Bankruptcy Act. Australia

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СКАЧАТЬ amounts to $5,000 or 2 or more debts that amount in the aggregate to $5,000, or, where 2 or more creditors join in the petition, there is owing by the debtor to the several petitioning creditors debts that amount in the aggregate to $5,000;

      (b) that debt, or each of those debts, as the case may be:

      (i) is a liquidated sum due at law or in equity or partly at law and partly in equity; and

      (ii) is payable either immediately or at a certain future time; and

      (c) the act of bankruptcy on which the petition is founded was committed within 6 months before the presentation of the petition.

      (2) Subject to subsection (3), a secured creditor shall, for the purposes of paragraph (1) (a), be deemed to be a creditor only to the extent, if any, by which the amount of the debt owing to him or her exceeds the value of his or her security.

      (3) A secured creditor may present, or join in presenting, a creditor’s petition as if he or she were an unsecured creditor if he or she includes in the petition a statement that he or she is willing to surrender his or her security for the benefit of creditors generally in the event of a sequestration order being made against the debtor.

      (4) Where a petitioning creditor is a secured creditor, he or she shall set out in the petition particulars of his or her security.

      (5) Where a secured creditor has presented, or joined in presenting, a creditor’s petition as if he or she were an unsecured creditor, he or she shall, upon request in writing by the trustee within 3 months after the making of a sequestration order, surrender his or her security to the trustee for the benefit of the creditors generally.

      (6) A secured creditor to whom subsection (5) applies who fails to surrender his or her security when requested to do so by the trustee in accordance with that subsection is guilty of contempt of court.

      45 Creditor’s petition against partnership

      (1) A creditor of a partnership may present a petition against the partnership if he or she is entitled to present a petition against any one of the members of the partnership in respect of a partnership debt.

      (2) A creditor who is entitled to present a petition against a partnership may present a petition against any of the members of the partnership without including the others.

      46 Petition against 2 or more joint debtors

      (1) A creditor’s petition may be presented against 2 or more joint debtors, whether partners or not.

      (2) Where there are 2 or more respondents to a creditor’s petition, the Court may make a sequestration order against one or more of them and dismiss the petition in so far as it relates to the other or others.

      47 Requirements as to creditor’s petition

      (1) A creditor’s petition must be verified by an affidavit of a person who knows the relevant facts.

      (1A) If the rules of court prescribe a form for the purposes of this subsection, the petition must be in the form prescribed.

      (2) Except with the leave of the Court, a creditor’s petition shall not be withdrawn after presentation.

      49 Change of petitioners [see Table B]

      Where a creditor’s petition is not prosecuted with due diligence or where for any other reason the Court considers it proper to do so, the Court may permit to be substituted as petitioner or petitioners another creditor or other creditors to whom the debtor is indebted in the amount required by this Act in the case of a petitioning creditor, and the petition may be proceeded with as if the substituted creditor or creditors had been the petitioning creditor.

      50 Taking control of debtor’s property before sequestration

      [see Table B]

      (1) At any time after a bankruptcy notice is issued, or a creditor’s petition is presented, in relation to a debtor, but before the debtor becomes a bankrupt, the Court may:

      (a) direct the Official Trustee or a specified registered trustee to take control of the debtor’s property; and

      (b) make any other orders in relation to the property.

      (1A) The Court may give a direction or make an order only if:

      (a) a creditor has applied for the Court to make a direction; and

      (b) the Court is satisfied that it is in the interests of the creditors to do so; and

      (c) the debtor has not complied with the bankruptcy notice.

      (1B) If the Court directs a trustee to take control of the debtor’s property, the Court must specify when the control is to end.

      (2) Without limiting the generality of subsection (1), the Court may, at any time after giving a direction under subsection (1), summon the debtor, or an examinable person in relation to the debtor, for examination under this section in relation to the debtor.

      (3) A summons to a person under subsection (2) shall require the person to attend:

      (a) at a specified place and at a specified time on a specified day; and

      (b) before the Court, the Registrar or a magistrate, as specified in the summons;

      to be examined on oath under this section about the debtor and the debtor’s examinable affairs.

      (4) A summons to a person under subsection (2) may require the person to produce at the examination books (including books of an associated entity of the debtor) that:

      (a) are in the possession of the first-mentioned person; and

      (b) relate to the debtor or to any of the debtor’s examinable affairs.

      (5) For the purpose of the examination under this section of a person summoned under subsection (2), subsections 81(2) to (17), inclusive, apply, with any modifications prescribed by the regulations, as if:

      (a) a sequestration order had been made against the debtor when the Court gave the direction under subsection (1) of this section;

      (b) the examination were being held under section 81; and

      (c) a reference in those subsections to a creditor were a reference to a person who has a debt that would be provable in the debtor’s bankruptcy if a sequestration order had been made as mentioned in paragraph (a) of this subsection.

      51 Costs of prosecuting creditor’s petition

      Subject to section 109, the prosecution of a creditor’s petition to and including the making of a sequestration order on the petition shall be at the expense of the creditor.

      52 Proceedings and order on creditor’s petition

      (1) At the hearing of a creditor’s petition, the Court shall require proof of:

      (a) the matters stated in the petition (for which purpose the Court may accept the affidavit verifying the petition as sufficient);

      (b) СКАЧАТЬ