Bankruptcy Rules 1928

Division 1.—Small Bankruptcies, rr. 284-285.

Division 2.—Estates of Persons dying Insolvent, rr. 286-292.

Part V.—Compositions and Assignments without Sequestration (Part XI. of Act), rr. 293-299.

Part VI.—Deeds of Arrangement (Part XII. of Act), rr. 300-314.

Part VII.—Functions of Officers.

Division 1.—Books to be kept and returns to be made by Registrar, rr. 315-318.

Division 2.—Official Receivers, rr. 319-339.

Part VIII.—Trustees and Special Managers, rr. 340-375.

Part IX.—Accounts and Audit, rr. 376-387.

Part X.—Miscellaneous, rr. 388-400.

Definitions.

3.—(1.) In these Rules, unless the contrary intention appears—

“Affidavit” includes statutory declaration and affirmation;

“Commissioner for Affidavits” means a person authorized under the law of the Commonwealth or of a State to take affidavits;

“Commissioner for Declarations” means a person appointed under the Statutory Declarations Act 1911-1922 or under a State Act to be a Commissioner for Declarations;

“Court of Appeal” means any Court exercising appellate jurisdiction under the Act or these Rules;

“Creditor” includes a corporation, and a firm of creditors in partnership;

“Debtor” includes a firm of debtors in partnership, and includes any debtor proceeded against under the Act, whether he becomes a bankrupt or not;

“District” means a District proclaimed by the Governor-General in pursuance of the Act;

“Inspector-General” means the Inspector-General in Bankruptcy;

“Judge” means the Judge by whom jurisdiction in bankruptcy is exercised;

“Limited partnership” means a firm registered under any law of the Commonwealth or a State or a Territory relating to limited partnerships;

“Name” in relation to a person means both the Christian name, or the initial letter or contraction of the Christian name, and the surname of that person;

“Scheme” means a scheme of arrangement pursuant to the Act;

“Sealed” means sealed with the seal of the Court;

“Taxing Officer” means the officer of the Court whose duty it is to tax costs in bankruptcy proceedings;

“The Act” means the Bankruptcy Act 1924-1927.

“The Court” means any Court having jurisdiction in bankruptcy under the Act or a Judge thereof.

and any reference to a form shall be read as a reference to a form in the Schedules to these Rules.

References to “writing”.

(2.) In these Rules expressions referring to writing shall, unless the contrary intention appears, be construed as including references to any mode of representing or reproducing words in a visible form.

Computation of time.

4. When the time for doing any act or taking any proceedings expires on a Sunday or Court holiday, and by reason thereof the act or proceeding cannot be done or taken on that day, the act or proceeding shall, so far as regards the time of doing or taking it, be held to be duly done or taken if done or taken on the next day which is not a Sunday or Court holiday.

Use of Forms in Schedules.

5. The forms in the Schedules to these Rules, where applicable, and where they are not applicable forms of the like character, with such variations as circumstances require, shall be used.

Part II.—Court Procedure.

Division 1.—Court and Chambers.

Application of High Court Rules.

6. (1) Where any practice or procedure of the Court is not regulated by these Rules, the practice or procedure shall be regulated as nearly as may be by the Rules of the High Court for the time being in force.

Court may sit at any time.

(2) Sittings of the Court shall, if there is any business to be transacted, be held on any day the Judge thinks fit to sit in Court.

Submission of doubtful questions to Judge.

7. The Registrar may in his discretion submit to the Judge any matter before him upon which he is doubtful or which the parties, or either of them, desire should be submitted to the Court for its opinion direction and order.

Adjournment from Registrar to Court.

8. Any matter or application pending before the Registrar shall be adjourned to be heard before the Court, if the Court either specially or by any general direction applicable to the particular case, so directs.

Adjournment from chambers to court and vice versa.

9. Subject to the provisions of these Rules, any matter or application may, at any time, if the Court thinks fit, be adjourned from Chambers to Court or from Court to Chambers; and, if all the contending parties require any matter or application to be adjourned from Chambers into Court, it shall be so adjourned.

Witnesses may be ordered to leave Court.

10. Upon the application of any party to a proceeding heard in Court, or, during an examination under section 80 of the Act, on the application of the Official Receiver, the Judge or Registrar presiding may order that all or any witnesses or persons summoned for examination in the matter leave the Court or Chambers, as the case may be, until called on to give evidence.

Division 2.—Proceedings.

Proceedings, how intituled.

11.—(1.) Every proceeding before the Court shall be dated, and shall be intituled “In the Court of Bankruptcy”, with the name of the District in which it is taken, and of the matter to which it relates. Numbers and dates may be denoted by figures.

(2.) All applications and orders shall be intituled ex parte the applicant.

(3.) The first proceeding in every matter shall have a distinctive number assigned to it by the Registrar, and all subsequent proceedings in the same matter shall bear the same number.

Written proceedings.

(4.) All proceedings in Court shall be written on paper of the size of thirteen inches and one-half inch in length and eight inches and one-half inch in breadth, or thereabouts; but no objection shall be allowed to any proof, affidavit or proxy on account of its being written on paper of other size.

Records of the Court.

12. All proceedings of the Court shall remain on record in the Court so as to form a complete record of each matter, and they shall not be removed for any purpose, except for the use of the officers of the Court, or by special direction of the Court, Judge, or Registrar, but they may, subject to the Act, at all reasonable times, be inspected by the trustee, the debtor, and any creditor who has proved, or any person on behalf of the trustee, debtor, or any such creditor.

Notices to be in writing.

13. All notices required by the Act or these Rules shall be in writing, unless these Rules otherwise provide, or the Court in any particular case otherwise orders.

Process to be sealed.

14. All summonses, petitions, notices, orders, warrants, and other process issued by the Court shall be sealed.

Meetings summoned by Court.

No. 37 1924. First Schedule r. 5.

15.—(1.) Where the Court directs a general meeting of creditors to be summoned under Rule 5 in the First Schedule to the Act, it shall be summoned as the Court directs, and in default of any direction by the Court the Registrar shall transmit a sealed copy of the first-mentioned direction to the trustee or the Official Receiver, as the case may be.

(2.) The trustee or Official Receiver shall, not less than seven days before the meeting, send a copy of the direction to each creditor at the address given in his proof, or in case he has not proved, the address given in the list of creditors by the debtor, or such other address as is known to the trustee or Official Receiver.

Office copies.

16. All office copies of petitions, proceedings, affidavits, books, papers, and writings, or any parts thereof required by any trustee, or by any debtor, or by any creditor, or by the solicitor of any such trustee, debtor, or creditor, shall be provided by the Registrar; and shall, except as to figures, be fairly written at length, and be sealed and delivered out without any unnecessary delay.

Filing Gazetting, &c.

17.—(1.) The Registrar shall file a copy of each issue of the Commonwealth Gazette, and, whenever the Commonwealth Gazette contains any advertisement relating to any matter under the Act in the Court, he shall at the same time file with the proceedings in the matter a memorandum in accordance with Form 187, referring to and giving the date of the advertisement.

(2.) In the case of an advertisement in a local paper, the Registrar shall in like manner file a copy of the advertisement extracted from the paper and a memorandum in accordance with Form 187 referring to and giving the date of the advertisement.

(3.) For this purpose one copy of each local paper, in which any advertisement relating to any matter under the Act in the Court is inserted, shall be left with the Registrar by the person inserting the advertisement.

(4.) The memorandum by the Registrar shall be prima facie evidence that the advertisement to which it refers was duly inserted in the issue of the Commonwealth Gazette or paper mentioned in it, and the copy of the advertisement referred to in sub-rule (2.) of this rule, certified by the Registrar to have been extracted from the local paper published on the date specified in the certificate, shall be prima facie evidence that the advertisement was published in the paper on the date so certified.

Transfer of proceedings by Court No 37 1924 s. 20 (2)

18. The Court may at any time, for good cause shown, order the proceedings in any matter under the Act, which have been commenced or are pending in the Court, to be transferred to any other Court.

Transmission of order of transfer.

19. When an order of transfer has been made by any Court, the Registrar shall send by post a sealed copy of the order of transfer to the Court affected by the order.

Transfer of Official Receiver’s duties.

20. Where the proceedings in any matter are transferred by any Court, the Official Receiver of the Court to which such proceedings are transferred shall become the Official Receiver of the debtor’s estate in place of the Official Receiver of the Court from which the proceedings are transferred.

Transmission of records.

21. Where the proceedings in any matter are transferred from a Court to any other Court, the Registrar of the first-mentioned Court shall send by post the records of proceedings transferred to the Registrar of the Court to which the transfer is made.

Notice of transfer to Inspector-General and Official Receiver.

22. The Registrar of the Court to which proceedings are transferred shall give notice of the transfer to the Official Receiver of the same Court, and to the Inspector-General, as soon as he receives the records of proceedings from the Registrar of the Court from which the transfer is made.

Proceedings commenced in wrong Court.

23. When any bankruptcy proceeding has been commenced in a Court in which it should not have been commenced, the Judge of the Court may order that the proceeding shall be transferred to the Court in which the proceeding should have been commenced, or that it be

continued in the Court in which it was commenced; but, unless and until a transfer is made under these Rules, the proceeding shall continue in the Court in which it was commenced.

Transferred matter to receive new number.

24. When a matter is transferred from one Court to another, it shall receive a new distinctive number.

Division 3[TWN T21].—Motions and Practice.

Applications to be by motion.

25. Every application to the Court (unless otherwise provided by these Rules, or the Court in any particular case otherwise directs) shall be made by motion supported by affidavit.

Notice of motion to be filed.

26.—(1.) A party intending to move shall file with the Registrar a copy of his notice of motion.

(2.) There shall be endorsed on the copy the name of the applicant’s solicitor (if any), and also (if known) the name of the respondent’s solicitor.

Notice of motion, and ex parte applications.

27. Where any party, other than the applicant, is affected by the motion, no order shall be made, unless upon the consent of the party duly shown to the Court, or upon proof that notice of the intended motion and a copy of the affidavits in support thereof have been duly served upon the party:

Provided that the Court, if satisfied that the delay caused by proceeding in the ordinary way would or might entail serious mischief, may make any order ex parte upon such terms as to costs and otherwise, and subject to such undertaking, if any, as the Court thinks just; and any party affected by the order may move to set it aside.

Length of notice.

28.—(1.) Unless the Court gives leave to the contrary, notice of motion shall be served on any party to be affected thereby not less than eight days before the day named in the notice for hearing the motion.

(2) An application for leave to serve short notice of motion shall be made ex parte.

Affidavits against motion.

29. Where a respondent intends to use affidavits in opposition to a motion he shall deliver copies of the affidavits to the applicant, and make any exhibits to the affidavit available for inspection by the applicant, not less than four days before the day appointed for the hearing.

Notice not served on all proper parties.

30. If on the hearing of any motion or application the Court is of opinion that any person to whom notice has not been given ought to have, or to have had, the notice, the Court may either dismiss the motion or application, or adjourn the hearing thereof, in order that the notice may be given, upon such terms as the Court thinks fit.

Adjournment.

31. The hearing of any motion or application may from time to time be adjourned, upon such terms (if any) as the Court thinks fit.

Personal service.

32. In cases in which personal service of any notice of motion, or of any order of the Court, is required, it shall be effected, in the case of a notice of motion, by delivering to each party to be served a copy of the notice of motion; and, in the case of an order, by delivering to each party to be served a sealed copy of the order.

Filing affidavits on motion.

33. Every affidavit to be used in supporting or opposing any opposed motion shall be filed with the Registrar not later than the day before the day appointed for the hearing.

Indorsement and filing of affidavits.

34. The Registrar, upon any affidavit being left with him to be filed, shall endorse it with the day of the month and year when it was so left, and forthwith file it with the proceedings to which it relates, and any affidavit left with the Registrar to be filed shall on no account, except by order of the Court, be delivered out to any person.

Precedence of motions.

35. Except in cases of emergency, or for any other cause deemed sufficient by the Court, all motions shall be made and heard in the order in which they are set down at the sitting of the Court.

Applications in Chambers.

36.—(1.) All applications to a Judge in Chambers, unless ex parte, shall be made upon notice in writing, which shall be served twenty-four hours before the time fixed in the notice.

(2.) Copies of the affidavits intended to be used in support of the application shall be served with the notice.

(3.) Copies of the affidavits intended to be used in opposition or in reply shall be served before the hearing.

Division 4.—Preparation of Orders.

Preparation of orders.

37.—(1.) If within one week from the making of an order for the appointment of the Official Receiver as Interim Receiver of the debtor’s property, a sequestration order, an order annulling a sequestration order, order on application to approve a composition or scheme, order annulling a composition or scheme, or order on application for discharge, the order has not been completed, the Registrar shall prepare and complete the order:

Provided that if in any case the Court is of opinion that the provisions of this Rule ought not to apply, it may so order:

Provided further that where an order of discharge is granted subject to the condition that judgment shall be entered against the bankrupt, nothing in this Rule shall require the Registrar to prepare and complete the order until the bankrupt has given consent, in accordance with Form 144, to judgment being entered against him.

(2.) Where the petitioner is represented by a solicitor the order shall be endorsed with the name and address of the solicitor.

Notice of appointment to settle order.

38. A person who has the carriage of an order shall obtain from the Registrar an appointment to settle the order, and shall give reasonable notice of the appointment to all persons who are affected by the order, or to their solicitors.

Transmission of copy to Official Receiver.

39. A copy of every sequestration order, and order for the appointment of the Official Receiver as Interim Receiver of the debtor’s property, sealed with the seal of the Court, and every other order made by the Court, shall forthwith be sent by post or otherwise by the Registrar to the Official Receiver.

Division 5.—Security in Court.

Security by bond.

40. Except where these Rules otherwise provide, where a person is required to give security, the security shall be in the form of a bond with a surety or sureties to the person proposed to be secured.

Amount of bond.

41. The bond shall be taken in a penal sum, which shall not be less than the sum for which security is to be given, and probable costs, unless the opposite party consents to it being taken for a less sum.

Deposit in lieu of bond.

42. Where a person is required to give security he may, in lieu thereof, lodge in Court a sum equal to the sum in question in respect of which security is to be given and the probable costs of the trial of the question, together with a memorandum to be approved of by the Registrar and to be signed by that person, his solicitor, or agent, setting forth the conditions on which the money is deposited.

Security account.

43.—(1.) Where any sum is lodged in Court in pursuance of the last preceding rule it shall be paid to a separate account in the proceeding, to be called the “Security Account”, and to abide the order of the Court, and the person paying the sum shall give notice of the payment to the party for whose benefit the security is to be given.

(2.) The notice shall be accompanied by an original receipt for the money paid into Court.

Disposal of money paid into Court.

44.—(1.) In any case in which money has been paid into Court as security for costs, when the proceeding has been finally disposed of, if the party by whom the payment into Court was made is adjudged to pay the costs of the proceeding, or any balance in respect of the costs of the proceeding, or any other balance of costs in the proceeding, to any parties for whose security the payment was made, the amount standing to the credit of the Security Account in the proceeding shall, unless the Court or a Justice otherwise orders, be liable to be applied in payment of the costs so ordered to be paid to those parties.

(2.) In any other case the party by whom the payment into Court was made shall be entitled to have the sum paid out to him.

Registrar to certify at conclusion of proceeding.

45. When a proceeding has been finally disposed of by consent or otherwise the Registrar shall, on the application of any party to the proceeding, and on being satisfied that that party is entitled to have any money standing to the credit of the Security Account paid out to him, give him a certificate to that effect.

Security of guarantee society.

46. The security of any incorporated company or guarantee society approved by the Court or the opposite party may be given in lieu of a bond or a deposit.

Notice of sureties.

47. In all cases where a person proposes to give a bond by way of security, he shall serve, by post or otherwise, on the opposite party and on the Registrar, at the Court, notice of the proposed sureties, which shall be in accordance with Form 19, and the Registrar shall forthwith give notice to both parties of the time and place at which he proposes that the bond shall be executed, and shall state in the notice that, should the proposed obligee have any valid objection to make to the sureties, or either of them, it must be made at that time.

Justification by sureties.

48. The sureties shall make an affidavit of their sufficiency, which shall be in accordance with Form 20, unless the opposite party dispenses with the affidavit, and the sureties shall attend the Court to be cross-examined, if required.

Execution of bond.

49. The bond shall be executed and attested in the presence of the Registrar or the Official Receiver, or before a justice of the peace, or a solicitor.

Notice of deposit.

50. Where a person makes a deposit of money in lieu of giving a bond, the Registrar shall forthwith give notice to the person to whom the security is to be given of the deposit having been made.

Division 6.—Affidavits.

Costs of unnecessary matter.

Cf. No. 37 1924, s. 47.

51. The costs of every affidavit which shall unnecessarily set forth matters of hearsay, or argumentative matter, or copies of or extracts from documents, shall be paid by the party filing the affidavit.

Form.

52.—(1.) Every affidavit shall be drawn up in the first person, and shall be divided into paragraphs, and every paragraph shall be numbered consecutively, and as nearly as may be shall be confined to a distinct portion of the subject.

(2.) No costs shall be allowed for any affidavit or part of an affidavit substantially departing from this rule, and no such costs shall be given except by leave of the Court.

Deponent’s description.

53. Every affidavit shall state the description and true place of abode of the deponent, and also what facts or circumstances deposed to are within his knowledge.

Several deponents.

54. In every affidavit made by two or more deponents the names of the several persons making the affidavit shall be inserted in the jurat, except that if the affidavit of all the deponents is taken at one time by the same officer it shall be sufficient to state that it was sworn by both (or all) of the “above-named” deponents.

Scandalous matter.

55. The Court may order to be struck out from any affidavit any matter which is scandalous, and may order the costs of any application to strike out that matter to be paid as between solicitor and client.

Erasures, etc.

56. No affidavit having in the jurat or body thereof any interlineation, alteration, or erasure shall, without leave of the Court, be read or made use of in any matter depending in Court unless the interlineation or alteration (other than by erasure) is authenticated by the initials of the officer or person taking the affidavit, nor, in the case of an erasure, unless the words or figures appearing at the time of taking the affidavit to be written on the erasure are re-written and signed or initialed in the margin of the affidavit by the officer or person taking it.

Blind or illiterate persons.

57.—(1.) Where an affidavit is sworn by any person who appears to the person taking the affidavit to be illiterate or blind, the person taking the affidavit shall certify in the jurat that the affidavit was read in his presence to the deponent, that the deponent appeared perfectly to understand it, and that the deponent made his signature in the presence of that person.

(2.) No such affidavit shall be used in evidence in the absence of that certificate, unless the Court is otherwise satisfied that the affidavit was read over to and appeared to be perfectly understood by the deponent.

Formal defects.

58. The Court may receive any affidavit sworn for the purpose of being used in any matter notwithstanding any defect by misdescription of parties or otherwise in the title or jurat, or any other irregularity in the form thereof, and may direct a memorandum to be made on the document that it has been so received.

Filing office copies, &c.

59.—(1.) In cases in which an original affidavit is allowed to be used, it shall before it is used be stamped with a proper filing stamp, and shall at the time when it is used be delivered to and left in Court or in chambers with the proper officer, who shall file it.

(2.) An office copy of an affidavit may in all cases be used, the original affidavit having been previously filed and the copy duly authenticated with the seal of the Court.

Swearing of affidavit.

60.—(1.) No affidavit (other than a proof of debt) shall be sufficient if sworn before the solicitor acting for the party on whose behalf the affidavit is to be used, or before any agent of the solicitor, or before the party himself.

(2.) Any affidavit which would be insufficient if sworn before the solicitor himself shall be insufficient if sworn before his clerk or partner.

(3.) An affidavit may be sworn to either in print, typewriting, or manuscript, or partly in one form and partly in another.

Time for filing.

61.—(1.) Where a special time is limited for filing affidavits, no affidavit filed after that time shall be used, unless by leave of the Court.

(2.) Except by leave of the Court, no order made ex parte in Court founded on any affidavit shall be of any force unless the affidavit on which the application was made was actually made before the order was applied for, and produced or filed at or before the time of making the motion.

Proof of affidavit.

Cf. No. 37 1924 s. 47.

62. The Court shall take judicial notice of the seal or signature of any person authorized by or under the Act to take affidavits or to certify to the authority.

Division 7.—Fees.

Fees.

63.—(1) The fees and percentages mentioned in the Third Schedule to these Rules shall be charged and payable in respect of the matters specified in that Schedule.

Marking of documents

(2) The officer of the Court who receives any document upon which any prescribed fee is payable shall, immediately upon the receipt of the document, mark in the margin of the document the amount of the fee and the date of the filing of the document, and no such document shall be filed until the fee thereon has been so marked, and the party presenting or receiving the document shall see that the marking has been duly made.

Division 8.—Witnesses and Depositions.

Subpœna

64. A subpœna for the attendance of a witness shall be issued by the Court at the instance of an Official Receiver, a trustee, a creditor, a debtor, or any applicant or respondent in any matter, with or without a clause requiring the production of books, deeds, papers, documents, and writings in his possession or control, and in the subpœna the name of three witnesses may be inserted.

Service of subpœna.

65. A sealed copy of the subpœna shall be served personally on the witness by the person at whose instance it is issued, or by his solicitor, or by an officer of the Court, or by some person in their employ, within a reasonable time before the time of the return thereof.

Proof of service.

66. Service of the subpœna may, when required, be proved by affidavit.

Limit of witnesses’ costs.

67. The Court may in any matter limit the number of witnesses to be allowed on taxation of costs, and their allowance for attendance shall in no case exceed the highest rate of the allowances mentioned in the scale of costs.

Costs of witnesses

68. The costs of witnesses, whether they have been examined or not, may, in the discretion of the Court, be allowed.

Payment of shorthand writer, &c.

69. Where the Court appoints a shorthand writer to take down the evidence of the bankrupt or witnesses or of any other person or of any of them, the person so appointed shall be paid a sum not exceeding a guinea a day and a further sum not exceeding sixpence per folio of seventy-two words for any transcript of the evidence or such other sum per day or per folio as the Registrar deems reasonable.

Depositions.

70. The Court may, in any matter where it appears necessary for the purposes of justice, make an order for the examination upon oath before the Court or any officer of the Court, or any other person, and at any place, of any witness or person, and may empower any party to any such matter to give the deposition in evidence therein on such terms (if any) as the Court directs.

Form of commission.

71. An order for a commission or letter of request to examine witnesses, and the writ of commission or request, shall follow the forms for the time being in use in the High Court, with such variations as circumstances require.

Production of documents.

72. The Court may, in any matter, at any stage of the proceedings, order the attendance of any person for the purpose of producing any writings or other documents named in the order, which the Court thinks necessary to be produced.

Disobedience to order.

73. Any person wilfully disobeying any subpœna or order requiring his attendance for the purpose of being examined or producing any document shall be deemed guilty of contempt of Court, and may be dealt with accordingly.

Conduct money.

74. Any witness (other than the debtor) required to attend for the purpose of being examined, or of producing any document, shall be entitled to conduct money and payment for expenses and loss of time in accordance with the scale referred to in the Second Schedule.

Division 9.—Discovery and Examination under section 80.

Discovery.

75.—(1.) Any party to any proceeding in Court may, with the leave of the Court, administer interrogatories to, or obtain discovery of documents from, any other party to the proceeding.

(2.) Proceedings under this rule shall be regulated as nearly as may be by the Rules of the High Court for the time being in force in relation to discovery and inspection.

(3.) An application for leave under this rule may be made ex parte.

(4.) A copy of the interrogatories delivered by any party shall be filed in Court on the day on which they are delivered to the opposite party.

Applications for discovery.

76.—(1.) Every application to the Court under section 80 of the Act shall be in writing, and shall state shortly the grounds upon which the application is made.

(2.) Where the application is made on behalf of the trustee or Official Receiver, it need not be verified by affidavit.

Division 10.—Taking Accounts of Property mortgaged, and of the Sale thereof.

Inquiry into mortgage, &c.

Cf. No. 37 1924 s. 106.

77.—(1.) Upon application by motion by any person claiming to be a mortgagee of any part of the bankrupt’s real or leasehold estate, and whether the mortgage is by deed or otherwise, and whether the mortgage is of a legal or equitable nature, the Court shall proceed to inquire whether the person is the mortgagee, and for what consideration and under what circumstances.

(2.) If it is found that the person so applying is the mortgagee, and if no sufficient objection appears to the title of the person to the sum claimed by him under the mortgage, the Court shall direct such accounts and inquiries to be taken as are necessary for ascertaining the principal, interest, and costs due upon the mortgage and of the rents and profits, or dividends, interest, or other proceeds received by the person, or by any other person by his order or for his use in case he has been in possession of the property over which the mortgage extends, or any part thereof, or which he might have received but for his own wilful default.

(3.) The Court, if satisfied that there ought to be a sale, shall direct notice to be given in such newspapers as the Court thinks fit, when and where, and by whom and in what way the property, or the interest therein so mortgaged, is to be sold, and that the sale be made accordingly, and that the trustee (unless it be otherwise ordered) shall have the conduct of the sale.

(4.) At any such sale the mortgagee may bid and purchase.

Conveyance.

78.—(1.) All proper parties shall join in the conveyance to the purchaser, as the Court directs.

(2.) If any person, when directed by the Court in pursuance of the last preceding sub-rule, refuses or fails to join in the conveyance to the purchaser, the Court may direct the trustee or an officer to execute such instruments necessary to effect the conveyance as the person refuses or fails to execute.

Proceeds of sale.

79.—(1.) The moneys to arise from the sale shall be applied in the first place in payment of the costs, charges, and expenses of the trustee, of and occasioned by the application to the Court, and of the sale and attendance thereat, and in the next place in payment and satisfaction, so far as the moneys extend, of what shall be found due to the mortgagee, for principal, interest, and costs, and the surplus of the moneys (if any) shall then be paid to the trustee.

(2.) In case the moneys to arise from the sale are insufficient to pay and satisfy what are found due to the mortgagee, the mortgagee may prove as a creditor for the deficiency, and receive dividends thereon rateably with the other creditors, but so as not to disturb any dividend then already declared.

Proceedings on inquiry.

80. For the better taking of the accounts and inquiries in pursuance of rule 77 of these Rules, and making a title to the purchaser, all parties may be examined by the Court upon interrogatories or otherwise as the Court thinks fit, and shall produce before the Court upon oath all deeds, certificates, papers, books, and writings in their respective custody or power relating to the estate or effects of the bankrupt, as the Court directs.

Accounts, &c.

81. In any proceeding between a mortgagor and mortgagee, or the trustee of either of them, the Court may direct any necessary inquiries or accounts to be made or taken notwithstanding that it may appear that there is some special or further relief sought for or some special issue to be tried, as to which it may be proper that the matter should proceed in the ordinary way.

Special directions as to mode of taking account.

82. The Court may either by the order directing the account to be taken or by any subsequent order, give special directions with regard to the mode in which the account is to be taken or vouched, and in particular may direct that, in taking the account, the books of account in which the accounts in question have been kept shall be taken as prima facie evidence of the truth of the matters therein contained, with liberty to the parties interested to take such objections thereto as they may be advised.

Accounts to be verified.

83.—(1.) Where any account is directed to be taken, the accounting party, unless the Court otherwise directs, shall make out his account and verify it by affidavit.

(2.) The items on each side of the account shall be numbered consecutively, and the account shall be referred to in the affidavit as an exhibit and filed in the Court.

Mode of vouching accounts.

84. Upon the taking of any account the Court may direct that the vouchers shall be produced at the office of the solicitor of the accounting party, or at any other convenient place, and that only such items as are contested or surcharged shall be brought before the Court.

Surcharge.

85. Any party seeking to charge any accounting party beyond what he has by his account admitted to have received shall give notice thereof to the accounting party, stating so far as he is able, in a short and succinct manner, the amount sought to be charged and the particulars thereof.

Accounts and inquiries to be numbered.

86. Where by any order, whether made in Court or in chambers, any accounts are directed to be taken or inquiries to be made, each such direction shall be numbered so that, as far as may be, each distinct account and inquiry may be designated by a number.

Just allowances.

87. In taking any account directed by any order, all just allowances shall be made without any direction for that purpose.

Registrar to report delay.

88. The Registrar shall at the beginning of each sittings report to the Court all the cases in which he considers that there has been any undue delay in the proceedings before the Court.

Expediting proceedings in case of undue delay.

89. If it appears to the Court on the representation of the Registrar or otherwise that there is any undue delay in the prosecution of any accounts or inquiries, the Court may require that party having the conduct of the proceedings, or any other party, to explain the delay, and may thereupon make such order with regard to expediting the proceedings or the conduct thereof, or the stay thereof, and as to the costs of the proceedings, as the circumstances of the case require, and for those purposes any party may be directed to summon the persons whose attendance is required and to conduct any proceedings and carry out any directions which may be given.

Division, 11.—Appropriation of Pay, Salary, Pensions, and other Income.

Notice to bankrupt of application.

90.—(1.) When a trustee intends to apply to the Court for an appropriation under section 101 of the Act, he shall give to the bankrupt notice of his intention so to do.

(2.) The notice shall specify the time and place fixed for hearing the application, and shall state that the bankrupt is at liberty to show cause against the order being made.

(3.) The notice and order shall be in Forms 99 and 101 respectively.

Copy of order to be served.

91.—(1.) Where an order is made under sections 101-102 of the Act, the Registrar shall give to the trustee or Official Receiver, as the case may be, a sealed copy of the order, and the trustee or Official Receiver shall communicate the contents of the order to the person or proper officer by whom the pay, pension, salary, emoluments, profit, wages, earnings or income is payable.

Review of order.

(2.) Where an order has been made for the payment by a bankrupt, or by his employer for the time being, of a portion of his income or salary, the bankrupt may, upon his ceasing to receive a salary or income of the amount he received when the order was made, apply to the Court to rescind the order, or to reduce the amount ordered to be paid by him to the trustee.

Division 12.—Warrants, Arrests and Commitments.

Attachment of property on sequestration.

92.—(1.) The Official Receiver or trustee or any person authorized by warrant under the hand of the Official Receiver may seize and lay an attachment in accordance with Form 151a on the bankrupt estate, and make an inventory thereof.

Section 209 (c).

(2.) The person making such attachment shall leave with the person in whose possession any such property is attached a notice of the attachment and a copy of the said inventory in accordance with Form 151b having subjoined thereto a notice that the property of the bankrupt has been attached, and that any person who, knowing the same to have been so attached, disposes of, receives, removes, retains, conceals, or embezzles the same or any part thereof with intent to defeat the said attachment shall be liable to be imprisoned for a term of not more than three years.

To whom warrants addressed.

93. A warrant of seizure, or a search warrant, or any other warrant issued under the provisions of the Act, may be addressed to any constable or to such officer of any Court as the Court in each case directs.

Custody and production of debtor.

94. Where a debtor is arrested under a warrant issued under section 77 of the Act, he shall be given into the custody of the governor or keeper of the prison, mentioned in the warrant, who shall produce the debtor before the Court as it from time to time directs, and shall safely keep him until such time as the Court otherwise orders; and any books, papers, moneys, goods and chattels in the possession of the debtor, which are seized, shall forthwith be lodged with the Official Receiver or trustee, as the case may be.

Execution of warrant.

95.—(1.) When a person is apprehended under a warrant issued under sub-section (2.) of section 80 of the Act, the officer apprehending him shall forthwith bring him before the Court or magistrate issuing the warrant to the end that he may be examined, and if he cannot immediately be brought up for examination or examined, the officer shall deliver him into the custody of the governor or keeper of the prison mentioned in the warrant, and the governor or keeper shall receive him into custody and shall produce him before the Court or the magistrate as it or he from time to time directs or orders, and subject to any such direction or order shall safely keep him.

(2.) The officer executing a warrant issued under sub-section (2.) of section 80 of the Act shall forthwith, after apprehending the person named in the warrant and bringing him before the Court or the magistrate as mentioned in the last preceding sub-rule, or after delivering him to the governor or keeper of the prison mentioned in that sub-rule, as the case may be, report the apprehension or delivery to the Court or magistrate issuing the warrant, and apply to the Court or magistrate to appoint a day and time for the examination of the person so apprehended, and the Court or magistrate shall thereupon appoint the earliest practicable day for the examination, and shall issue its or his direction or order to the governor or keeper to produce him for examination at a place and time to be mentioned in the direction or order.

(3.) Notice of any appointment mentioned in the last preceding sub-rule shall forthwith be given by the Registrar to the official receiver, trustee or other person who has applied for the examination or warrant.

Applications to commit.

96. An application to the Court to commit any person for contempt of Court shall be supported by affidavit, and be filed in the Court in which the proceedings are taken.

Notice and hearing of application.

97. Subject to the provisions of the Act and these Rules, upon the filing of an application to commit, the Registrar shall fix a time and place for the Court to hear the application, notice whereof shall be personally served on the person sought to be committed, not less than three days before the day fixed for the hearing of the application:

Provided that in any case in which the Court thinks fit, the Court may allow substituted service of the notice by advertisement or otherwise, or shorten or extend the length of notice to be given.

Suspension of issue of committal order.

98. Where an order of committal is made against a debtor, or against a trustee, for disobeying any order of the Court, or of the Official Receiver, to do some particular act or thing, the Court may direct that the order of committal shall not be issued, provided that the debtor or trustee, as the case may be, complies with the previous order within a specified time.

Committal of contumacious debtor or witness.

99.—(1.) If a debtor or witness examined before a Registrar refuses to answer to the satisfaction of the Registrar any question which he may allow to be put, the Registrar shall report the refusal in a summary way to the Judge, and, upon the report being made, the debtor or witness in default shall be in the same position and be dealt with in the same manner as if he had made default in answering before a Judge.

(2.) The report of the Registrar shall be in writing, but without affidavit, and shall set forth the question put, and the answer (if any) given by the debtor or witness, and may refer to the evidence given.

(3.) The Registrar shall, before the conclusion of the examination at which the default in answering is made, name the time when and the place where the default will be reported to the Judge; and, upon receiving the report, the Judge may take such action thereon as he thinks fit.

(4.) If the Judge is sitting at the time when the default in answering is made, the default may be reported immediately.

(5.) The report of the Registrar may be in accordance with Form 63.

Division 13.—Service and Execution of Process.

Address of solicitor for service.

100.—(1.) Every solicitor suing out or serving any petition, notice, summons, order, or other document, shall indorse thereon his name or firm and place of business, which shall be called his address for service, but if his place of business is not within two miles of the Registry in which the cause or matter is commenced, he shall add to his own name or firm and place of business another proper place, which shall not be more than two miles from the Registry, which shall be his address for service.

(2.) All notices, orders, documents, and other written communications which do not require personal service shall be deemed to be sufficiently served on the solicitor, if left for him at his address for service.

Hours for service.

101.—(1.) Service of notices, orders, or other proceedings shall be effected before the hour of four in the afternoon, except on Saturdays, when it shall be effected before the hour of one in the afternoon.

(2.) Service effected after four in the afternoon on any week day, except Saturday, shall for the purpose of computing any period of time subsequent to that service be deemed to have been effected on the following day.

(3.) Service effected after one in the afternoon on Saturday shall for the like purpose be deemed to have been effected on the following Monday

Duties of officers of Court.

102.—(1.) It shall be the duty of such officer as the Court directs to serve such orders, summonses, petitions, and notices as the Court requires him to serve; to execute warrants and other process; to attend any sittings of the Court (but not sittings in Chambers); and to do and perform all such things as are required of him by the Court.

(2.) This rule shall not be construed to require any order, summons, petition, or notice to be served by an officer of the Court which is not specially by the Act or these Rules required to be so served, unless the Court in any particular proceeding by order specially so directs.

Service by post.

No. 37 1924 s. 43.

103. Where notice of an order or other proceeding in Court may be served by post it shall be sent by registered letter.

Enforcement of orders.

104. Every order of the Court may be enforced as if it were a judgment of the Court to the same effect.

Division 14.—Trial by Jury.

Settlement of issues for trial.

105. Where upon any application to the Court for a decision on any question, the Court, with or without the application of any person, has directed that a question of fact be tried with a jury, the question of fact shall be reduced into writing and submitted to the Court for its approval, and shall, when approved, be called the record for trial; but the Court shall have power to allow any amendment thereof at any time upon such terms as the Court thinks fit.

Special or common jury.

No. 37 1924 s. 25 (2).

106. An order of the Court for the trial of a question of fact before a jury shall specify the place of trial, and whether it shall be before a special or a common jury, but the order may be amended by the substitution of one jury for the other, upon such terms as the Court thinks fit.

Mode of trial by jury.

107.—(1.) If the trial take place before the Court it shall be had in the same manner as if it were the trial by a jury of an issue of fact in an action in the High Court.

(2.) If the trial takes place in any other Court in shall be had in the manner in which jury trials in ordinary cases are by law held in that Court.

Finding of jury to be certified to Court.

108. If a trial be had elsewhere than in the Court, the finding of the jury shall be certified by the Associate or other proper officer to the Court which shall make such order in the matter as it thinks fit.

Power to grant new trial.

109. In every case the Court before which the trial is had may grant a new trial if it thinks fit, and for such purpose the ordinary rules of practice and procedure in that Court shall apply.

Division 15.—Costs.

Awarding costs.

110.—(1.) The Court in awarding costs may direct that the costs of any matter or application shall be taxed and paid as between party and party or as between solicitor and client, or that full costs, charges, and expenses shall be allowed, or the Court may fix a sum to be paid in lieu of taxed costs.

(2.) In the absence of any express direction, costs of an opposed motion shall follow the event, and shall be taxed as between party and party.

(3.) Where an action is brought against an Official Receiver or trustee in bankruptcy as representing the estate of the debtor, or where an Official Receiver or trustee in bankruptcy is made a party to a cause or matter, on the application of any other party thereto, he shall not be personally liable for costs unless the Court in which the action is brought otherwise directs.

(4.) Where forms in the schedules to these Rules are applicable, any costs occasioned by the use of any other or more prolix forms shall, unless the Court otherwise directs, be borne by or disallowed to the party using the other or more prolix forms.

Orders to be sealed, signed and filed.

111. Every order for payment of money or costs, or either of them, shall be sealed, and signed by the Registrar, and shall be forthwith filed with the proceedings.

Taxation of costs.

112. The costs directed by any order to be paid shall be taxed on production of the order or an office copy of the order, and the allocatur shall be signed and dated by the Taxing Officer, who shall be the prescribed officer for the purposes of section 136 of the Act.

Bills to be taxed.

113. The bills to be taxed shall be bills of costs, charges, fees and disbursements in matters under the Act.

Scales of costs and charges.

114. The scales of costs set forth in the Second Schedule to these Rules, and the regulations contained in the scales, shall, subject to these Rules, apply to the taxation and allowance of costs and charges, in all proceedings under the Act and these Rules.

Re-taxation of coats when assets realize more than certified amounts.

115. Costs and charges in respect to the statement of affairs shall be allowed on the scale prescribed in the Second Schedule to these Rules.

Solicitor’s costs in case of petition by debtor.

116.—(1.) The solicitor in the matter of a bankruptcy petition presented by the debtor against himself shall, in his bill of costs, give credit for such sum or security (if any) as he has received from the debtor or any other person as a deposit on account of the costs and expenses to be incurred in and about the filing and prosecution of the petition; and the amount of any such deposit shall be noted by the taxing officer upon the allocatur issued for the costs, and if the amount received from the debtor or other person exceed the amount of the taxed costs, the solicitor shall pay the balance to the Official Receiver or trustee.

(2.) The bill of costs and credit shall be verified by affidavit.

Costs paid otherwise than out of estate.

117. When a bill of costs is taxed under any special order of the Court, and it appears by the order that the costs are to be paid otherwise than out of the estate of the bankrupt, the taxing officer shall specially note upon the allocatur by whom, or the manner in which, the costs are to be paid.

Bills of costs to be filed.

118. Upon the taxation of any bill of costs, charges, or expenses being completed, the taxing officer shall forthwith file the bill with the proceedings in the matter, and shall thereupon issue to the person presenting the bill for taxation his allocatur, or certificate of taxation, which shall be in Form 148 or 149.

Certificate of employment.

No. 37 1924 s. 136.

119. Before taxing the bill or charges of any solicitor, manager, accountant, auctioneer, broker, or other person employed by an Official Receiver or trustee, the Taxing Officer shall require a certificate in writing, signed by the Official Receiver or trustee, as the case may be, to be produced to him, setting forth whether any, and if so what, special terms of remuneration have been agreed to, and in the case of the bill of costs of a solicitor, a copy of the resolution or other authority sanctioning the employment.

Sheriff’s costs.

No. 37 1924 s. 93 (1).

120. In any case in which, pursuant to sub-section (1.) of section 93 of the Act, a sheriff is required to deliver goods (including money) to an Official Receiver or trustee, such sheriff shall, without delay, bring in his bill of costs for taxation, which shall be taxed by the taxing officer of the Court having jurisdiction in the bankruptcy; and unless the bill of costs is brought in for taxation within fourteen days from the date when the sheriff makes the delivery, the Official Receiver or trustee may decline to pay it.

Taxation of sheriff’s costs after deduction.

121.—(1.) If the Official Receiver or trustee, in writing, requires any costs which a sheriff has deducted under sub-section (2.) of section 93 of the Act to be taxed, the sheriff shall, within seven days from the date of the request, bring in those costs for taxation, and those costs shall be taxed by the taxing officer of the Court having jurisdiction in the bankruptcy.

(2.) Any amount disallowed on the taxation shall forthwith be paid over by the sheriff to the Official Receiver or trustee, as the case requires.

Notice of appointment.

122. Every person whose bill or charges is or are to be taxed shall in all cases give to the Official Receiver and to the trustee (if any) not less than seven days’ notice of the appointment to tax the bill or charges.

Lodgment of bill.

123.—(1.) The bill or charges, if incurred prior to the appointment of a trustee, shall be lodged with the Official Receiver, and if incurred after the appointment of a trustee, shall be lodged with the trustee three clear days before the application for the appointment to tax the bill or charges is made, and the trustee shall forthwith lodge it with the Official Receiver.

(2.) The Official Receiver shall forthwith, on receiving notice of taxation, lodge the bill or charges with the proper taxing officer.

(3.) The Official Receiver shall call the attention of the taxing officer to any items which, in his opinion, ought to be disallowed or reduced.

Copy of bill.

124. Every person whose bill or charges is or are to be taxed shall, on application either of the Official Receiver or the trustee, furnish a copy of his bill or charges so to be taxed, on payment at the rate of 4d. per folio, which payment may be charged to the estate.

Application for costs.

125. Where any party to, or person affected by, any proceeding desires to make an application for an order that he be allowed his costs, or any part of them, incident to the proceeding, and the application is not made at the time of the proceeding—

(a) the party or person shall serve notice of his intended application on the Official Receiver, and, if a trustee has been appointed, on the trustee;

(b) the Official Receiver and trustee may appear on the application and object thereto;

(c) no costs of or incidental to the application shall be allowed to the applicant, unless the Court is satisfied that the application could not have been made at the time of the proceeding.

Review of taxation by Registrar.

126.—(1.) Where any bill of costs, charges, fees, or disbursements of any solicitor, manager, accountant, auctioneer, broker, or other person have been taxed, the Official Receiver or trustee or other person interested may require the taxation to be reviewed by the Registrar.

(2.) In any case in which the Official Receiver, trustee or other person requires a review of taxation in pursuance of the last preceding sub-rule he shall give notice to the person whose bill has been taxed, and shall apply to the Registrar to appoint a time for the review of the taxation, and thereupon the Registrar shall appoint a time for the review of, and shall review, the taxation.

(3.) The Official Receiver, trustee or other person shall give to the person whose bill of costs is to be reviewed notice of the time appointed for the review.

(4.) The Official Receiver or trustee may appear upon the review of the taxation; and if, upon the review of taxation, the bill is allowed at a lower sum than the sum allowed upon the previous taxation, the amount disallowed shall (if the bill has been paid) be repaid to the Official Receiver, or the trustee, or other person entitled thereto.

(5.) The certificate of the Registrar shall in every case of a review by him under this rule be a sufficient authority to entitle the person to whom the amount disallowed ought to be repaid to demand the amount from the person liable to repay it.

(6.) There shall be allowed to the person whose bill is reviewed such costs of and incidental to his appearance on the review as the Registrar thinks proper, and those costs shall be paid to that person out of the estate:

Provided that the costs of the attendance of a principal shall not be allowed if in the opinion of the Registrar he could have been sufficiently represented at less expense by his agent.

Priority of costs and charges payable out of estate.

127. The assets in every matter remaining, after payment of the actual expenses incurred in realizing any of the assets of the debtor, shall, subject to any order of the Court, be liable to the following payments, which shall be made in the following order of priority, namely:—

(a) the actual expenses incurred by the Official Receiver in protecting the property or assets of the debtor, or any part thereof, and any expenses or outlay incurred by him or by his authority in carrying on the business of the debtor:

(b) the fees, percentages, and charges payable under Table B of the Scale of Official Fees and Percentages in the Third Schedule; and any other fees payable to, or costs, charges, and expenses incurred or authorized by the Official Receiver ;

(c) the deposit or deposits lodged by the petitioning creditor pursuant to these Rules;

(d) the deposit or deposits lodged on any application for the appointment of an Interim Receiver;

(e) the remuneration of the special manager (if any);

(f) the remuneration and charges of the person (if any) appointed to assist the debtor in the preparation of his statement of affairs;

(g) any allowance made to the debtor by the Official Receiver;

(h) the taxed costs of the petitioning creditor;

(i) the remuneration of the trustee;

(j) the taxed charges of any shorthand writer appointed by the Court;

(k) the trustee’s necessary disbursements other than actual expenses of realization;

(l) the costs of any person properly employed by the trustee with the sanction of the Official Receiver;

(m) any allowance made to the debtor by the trustee with the sanction of the creditors by resolution at any general meeting, or the Committee of Inspection or the Court; and

(n) the actual out-of-pocket expenses necessarily incurred by the Committee of Inspection, subject to the approval of the Official Receiver.

Disallowance of costs of unnecessary petition.

128. In any case in which, after a bankruptcy petition has been presented by a creditor against a debtor, and before the hearing of the petition, the debtor files a petition, and a sequestration order is made on the petition of the debtor, unless in the opinion of the Court the estate has benefited thereby, or there are special circumstances which make it just that the costs should be allowed, no costs shall be allowed to the debtor or his solicitor out of the estate, and the sequestration order shall be deemed to have been made on the petition of the petitioning creditor, and the costs of his petition shall be allowed the petitioning creditor.

Apportionment of costs in case of partnership.

129. In the case of a bankruptcy petition against a partnership, the costs payable out of the estates incurred up to and inclusive of the sequestration order shall be apportioned between the joint and separate estates in such proportions as the Official Receiver in his discretion determines.

Costs out of joint or separate estates.

130.—(1.) Where the joint estate of any co-debtors is insufficient to defray any costs or charges properly incurred prior to the appointment of the trustee, the Official Receiver may pay or direct the trustee to pay the costs or charges out of the separate estates of the co-debtors, or one or more of them, in such proportions as in his discretion the Official Receiver thinks fit.

(2.) The Official Receiver may also, as in his discretion he thinks fit, pay or direct the trustee to pay any costs or charges properly incurred, prior to the appointment of the trustee, for any separate estate out of the joint estate or out of any other separate estate, and any part of the costs or charges of the joint estate incurred prior to the appointment of the trustee which affects any separate estate out of that separate estate.

(3.) Where the joint estate of any co-debtors is insufficient to defray any costs or charges properly incurred after the appointment of the trustee, the trustee may, subject to sub-rule (5.) of this rule, pay the costs or charges out of the separate estates of the co-debtors, or one or more of them.

(4.) The trustee may, subject to the next succeeding sub-rule, pay any costs or charges properly incurred for any separate estate, after his appointment, out of the joint estate, and any part of the costs or charges of the joint estate incurred after his appointment which affects any separate estate out of that separate estate.

(5.) No payment under the last preceding sub-rule shall be made out of a separate estate or joint estate by a trustee without the consent by resolution at any general meeting of the creditors of the estate out of which the payment is intended to be made, or, if the creditors withhold, refuse, or otherwise fail to give their consent, without an order of the Court.

Division 16.—Appeals.

Restitutions on appeal.

131. No appeal shall be brought—

(a) without the leave of the Court, to the High Court from any order made by consent, or as to costs only;

(b) without the leave of the Court, from any order relating to property when it is apparent from the proceedings that the money or money’s worth involved does not exceed £50;

(c) in respect of the omission by the Court appealed from to exercise discretionary power, unless the Court has in its judgment, or on application made to it at the hearing, expressly refused to exercise the power, in which case the refusal may be made a ground of appeal.

Time for appeal.

132.—(1.) Subject to the powers of the High Court to extend the time under special circumstances, no appeal to the High Court from any order of the Court shall be brought after the expiration of twenty-one days.

(2.) That period shall be calculated from the time at which the order is signed, entered, or otherwise perfected, or, in the case of the refusal of an application, from the date of the refusal.

Security for costs of appeal.

133. At or before the time of entering an appeal the party intending to appeal shall lodge in the High Court the sum of Twenty pounds to satisfy, in so far as that sum may extend, any costs that the appellant is ordered to pay:

Provided that the High Court may in any special case increase or diminish the amount of the security or dispense therewith.

Notice of appeal.

134. Upon entering an appeal, a copy of the notice of appeal shall forthwith be sent by the appellant to the Registrar, who shall mark thereon the date when received and forthwith file it with the proceedings.

Procedure on appeals.

135. Subject to the four last preceding rules, appeals to the High Court shall be regulated by the Rules of the High Court applicable thereto.

Part III.—Proceedings From Act of Bankruptcy to Discharge.

Division 1.—Declaration of Inability to pay Debts.

Form of declaration.

136.—(1.) A declaration of a debtor of his inability to pay his debts shall be dated, signed, and witnessed, and shall be in accordance with Form 2, with such variations as circumstances require, and shall be notified in the Commonwealth Gazette.

(2.) The witness shall be a solicitor, or justice of the peace, or a Commissioner for taking Declarations, or an Official Receiver or Registrar.

Division 2.—Bankruptcy Notice.

Court to issue notice.

137. A bankruptcy notice issued by the Court shall be in accordance with Form 5.

Issue of notice.

138.—(1.) A creditor, desiring a bankruptcy notice to be issued shall produce to the Registrar an office copy of the judgment on which the notice is founded and file the notice, together with a request for issue, which shall be in accordance with Form 4.

(2.) The creditor shall at the same time lodge with the Registrar two copies of the bankruptcy notice to be sealed and issued for service.

Indorsement of address, &c.

139.—(1.) Every bankruptcy notice shall be indorsed with the name and place of business of the solicitor actually suing out the notice, or if no solicitor is employed, with a memorandum that it is sued out by the creditor in person.

(2.) There shall also be indorsed on every bankruptcy notice an intimation to the debtor that if he has a counter claim, set off, or cross demand which equals or exceeds the amount of the judgment debt, and which he could not have set up in the action in which the judgment was obtained, he must within the time specified in the notice file an affidavit to that effect with the Registrar.

(3.) In the case of a notice served in any of the capital cities of the Commonwealth, the time shall be three days.

(4.) In the case of a notice served elsewhere, the Registrar, when issuing the notice, shall fix the time.

Application to set aside.

140.—(1.) The filing of the affidavit referred to in sub-rule (2.) of the last preceding rule shall operate as an application to set aside the bankruptcy notice, and thereupon the Registrar shall fix a day for hearing the application, and not less than three days before the day so fixed shall give notice thereof both to the debtor and the creditor, and their respective solicitors, if known.

(2.) If the application cannot be heard until after the expiration of the time specified in the notice as the day on which the act of bankruptcy will be complete, the Registrar shall extend the time, and no act of bankruptcy shall be deemed to have been committed under the notice until the application has been heard and determined.

Duration of notice.

141. Subject to the power of the Court to extend the time, a bankruptcy notice shall be served within one month after the issue thereof.

Service of notice.

142. A bankruptcy notice shall be served, and service thereof shall be proved in the like manner as is by these Rules prescribed for the service of a creditor’s petition.

Setting aside notice.

143. When the Court makes an order setting aside the bankruptcy notice it may at the same time declare that no act of bankruptcy has been committed by the debtor under the notice.

Division 3.—Bankruptcy Petition.

Form of petition.

144.—(1.) Every petition shall be fairly written or printed, or partly written and partly printed, and no alterations, interlineations, or erasures shall be made without the leave of the Registrar, except so far as is necessary to adapt a printed form to the circumstances of the particular case.

(2.) A debtor’s petition shall be in accordance with Form 3, and a creditor’s petition shall be in accordance with Form 9.

Description and address of debtor.

145.—(1.) Where a petition is presented by a debtor he shall, besides inserting therein his name and description, and his address at the date when the petition was presented, further describe himself as lately residing or carrying on business at the address or several addresses, as the case may be, at which he has incurred debts and liabilities which at the date of the petition remain unpaid or unsatisfied.

(2.) Where a petition is presented against a debtor who resides or carries on business at an address other than the address at which the debtor was residing or carrying on business at the time of contracting the debt or liability in respect of which the petition is presented, the petitioning creditor, in addition to stating in the petition the description of the debtor, as of his then present address and description, shall, in the petition, describe the debtor as lately residing or carrying on business at the address at which he was residing or carrying on business when the debt or liability was incurred.

(3.) Where a sequestration order is made against a debtor on the petition of a creditor, the Court may amend any error or supply any omissions in the name or description of the debtor in any of the proceedings prior to or under the bankruptcy, and notice thereof shall be given by the Official Receiver by advertisement in the Commonwealth Gazette.

(4.) Where any such amendment is made, the proceedings as amended shall in all Courts be read and have the like force and effect as if they had originally been in the amended form.

(5.) The costs of and incidental to any such amendment shall be paid out of the estate of the debtor.

Attestation.

146.—(1.) Every bankruptcy petition shall be attested.

(2.) If it be attested in Australia the witness shall be a solicitor, or the Official Receiver or Registrar, or any person authorized under the Statutory Declarations Act 1911-1922 to take statutory declarations.

(3.) If it be attested out of Australia the witness shall be a judge or a magistrate or a British Consul or a notary public.

Deposit by petitioner.

147.—(1.) Upon the presentation of a petition either by the debtor or by a creditor the petitioner shall deposit with the Registrar the sum of Five pounds, and such further sum (if any) as the Court

from time to time directs, to cover the fees and expenses to be incurred by the Official Receiver; and no petition shall be received unless the receipt of the Registrar for the deposit payable on the presentation of the petition is produced to the proper officer of the Court.

(2.) The Official Receiver shall account for the money so deposited to the creditor, or, as the case may be, to the debtor’s estate, and any sum so paid by a petitioning creditor shall be repaid to the creditor (except and so far as the deposit may be required by reason of insufficiency of assets for the payment of the fees of and expenses incurred by the Official Receiver) out of the proceeds of the estate in the priority prescribed by these Rules.

Division 4.—Creditor’s Petition.

Security for costs.

148. A petitioning creditor who is resident abroad, or whose estate is vested in a trustee under any law relating to bankruptcy, or against whom a petition is pending under the Act, or who has made default in payment of any costs ordered by the Court to be paid by him to the debtor, may be ordered to give security for costs to the debtor.

Verification and copies.

149. Every creditor’s petition shall be verified by affidavit, and when it is filed there shall be lodged with it two or more copies to be sealed and issued to the petitioner.

Who to verify.

150. When the petitioning creditor cannot himself verify all the statements contained in his petition, he shall file in support of the petition the affidavit of some person who can depose to them.

Joint petitioners.

151. Where a petition is presented by two or more creditors jointly, it shall not be necessary that each creditor shall depose to the truth of all the statements which are within his own knowledge; but it shall be sufficient that each statement in the petition is deposed to by some one within whose knowledge it is.

Investigation of petition.

152. After the presentation of a creditor’s petition, and before sealing the copies of the petition for service, the statements in the petition shall be investigated by the Registrar, and where some of the statements in the petition cannot be verified by affidavit, witnesses may be summoned to verify them.

Personal service.

153.—(1.) A creditor’s petition shall be personally served by delivering to the debtor a sealed copy of the filed petition.

(2.) A petition shall be served upon the debtor by an officer or bailiff or by the creditor or his solicitor, or by some person in their employ.

Substituted service.

154. If personal service cannot be effected, the Court may extend the time for hearing the petition, or if the Court is satisfied by affidavit or other evidence on oath that the debtor is keeping out of the way to avoid that service, or service of any other legal process, or that for any other cause prompt personal service cannot be effected, it may order substituted service to be made by delivery of the petition to some adult inmate at his usual or last known residence or place of business, or by registered letter, or in such other manner as the Court directs, and that the petition shall then be deemed to have been duly served on the debtor.

Proof of service.

155. Service of the petition shall be proved by affidavit, with a sealed copy of the petition attached, which shall be filed in Court forthwith after the service.

Service out of jurisdiction.

156. Where a debtor petitioned against is not in Australia, the Court may order service to be made within such time and in such manner and form as it thinks fit.

Death of debtor before service of petition.

157. If a debtor against whom a bankruptcy petition has been filed dies before service thereof, the Court may order service to be effected on the personal representatives of the debtor, or on such other persons as the Court thinks fit.

Division 5.—Hearing of Petition.

Proceedings on petition.

Cf. No. 37 1924 ss. 56, 57.

158. A creditor’s petition shall not be heard until the expiration of eight days from the service thereof:

Provided that where the act of bankruptcy alleged is that the debtor has filed a declaration of inability to pay his debts, or where it is proved to the satisfaction of the Court that the debtor has absconded, or in any other case for good cause shown, the Court may, on such terms, if any, as the Court thinks fit to impose, hear the petition at such earlier date as the Court deems expedient.

Time of hearing.

159. The Registrar shall appoint the time and place at which the petition will be heard, and notice thereof shall be written on the petition and sealed copies, and where the petition has not been served the Registrar may from time to time alter the first day so appointed, and appoint another day and hour.

Several respondents.

160. Where there are more respondents than one to a petition, the rules as to service shall be observed with respect to each respondent, but where all the respondents have not been served, the petition may be heard separately or collectively as to the respondent or such of the respondents as has or have been served, and separately or collectively as to the respondents not then served according as service upon them is effected.

Debtor intending to show cause.

161. Where a debtor intends to show cause against a petition, he shall file a notice with the Registrar specifying the statements in the petition which he intends to deny or dispute, and transmit by post to the petitioning creditor and his solicitor, if known, a copy of the notice three days before the day on which the petition is to be heard:

Provided that, where the act of bankruptcy relied on is non-compliance with a bankruptcy notice, no objection to the bankruptcy notice shall be entertained at the hearing of the creditor’s petition if the objection could reasonably have been taken before the expiration of the time specified in the endorsement on the bankruptcy notice for that purpose.

Non-appearance of debtor.

162. If the debtor does not appear at the hearing, the Court may make a sequestration order on such proof of the statements in the petition as the Court thinks sufficient.

Appearance of debtor to show cause.

163. On the appearance of the debtor to show cause against the petition, the petitioning creditor’s debt, and the act of bankruptcy, or such of those matters as the debtor has given notice that he intends to dispute, shall be proved, and if any new evidence of those matters, or any of them, is given, or any witness to the matter is not present for cross-examination, and further time is desired to show cause, the Court shall, if the application appears to the Court to be reasonable, grant such further time as the Court thinks fit.

Non-appearance of creditor.

164. If any creditor neglects to appear on his petition, no subsequent petition against the same debtor or debtors, or any of them, either alone or jointly with any other person, shall be presented by the same creditor with respect to the same act of bankruptcy without the leave of the Court to which the previous petition was presented.

Cross-examination of deponents.

165.—(1.) Every witness who has made an affidavit in any proceeding or matter before the Court shall be subject to oral cross-examination in the same manner as if the evidence given in his affidavit had been given by him orally, and may be re-examined by the party using the affidavit.

(2.) The witness shall attend before the Court to be so examined, upon due notice being given to the party on whose behalf the affidavit was filed, and upon payment to that party or his solicitor of the reasonable expenses of the deponent attending the examination; and those expenses, if paid, shall be deemed costs in the proceeding or matter, unless the Court otherwise directs.

(3.) After the notice referred to in the last preceding sub-rule has been duly given, and the expenses of the deponent attending the examination duly paid or tendered, the affidavit of the deponent shall not be used or admissible in evidence on behalf of the party filing it unless the deponent is present for examination in pursuance of this rule.

Proceedings after trial of disputed question.

166. Where proceedings on a petition have been stayed for the trial of the question of the validity of the petitioning creditor’s debt, and the question has been decided in favour of the validity of the debt, the petitioning creditor may apply to the Registrar to fix a day on which further proceedings on the petition may be had, and the Registrar on production of the judgment of the Court in which the question was tried, or an office copy or certificate thereof, shall give notice to the petitioner by post of the time and place fixed for the hearing of the petition, and a like notice to the debtor at the address given in his notice to dispute, and also to their respective solicitors, if known.

Application to dismiss.

167. Where proceedings on a petition have been stayed for the trial of the question of the validity of the petitioning creditor’s debt, and the question has been decided against the validity of the debt, the debtor may apply to the Registrar to fix a day on which he may apply to the Court for the dismissal of the petition with costs, and the Registrar on the production of the judgment of the Court in which the question was tried, or an office copy or certificate thereof, shall give notice to both the petitioner and debtor (and to their respective solicitors, if known) by post of the time and place fixed for the hearing of the application.

Order for extension of time.

168.—(1.) On an application for extension of time for the hearing of a petition, no order shall be made for an extension beyond fourteen days from the day fixed for the hearing of the petition unless the Court is satisfied that the extension of time will not be prejudicial to the general body of creditors.

(2.) Any costs occasioned by the application shall not be allowed out of the estate unless go ordered by the Court.

Adjournments of hearing.

169. After the expiration of one month from the day appointed for the first hearing of a petition (provided the petition has been duly served), no further adjournment of the hearing merely by consent of the parties shall be allowed, except for the reasons set forth in Rule 163 of these Rules, or for such other sufficient reason to be stated in the order for adjournment as the Court thinks fit; but in every such case, unless an order for adjournment is made, the Court shall either make a sequestration order or dismiss the petition.

Division 6.—Interim Receiver.

Appointment of Interim Receiver.

170. After the presentation of a petition and before sequestration, upon the application of a creditor, or of the debtor himself, and upon proof by affidavit of sufficient grounds for the appointment of the Official Receiver as Interim Receiver of the property of the debtor, or any part thereof, the Court may, if it thinks fit, and upon such terms as are just, make such appointment.

Form and contents of order.

171. Where an order is made appointing the Official Receiver to be Interim Receiver of the property of the debtor, the order shall bear the number of the petition in respect of which it is made, and shall state the locality of the property of which the Official Receiver is ordered to take possession.

Deposit.

172. Before any such order is issued, the person who has made the application therefor shall deposit with the Official Receiver the sum of Five pounds towards the prescribed fee for the Official Receiver, and such further sum as the Court directs for the expenses which may be incurred by him.

Further deposit if necessary.

173.—(1.) If the sum of Five pounds, or such further sum so to be deposited for the expenses which may be incurred by the Official Receiver, proves to be insufficient, the person, on whose application the order has been made, shall from time to time deposit with the Registrar such additional sum as the Court, on the application of the Official Receiver, from time to time directs; and that sum shall be deposited within twenty-four hours after the making of the order therefor.

(2.) If the additional sum is not so deposited, the order appointing the Interim Receiver may be discharged by the Court.

Repayment of deposit.

174. If an order appointing an Interim Receiver is followed by a sequestration order, the deposits made by the creditor, on whose application the Interim Receiver was appointed, shall be repaid to him (except and so far as the deposits are required, by reason of insufficiency of assets, for the payment of the fees chargeable, and the expenses incurred by the Interim Receiver), out of the proceeds of the estate in the order of priority prescribed by these Rules.

Damages if petition dismissed.

175. Where, after an order has been made appointing an Interim Receiver, the petition is dismissed, the Court shall, upon application to be made within twenty-one days from the date of the dismissal thereof adjudicate with respect to any damages or claim thereto arising out of the appointment, and shall make such order as the Court thinks fit; and that decision or order shall be final and conclusive between the parties, unless the order be appealed from.

Division 7.—Sequestration Order.

Form and contents.

176.—(1.) A sequestration order shall be in accordance with Form 25 or 26 as the case requires.

(2.) Where the sequestration order is made on a creditor’s petition there shall be stated in the order the nature and date, or dates, of the act, or acts, of bankruptcy upon which the order has been made.

(3.) Every such order shall contain at the foot thereof a notice requiring the debtor to attend on the Official Receiver forthwith on the service thereof at the place mentioned therein.

Service of sequestration order.

177. The Official Receiver shall cause a copy of the sequestration order made on a creditor’s petition sealed with the seal of the Court to be served on the debtor.

Sequestration order on bankruptcy notice.

178. A sequestration order shall not be made against a debtor on a petition in which the act of bankruptcy alleged is non-compliance with a bankruptcy notice within the appointed time, where the debtor has applied to set aside the notice, until after the hearing of the application, or where the notice has been set aside, or during a stay of the proceedings thereon; but in that case the petition shall be adjourned or dismissed as the Court thinks fit.

Stay of proceedings.

179. There may be included in a sequestration order an order staying any action or proceeding against the debtor or staying proceedings generally.

Notices.

No. 37, 1924, s. 65.

180.—(1.) When a sequestration order is made, the Registrar shall forthwith give notice thereof in accordance with Form 185a to the Inspector-General, and to the Registrar of each bankruptcy district and to the Registrar of Titles or Registrar-General or other proper officer of each State.

(2.) The Registrar of each district shall keep a register of such notices in accordance with Form 185b.

(3.) Where a sequestration order is made the Official Receiver shall forthwith send notice thereof to such local paper or papers as he selects.

(4) The Registrar shall, upon the request of the Official Receiver or any creditor, and on payment of the sum of Five shillings, telegraph to the Sheriff or other officer who may be in possession of the estate or effects of the bankrupt, notice that a sequestration order has been made.

Costs of petition, &c.

181.—(1.) All proceedings under the Act down to and including the making of a sequestration order shall be at the cost of the party prosecuting them, unless the Court orders that the debtor shall pay the whole or any part of them, or in the case of a sequestration order being made on a debtor’s petition while a creditor’s petition against the debtor is pending, that they shall be paid out of the estate, but when a sequestration order is made on a creditor’s petition, the costs of the petitioning creditor (including the costs of the bankruptcy

notice, if any, sued out by him shall be taxed and payable out of the proceeds of the estate, in the order of priority prescribed by these Rules.

(2.) When the proceeds of the estate are not sufficient for the payment of any costs necessarily incurred by the Official Receiver (in excess of the deposit) between the making of a sequestration order and the conclusion of the first meeting of creditors, the Court may order the costs to be paid by the party prosecuting the proceedings.

Applications to annul sequestration order, and to stay proceedings thereunder.

182.—(1.) An application to the Court to annul a sequestration order or to stay proceedings thereunder, shall not be heard except upon proof that notice of the intended application, and a copy of the affidavits in support thereof, have been duly served upon the Official Receiver.

(2.) Unless the Court gives leave to the contrary, notice of any such application shall be served on the Official Receiver and all creditors not less than seven days before the day named in the notice for hearing the application.

(3.) Pending the hearing of the application, the Court may make an interim order staying such of the proceedings as it thinks fit.

Report by Official Receiver where ground of application to annul sequestration order is payment of debts in full.

183.—(1.) Where an application is made to the Court to annul a sequestration order on the ground that the debts of the debtor have been paid in full, the Official Receiver shall make and file four days before the day appointed for hearing the application a report as to the debtor’s conduct and affairs (including a report as to his conduct during the proceedings), and the Court on the hearing of the application shall hear and consider that report and such further evidence as is adduced by any party and any objections which are made by or on behalf of the trustee (if any) or any creditor whom the Court may permit to appear thereon.

(2.) For the purposes of the application the report shall be prima facie evidence of the statements therein contained.

(3.) For the purposes of this rule “creditor” includes all creditors mentioned in the debtor’s statement of affairs and all creditors who have notified the Official Receiver or trustee that they have, or at the date of the sequestration order had, claims against the debtor.

Division 8.—Public Examination of Bankrupt.

Time for holding public examination.

No. 37 1924 s. 68.

184.—(1.) When a sequestration order has been made against a debtor, the Official Receiver shall make an application to the Court to appoint a day and hour for holding a public examination of the debtor, and, upon such application being made, the Court may, by an order, appoint a day and hour for the public examination, and may order the debtor to attend the Court upon such day and at such hour.

(2.) A public sitting for the examination of the bankrupt may be held in pursuance of section 69 of the Act if the bankrupt has not obtained his discharge within six months after sequestration.

Default by debtor in attending.

Ib. s. 77 (1) (d).

185. If the bankrupt fails to attend the public examination or any adjournment thereof at the time and place appointed by any order for holding or proceeding with the examination or adjournment, and no good cause is shown by him for that failure, it shall be lawful for the Court, upon its being proved to the satisfaction of the Court that the order requiring the bankrupt to attend the public examination was duly served, and without any further notice to him, to issue a warrant for his arrest as provided by section 77 (1) (d) of the Act, or to make such other order as the Court thinks just.

Notice to creditors or examination.

186. Where an order is made appointing the time and place for holding the public examination of a debtor, the Official Receiver shall serve a copy thereof on the debtor, and shall give to the creditors notice of the order, and of the time and place appointed thereby, and shall publish the notice in the Commonwealth Gazette and such local paper or papers as he thinks fit.

Adjournments sine die

187.—(1.) Where the Court is of opinion that a debtor is failing to disclose his affairs, or where the debtor has failed to attend the public examination or any adjournment thereof, or where the debtor has not complied with any order of the Court in relation to his accounts, conduct, dealings, and property, and no good cause is shown by him for the failure, the Court may adjourn the public examination sine die, and may make such further or other order as the Court thinks fit.

(2.) The Court may on the application either of the Official Receiver or of the debtor appoint a day for proceeding with a public examination which has been adjourned sine die.

Proceedings after adjournment sine die.

188.—(1.) Where an examination has been adjourned sine die, and the debtor desires to have a day appointed for proceeding with his public examination, the expense of gazetting, advertising, and giving notice to creditors of the day to be appointed for proceeding with the examination shall, unless the Official Receiver or trustee, as the case may be, consents to the costs being paid out of the estate, be at the cost of the debtor, who shall, before any day is appointed for proceeding with the public examination, deposit with the Official Receiver such sum as the Official Receiver thinks sufficient to defray the expense.

(2.) The balance of the deposit after defraying the expense shall be returned to the debtor.

Notice of proceeding after adjournment sine die.

189. In any case in which a public examination has been adjourned sine die, and the Court afterwards makes an order for proceeding with the public examination, notice to creditors of the time and place appointed for proceeding with the public examination shall, seven days before the day appointed, be sent by the Official Receiver, and be inserted in the Commonwealth Gazette, and in the local paper or papers in which the notice of the first holding of the public examination was inserted.

Public examination of bankrupt who is a lunatic, &c.

No. 37 1924 s. 68 (11).

190.—(1.) An application for an order dispensing with the public examination of a bankrupt or directing that the debtor be examined in some manner or at some place other than is usual, on the ground that the debtor is a lunatic or suffers from mental or physical affliction or disability rendering him unfit to attend a public examination, may be made by the Official Receiver, or by any person who has been appointed by any Court having jurisdiction so to do to manage the affairs of or represent the debtor, or by any relative or friend of the debtor who appears to the Court to be a proper person to make the application.

(2.) Where the application is made by the Official Receiver, it may be made ex parte, and the evidence in support of the application may be given by a report of the Official Receiver to the Court, the contents of which report shall be received as prima facie evidence of the matters therein stated.

(3.) Where the application is made by some person other than the Official Receiver, it shall be made by motion, of which notice shall be given to the Official Receiver and trustee (if any), and shall, except in the case of a lunatic so found by inquisition, be supported by an affidavit of a duly registered medical practitioner as to the physical and mental condition of the debtor.

(4.) Where the order is made on the application of the Official Receiver, the expense of holding the examination shall be deemed to be an expense incurred by the Official Receiver within the meaning of rule 127 of these Rules.

(5.) Where the application is made by any other person, he shall, before any order is made on the application, deposit with the Official Receiver such sum as the Official Receiver certifies to be necessary for the expenses of the examination.

(6.) The order to be made on the application shall be in accordance with Form 70 or Form 71, as the case requires.

Division 9.—Service of Proceedings.

Service where debtor abroad.

191. Where a bankrupt against whom a sequestration order has been made is not in Australia, the Court may order service, on the debtor, of the sequestration order, order to attend the public examination or any adjournment thereof, or of any other order made against, or summons issued for the attendance of, the debtor, to be made within such time and in such manner and form as it thinks fit.

Division 10.—Composition or Scheme.

See Parts V.– VI., pp. 48-50.

Forms where proposal submitted by debtor.

192. Where a bankrupt intends to submit a proposal for a composition or scheme, Forms 35, 36, 75, 76, and 77, shall be used as required for the purpose of the meeting of creditors for consideration of the proposal.

Application by debtor or Official Receiver for approval of Court.

No. 37, 1924 s. 71 (5).

193.—(1.) Where the creditors have accepted a composition or scheme, the trustee or the bankrupt may forthwith apply to the Court to fix a day for the hearing of an application for the approval of the composition or scheme.

(2.) The trustee shall not by making the application be deemed necessarily to approve the composition or scheme.

Notice to trustee.

194. Any person other than the trustee who applies to the Court to approve of a composition or scheme shall, not less than ten days before the day appointed for hearing the application, send notice of the application to the trustee.

Notice to creditors.

195. Whenever an application is made to the Court to approve a composition or scheme, the trustee shall, not less than three days before the day appointed for hearing the application, send notice of the application to every creditor who has proved his debt.

Trustee’s report to be filed.

196. In every case of an application to the Court to approve a composition or scheme, the report of the trustee shall be filed not less than four days before the time fixed for hearing the application.

Hearing.

197. On the hearing of any application to the Court to approve a composition or scheme, the Court shall, in addition to considering the report of the trustee, hear the trustee thereon if the trustee desires to be heard.

Costs of application by debtor.

198. No costs incurred by a debtor, of or incidental to an application to approve a composition or scheme, shall be allowed out of the estate if the Court refuses to approve the composition or scheme.

Evidence and order.

199.—(1.) The Court, before approving a composition or scheme, shall, in addition to investigating the other matters as required by the Act, require proof that the provisions of sub-sections (1.) and (2.) of section 71 of the Act have been complied with.

(2.) An order approving a composition or scheme shall be in accordance with Form 85.

(3.) The Registrar shall forthwith send notice to the Official Receiver of every order made on an application to approve a composition or scheme, and the Official Receiver shall publish the notice in the Commonwealth Gazette.

Provision in composition or scheme for costs and charges.

200. Where a composition or scheme has been duly accepted by the creditors, the composition or scheme shall not be approved by the Court unless the Court is satisfied, on the report of the trustee, that provision is made for payment of all proper costs, charges, fees, and expenses of and incidental to the proceedings.

Fee on application.

201. The fee prescribed to be charged for and in respect of an application to the Court to approve a composition or scheme may be allowed and paid out of the estate of the debtor in any case in which there are sufficient funds in the hands of the trustee available for the purpose.

Correction of formal slips, &c.

202. At the time a composition or scheme is approved, the Court may correct or supply any accidental or formal slip, error, or omission therein, but no alteration in the substance of the composition or scheme shall be made.

Proceedings if scheme approved.

203. When a composition or scheme is approved, the trustee shall, on payment of all proper costs,, charges, fees, and expenses of and incidental to the proceedings, forthwith put the debtor (or, as the case may be, the trustee, under the composition or scheme, or the other person or persons to whom under the composition or scheme the property of the debtor is to be assigned) into possession of the debtor’s property.

Cases in which Official Receiver is to be trustee.

204. In every case of a composition or scheme in which a trustee is not appointed, or, if appointed, declines to act, or becomes incapable of acting, or is removed, the Official Receiver shall, unless and until another trustee is appointed by the creditors, be the trustee for the purpose of receiving and distributing the composition, or for the purpose of administering the debtor’s property, and carrying out the terms of the composition or scheme, as the case may be.

Security by trustee under composition or scheme.

205.—(1.) Where under a composition or scheme of arrangement a trustee is appointed, he shall, after the composition or scheme has been approved by the Court, give security to the satisfaction of the Court in like manner as if he were a trustee in bankruptcy.

(2.) If the trustee fail to give such security within the time required, he may be removed by the Court on the application of the Official Receiver or any creditor.

Default is payment of composition.

206. Where a composition or scheme has been approved, and default is made in any payment thereunder either by the bankrupt or the trustee (if any), no action to enforce the payment shall lie, but the remedy of any person aggrieved shall be by application to the Court.

C. 17431.—2

Vesting of property on annulment of composition.

207. Where a composition or scheme is annulled, the property of the bankrupt shall, unless the Court otherwise directs, forthwith vest in the Official Receiver to whom the estate was originally assigned, without any special order being made or necessary.

Annulment of composition or scheme.

208. Where a composition or scheme is annulled, the trustee under the composition or scheme shall account to the trustee under the bankruptcy for any money or property of the bankrupt which has come to his hands, and pay or deliver over to the trustee any money or property which has not been duly administered.

Dividends under composition or scheme.

209. Where under any composition or scheme provision is made for the payment of any moneys to creditors entitled thereto, and any claim, in respect of which a proof has been lodged, is disputed, the Court may, if it thinks fit, direct that the amount which would be payable upon the claim, if established, shall be secured in such manner as the Court directs, until the determination of the claim so disputed; and on the determination thereof, the sum so secured shall be paid as the Court directs.

Proof of debts in composition or scheme.

210.—(1.) Every person claiming to be a creditor under any composition or scheme, who has not proved his debt before the approval of the composition or scheme, shall lodge his proof with the trustee thereunder, if any, or, if there is no such trustee, with the Official Receiver, who shall admit or reject the proof.

(2.) No creditor shall be entitled to enforce payment of any part of the sums payable under a composition or scheme unless and until he has proved his debt and his proof has been admitted.

Application of provisions of Division.

211. The provisions of this Division shall apply to compositions or schemes under section 71 of the Act, and so far as applicable also to compositions or schemes under Parts XI. and XII. of the Act.

Division 11.—Statement of Affairs.

How made out.

No. 37 1921 s. 66.

212.—(1.) The Official Receiver shall furnish to every debtor instructions for the preparation of his statement of affairs.

(2.) The statement of affairs shall be in accordance with Form 29.

Extension of time.

Ib. s. 66 (2).

213. Where any debtor requires any extension of the time for the filing by him of his statement of affairs, he shall apply to the Registrar, who may, if he thinks fit, give a written certificate extending the time, which certificate shall be filed.

Division 12.—Proof of Debts.

Form of proof.

Ib. ss. 81-83.

214.—(1.) A creditor’s proof shall be in accordance with Form 57.

(2.) The affidavit of proof may be sworn before any Commissioner for Affidavits, not being the solicitor or clerk of the solicitor of the deponent, or before any Justice of the Peace or any Commissioner for Declarations.

Workmen’s wages.

215.—(1.) In any case in which it appears from the debtor’s statement of affairs that there are numerous claims for wages by workmen and others employed by the bankrupt, it shall be sufficient if one proof for all such claims is made either by the bankrupt or his foreman, or some other person on behalf of all such creditors.

(2.) That proof shall be in accordance with the Form 59, and shall have annexed thereto, as forming part thereof, a schedule setting forth the names of the workmen and others, and the amounts severally due to them.

(3.) Any proof made in compliance with this Rule shall have the same effect as if separate proofs had been made by each of the workmen and others.

Production of bills of exchange and promissory notes.

216. Where a creditor seeks to prove in respect of a bill of exchange, promissory note, or other negotiable instrument or security on which the debtor is liable, the bill of exchange, note, instrument, or security must, subject to any special order of the Court made to the contrary, be produced to the Official Receiver, chairman of a meeting, or trustee, as the case may be, before the proof can be admitted either for voting or for dividend.

Time for lodging proofs.

217.—(1.) A proof intended to be used at the first meeting of creditors shall be lodged with the Official Receiver not later than the time mentioned for that purpose in the notice convening the meeting, which time shall not be earlier than twelve o’clock at noon of the day but one before, nor later than twelve o’clock at noon of the day before, the day appointed for the meeting.

(2.) A proof intended to be used at an adjournment of the first meeting (if not lodged in time for the first meeting) shall be lodged not less than twenty-four hours before the time fixed for holding the adjourned meeting.

Transmission of proofs to trustee.

218. Where a trustee is appointed in any matter, all proofs of debts that have been received by the Official Receiver shall be handed over to the trustee; but the Official Receiver shall first make a list of those proofs, and take a receipt thereon from the trustee for those proofs.

Proofs to be sent by Official Receiver to Registrar.

219. Where no other trustee is appointed, the Official Receiver shall, forthwith after the final payment has been made in a composition or scheme of arrangement duly approved by the Court, and in a bankruptcy after a final dividend has been declared, send to the Registrar all proofs tendered in the proceeding, with a list thereof certified to be correct, distinguishing in the list the proofs which were wholly or partly admitted, and the proofs which were wholly or partly rejected.

Proofs to be sent by trustee to Registrar.

220. Every trustee in bankruptcy, other than the Official Receiver, shall, on the first day of every month, send to the Registrar a certified list of all proofs, if any, received by him from the Official Receiver, or otherwise tendered during the last preceding month, distinguishing in those lists the proofs admitted, those rejected, and such as stand over for further consideration; and, in the case of proofs admitted or rejected, he shall transmit the proofs themselves for the purpose of being filed.

Procedure where creditor appeals.

221.—(1.) The Official Receiver, or, as the case may be, the trustee, shall within three days after receiving notice from a creditor of his intention to appeal against a decision rejecting a proof, file the proof with the Registrar, with a memorandum thereon of his disallowance thereof.

(2.) After the appeal has been heard by the Court, the proof, unless wholly disallowed, shall be given back to the Official Receiver or trustee, as the case may be.

Time for admission or rejection of proof by Official Receiver.

222. Subject to the power of the Court to extend the time, the Official Receiver, as trustee, not later than fourteen days from the latest date specified, in the notice of his intention to declare a dividend, as the time within which the proofs must be lodged, shall, in writing, either admit or reject wholly or in part every proof lodged with him, or require further evidence in support thereof.

Time for admission or rejection of Proof by trustee.

223. Subject to the power of the Court to extend the time, the trustee, other than the Official Receiver, within twenty-eight days after receiving a proof which has not previously been dealt with by the Official Receiver, shall, in writing, either admit or reject it wholly or in part, or require further evidence in support thereof:

Provided that where the trustee has given notice of his intention to declare a dividend he shall within fourteen days after the date mentioned in the notice as the latest date up to which proofs must be lodged, examine and in writing admit or reject every proof which has not been already admitted or rejected, and give notice of his decision rejecting a proof wholly or in part to the creditor affected thereby.

Notice of admission of proof.

224. Where a creditor’s proof has been admitted the notice of dividend shall be sufficient notification to the creditor of the admission.

Appeal from rejection of proof.

225. Subject to the power of the Court to extend the time, no application to reverse or vary the decision of an Official Receiver or trustee in rejecting a proof shall be entertained after the expiration of twenty-one days from the date of the decision complained of.

Costs of appeals from decisions as to proofs.

226. The Official Receiver shall in no case be personally liable for costs in relation to an appeal from his decision rejecting any proof wholly or in part.

Division 13.—Disclaimer of Lease.

Disclaimer of lease.

227.—(1.) A lease may be disclaimed without the leave of the Court in any of the following cases, namely:—

(a) Where the bankrupt has not sub-let the demised premises or any part thereof or created a mortgage or charge upon the lease, and—

(i) the rent reserved is less than £78 per annum; or

(ii) the estate is administered under the provisions of section 154 of the Act; or

(iii) the trustee serves the lessor with notice of his intention to disclaim, and the lessor does not within fourteen days after the receipt of the notice give notice to the trustee requiring the matter to be brought before the Court; or

(b) Where the bankrupt has sub-let the demised premises or created a mortgage or charge upon the lease, and the trustee serves the lessor and the sub-lessee or the mortgagee with notice in accordance with Form 105 of his intention to disclaim, and neither the lessor nor the sub-lessee or the mortgagee, or any of them, within fourteen days after the receipt of the notice requires the matter to be brought before the Court.

(2.) Except as provided by this rule the disclaimer of a lease without the leave of the Court shall be void.

(3.) Where a trustee disclaims a leasehold interest he shall forthwith file the disclaimer with the proceedings in the Court; and the disclaimer shall contain particulars of the interest disclaimed, and a statement of the persons to whom notice of the disclaimer has been given. Until the disclaimer is filed by the trustee the disclaimer shall be inoperative.

(4.) Where, in pursuance of notice by the trustee of his intention to disclaim a leasehold interest, the lessor, sub-lessee, or mortgagee requires the trustee to apply to the Court for leave to disclaim, the costs of the lessor, sub-lessee, or mortgagee, shall not be allowed out of the estate of the bankrupt, except in cases in which the Court is satisfied that such application was necessary in order to do justice between the parties.

(5.) A disclaimer made without leave of the Court under this Rule shall not be void or otherwise affected on the ground only that the notice required by this Rule has not been given to some person who claims to be interested in the demised property.

(6.) Where any person claims to be interested in any part of the property of the bankrupt burdened with onerous covenants, he shall, at the request of the Official Receiver or trustee, furnish a statement of the interest so claimed by him.

Division 14.—Dividends.

Notice of intended dividend.

No. 37 1924 ss. 112–118.

228.—(1.) Not more than two months before declaring a dividend, the trustee shall give notice of his intention to do so to the Official Receiver in order that the notice may forthwith be published in the Commonwealth Gazette and in such local newspaper or newspapers as he thinks proper, and at the same time to such of the creditors mentioned in the bankrupt’s statement of affairs as have not proved their debts.

(2.) The notice shall specify the latest date up to which proofs shall be lodged, which shall be not less than fourteen days from the date of the notice.

(3.) Where any creditor, after the date mentioned in the notice of intention to declare a dividend as the latest date upon which proofs may be lodged, appeals against the decision of the Official Receiver or trustee rejecting a proof, the appeal shall, subject to the power of the Court to extend the time in special cases, be commenced, and notice thereof given to the Official Receiver or trustee within seven days from the date of the notice of the decision against which the appeal is made, and the Official Receiver or trustee shall in that case make provision for the dividend upon the proof, and the probable cost of the appeal in the event of the proof being admitted.

(4.) Where no appeal has been commenced within the time specified in this Rule, the trustee shall exclude all debts and claims in respect of which proofs have been rejected from participation in the dividend.

(5.) Immediately after the expiration of the time fixed by this Rule for appealing against the decision of the trustee, he shall proceed to declare a dividend, and shall give notice to the Official Receiver (in order that the notice may be published in the Commonwealth Gazette), and shall also send a notice of dividend to each creditor whose proof has been admitted, accompanied by a statement showing the position of the estate.

(6.) Notice of intention to declare a dividend, or of the declaration of a dividend, not exceeding one shilling in the pound, need not be advertised.

(7.) The notices shall be in accordance with Forms 114, 116, 117, 118, and 119.

(8.) If it becomes necessary, in the opinion of the trustee, to postpone the declaration of a dividend beyond the limits prescribed, the trustee shall, subject to the Act, give a fresh notice of his intention to declare a dividend to the Official Receiver in order that it may forthwith be published in the Commonwealth Gazette and advertised; but it shall not be necessary for the trustee to give a fresh notice to such of the creditors mentioned in the bankrupt’s statement of affairs as have not proved their debts.

(9.) In all other respects the same procedure shall follow the fresh notice as would have followed the original notice.

Production of bills, notes, etc.

No. 27 1909.

229. Subject to the Bills of Exchange Act 1909, and subject to the power of the Court in any other case on special grounds to order production to be dispensed with, every bill of exchange, promissory note, or other negotiable instrument or security, upon which proof has been made, shall be exhibited to the trustee before payment of the dividend thereon, and the rate of divided paid shall be endorsed on the instrument.

Dividend may be sent by post.

230. The amount of the dividend may, at the request and risk of the creditor, be transmitted to him by post.

Payment of dividends to a nominee.

231. If a creditor desires that a dividend to which he is entitled shall be paid to some other person, he may lodge with the trustee a request in accordance with Form 121 to that effect, which shall be a sufficient authority for the payment of the dividend to the person therein named.

Division 15.—Discharge.

Application.

No. 37 1924 Part VII. ss. 119–125.

232.—(1.) A bankrupt intending to apply for his discharge shall produce to the Registrar a certificate from the Official Receiver or trustee specifying the number of his creditors of whom the Official Receiver or trustee has notice (whether they have proved or not).

(2.) The Registrar shall, not less than 28 days before the day appointed for hearing the application, give notice of the time and place of the hearing of the application to the Official Receiver and trustee, and the Official Receiver shall forthwith publish notice thereof in the Commonwealth Gazette.

(3.) Notice in accordance with Form 137 of the day appointed for hearing of the bankrupt’s application for discharge shall be sent to each creditor not less than fourteen days before the day so appointed.

Opposed applications.

Ib. s. 24 (1) (f).

233. In any case in which an application is made to the Court by a bankrupt for his discharge, and the Official Receiver reports to the Court any fact, matter, or circumstance which would, under the Act, justify the Court in refusing an unconditional order of discharge, the application shall be deemed to be an opposed application within the meaning of section 24 (1) (f) of the Act.

Report of Official Receiver.

234. In every case of an application by a bankrupt for his discharge, the report of the Official Receiver shall be filed not less than seven days before the time fixed for hearing the application.

Nature of report of Official Receiver.

235.—(1.) The report of the Official Receiver on a bankrupt’s application for an order of discharge shall afford the fullest possible information with regard to the bankrupt’s conduct and affairs and the cause of his bankruptcy.

(2.) It shall be the duty of the Official Receiver, whether the report is favorable or otherwise, to bring under the notice of the Court all facts which the Court ought to have in mind in considering whether an order should or should not be granted.

(3.) It shall not be sufficient for the Official Receiver to say that he knows of no reason why an order should not be granted.

Report of Official Receiver on books.

236. The Official Receiver in every report on an application for an order of discharge shall state either that the bankrupt did keep such books of account as are usual and proper in the business or occupation carried on by him, and the name and character of those books, or, if he did not keep such books of account as are usual and proper in the business or occupation carried on by him, shall specify the books which, in his opinion, should have been kept by the bankrupt, and shall state clearly the names and characters of those books which the bankrupt has omitted to keep.

Procedure where application not opposed.

237.—(1.) On the hearing of an application by a bankrupt for an order of discharge, if the application is not opposed, the Court may take into consideration the depositions (if any) of the bankrupt, and any written report made to the Court by the Official Receiver as to the conduct and affairs of the debtor, and any evidence brought forward by the bankrupt, and if the bankrupt desires it and the Court thinks fit, shall direct the Registrar to furnish the bankrupt with notice, in writing, of matters requiring explanation, and after the explanation (if any) the Court shall decide upon the application in accordance with the Act.

(2.) Where an application by a bankrupt for an order of discharge is not opposed, the Court may, in its discretion, dispense with the attendance of the bankrupt at the hearing of the application.

Evidence in answer to report.

238. Where a bankrupt intends to dispute any statement with regard to his conduct and affairs contained in the Official Receiver’s report, he shall, not less than two days before the hearing of the application for discharge, give notice in writing to the Official Receiver, specifying the statements in the report, if any, which he proposes at the hearing to dispute.

Notice to oppose discharge.

239. Any creditor who intends to oppose the discharge of a bankrupt on grounds other than those mentioned in the Official Receiver’s report, shall give notice of the intended opposition, stating the grounds thereof, to the Official Receiver and the debtor not less than two days before the hearing of the application.

Procedure where application opposed.

240.—(1.) If an application for an order of discharge be opposed the person opposing shall open his case and give such evidence, in addition to depositions of the bankrupt already taken, if he relies upon any such depositions, as he thinks fit, and the Court may call upon the bankrupt to submit himself for examination as to all matters connected with the grant or refusal of the order of discharge or dispensation of the payment of Ten shillings in the pound or as to after-acquired

property, and may permit the Official Receiver, trustee or any creditor who has proved to ask such questions as the Court thinks fit, and the bankrupt may also call such evidence as he thinks fit and address the Court thereon, and the party opposing shall have the right of reply.

(2.) The bankrupt shall not less than fourteen days before the hearing of the application file with the Registrar an affidavit stating fully all the grounds, facts and circumstances upon which he intends to rely for having dispensation of the payment of Ten shillings in the pound granted.

Evidence, how given.

241. Upon application for an order of discharge, evidence, in addition to depositions of the bankrupt already taken and the Official Receiver’s report, shall be given viva voce in open Court, but the Court may allow affidavits to be used, or the whole or part of the evidence to be taken on commission.

Attendance by bankrupt.

242. Subject to sub-rule (2.) of rule 237 of these Rules, the bankrupt shall attend the Court on the day appointed for hearing the application for the order of his discharge, and on any day or days of adjournment, unless the Court otherwise orders, and if he fails, without reasonable excuse, to attend he shall be deemed guilty of contempt of Court and may be punished accordingly.

Costs of application.

243. A bankrupt shall not be entitled to have any of the costs of or incidental to his application for his discharge allowed to him out of his estate.

Conditional orders.

244.—(1.) Where the Court grants an order for discharge conditionally upon the bankrupt consenting to judgment being entered against him by the Official Receiver or trustee for the balance or any part of the balance of the debts provable under the bankruptcy which is not satisfied at the date of the order of his discharge, the order of discharge, which shall be in accordance with Form 143, shall not be signed, completed, or delivered out until the bankrupt has given the required consent in accordance with Form 144. The judgment shall be entered in the Court, and shall be in accordance with Form 145.

(2.) Where the Court grants an order of discharge subject to conditions as to earnings, after-acquired property and income of the bankrupt, the order shall be in accordance with Form 142.

(3.) If the bankrupt does not give the required consent within one month of the making of the conditional order the Court may, on the application of the Official Receiver or trustee, revoke the order or make such other order as the Court thinks fit.

245.—(1.) The order of the Court made on an application for discharge shall be dated on the day on which it is made, and shall take effect from the day on which the order is drawn up and signed; but the order shall not be delivered out or published in the Commonwealth Gazette until after the expiration of the time allowed for appeal, or, if an appeal be entered, until after the decision of the Court of Appeal thereon.

(2.) The order shall be in accordance with Form 138.

(3.) A notice of an order of discharge under section 119 or section 124 of the Act shall be forwarded forthwith by the Registrar to the Inspector-General, to the Registrar of each bankruptcy district and to the Registrar of Titles or Registrar-General or other proper officer of each State, and such notice shall be in accordance with Form 185a.

Gazetting order.

246. When the time for appeal has expired, or, as the case may be, when the appeal has been decided by the Court of Appeal, the Registrar shall forthwith send notice of the order to the Official Receiver, who shall publish it in the Commonwealth Gazette.

Execution on judgment in case of conditional discharge

247.—(1.) An application by the Official Receiver or trustee for leave to issue execution on a judgment entered pursuant to a conditional order of discharge shall be in writing, and shall state shortly the grounds on which the application is made. When the application is lodged, the Registrar shall fix a day for the hearing.

(2.) The Official Receiver or trustee shall give notice of the application to the bankrupt not less than eight days before the day appointed for the hearing, and shall at the same time furnish him with a copy of the application.

Accounts of after-acquired property.

248. Where a bankrupt is discharged subject to the condition that judgment shall be entered against him, or subject to any condition as to his future earnings or after-acquired property he shall, from time to time until the judgment or condition is satisfied, give the Official Receiver such information as he requires with respect to his earnings and after-acquired property and income, and not less than once a year file in the Court a statement showing the particulars of any property or income he has acquired subsequent to his discharge.

Verification of statements of after-acquired property.

249.—(1.) Any statement of after-acquired property or income filed by a bankrupt whose discharge has been granted subject to conditions shall be verified by affidavit in accordance with Form 146, and the Official Receiver or trustee may require the bankrupt to attend before the Court to be examined on oath with reference to the statements contained in the affidavit, or as to his earnings, income, after-acquired property, or dealings.

(2.) Where a bankrupt neglects to file the affidavit or to attend the Court for examination when required so to do, or properly to answer all such questions as the Court puts or allows to be put to him, the Court may, on the application of the Official Receiver or trustee, rescind the order of discharge.

Application for modification of order.

250. Where the bankrupt applies to the Court to modify the terms of an order under s. 119 (6) on the ground that there is no reasonable probability of his being in a position to comply with the terms of the order, he shall give fourteen days’ notice of the day fixed for hearing the application to the Official Receiver and trustee and to all his creditors.

Division 16.—Proxies and Voting Letters.

Form and filing of proxy.

No. 37 1924 ss. 67, 83, and Schedules 1, 2.

251.—(1.) A general proxy shall be in Form 55, and a special proxy shall be in accordance with Form 56.

(2.) A proxy shall be lodged with the Official Receiver or trustee not later than four o’clock on the day before the meeting or adjourned meeting, at which it is to be used.

(3.) As soon as a proxy or voting letter has been used it shall be filed with the proceedings in the matter.

Signature to proxy.

252. A proxy given by a creditor shall be deemed to be sufficiently executed if it is signed by any person in the employ of the creditor having a general authority to sign for the creditor, or by the authorized agent of the creditor if resident abroad. The authority shall be in

writing, and shall be produced to the Official Receiver or trustee, if required.

Filling in when creditor blind, &c.

253. The proxy of a creditor blind or incapable of writing may be accepted if the creditor has attached his signature or mark thereto in the presence of a witness, who shall add to his signature his description and residence, and all insertions in the proxy are in the handwriting of the witness, and if the witness has certified at the foot of the proxy that all such insertions have been made by him at the request of the creditor and in his presence before he attached his signature or mark.

Minors not to be proxies.

254. No person shall be appointed a general or special proxy who is a minor.

Division 17.—Meetings of Creditors.

Notice to debtor of first meeting.

No. 37 1924 s. 67.

255.—(1.) The Official Receiver shall give three days’ notice to the debtor of the time and place appointed for the first meeting of creditors.

(2.) The notice, which shall be in accordance with Form 33, may be either delivered to him personally or sent to him by prepaid post letter, as is convenient.

(3.) It shall be the duty of the debtor to attend the first meeting although the notice is not sent to or does not reach him.

(4.) A notice to attend subsequent meetings shall be in the like form, with such variations as circumstances require.

Insertion of notice in Gazette and notice to creditors of first meeting.

256. The Official Receiver shall fix the day for the first meeting, and shall forthwith publish it in the Commonwealth Gazette and such local paper or papers as the Official Receiver selects and give notice to creditors in accordance with Forms 33 to 36 as the case requires.

Notices of other meetings

257.—(1.) The notices of subsequent meetings to be issued to creditors by the Official Receiver or trustee shall be in accordance with Form 47.

(2.) Where no special time is prescribed the notices shall be sent out not less than three days before the day appointed for the meeting.

Non-reception of notice by creditor.

258. Where a meeting of creditors is called by notice, the proceedings had and resolutions passed at the meeting shall, unless the Court otherwise orders, be valid, notwithstanding that some creditors have not received the notice sent to them.

Notice to Official Receiver of creditors’ meetings.

259. Where a trustee calls a meeting of creditors he shall forthwith send to the Official Receiver a copy of the notice convening the meeting.

Proof of notice.

260. A certificate by the Official Receiver or other officer of the Court, or by the clerk of any such person, or an affidavit by the trustee or his solicitor, or the clerk of either of those persons, that the notice of any meeting of creditors or sitting of the Court has been duly posted shall be sufficient evidence of the notice having been duly sent to the person to whom it is addressed. The affidavit and the certificate shall be in accordance with Form 38, 39, 48, or 49, as the case requires.

Costs of creditors’ meetings.

261. Where, on the request of creditors, the Official Receiver or trustee calls a meeting of creditors, the cost of summoning the meeting, including all disbursements for printing, stationery, postage, and the hire of room for meeting, shall not exceed an amount calculated at the following rates for each creditor to whom notice is required to be sent:—2s. per creditor for the first 20 creditors; 1s. per creditor for the next 30 creditors; 6d. per creditor for any number of creditors after the first 50.

Copy of resolution for Registrar.

262. The Official Receiver, or, as the case may be, the trustee, shall send to the Registrar of the Court in which the matter is pending a copy, certified by him, of every resolution of a meeting of creditors.

Adjournment.

263. Where a meeting of creditors is adjourned, the adjourned meeting shall be held at the same place as the original place of meeting, unless in the resolution for adjournment another place is specified.

Quorum.

264. In calculating a quorum of creditors present at a meeting those persons only who are entitled to vote at the meeting shall be reckoned.

Division 18.—Proceedings by Company or Co-partnership.

Public officer or agent of company, &c.

No. 37 1924 s. 42.

265. A bankruptcy petition against, or bankruptcy notice to, any debtor to any company or co-partnership duly authorized to sue and be sued in the name of a public officer or agent of the company or co-partnership, may be presented by or sued out by that public officer or agent as the nominal petitioner for and on behalf of the company or co-partnership, on the public officer or agent filing an affidavit stating that he is the public officer or agent, and that he is authorized to present or sue out the petition or bankruptcy notice.

Division 19.—Proceedings by or against Firm.

Attestation of firm signature.

Ib. s. 33.

266. Where any notice, declaration, petition, or other document requiring attestation is signed by a firm of creditors or debtors in the firm name, the partner signing for the firm shall add also his own signature, e.g., “Brown & Co. by James Green, a partner in the said firm.”

Service on firm.

267.—(1.) Any notice or petition for which personal service is necessary shall be deemed to be duly served on all the members of a firm if it is served at the principal place of business of the firm in Australia, or at the principal place of business in a district, on any one of the partners, or upon any person having at the time of service the control or management of the partnership business there.

(2.) The provisions of this Rule shall, so far as the nature of the case will admit, apply in the case of any person carrying on business within the jurisdiction in a name or style other than his own.

Debtor’s petition by firm.

268. Where a firm of debtors file a declaration of inability to pay their debts or bankruptcy petition, the declaration or petition shall contain the names in full of the individual partners, and if it is signed in the firm name the declaration or petition shall be accompanied by an affidavit made by the partner who signs the declaration or petition, showing that the majority of the partners concur in the filing thereof.

Statement of affairs.

269. In cases of partnership the debtors shall submit a statement of their partnership affairs, and each debtor shall submit a statement of his separate affairs.

Sequestration against partners.

270. No order of sequestration shall be made against a firm in the firm name, but it shall be made against the partners individually.

Service of creditor’s petition on limited partnership.

271. Unless the Court otherwise orders, a creditor’s petition against a limited partnership shall be served at the principal place of business in Australia or a District of the limited partnership by delivering a sealed copy of the filed petition to one of the general partners there, or to some person having at the time of service, the control or management of the partnership business at that place.

Petition by limited partnership.

272.—(1.) A limited partnership may present a petition in bankruptcy as debtors in the name of the firm.

(2.) The petition shall be signed by a general partner and shall contain in full the names of the general partners, and if the petition is signed in the firm name the petition shall be accompanied by an affidavit made by the partner who signs the petition showing that the majority of the general partners concur in filing the petition.

Court having jurisdiction.

273. A petition by a limited partnership as debtors or against a limited partnership shall be presented to the Court having bankruptcy jurisdiction in the place where the registered office of the limited partnership is situate.

Sequestration order against limited partnership.

274. A sequestration order made against a limited partnership shall operate as if it were a sequestration order made against each of the persons who, at the date of the order, is a general partner in the firm.

Rights of limited partners.

275. Where a sequestration order is made against a limited partnership any past or present limited partner shall have the same rights as a creditor who has proved his debt would have to inspect the file, to attend meetings of creditors, and to appear on and take part in the public examination of, or any application for, an order of discharge by any general partner.

Liability of limited partners.

276. The assets of a limited partnership which, by sub-section (2,) of section 5 of the Act, are to vest in the trustee on all the general partners becoming bankrupt, shall include the liability (if any) of the limited partners, and past general partners, to contribute to the assets of the limited partnership, and that liability may be enforced by the trustee by motion in the bankruptcy, but subject to the following provisions:—

(a) No present or past limited partner shall be liable to contribute as such, to the assets of the limited partnership to any greater amount than the amount of any part of his contribution as such limited partner which he may have failed to pay into, or have drawn out, or received back from the partnership assets since he became, or while he remained, a limited partner, except in the case of a present limited partner who is a past general partner and in the case of a past limited partner who has become a present general partner;

(b) No past general partner shall be liable to contribute, as such, to the assets of the limited partnership except in respect of partnership debts and obligations incurred while he continued to be a general partner; but every past general partner who has become a limited partner shall in addition to any amount which he may be liable to contribute in respect of partnership debts and obligations incurred while he continued to be a general partner, be liable to contribute to the assets of the limited partnership to an amount equal to the amount of any part of his contribution as such limited partner, which he may have failed to pay into, or have drawn out, or received back from the partnership assets since he became, or while he remained, a limited partner; and

(c) No past partner, general or limited, shall be liable to contribute as such to the assets of the limited partnership unless it appears to the Court that the partnership assets otherwise available are insufficient for the payment in full of the partnership liabilities and the costs, charges and expenses of the administration in bankruptcy of the partnership estate.

Division 20.—Joint and Separate Estates.

First meeting.

No. 37 1924 s. 84 (4).

277. Where a sequestration order is made against a firm, the joint and separate creditors shall collectively be convened to the first meeting of creditors.

Acceptance of composition, &c., by joint and separate creditors.

278.—(1.) The joint creditors, and each set of separate creditors, may severally accept compositions or schemes of arrangement.

(2.) So far as circumstances will allow, a proposal accepted by joint creditors may be approved in the prescribed manner, notwithstanding that the proposals or proposal of some or one of the debtors made to their or his separate creditors are not accepted.

Voting on composition.

279.—(1.) Where proposals for compositions or schemes are made by a firm, and by the partners therein individually, the proposal made to the joint creditors shall be considered and voted upon by them apart from every set of separate creditors; and the proposal made to each separate set of creditors shall be considered and voted upon by that separate set of creditors apart from all other creditors.

(2.) The proposals may vary in character and amount.

(3.) Where a composition or scheme is approved, the sequestration order shall be discharged only so far as it relates to the estate, the creditors of which have accepted the composition or scheme.

280.—(1.) Upon a sequestration order being made against a partnership the trustee appointed by the joint creditors shall be the trustee of the separate estates.

Committee of Inspection.

(2.) Each set of separate creditors may appoint its own Committee of Inspection; but if any set of separate creditors do not appoint a separate Committee of Inspection, the Committee (if any) appointed by the joint creditors shall be deemed to have been appointed also by the separate creditors.

Separate firms.

281.—(1.) If any two or more of the members of a partnership constitute a separate and independent firm, the creditors of the last-mentioned firm shall be deemed to be a separate set of creditors, and to be on the same footing as separate creditors of any individual member of the firm.

(2.) Where any surplus arises upon the administration of the assets of the separate or independent firm it shall be carried over to the separate estates of the partners in the separate and independent firm according to their respective rights therein.

Apportionment of trustee’s remuneration.

282. Where joint and separate estates are being administered, the remuneration of the trustee in respect of the administration of the joint estate may be fixed by the creditors, or (if duly authorized), by the Committee of Inspection, of the joint estate, and the remuneration of the trustee in respect of the administration of any separate estate may be fixed by the creditors, or (if duly authorized), by the Committee of Inspection, of the separate estate.