Bankruptcy (Fees and Remuneration) Determination 2015

Several key legal and accounting concepts structure the Determination. They are defined or operationalised in the text and determine how and who receives payment.

Amounts include GST, if payable. Section 1.06 states that the amount of a fee or remuneration specified in, or calculated in accordance with, the Determination includes GST if GST is payable on that fee or remuneration. The Determination also adopts the statutory definition of GST from the A New Tax System (Goods and Services Tax) Act 1999 (s 1.05).

Fees exempt from GST. The Determination groups many routine fees under Part 2, headed "Fees exempt from GST". Part 2 sets fixed-dollar fees for inspection of statements, registration and renewal of registration for trustees and debt agreement administrators, Official Receiver activity, debt agreement proposal lodgements, and a series of other discrete acts (s 2.01; s 2.02; s 2.03; ss 2.04-2.11). Despite the Part heading, s 1.06 requires the drafter to note that amounts include GST if GST is payable, creating a workability rule that links the Determination to GST law.

Fees not exempt from GST. Part 2A contains a single instance of a fee that is explicitly not exempt from GST, namely the $260 fee to publish a creditors’ meeting notice on the Australian Financial Security Authority website when the trustee or controlling trustee chooses that mode of publication (s 2A.01).

Remuneration and the realised balance. Part 3 is headed "Remuneration not exempt from GST" and prescribes remuneration payable to the Official Trustee for specific classes of work. Division 3.1 defines the "realised balance" concept for an estate or debtor at a time, as the lesser of two arithmetic quantities: amount realised less business costs and securities; or costs of administration plus debts (s 3.01(1)). The Determination carefully defines the components of those calculations, including “amount realised”, “business costs”, “costs of administration”, “debts” and “securities” (s 3.01). The realised balance acts as a cap on certain percentage-based remunerations and on the calculation where a 20% share applies.

Time-based unit charging. Several provisions fix a time-charging unit of 15 minutes, or part of 15 minutes, at $62.50 per unit for Official Trustee work in particular circumstances, for example where the Official Trustee takes control of property under a Court direction (s 3.03(2)), where work is transferred to or performed in place of a registered trustee or administrator (ss 3.04(2), 3.06(2), 3.08(2), 3.10(2)), where the Official Trustee acts as controlling trustee under Part X (s 3.07(1)), and in certain replacement or transfer scenarios in s 3.09(2). The use of the phrase "or part of 15 minutes" is operationally important because it causes rounding up to the next 15 minute unit for any fraction of that period.

Percentage-based remuneration. The Determination prescribes 20% of the value of compositions, schemes of arrangement, debt agreements and personal insolvency agreements when the Official Trustee performs those functions (ss 3.04(1), 3.06(1), 3.08(1)). The instrument makes separate provision where the Official Trustee transfers the work to a registered trustee, or is replaced, turning to the time-based $62.50 per 15 minutes model instead (see ss 3.04(2), 3.06(2), 3.08(2)).

Fixed plus percentage fees. For certain estate administrations, the Determination prescribes a fixed base fee plus a percentage of the realised balance. Where the Official Trustee acts as trustee of the estate of a bankrupt, or of a deceased person for whose estate an administration order has been made, remuneration is $4 000 plus 20% of the realised balance (s 3.09(1)). Similarly, remuneration for an annulled bankruptcy is $4 000 plus 20% of the realised balance (s 3.05).

Allocation of payment source. The Determination specifies the source from which remuneration is payable in several places. Where compositions, debt agreements or personal insolvency agreements are subject to Official Trustee work, payment may be out of the composition or scheme, or out of the estate, depending on whether time-based or percentage-based remuneration applies (ss 3.04(3), 3.06(3), 3.08(3)). The Determination repeatedly states that Official Trustee remuneration is payable out of the estate when the Official Trustee is acting as trustee or controlling trustee (ss 3.07(2), 3.08(3), 3.09(3)).

Exceptions and eligibility rules. The Determination contains eligibility-linked fee exceptions that affect who pays what amount, for example the $200 fee for lodgement of a debt agreement proposal is only payable by persons who, in the prior 12 months, did not receive any payments listed in the table in s 2.07(2). The detailed table lists various disaster recovery and relief payments under Commonwealth and state arrangements (s 2.07(2) and its table). Similarly, the $150 fee for requests for consent to leave Australia under Regulation 110(1) applies only to persons who did not receive those listed payments in the prior 12 months (s 2.11).

Agreement-based data fees. Section 2.03 authorises a $6.80 per item fee for items of information supplied from the Index to parties with an agreement with the Inspector-General. That provision is contingent on there being an agreement and applies to specified categories of items such as names of persons who are bankrupt, persons discharged, or persons whose discharge has a notice of objection lodged.

Definitions and cross-references. The Determination leverages statutory cross-references. It imports meanings from the Act and Regulations (s 1.05(2)). It uses defined terms in the Act such as "controlling trustee" and defines the Index by reference to the Regulations (s 1.05 notes). The instrument further uses statutory sections and divisions of the Act as the operational triggers for fees or remuneration, for example subsection 41(1) for bankruptcy notices (s 2.04), section 50 for taking control of property (s 3.03), and Divisions of Part IV for compositions and arrangements (s 3.04).

The Determination assigns financial consequences to a discrete set of actors operating under the Bankruptcy Act and the Regulations. The primary affected parties are the Official Trustee and Official Receivers, registered trustees, debt agreement administrators, persons applying for trustee or administrator registration or renewal, debtors, creditors and third parties seeking access to insolvency records.

Official Trustee. The Determination prescribes how the Official Trustee is remunerated for a range of activities, including acting as trustee of a bankrupt’s estate or of a deceased person’s administered estate (s 3.09), carrying on business or taking control of property following a Court direction under section 50 of the Act (s 3.03), acting as controlling trustee under Part X (s 3.07), administering debt agreements and personal insolvency agreements (ss 3.06 and 3.08), and performing work related to compositions or arrangements with creditors (s 3.04). The Official Trustee is the payee of those amounts, and the Determination specifies that remuneration is payable out of the estate in many instances (see ss 3.04(3), 3.07(2), 3.08(3), 3.09(3)).

Official Receiver and Inspector-General. The Determination fixes fees that Official Receivers may charge for issuing bankruptcy notices, for inspection services and for acts under the Regulations. For example, $470 is the fee to make an application to an Official Receiver to issue a bankruptcy notice (s 2.04). Section 2.02 differentiates fees for persons other than Official Receivers inspecting material in the Index ($15) and for Official Receivers inspecting material and giving extracts ($45). Section 2.03 contemplates arrangements where the Inspector-General provides items of information to other parties for $6.80 per item; those fees will fall on the party that contracts for and receives the information.

Registered trustees and debt agreement administrators. The Determination affects registered trustees and debt agreement administrators when work is transferred to or from the Official Trustee. Where the Official Trustee transfers work to, or is replaced by, a registered trustee, the Determination prescribes a time-based remuneration rate of $62.50 per 15 minutes for the Official Trustee’s work performed up to the point of transfer (see ss 3.04(2), 3.06(2), 3.08(2), 3.10). Conversely, if a registered trustee transfers work to the Official Trustee, the Official Trustee’s remuneration for performing that work is $62.50 per 15 minutes (s 3.10(2)). Registered trustees also interact with the Determination where trustees choose to publish creditors’ meeting notices on the AFSA website, for which the requesting trustee bears the $260 fee under s 2A.01.

Debtors and bankrupts. Individuals who are bankrupt, who present debt agreement proposals, or who seek leave to leave Australia, are directly affected. For example, a person presenting a debt agreement proposal may be required to pay $200 when lodging the proposal, subject to the eligibility exceptions in s 2.07(2) which exclude applicants who received specified disaster relief payments in the prior 12 months. Likewise, a person making a request for consent to leave Australia under Regulation 110(1) may pay $150, again subject to the same exception table (s 2.11). Debtors also face the consequence that trustee remuneration, when payable out of the estate, reduces the pool available for creditors (see ss 3.04(3), 3.09(3)).

Creditors. Creditors are indirectly affected because trustee remuneration and fees are frequently payable out of the estate, thereby affecting available distributions. In composition and scheme situations, where the Official Trustee performs the work, the remuneration is payable out of the composition or scheme (s 3.04(3)(a)). For administrations of estates, remuneration is payable out of the estate (s 3.09(3)). Creditors calling or convening meetings may also be affected by whether trustees choose to publish meeting notices on AFSA’s website, which incurs a $260 fee if requested by the trustee or controlling trustee (s 2A.01).

Third parties and government agencies. Parties that contract with the Inspector‑General to receive Index items will pay $6.80 per item (s 2.03). The Determination also differentiates indexing inspection fees for Official Receivers and other persons (s 2.02). Corporations, entities and government departments engaging in data sharing will be the payers under s 2.03 when they obtain items of information pursuant to a formal agreement.

Trustee applicants. Persons applying for registration as a trustee or debt agreement administrator, or seeking renewal or extension of registration, face fee liabilities under s 2.01 (items 6-11). The table in s 2.01 sets amounts such as $2 200 for initial registration as a trustee, $1 300 for registration as a trustee (presumably annual registration in the itemised scheme), and $1 700 for extensions or renewals where specified.

AFSA as administrator. The Determination presumes administrative operation by the AFSA apparatus and the Official Trustee, with collection, accounting and disbursement functions falling to those offices. While the Determination fixes monetary entries and payment sources, it leaves administrative and collection practices to the operational bodies referenced in the Act and Regulations. Section 1.05 imports definitions and the Regulations, and the endnotes record the Determination’s registration and amendments (Endnotes 3 and 4).

Overall, the Determination maps specific monetary outcomes to defined actions under the Act and the Regulations and allocates the incidence of those amounts across a bounded set of actors: Official Trustee, Official Receivers, registered trustees, administrators, debtors, creditors and data recipients.

The Determination is a schedule of fees and remuneration rather than a statute that creates duties of conduct. Nevertheless, it imposes monetary obligations and creates enforceable entitlements to be paid from specific funds. The key duties and rights are best described as monetary entitlements and payment directions linked to Acts and Regulations.

Right to remuneration by the Official Trustee. The Official Trustee is entitled to receive the remuneration amounts specified in Part 3 for those categories of work the Determination covers. For instance, where the Official Trustee acts as trustee of an estate of a bankrupt, or of a deceased person with an administration order, the Determination entitles the Official Trustee to $4 000 plus 20% of the realised balance (s 3.09(1)). Where a bankruptcy is annulled under sections 153A or 153B of the Act, the Official Trustee is entitled to $4 000 plus 20% of the realised balance for acting as trustee in that bankruptcy (s 3.05).

Right to time-based charges. For specified activities, the Official Trustee has a right to remuneration calculated at $62.50 per 15 minutes, or part of 15 minutes. This right applies when the Official Trustee takes control of property or carries on business under a Court direction (s 3.03(2)), when the Official Trustee acts as controlling trustee (s 3.07(1)), and in replacement or transfer scenarios where work is performed by the Official Trustee in place of a registered trustee or debt agreement administrator (s 3.10(2)). The Determination establishes this as a routine billing unit.

Payment source duties. The Determination assigns the source from which fees or remuneration should be paid in several places, creating an operational duty for trustees and administrators to account for these payments accordingly. For example, remuneration payable to the Official Trustee for work under s 3.04(1) (compositions and schemes accepted by creditors) is payable out of the composition or scheme, and where remuneration is time‑based under s 3.04(2) it is payable out of the estate (s 3.04(3)). Remuneration for work performed under ss 3.03, 3.04 or 3.07 is specified as being in addition to any remuneration payable under s 3.09(1) (s 3.11), which imposes an accounting layering requirement.

Duty to pay specified fees. The Determination establishes specified fees for actions that parties may request or perform under the Act or Regulations. Persons who apply for an Official Receiver to issue a bankruptcy notice are required to pay $470 for that application (s 2.04). Persons lodging debt agreement proposals pay $200 if they do not meet the exceptions in s 2.07(2). Applicants for registration as trustees or debt agreement administrators have fixed fee liabilities for registration and renewal (s 2.01 items 6-11).

Right to inspection upon payment. Individuals have an enforceable right to inspect specified documents upon payment of the prescribed fee. An inspection of a statement of affairs filed by a bankrupt is set at $45 (s 2.01 item 1). Similar rights attach to inspection of transcripts and other documents listed in s 2.01 items 2-5 and 12-15. The Determination specifies the monetary condition for access.

Data‑supply rights and duties. Where the Inspector‑General has an agreement with a third party to supply items of information entered in the Index, the Inspector‑General is entitled to a fee of $6.80 for each item provided (s 2.03). That creates a fee entitlement for the Inspector‑General and an obligation for the data-recipient to pay when the agreement provides.

Choice and payment for publication. The trustee or controlling trustee has the right to request publication of a creditors’ meeting notice on AFSA’s website; that right is conditional on payment of $260 (s 2A.01). This is a discrete commercial choice for trustees in relation to meeting publicity.

GST treatment. Section 1.06 mandates that the amounts set out in the Determination include GST if GST is payable on the fee or remuneration. That places a compliance duty on payers and recipients to account for GST consequences in how the fee is invoiced and reported.

Calculation duty for realised balance. The Determination creates a calculative duty by defining "realised balance" at s 3.01. Practitioners must calculate the realised balance using the lesser of two formulae, and apply the detailed definitions of their components, such as amount realised, business costs, costs of administration, debts and securities. The realised balance then feeds into percentage-based remuneration computations under ss 3.05 and 3.09, among others.

No new criminal sanctions in the Determination text. The Determination itself does not create criminal offences or penalties; it creates monetary rates and payment directions. The rights and duties it creates are therefore largely financial and administrative entitlements and obligations enforceable by the administering agencies within the Act’s enforcement architecture.

In aggregate, the Determination converts statutory triggers for action under the Bankruptcy Act into precise fee and remuneration entitlements, and it directs particular payment sources, for example out of the estate or out of a composition, thereby affecting the accounting and distribution obligations of trustees and administrators.

The Determination lists fees and remuneration and sets sources of payment, but it does not itself prescribe criminal penalties or novel enforcement mechanisms in the text provided. It operates as a monetary schedule under subsection 316(1) of the Bankruptcy Act and relies on the enforcement and administrative mechanisms in the Act and the Regulations for collection and compliance.

Absence of penalty provisions in this instrument. A careful reading shows no provision in the Determination that creates offences, pecuniary penalties, or enforcement powers specific to non-payment of the fees it sets. The instrument sets amounts and specifies payment sources, but does not specify sanctions for non-payment within its own text.

Collection and enforcement are left to statutory machinery in the Act and the Regulations. Fees and remuneration that the Determination makes payable out of an estate or composition will, in practice, be collected through trustee and Official Trustee accounting and distribution processes. The Determination makes this explicit where it states remuneration is "payable out of the estate" or "payable out of the composition or scheme of arrangement" in sections such as 3.04(3), 3.07(2), 3.08(3) and 3.09(3). This creates an administrative mechanism for enforcement: remuneration and fees are to be drawn from estate or composition funds before distributions. That is a form of enforcement by priority and allocation rather than by criminal sanction.

Administrative enforcement for third‑party fees. For fees imposed on external applicants or requestors, such as the $470 application fee to issue a bankruptcy notice (s 2.04), the Determination does not specify the consequences for failing to pay. Collection practice will be operationalised by Official Receivers and AFSA under their statutory powers. Non-payment could lead to refusal to provide the service or denial of the requested action, but the Determination itself does not state those consequences explicitly.

Tax enforcement mechanisms remain external. Section 1.06 refers to GST inclusion where GST is payable, linking the Determination to the GST Act. The Determination does not itself direct GST collection processes, and GST compliance and enforcement remain governed by the A New Tax System (Goods and Services Tax) Act 1999 and the Australian Taxation Office processes. The Determination’s inclusion of the GST item means practitioners must account for GST where applicable, but any penalty for incorrect GST treatment would arise under tax law, not under the Determination.

Practical enforcement through accounting. The Determination’s specification of payment sources creates an accounting enforcement mechanism. For example, where the Official Trustee’s remuneration is payable out of the estate or composition, the trustee must account for those charges prior to distribution. This gives effect to the fee entitlements by precedence in estate accounting, and non-payment will manifest as a shortfall in distributions or as an accounting requirement to satisfy trustee remuneration from realised assets.

Transitional and historical collection rules. Section 1.04 preserves certain charging rules from the 2010 Determination for bankruptcies dated before 1 December 2010 (s 1.04). This means collection and taxation of certain claims for remuneration for older bankruptcies continue to be governed by the previous Determination’s charging rules, which potentially affects the enforcement context for legacy estates.

In short, the Determination establishes monetary entitlements and directs payment sources, and enforcement for those entitlements depends on the Act and ordinary administrative and tax enforcement regimes. The Determination itself does not add novel penal sanctions.

The Determination is expressly made under subsection 316(1) of the Bankruptcy Act 1966 and is framed to operate within the Act and the Bankruptcy Regulations. It also interacts with GST law by reference, and it makes specific operational linkages to statutory provisions that trigger fees or remuneration.

Made under the Act. The Determination is a statutory instrument that derives its power from the Bankruptcy Act 1966, and its items are positioned as monetary manifestations of acts and powers conferred by the Act, for example applications under subsection 41(1) for bankruptcy notices (s 2.04), acts under Part X when the Official Trustee is controlling trustee (s 3.07), and taking control of property under section 50 (s 3.03). The Determination therefore functions as the price list for regulatory services and trustee remuneration authorised by the Act.

Cross-reference to the Regulations. Section 1.05 defines "Regulations" as the Bankruptcy Regulations 2021 and refers to the National Personal Insolvency Index as established under section 73 of the Regulations (s 1.05 note). Several fees and eligibility conditions connect to the Regulations, for example requests for consent to leave Australia mentioned in Regulation 110(1) (s 2.11), and inspection and extracts under subsection 84(2) and (3) of the Regulations (s 2.02). This makes the Determination dependent on the content and structure of the Regulations for its operational application.

GST Act integration. Section 1.05 defines GST by reference to section 195‑1 of the A New Tax System (Goods and Services Tax) Act 1999, and s 1.06 provides that amounts specified include GST if GST is payable. That creates an intersection with tax law: whether GST is payable on a given fee or remuneration depends on tax law, and the Determination’s amounts are to be taken as inclusive amounts where GST applies. Practitioners must therefore apply GST law to determine if the allocation in a particular case is GST-free or GST-inclusive.

Index and data law. Section 2.02 and 2.03 interact with the Regulations’ provisions for the Index and with any data sharing agreements. The Determination contemplates agreements between the Inspector‑General and other parties under which Index items are provided at $6.80 per item (s 2.03), and it draws on the Index established under section 73 of the Regulations (s 1.05 note). Thus data supply obligations and privacy or administrative law constraints arising from the Regulations will affect how the $6.80 fee is collected and applied.

Interaction with prior Determination. Section 1.04 preserves sections 2.08 and 2.09 of the Bankruptcy (Fees and Remuneration) Determination 2010 for certain bankruptcies dated before 1 December 2010. This means earlier rules governing taxation of remuneration and bills of costs continue to have effect for legacy cases, and practitioners must apply the correct Determination depending on the date of bankruptcy.

Effect on distribution priorities under the Act. By specifying that remuneration is payable out of the estate or composition (see ss 3.04(3), 3.07(2), 3.09(3)), the Determination interacts with the Act’s scheme for priority of payments in insolvency. Although the Determination does not itself re-prioritise statutory classes of creditors, by directing payment from the estate it affects the available funds for distribution in accordance with the Act. Parties undertaking distribution calculations must add these remunerations as administration charges when determining amounts available to creditors under the Act.

Administrative law and procedural interactions. The Determination leaves procedural matters such as invoicing, the timing of payments, and collection methods to the administering bodies. Those methods will be subject to administrative law controls, and the Determination’s requirements must be applied consistently with other statutory and administrative obligations, including any record‑keeping and disclosure requirements in the Act and the Regulations.

Tax law and income recognition. For the Official Trustee and for entities receiving fees, the Determination’s inclusion of GST where payable requires attention to tax treatment of receipts. If a fee is GST-free, s 1.06 recognises that GST will not be payable and the amount remains as stated. If GST is payable, the amounts are inclusive, which has implications for how the remuneration is invoiced and how input tax credits are claimed under GST law.

In sum, the Determination is embedded in a lattice of the Bankruptcy Act, the Bankruptcy Regulations, the GST Act and the administrative arrangements of AFSA and the Inspector‑General. Practitioners must apply it within that statutory context and ensure that calculations, GST treatment and accounting for payments follow the applicable Acts and Regulations.

The compilation and endnotes included in the instrument provide a concise amendment history. The Determination was originally registered as the Bankruptcy (Fees and Remuneration) Determination 2015 and commenced on 1 July 2015, as recorded in the legislation history (Endnote 3). It has been amended by a consequential Determination in 2021.

Key registration and commencement entries. Endnote 3 records the original registration details as "Bankruptcy (Fees and Remuneration) Determination 2015, registered 13 May 2015, commenced 1 July 2015 (s 1.02)". The Determination was subsequently amended by the "Bankruptcy (Fees and Remuneration) Amendment (Consequential Amendments) Determination 2021", registered 19 March 2021 and commencing 1 April 2021 (Endnote 3).

Provision-level amendments. Endnote 4 lists several specific provisions that were amended by the 2021 Determination (F2021L00265). The provisions identified in Endnote 4 as amended include s 1.04, s 1.05, s 2.02, s 2.05 and s 2.11. The endnote does not provide the text of the amendments, but it signals where contemporary practice differs from the 2015 original. Practitioners should therefore note that the content of those sections reflects the 2021 amendments as compiled in the document.

Compilation date and registration. The document is a compilation effective up to 1 April 2021, with compilation number 1 and a registration date of 10 May 2021, as noted in the header and the compilation notes. The endnotes provide the amending law references included in the compilation.

Transitional carryover. Section 1.04 is retained as a transitional provision preserving parts of the 2010 Determination for bankruptcies dated before 1 December 2010. Endnote 4 lists s 1.04 as amended by F2021L00265. The text retains the transitional effect that the 2010 Determination’s sections 2.08 and 2.09 continue to apply for bankruptcies before that date, and notes the prior fee of $50 per 15 minutes under those sections (s 1.04).

Editorial footnotes and misdescription rules. The endnotes contain standard material about editorial changes and the treatment of misdescribed amendments under the Legislation Act 2003. Endnote 1 explains that editorial changes are permitted by First Parliamentary Counsel where they do not change the effect of the law, and Endnote 2 provides an abbreviation key. Endnote 3 and 4 together collate the formal legislation history and the provision-level amendment history.

Practical implication of amendment history. The amendment history shows that the Determination has been adjusted after its original making, and that specified clauses were amended by the 2021 consequential Determination. Those amendments are reflected in the compiled text. For practitioners, it is important to consult the compiled instrument or the legislation register to ensure they are applying the version of the Determination that was in force at the relevant time, given the transitional preservation of older Determination provisions for pre-2010 bankruptcies (s 1.04).

No further amendment detail in the text. The endnotes identify which provisions were amended and by which instrument, but do not supply the drafting history beyond those references. Absent the original instruments, the compiled text should be treated as authoritative for the version current to the compilation date.

The compilation provided does not include any judicial decisions or litigation history relating to the Determination. The Determination text and its endnotes do not cite cases, and the "Litigation history" heading in the required output must be treated on the basis of the statutory text and endnotes alone.

No cases named in the instrument. The Determination does not reference any judicial authority, nor does it cite any decisions interpreting it. The endnotes list only legislative instruments and amendment history. Consequently, there is no litigation history recorded within the material supplied.

Practical consequence of absence of reported litigation. The absence of litigation in the text means there is no corpus of decisions available within this compilation to guide contested questions of interpretation, for example over the meaning of "realised balance" in specific contexts, or disputes about whether particular fees are GST-exempt. That does not mean disputes cannot arise or that none have arisen in courts; it simply means that the Determination compilation does not record any such cases. Practitioners requiring precedential interpretation should consult court databases or AFSA guidance outside this Determination.

Areas where litigation might arise. While no cases are recorded, the Determination’s structure sets out potential points of disagreement that could be litigated in future or in other forums, for example:

• interpretation of "amount realised" and the treatment of specific forms of payment when calculating the realised balance (see s 3.01);
• whether particular fees are GST‑free or attract GST, given the statutory link to the GST Act and s 1.06; and
• allocation of remuneration and whether a particular activity falls within the percentage-based or the time-based charging model, particularly in transfer or replacement scenarios (see ss 3.04-3.10).

No litigation record of administrative collection or refusal. The Determination does not detail whether AFSA or Official Receivers have exercised any formal enforcement steps that have been litigated. Any administrative decisions refusing to provide a service where fees were unpaid, or disputes about the legitimacy of claimed remuneration, would be matters for administrative review or court proceedings, but none are recorded here.

Recommendation. In the absence of recorded litigation in the Determination itself, practitioners should treat interpretation questions as requiring care and should consult contemporaneous guidance from AFSA, the Inspector‑General, and the Bankruptcy Regulations, as well as up-to-date databases of judicial decisions when advising clients on contentious points.

The Determination contains several technical features and drafting choices that create traps for the unwary practitioner, accountant or trustee. The following are practical issues that arise directly from the text and that deserve careful attention.

GST labelling and section 1.06 interaction. Part 2 is headlined "Fees exempt from GST", while Part 2A and Part 3 are headed as not exempt. Section 1.06, however, states that amounts include GST if GST is payable on the fee or remuneration. Practitioners must therefore apply the GST Act’s substantive tests to determine whether GST is payable and not take the Part headings alone as dispositive. The Determination’s amounts are inclusive if GST applies, which affects invoice rounding and net receivable calculations.

Realised balance is a cap and a calculation trap. Section 3.01 defines realised balance as the lesser of two multi-component calculations. Small differences in how "amount realised", "business costs", "costs of administration", "debts" and "securities" are characterised materially change the computed realised balance and hence the base for percentage remuneration. For example, "amount realised" excludes amounts paid to the trustee by creditors under an indemnity for costs or under section 50 (s 3.01), which can reduce the numerator in that limb. The practitioner must follow the definitions in s 3.01 strictly; otherwise, a miscalculation could understate or overstate the remuneration cap.

15‑minute billing increments cause rounding-up. Where the Determination prescribes $62.50 per 15 minutes or part of 15 minutes (for example s 3.03(2)), fractional periods are billable as full units. This means a 1 minute task is billed as a full 15 minute unit. Timekeeping systems and invoicing processes must be configured to the specified increment to avoid disputes about rounding.

Transfers between Official Trustee and registered trustees change remuneration basis. If work is performed by the Official Trustee in place of a registered trustee or administrator, the remuneration is time‑based at $62.50 per 15 minutes (s 3.10(2)). Conversely, if the Official Trustee performs the whole composition or debt agreement administration, the entitlement may be 20% of the value (ss 3.04(1), 3.06(1)). Failure to identify the point of transfer or replacement will change whether a percentage or time-based rate applies, with material consequences.

Source of payment affects creditor outcomes. Remuneration payable "out of the estate" or "out of the composition or scheme" (see ss 3.04(3), 3.07(2), 3.08(3), 3.09(3)) is charged ahead of distributions. Trustees and creditors should calculate distributions net of these charges. Users must not assume that a trustee’s fees are an external cost; they often reduce the estate available to creditors.

Eligibility exceptions for debt agreement and leave requests. The $200 fee for debt agreement proposal lodgement (s 2.07(1)) and the $150 fee for requests under Regulation 110(1) (s 2.11(1)) are not payable by persons who received specific disaster relief payments in the prior 12 months (s 2.07(2) and s 2.11(2) refer to the same table). Practitioners must check the applicant’s receipt of any listed payments in the detailed table including Commonwealth and state disaster relief payments, otherwise an incorrect fee may be charged.

Publication fee is elective and its GST status is explicit. Section 2A.01 applies only if a trustee or controlling trustee chooses to publish a creditors’ meeting notice on AFSA’s website and requests AFSA to do so. The fee is $260 (s 2A.01(2)) and Part 2A is headed "Fees not exempt from GST", so expect GST consequences. Trustees must decide whether the convenience of website publication warrants the fee and must budget GST accordingly.

$6.80 per item for Index data applies only under agreement. Section 2.03 applies where there is an agreement between the Inspector‑General and another party to provide items of information from the Index. That means general access to Index information through statutory channels may be priced differently; s 2.02 prescribes $45 and $15 for other inspection contexts, while s 2.03 applies only where a data-sharing agreement exists. Ignoring the contractual prerequisite could lead to misapplication of the fee schedule.

Transitional rules for legacy bankruptcies. Section 1.04 preserves parts of the 2010 Determination for bankruptcies dated before 1 December 2010, including a historical $50 per 15 minute rule for taxation of claims for remuneration and bills of costs under the older Determination. Practitioners dealing with legacy matters must identify which Determination applies by reference to the date of bankruptcy.

"Amounts include GST" may affect net receipts for Official Trustee remuneration. Since the Determination sets specific dollar amounts and states those amounts include GST if GST is payable (s 1.06), Official Trustees receiving the specified dollar may need to allocate the GST component to the tax authority when GST is payable, leaving a reduced net for estate administration. Trustees should ensure they understand whether the amounts are GST-inclusive and whether they can claim input tax credits.

No enforcement details in the Determination. The Determination fixes fees but does not provide collection or penalty mechanics. Practitioners must therefore rely on administrative practice under the Act and Regulations to obtain payments, and should not expect the Determination to authorise coercive recovery steps beyond the ordinary statutory powers.

Complying with the Determination requires operational discipline in fee collection, accurate application of calculation rules and attention to GST treatment. The following checklist and practical steps are grounded in the Determination’s text and identify actions trustees, Official Receivers, administrators and practitioners should take.

1. Identify the triggering Act or Regulation provision. Before applying a fee or remuneration rule, confirm which provision of the Act or Regulations gives rise to the transaction. The Determination ties fees to statutory triggers, for example subsection 41(1) for bankruptcy notice applications (s 2.04), section 50 actions for taking control of property (s 3.03), Division 6 Part IV compositions (s 3.04), and Part X controlling trustee work (s 3.07). Only apply the fee tied to the relevant statutory action.

2. Determine whether the fee is in Part 2, Part 2A or Part 3. Part 2 lists many fees that the Determination labels "Fees exempt from GST" but s 1.06 requires checking GST law. Part 2A lists fees not exempt from GST (specifically s 2A.01) and Part 3 prescribes remuneration (Division 3.2) with GST implications. Use the Part and section references to select the applicable dollar amount.

3. Apply GST rules before invoicing. Section 1.06 states amounts include GST if GST is payable. Verify whether GST applies under the GST Act to the particular fee or remuneration item. If GST is payable, ensure that the invoice treats the specified amount as GST-inclusive and that the GST component is separated for reporting and remittance. If GST is not payable, the amount stands as stated.

4. Timekeeping and billing unit alignment. For time‑based remuneration, record time in 15 minute increments, and bill any part of a 15 minute period as a full unit as required by the Determination (see s 3.03(2) and similar provisions). Configure timesheets and billing software to reflect $62.50 per 15 minutes, and retain contemporaneous records supporting the time charges.

5. Calculate realised balance carefully. When percentage-based remuneration applies, compute the realised balance in accordance with s 3.01. That requires assembling:

   • total amount realised or brought to credit, excluding amounts paid under indemnities for costs or s 50 receipts;
   • business costs paid by the Official Trustee in carrying on business up to the time;
   • proper costs of administration excluding realisation charges and Official Trustee remuneration under the Determination;
   • taxed costs of the petitioning creditor and proved or provable debts including pre-bankruptcy interest, and, if interest-bearing, post-bankruptcy interest; and
   • amounts paid to secured creditors in relation to their securities. Document each component and the arithmetic used to establish the realised balance.

6. Apply the right remuneration model on transfer. If work is transferred between the Official Trustee and a registered trustee or administrator, determine whether the percentage model or the time-based model applies. For example, if the Official Trustee starts a composition or debt agreement and completes it, 20% of the value applies (ss 3.04(1), 3.06(1)). If the Official Trustee performs work in place of a registered trustee after transfer, $62.50 per 15 minutes applies (s 3.10(2)). Record the date and scope of transfer or replacement to support the applicable charging method.

7. Deduct remuneration from the correct payment source. Observe the Determination’s direction about the source of payment: remuneration is payable out of the composition or scheme when it pertains to such work (s 3.04(3)(a)), or out of the estate where indicated (ss 3.04(3)(b), 3.07(2), 3.08(3), 3.09(3)). Ensure estate accounting sets aside funds to meet the Official Trustee’s remuneration before distributions to creditors.

8. Apply eligibility exceptions for small fees. For debt agreement proposals and requests for leave to leave Australia, check whether the applicant received any of the payments listed in s 2.07(2) and s 2.11(2) in the prior 12 months. If they did, the $200 or $150 fee may not apply. Collect documentary proof of receipt or non-receipt of the listed payments.

9. For Index data and publication requests, use the correct contracting channel. Section 2.03 requires an agreement between the Inspector‑General and the data recipient for the $6.80 per item fee to apply. Do not assume ad hoc data supply is covered. For publication of creditors’ meeting notices, the trustee or controlling trustee must request AFSA to publish and pay $260 (s 2A.01), and must be prepared to pay GST where applicable.

10. Keep transparent records for audit and tax. Maintain invoices that show the specified amount and clearly state whether that amount is GST-inclusive. For Official Trustee remuneration drawn from estates, keep ledger entries showing deduction and payment of the remuneration, and retain supporting calculations for the realised balance.

11. Consult AFSA and the Regulations for administrative procedure. For collection processes, timing of payments and procedural steps (for example, submitting an application to issue a bankruptcy notice under s 41(1)), practitioners should follow AFSA operational guidelines and the Bankruptcy Regulations 2021 as referenced at s 1.05.

12. Check which Determination applies for older bankruptcies. For bankruptcies dated before 1 December 2010, sections 2.08 and 2.09 of the 2010 Determination continue to apply in circumstances described in s 1.04. Confirm which Determination applies by reference to the date of bankruptcy before applying charging rules.

13. Update systems on amendment dates. The Determination’s endnotes show amendments in 2021. Ensure your fee schedules, billing systems and client letters reflect the compiled text current to 1 April 2021 and any later amendments by consulting the legislation register for newer versions.

Following these steps will align practice with the deterministic charging framework the Determination establishes. The central operational tasks are correctly identifying statutory triggers, applying the correct fee box, calculating realised balances where applicable, aligning GST treatment, and keeping contemporaneous records to support time charges and transfers.