LAWS3014 Insolvency Law Summary (Concise)
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1 LAWS3014 Insolvency Law Summary (Concise)
2 Contents Administering Bankruptcies... 5 Introduction to Bankruptcy... 6 Purposes of Bankruptcy... 6 History of bankruptcy law... 6 Modern bankruptcy law:... 6 Values of Bankruptcy... Error! Bookmark not defined. Moratorium Provisions Part 4 Division 2A ss 54A 54L ( Declaration of Intention to Present Debtor s petition).. Error! Bookmark not defined. Voluntary Bankruptcy by way of Debtor s Petition... Error! Bookmark not defined. Individual Debtor s Petition... Error! Bookmark not defined. Partnership Debtor s Petition s 56A 56G... Error! Bookmark not defined. Joint Debtor s Petition s Error! Bookmark not defined. Debtors Petition as an abuse of process... Error! Bookmark not defined. Compulsory Bankruptcy (involuntary bankruptcy) by way of Creditor s Petition... Error! Bookmark not defined. Bankruptcy Notice... Error! Bookmark not defined. Setting aside a bankruptcy notice... Error! Bookmark not defined. Validity of bankruptcy notices... Error! Bookmark not defined. Creditor s Petition... Error! Bookmark not defined. Effect of Bankruptcy... Error! Bookmark not defined. Effects on the Bankrupt:... Error! Bookmark not defined. Criminal Liability... Error! Bookmark not defined. Recovery of assets: Assets available to the Trustee... Error! Bookmark not defined. Property available to the creditors... Error! Bookmark not defined. Assets not available to the creditors i.e. not divisible property... Error! Bookmark not defined. Timing and dates Commencement or Date of bankruptcy... Error! Bookmark not defined. Relation back doctrine... Error! Bookmark not defined. After acquired income... Error! Bookmark not defined. Avoidance Provisions... Error! Bookmark not defined. Administration of the Bankrupt estate... Error! Bookmark not defined. Rights of Creditors & meetings... Error! Bookmark not defined. Taking possession of property... Error! Bookmark not defined. Investigations... Error! Bookmark not defined. Disclaimer of assets... Error! Bookmark not defined. Carrying on the business... Error! Bookmark not defined.
3 Dealing with assets... Error! Bookmark not defined. Financial Support for Legal Proceedings... Error! Bookmark not defined. Creditors Claims... Error! Bookmark not defined. Distribution of the Estate... Error! Bookmark not defined. Exception to the pari passu principle.... Error! Bookmark not defined. Offences:... Error! Bookmark not defined. Annulment... Error! Bookmark not defined. Consequences of annulment... Error! Bookmark not defined. Discharge from bankruptcy... Error! Bookmark not defined. Setting aside a bankruptcy... Error! Bookmark not defined. Deceased estates... Error! Bookmark not defined. Subsequent bankruptcies... Error! Bookmark not defined. Formal Alternatives to Bankruptcy... Error! Bookmark not defined. Personal Insolvency Agreement (PIA) Part X... Error! Bookmark not defined. PART IX AGREEMENTS... Error! Bookmark not defined. Powers of IG to regulate administrators... Error! Bookmark not defined. External administration incorporating the three regimes under the Act: Receiverships, Voluntary Administration and Liquidation.... Error! Bookmark not defined. Receiverships... Error! Bookmark not defined. Introduction... Error! Bookmark not defined. Appointment, Powers, Duties, Liabilities and Termination... Error! Bookmark not defined. Voluntary administration... Error! Bookmark not defined. Introduction... Error! Bookmark not defined. Overview of the process... Error! Bookmark not defined. Deeds of Company Arrangement (following administration)... Error! Bookmark not defined. Introduction... Error! Bookmark not defined. Types of Deeds... Error! Bookmark not defined. Liquidation (Winding Up)... Error! Bookmark not defined. Provisional Liquidation... Error! Bookmark not defined. Voluntary Liquidation (s 493(1))... Error! Bookmark not defined. Compulsory Liquidation (s 477(1)(a))... Error! Bookmark not defined. Effects & Administration of Winding Up... Error! Bookmark not defined. Assets available to the liquidator (voidable transactions)... Error! Bookmark not defined. UNFAIR PREFERENCES s 588FA... Error! Bookmark not defined. UNREASONABLE RELATED DIRECTOR TRANSACTIONS s 588FDA... Error! Bookmark not defined.
4 UNCOMMERCIAL TRANSACTIONS s 588FE... Error! Bookmark not defined. UNFAIR LOANS s 588FD... Error! Bookmark not defined. TRANSACTIONS FOR THE PURPOSE OF DEFEATING, DELAYING OR INTERFERING WITH RIGHTS OF ANY OR ALL ITS CREDITORS s 588FE(5)... Error! Bookmark not defined. Securities... Error! Bookmark not defined. Recently created securities & PPSA Error! Bookmark not defined. Provision of law:... Error! Bookmark not defined. Division of assets between creditors... Error! Bookmark not defined. Insolvent trading s 588G... Error! Bookmark not defined. Procedure... Error! Bookmark not defined. Release of director s liability... Error! Bookmark not defined. HOLDING COMPANY S DUTY TO PREVENT INSOLVENT TRADING... Error! Bookmark not defined. Creditors have the right to bring action s 588R... Error! Bookmark not defined. Creditors may give liquidator the Notice of Intention to sue for compensation s 588S... Error! Bookmark not defined. Cross Border Insolvency... Error! Bookmark not defined. UNCITRL... Error! Bookmark not defined. Model Laws... Error! Bookmark not defined. Phoenix Companies... Error! Bookmark not defined. Restructuring... Error! Bookmark not defined. Final Exam... Error! Bookmark not defined.
5 Administering Bankruptcies They are administered either by: Official Trustee OR Registered Trustee Inspector General: AFSA Australian Financial Security Authority as the head of the insolvency administration - There must be an Inspector General (IG) of Bankruptcy (BA s 11) - Specific functions (BA s 12) making inquiries / investigations and regulation of Trustees and the Official Trustee (s 12(2)), bankrupts or debtors under Part IX or X agreements), debt agreement administrators. Trustees in Bankruptcy: They are appointed for each bankrupt estate. (This incorporates both the Registered and Official Trustee) - Eligibility: must be a person (cannot be a corporation), may be joint but must be someone who is accountable and answerable to the administration. - Duties: o Must apply ad establish integrity and knowledge of the BA in order to be registered as Trustees. o An Officer of the Court has the power to call upon the Trustee. o Expected to act fairly, impartially and with integrity. Ex Parte James; Re Condon 1987 LR 9 CH 609 Trustees must act justly. They are considered as officers of the Court and in exercising powers and discretions, no lesser standard is to be expected of them than a Judge or Lawyer. Where money is paid under a mistake of law or fact it will be nullified where these circumstances exist: Official Trustee: 1) bankrupt has been enriched by relevant transaction; 2) claimant is unable to submit proof of debt in ordinary way; 3) honest person would consider it unfair for bankrupt to retain money; 4) enrichment does not need to equal the amount paid the rule operates to nullify enrichment. - The Government Trustee in Bankruptcy - a body corporate created by the BA s 18(1) - If no Registered Trustee is appointed / consents to act, then the Official Trustee automatically becomes the Trustee BA s May be replaced by a private (registered) trustee if the creditors resolve (s 157) Official Receiver: - The OR is the individual officer who may exercise the powers, and performs the functions of the Official Trustee (s 18(8)) - The Official Trustee is appointed, then the Official Receiver and staff who conduct the administration. - Functions include: o issuing bankruptcy notices s 41 o accepting / rejecting debtors petitions s 54C o duties as Trustee where the Official Trustee is the Trustee of Bankrupt s estate o supervisory and oversight role o may apply to the Court to have an order against a bankrupt, a trustee or other person enforced (s 30(5)) o entitled to information from trustees about estates they are handling (s 170(1))
6 Introduction to Bankruptcy Purposes of Bankruptcy Pari Passu Distribution - Allows for a fair and equitable distribution of the debtor s assets among his/her creditors, each of whom is affected by the bankruptcy, in proportion to the amount of debt. - Individual creditors are not able to enforce their debts independently of the rights of other creditors. Protection and Rehabilitation - Allows for a person who is in a difficult financial position to obtain relief from the pressure of their creditors and to be given an opportunity to make a fresh financial start (after 3 years, or greater if extended). - They are permitted to keep certain assets per the index this recognises that they need to make a living and support themselves or their family. - Incentive is given for the bankrupt to go to work. o It is dependent on the number of dependants, and after that threshold, the o income is split with the creditor 50/50. After acquired income assets acquired after bankruptcy date is 3 months after bankruptcy up until the date s/he is rehabilitated. Investigation - Bankruptcy allows for an investigation of a bankrupt s estate and circumstances which led to the bankruptcy - May reveal improper or dishonest conduct by the bankrupt - Allows for the setting aside of transactions & recovery of property for the benefit of the creditors. Restrictions on dealings - Debtors who are insolvent are limited in the dealings in which they can engage - Cannot obtain credit of above a certain amount without disclosing their bankruptcy - Cannot pursue certain occupations while they are bankrupt. - Credit reporting will show that a person is a bad credit risk if they are or have been bankrupts Benefits to society - Reduces wasteful collection costs and diminished value in sales of debtor s assets encourages responsible lending to debtors concentrate losses on more effective loss distributors. History of bankruptcy law - 16 TH century: The Bankruptcy Act of 1542 in England was seen as the foundation of bankruptcy law. Its purpose was to deal with absconding debtors by allowing creditors to obtain the seizure and the sale of debtor s assets. The proceeds are then distributed in proportion to the debts owing to each creditor TH and 19 TH century: Bankrupt people were considered as being imprisoned. Debtors were sometimes nailed by their ears to a pillory as an inducement to pay and served as a warning to others. However, the incomplete coverage and harshness of the law led to changes in the 19 th century. This provided for more protective measures for those otherwise at the mercy of continual pursuit by the debtors. Imprisonment as a remedy was abolished in These changes marked the beginning of modern bankruptcy. Modern bankruptcy law: - 20 TH century: Historically, bankruptcy was regulated by the States until the 20 th century. In the 20 th century, the Commonwealth Parliament was given the power under s 51(xvii) of the Constitution to make laws with respect to bankruptcy and insolvency. Bankruptcy Act 1966 (Cth) Prescribes rules and procedures governing bankruptcy proceedings, from pre-bankruptcy through to discharge of the bankrupt and release of the trustee in bankruptcy
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