Div 11Statement of Affairs.

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.