2. A debt may be proved by delivering or sending through the post in a prepaid letter to the official receiver, or, if a trustee has been appointed, to the trustee, an affidavit verifying the debt.
3. The affidavit may be made—
(a) by the creditor himself, or
(b) by some person authorized by or on behalf of the creditor, stating his authority and means of knowledge.
4. The affidavit shall contain or refer to a statement of account showing the particulars of the debt, and shall specify the vouchers, if any, by which it can be substantiated. The official receiver or trustee may at any time call for the production of the vouchers.
5. The affidavit shall state whether the creditor is or is not a secured creditor.
6. A creditor shall bear his own costs of proving his debt, unless the Court otherwise specially orders.
Every creditor who has lodged a proof shall be entitled to see and examine the proofs of other creditors before the first meeting, and at all reasonable times.
8. A creditor proving his debt shall deduct therefrom all trade discounts, but he shall not be compelled to deduct any discount not exceeding eight per centum on the net amount of his claim, which he may have agreed to allow for payment in cash.
E.B.A., s. 66 (2) (a).
9. Any account settled between the debtor and the creditor within three years preceding the date of the sequestration order may be examined, and, if it appears that the settlement of the account forms substantially one transaction with any debt alleged to be due out of the debtor’s estate (whether in the form of renewal of a loan or capitalization of interest or ascertainment of loans or otherwise), the account may be re-opened and the whole transaction treated as one.
Ib. s. 66 (2) (b).
10. Any payments made by the debtor to the creditor before the sequestration order, whether by way of bonus or otherwise, and any sums received by the creditor before the sequestration order from the realization of any security for the debt, shall, notwithstanding any agreement to the contrary, be appropriated to principal and interest in the proportion that the principal bears to the sum payable as interest at the agreed rate.
Ib. s. 66 (2) (c).
11. Where the debt due is secured and the security is realized after the sequestration order, or the value therof is assessed in the proof, the amount realized or assessed shall be appropriated to the satisfaction of principal and interest in the proportion that the principal bears to the sum payable as interest at the agreed rate.
Proof by Secured Creditors.
Q., s. 151.
S.A., s. 199.
Tas., s. 39.
S.A., s. 199.
Tas., s. 39.
12. If a secured creditor realizes his security, he may prove for the balance due to him, after deducting the net amount realized, provided the creditor satisfies the Court or the trustee that the realization has been effected in a bona fide and proper manner.
13. If a secured creditor surrenders his security to the official receiver or trustee for the general benefit of the creditors, he may prove for his whole debt.
14. If a secured creditor does not either realize or surrender his security, he shall, before ranking for dividend, state in his proof the particulars of his security, the date when it was given, and the value at which he assesses it, and shall be entitled to receive a dividend only in respect of the balance due to him after deducting the value so assessed.
S.A., s. 199.
15. (a) Where a security is so valued the trustee may at any time redeem it on payment to the creditor of the assessed value.
(b) If the trustee is dissatisfied with the value at which a security is assessed, he may require that the property comprised in any security so valued be offered for sale at such times and on such terms and conditions as are agreed on between the creditor and the trustee, or as, in default of such agreement, the Court directs. If the sale be by public auction the creditor, or the trustee on behalf of the estate, may bid or purchase.
(c) Provided that the creditor may at any time, by notice in writing, require the trustee to elect whether he will or will not exercise his power of redeeming the security or requiring it to be realized, and if the trustee does not, within three months after receiving the notice, signify in writing to the creditor his election to exercise the power, he shall not be entitled to exercise it; and the equity of redemption, or any other interest in the property comprised in the security which is vested in the trustee, shall vest in the creditor, and the amount of his debt shall be reduced by the amount at which the security has been valued.
Where a creditor has so valued his security, he may at any time amend the valuation and proof on showing to the satisfaction of the trustee, or the Court, that the valuation and proof were made bonâ fide on a mistaken estimate, or that the security has diminished or increased in value since its previous valuation; but every such amendment shall be made at the cost of the creditor, and upon such terms as the Court orders, unless the trustee allows the amendment without application to the Court.
S.A., s. 199.
17. Where a valuation has been amended in accordance with the foregoing rule, the creditor shall forthwith repay any surplus dividend which he may have received in excess of that to which he would have been entitled on the amended valuation, or, as the case may be, shall be entitled to be paid, out of any money for the time being available for dividend, any dividend or share of dividend which he may have failed to receive by reason of the inaccuracy of the original valuation, before that money is made applicable to the payment of any future dividend, but he shall not be entitled to disturb the distribution of any dividend declared before the date of the amendment.
S.A., s. 199.
18. If a creditor after having valued his security subsequently realizes it, or if it is realized under the provisions of Rule 15, the net amount realized shall be substituted for the amount of any valuation previously made by the creditor, and shall be treated in all respects as an amended valuation made by the creditor.
S.A., s. 199.
Tas., s. 39.
19. If a secured creditor does not comply with the foregoing rules he shall be excluded from all share in any dividend.
S.A., s. 199.
20. Subject to the provisions of Rule 15, a creditor shall in no case receive more than Twenty shillings in the pound, and interest as provided by this Act.
Proof in respect of distinct Contracts.
Q., s. 146.
Tas., s. 34.
21. If a debtor was at the date of the sequestration order liable in respect of distinct contracts as a member of two or more distinct firms, or as a sole contractor, and also as member of a firm, the circumstance that the firms are in whole or in part composed of the same individuals, or that the sole contractor is also one of the joint contractors, shall not prevent proof in respect of the contracts against the properties respectively liable on the contracts.
Periodical Payments.
22. When any rent or other payment falls due at stated periods, and the sequestration order is made at any time other than one of those periods, the person entitled to the rent or payment may prove for a proportionate part thereof up to the date of the order as if the rent or payment grew due from day to day.
Interest.
23. On any debt or sum certain, payable at a certain time or otherwise, whereon interest is not reserved or agreed for, and which is overdue at the date of the sequestration order and provable in bankruptcy, the creditor may prove for interest at a rate not exceeding Eight per centum per annum to the date of the order from the time when the debt or sum was payable, if the debt or sum is payable by virtue of a written instrument at a certain time, and if payable otherwise, then from the time when a demand in writing has been made giving the debtor notice that interest will be claimed from the date of the demand until the time of payment.
Debt payable at a Future Time.
24. A creditor may prove for a debt not payable when the debtor became bankrupt as if it were payable presently, and may receive dividends equally with the other creditors, deducting only thereout a rebate of interest at the rate of Eight pounds per centum per annum computed from the declaration of a dividend to the time when the debt would have become payable, according to the terms in which it was contracted.
Admission or Rejection of Proofs.
25. The trustee shall examine every proof and the grounds of the debt, and in writing admit or reject it, in whole or in part, or require further evidence in support of it. If he rejects a proof he shall state in writing to the creditor the grounds of the rejection.
26. If the trustee thinks that a proof has been improperly admitted, the Court may, on the application of the trustee, after notice to the creditor who made the proof, expunge the proof or reduce its amount.
27. If a creditor is dissatisfied with the decision of the trustee in respect of a proof, the Court may, on the application of the creditor, reverse or vary the decision.
28. The Court may also expunge or reduce a proof upon the application of a creditor if the trustee declines to interfere in the matter, or in the case of a composition or scheme, upon the application of the debtor.
29. For the purpose of any of his duties in relation to proofs, the trustee may administer oaths and take affidavits.
30. The official receiver, before the appointment of a trustee, shall have all the powers of a trustee with respect to the examination, admission, and rejection of proofs, and any act or decision of his in relation thereto shall be subject to the like appeal.