Bankruptcy Act. Australia

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СКАЧАТЬ and Abdul are joint debtors. When they present a debtor’s petition against themselves, there is a creditor’s petition pending against Abdul. The Official Receiver must refer the debtor’s petition to the Court, because the creditor’s petition does not relate to both Peta and Abdul.

      Example 2: Joan and Craig are joint debtors. When they present a debtor’s petition against themselves, there is a creditor’s petition pending against Joan, Craig and Paul. The Official Receiver must refer the debtor’s petition to the Court.

      Example 3: Kim, Robin and Jane are joint debtors. When they present a debtor’s petition against themselves, there is a creditor’s petition pending against Kim, Robin and Jane, and no-one else. The Official Receiver is not required to refer the debtor’s petition to the Court.

      (3C) If the Court directs the Official Receiver to accept the debtor’s petition, the Court must specify the time of the commencement of each bankruptcy that results from acceptance of the debtor’s petition.

      (4) The Official Receiver must accept a debtor’s petition, unless the Official Receiver rejects it under subsection (3) or is directed by the Court to reject it.

      (5) Where the Official Receiver accepts a petition presented under this section:

      (a) he or she shall endorse the petition accordingly; and

      (b) upon the Official Receiver endorsing the petition, each of the petitioning debtors becomes a bankrupt by force of this section and by virtue of presentation of the petition.

      (6) If a registered trustee is the trustee of the estate of a person who becomes a bankrupt under this section, the Official Receiver must:

      (a) notify the trustee of the bankruptcy; and

      (b) give the trustee a copy of each statement of affairs that accompanied the debtor’s petition.

      (6A) A debtor who is a party (as debtor) to a debt agreement must not present a debtor’s petition unless the Court gives the debtor permission to do so.

      (7) A debtor who has executed a personal insolvency agreement is not entitled to join in presenting a petition under this section unless:

      (a) the agreement has been set aside; or

      (b) the agreement has been terminated; or

      (c) all the obligations that the agreement created have been discharged; or

      (d) the Court grants leave for the debtor to join in presenting a petition under this section.

      (8) A debtor in relation to whom a stay under a proclaimed law applies is not, except with the leave of the Court, entitled to join in presenting a petition under this section.

      (9) Where a petition is presented in contravention of subsection (6A), (7) or (8), the presentation of the petition does not have any effect.

      (10) A person who becomes a bankrupt by force of this section continues to be a bankrupt until:

      (a) he or she is discharged by force of subsection 149(1); or

      (b) his or her bankruptcy is annulled by force of subsection 74(5) or 153A(1) or under section 153B.

      (11) A person who states in writing that he or she is a creditor of a bankrupt who has become a bankrupt by virtue of the presentation of a debtor’s petition against joint debtors, or a creditor of joint debtors some or all of whom have become bankrupts by force of this section, may without fee, and any other person may on payment of the fee determined by the Minister by legislative instrument, inspect, personally or by an agent, any statement of affairs that accompanied the petition presented by the joint debtors, and may obtain a copy of, or take extracts from, any such statement of affairs.

      (12) A bankrupt who has become a bankrupt by force of this section may, without fee and either personally or by an agent:

      (a) inspect any statement of affairs that accompanied the petition; and

      (b) obtain a copy of, or make extracts from, any statement of affairs that accompanied the petition.

      (13) If the approved form for a statement of affairs indicates that particular information in the statement will not be made available to the public, then the Official Receiver must ensure that the information is not made available under this section to any person (other than a petitioning debtor or an agent of a petitioning debtor).

      (14) The Official Receiver may refuse to allow a person access under this section to particular information in a statement of affairs on the ground that access to that information would jeopardise, or be likely to jeopardise, the safety of any person.

      57A Time at which person becomes bankrupt on debtor’s petition

      Where, after the commencement of this section, a person becomes a bankrupt by virtue of the presentation of a debtor’s petition, the person shall, for the purposes of this Act, be deemed to become a bankrupt at the first instant of the day on which the petition is accepted by the Official Receiver.

      Division 4 Effect of bankruptcy on property and proceedings

      58 Vesting of property upon bankruptcy — general rule

      (1) Subject to this Act, where a debtor becomes a bankrupt:

      (a) the property of the bankrupt, not being after-acquired property, vests forthwith in the Official Trustee or, if, at the time when the debtor becomes a bankrupt, a registered trustee becomes the trustee of the estate of the bankrupt by virtue of section 156A, in that registered trustee; and

      (b) after-acquired property of the bankrupt vests, as soon as it is acquired by, or devolves on, the bankrupt, in the Official Trustee or, if a registered trustee is the trustee of the estate of the bankrupt, in that registered trustee.

      Note 1: This subsection has a limited application if there are orders in force under the proceeds of crime law: see section 58A.

      Note 2: Even if property has vested under this section, it may, under the Proceeds of Crime Act 2002:

      (a) become subject to a restraining order; and

      (b) be taken into account in making a pecuniary penalty order; and

      (c) become subject to a charge to secure the payment of an amount under a pecuniary penalty order, if it is subject to a restraining order; and

      (d) be dealt with by the Official Trustee, if it is subject to a restraining order and a court has directed the Official Trustee to pay the Commonwealth an amount under a pecuniary penalty order out of property subject to the restraining order.

      (2) Where a law of the Commonwealth or of a State or Territory of the Commonwealth requires the transmission of property to be registered and enables the trustee of the estate of a bankrupt to be registered as the owner of any such property that is part of the property of the bankrupt, that property, notwithstanding that it vests in equity in the trustee by virtue of this section, does not so vest at law until the requirements of that law have been complied with.

      (3) Except as provided by this Act, after a debtor has become a bankrupt, it is not competent for a creditor:

      (a) to enforce any remedy СКАЧАТЬ