18The Official Trustee in Bankruptcy

18  The Official Trustee in Bankruptcy Corporate status of Official Trustee  (1) The corporation sole known as the Official Trustee in Bankruptcy, that existed immediately before this subsection commenced, continues in existence as a body corporate with the same name.  (2) The body corporate continued in existence by force of subsection (1):  (a) has perpetual succession;  (b) may acquire, hold and dispose of real and personal property; and  (c) may sue and be sued in its corporate name. Extra function of Official Trustee  (3) The functions of the Official Trustee include acting in accordance with an order of a court relating to the payment of a debt due by a person to the Commonwealth or a Commonwealth authority. Example: Such an order may, for example, provide for the Official Trustee to: (a) take custody of, control and own property as security for payment of such a debt; and (b) sell the property; and (c) apply the proceeds of the sale wholly or partly towards the payment of the debt. Note: Other provisions of this Act and other laws of the Commonwealth confer other functions on the Official Trustee. Official Trustee’s seals  (4) The Official Trustee shall have such seals as the Minister directs by writing under his or her hand.  (5) The designs of the seals of the Official Trustee shall be as determined by the Minister by writing under his or her hand.  (7) All courts (whether exercising federal jurisdiction or not), and all persons acting judicially, shall take judicial notice of the mark of such a seal affixed on a document and shall, in the absence of proof to the contrary, presume that it was duly affixed. Official Receiver acting for Official Trustee  (8) The Official Receiver may exercise the powers, and perform the functions, of the Official Trustee.  (8AA) In exercising powers or performing functions under subsection (8), an Official Receiver must act in the name of, and on behalf of, the Official Trustee.  (8A) All acts and things done in the name of, or on behalf of, the Official Trustee by any Official Receiver, shall be deemed to have been done by the Official Trustee. Inspector‑General acting for Official Trustee  (8B) The Inspector‑General may exercise any of the powers, and perform any of the functions, of the Official Trustee that are not related to any of the following matters:  (a) a bankruptcy;  (b) control of a debtor’s property under section 50;  (c) a scheme of arrangement or composition under Division 6 of Part IV;  (d) a matter relating to a debt agreement proposal;  (e) Part X administration;  (f) administration under Part XI.  (8C) In exercising powers or performing functions under subsection (8B), the Inspector‑General must act in the name of, and on behalf of, the Official Trustee.  (8D) Anything done by the Inspector‑General in the name of, or on behalf of, the Official Trustee is taken to have been done by the Official Trustee.  (8E) In subsection (8B): matter relating to a debt agreement proposal includes:  (a) a debt agreement; and  (b) an activity required or permitted by a debt agreement. Part X administration means:  (a) an activity that a controlling trustee may or must carry out after consenting to exercise powers given by an authority under section 188 (including control of a debtor’s property under Division 2 of Part X); or  (b) a personal insolvency agreement. State of mind of Official Trustee  (9) Where, under a provision of this Act, the exercise of a power or the performance of a function by the Official Trustee is dependent upon the opinion, belief or state of mind of the Official Trustee in relation to a matter:  (a) the power may be exercised or the function performed by a person who may exercise the power or perform the function under subsection (8) or (8B), in the name of, or on behalf of, the Official Trustee upon the opinion, belief or state of mind in relation to that matter of the person exercising the power or performing the function; and  (b) any act or thing done in accordance with this subsection shall be deemed to have been done by the Official Trustee.  (10) Where the Official Trustee is one of the trustees of a personal insolvency agreement, composition or scheme of arrangement, a power the exercise of which, or a function the performance of which, is dependent upon the opinion, belief or state of mind of those trustees in relation to a matter may be exercised or performed by those trustees as if the opinion, belief or state of mind in relation to that matter of:  (a) an Official Receiver who; or  (b) another person who with the authority of an Official Receiver; acts in the name of, or on behalf of, the Official Trustee in the exercise of the power or the performance of the function were the opinion, belief or state of mind in relation to the matter of the Official Trustee. General interpretation provisions  (11) A reference in a law of the Commonwealth to the Official Receiver of the estate of a bankrupt shall, in relation to the vesting, holding or disposal of property, be read as including a reference to the Official Trustee.  (12) A reference in a law of the Commonwealth to the Official Receiver in Bankruptcy shall be read as including a reference to the Official Trustee. 18AA  Public Governance, Performance and Accountability Act 2013 does not apply to the Official Trustee   Despite paragraph 10(1)(d) of the Public Governance, Performance and Accountability Act 2013, the Official Trustee is not a Commonwealth entity for the purposes of that Act. 18A  Liability of the Official Trustee  (1) The Official Trustee is subject to the same personal liability in respect of an act done, or omitted to be done, by it as:  (a) the trustee of the estate of a bankrupt; or  (b) the trustee of the estate of a deceased debtor; or  (c) the trustee of a composition or scheme of arrangement accepted under Division 6 of Part IV; or  (d) the controlling trustee in relation to a debtor whose property is subject to control under Division 2 of Part X; or  (e) the trustee of a personal insolvency agreement; as an individual would be subject if the individual had done, or omitted to do, that act as such a trustee.  (2) The Commonwealth is by force of this subsection liable to indemnify the Official Trustee against any personal liability, including any personal liability as to costs, incurred by it:  (a) by reason of subsection (1); or  (b) for any act done, or omitted to be done, by it in carrying out, or purporting to carry out, a direction given, or an order made, by the Court under section 50; or  (c) for any act done, or omitted to be done, by the Official Trustee:  (i) under Part IX; or  (ii) under the authority contained in a debt agreement to deal with the property of the person who is a party (as debtor) to the agreement.  (3) Nothing in subsection (2) affects any right that the Official Trustee has, apart from that subsection, to be reimbursed in respect of any personal liability referred to in that subsection or any other indemnity given to the Official Trustee in respect of any such liability.  (4) Where the Commonwealth makes a payment in accordance with the indemnity referred to in subsection (2), the Commonwealth has the same right to reimbursement in respect of the payment (including reimbursement under another indemnity given to the Official Trustee) as the Official Trustee would have if the Official Trustee had made the payment. 19  Duties etc. of trustee  (1) The duties of the trustee of the estate of a bankrupt include the following:  (a) notifying the bankrupt’s creditors of the bankruptcy;  (b) determining whether the estate includes property that can be realised to pay a dividend to creditors;  (c) reporting to creditors within 3 months of the date of the bankruptcy on the likelihood of creditors receiving a dividend before the end of the bankruptcy;  (e) determining whether the bankrupt has made a transfer of property that is void against the trustee;  (f) taking appropriate steps to recover property for the benefit of the estate;  (g) taking whatever action is practicable to try to ensure that the bankrupt discharges all of the bankrupt’s duties under this Act;  (h) considering whether the bankrupt has committed an offence against this Act;  (i) referring to the Inspector‑General or to relevant law enforcement authorities any evidence of an offence by the bankrupt against this Act;  (j) administering the estate as efficiently as possible by avoiding unnecessary expense;  (k) exercising powers and performing functions in a commercially sound way;  (l) the duties imposed on the trustee under Schedule 2.  (2) Where a person who became a bankrupt on a creditor’s petition is unable to prepare a proper statement of affairs, the trustee may employ, at the expense of the estate, a qualified person to assist in the preparation of the statement. 19AA  Power of investigation of bankrupt’s affairs  (1) The trustee of the estate of a bankrupt may investigate:  (a) the bankrupt’s conduct and examinable affairs; and  (b) books, accounts and records kept by the bankrupt; so far as they relate to the bankruptcy.