superannuation plan.

(2) The Court must not make an order under subsection (1) unless it is satisfied that it is in the interests of the creditors of the bankrupt to do so.

(3) For the purposes of paragraph (1)(a), it is immaterial whether the transaction occurred before, at or after the commencement of this section.

(4) For the purposes of paragraph (1)(b), disregard a benefit that is payable in the event of the death of a person.

(5) For the purposes of paragraph (1)(c), if the beneficiary does not have a superannuation interest in an eligible superannuation plan, the beneficiary is taken to have a nil withdrawal benefit in relation to the plan.

(6) For the purposes of paragraph (1)(e), it is immaterial whether the roll-over or transfer occurred directly or indirectly through one or more interposed eligible superannuation plans.

(7) An applicant under subsection (1) must give a copy of the application to:

(a) the trustee of the other eligible superannuation plan; and

(b) the beneficiary.

(8) At the hearing of an application under subsection (1):

(a) the trustee of the other eligible superannuation plan; and

(b) the beneficiary.

may appear, adduce evidence and make submissions.

(9) For the purposes of sections 128E, 128F and 128J, an order under this section is taken to relate to:

(a) the transaction referred to in paragraph (1)(a) of this section; and

(b) the beneficiary’s superannuation interest referred to in paragraph (1)(d) of this section.

139ZV Enforcement of order

An order by the Court under section 139ZU is enforceable as if it were an order for the payment of money made by the Court when exercising jurisdiction otherwise than under this Act.

139ZW Definitions

In this Subdivision:

contribution has the same meaning as in Subdivision B of Division 3.

eligible superannuation plan has the same meaning as in Subdivision B of Division 3.

superannuation interest has the same meaning as in Subdivision B of Division 3.

trustee of an eligible superannuation plan has the same meaning as in Subdivision B of Division 3.

withdrawal benefit has the same meaning as in Subdivision B of Division 3.