Annulment of administration
74 Annulment of administration
If a proposal to annul the administration of an estate is accepted by a special resolution of creditors at a meeting held in accordance with the Insolvency Practice Rules, the administration of the estate is annulled, by force of this subsection, on the day the special resolution is passed.
Within 2 business days after that day, the trustee of the estate must give to the Official Receiver a certificate, signed by the trustee, of the following matters:
the name of the estate;
the number of the administration;
the terms and date of the special resolution.
Penalty: 5 penalty units.
See also section 277B (about infringement notices).
An offence against subsection (2) is an offence of strict liability.
The Official Receiver must enter the day on which the administration of the estate is annulled in the National Personal Insolvency Index.
19 Subsections 74A(2) and (3)
Omit “debtor”, substitute “legal personal representative of the deceased debtor”.
20 At the end of section 74A
Add:
In this section:
legal personal representative, of a deceased debtor, means:
the executor under the deceased debtor’s will; or
the administrator under letters of administration or court order;
of the deceased debtor’s estate, or a part of that estate.
21 Subsection 75(2)
Repeal the subsection.
22 Subsection 81(1)
Repeal the subsection, substitute:
At any time during or after the administration under Part XI of the estate of a deceased debtor (the relevant person), the Court may, on the application of:
a person (a creditor) who has or had a debt provable in the administration; or
the trustee of the estate of the relevant person; or
the Official Receiver;
summon an examinable person in relation to the estate of the relevant person for examination in relation to the administration.
For the purposes of subsection (1):
examinable person, in relation to an estate of the relevant person, means:
a person who is believed to be indebted to the estate; or
a person who may be able to give information about the relevant person or the examinable affairs of the relevant person; or
a person who has possession of books that may relate to:
the relevant person; or
the examinable affairs of the relevant person; or
the estate; or
the executor under the relevant person’s will; or
the administrator under letters of administration or court order;
of the relevant person’s estate, or a part of that estate.
23 Paragraph 81(1B)(b)
Repeal the paragraph, substitute:
relate to:
the relevant person; or
the examinable affairs of the relevant person; or
the estate of the relevant person.
24 Subsection 81(11AA)
Repeal the subsection.
25 Subsection 81(12)
Before “relevant person” (wherever occurring), insert “estate of the”.
26 Subsection 81(14)
Omit “person, other than the relevant person,”, substitute “person”.
27 Subsection 82(1)
Omit all the words from and including “a bankrupt” to the end of the subsection, substitute “the estate of a deceased debtor was subject at the day of the order for the administration of the estate, or to which the estate may become subject because of an obligation incurred before that day, are provable in the administration of the estate”.
28 Subsection 82(1A)
Omit “bankrupt under a maintenance agreement or maintenance order before the date of the bankruptcy”, substitute “deceased debtor under a maintenance agreement or maintenance order during the person’s lifetime and before the date of the order for the administration of the deceased debtor’s estate”.
29 Paragraph 82(8)(b)
Omit “discharge of the bankrupt”, substitute “end of the administration of the deceased debtor’s estate”.
30 Section 87
Omit “debtor had not become a bankrupt”, substitute “estate of the deceased debtor had not become subject to administration under Part XI”.
31 Section 88
Omit “A payment made by a debtor to a creditor before the debtor became a bankrupt and representing in part principal and in part interest”, substitute:
A payment that:
is made to a creditor by;
the deceased debtor before the person’s death; or
the deceased debtor’s estate before the date of the order for the administration of the estate; and
represents in part principal and in part interest;
32 Section 95
Omit “person was, at the time when he or she became a bankrupt”, substitute “deceased debtor whose estate is being administered under Part XI was, at the time of the debtor’s death”.
33 Subsection 104(1)
Omit “bankrupt”, substitute “legal personal representative of the deceased debtor”.
34 At the end of section 104
Add:
In this section:
legal personal representative, of a deceased debtor, means:
the executor under the deceased debtor’s will; or
the administrator under letters of administration or court order;
of the deceased debtor’s estate, or a part of that estate.
35 Paragraph 109(1)(a)
After “petitioning creditor”, insert “or the trustee of the deceased debtor’s estate”.
36 Paragraph 109(1)(b)
Repeal the paragraph.
37 Subsection 109A(1)
Repeal the subsection, substitute:
If:
a contract of employment with a person who has since died and whose estate is being administered under Part XI was subsisting immediately before the day of the person’s death; or
a contract of employment with the trustee, in the trustee’s capacity as trustee, of an estate that is being administered under Part XI was subsisting immediately before the day of the order for the administration;
the employee under the contract is, whether or not the employee is a person referred to in subsection (2), entitled to payment under section 109 as if the employee’s employment had been terminated:
in the case that paragraph (a) applies:
by the person; and
on the day;
mentioned in that paragraph; or
in the case that paragraph (b) applies:
by the trustee; and
on the day;
mentioned in that paragraph.
38 Subsection 109A(2)
After “trustee” (wherever occurring), insert “or legal personal representative”.
39 At the end of section 109A
Add:
In this section:
legal personal representative, of a deceased debtor, means:
the executor under the deceased debtor’s will; or
the administrator under letters of administration or court order;
of the deceased debtor’s estate, or a part of that estate.
40 Section 110
Repeal the section.
41 Section 114
Omit “becomes a bankrupt”, substitute “dies, and the debtor’s estate becomes subject to administration under Part XI,”.
42 Paragraph 117(1)(a)
Omit “a bankrupt”, substitute “a deceased debtor”.
43 Paragraph 117(1)(b)
Omit “which he or she”, substitute “which the deceased debtor”.
44 Paragraph 117(1)(b)
Omit “(whether before or after he or she became a bankrupt)”, substitute “at any time”.
45 Subsection 117(1)
Omit “the bankrupt”, substitute “the deceased debtor”.
46 Subsection 117(1)
Omit “in the trustee”, substitute “in the trustee of the deceased debtor’s estate being administered under Part XI”.
47 Paragraph 118(1)(a)
Omit “the presentation of a petition, or after the presentation of a petition, against a”, substitute “the making of an order under Part XI, or after the making of such an order, for the administration of the estate of a deceased”.
48 Subparagraph 118(1)(a)(ii)
Omit “and”.
49 Paragraph 118(1)(b)
Repeal the paragraph.
50 Subsection 118(1)
Omit “the bankrupt”, substitute “the deceased debtor”.
51 Subsection 118(3)
Omit “a bankrupt”, substitute “a deceased debtor”.
52 Subsection 118(3)
Omit “bankruptcy”, substitute “administration of the estate”.
53 Subsection 118(4)
Repeal the subsection, substitute:
Where:
a creditor has, in pursuance of subsection (1), paid to the trustee of the estate of a deceased debtor the proceeds of the sale of property or other moneys that were received as a result of execution having been issued by the creditor, or on the creditor’s behalf, against property of the deceased debtor or of the attachment by the creditor, or on the creditor’s behalf, of a debt due to the deceased debtor; and
that property or debt would not have been property divisible amongst the creditors of the deceased debtor if the estate of the deceased debtor had become subject to administration under Part XI immediately before the execution was issued or the debt was attached, as the case may be;
the trustee must pay those proceeds or other moneys to the legal personal representative of the deceased debtor or to a person authorised by the legal personal representative in writing for the purpose.
54 Subsection 118(9)
Repeal the subsection, substitute:
Subject to subsection (10), if a creditor has, within 6 months before the making of an order under Part XI, or after the making of such an order, for the administration of the estate of a deceased debtor obtained a charge or charging order against property of the deceased debtor, the charge or charging order, as the case may be, is void as against the trustee of the estate of the deceased debtor.
55 Subsection 118(10)
Omit “a debtor” (wherever occurring), substitute “a deceased debtor’s estate”.
56 Subsection 118(10)
Omit “the debtor”, substitute “the deceased debtor”.
57 Paragraphs 118(11)(a) and (b)
Omit “who, after the sale, becomes a bankrupt”, substitute “who dies and whose estate becomes, or of a deceased debtor’s estate that becomes, after the sale, subject to an administration order under Part XI”.
58 Subsection 118(11)
Omit “of the bankrupt”.
59 Subsection 118(12)
Insert:
legal personal representative, of a deceased debtor, means:
the executor under the deceased debtor’s will; or
the administrator under letters of administration or court order;
of the deceased debtor’s estate, or a part of that estate.
60 Subsection 119(1)
Omit “against a debtor”, substitute “for an order for the administration of a deceased debtor’s estate”.
61 Paragraphs 119(1)(a) and (b)
Omit “debtor” (wherever occurring), substitute “estate”.
62 Subsection 119(2)
Omit “the reference to the Court of a debtor’s petition against a debtor”, substitute “the presentation to the Court of a petition by a person administering the estate of a deceased debtor for an order for the administration of the estate”.
63 Paragraphs 119(2)(a) and (b)
Omit “debtor” (wherever occurring), substitute “estate”.
64 Subsection 119(3)
Omit “a creditor’s petition against a debtor has been given under subsection (1) to a sheriff or notice of the reference to the Court of a debtor’s petition against a debtor has been given under subsection”, substitute “a petition has been given under subsection (1) or”.
65 Subsection 119(3)
Omit “the debtor” (wherever occurring), substitute “the estate”.
66 Subsection 119(4)
Omit “against a debtor”, substitute “for an order for the administration of a deceased debtor’s estate”.
67 Paragraphs 119(4)(a) and (b)
Omit “debtor” (wherever occurring), substitute “estate”.
68 Subsection 119(5)
Omit “the reference to the Court of a debtor’s petition against a debtor”, substitute “the presentation to the Court of a petition by a person administering the estate of a deceased debtor for an order for the administration of the estate”.
69 Paragraphs 119(5)(a) and (b)
Omit “debtor” (wherever occurring), substitute “estate”.
70 Subsection 119(6)
Omit “against a debtor” (first occurring), substitute “for an order for the administration of a deceased debtor’s estate”.
71 Subsection 119(6)
Omit “the reference to the Court of a debtor’s petition against a debtor”, substitute “the presentation to the Court of a petition by a person administering the estate of a deceased debtor for an order for the administration of the estate”.
72 Subsection 119(6)
Omit “the debtor” (wherever occurring), substitute “the estate”.
73 Subsection 119(7)
Omit “a debtor”, substitute “a deceased debtor’s estate”.
74 Subsection 119(7)
Omit “the debtor becomes a bankrupt”, substitute “the estate is administered under Part XI”.
75 Subsection 119A(1)
Omit “has become a bankrupt”, substitute “has died, and the debtor’s estate has become subject to administration under Part XI,”.
76 Paragraphs 119A(1)(a) and (b)
Repeal the paragraphs, substitute:
the sheriff must deliver or pay to the trustee:
any property of the estate in the sheriff’s possession under a process of execution issued by or on behalf of a creditor; and
any proceeds of the sale of property of the estate or other moneys in the sheriff’s possession, being proceeds of the sale of property sold, whether before or after the debtor died, in pursuance of any such process or moneys seized, or paid to avoid seizure or sale of property of the debtor or estate, whether before or after the debtor died, in pursuance of any such process; and
any moneys in the sheriff’s possession as a result of the attachment, by or on behalf of a creditor, of a debt due to the estate; or
the registrar or other officer of the court must pay to the trustee:
any proceeds of the sale of property of the estate or other moneys in court, being proceeds of sale or other moneys paid into court, whether before or after the debtor died, by a sheriff in pursuance of a process of execution issued, by or on behalf of a creditor, against property of the estate; and
any moneys in court that have been paid into court, whether before or after the debtor died, in pursuance of proceedings instituted, by or on behalf of a creditor, to attach a debt due to the estate;
77 Subsection 119A(5)
Repeal the subsection.
78 Paragraph 119A(6)(a)
Omit “bankrupt”, substitute “deceased debtor”.
79 Paragraph 119A(6)(b)
Omit “bankrupt”, substitute “estate”.
80 Subsection 119A(7)
Omit “a bankrupt”, substitute “the estate of a deceased debtor”.
81 Subsection 122(1)
Omit “insolvent (the debtor)”, substitute “insolvent and who subsequently dies (the deceased debtor)”.
82 Subsection 122(1)
Omit “in the debtor’s bankruptcy”, substitute “of the deceased debtor’s estate being administered under Part XI”.
83 Paragraph 122(1)(b)
Repeal the paragraph, substitute:
was made in the period beginning 6 months before the presentation of the petition for an order for the administration of the estate and ending immediately before the day of the order.
84 Subsection 122(1A)
Omit “by the debtor”, substitute “by the deceased debtor before the debtor’s death”.
85 Paragraphs 122(1A)(a) and (b)
Before “debtor”, insert “deceased”.
86 Paragraph 122(1A)(b)
Before “debtor’s”, insert “deceased”.
87 Paragraph 122(2)(b)
After “debtor”, insert “or the estate of the deceased debtor”.
88 Subsection 122(4A)
After “debtor” (wherever occurring), insert “or the estate of the deceased debtor”.
89 Subsection 123(1)
Omit “becomes a bankrupt”, substitute “has died, and the debtor’s estate has become subject to administration under Part XI”.
90 Paragraphs 123(1)(a), (b) and (c)
After “debtor”, insert “before the debtor died”.
91 Paragraph 123(1)(e)
Omit “before the day on which the debtor became a bankrupt”, substitute “on or before the day on which the debtor died”.
92 Subsection 123(4)
Before “debtor”, insert “deceased”.
93 Subsection 123(4)
Omit “became a bankrupt”, substitute “died”.
94 Subsection 123(6)
Omit “a debtor becomes”, substitute “a deceased debtor before the debtor’s death became”.
95 Subsection 123(6)
Before “debtor” (second and third occurring), insert “deceased”.
96 Subsection 124(1)
Omit “becomes, or has become, a bankrupt”, substitute “has died, and the person’s estate has become subject to administration under Part XI”.
97 Paragraph 124(1)(a)
After “made”, insert “on or”.
98 Paragraph 124(1)(a)
Omit “becomes a bankrupt”, substitute “dies”.
99 Paragraph 124(1)(b)
Omit “on or”.
100 Paragraph 124(1)(b)
Omit “became a bankrupt”, substitute “died”.
101 Subsection 125(1)
Omit “an undischarged bankrupt”, substitute “deceased and that the person’s estate is being administered under Part XI”.
102 Section 126
Repeal the section.
103 After subsection 127(1)
Insert:
In the application of Part XI to this section, the reference in subsection (1) to the date on which a person became bankrupt is taken to be a reference to the date on which administration of a deceased debtor’s estate commenced.
104 Paragraphs 134(1)(a), (aa), (ab) and (da)
Omit “bankrupt”, substitute “estate of the deceased debtor”.
105 Paragraph 134(1)(da)
Omit “in the bankruptcy”, substitute “in the administration of the deceased debtor’s estate”.
106 Paragraph 134(1)(e)
Omit “bankrupt” (wherever occurring), substitute “deceased debtor’s estate”.
107 Paragraph 134(1)(f)
Omit “in the bankruptcy”, substitute “in the administration of the deceased debtor’s estate”.
108 Paragraph 134(1)(g)
Omit “bankrupt”, substitute “deceased debtor”.
109 Paragraph 134(1)(h)
Repeal the paragraph, substitute:
deal with property to which the estate of the deceased debtor is beneficially entitled as tenant in tail in the same manner as the legal personal representative of the deceased debtor could deal with it if the estate were not being administered under Part XI;
110 Paragraph 134(1)(i)
Omit “bankrupt”, substitute “deceased debtor”.
111 Paragraph 134(1)(m)
Omit “the bankrupt” (first occurring), substitute “the legal personal representative of the deceased debtor”.
112 Subparagraph 134(1)(m)(i)
Omit “the bankrupt”, substitute “the estate of the deceased debtor”.
113 Subparagraph 134(1)(m)(ii)
Omit “bankrupt’s” (wherever occurring), substitute “estate’s”.
114 Subparagraph 134(1)(m)(iii)
Omit “bankrupt”, substitute “estate”.
115 Paragraph 134(1)(m)
Omit “bankrupt’s services, make such allowance to the bankrupt”, substitute “services of the legal personal representative of the deceased debtor, pay such remuneration to the legal personal representative”.
116 Paragraph 134(1)(ma)
Repeal the paragraph, substitute:
pay such remuneration out of the estate of the deceased debtor as the trustee thinks fit to the legal personal representative of the deceased debtor.
117 Paragraphs 134(1)(n) and (o)
Omit “the bankrupt”, substitute “the estate of the deceased debtor”.
118 Subsection 134(1A)
Omit “An allowance made to the bankrupt”, substitute “Remuneration paid to the legal personal representative of the deceased debtor”.
119 At the end of section 134
Add:
In this section:
legal personal representative, of a deceased debtor, means:
the executor under the deceased debtor’s will; or
the administrator under letters of administration or court order;
of the deceased debtor’s estate, or a part of that estate.
120 Paragraph 138(1)(a)
Omit “a bankrupt”, substitute “an estate of a deceased debtor”.
121 Paragraphs 138(1)(b), (c) and (d)
Omit “bankrupt”, substitute “estate”.
122 Subsection 139ZL(6)
Omit “bankrupt”, substitute “legal personal representative of the deceased debtor”.
123 At the end of section 139ZL
Add:
In this section:
legal personal representative, of a deceased debtor, means:
the executor under the deceased debtor’s will; or
the administrator under letters of administration or court order;
of the deceased debtor’s estate, or a part of that estate.
124 Subsection 139ZQ(5)
Omit “bankrupt”, substitute “legal personal representative of the deceased debtor”.
125 Subsection 139ZQ(10)
Insert:
legal personal representative, of a deceased debtor, means:
the executor under the deceased debtor’s will; or
the administrator under letters of administration or court order;
of the deceased debtor’s estate, or a part of that estate.
126 Paragraph 143(a)
Omit “bankrupt’s statement of”, substitute “statement of a deceased debtor’s”.
127 Section 146
Omit “a bankrupt”, substitute “the legal personal representative of a deceased debtor”.
128 Section 146
Omit “his or her affairs” (wherever occurring), substitute “the deceased debtor’s affairs”.
129 Section 146
Omit “bankrupt” (second occurring), substitute “legal personal representative”.
130 Paragraph 156A(1)(a)
Before “debtor” (first occurring), insert “deceased”.
131 Paragraphs 156A(1)(a) and (3)(a)
Omit “debtor becomes a bankrupt”, substitute “deceased debtor’s estate is administered under Part XI”.
132 Paragraph 156A(3)(a)
Omit “estate of the bankrupt”, substitute “estate”.
133 Subsection 277B(2) (after table item 2)
Insert:
2A | subsection 74(2) | 1 penalty unit |
This Act’s bill:Explanatory statement
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