133Subsection 277B(2) (after table item 2)

133 Subsection 277B(2) (after table item 2) | 2A | subsection 74(2) | 1 penalty unit | | --- | ---------------- | -------------- | ## 154A Interpretation #### 154A Interpretation In this Part, in its application to Part X, a reference to a registered trustee includes a reference to a controlling trustee and a trustee of a personal insolvency agreement. 18 Section 156A 19 Subsection 157(1) (a) the Official Trustee is: (i) under section 188 or 192, the controlling trustee in relation to a debtor; or (ii) under Part X, the trustee of a personal insolvency agreement; and (b) the creditors wish to appoint, in place of the Official Trustee: (i) a registered trustee or a solicitor as the controlling trustee; or (ii) a registered trustee as the trustee of the personal insolvency agreement; the creditors may do so by resolution at a meeting of creditors. 20 Section 158 ## 158 Appointment of 2 or more controlling trustees #### 158 Appointment of 2 or more controlling trustees The creditors may appoint 2 or more controlling trustees jointly, or jointly and severally. 21 Section 159 22 Section 160 ## 160 Vacancy in position of trustee—Official Trustee to act #### 160 Vacancy in position of trustee—Official Trustee to act If at any time there is no controlling trustee in relation to a debtor, or no trustee of a personal insolvency agreement under Part X, the Official Trustee is to act as the trustee. 23 After subsection 161(1) (1A) This section does not apply in relation to a trustee of a personal insolvency agreement. 24 Section 180 Omit “trustee of an estate”, substitute “trustee, other than controlling trustee, under Part X”. 25 Subsection 181A(1) (1) The current controlling trustee or the current trustee of a personal insolvency agreement may, with the written consent of another trustee (either a registered trustee or the Official Trustee), nominate the other trustee as the new trustee. 26 Subsection 181A(4) (4) If no creditor lodges a written notice of objection with the current trustee at least 2 days before the specified date, the new trustee replaces the current trustee on the date specified in the notice. Part 3—Modifications of Division 1 of Part V of the Act—debtors whose property is subject to control under Division 2 of Part X of the Act Note: See section 64. 27 Section 77F ## 77F Allowances and expenses to be paid out of debtor’s property subject to control under Division 2 of Part X #### 77F Allowances and expenses to be paid out of debtor’s property subject to control under Division 2 of Part X If the evidence that a person gives, or the books that a person produces, under section 77C, relate to matters concerning the property of a debtor that is subject to control under Division 2 of Part X, any amount payable to the person under section 77D or 77E is to be paid out of that property. 28 Subsection 81(1) (1) Where a person (the relevant person) becomes a debtor whose property is subject to control under Division 2 of Part X, the Court or the Registrar may at any time (whether before or after control over that property has ended), on the application of: (a) a person (a creditor) who has or had a debt that would be provable if the debtor were a bankrupt; or (b) the controlling trustee; or summon the relevant person for examination in relation to the property that is subject to control under Division 2 of Part X. Part 4—Modification under subsection 231(1) of the Act—personal insolvency agreements Note: See subsection 69(1). 29 Section 77F ## 77F Allowances and expenses to be paid out of debtor’s property subject to personal insolvency agreement #### 77F Allowances and expenses to be paid out of debtor’s property subject to personal insolvency agreement If the evidence that a person gives, or the books that a person produces, under section 77C, relate to matters concerning the property of a debtor that is subject to a personal insolvency agreement, any amount payable to the person under section 77D or 77E is to be paid out of that property. Part 5—Modifications under subsection 231(3) of the Act—personal insolvency agreements Note: See subsection 69(2). 30 Subsection 113(1) Omit “presentation of a petition on which, or by virtue of the presentation of which, a person became a bankrupt”, substitute “making of a sequestration order”. 31 Subsection 113(1) Omit “or, in the case of a debtor’s petition, the presentation of the petition”. 32 At the end of section 133 Add: (14) This section does not apply in relation to a personal insolvency agreement. 33 After paragraph 134(1)(b) (ba) carry on a business of the debtor in accordance with an authorisation given under subsection (4); 34 At the end of section 134 Add: (4) If a personal insolvency agreement provides for the business of the debtor to be assigned to the trustee, the agreement may: (a) authorise the trustee to carry on a business of a debtor; and (b) specify the period during which, and the conditions (if any) subject to which, the trustee may carry on the business. (5) The creditors may vary or terminate an authority under subsection (4) by passing a special resolution to that effect at a meeting. (6) This section extends only in relation to property of the debtor that is subject to the personal insolvency agreement. 35 Subsection 136(1) Omit “Where any property of the bankrupt is subject to a mortgage”, substitute “Where any property of the debtor that is subject to the personal insolvency agreement is also subject to a mortgage”. 36 Subsection 137(1) Omit “Where goods of a bankrupt”, substitute “Where goods of a debtor that are subject to a personal insolvency agreement”. 37 Paragraphs 138(1)(a) and (b) (a) the property of a debtor that is subject to a personal insolvency agreement includes rights in respect of industrial property; and (b) the debtor is liable to pay royalties or a share of profits to a person in respect of those rights; 38 Paragraphs 138(1)(c) and (d) Omit “the bankrupt”, substitute “the debtor”. 39 Paragraphs 139(1)(a) and (b) (a) the trustee has seized or disposed of any goods in the possession or on the premises of a debtor that are subject to a personal insolvency agreement without notice of any claim by any person in respect of those goods; and (b) the goods were not, at the date of execution of the personal insolvency agreement, the property of the debtor; 40 Subsection 139(2) Omit all the words after “in respect of property”, substitute: that is subject to the personal insolvency agreement, being rates, land tax or municipal or other statutory charges that fall due on or after the date of execution of the personal insolvency agreement, except to the extent, if any, of the rents and profits received by the trustee in respect of that property on or after the date of execution of the personal insolvency agreement 41 Subsection 139(3) (3) Where the trustee of a personal insolvency agreement carries on a business previously carried on by the debtor, the trustee is not personally liable for any payment in respect of long service leave or extended leave: (a) for which the debtor was liable; or (b) to which a person employed by the trustee in the person’s capacity as trustee of the personal insolvency agreement, or the legal personal representative of such a person, becomes entitled after the date of execution of the personal insolvency agreement. 42 Subsection 139(4) Omit “the estate of a bankrupt”, substitute “a personal insolvency agreement”. 43 Section 139ZJ Before “In”, insert “(1)”. 44 At the end of section 139ZJ Add: (2) In sections 139ZK, 139ZL and 139ZP, a reference to a bankrupt is to be read as a reference to a debtor. (3) In subsection (2): > debtor means a person who has executed a personal insolvency agreement. 45 Paragraphs 139ZK(1)(e) and (f) Omit “bankruptcy”, substitute “personal insolvency agreement”. 46 Subsection 139ZL(1) Omit “If a bankrupt is liable to pay to the trustee a contribution under section 139P or 139Q, the Official Receiver”, substitute “If a debtor is liable to pay a specified amount of the debtor’s income to the trustee in accordance with a personal insolvency agreement, the Official Receiver”. 47 Subsection 139ZL(1) Omit “make the contribution”, substitute “pay that amount”. 48 Paragraphs 139ZL(3)(a) and (b) Omit “the contribution”, substitute “the amount of income”. 49 Subsection 139ZQ(1) Omit “bankrupt under Division 3”, substitute “personal insolvency agreement because of the application of any of sections 120 to 125”. 50 Subsection 139ZR(3) Omit “Division 3”, substitute “any of sections 120 to 125”. Schedule 4—Modifications under Part XI of the Act—administration of estates of deceased persons Note: See section 71. 1 Section 49 Omit “debtor”, substitute “deceased debtor’s estate”. 2 Subsection 50(1) Omit “debtor, but before the debtor becomes”, substitute “debtor who dies after presentation of a creditor’s petition but before becoming”. 3 Paragraph 50(1)(a) 4 Paragraph 50(1)(b) Omit “property”, substitute “estate”. 5 Paragraph 50(1A)(c) Omit “debtor”, substitute “deceased debtor’s legal personal representative”. 6 Subsection 50(1B) 7 Subsection 50(2) Omit “debtor” (first occurring), substitute “legal personal representative of the deceased debtor”. 8 Subsection 50(2) Before “debtor” (second and third occurring), insert “deceased debtor”. 9 Subsection 50(3) Omit “debtor and the debtor’s”, substitute “deceased debtor and the deceased debtor’s”. 10 Subsection 50(4) Before “debtor” (wherever occurring), insert “deceased”. 11 Subsection 50(4) 12 Paragraph 50(5)(a) Omit “a sequestration order had been made against the debtor”, substitute “an order had been made for the administration of the estate of the deceased debtor”. 13 Paragraph 50(5)(c) Omit “debtor’s bankruptcy if a sequestration”, substitute “administration of the deceased debtor’s estate if an”. 14 At the end of section 50 Add: (6) In this section: 15 Subsection 73(1) 16 Subsection 73(1) Omit “his or her” (wherever occurring), substitute “the deceased debtor’s”. 17 At the end of section 73 Add: (2) In this section: 18 Section 74 ## 74 Annulment of administration #### 74 Annulment of administration (1) If a proposal to annul the administration of an estate is accepted by a special resolution of creditors at a meeting held in accordance with the Insolvency Practice Rules, the administration of the estate is annulled, by force of this subsection, on the day the special resolution is passed. (2) Within 2 business days after that day, the trustee of the estate must give to the Official Receiver a certificate, signed by the trustee, of the following matters: (a) the name of the estate; (b) the number of the administration; (c) the terms and date of the special resolution. Penalty: 5 penalty units. > Note: See also section 277B (about infringement notices). (4) The Official Receiver must enter the day on which the administration of the estate is annulled in the National Personal Insolvency Index. 19 Subsections 74A(2) and (3) Omit “debtor”, substitute “legal personal representative of the deceased debtor”. 20 At the end of section 74A Add: (8) In this section: 21 Subsection 75(2) 22 Subsection 81(1) (1) At any time during or after the administration under Part XI of the estate of a deceased debtor (the relevant person), the Court may, on the application of: (a) a person (a creditor) who has or had a debt provable in the administration; or (b) the trustee of the estate of the relevant person; or summon an examinable person in relation to the estate of the relevant person for examination in relation to the administration. (1AA) For the purposes of subsection (1): > examinable person, in relation to an estate of the relevant person, means: (a) a person who is believed to be indebted to the estate; or (b) a person who may be able to give information about the relevant person or the examinable affairs of the relevant person; or (c) a person who has possession of books that may relate to: (iii) the estate; or (d) the executor under the relevant person’s will; or (e) the administrator under letters of administration or court order; of the relevant person’s estate, or a part of that estate. 23 Paragraph 81(1B)(b) (b) relate to: (iii) the estate of the relevant person. 24 Subsection 81(11AA) 25 Subsection 81(12) Before “relevant person” (wherever occurring), insert “estate of the”. 26 Subsection 81(14) Omit “person, other than the relevant person,”, substitute “person”. 27 Subsection 82(1) Omit all the words from and including “a bankrupt” to the end of the subsection, substitute “the estate of a deceased debtor was subject at the day of the order for the administration of the estate, or to which the estate may become subject because of an obligation incurred before that day, are provable in the administration of the estate”. 28 Subsection 82(1A) Omit “bankrupt under a maintenance agreement or maintenance order before the date of the bankruptcy”, substitute “deceased debtor under a maintenance agreement or maintenance order during the person’s lifetime and before the date of the order for the administration of the deceased debtor’s estate”. 29 Paragraph 82(8)(b) Omit “discharge of the bankrupt”, substitute “end of the administration of the deceased debtor’s estate”. 30 Section 87 Omit “debtor had not become a bankrupt”, substitute “estate of the deceased debtor had not become subject to administration under Part XI”. 31 Section 88 Omit “A payment made by a debtor to a creditor before the debtor became a bankrupt and representing in part principal and in part interest”, substitute: A payment that: (a) is made to a creditor by; (i) the deceased debtor before the person’s death; or (ii) the deceased debtor’s estate before the date of the order for the administration of the estate; and (b) represents in part principal and in part interest; 32 Section 95 Omit “person was, at the time when he or she became a bankrupt”, substitute “deceased debtor whose estate is being administered under Part XI was, at the time of the debtor’s death”. 33 Subsection 104(1) 34 At the end of section 104 Add: 35 Paragraph 109(1)(a) After “petitioning creditor”, insert “or the trustee of the deceased debtor’s estate”. 36 Paragraph 109(1)(b) 37 Subsection 109A(1) (a) a contract of employment with a person who has since died and whose estate is being administered under Part XI was subsisting immediately before the day of the person’s death; or (b) a contract of employment with the trustee, in the trustee’s capacity as trustee, of an estate that is being administered under Part XI was subsisting immediately before the day of the order for the administration; the employee under the contract is, whether or not the employee is a person referred to in subsection (2), entitled to payment under section 109 as if the employee’s employment had been terminated: (c) in the case that paragraph (a) applies: (i) by the person; and mentioned in that paragraph; or (d) in the case that paragraph (b) applies: (i) by the trustee; and mentioned in that paragraph. 38 Subsection 109A(2) After “trustee” (wherever occurring), insert “or legal personal representative”. 39 At the end of section 109A Add: (5) In this section: 40 Section 110 41 Section 114 Omit “becomes a bankrupt”, substitute “dies, and the debtor’s estate becomes subject to administration under Part XI,”. 42 Paragraph 117(1)(a) 43 Paragraph 117(1)(b) Omit “which he or she”, substitute “which the deceased debtor”. 44 Paragraph 117(1)(b) Omit “(whether before or after he or she became a bankrupt)”, substitute “at any time”. 45 Subsection 117(1) 46 Subsection 117(1) Omit “in the trustee”, substitute “in the trustee of the deceased debtor’s estate being administered under Part XI”. 47 Paragraph 118(1)(a) Omit “the presentation of a petition, or after the presentation of a petition, against a”, substitute “the making of an order under Part XI, or after the making of such an order, for the administration of the estate of a deceased”. 48 Subparagraph 118(1)(a)(ii) 49 Paragraph 118(1)(b) 50 Subsection 118(1) 51 Subsection 118(3) 52 Subsection 118(3) Omit “bankruptcy”, substitute “administration of the estate”. 53 Subsection 118(4) (4) Where: (a) a creditor has, in pursuance of subsection (1), paid to the trustee of the estate of a deceased debtor the proceeds of the sale of property or other moneys that were received as a result of execution having been issued by the creditor, or on the creditor’s behalf, against property of the deceased debtor or of the attachment by the creditor, or on the creditor’s behalf, of a debt due to the deceased debtor; and (b) that property or debt would not have been property divisible amongst the creditors of the deceased debtor if the estate of the deceased debtor had become subject to administration under Part XI immediately before the execution was issued or the debt was attached, as the case may be; the trustee must pay those proceeds or other moneys to the legal personal representative of the deceased debtor or to a person authorised by the legal personal representative in writing for the purpose. 54 Subsection 118(9) (9) Subject to subsection (10), if a creditor has, within 6 months before the making of an order under Part XI, or after the making of such an order, for the administration of the estate of a deceased debtor obtained a charge or charging order against property of the deceased debtor, the charge or charging order, as the case may be, is void as against the trustee of the estate of the deceased debtor. 55 Subsection 118(10) Omit “a debtor” (wherever occurring), substitute “a deceased debtor’s estate”. 56 Subsection 118(10) Omit “the debtor”, substitute “the deceased debtor”. 57 Paragraphs 118(11)(a) and (b) Omit “who, after the sale, becomes a bankrupt”, substitute “who dies and whose estate becomes, or of a deceased debtor’s estate that becomes, after the sale, subject to an administration order under Part XI”. 58 Subsection 118(11) Omit “of the bankrupt”. 59 Subsection 118(12) 60 Subsection 119(1) 61 Paragraphs 119(1)(a) and (b) 62 Subsection 119(2) Omit “the reference to the Court of a debtor’s petition against a debtor”, substitute “the presentation to the Court of a petition by a person administering the estate of a deceased debtor for an order for the administration of the estate”. 63 Paragraphs 119(2)(a) and (b) 64 Subsection 119(3) Omit “a creditor’s petition against a debtor has been given under subsection (1) to a sheriff or notice of the reference to the Court of a debtor’s petition against a debtor has been given under subsection”, substitute “a petition has been given under subsection (1) or”. 65 Subsection 119(3) 66 Subsection 119(4) 67 Paragraphs 119(4)(a) and (b) 68 Subsection 119(5) Omit “the reference to the Court of a debtor’s petition against a debtor”, substitute “the presentation to the Court of a petition by a person administering the estate of a deceased debtor for an order for the administration of the estate”. 69 Paragraphs 119(5)(a) and (b) 70 Subsection 119(6) Omit “against a debtor” (first occurring), substitute “for an order for the administration of a deceased debtor’s estate”. 71 Subsection 119(6) Omit “the reference to the Court of a debtor’s petition against a debtor”, substitute “the presentation to the Court of a petition by a person administering the estate of a deceased debtor for an order for the administration of the estate”. 72 Subsection 119(6) 73 Subsection 119(7) Omit “a debtor”, substitute “a deceased debtor’s estate”. 74 Subsection 119(7) Omit “the debtor becomes a bankrupt”, substitute “the estate is administered under Part XI”. 75 Subsection 119A(1) Omit “has become a bankrupt”, substitute “has died, and the debtor’s estate has become subject to administration under Part XI,”. 76 Paragraphs 119A(1)(a) and (b) (a) the sheriff must deliver or pay to the trustee: (i) any property of the estate in the sheriff’s possession under a process of execution issued by or on behalf of a creditor; and (ii) any proceeds of the sale of property of the estate or other moneys in the sheriff’s possession, being proceeds of the sale of property sold, whether before or after the debtor died, in pursuance of any such process or moneys seized, or paid to avoid seizure or sale of property of the debtor or estate, whether before or after the debtor died, in pursuance of any such process; and (iii) any moneys in the sheriff’s possession as a result of the attachment, by or on behalf of a creditor, of a debt due to the estate; or (b) the registrar or other officer of the court must pay to the trustee: (i) any proceeds of the sale of property of the estate or other moneys in court, being proceeds of sale or other moneys paid into court, whether before or after the debtor died, by a sheriff in pursuance of a process of execution issued, by or on behalf of a creditor, against property of the estate; and (ii) any moneys in court that have been paid into court, whether before or after the debtor died, in pursuance of proceedings instituted, by or on behalf of a creditor, to attach a debt due to the estate; 77 Subsection 119A(5) 78 Paragraph 119A(6)(a) 79 Paragraph 119A(6)(b) 80 Subsection 119A(7) Omit “a bankrupt”, substitute “the estate of a deceased debtor”. 81 Subsection 122(1) Omit “insolvent (the debtor)”, substitute “insolvent and who subsequently dies (the deceased debtor)”. 82 Subsection 122(1) Omit “in the debtor’s bankruptcy”, substitute “of the deceased debtor’s estate being administered under Part XI”. 83 Paragraph 122(1)(b) (b) was made in the period beginning 6 months before the presentation of the petition for an order for the administration of the estate and ending immediately before the day of the order. 84 Subsection 122(1A) Omit “by the debtor”, substitute “by the deceased debtor before the debtor’s death”. 85 Paragraphs 122(1A)(a) and (b) 86 Paragraph 122(1A)(b) 87 Paragraph 122(2)(b) After “debtor”, insert “or the estate of the deceased debtor”. 88 Subsection 122(4A) After “debtor” (wherever occurring), insert “or the estate of the deceased debtor”. 89 Subsection 123(1) Omit “becomes a bankrupt”, substitute “has died, and the debtor’s estate has become subject to administration under Part XI”. 90 Paragraphs 123(1)(a), (b) and (c) After “debtor”, insert “before the debtor died”. 91 Paragraph 123(1)(e) Omit “before the day on which the debtor became a bankrupt”, substitute “on or before the day on which the debtor died”. 92 Subsection 123(4) 93 Subsection 123(4) 94 Subsection 123(6) Omit “a debtor becomes”, substitute “a deceased debtor before the debtor’s death became”. 95 Subsection 123(6) Before “debtor” (second and third occurring), insert “deceased”. 96 Subsection 124(1) Omit “becomes, or has become, a bankrupt”, substitute “has died, and the person’s estate has become subject to administration under Part XI”. 97 Paragraph 124(1)(a) After “made”, insert “on or”. 98 Paragraph 124(1)(a) Omit “becomes a bankrupt”, substitute “dies”. 99 Paragraph 124(1)(b) Omit “on or”. 100 Paragraph 124(1)(b) 101 Subsection 125(1) Omit “an undischarged bankrupt”, substitute “deceased and that the person’s estate is being administered under Part XI”. 102 Section 126 103 After subsection 127(1) (1A) In the application of Part XI to this section, the reference in subsection (1) to the date on which a person became bankrupt is taken to be a reference to the date on which administration of a deceased debtor’s estate commenced. 104 Paragraphs 134(1)(a), (aa), (ab) and (da) Omit “bankrupt”, substitute “estate of the deceased debtor”. 105 Paragraph 134(1)(da) 106 Paragraph 134(1)(e) Omit “bankrupt” (wherever occurring), substitute “deceased debtor’s estate”. 107 Paragraph 134(1)(f) 108 Paragraph 134(1)(g) 109 Paragraph 134(1)(h) (h) deal with property to which the estate of the deceased debtor is beneficially entitled as tenant in tail in the same manner as the legal personal representative of the deceased debtor could deal with it if the estate were not being administered under Part XI; 110 Paragraph 134(1)(i) 111 Paragraph 134(1)(m) Omit “the bankrupt” (first occurring), substitute “the legal personal representative of the deceased debtor”. 112 Subparagraph 134(1)(m)(i) 113 Subparagraph 134(1)(m)(ii) Omit “bankrupt’s” (wherever occurring), substitute “estate’s”. 114 Subparagraph 134(1)(m)(iii) 115 Paragraph 134(1)(m) Omit “bankrupt’s services, make such allowance to the bankrupt”, substitute “services of the legal personal representative of the deceased debtor, pay such remuneration to the legal personal representative”. 116 Paragraph 134(1)(ma) (ma) pay such remuneration out of the estate of the deceased debtor as the trustee thinks fit to the legal personal representative of the deceased debtor. 117 Paragraphs 134(1)(n) and (o) 118 Subsection 134(1A) Omit “An allowance made to the bankrupt”, substitute “Remuneration paid to the legal personal representative of the deceased debtor”. 119 At the end of section 134 Add: 120 Paragraph 138(1)(a) Omit “a bankrupt”, substitute “an estate of a deceased debtor”. 121 Paragraphs 138(1)(b), (c) and (d) 122 Subsection 139ZL(6) 123 At the end of section 139ZL Add: (11) In this section: 124 Subsection 139ZQ(5) 125 Subsection 139ZQ(10) 126 Paragraph 143(a) Omit “bankrupt’s statement of”, substitute “statement of a deceased debtor’s”. 127 Section 146 128 Section 146 Omit “his or her affairs” (wherever occurring), substitute “the deceased debtor’s affairs”. 129 Section 146 Omit “bankrupt” (second occurring), substitute “legal personal representative”. 130 Paragraph 156A(1)(a) Before “debtor” (first occurring), insert “deceased”. 131 Paragraphs 156A(1)(a) and (3)(a) Omit “debtor becomes a bankrupt”, substitute “deceased debtor’s estate is administered under Part XI”. 132 Paragraph 156A(3)(a) Omit “estate of the bankrupt”, substitute “estate”. 133 Subsection 277B(2) (after table item 2) | 2A | subsection 74(2) | 1 penalty unit | | --- | ---------------- | -------------- |