The SV Partners Alternatives to Bankruptcy Handbook provides the reader with information and the options available to allow a person to settle their debts without entering into bankruptcy.
The contents of this handbook are based on current legislation. For additional information, we invite you to visit our website (www.svpartners.com.au) -the Insolvency Statistics page provides up to date and historical information on bankruptcy
Be the attorney you dreamed of being. Jump start your career with Tully Rinckey PLLC:
http://www.tullylegal.com/careers/
May, 2015 - This course will be led by Tully Rinckey PLLC Senior Counsel Robert J. Rock, Esq. Mr. Rock will draw upon his over thirty years of experience as a bankruptcy attorney. Mr. Rock will provide guidance to attorneys on alternatives to bankruptcy, evaluating client qualifications for bankruptcy, types of bankruptcy cases, and major laws and rules practitioners should know. Mr. Rock will also provide insight into tactics to avoid potential pitfalls with clients and their bankruptcy petitions.
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The contents of this handbook are based on current legislation. For additional information, we invite you to visit our website (www.svpartners.com.au) -the Insolvency Statistics page provides up to date and historical information on bankruptcy
Be the attorney you dreamed of being. Jump start your career with Tully Rinckey PLLC:
http://www.tullylegal.com/careers/
May, 2015 - This course will be led by Tully Rinckey PLLC Senior Counsel Robert J. Rock, Esq. Mr. Rock will draw upon his over thirty years of experience as a bankruptcy attorney. Mr. Rock will provide guidance to attorneys on alternatives to bankruptcy, evaluating client qualifications for bankruptcy, types of bankruptcy cases, and major laws and rules practitioners should know. Mr. Rock will also provide insight into tactics to avoid potential pitfalls with clients and their bankruptcy petitions.
It's Only Money? How Your Clients Can Keep More of It When Customers File Ba...terigrasmussen
Presentation at Ohio Society of Certified Public Accountants Fall CPE Day regarding overview of what happens in a bankruptcy proceeding. Introduction to types of bankruptcy and basic concepts. Discussion of dealing with preference claims and Chapter 11 plan process
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Focus on Insolvency: Summary of Amendments to the CCAA and BIANow Dentons
On September 18, 2009, amendments (the "Amendments") to the Companies’ Creditors Arrangement Act (the "CCAA") and Bankruptcy and Insolvency Act (the "BIA") came into force. This document is a summary of the major changes, excluding those changes relating to consumer bankruptcy and proposals, that have resulted from the coming into force of the Amendments.
Bankruptcy – part x personal insolvency arrangementsThomas Brown
Part X (Part 10) of the Bankruptcy Act allows a debtor to enter into an arrangement with their creditors to satisfy their debts without being made a bankrupt.
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Focus on Insolvency: Summary of Amendments to the CCAA and BIANow Dentons
On September 18, 2009, amendments (the "Amendments") to the Companies’ Creditors Arrangement Act (the "CCAA") and Bankruptcy and Insolvency Act (the "BIA") came into force. This document is a summary of the major changes, excluding those changes relating to consumer bankruptcy and proposals, that have resulted from the coming into force of the Amendments.
Bankruptcy – part x personal insolvency arrangementsThomas Brown
Part X (Part 10) of the Bankruptcy Act allows a debtor to enter into an arrangement with their creditors to satisfy their debts without being made a bankrupt.
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everyone should understand about creditor's rights and bankruptcy laws according to David Ford Avon CT. These laws can help a person if he had a situation in the future.
In 2016 there were 50,201 exams administered, 22,916 people passed the California real estate exam and became licensed salesperson, according to Bureau of Real Estate January 2017 Indian Wells Forum Presentation. By comparison, just 11,400 people became agents in 2012.
This Bureau of Real Estate figures also shows 46,308 California Real Estate Salesperson Licensee renewed their license, which is 82% renewal rate, 3% higher compared to 2015. 28,482 California Real Estate Broker licensee renewed there license, which is 90% renewal rate, 2% higher compared to 2015.
Union Cabinet on 17th July 2019 approved the proposal to carry out eight amendments to the Insolvency and Bankruptcy Code, 2016. The Insolvency and Bankruptcy Code Amendment Bill, 2019 requires the approval of both the houses of Parliament. It aims to fill in the crucial gaps in the framework of CIRP to provide clarity in its implementation.
Important considerations regarding the amendments of IBC (Insolvency and Bankruptcy Code Amendment Bill, 2019)
The Bankruptcy and Debt Advice (Scotland) Bill 2013Alan McIntosh
An Overview of the Bankruptcy and Debt Advice (Scotland) Bill 2013 (BADAS Bill). Delivered at the Legal Service Agency Glasgow on the 20th of March 2013.
European Distressed Info: Insolvency Regimes, Foreclosures and Lease InfoAnthony Ugorji
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An Overview of Insolvency and Bankruptcy Code, 2016 along with the process for resolution order and bankruptcy order against the debtor and how it will be beneficial for the Banks & Other lending institutions of India.
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Bankruptcy Advice On An Overseas TravelSV Partners
Leaving or trying to leave Australia without the written consent of your trustee is an offence under the Bankruptcy Act. Know more about Australia's bankruptcy consequences and advices at http://www.svpartners.com.au/ for more details.
Voluntary administration a guide for creditorsSV Partners
This information sheet provides general information for unsecured creditors of companies in voluntary administration. For more info, visit: http://www.svpartners.com.au/
This information sheet provides general information for employees of companies in receivership. Employees should also read ASIC’s information sheet INFO 54 Receivership: a guide for creditors. For more info, visit: http://www.svpartners.com.au
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If a company is in financial difficulty, its shareholde
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Insolvency: This is the most common reason, where the company cannot pay its debts. Creditors may initiate a compulsory winding up to recover their dues.
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Appointment of Liquidator: A qualified professional is appointed to oversee the winding-up process. They are responsible for selling assets, paying off debts, and distributing any remaining funds.
Cease Trading: The company stops its regular business operations.
Notification of Creditors: Creditors are informed about the winding up and invited to submit their claims.
Sale of Assets: The company's assets are sold to generate cash to pay off creditors.
Payment of Debts: Creditors are paid according to a set order of priority, with secured creditors receiving payment before unsecured creditors.
Distribution to Shareholders: If there are any remaining funds after all debts are settled, they are distributed to shareholders according to their ownership stake.
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Employees: Employees will likely lose their jobs during the winding-up process.
Creditors: Creditors may not recover their debts in full, especially if the company is insolvent.
Shareholders: Shareholders may not receive any payout if the company's debts exceed its assets.
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Alternatives to bankruptcy handbook
1.
2. 1800 246 801 svpartners.com.au
INTRODUCTION 2
The Public Record 2
ALTERNATIVES TO BANKRUPTCY 3
Informal Arrangements 3
Temporary Relief From Creditors 3
PART IX AGREEMENTS 4
PART X PERSONAL INSOLVENCY AGREEMENTS 5
The Personal Insolvency Agreement (PIA) 5
Starting the Process 5
The Controlling Trustee 6
The Meeting of Creditors 7
Variation of a PIA 8
Termination of a PIA 8
BANKRUPTCY – THE LAST RESORT 9
Voluntary Bankruptcy 9
Involuntary Bankruptcy 9
The Effects of Bankruptcy 9
Period of Bankruptcy 10
Compulsory Income Contributions 11
Contribution to Costs 12
Relief from Creditors in a Bankruptcy 12
What the Trustee does once he/she is appointed? 12
Protected Property 13
More Information 13
SCHEDULE 14
FURTHER INFORMATION 15
contents
3. 1800 246 801 svpartners.com.au
The Bankruptcy Act 1966 is the legislation dealing with insolvent individuals.
This document sets out:
Information about alternatives to bankruptcy;
Information about how bankruptcy affects a person and the
consequences of bankruptcy;
Information about sources of financial advice and guidance to
persons facing or contemplating bankruptcy;
Information about a person’s right to choose whether the
bankruptcy is administered by a registered trustee or the Australian
Financial Security Authority (AFSA); a Federal Government agency;
Other general information.
It is important that anybody contemplating an administration under the
Bankruptcy Act 1966 reads this information and understands it.
Once a Debtor’s Petition for Bankruptcy has been accepted, it is virtually
impossible to undo if a person changes his or her mind. Before making a
decision a person should talk to his or her creditors, or consult a financial
counsellor, registered trustee, solicitor, accountant or other adviser, or
contact AFSA.
There are alternatives: bankruptcy is a last resort.
Please only make a decision after all the alternatives have been considered
and the consequences are known and understood.
THE PUBLIC RECORD
Details of Part IX Debt Agreements, Part X Personal Insolvency Agreements
and Bankruptcy including the name, address, date of birth, occupation and
the number of the administration will appear forever as a public record on
the National Personal Insolvency Index (NPII), and certain papers filed with
AFSA are open to public search.
ALTERNATIVES TO BANKRUPTCY
A person can settle their debts without going bankrupt. There are a number
of options available which are set out below:
Informal Arrangements
Temporary Relief from Creditors
Part IX Debt Agreements
Part X Personal Insolvency Agreements
introduction
4. 1800 246 801 svpartners.com.au
INFORMAL ARRANGEMENTS
Debtors can approach their creditors and explain their financial position to
them. Many creditors, when they know of any genuine difficulties, may help
by giving more time to pay, agreeing to re-negotiate the loan or settling for a
lesser sum.
A debtor can seek help from persons experienced in assisting people in
financial difficulties. Advice can be sought from a financial counsellor, legal
aid, a registered trustee in bankruptcy, solicitor or an accountant.
Financial counsellors and other advisers may speak to creditors on a debtor’s
behalf and help a debtor come to some agreement about his or her debts
and settle disputes. To be effective informal agreements should be in writing
and agreed to by all creditors.
An informal arrangement will only be binding on those creditors who are a
party to it and have agreed in writing to the arrangement. Usually the
arrangement will be cancelled if the debtor doesn't keep up his or her
repayments.
TEMPORARY RELIEF FROM CREDITORS
If a debtor is being pressured by a creditor but needs some time to think
about his or her available options, he or she can give a signed "Declaration of
Intention to Present a Debtor's Petition" form to AFSA. For a period of 21
days, the debtor’s creditors or the bailiff or the sheriff cannot take action to
court the debts.
A debtor doesn't have to go bankrupt at the end of the 21 days. If the
debtor does not take any action such as entering into a Part IX Debt
Agreement or a Part X Personal Insolvency Agreement or file a petition to
become bankrupt after the 21 day period, creditors may continue to pursue
the debtor for recovery of debts or may take steps to bankrupt the debtor.
A debtor can give only one Declaration every 12 months.
Take Note: Giving a Declaration is an 'Act of Bankruptcy'. A creditor can use
this to apply to the Federal Court or Federal Circuit Court for a Sequestration
(Bankruptcy) Order.
alternatives to bankruptcy
5. 1800 246 801 svpartners.com.au
A Debt Agreement is a simple flexible method for debtors to negotiate a
legally binding compromise with their creditors. It releases a debtor from
their debts once creditors accept the proposed Debt Agreement. A debtor
can make a written proposal through AFSA. The debtor can propose to pay
creditors by instalments, make a lump sum payment or even give an asset(s)
to creditors. There is a fee payable of $200 to AFSA, plus any other fee if you
engage external assistance for work carried out in setting up the Debt
Agreement.
A Debt Agreement is limited to a debtor who has:
Not been bankrupt, utilised a Debt Agreement or given an Authority
under Part X of the Bankruptcy Act in the last 10 years;
Estimated after tax income, for the 12 months after the proposal is
given, of less than the threshold amount. (The current threshold
amount is set out as Point 1 on the Schedule attached at the end of
this document);
Unsecured debts of less than the threshold amount. (The current
threshold amount is set out as Point 2 on the Schedule);
Divisible Property valued at less than the threshold amount. (The
current threshold amount is set out as Point 3 on the Schedule);
The proposal must authorise a person, known as an administrator, to handle
the Debt Agreement. The administrator could be a registered trustee, a
relative, AFSA or any other person who is registered under the Bankruptcy
Act. The administrator may charge a fee for handling the payments or other
services provided. However the basis of the fee must be stipulated in the
Debt Agreement where that fee is to be paid from funds and / or assets
included under the Debt Agreement.
Debt Agreement proposals are either accepted or rejected by creditors.
Voting is normally done by letter, however a physical meeting may be held.
A proposal is accepted if a majority in value of creditors who vote / reply
before the applicable deadline state that the proposal should be accepted.
Take Note: Giving a proposal to AFSA, or setting up a Debt Agreement and
not keeping up the repayments is an 'Act of Bankruptcy'. A creditor can use
this to apply to the Federal Court or Federal Circuit Court for a Sequestration
(Bankruptcy) Order.
part IX agreements
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A Part X Personal Insolvency Agreement is a formal legally binding
arrangement that enables debtors to make an offer to their creditors in
satisfaction of their debts.
There are no income, asset or debt limits for Part X Personal Insolvency
Agreements. The proposed Controlling Trustee may help a debtor prepare a
proposal to put to his or her creditors.
Personal Insolvency Agreements are very flexible and can be structured
according to the debtor’s circumstances.
The Personal Insolvency Agreement (PIA)
The PIA must:
Expressly state that it is entered into under Part X of the Bankruptcy
Act 1966 (the Act).
Identify what property and / or income is to be made available to
pay creditors claims.
Specify how that property and / or income is to be dealt with.
Specify the extent to which the debtor is to be released from the
provable debts.
Specify whether or not the antecedent transaction provisions of the
Act are to apply to the agreement.
Specify any conditions for the agreement to come into force.
Specify any circumstances where the agreement will terminate and
the effect such termination will have on the release from provable
debts.
Specify the order in which the proceeds of realisation of property
and / or income is to be distributed to creditors.
Make provision for a person or persons to be appointed as
Trustee(s).
Provide that the debtor will execute such instruments and generally
do all such acts and things in relation to the property and income as
is required by the agreement.
Specify any other relevant matters.
part X agreements
7. 1800 246 801 svpartners.com.au
Starting the Process
To start the process, a debtor provides the following, to the proposed
Controlling Trustee:
A Statement of Affairs (a Statutory Form in which he or she sets out
all of his or her assets and creditors and certain personal and
business details) including noting if any of those creditors are a
related entity.
A draft of the offer (PIA) the debtor wishes to make to the creditors
for consideration.
A signed Authority under the Bankruptcy Act, called a Controlling
Trustee Authority (the Authority), authorising either a registered
trustee, the Official Trustee or a solicitor (who is a full member of
the Insolvency Practitioners Association or has satisfactorily
completed a course in insolvency approved by the Inspector-
General) to call a meeting of the debtor’s creditors to vote on
whether to accept the PIA or any amendment to it that may be
agreed between the parties.
For the Authority to become effective it must be signed by the registered
trustee, the Official Trustee or the solicitor. The registered trustee, the
Official Trustee or solicitor then becomes known as the Controlling Trustee.
An effective Authority creates a number of legal effects:
The Controlling Trustee takes control of the debtor’s property; the
debtor loses control of his or her property. This means he or she can
no longer deal with assets without the permission of the Controlling
Trustee.
A legal charge security is created over all the debtor’s property in
favour of the Controlling Trustee.
If a creditor has petitioned for bankruptcy, that petition is stayed
until the meeting of creditors is held.
Authorising a Controlling Trustee to take control of a debtor’s affairs is an
‘Act of Bankruptcy’.
part X agreements
8. 1800 246 801 svpartners.com.au
The Controlling Trustee
The Controlling Trustee has the power to gather information from the
debtor and other parties regarding the debtor’s financial affairs.
The Controlling Trustee has certain duties that he or she must perform,
including:
Notifying the creditors of the signing of the Authority.
Filing the Authority, Statement of Affairs and draft proposal for a PIA
with AFSA.
Completing and sending a report to the debtor, creditors and AFSA,
at least 10 days prior to the meeting of creditors taking place. That
report will:
1. Provide a summary of the debtor’s assets and creditors.
2. Provide details of the results of any investigations made.
3. Comment on any relationships between the debtor and creditors.
4. Comment on any relationship between the debtor, any associated
entity and the Controlling Trustee.
5. Disclose any relationship between the debtor, any associated entity
and the proposed Trustee of the PIA.
6. Make a recommendation as to whether the PIA is in the best
interests of creditors.
7. Comment of the basis of remuneration for the Trustee of the PIA.
8. Calling a meeting of creditors within 25 working days of the date the
Authority becomes effective. That period is extended to 30 working
days for Authorities signed during the month of December;
9. Advertise the meeting.
part X agreements
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The Meeting of Creditors
A debtor must attend the meeting of creditors unless prevented by illness or
other sufficient cause.
In order to vote at the meeting, the creditors must lodge a “Statement of
Claim and Proxy Form” (a Statutory Form) with the Controlling Trustee. That
form sets out certain information that must be provided by creditors,
including:
1. The amount they claim, and whether they hold any security for that
debt, as well as brief particulars of the debt.
2. Whether the debt has been assigned to them, and if so the
consideration given for that assignment.
3. Whether or not they are a related entity.
Creditors must disclose, either on the instrument appointing a proxy to vote
at the meeting or to the Controlling Trustee when requested at the meeting,
details of any financial incentive they may have received to vote in a
particular way.
At the meeting, creditors have the right to question the debtor about his or
her financial affairs and circumstances leading to the insolvency. Creditors
vote on the PIA (or any amendment to it that may be agreed between the
parties) after the debtor’s affairs have been discussed. In order for the PIA
to be accepted, it must be passed by a majority in number and at least 75%
in value of creditors voting at the meeting. If creditors vote in favour of the
PIA they must then appoint either a Registered Trustee or the Official
Trustee to administer the PIA.
If the PIA is accepted at the meeting of creditors, it is binding on all provable
creditors, whether or not they agreed to its acceptance.
At the meeting, creditors may also consider, and if appropriate, appoint a
committee of inspection to help and oversee the Trustee in the
administration of the PIA.
The creditors need not approve the PIA and may require the debtor to
present a Debtor’s Petition for Bankruptcy within 7 days after the meeting.
If the debtor does not comply with that direction, a creditor or the
Controlling Trustee can apply to the Federal Court or Federal Circuit Court
for a Sequestration (Bankruptcy) Order.
part X agreements
10. 1800 246 801 svpartners.com.au
Authorising a trustee to take control of a debtor’s affairs is an 'Act of
Bankruptcy'. If creditors have voted at the meeting that a debtor should go
bankrupt and he or she does not, that is also an 'Act of Bankruptcy'. A
creditor can use these to apply to the Federal Court or Federal Circuit Court
for a Sequestration (Bankruptcy) Order.
Variation of a PIA
A PIA that has been accepted by creditors can, with the consent of the
debtor, be varied.
1. At a meeting (by creditors)
Creditors can vary a PIA by passing a special resolution at a meeting called
for that purpose, provided the debtor agrees to that variation.
2. By Postal vote (by the trustee)
The Trustee may be requested by the debtor to propose a variation of the
PIA on the basis that their circumstances have changed. The Trustee may
give notice to the creditors of the proposed variation, setting out the
reasons for the variation, the likely impact it will have on creditors and
specify a date (at least 14 days after the notice is given) on which the
variation will take effect. That notice must also state that any creditor may
by written notice (given to the Trustee at least 2 days before the specified
date) object to the notice taking effect without a meeting being held. In such
case a meeting must be held to consider the proposed variation. If no such
notice is lodged by any creditor then the variation takes effect from the date
specified in the notice.
Termination of a PIA
A PIA may stipulate certain circumstances upon which it will terminate, such
as failure to comply with its terms.
The PIA can also be terminated by creditors or the Trustee using the same
procedures as outlined for the variation of a PIA.
The Federal Court or Federal Circuit Court has the power to terminate a PIA
and make any other appropriate order, such as issue a Sequestration
(Bankruptcy) Order.
part X agreements
11. 1800 246 801 svpartners.com.au
If a debtor cannot reach a compromise or settlement with his or her
creditors, the last resort is bankruptcy.
There are two ways in which a person can go bankrupt:
Voluntary Bankruptcy
A debtor can lodge a Debtor’s Petition for Bankruptcy accompanied by a
Statement of Affairs with AFSA. A debtor can choose whether a Registered
Trustee or AFSA administers the bankruptcy. However creditors can change
the Trustee.
For a Registered Trustee (Private Trustee) to act, a Consent to Act form must
be signed by the Trustee and lodged with AFSA at the same time the
Debtor’s Petition and Statement of Affairs are lodged. If a private trustee is
not appointed, the Official Trustee (part of AFSA) is automatically appointed
as Trustee
.
Once AFSA accepts the Debtor’s Petition the debtor becomes bankrupt.
Involuntary Bankruptcy
Under certain situations, a creditor who is owed more than $5,000 can issue
a Creditor’s Petition against a debtor. The Federal Court or the Federal
Circuit Court sets down a date for hearing the Petition.
If the debtor does not contest the Creditor’s Petition or is unable to satisfy
the Court that he or she should not be made bankrupt, the Court will make a
Sequestration (Bankruptcy) Order against the debtor and he or she is then
declared bankrupt.
If the petitioning creditor has obtained a Consent to Act from a Registered
Trustee, then that Trustee will be appointed to administer the bankruptcy.
Otherwise AFSA will be appointed Trustee. The creditors can change the
Trustee.
After a Sequestration Order has been issued, the bankrupt has a legal
obligation to lodge a Statement of Affairs with AFSA within 14 days of being
notified of the bankruptcy. In practice that statement is usually given to the
Trustee appointed, who then files it with AFSA.
bankruptcy
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The Effects Of Bankruptcy
What are a bankrupt’s main obligations
a. Complete and file a Statement of Affairs.
b. Comply with any reasonable directions given by the Trustee.
c. Advise the Trustee immediately of any change of name, address,
phone number or employment.
d. Deliver to the Trustee all books and records relating to trade
dealings, property and affairs.
e. Deliver his or her passport to the Trustee.
f. Disclose to the Trustee as soon as practical any property acquired
during the term of the bankruptcy.
g. Provide details of his or her income and the gross income of any
dependants.
h. Aid the Trustee in the administration of the estate.
The main restrictions placed upon a bankrupt are:
a. The Bankruptcy Act does not stop a bankrupt from borrowing
money or purchasing goods on credit. However, it does place on the
bankrupt an obligation to inform the person he or she is dealing
with, that he or she is an undischarged bankrupt, when the amount
of credit being sought is above a prescribed limit. (The current
prescribed amount is set out as Point 4 on the Schedule). Some
transactions which fall into this category are hire purchase
agreements, leases, monthly store accounts, credit cards, loan
accounts, obtaining goods and services by cheque or promises to
pay that exceed the prescribed amount.
b. It is an offence to carry on business under a name other than the
bankrupt’s own name without disclosing to any party with whom he
or she deals with, that he or she is an undischarged bankrupt.
c. It is an offence to attempt to leave the country without first
obtaining the consent in writing from the Trustee.
d. A bankrupt cannot be a director or promoter of or take part in the
management of a company without the permission of the Court.
e. A bankrupt has no legal power to sell or otherwise deal with any
property existing as at the date of bankruptcy and / or any property
he or she receives prior to the date of discharge (other than
protected property).
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Period of Bankruptcy
a. Date of Discharge
A bankrupt may be discharged from bankruptcy at the end of the period of 3
years from the date the Statement of Affairs is filed with AFSA.
The period can be extended if an objection to discharge is lodged. An
objection is usually lodged when a bankrupt fails to cooperate with the
Trustee or to comply with a bankrupt’s obligations under the Bankruptcy
Act. The period will generally be extended by a further two years or five
years from the date the Statement of Affairs was filed with AFSA, depending
on the reason why the objection was lodged.
The effect of receiving a discharge from bankruptcy is that a bankrupt is
released from his or her provable debts. It does not, however, release a
bankrupt from the claims of any creditors incurred after the date of
bankruptcy or certain other debts that are not ‘provable’ in the bankruptcy
(eg. unpaid court fines, HECS debts, maintenance agreements, compulsory
income liability).
b. Annulment
The Trustee can annul the bankruptcy by issuing a Certificate of Annulment
when:
All the debts and costs of the administration of the bankruptcy have
been paid in full, or
The bankrupt makes an offer under section 73 of the Bankruptcy
Act, which is accepted by creditors. Under that section, a bankrupt
can make an offer of a sum of money or property in full and final
payment of his or her provable debts. It may be payable as a lump
sum or by instalments over a period of time. For example, a
bankrupt may offer and creditors may accept regular periodic
payments of an amount for a number of years. It must be accepted
by creditors at a meeting and the bankrupt must satisfy the terms of
the offer or it may be terminated and the person placed back into a
fresh bankruptcy.
bankruptcy
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Compulsory Income Contributions
A bankrupt is required to give the Trustee:
Details of all his or her income.
Details of any fringe benefits received (eg. use of a car, subsidised
rent).
The gross income received by any person he or she claims to be a
dependant.
Details of any relationship that may exist between the bankrupt and
the employer.
The Trustee will use a formula to assess the income for each year of the
bankruptcy.
Income under the Bankruptcy Act 1966 is defined differently from income
under the Income Tax Assessment Act and includes a number of provisions
relating to deemed income. The Trustee can use information provided by
any party to assist in assessing income.
If the bankrupt’s after tax deemed income is above a threshold amount the
bankrupt will be required to pay 50% of any amount in excess of that
threshold amount to the Trustee. If a bankrupt’s income is below the
threshold amount, no contribution is required. The threshold amount
increases for each dependant a bankrupt has. (Details of the thresholds are
set out at Point 5 on the Schedule). A person ceases to be a dependant if
they earn an income in excess of a threshold amount (Details of the
threshold is set out at Point 6 on the Schedule).
If a bankrupt is liable to pay income contributions, the Trustee will seek to
enter into a mutually suitable arrangement for the payment of the amount
payable; usually by way of regular periodic payments. If the bankrupt does
not agree to suitable terms, the Trustee may garnishee (make an automatic
deduction without the bankrupt’s consent) a bankrupt’s income or bank
account and / or extend the bankruptcy period if a bankrupt does not pay
the required amount. In addition, the Trustee can require a bankrupt to
deposit all of his or her income into a “Supervised Bank Account” if a
suitable arrangement is not agreed upon for the payment of any income
contribution liability. If this occurs, a bankrupt is not authorised to withdraw
money from the account, unless authorised by the Trustee.
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Contribution to Costs
The Trustee's fees are usually paid out of the proceeds of the sale of the
assets or income in the bankrupt’s estate, prior to a distribution to creditors.
Where there are insufficient funds in an administration to pay the Trustee’s
fees and costs, a private Trustee may seek payment for his or her fees from
the bankrupt or a third party. Alternatively, a debtor may file for bankruptcy
with AFSA and no fee is payable. AFSA will still administer the bankruptcy
and seek to recover funds where possible and appropriate.
Relief from Creditors in a Bankruptcy
Unsecured creditors can take no further action against a bankrupt without
the permission of the Court.
Bankruptcy does not affect the right of a secured creditor from entering into
possession and selling that property over which security is held. Any
shortfall incurred by a secured creditor on the realisation of the asset
subject to security will rank as an unsecured creditor in the bankruptcy
administration.
Some debts are not provable in bankruptcy, and a bankrupt will not be
discharged from the obligation to pay these debts. These non-provable
debts are mainly fines imposed by the Court for breaches of the law,
demands in the nature of unliquidated damages arising otherwise than by
reason of a contract, promise or breach of trust, debts arising from fraud or
a fraudulent breach of trust, maintenance payments and debts due to
Centrelink as well as unpaid compulsory income contributions.
What the Trustee does once he/she is appointed?
The Trustee is appointed to look after the interests of the creditors. The
Trustee’s obligation is to take control of all of the bankrupt’s property (apart
from protected property), realise such property and distribute those funds in
the order prescribed by the Bankruptcy Act. Property includes property a
bankrupt has at the date of bankruptcy and certain property received or
obtained up to the date he or she is discharged from bankruptcy.
The Trustee must make assessments of a bankrupt’s income and collect any
compulsory income contributions that he or she is liable to pay.
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The Trustee has an obligation to commercially investigate a bankrupt’s
affairs to ensure that all property belonging to him or her has been dealt
with. This investigation includes reviewing certain property and payment
transactions handled by the bankrupt prior to the date of bankruptcy
(antecedent transactions). These include:
i. Property transferred or sold by the bankrupt under market value
within the 5 years prior to the commencement of the
bankruptcy.
ii. Transfers of property carried out by the bankrupt for the
purpose of defeating creditors prior to the commencement of
the bankruptcy.
iii. Certain payments made to creditors prior to bankruptcy.
iv. Property owned by companies or trusts over which the bankrupt
has effective control.
Protected Property
The Bankruptcy Act exempts certain property from being property available
to be distributed amongst creditors.
The main exemptions are:
a. Property held by a bankrupt on trust for another person.
b. Necessary wearing apparel, household property and some limited
items of sentimental property as set out in the Bankruptcy
Regulations.
c. Ordinary tools of trade, plant and equipment, professional
instruments and reference books up to the prescribed amount. (See
Point 7 of the Schedule for the current prescribed amount).
d. Property used by the bankrupt primarily as a means of transport
being property whose aggregate value (equity) does not exceed the
prescribed amount. (See Point 8 of the Schedule for the current
prescribed amount).
e. A bankrupt’s right to recover damages or compensation for personal
injury or wrong done to him or her, his or her spouse or a member
of his or her family.
f. Amounts paid to a bankrupt under certain government assistance
schemes.
g. An interest in a regulated superannuation fund.
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More Information
Further information and copies of the Statutory Forms are available from
our web site at www.svpartners.com.au.
If you want more detailed information, pamphlets on various aspects of
bankruptcy are available from AFSA; on its web site www.afsa.gov.au, at
AFSA’s offices or telephone number 1300 364 785.
DISCLAIMER: The information sheet is intended as a general guide. It is not
intended or to be taken as advice to any person. While it is believed that
the information contained herein is accurate and reliable, we do not warrant
the accuracy and completeness of any statement or opinion. No liability is
accepted by SV Partners, its Directors and or staff for any error or omission
or on any other account.
In summary, this information sheet is to be utilised as a guide only. Please
do not hesitate to contact our office if you wish to speak directly to any
accountant who specialises in bankruptcy and personal insolvency.
bankruptcy
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Index of current prescribed amounts as at 23 April 2014
1. After tax income (Part IX Debt Agreements) $ 78,815.10
2. Unsecured debts (Part IX Debt Agreements) $ 105,086.80
3. Property not exempt (Part IX Debt Agreements) $ 100,664.20
4. Credit limit allowed $ 5,333.00
5. Actual income thresholds:
No. of Dependents After tax income able to be earned before
contribution required (indexed)
No Dependents $52,543.40
1 Dependent $62,001.21
2 Dependents $66,730.12
3 Dependents $69,357.29
4 Dependents $70,408.16
>4 Dependents $71,459.02
6. Dependants allowable income $ 3,363.00
7. Tools of trade $ 3,600.00
8. Primary means of transport $ 7,350.00
schedule
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QUEENSLAND
Terry van der Velde 07 3310 2007 terry.vandervelde@svp.com.au
Managing Director
David Stimpson 07 3310 2002 david.stimpson@svp.com.au
Executive Director
Terry Rose 07 3310 2099 terry.rose@svp.com.au
Director
Jason Cronan 07 5479 6199 jason.cronan@svp.com.au
Director
Anne Meagher 07 3310 2076 anne.meagher@svp.com.au
Director
NEW SOUTH WALES
Stephen Hathway 02 8986 8905 stephen.hathway@svp.com.au
Executive Director
Joe Atkinson 02 8986 8922 joe.atkinson@svp.com.au
Director
Daniel Quinn 02 4023 0847 daniel.quinn@svp.com.au
Director
Darren Vardy 02 9531 8365 darren.vardy@svp.com.au
Director 02 4227 4086
Ian Purchas 02 8986 8977 ian.purchas@svp.com.au
Director
Ross Mottershead 02 9531 8365 ross.mottershead@svp.com.au
Director
VICTORIA
Michael Carrafa 03 9669 1111 michael.carrafa@svp.com.au
Executive Director
Richard Cauchi 03 9669 1127 richard.cauchi@svp.com.au
Director
David Lofthouse 03 9669 1129 david.lofthouse@svp.com.au
Consultant
Peter Gountzos 03 9669 1188 peter.gountzos@svp.com.au
Director
further information