Bankruptcy Regulations 1996
(regulations 10.01 , 10.05 , 10.07 , 10.08 and 10.13 )
PART 2 - MODIFICATIONS OF DIVISION 5 OF PART IV OF THE ACT - MEETINGS CALLED UNDER AUTHORITIES UNDER SECTION 188 OF THE ACT(Repealed by FRLI No F2016L01926)
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Hide history notePt 2 repealed by FRLI No F2016L01926, reg 4 and Sch 1 item 59, effective 1 September 2017. Pt 2 formerly read:
PART 2 - MODIFICATIONS OF DIVISION 5 OF PART IV OF THE ACT - MEETINGS CALLED UNDER AUTHORITIES UNDER SECTION 188 OF THE ACT
1 Subsection 63A(1), definition of joint bankruptcy , subparagraph (d)(ii)
2 Subsection 63A(1), definition of joint bankruptcy , after paragraph (d)
1 omit jointly. insert jointly; or
3 Subsection 64A(2)
2 insert (e) the situation arising out of the signing, by joint debtors for the purposes of section 188, of a joint authority or separate authorities for the administration of their joint estate.
3 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. 3A After subsection 64A(2)HistoryItems 3, 3A and 3B substituted for item 3 by SLI No 4 of 2006, reg 3 and Sch 1 item 14, applicable in relation to a notice of the first meeting of creditors given on or after 3 April 2006. Item 3 formerly read:
SECTION 3 3 Subsection 64A(2)
3
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.
3A 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. 3B After section 64AHistoryItems 3, 3A and 3B substituted for item 3 by SLI No 4 of 2006, reg 3 and Sch 1 item 14, applicable in relation to a notice of the first meeting of creditors given on or after 3 April 2006.
3B 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. 4 After subsection 64B(5)HistoryItems 3, 3A and 3B substituted for item 3 by SLI No 4 of 2006, reg 3 and Sch 1 item 14, applicable in relation to a notice of the first meeting of creditors given on or after 3 April 2006.
5 After paragraph 64D(aa)
4 insert (6) If the meeting is the first meeting of creditors called under an authority given under section 188, the notice must state that an information sheet about Part X, dealing with the following matters, may be obtained from the Insolvency and Trustee Service Australia: (a) meetings under Part X; (b) controlling trustees; (c) the administration of an authority under section 188; (d) the application of Part X to an authority under section 188; (e) personal insolvency agreements; (f) the rights of creditors under Part X.
6 Paragraph 64G(g)
5 insert (ab) whether the creditor, in relation to the debtor, is a related entity; and
7 Section 64P, heading
6 substitute (g) if the meeting is the first meeting - tabling of the following documents: (i) the statement of affairs, and the proposal for dealing with them, required by subsection 188(2C) or (2D); (ii) the report by the controlling trustee required by section 189A; (iii) the written statement by the controlling trustee required by section 189B;
8 Subsections 64P(1) and (2)
7 substitute 64P Controlling trustee to preside at meeting under section 188
9 Subsection 64P(6)
8 substitute (1) Subject to subsection (2), the controlling trustee must preside at a meeting called under an authority under section 188. (2) The creditors and their representatives may: (a) vote to remove the controlling trustee as President; and (b) nominate another person to preside at the meeting.
10 Subsection 64P(7)
9 omit each mention of the trustee insert the controlling trustee
11 Subsection 64R(1)
10 omit the trustee insert the controlling trustee
12 Subsection 64R(2)
11 substitute (1) If the meeting is the first meeting, the President must then request the controlling trustee to lay before the meeting the documents specified in paragraph 64G(g), and the controlling trustee must comply with the request.
13 Subsection 64U(1)
12 omit the statement of affairs, insert those documents,
14 Before subsection 64Y(1)
13 substitute (1) At the first meeting called under an authority under section 188 that is attended by: (a) the controlling trustee; or (b) if the creditors have passed a special resolution under paragraph 204(1)(b) - the trustee of a personal insolvency agreement; the President must ask the trustee to state the basis on which he or she wishes to be remunerated.
15 After subsection 64ZC(5)
14 insert (1A) The controlling trustee may adjourn a meeting to undertake further investigations, in relation to the controlling trusteeship, that the controlling trustee considers necessary. (1B) The creditors attending the meeting may, by special resolution, revoke the trustee ' s decision to adjourn the meeting.
15 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. 16 After subsection 64ZE(2)HistoryItem 15 substituted by SLI No 137 of 2006, reg 3 and Sch 1 item 16, effective 1 July 2006. Item 15 formerly read:
15 After subsection 64ZC(5)
15
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 15 substituted by SLI No 4 of 2006, reg 3 and Sch 1 item 15, effective 17 February 2006. Item 15 formerly read:
SECTION 15 15 After subsection 64ZC(5)
15
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.
16 insert (3) This section applies in relation to a personal insolvency agreement only if: (a) a joint estate forms part of the property that is to be dealt with under the agreement; and (b) the agreement does not specifically provide for distribution of the joint estate.
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