12Secretary to determine certain matters

12 Secretary to determine certain matters

(1) If the Secretary has made a default event declaration stating that an insolvency event has occurred in relation to a person who is or has been a registered provider (the registered provider or former registered provider), the Secretary must identify each accommodation payment balance that: (a) was an outstanding accommodation payment balance of the registered provider or former registered provider at the time that the default event declaration was made; or (b) later becomes an outstanding accommodation payment balance of the registered provider or former registered provider. (2) In respect of each accommodation payment balance identified by the Secretary under subsection (1), the Secretary must determine: (a) the date on which the accommodation payment balance became an outstanding accommodation payment balance; and (b) the amount that the Secretary considers is equal to the amount of the accommodation payment balance that had not been refunded at the time the Secretary makes the determination; and (c) the amount that the Secretary considers is equal to the amount representing interest on the amount determined under paragraph (b), worked out in accordance with the rules made for the purposes of section 313 of the Aged Care Act 2024 under section 602 of that Act, that has accrued at the time that the Secretary determines the amount under paragraph (b); and (d) the person to whom the Secretary considers the registered provider or former registered provider was required to refund the accommodation payment balance at the time that it became an outstanding accommodation payment balance; and (e) the method that the Secretary considers would be most appropriate for the Commonwealth to use to pay a refund amount to the person mentioned in paragraph (d). Where all or part of a refund is clawed back as a result of insolvency or bankruptcy (3) If: (a) before the determination is made, part of an accommodation payment balance is refunded; and (b) in a case where the registered provider or former registered provider is a corporation: (i) a transaction under which the refund took place is a voidable transaction under subsection 588FE(2), (2A), (2B) or (6B) of the Corporations Act 2001; and (ii) the liquidator takes action, including but not limited to the making of an application under section 588FF of that Act or a request under subsection 588FGAA(2) of that Act, as a result of which the person to whom the refund was made does not retain the value of the refund, or part of the value of the refund; and (c) in a case where the registered provider or former registered provider is not a corporation: (i) a transfer of any property for the purposes of giving the refund is void under section 122 of the Bankruptcy Act 1966; and (ii) the trustee in bankruptcy takes action as a result of which the person to whom the refund was made does not retain the value of the refund, or part of the value of the refund; then, for the purposes of paragraph (2)(b), to the extent that the person to whom the refund was made does not retain the value of the refund, the refund is taken not to have been made.