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This instrument is the Bankruptcy Regulations 2021.
This instrument is made under the Bankruptcy Act 1966.
A number of expressions used in this instrument are defined in the Act, including the following:
approved form;
registered trustee;
Registrar;
the Court;
the Official Receiver.
In this instrument:
Act means the Bankruptcy Act 1966.
charge period has the same meaning as in the Bankruptcy (Estate Charges) Act 1997.
contribution assessment period has the meaning given by section 139K of the Act.
controlling trustee has the meaning given by Part X of the Act.
current condition has the meaning given by section 5‑10 of Schedule 2 to the Act.
electronic communication means an electronic communication within the meaning of paragraph (a) of the definition of electronic communication in subsection 5(1) of the Electronic Transactions Act 1999.
estate charge means:
interest charge; or
realisations charge.
FBTA Act means the Fringe Benefits Tax Assessment Act 1986 as in force at the start of 1 July 1992.
Fees and Remuneration Determination means the determination in force under subsection 316(1) of the Act.
Index means the National Personal Insolvency Index established under section 73.
infringement notice means an infringement notice given under section 90.
infringement notice provision means an offence of a kind referred to in the table in subsection 277B(2) of the Act.
interest charge has the same meaning as in Part XV of the Act.
late payment penalty has the same meaning as in Part XV of the Act.
legal practitioner means a barrister, a solicitor, a barrister and solicitor or a legal practitioner, of the High Court or of the Supreme Court of a State or Territory.
preliminary remuneration and expenses of a trustee in relation to a debtor means:
remuneration paid to the trustee in accordance with a direction, or other order, made by the Court under subsection 50(1) of the Act directing the trustee to take control of the debtor’s property or making another order in relation to the property; and
any expenses incurred by the trustee:
as a result of that direction or other order; or
in relation to the examination of the debtor, or an examinable person in relation to the debtor, as a result of the issue of a summons under subsection 50(2) of the Act.
realisations charge has the same meaning as in Part XV of the Act.
regulated debtor has the meaning given by section 5‑15 of Schedule 2 to the Act.
For the purposes of paragraph 12(4)(b) of the Act, the following professional disciplinary bodies are prescribed:
Chartered Accountants Australia and New Zealand;
CPA Australia;
the Australian Restructuring Insolvency and Turnaround Association;
the Institute of Public Accountants;
the New South Wales Bar Association;
The Law Society of New South Wales;
the Victorian Legal Services Commissioner;
the Victorian Legal Services Board;
the Bar Association of Queensland;
the Queensland Law Society;
the Legal Practice Board of Western Australia;
the Law Society of South Australia;
the Legal Profession Conduct Commissioner of South Australia;
the Law Society of Tasmania;
the Law Society of the Australian Capital Territory;
the Law Society Northern Territory.
For the purposes of section 20J of the Act, the rate of interest prescribed is 7% per year.
This rate is referred to in subsections 20J(2) and (4) of the Act.
For the purposes of subsection 29(5) of the Act, the following countries are prescribed:
Jersey;
Malaysia;
Papua New Guinea;
Singapore;
Switzerland;
the United States of America.
This section sets out the requirements for an application to the Official Receiver for a bankruptcy notice by a person who has obtained against a debtor one, or 2 or more, final judgments or final orders of a kind described in paragraph 40(1)(g) of the Act.
Subsection 40(3) of the Act sets out several deeming rules for the purposes of paragraph 40(1)(g) of the Act.
The application must be in the approved form.
The application must specify the final judgment or final order or each of those final judgments or final orders.
The application must include:
if any final order specified in the application is an award that is a final order because of subparagraph 40(3)(a)(i) of the Act—both of the following:
a copy of the award certified as a true copy by the arbitrator who made the award or by an officer of the Court who has compared the copy with the original award;
a sealed or certified copy of the order giving leave to enforce the award; and
for any other final order or final judgment specified in the application—at least one of the following:
a copy of the sealed or certified judgment or order;
a certificate of the judgment or order sealed by the court that made the judgment or order (the relevant court) or signed by an officer of the relevant court;
a copy of the entry of the judgment or order certified as a true copy of that entry and sealed by the relevant court or signed by an officer of the relevant court.
For bankruptcy notices, see section 9 and Schedule 1.
A fee is payable to the Official Receiver for an application under this section (see the Fees and Remuneration Determination).
For the purposes of subsection 41(2) of the Act, the form of bankruptcy notice set out in Schedule 1 is prescribed.
A bankruptcy notice must follow that form in respect of its format (for example, bold or italic typeface, underlining and notes).
Subsection (2) does not limit section 25C of the Acts Interpretation Act 1901.
Section 25C of the Acts Interpretation Act 1901 provides that strict compliance with a form is not required and substantial compliance is sufficient.
A bankruptcy notice in relation to a debtor must be served on the debtor within:
the 6 month period beginning on the day that the Official Receiver issues the notice; or
any additional period that the Official Receiver determines in writing for the purposes of this paragraph.
If paragraph (b) applies, a fee is payable under the Fees and Remuneration Determination.
A bankruptcy notice in relation to a debtor that is served on the debtor outside of a period mentioned in subsection (1) is not valid.
For the purposes of paragraph (a) of the definition of statutory minimum in subsection 5(1) of the Act, the amount prescribed is $10,000.
Subject to subsection (2), the only persons who may inspect a bankruptcy notice issued by the Official Receiver under subsection 41(1) of the Act are the following:
a person specified in the notice;
a party to a proceeding to which the notice relates;
a legal practitioner acting on behalf of a person mentioned in paragraph (a) or (b) of this subsection.
If a creditor’s petition is presented that is founded on an act of bankruptcy consisting of failure to comply with the bankruptcy notice, any person may inspect the notice.
This section applies in relation to a bankruptcy notice issued by the Official Receiver in relation to a debtor if the notice includes a final judgment, or final order, that is expressed in an amount of foreign currency (whether or not the judgment or order is also expressed in an amount of Australian currency).
The bankruptcy notice must include the following:
a statement to the effect that the debtor must pay:
the amount of foreign currency; or
the equivalent amount of Australian currency;
the conversion calculation for the equivalent amount of Australian currency;
a statement to the effect that the conversion of the amount of foreign currency into the equivalent amount of Australian currency has been made in accordance with this section.
For the purposes of subparagraph (2)(a)(ii), the equivalent amount of Australian currency is the amount worked out using the rate of exchange for the foreign currency published by the Reserve Bank of Australia in relation to the day that is 2 business days before the day on which the application for the notice is made.
The Reserve Bank of Australia exchange rates could in 2021 be viewed on the Reserve Bank of Australia’s website (http://www.rba.gov.au).