Bankruptcy Act 1966

The Acts specified in Schedule 1 are repealed.

Notwithstanding the repeal of the Bankruptcy Act 1958 or the Bankruptcy Act 1959 effected by subsection (1) of this section:

the provisions of section 7 of the Bankruptcy Act 1958, as amended by the Bankruptcy Act 1959, continue to apply to a purported extension of time or a purported fixing of a time to which those provisions applied immediately before the commencement of this Act; and

the provisions of section 5 of the Bankruptcy Act 1959 continue to apply to a seal or stamp to which those provisions applied immediately before the commencement of this Act;

For the purposes of this Act, a company is associated with a person if the person:

is a company officer of the company or otherwise is concerned, or takes part, in the company’s management; or

is able to control, or to influence materially, the company’s activities or internal affairs; or

is a member of the company; or

is in a position to cast, or to control the casting of, a vote at a general meeting of the company; or

has power to dispose of, or to exercise control over the disposal of, a share in the company; or

is financially interested in the company’s success or failure or apparent success or failure; or

is owed a debt by the company; or

is employed, or is engaged under a contract for services, by the company; or

acts as agent for the company in any transaction or dealing; or

gives professional advice to the company.

For the purposes of this Act, a company is also associated with a person if the company:

holds property jointly with the person; or

is dealing with the person’s property as an agent for the person; or

is a trustee of a trust under which the person is capable of benefiting; or

acquires or disposes of property as a result of dealing with the person.

The circumstances set out in subsections (1) and (2) are the only circumstances in which a company is associated with a person for the purposes of this Act.

For the purposes of this Act, a natural person (in this section called the associate) is associated with another person if the other person:

holds property jointly with the associate; or

is a trustee of a trust under which the associate is capable of benefiting; or

can benefit under a trust of which the associate is a trustee; or

is employed, or is engaged under a contract for services, by the associate; or

acts as agent for the associate in any transaction or dealing; or

is a principal for whom the associate acts as an agent; or

is an attorney of the associate under a power of attorney; or

has appointed the associate as the other person’s attorney under a power of attorney; or

gives professional advice to the associate; or

is given professional advice by the associate.

A natural person (the associate) is also associated with another person if the associate has acquired or disposed of property as a result of dealing with the other person.

The circumstances set out in subsections (1) and (2) are the only circumstances in which a natural person is associated with another person for the purposes of this Act.

is a partner in the partnership;

is able to control, or to influence materially, the partnership’s activities or internal affairs;

is financially interested in the partnership’s success or failure or apparent success or failure;

is a creditor of the partnership;

is employed, or is engaged under a contract for services, by the partnership;

acts as agent for the partnership in any transaction or dealing; or

gives professional advice to the partnership.

is the settlor, or one of the settlors, of the trust;

has power under the terms of the trust to appoint or remove a trustee of the trust or to vary, or cause to be varied, any of the terms of the trust;

is a trustee of the trust;

is able to control, or to influence materially, the activities of the trustee of the trust;

if a trustee of the trust is a company—is a company officer of the company or otherwise is concerned, or takes part, in the company’s management;

is capable of benefiting under the trust;

is a creditor of the trustee of the trust;

is employed, or is engaged under a contract for services, by the trustee of the trust;

acts as agent for the trustee of the trust in any transaction or dealing; or

gives professional advice to the trustee of the trust.

Subject to this section, a person shall be taken, for the purposes of this Act, to control an entity at a particular time in relation to a matter if, and only if:

no act, omission or decision inconsistent with the person’s directions, instructions or wishes was; and

having regard to all the circumstances, it may reasonably be expected that no such act, omission or decision would have been;

A person shall not be taken to control an entity at a particular time in relation to a matter merely because:

no act, omission or decision inconsistent with advice given by the person in the proper performance of the functions attaching to his or her professional capacity, or to his or her business relationship with the entity, was; and

having regard to all the circumstances, it may reasonably be expected that no such act, omission or decision would have been;

A reference in subsection (1) or (2), in relation to a matter, to an act, omission or decision is a reference to an act, omission or decision that, having regard to the nature of that matter, is of substantial importance.

A person shall not be taken to control a company at a particular time in relation to a matter if the company is not a private company at that time.

the company’s promotion, formation, membership, control, operations and state of affairs;

the management and proceedings of the company;

any act or thing done (including any contract made and any transaction entered into) by or on behalf of the company, or to or in relation to the company or its business or property, at a time when:

a receiver, or a receiver and manager, is in possession of, or has control over, property of the company;

the company is under administration within the meaning of the Corporations Act 2001;

a deed of company arrangement that the company executed under Part 5.3A of that Act has not yet terminated;

a compromise or arrangement made between the company and another person or other persons is being administered; or

the company is being wound up;

the ownership of shares in, and debentures of, the company;

the power of persons to exercise, or to control the exercise of, the rights to vote attached to shares in the company or to dispose of, or to exercise control over the disposal of, such shares;

the circumstances under which a person acquired or disposed of, or became entitled to acquire or dispose of, shares in, or debentures of, the company; and

matters concerned with ascertaining the persons with whom the company is or has been associated.

the person’s operations and state of affairs;

any act or thing done (including any contract made and any transaction entered into) by or on behalf of the person, or to or in relation to the person or his or her business or property, at a time when:

the person was, under this Act or the law of an external Territory, a bankrupt in respect of a bankruptcy from which the person had not been discharged;

the person had, under the law of an external Territory or the law of a country other than Australia, the status of an undischarged bankrupt;

the property of the person was subject to control under Division 2 of Part X by reason of an authority given by the person under section 188; or

a personal insolvency agreement under Part X or under the corresponding provisions of a law of an external Territory or a country other than Australia was in effect in relation to the person or the person’s property;

without limiting the generality of paragraph (b), any conduct of the trustee of such a bankrupt estate or of such a personal insolvency agreement or a person acting under such an authority; and

matters concerned with ascertaining the persons with whom the person is or has been associated.