Bankruptcy and Liquidation

“ National Personal Insolvency Index Information for debt agreement administrators – Australian Financial Security Authority ”

“ Insolvency – Company Liquidation Personal Property Securities ”

“ Separate legislation deals with personal insolvency and corporate insolvency. Personal insolvency is the subject of the: ”

“ The word bankrupt has its origins in middle ages Italian banco rotto, meaning broken bench and referring to the practice of breaking a trader’s table to prevent further trading. In biblical times bankrupts were harshly treated, with their wives and children forced into slavery, property seized and ... ”

“ The Federal Court of Australia and the Federal Circuit Court have concurrent jurisdiction: s 27 Bankruptcy Act. This is exclusive except for the jurisdiction of the High Court and the Family Court. Proceedings may be transferred to the Family Court which then exercises jurisdiction in bankruptcy ... ”

“ Acts of bankruptcy are found in s 40 Bankruptcy Act. An act of bankruptcy is evidence that a debtor is insolvent. There are 21 such acts, including filing a debtor's petition and noncompliance with a bankruptcy notice. Failures to execute a personal insolvency agreement or a breach or termination ... ”

“ A bankrupt is either a person against whose estate a sequestration order has been made, known as an involuntary bankruptcy; or a person who is insolvent and has presented a debtor’s petition which is accepted by the Official Receiver, known as a voluntary bankruptcy. Approximately 90% of ... ”

“ A creditor’s petition must be presented within six months of the act of bankruptcy upon which it is based and the bankruptcy commences on the day of that act of bankruptcy. This time period cannot be changed. Bankruptcy is not a debt collection procedure and before a petition is brought there must ... ”

“ For the ordinary person with few divisible assets and an average income bankruptcy will have a limited impact. Most people would prefer to avoid the stigma and embarrassment associated with being a bankrupt; however, being freed of the often overwhelming worry of being unable to pay debts can be a ... ”

“ Transactions that may be void against the trustee are: undervalued transactions: s 120; ”

“ A transferee who acquires property in good faith at market value has no concerns. Further even if the transferee has to return the property the trustee must refund the consideration paid for the transfer: see s 120(4). The position of spouses needs to be considered. Assets in the name of the ... ”

“ A trustee is the only party able to institute proceedings and is subject to a limitation period of six years from the date of bankruptcy except in the case of transfers to defeat creditors under s 121, which may be commenced at any time: s 127. It is not relevant to the proceedings that the debtor ... ”

“ The Bankruptcy Act provides that the vesting of property under the Act, including Part X agreements, is subject to an order of the Family Court in relation to property, spousal maintenance and maintenance agreements under Parts VIII or VIIIAB of the Family Law Act but not financial agreements ... ”

“ The Bankruptcy Act in Division 4B provides for the assessment of the income of a bankrupt and, if it exceeds the threshold, for payment of a contribution to the estate. This can be enforced by way of notice which in effect garnishees wages or a bank account. The contribution formula is designed to ... ”

“ Firstly, there is a mechanism provided under Part IV Division 2A Bankruptcy Act by which a debtor can get a 21day breathing space from the pressure of their creditors in which to consider the alternatives to bankruptcy that might be available. This is obtained by the filing of a declaration under ... ”

“ Documents in new proceedings should be filed electronically with the court. If this is not possible there is the facility for filing paper documents. A creditor may file a creditor’s petition in the Federal Circuit Court or the Federal Court for sequestration of the debtor’s estate. About one in ... ”

“ The minimum debt is $5,000 and the date of the judgment must be within six years of the date of the bankruptcy notice: s 41. ”

“ Prior to lodging an application for a bankruptcy notice, a search of the National Personal Insolvency Index (NPII) is necessary. This search will show whether the debtor is already bankrupt or a party to a debt agreement or a personal insolvency agreement. A bankruptcy notice is a formal notice of ... ”

“ The creditor must file the petition form within six months of the act of bankruptcy, which in most cases is for non-compliance with the bankruptcy notice: s 44(1)(c). While a notice may be served by mail, DX or fax, as well as personally, r 16.01 provides a petition must be served personally. ... ”

“ A significant proportion of bankruptcy matters are case managed and determined by judicial registrars of the court, including creditors’ petitions, applications to set aside bankruptcy notices and examinations under s 81 of the Bankruptcy Act. The Federal Court publishes a Guide for practitioners ... ”

“ When finalising a matter it is important to terminate the retainer. This informs the client in writing that all work on the matter is complete and that no further work will be undertaken unless the firm is otherwise instructed. If the matter is finalised in such a way that the client retains ... ”