Bankruptcy Regulations 1996

PART 10 - PERSONAL INSOLVENCY AGREEMENTS

History

Part 10 substituted by SR No 256 of 2004, reg 3 and Sch 1 item 11, effective 1 December 2004. Part 10 formerly read:

PART 10 - ARRANGEMENTS WITH CREDITORS WITHOUT SEQUESTRATION
10.01 FORM OF CONSENT TO EXERCISE POWERS GIVEN BY AN AUTHORITY UNDER SECTION 188 OF THE ACT
10.01(1)
A registered trustee or solicitor who gives a consent under subsection 188(5) of the Act must sign a form of consent in accordance with the approved form.

10.01(2)
The registered trustee or solicitor must, within 14 days of consenting, give a copy of the signed form:

(a) if the debtor resides, to the knowledge of the registered trustee or solicitor, in a District - to the Official Receiver for that District; or

(b) in any other case - to the Official Receiver for the District in which the registered trustee or solicitor carries on business.
10.02 MODIFICATIONS OF PART X OF THE ACT - JOINT DEBTORS
For the purposes of section 187A of the Act, the provisions specified in Part 1 of Schedule 6 are modified in accordance with that Part in relation to their application, in accordance with that section, to joint debtors, whether partners or not. 10.03 STATEMENT OF DEBTOR'S AFFAIRS ETC - SECTION 188A OF THE ACT
Where a controlling trustee (other than the Official Trustee) receives a statement and proposal under section 188A of the Act, he or she must within 3 working days give a copy of the statement and proposal to the Official Receiver. 10.04 DOCUMENTS FOR MEETING IN ACCORDANCE WITH SECTION 194 OF THE ACT
Where a meeting of a debtor's creditors is to be held in accordance with section 194 of the Act, the controlling trustee must give to each of the creditors, at least 10 days before the meeting:

(a) notice in writing of the date, time and place of the meeting; and

(b) a copy of the controlling trustee's report, prepared in accordance with subsection 189A(1) of the Act, in relation to the debtor's affairs; and

(c) a copy of the controlling trustee's statement, prepared in accordance with subsection 189B(1) of the Act, in relation to special resolutions expected to be passed at the meeting. 10.05 MODIFICATIONS OF DIVISION 5 OF PART IV OF THE ACT - MEETING OF DEBTOR'S CREDITORS
For the purposes of section 196 of the Act, the provisions specified in Part 2 of Schedule 6 are modified in accordance with that Part in relation to their application, in accordance with that section, to a meeting called under an authority under section 188 of the Act. 10.06 APPLICATION OF SECTION 64M OF PART IV OF THE ACT - MEETING OF DEBTOR'S CREDITORS
For the purposes of section 64M of the Act in its application, in accordance with section 196 of the Act, to a meeting called under an authority under section 188 of the Act:

(a) an instrument appointing a proxy may be lodged with the controlling trustee by facsimile transmission; and

(b) an instrument so lodged may be circulated by the controlling trustee under subsection 64M(2) of the Act as so applying. 10.07 MODIFICATIONS OF PART VIII OF THE ACT - CONTROLLING TRUSTEES
For the purposes of section 210 of the Act, the provisions specified in Part 3 of Schedule 6 are modified in accordance with that Part in relation to their application, in accordance with that section, to the controlling trustee of a debtor. 10.08 MEETING IF TRUSTEE DOES NOT EXECUTE DEED
10.08(1)
A meeting of creditors under subsection 217(1) of the Act must be called in accordance with notice in writing of the meeting that was given at least 7 days before the meeting to each of the following persons (other than the person giving the notice):

(a) the debtor;

(b) the trustee required to execute the deed;

(c) each creditor whose identity and address are known to, or can reasonably be ascertained by, the person giving the notice.

10.08(2)
A notice under subregulation (1) must set out the terms of any resolution proposed under subsection 217(1) of the Act that is known to the person giving the notice.
10.09 NOTIFICATION OF DEED OF ASSIGNMENT OR DEED OF ARRANGEMENT OR SPECIAL RESOLUTION ACCEPTING A COMPOSITION
A notification under paragraph 218(1)(a) or subsection 218(2) of the Act must:

(a) be given in writing and in accordance with regulation 16.01; and

(b) in the case of a notification about a deed of assignment or a deed of arrangement - state that the deed has been executed by the debtor and the trustee. 10.10 SEQUESTRATION ORDER, OR ORDER AVOIDING A DEED OR COMPOSITION - NOTICE TO OFFICIAL RECEIVER
10.10(1)
This regulation does not apply in relation to an applicant if the applicant is the Official Receiver, the Official Trustee, the Inspector-General or a person authorised by the Inspector-General under subsection 221(1) or 222(4) of the Act.

10.10(2)
Where the Court makes a sequestration order under subsection 221(1) or 222(7) of the Act, the applicant for the order must give notice in writing to the Official Receiver of the making of the order.
View history note

Hide history note

History

Reg 10.10(2) amended by SR No 76 of 1997, r 19.1.

10.10(3)
Where the Court makes an order, under subsection 222(2) or (4) of the Act, in respect of a deed or composition or a provision of a deed or composition, the applicant for the order must give a copy of the order to the Official Receiver.
View history note

Hide history note

History

Reg 10.10(3) amended by SR No 76 of 1997, r 19.1.

10.10(4)
A notice, or copy of an order, required by this regulation must be given within 3 working days.
View history note

Hide history note

History

Reg 10.10(4) amended by SR No 262 of 2001, reg 3 and Sch 1 item 16 by omitting the penalty and note, effective 5 October 2001. The penalty and note formerly read:

Penalty: 1 penalty unit.
Note: For penalty units, see the Crimes Act 1914 , s 4AA. At the date of making these Regulations the amount of a penalty unit is $100.

Reg 10.10(4) amended by SR No 76 of 1997, r 19.1.

10.10(5)
An offence against subregulation (4) is an offence of strict liability.
Penalty: 1 penalty unit.

Note:

For strict liability , see section 6.1 of the Criminal Code .

View history note

Hide history note

History

Reg 10.10(5) inserted by SR No 262 of 2001, reg 3 and Sch 1 item 17, effective 5 October 2001.

10.11 APPLICATION OF SECTION 64M OF THE ACT TO MEETINGS CALLED UNDER SECTION 223 OF THE ACT
For the purposes of section 64M of the Act in its application, in accordance with section 223A of the Act, to a meeting called under section 223 of the Act:

(a) an instrument appointing a proxy may be lodged, by facsimile transmission, with the person who called the meeting; and

(b) an instrument so lodged may be circulated by that person under subsection 64M(2) of that section as so applying. 10.12 MODIFICATIONS FOR THE PURPOSES OF SECTION 231 OF THE ACT - DEEDS OF ASSIGNMENT
10.12(1)
For the purposes of subsection 231(2) of the Act, the provisions specified in Part 4 of Schedule 6 are modified in accordance with that Part in relation to their application, in accordance with that subsection, to a deed of assignment of a kind mentioned in that subsection.

10.12(2)
For the purposes of subsection 231(4) of the Act, the provisions specified in Part 3 of Schedule 6 are modified in accordance with that Part in relation to their application, in accordance with that subsection, to a trustee of a deed of assignment.
10.13 CERTIFICATE RELATING TO REALISATION OF DIVISIBLE PROPERTY AND NON-AVAILABILITY OF DIVIDEND, OR PAYMENT OF FINAL DIVIDEND
10.13(1)
Where the trustee of a deed of assignment is satisfied that the divisible property of the debtor has, so far as practicable, been realised and no dividend is payable to the creditors, the trustee must, if requested in writing by the debtor to do so, give to the debtor, within 7 days, a certificate signed by the trustee to that effect.

10.13(2)
In any proceedings, a certificate under subregulation (1):

(a) is evidence of the facts stated in it; and

(b) may be tendered in evidence without further proof.

10.13(3)
Where the trustee of a deed of assignment gives a certificate to the debtor under subsection 232(1) of the Act or subregulation (1), the trustee must, within 7 days, give a copy of the certificate to the Official Receiver.
View history note

Hide history note

History

Reg 10.13(3) amended by SR No 262 of 2001, reg 3 and Sch 1 item 18 by omitting the penalty, effective 5 October 2001. The penalty formerly read:

Penalty: 1 penalty unit

10.13(4)
An offence against subregulation (3) is an offence of strict liability.
Penalty: 1 penalty unit.

Note: For strict liability , see section 6.1 of the Criminal Code .

View history note

Hide history note

History

Reg 10.13(4) inserted by SR No 262 of 2001, reg 3 and Sch 1 item 19, effective 5 October 2001.

10.14 MODIFICATIONS FOR THE PURPOSES OF SECTION 237 OF THE ACT - DEEDS OF ARRANGEMENT
10.14(1)
For the purposes of subsection 237(2) of the Act, the provisions specified in Part 5 of Schedule 6 are modified in accordance with that Part in relation to their application, in accordance with that subsection, to a deed of arrangement of a kind mentioned in that subsection.

10.14(2)
For the purposes of subsection 237(4) of the Act, the provisions specified in Part 3 of Schedule 6 are modified in accordance with that Part in relation to their application, in accordance with that subsection, to a trustee of a deed of arrangement.
10.15 CERTIFICATE THAT PROVISIONS OF DEED OF ARRANGEMENT HAVE BEEN CARRIED OUT - COPY TO OFFICIAL RECEIVER
10.15(1)
If the trustee of a deed of arrangement gives a certificate to the debtor under subsection 237A(1) of the Act, the trustee must, within 7 days, give a copy of the certificate to the Official Receiver.
Penalty: 1 penalty unit

10.15(2)
An offence against subregulation (1) is an offence of strict liability.
Note:

For strict liability , see section 6.1 of the Criminal Code .

View history note

Hide history note

History

Reg 10.15 amended by SR No 262 of 2001, reg 3 and Sch 1 items 20 and 21 by substituting ``(1) If'' for ``Where'' and inserting reg 10.15(2), effective 5 October 2001.

10.16 MODIFICATIONS FOR THE PURPOSES OF SECTION 243 OF THE ACT - COMPOSITIONS
For the purposes of subsection 243(3) of the Act, the provisions specified in Parts 3 and 6 of Schedule 6 are modified in accordance with that Part in relation to their application, in accordance with that subsection, to a composition under Part X of the Act. 10.17 CERTIFICATE THAT TERMS OF COMPOSITION HAVE BEEN CARRIED OUT - COPY TO OFFICIAL RECEIVER
10.17(1)
If the trustee of a composition gives a certificate to the debtor under subsection 243A(1) of the Act, the trustee must, within 7 days, give a copy of the certificate to the Official Receiver.
Penalty: 1 penalty unit

10.17(2)
An offence against subregulation (1) is an offence of strict liability.
Note:

For strict liability , see section 6.1 of the Criminal Code .

View history note

Hide history note

History

Reg 10.17 amended by SR No 262 of 2001, reg 3 and Sch 1 items 22 and 23 by substituting ``(1) If'' for ``Where'' and inserting reg 10.17(2), effective 5 October 2001.

10.18 CONTROLLING TRUSTEE TO GIVE OFFICIAL RECEIVER COPY OF SPECIAL RESOLUTION AND CERTAIN PARTICULARS FOR THE INDEX
10.18(1)
If, at a meeting, a special resolution is passed under subsection 204(1) of the Act, the controlling trustee must give to the Official Receiver, within 7 days after the date on which the resolution is passed:

(a) a copy of the resolution; and

(b) notice in writing specifying the following particulars for entry in the Index:

(i) the date of the resolution;

(ii) in respect of the debtor:

(A) the debtor's full name, and any alias;

(B) the debtor's address;

(C) the debtor's occupation (if any);

(iii) in the case of a resolution concerning a deed of arrangement, deed of assignment or composition - the name of each trustee of the deed or composition who has been nominated under subsection 204(4) of the Act.

Penalty: 1 penalty unit

View history note

Hide history note

History

Reg 10.18(1) amended by SR No 262 of 2001, reg 3 and Sch 1 item 24 by substituting ``(1) If,'' for ``Where,'', effective 5 October 2001.

10.18(2)

(Repealed by SR No 255 of 2002)

View history note

Hide history note

History

Reg 10.18(2) repealed by SR No 255 of 2002, reg 3 and Sch 1 item 16, effective 6 November 2002. Reg 10.18(2) formerly read:

10.18(2)
This regulation does not apply to the Official Trustee.

Reg 10.18(2) amended by SR No 262 of 2001, reg 3 and Sch 1 item 25 by omitting the note, effective 5 October 2001. The note formerly read:

Note: For penalty units, see the Crimes Act 1914 , s 4AA. At the date of making these Regulations the amount of a penalty unit is $100.

10.18(3)
An offence against subregulation (1) is an offence of strict liability.
Note:

For strict liability , see section 6.1 of the Criminal Code .

View history note

Hide history note

History

Reg 10.18(3) inserted by SR No 262 of 2001, reg 3 and Sch 1 item 26, effective 5 October 2001.

REGULATION 10.02 INFORMATION TO BE GIVEN TO DEBTOR (ACT SS 188(2AA) AND (2AB))

View history reference

10.02(1)
For subsections 188(2AA) and (2AB) of the Act, the following information is prescribed:

(a) information about the consequences of entering into a personal insolvency agreement;

(b) information about sources of financial advice and guidance to persons facing or contemplating entering into a personal insolvency agreement;

(c) information about whether a personal insolvency agreement may be administered by a registered trustee or the Official Trustee;

(d) a statement that it is an act of bankruptcy if a debtor does any of the things mentioned in paragraphs 40(1)(i) to (m) of the Act;

(e) information about the processes under Part X of the Act;

(f) information about a debtor's rights and responsibilities under Part X of the Act, including a debtor's obligation to disclose all related entities;

(g) information about a controlling trustee's obligation to disclose his or her relationship with a debtor.

10.02(2)
The information must be factual and objective.

10.02(3)
A person authorised under subsection 188(1) of the Act to take control of a debtor's property must not consent to exercise the powers given by the authority unless the debtor has given the person a signed acknowledgement (which may be included with or appended to the authority) that the debtor has received and read the prescribed information.

10.02(4)

View history reference

Subregulation (5) applies if a debtor intends to sign an authority and the debtor is:

(a) unable to read the relevant material, because he or she is:

(i) blind, partially sighted, illiterate or partially literate; or

(ii) insufficiently familiar with the English language; or

(b) unable to sign the authority or the acknowledgment, because of a physical incapacity.

View history note

10.02(5)

View history reference

The authority and the acknowledgement may be signed by another person, who must sign a statement:

(a) if subparagraph (5)(a)(i) applies - that he or she has read the relevant material to the debtor; or

(b) if subparagraph (5)(a)(ii) applies - that he or she has interpreted the relevant material to the debtor in a language with which both persons are familiar; or

(c) if paragraph (5)(b) applies - that he or she believes that the debtor has read and understood the relevant material.

View history note

10.02(6)

View history reference

In this regulation:

relevant material
means the authority, the prescribed information and the acknowledgment.

View history note

Disclaimer and notice of copyright applicable to materials provided by CCH Australia Limited

CCH Australia Limited ("CCH") believes that all information which it has provided in this site is accurate and reliable, but gives no warranty of accuracy or reliability of such information to the reader or any third party. The information provided by CCH is not legal or professional advice. To the extent permitted by law, no responsibility for damages or loss arising in any way out of or in connection with or incidental to any errors or omissions in any information provided is accepted by CCH or by persons involved in the preparation and provision of the information, whether arising from negligence or otherwise, from the use of or results obtained from information supplied by CCH.

The information provided by CCH includes history notes and other value-added features which are subject to CCH copyright. No CCH material may be copied, reproduced, republished, uploaded, posted, transmitted, or distributed in any way, except that you may download one copy for your personal use only, provided you keep intact all copyright and other proprietary notices. In particular, the reproduction of any part of the information for sale or incorporation in any product intended for sale is prohibited without CCH's prior consent.