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Commonwealth act
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Direct links to the current provisions in Bankruptcy Act 1924.
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BANKRUPTCY.
No. 37 of 1924.
An Act relating to Bankruptcy.
[Assented to 8th October, 1924.]
BE it enacted by the King’s Most Excellent Majesty, the Senate, and the House of Representatives of the Commonwealth of Australia, as follows:—
Part I.—Preliminary (Sections 1–8).
Part II.—Administration (Sections 9–17).
Part III.—Constitution, Procedure and Powers of Courts.
Division 1.—Jurisdiction (Sections 18–26).
Division 2.—Procedure (Sections 27–43).
Division 3.—Evidence (Sections 44–51).
Part IV.—Proceedings in connexion with Sequestration.
Division 1.—Acts of Bankruptcy (Sections 52, 53).
Division 2.—Petition and Sequestration Order (Sections 54–65).
Division 3.—Proceedings consequent on Sequestration Order (Sections 66, 67).
Division 4.—Public Examination of Bankrupt (Sections 68–70).
Division 5.—Composition or Scheme of Arrangement (Sections 71–73).
Division 6.—Committee of Inspection (Sections 74, 75).
Part V.—Control over Person and Property of Debtor (Sections 76–80).
Part VI.—Administration of Property.
Division 1.—Proof of Debts (Sections 81–83).
Division 2.—Priority of Debts (Sections 84–89).
Division 3.—Property available for Payment of Debts (Sections 90, 91).
Division 4.—Effect of Bankruptcy on antecedent transactions (Sections 92–98).
Division 5.—Realization of Property (Sections 99–111).
Division 6.—Distribution of Property (Sections 112–118).
Part VII.—Discharge of Bankrupt (Sections 119–125).
Part VIII.—Trustees.
Division 1.—Appointment and Official Name (Sections 126–132).
Division 2.—Remuneration and Costs (Sections 133–136).
Division 3.—Trustees’ Accounts and Audits (Sections 137–146).
Division 4.—Control over Trustees (Sections 147–149).
Division 5.—Vacation of Office of Trustee (Sections 150–153).
Part IX.—Small Bankruptcies (Section 154).
Part X.—Estates of Persons Dying Insolvent (Sections 155, 156).
Part XI.—Compositions and Assignments without Sequestration (Sections 157–188).
Part XII.—Deeds of Arrangement (Sections 189–207).
Part XIII.—Unclaimed Funds or Dividends (Section 208).
Part XIV.—Offences (Sections 209–222).
Part XV.—Miscellaneous (Section 223).
Cf. E.B.A., s. 167.
“Affidavit” includes statutory declaration and affirmation;
“Available act of bankruptcy” means any act of bankruptcy available for a bankruptcy petition at the date of the presentation of the bankruptcy petition on which the sequestration order is made;
“Bankrupt” means any person in respect of whose estate a sequestration order has been made;
“Bankruptcy”, in relation to jurisdiction or proceedings, includes any jurisdiction or proceedings under or by virtue of this Act;
“Debt provable in bankruptcy”, or “Provable debt”, includes any debt or liability by this Act made provable in bankruptcy;
E.B.A., s. 1 (2).
“Debtor” includes any person, whether a British subject or not, who at the time when any act of bankruptcy was done or suffered by him—
(a) was personally present in Australia; or
(b) ordinarily resided or had a place of residence in Australia; or
(c) was carrying on business in Australia, personally, or by means of an agent or manager; or
(d) was a member of a firm or partnership which carried on business in Australia;
“Extraordinary resolution” means a resolution passed by three-fourths in number and value of the creditors present, personally or by proxy, at a meeting of creditors and voting on the resolution;
“Goods” includes all chattels personal;
“Oath” includes statutory declaration and affirmation;
“Officer” means an officer of the Court;
“Ordinary resolution” means a resolution passed by a majority in value of the creditors present, personally or by proxy, at a meeting of creditors and voting on the resolution;
“Petition” means a bankruptcy petition;
“Prescribed” means prescribed by this Act, or by rules or regulations under this Act;
“Property” includes money, goods, things in action, land, and every description of property, whether real or personal and whether situate in Australia or elsewhere; also obligations, easements, and every description of estate, interest and profit, present or future, vested or contingent, arising out of or incident to property as above defined;
“Registrar” means a Registrar in Bankruptcy and includes a Deputy Registrar in Bankruptcy when exercising any of the powers or functions of the Registrar;
“Regulations” includes rules;
“Resolution” means ordinary resolution;
“Rules” means rules made under this Act and includes regulations;
“Secured creditor” means a person holding a mortgage, charge, or lien on the property of the debtor, or any part thereof, as a security for a debt due to him from the debtor;
“Sequestration” means the making of a sequestration order, and “sequestrate” has a corresponding meaning;
“Sheriff” includes any officer charged with the execution of a writ or other process;
“Special resolution” means a resolution passed by a majority in number and three-fourths in value of the creditors present, personally or by proxy, at a meeting of creditors and voting on the resolution;
“State Court” means a State Court having jurisdiction in bankruptcy under this Act;
“Supreme Court” means the Supreme Court of a State or a Judge thereof;
“Territory” means a Territory under the authority of the Commonwealth (including a Territory governed by the Commonwealth under a mandate) to which this Act extends;
“The Court” means any Court having jurisdiction in bankruptcy or a Judge thereof;
“The High Court” means the High Court of Australia;
“This Act” includes all rules or regulations made thereunder;
“Trustee” means the trustee in bankruptcy of a bankrupt’s estate and the official receiver when acting as trustee or the trustee under a composition or scheme of arrangement or under a deed of arrangement or under a deed of assignment, as the case may be.
Cf. E.B.A., ss. 125–128.
N.S.W., ss. 114, 123.
Vic., ss. 3, 5, 6.
Q., ss. 30, 31.
S.A., s. 10.
W.A., ss. 112, 134.
Tas., s. 4.
5.—(1.) This Act shall apply to all debtors, including married women, foreigners, and persons having privilege of Parliament, but a sequestration order shall not be made against any corporation, or against any partnership, association or company registered under any Commonwealth or State Act which provides for the winding-up thereof.
(2.) Subject to such modifications as are prescribed, the provisions of this Act shall apply to limited partnerships in like manner as if limited partnerships were ordinary partnerships, and on all the general partners of a limited partnership becoming bankrupt, the assets of the limited partnership shall vest in the trustee.
E.B.A., s. 151.
W.A., s. 134.
(3.) Except as otherwise expressly provided in this Act, the provisions of this Act relating to the remedies against the property of a debtor, the priorities of debts, the effect of a composition or scheme of arrangement, and the effect of an order of discharge, shall bind the Crown as representing the Commonwealth or any State:
Provided that where by virtue of anything done prior to the commencement of this Act under any Act, State Act, or law of a Territory, any property, real or personal, is made, before the commencement of this Act, subject to a charge in respect of any debt due to the Crown, as representing the Commonwealth or a State or in respect of any rates imposed by any local governing body, nothing in this Act shall affect the operation of that Act, State Act or law in respect of that charge.
(a) any provision in any State Bankruptcy or Insolvency Act relating to matters not dealt with, either expressly or by necessary implication, in this Act; or
(b) any proceedings pending at the commencement of this Act under any State Bankruptcy or Insolvency Act, or any right or privilege acquired or duty imposed or liability disqualification fine forfeiture or other punishment incurred before the commencement of this Act,
and any proceeding under any State Bankruptcy or Insolvency Act, pending at the commencement of this Act, may, subject to section nineteen of this Act, be continued and completed as if this Act had not been passed.
E.B.A., s. 147.
N.S.W., s. 151.
Vic., s. 41.
W.A., s. 127.
Tas., s. 76.
7.—(1.) No proceeding under this Act shall be invalidated by any formal defect or by any irregularity, unless the Court before which the objection is made is of opinion that substantial injustice has been caused thereby, and that the injustice cannot be remedied by an order of that Court.
(2.) No defect or irregularity in the appointment or election of any official receiver, trustee, or member of a committee of inspection shall vitiate any act done by him in good faith.
Cf. E.B.A., s. 70.
Cf. E.B.A., ss. 70, 102.
N.S.W., s. 139.
Vic., ss. 13, 70.
Q., ss. 4, 9, 78, 81, 83.
S.A., ss. 41, 48, 50.
W.A., ss. 63, 64, 68, 92.
Tas., s. 61.
12.—(1.) For the purposes of this Act the Governor-General may by proclamation declare any part of the Commonwealth to be a District.
(2.) There shall be in each District a Registrar in Bankruptcy, and such Deputy Registrars, official receivers, and other officers, as are necessary.
(3.) An official receiver may, if the Governor-General thinks fit, be remunerated by fees and commission only.
(4.) Where an official receiver is remunerated by fees and commission only—
(a) if, in respect of any estate, the official receiver is appointed trustee or no trustee is appointed, he shall receive commission as trustee of the estate; and
(b) if, in respect of any estate, a person other than the official receiver is appointed trustee, the official receiver shall receive such fees as are prescribed, and such commission as the Court directs.
(5.) The Registrars and Deputy Registrars shall be officers of the Court and shall have such duties as the Attorney-General directs or as are prescribed.
(6.) The Attorney-General may by order direct that any specified Deputy Registrar shall have and exercise any or all of the powers and functions of a Registrar.
(7.) An official receiver shall act under the general authority and directions of the Registrar, and shall also be an officer of the Court.
(8.) The Court shall distribute the receiverships of the particular estates among the official receivers in the prescribed manner.
(9.) The official receiver appointed for any particular estate shall be the official receiver for that particular estate.
E.B.A., s. 71.
S.A., s. 47.
W.A., s. 64.
(a) to discharge the duties of an official receiver during any temporary vacancy in the office, or during the temporary absence of the official receiver through illness or otherwise;
(b) to be the deputy of an official receiver and to act for him for such time and under such conditions as are prescribed; or
(c) to discharge any portion of the duties of an official receiver, the performance of which by the official receiver is, in the opinion of the Registrar, inexpedient.
E.B.A., s. 72 (1).
W.A., s. 65.
E.B.A., s. 73.
S.A., s. 41.
W.A., s. 66.
(a) to investigate—
(i) the conduct, property, dealings, and transactions of the debtor;
(ii) the actual cause of bankruptcy;
(iii) the amount of assets and liabilities; and
(iv) the books and accounts kept by the debtor,
and report to the Court, within thirty days after the presentation of the bankruptcy petition or within such further time as is prescribed, the result of the investigations and whether or not he has reason to believe that the debtor has committed any act which constitutes an offence under this Act, or which would justify the Court in refusing, suspending or qualifying an order for his discharge or release;
(b) to make such other investigations and reports concerning his conduct and the causes of his bankruptcy as is prescribed or as the Court directs;
(c) to take such part as he thinks fit in his public examination; and
(d) to take such part, and give such assistance in relation to the prosecution of any bankrupt who is deemed to have been guilty of an offence against this Act as the Registrar or the Court directs.
E.B.A., s. 74.
Vic., s. 103.
S.A., s. 41.
W.A., s. 67.
16.—(1.) As regards the estate of the debtor, it shall be the duty of the official receiver—
(a) pending the appointment of a trustee, or if no trustee is appointed, or during any vacancy in the office of trustee, to act as trustee;
(b) to summon and preside at the first meeting of creditors;
(c) to advertise the sequestration order, the date of the creditors’ first meeting and of the bankrupt’s public examination, if any, and such other matters as it is necessary to advertise.
(2.) When the bankrupt cannot himself prepare a proper statement of affairs, the official receiver may, subject to any prescribed conditions, and at the expense of the estate, employ some qualified person to assist in the preparation of the statement.
(3.) Every official receiver shall in the prescribed manner account for and pay over all moneys and deal with all securities.
Cf. E.B.A., s. 136.
Q., s. 196.
Tas., s. 108.
17.—(1.) The Registrars, Deputy Registrars, trustees and other prescribed officers shall make prescribed returns of the business of their respective courts and offices at the times and in the manner prescribed, and from the returns the Attorney-General shall cause records to be prepared which shall be open for public information and searches as is prescribed.
(2.) The Attorney-General shall cause a general annual report of all matters, administrative, judicial, and financial, within this Act, to be prepared and laid before both Houses of the Parliament.
Division 1.—Jurisdiction.
E.B.A., s. 96.
N.S.W., s. 133.
Vic., s. 10.
Q., ss. 8, 9.
S.A., s. 11.
W.A., s. 89.
Tas., s. 58.
18.—(1.) The Courts having jurisdiction in bankruptcy shall be—
(a) such Fed
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