Bankruptcy Regulations 1996

SCHEDULE 2 - MODIFICATIONS UNDER SECTION 76A OF THE ACT - MEETINGS OF CREDITORS UNDER DIVISION 6 OF PART IV OF THE ACT

(Repealed by FRLI No F2016L01926)

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History

Sch 2 repealed by FRLI No F2016L01926, reg 4 and Sch 1 item 56, effective 1 September 2017. Sch 2 formerly read:

SCHEDULE 2 - MODIFICATIONS UNDER SECTION 76A OF THE ACT - MEETINGS OF CREDITORS UNDER DIVISION 6 OF PART IV OF THE ACT

(regulation 4.19 )
1AA Subsection 64A(2)
substitute

(2) Notice of a meeting:

(a) for the first meeting of creditors - must be published in a manner approved by the Inspector-General; and

(b) for any other meeting of creditors - must be given in a manner specified in the regulations.

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Item 1AA, 1AB and 1AC substituted for item 1A by SLI No 4 of 2006, reg 3 and Sch 1 item 12, applicable in relation to a notice of the first meeting of creditors given on or after 3 April 2006. Item 1A formerly read:
1A After subsection 64A(2)
Substitute

(2)
Notice of a meeting must:

(a) be given in a manner specified in the regulations; and

(b) be published in:

(i) a national daily newspaper that circulates throughout Australia; and

(ii) a regional daily newspaper of the State or Territory in which the debtor resides.

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Item 1A inserted by SR No 256 of 2004, reg 3 and Sch 1 item 15, effective 1 December 2004.

1AB After subsection 64A(2)
insert

(3) The notice of the first meeting of creditors must include any matter approved by the Inspector-General.

(4) For the purposes of paragraph (2)(a) and without limiting the power of the Inspector-General under that paragraph, the Inspector-General may:

(a) approve, as the manner of publication of the notice of the first meeting of creditors, publication on a website; and

(b) specify in the approval:

(i) the website where the notice must be published; and

(ii) any conditions relating to the approval.

Example: The Inspector-General may specify:

(a) the format in which the notice is to be made available; and

(b) the period of time for which the notice must remain on the website; and

(c) whether related documents are to be made available for downloading from the website or in hard copy.

(5) An approval made by the Inspector-General for the purposes of paragraph (2)(a) or subsection (3) must be published on the Insolvency and Trustee Service Australia ' s website.

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Item 1AA, 1AB and 1AC substituted for item 1A by SLI No 4 of 2006, reg 3 and Sch 1 item 12, applicable in relation to a notice of the first meeting of creditors given on or after 3 April 2006.

1AC After section 64A
insert

64AA Immunity from civil actions and proceedings

(1) A civil action or proceeding does not lie against a person who operates a website, specified in an approval for the purposes of paragraph 64A(2)(a) or subsection 64A(3), in respect of a publication of a notice of the first meeting of creditors (or a notice that appears to be a notice of the first meeting of creditors) if the publication was made in good faith and without negligence.

(2) Nothing in this section affects by implication any other ground of defence.

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Item 1AA, 1AB and 1AC substituted for item 1A by SLI No 4 of 2006, reg 3 and Sch 1 item 12, applicable in relation to a notice of the first meeting of creditors given on or after 3 April 2006.

1 Section 64B (Certain matters to be included in notice of meeting)
1.1
Add at the end:

' (6) The trustee must attach to the notice:

(a) the documents referred to in subsection 73(2); and

(b) if the meeting is the first meeting of creditors held during the administration of the estate - a copy of:

(i) the bankrupt ' s statement of affairs; or

(ii) a summary of that statement. ' .

1B After paragraph 64D(aa)
insert

(ab) whether the creditor, in relation to the debtor, is a related entity; and

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Item 1B inserted by SR No 256 of 2004, reg 3 and Sch 1 item 16, effective 1 December 2004.

2 Section 64E (Notice about voting by proxy)
2.1
Omit the section, substitute:

' 64E Notice - proxy voting and voting on bankrupt ' s proposal

' (1) The trustee must attach to the notice a form for use in:

(a) appointing a proxy; and

(b) expressing under subsection 73(5) the creditor ' s assent to, or dissent from, the bankrupt ' s proposal.

' (2) The notice must tell the creditors that if a creditor wishes to appoint a person to represent the creditor at the meeting as the creditor ' s proxy, the creditor must complete the form of appointment of proxy and either:

(a) arrange for the proxy to give the completed form to the trustee before the meeting; or

(b) send the completed form with the statement given by the creditor to the trustee in accordance with section 64D.

' (3) The notice must tell creditors that if a creditor wishes to use the form to express his or her assent to or dissent from the bankrupt ' s proposal, the creditor must arrange for the form to be given to the trustee before the meeting. ' .

3 Section 64G (Agenda to be set out in notice of meeting)
3.1
Paragraph 64G(g):
Omit the paragraph, substitute:

' (g) consideration of the bankrupt ' s proposals for a composition or scheme of arrangement; ' .

3.2
Paragraph 64G(k):
Omit the paragraph, substitute:

' (k) proposal of:

(i) a special resolution accepting the bankrupt ' s proposal for a composition or a scheme of arrangement; or

(ii) any other relevant motion; ' .

4 Section 64R (Tabling of bankrupt ' s statement of affairs)
4.1
Omit the section, substitute:

' 64R Provision of bankrupt ' s statement of affairs, bankrupt ' s proposal and trustee ' s report

' (1) The President must then ask whether each creditor, or representative of a creditor, at the meeting has with him or her a copy of:

(a) the bankrupt ' s proposal; and

(b) the trustee ' s report on the proposal.

' (2) If the meeting is the first meeting of the creditors, the President must also ask each creditor or representative whether the creditor or representative has a copy of the bankrupt ' s statement of affairs with him or her.

' (3) If a creditor or representative indicates that he or she does not have a copy of the proposal, the report or the statement of affairs with him or her, the trustee must give the creditor or representative, as soon as practicable, a copy of the proposal, report or statement, as the case requires.

' (4) If the trustee cannot give a creditor or representative a copy of the proposal, report or statement of affairs within a reasonable time, the meeting is to be adjourned to a time and place decided by the meeting.

' (5) In this section, a reference to a statement of affairs is taken to include a reference to a summary of such a statement. ' .

5 Section 64S (Statements and questions)
5.1
Subsection 64S(1)
Omit the subsection, substitute:

' (1) The President must then invite the bankrupt to make a statement outlining his or her proposal to the meeting.

' (1A) The President must then ask the trustee to comment on his or her report on the bankrupt ' s proposal. ' .

6 Section 64T (Motions)
6.1
Omit the section, substitute:

' 64T Motions

' (1) The President must then call for a motion for a special resolution to approve the bankrupt ' s proposal for a composition or scheme of arrangement.

' (2) If a motion is:

(a) not proposed; or

(b) proposed but not passed;

the President may close the meeting. ' .

7 Section 64U (Remuneration of registered trustee)
7.1
Subsection 64U(1)
Omit the subsection, substitute:

' (1) If:

(a) a special resolution, accepting the bankrupt ' s proposal, has been passed at the meeting; and

(b) a registered trustee has consented to be the trustee of the composition or scheme of arrangement; and

(c) the President has told the creditors and representatives at the meeting that provision for remuneration of the trustee may be included in the instrument setting out the terms of the composition or scheme;

the President must then ask the trustee of the composition or scheme of arrangement to state the basis on which the trustee wishes to be remunerated. ' .

7.2
Subsection 64U(8):
Omit the subsection, substitute:

' (8) If:

(a) a special resolution, accepting the bankrupt ' s proposal, has been passed at the meeting; and

(b) the trustee of the bankruptcy is a registered trustee;

the President must ask the trustee to lay before the meeting a statement of the amount of remuneration drawn by the trustee from the funds of the bankrupt ' s estate before the meeting was held.

' (9) The trustee must comply with the President ' s request. ' .

8 Section 64V (Appointment of committee of inspection)
8.1
Omit the section.
9 Section 64W (Other business)
9.1
Omit the section.
10 Section 64X (Next meeting)
10.1
Omit the section.
10A Before subsection 64Y(1)
insert

(1A) The trustee may adjourn a meeting to undertake further investigations, in relation to the proposal for the composition or scheme of arrangement, that the trustee considers necessary.

(1B) The creditors attending the meeting may, by special resolution, revoke the trustee ' s decision to adjourn the meeting.

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Item 10A inserted by SR No 256 of 2004, reg 3 and Sch 1 item 17, effective 1 December 2004.

11 Section 64ZB (Manner of voting)
11.1
After subsection 64ZB(1), insert:

' (1A) A creditor may, in a written vote given to the trustee at least 2 clear days (not including a Saturday, a Sunday or a public holiday) before the meeting is held, vote on a special resolution to accept a proposal by a bankrupt for a composition or scheme of arrangement. ' .

11A After subsection 64ZC(5)
insert

(5A) An instrument appointing a proxy must include:

(a) a statement disclosing whether or not the creditor has received, or will receive, a financial incentive:

(i) to appoint the proxy; or

(ii) to direct the proxy as to the manner in which the proxy is to vote on a particular matter or matters that may arise, or on a particular motion or motions that may be proposed, at a meeting to which the proxy relates; and

(b) if the proxy or creditor has received, or will receive, a financial incentive in relation to a matter mentioned in paragraph (a) - a statement specifying the amount of financial incentive paid or to be paid and the name of the person who paid, or is to pay, the financial incentive.

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Item 11A substituted by SLI No 137 of 2006, reg 3 and Sch 1 item 13, effective 1 July 2006. Item 11A formerly read:
11A After subsection 64ZC(5)
Insert

(5A)
An instrument appointing a proxy must include the following statements:

(a) a statement disclosing whether or not the proxy has received, or will receive, a financial incentive to vote in a particular way:

(i) on a particular matter or matters that may arise at a meeting to which the proxy relates; or

(ii) on a particular motion or motions that may be proposed at a meeting to which the proxy relates;

(b) a statement disclosing whether or not the creditor has received, or will receive, a financial incentive:

(i) to appoint the proxy; or

(ii) to direct the proxy as to the manner in which the proxy is to vote on a particular matter or matters that may arise, or on a particular motion or motions that may be proposed, at a meeting to which the proxy relates;

(c) if the proxy or creditor has received, or will receive, a financial incentive in relation to a matter mentioned in paragraph (a) or (b) - a statement specifying the amount of financial incentive paid or to be paid and the name of the person who paid, or is to pay, the financial incentive.

Item 11A substituted by SLI No 4 of 2006, reg 3 and Sch 1 item 13, effective 17 February 2006. Item 11A formerly read:
11A After subsection 64ZC(5)
Insert

(5A)
An instrument appointing a proxy must include a statement:

(a) disclosing whether or not the proxy has received a financial incentive to vote in a particular way:

(i) on a particular matter or matters that may arise at the meeting; or

(ii) on a particular motion or motions that may be proposed at the meeting; and

(b) including information to the effect that it is an offence, under subsection 263C(1), to give the trustee a voting document knowing or reckless that the document is false or misleading in a material particular.

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Item 11A inserted by SR No 256 of 2004, reg 3 and Sch 1 item 18, effective 1 December 2004.

12 Section 64ZE (Joint bankruptcies)
12.1
Omit the section.

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(2)	Notice of a meeting:
	(a)	for the first meeting of creditors - must be published in a manner approved by the Inspector-General; and
	(b)	for any other meeting of creditors - must be given in a manner specified in the regulations.

(3)	The notice of the first meeting of creditors must include any matter approved by the Inspector-General.
(4)	For the purposes of paragraph (2)(a) and without limiting the power of the Inspector-General under that paragraph, the Inspector-General may:
	(a)	approve, as the manner of publication of the notice of the first meeting of creditors, publication on a website; and
	(b)	specify in the approval:
		(i)	the website where the notice must be published; and
		(ii)	any conditions relating to the approval.
	Example: The Inspector-General may specify:
	(a)	the format in which the notice is to be made available; and
	(b)	the period of time for which the notice must remain on the website; and
	(c)	whether related documents are to be made available for downloading from the website or in hard copy.
(5)	An approval made by the Inspector-General for the purposes of paragraph (2)(a) or subsection (3) must be published on the Insolvency and Trustee Service Australia ' s website.

64AA Immunity from civil actions and proceedings
(1)	A civil action or proceeding does not lie against a person who operates a website, specified in an approval for the purposes of paragraph 64A(2)(a) or subsection 64A(3), in respect of a publication of a notice of the first meeting of creditors (or a notice that appears to be a notice of the first meeting of creditors) if the publication was made in good faith and without negligence.
(2)	Nothing in this section affects by implication any other ground of defence.

' (6)	The trustee must attach to the notice:
	(a)	the documents referred to in subsection 73(2); and
	(b)	if the meeting is the first meeting of creditors held during the administration of the estate - a copy of:
		(i)	the bankrupt ' s statement of affairs; or
		(ii)	a summary of that statement. ' .

' 64E	Notice - proxy voting and voting on bankrupt ' s proposal
	' (1)	The trustee must attach to the notice a form for use in:
		(a)	appointing a proxy; and
		(b)	expressing under subsection 73(5) the creditor ' s assent to, or dissent from, the bankrupt ' s proposal.
	' (2)	The notice must tell the creditors that if a creditor wishes to appoint a person to represent the creditor at the meeting as the creditor ' s proxy, the creditor must complete the form of appointment of proxy and either:
		(a)	arrange for the proxy to give the completed form to the trustee before the meeting; or
		(b)	send the completed form with the statement given by the creditor to the trustee in accordance with section 64D.
	' (3)	The notice must tell creditors that if a creditor wishes to use the form to express his or her assent to or dissent from the bankrupt ' s proposal, the creditor must arrange for the form to be given to the trustee before the meeting. ' .

' (k)	proposal of:
	(i)	a special resolution accepting the bankrupt ' s proposal for a composition or a scheme of arrangement; or
	(ii)	any other relevant motion; ' .

' 64R	Provision of bankrupt ' s statement of affairs, bankrupt ' s proposal and trustee ' s report
	' (1)	The President must then ask whether each creditor, or representative of a creditor, at the meeting has with him or her a copy of:
		(a)	the bankrupt ' s proposal; and
		(b)	the trustee ' s report on the proposal.
	' (2)	If the meeting is the first meeting of the creditors, the President must also ask each creditor or representative whether the creditor or representative has a copy of the bankrupt ' s statement of affairs with him or her.
	' (3)	If a creditor or representative indicates that he or she does not have a copy of the proposal, the report or the statement of affairs with him or her, the trustee must give the creditor or representative, as soon as practicable, a copy of the proposal, report or statement, as the case requires.
	' (4)	If the trustee cannot give a creditor or representative a copy of the proposal, report or statement of affairs within a reasonable time, the meeting is to be adjourned to a time and place decided by the meeting.
	' (5)	In this section, a reference to a statement of affairs is taken to include a reference to a summary of such a statement. ' .

' (1)	The President must then invite the bankrupt to make a statement outlining his or her proposal to the meeting.
' (1A)	The President must then ask the trustee to comment on his or her report on the bankrupt ' s proposal. ' .

' 64T	Motions
	' (1)	The President must then call for a motion for a special resolution to approve the bankrupt ' s proposal for a composition or scheme of arrangement.
	' (2)	If a motion is:
		(a)	not proposed; or
		(b)	proposed but not passed;
		the President may close the meeting. ' .

' (1)	If:
	(a)	a special resolution, accepting the bankrupt ' s proposal, has been passed at the meeting; and
	(b)	a registered trustee has consented to be the trustee of the composition or scheme of arrangement; and
	(c)	the President has told the creditors and representatives at the meeting that provision for remuneration of the trustee may be included in the instrument setting out the terms of the composition or scheme;
	the President must then ask the trustee of the composition or scheme of arrangement to state the basis on which the trustee wishes to be remunerated. ' .

' (8)	If:
	(a)	a special resolution, accepting the bankrupt ' s proposal, has been passed at the meeting; and
	(b)	the trustee of the bankruptcy is a registered trustee;
	the President must ask the trustee to lay before the meeting a statement of the amount of remuneration drawn by the trustee from the funds of the bankrupt ' s estate before the meeting was held.
' (9)	The trustee must comply with the President ' s request. ' .

(1A)	The trustee may adjourn a meeting to undertake further investigations, in relation to the proposal for the composition or scheme of arrangement, that the trustee considers necessary.
(1B)	The creditors attending the meeting may, by special resolution, revoke the trustee ' s decision to adjourn the meeting.

(5A)	An instrument appointing a proxy must include:
	(a)	a statement disclosing whether or not the creditor has received, or will receive, a financial incentive:
		(i)	to appoint the proxy; or
		(ii)	to direct the proxy as to the manner in which the proxy is to vote on a particular matter or matters that may arise, or on a particular motion or motions that may be proposed, at a meeting to which the proxy relates; and
	(b)	if the proxy or creditor has received, or will receive, a financial incentive in relation to a matter mentioned in paragraph (a) - a statement specifying the amount of financial incentive paid or to be paid and the name of the person who paid, or is to pay, the financial incentive.