Division 10.—Compositions or Schemes after Sequestration.
Application for approval of composition or scheme.
35.—(1.) An application under sub-section (1.) of section 74 of the Act shall be in accordance with Form 14.
(2.) Where application under sub-section (1.) of section 74 of the Act is made by a bankrupt, the bankrupt shall serve a copy of the application—
(a) on the official receiver; and
(b) if the official receiver is not the trustee of the bankrupt’s estate—on that trustee.
(3.) Where application under sub-section (1.) of section 74 of the Act is made by a trustee, the trustee shall serve a copy of the application on the bankrupt to whom it relates.
(4.) A trustee who is required by sub-section (2.) of section 74 of the Act to give notice to a creditor of the time appointed for hearing an application shall cause the notice to be given to the creditor not less than eight days before the day appointed for the hearing of the application.
(5.) Where application is made to the Court under sub-section (1.) of section 74 of the Act, the report that the Court is required to hear under sub-section (3.) of that section shall be filed not less than four days before the day fixed for the hearing of the application.
Notice of approval to be published in Gazette.
Where an order is made under section 74 of the Act approving a composition or scheme of arrangement, the Registrar shall cause notice of the making of the order to be published in the Gazette.
Part III.—Administration of Property.
Division 1.—Proof of Debts.
Form of proof of debt.
37.—(1.) For the purposes of paragraph (b) of sub-section (2.) of section 84 of the Act, a proof of debt, not being a proof of debt to which the next succeeding sub-rule applies, shall be in accordance with Form 15.
(2.) For the purposes of sub-section (2.) of section 85 of the Act, a proof of debt in respect of wages or salary owing to the bankrupt’s employees shall be in accordance with Form 16.
(3.) For the purposes of sub-section (3.) of section 84 of the Act, a prescribed person, in relation to an affidavit constituting a proof of a creditor’s debt, is a person who—
(a) knows of his own knowledge the facts set out in the affidavit and the particulars of the debt annexed to the affidavit; and
(b) is authorized by the creditor to swear the affidavit on behalf of the creditor.
Application to review admission of proof.
For the purpose of sub-section (2.) of section 99 of the Act, notice of an application under sub-section (1.) of that section shall be given to the creditor by whom the proof of debt was lodged by serving a copy of the application on the creditor not less than eight days before the date fixed for the hearing of the application.
A trustee shall, within fourteen days after the expiration of the time within which he is required to comply with sub-section (1.) of section 102 of the Act, file a list, in accordance with Form 17, certified by him, setting out the particulars required by that form in respect of all proofs of debt received by him.
Division 2.—Order of Payment of Debts.
Prescribed order for the purposes of section 109 (1.) (6) of the Act.
For the purposes of paragraph (b) of sub-section (1.) of section 109 of the Act, the trustee shall apply the proceeds of the property of the bankrupt in the following order:—
(a) first, in payment of the expenses incurred by the trustee in protecting the assets, or any part of the assets, of the bankrupt, and the expenses (if any) incurred by him or by his authority in connexion with the carrying on, in accordance with the Act, of a business of the bankrupt;
(b) second, in payment of any fees, costs, charges and expenses payable by the official receiver in the course of exercising his powers or performing his functions as official receiver in relation to the bankrupt and to the assets and liabilities of the bankrupt;
(c) third, in payment of the fees, percentages and charges payable under sub-rule (2.) of rule 179 or rule 181 of these Rules or the Fourth Schedule and any other fees, costs, charges and expenses payable by the trustee in the course of the administration of the bankruptcy;
(d) fourth, in payment to a creditor who has deposited an amount in accordance with an order made under section 50 of the Act or upon application made under rule 18 of these Rules of an amount equal to so much of the amount so deposited as has been used for meeting the expenses referred to in that rule;
(e) fifth, in payment of the taxed costs of the petitioning creditor or the taxed costs of the applicant for a sequestration order under Part X. of the Act;
(f) sixth, in payment of the remuneration of the trustee; and
(g) seventh, in payment of the reasonable out-of-pocket expenses incurred by a member of the committee of inspection, as allowed by the Court.
Division 3.—Appropriation of Income.
Special provision in relation to application for appropriation of income.
A trustee who makes application to the Court under sub-section (2.) of section 131 of the Act shall cause a notice, in accordance with the following form, to be written on the copy of the application that is served on the bankrupt to whom the application relates:—
“To: (full name of bankrupt)
Take notice that you are entitled to appear on the hearing of this application and show cause to the Court why the order sought by the application should not be made.”.
Division 4.—Disclaimers.
Disclaimers.
42.—(1.) A disclaimer under section 133 of the Act shall be in accordance with Form 18.
(2.) A trustee who files a disclaimer in respect of any property in accordance with sub-section (2.) of section 133 of the Act shall forthwith give notice of the filing of the disclaimer to each person who, to his knowledge, has an interest in the property.
Notice of trustee’s intention to disclaim lease.
Notice under paragraph (a) of sub-section (4.) of section 133 of the Act of a trustee’s intention to disclaim a lease shall be in accordance with Form 19.
Notice requiring trustee to apply to the Court for leave to disclaim lease.
For the purposes of paragraph (b) of sub-section (4.) of section 133 of the Act, a person to whom a notice referred to in the last preceding rule is given may, by writing under his hand served on the trustee, require the trustee to apply to the Court for leave to disclaim the lease.
Form of application requiring trustee to decide whether to disclaim or not.
An application under paragraph (a) of sub-section (6.) of section 133 of the Act shall be in accordance with Form 20.
Division 5.—Dividends.
Notice of intended dividends.
For the purposes of paragraph (a) of sub-section (3.) of section 140 of the Act, notice of intention to declare a dividend shall be published in the Gazette and in such newspaper or newspapers as the trustee thinks appropriate.
Statement as to realization and distribution of an estate.
For the purposes of sub-section (5.) of section 140 of the Act, a statement shall be in accordance with Form 21.
Notice of final dividend.
Service of a notice, in accordance with Form 22, on each person who has claimed to be a creditor is the prescribed manner of giving notice for the purposes of sub-section (1.) of section 145 of the Act.
Part IV.—Discharge.
Objection to discharge under section 149 of the Act.
49.—(1.) For the purposes of paragraph (b) of sub-section (3.) of section 149 of the Act, a person may enter an objection to the discharge of a bankrupt by filing a notice of the objection, in accordance with Form 23, at any time before the bankrupt would have been discharged but for that sub-section.
(2.) A person who enters an objection to the discharge of a bankrupt shall post a copy of the notice of the objection to the bankrupt, by pre-paid registered post, at the last-known address of the bankrupt.
Withdrawal of objection.
50.—(1.) For the purposes of sub-section (4.) of section 149 of the Act, an objection to the discharge of a bankrupt may be withdrawn by the objector by filing a withdrawal of the objection, in accordance with Form 24.
(2.) An objector who files a withdrawal of an objection to the discharge of a bankrupt shall post a copy of the withdrawal to the bankrupt, by pre-paid registered post, at the last-known address of the bankrupt.
Certificate of discharge.
Where a bankrupt is discharged from bankruptcy by force of section 149 of the Act, the Registrar may, on request, issue a certificate of discharge, in accordance with Form 25.
Application for discharge.
52.—(1.) An application by a bankrupt under sub-section (1.) of section 150 of the Act shall be in accordance with Form 26 and shall have attached to it a list, certified by the trustee, setting out the names and addresses of the bankrupt’s creditors.
(2.) Where an application under sub-section (1.) of section 150 of the Act is filed, the Registrar shall—
(a) not less than twenty-eight days before the hearing date of the application, serve notice of the date, time and place fixed for the hearing on—
(i) the trustee; and
(ii) if the official receiver is not the trustee—the official receiver; and
(b) not less than fourteen days before that hearing date, serve notice of the date, time and place fixed for the hearing of the application on each creditor specified in the list attached to the application.
(3.) A notice referred to in the last preceding sub-rule shall be in accordance with Form 27.
(4.) Rules 102 to 106 (inclusive) of these Rules do not apply to or in relation to an application by a bankrupt under sub-section (1.) of section 150 of the Act.
Report by official receiver and by trustee.
53.—(1.) A report that the Court is required, under sub-section (3.) of section 150 of the Act, to take into consideration in relation to an application for an order of discharge shall be filed not less than ten days before the hearing date of the application.
(2.) A person who files a report referred to in the last preceding sub-rule shall, on the day on which the report is filed, post a copy of the report, by prepaid registered post, to the bankrupt at the bankrupt’s address for service.
Notice of intention to dispute report.
Where a bankrupt intends to deny or dispute a statement in a report referred to in sub-section (3.) of section 150 of the Act, the bankrupt shall, not less than three days before the hearing date of his application for discharge, give to the trustee or to the official receiver, as the case may be, notice in writing of his intention together with particulars of the statements in the report that he intends to deny or dispute.
Notice of opposition to discharge.
Where a creditor whose debt has been proved intends to oppose an application under section 150 of the Act, the creditor shall, not less than three days before the hearing date of the application—
(a) file a notice, in accordance with Form 28, setting out the grounds on which he intends to oppose the application; and
(b) cause a copy of the notice to be served on the bankrupt and the trustee and, if the official receiver is not the trustee, on the official receiver.
Variation of order of discharge.
A bankrupt who makes application to the Court under section 37 of the Act to vary an order of discharge shall serve the application on—
(a) the trustee;
(b) if the trustee is not the official receiver—the official receiver; and
(c) each creditor of the bankrupt whose debt had been proved before the order was made.
Special provisions in relation to applications for annulment of bankruptcy under section 154 of the Act.
57.—(1.) An application under section 154 of the Act shall, in addition to the matters referred to in rule 102 of these Rules, specify the grounds on which the application is made.
(2.) Service of such an application shall be effected on—
(b) if the official receiver is not the trustee of the bankrupt’s estate—the trustee of his estate; and
(c) each of the creditors of the bankrupt whose address is known to the applicant.
(3.) Where an application for an order annulling a bankruptcy on a ground specified in paragraph (b) of sub-section (1.) of section 154 of the Act is served on the official receiver or a trustee who is not an official receiver, he shall file, not later than four days after service of the application on him, a report concerning the bankrupt, being a report setting out the matters on which he would be required to report if the application were an application under section 150 of the Act.
(4.) The Court may, upon the hearing of an application for an order annulling a bankruptcy, have regard to the report filed in accordance with the last preceding sub-rule.
Part V.—Trustees and Official Receivers.
Division 1.—Trustees.
Application to register as a trustee.
58.—(1.) An application to the Court under sub-section (2.) of section 155 of the Act shall be filed—
(a) in the office of the Registrar for the District in which the applicant carries on business; or
(b) if he is not at that time carrying on business—in the office of the Registrar for the District in which he resides,
and shall be supported by—
(c) the affidavit of the applicant stating his qualifications and giving particulars of his experience (if any) in the administration of the estates of bankrupts or debtors or the winding up of companies, and of any like experience; and
(d) the affidavits of not less than two persons stating their opinions concerning the character of the applicant.
(2.) Where an application referred to in the last preceding sub-rule is filed—
(a) the Registrar shall, after considering the application, specify, by notice in writing to the applicant, the names of the newspapers, being newspapers circulating in the locality in which the applicant is carrying on business or, if he is not carrying on business, circulating in the locality in which he resides, in which notice of the application is to be published; and
(b) the applicant shall—
(i) publish in the Gazette and in each newspaper specified by the Registrar under the last preceding paragraph, not less than fourteen days before the hearing date of the application, notice of the application and of that hearing date; and
(ii) serve a copy of the application and of each affidavit in support of the application on the official receiver not less than fourteen days before the hearing date of the application.
Official receiver to make inquiries and furnish a report on applicant.
59.—(1.) Where application is made to the Court under sub-section (2.) of section 155 of the Act, the official receiver shall make such inquiries as he thinks fit in connexion with the qualifications and experience of the applicant, and file a report setting out the results of those inquiries.
(2.) On the day on which the official receiver files a report made in accordance with the last preceding sub-rule, the official receiver shall serve a copy of the report on the applicant to whom it relates.
Register of trustees.
60.—(1.) For the purposes of sub-section (1.) of section 155 of the Act, the particulars to be entered in the register in relation to a person are—
(a) the address and occupation of the person; and
(b) the date of the bond entered into by the person for the purpose of sub-section (2.) of that section, and the name and address of the surety to the bond.
(2.) Where the Court cancels the registration of a person under section 155 of the Act, the Registrar shall write in the margin of the entry of the person in the register the words “Cancelled in pursuance of an order of the Court dated ”, sign his name immediately under those words and add the date on which the words are entered in the register.
(3.) Where the Registrar has reason to believe that a person whose name is entered in the register kept in pursuance of section 155 of the Act is dead, the Registrar shall write in the margin of the entry the words “Died on ”, sign his name immediately under those words and add the date on which the words are entered in the register,
Bonds and securities.
61.—(1.) For the purposes of sub-section (2.) of section 155 of the Act—
(a) the amount is Four thousand dollars; and
(b) the bond to be entered into is a bond, in accordance with Form 29, executed in the presence of a person authorized to administer oaths for the purposes of the High Court or the Supreme Court of a State or Territory of the Commonwealth, a Registrar in Bankruptcy, an official receiver, a justice of the peace, a commissioner for affidavits or a commissioner for declarations.
(2.) A surety in respect of a bond entered into for the purposes of sub-section (2.) of section 155 of the Act shall enter into a bond in accordance with Form 30.
Notice of acceptance of office to be given to the Registrar.
Where a registered trustee informs the official receiver, in accordance with sub-section (3.) of section 157 of the Act, that he accepts the office of trustee of the estate of a bankrupt, the official receiver shall forthwith inform the Registrar in writing accordingly.
Objection to appointment of trustee of an estate.
63.—(1.) An objection under sub-section (6.) of section 157 of the Act shall be in accordance with Form 31.
(2.) Where a creditor has lodged with the Court an objection referred to in sub-section (6.) of section 157 of the Act, the Registrar shall appoint a date, time and place for the hearing of the objection.
(3.) A creditor who has, in accordance with sub-section (6.) of section 157 of the Act, lodged with the Court an objection shall give notice of the date, time and place fixed for the hearing of the objection to the person to whose appointment he has objected, to the official receiver and to each other creditor whose name and address is known to the creditor who lodged the objection.
Trustee’s remuneration.
64.—(1.) For the purposes of sub-section (2.) of section 162 of the Act, the rate is—
(a) if the moneys received by the trustee do not exceed Twenty thousand dollars—ten per centum;
(b) if the moneys received by the trustee exceed Twenty thousand dollars but do not exceed Forty thousand dollars—ten per centum in respect of the first Twenty thousand dollars and seven and one-half per centum in respect of the balance of those moneys; or
(c) if the moneys received by the trustee exceed Forty thousand dollars —ten per centum in respect of the first Twenty thousand dollars, seven and one-half per centum in respect of the second Twenty thousand dollars and five per centum in respect of the balance of those moneys.
(2.) For the purposes of sub-section (3.) of section 162 of the Act, the rate is two and one-half per centum.
Procedure on application to the Court for directions.
An application under sub-section (4.) of section 134 of the Act shall be in accordance with Form 32.
Examination of trustee, &c.
66.—(1.) Where the Court, upon application made under sub-section (3.) of section 179 of the Act, makes an order for the examination of a trustee, or another person, the Registrar shall, upon request made by the applicant for the order, issue a summons requiring the attendance of the trustee or other person for examination before the Court.
(2.) Where the Registrar issues a summons under the last preceding sub-rule, the person who requested the issue of the summons shall cause the summons issued by the Registrar and a sealed copy of the order made by the Court for the examination of the trustee or other person to be served personally on the trustee or other person.
(3.) If a person so summoned to attend before the Court, after having been tendered a reasonable sum in respect of his expenses, refuses or fails so to attend at the time appointed, and has no lawful excuse made known to the Court and allowed, the Court may, by warrant, cause him to be apprehended and brought up for examination before the Court.
Special procedure in relation to application for release from trusteeship of an estate.
67.—(1.) An application by a trustee of a bankrupt under sub-section (1.) of section 183 of the Act shall be served on—
(b) the bankrupt; and
(c) each creditor of the bankrupt whose name and address are known to the trustee.
(2.) A trustee who files an application referred to in the last preceding sub-rule shall, at the same time, file a statement, in accordance with Form 21, of his realization and distribution of the estate of the bankrupt.
(3.) The report referred to in sub-section (3.) of section 183 of the Act shall be filed not less than three days before the hearing date of the application to which it relates.
Trustee who if released to deliver books, &c., to the official receiver.
Subject to any order made by the Court under section 30 of the Act, where an order of release of a trustee from the trusteeship of an estate is made under section 183 of the Act, the trustee shall deliver—
(a) if a new trustee has been appointed—to the new trustee; or
(b) in any other case—to the official receiver,
all books, documents, papers and accounts in his possession in connexion with the estate.
Notice of removal of trustee by the Court.
Where a trustee is removed from office by the Court, the Registrar shall forthwith—
(a) serve notice of that fact on the official receiver; and
(b) cause notice of that fact to be published in the Gazette.
Division 2.—Official Receivers.
Officer who assists official receiver may appear on hearing of an examination under the Act.
Where the official receiver is entitled to be heard on the hearing of an application or an examination under the Act, or to present evidence or examine or cross-examine witnesses during the hearing, and is for any reason unable to be present in person at the hearing, the Court may permit an officer who assists the official receiver in the performance of his functions and is authorized in writing by the official receiver to do so to appear on behalf of the official receiver and take such part in the hearing of the application or examination as the official receiver could have taken if he had been present in person at the hearing.
Instrument appointing official receiver to vote as proxy.
71.—(1.) Subject to the next succeeding sub-rule, an instrument appointing an official receiver to vote at a meeting of creditors as the proxy of a creditor shall, unless the contrary intention appears, be taken to authorize an officer appointed by the official receiver to vote, as proxy of the creditor, at the meeting of creditors if the official receiver is unable to be present.
(2.) An instrument referred to in the last preceding sub-rule does not authorize a person other than the official receiver to vote at a first meeting of creditors as the proxy of a creditor.
Certain applications to the Court by the Official Receiver may be made ex parte.
Notwithstanding any other rule of these Rules, an application made to the Court by an official receiver otherwise than in his capacity of trustee of the estate of a bankrupt or debtor may be heard and determined by the Court ex parte unless the Court otherwise orders.
Division 3.—Accounts.
Trustee’s accounts.
73.—(1.) For the purposes of sub-section (1.) of section 175 of the Act—
(a) the expiration of a period of six months commencing on and including the first day of the month of the year next following the expiration of the month of the year in which a person becomes bankrupt; and
(b) the expiration of each successive period of twelve months, being a period expiring before the final dividend has been distributed in respect of the estate of the bankrupt,
are each a prescribed time in relation to the estate of the bankrupt.
(2.) For the purposes of paragraph (a) of sub-section (1.) of section 175 of the Act, the account shall be in accordance with Form 33.
Part VI.—Small Bankruptcies.
Small bankruptcies.
74.—(1.) The following provisions of the Act are prescribed for the purposes of paragraph (c) of sub-section (1.) of section 186 of the Act:—
(a) sub-sections (3.) and (4.) of section 30;
(b) paragraph (i) of sub-section (1.) of section 31; and
(c) sections 70, 71 and 72.
(2.) For the purposes of sub-section (1.) of section 186 of the Act, section 167 of the Act is modified to the extent that a bill of costs or a bill of charges rendered by a person in respect of the estate of a bankrupt in relation to which Part IX. of the Act applies is not required to be taxed unless the trustee of the estate requests the person to cause the bill to be taxed.
(3.) For the purposes of paragraph (d) of sub-section (1.) of section 186 of the Act—
(a) section 135 of the Act is modified—
(i) by omitting from sub-section (1.) the words “, with the permission of the creditors granted by resolution passed at a general meeting or of the committee of inspection or with the leave of the Court,”; and
(ii) by omitting sub-sections (3.) and (4.); and
(b) section 310 of the Act is modified—
(i) by omitting from sub-section (1.) the words “and in such other manner (if any) as is prescribed”;
(ii) by omitting from sub-section (3.) the words “and in such other manner (if any) as is prescribed”; and
(iii) by omitting sub-sections (4.) and (6.).
(4.) For the purposes of paragraph (a) of sub-section (1.) of section 19 of the Act, where a person becomes a bankrupt and the Court makes an order under section 185 of the Act for the administration of the estate of the person under Part IX. of the Act, the official receiver shall notify the fact of the bankruptcy by posting a notice of the fact to each person specified in the bankrupt’s statement of affairs as a creditor of the bankrupt, postage being prepaid.
Part VII.—Proceedings under Part X. of the Act.
Time within which copy of authority to call meeting of creditors to be filed.
A trustee who consents in writing to exercise the powers conferred by an authority under sub-section (1.) of section 188 or sub-section (1.) of section 192 of the Act shall, within three days after giving his consent, file a copy of his consent together with a copy of the authority.
Appointment of new trustee.
76.—(1.) For the purpose of sub-section (2.) of section 192 of the Act, a consent to act as trustee shall be signed by the person nominated as trustee in the presence of a witness.
(2.) Where a trustee signs a consent to act as trustee for the purpose of sub-section (2.) of section 192 of the Act, the trustee shall, within three days after the signing of the consent, file a copy of the consent.
Notice of calling meeting.
For the purposes of sub-section (2.) of section 194 of the Act, a notice shall be in accordance with Form 34.
Debtor’s statement of affairs.
For the purposes of sub-section (1.) of section 195 of the Act—
(a) a statement of affairs shall be in accordance with Form 11; and
(b) a statutory declaration verifying a statement of affairs shall be in accordance with Form 35.
Chairman’s certificate of passing of resolution.
For the purposes of paragraph (a) of sub-section (7.) of section 204 of the Act, a certificate shall be in accordance, with Form 36.
Controlling trustees’ accounts.
80.—(1.) For the purposes of sub-section (1.) of section 211 of the Act—
(a) the expiration of a period of one month commencing on and including the day on which the property of a debtor ceases to be subject to control under Division 2 of Part X. of the Act;
(b) if the property remains subject to control under Division 2 of Part X. of the Act after the expiration of a period of six months commencing on and including the first day of the month of the year next following the expiration of the month of the year in which the registered trustee becomes the controlling trustee in relation to a debtor—
(i) the expiration of that period of six months; and
(ii) the expiration of each successive period of six months following that period of six months, being a period expiring before the property of the debtor ceases to be subject to control under Division 2 of Part X. of the Act and before the registered trustee ceases to be the controlling trustee in relation to the debtor; and
(c) if the registered trustee ceases to be the controlling trustee in relation to a debtor otherwise than by reason of the death of the controlling trustee or of the property of the debtor ceasing to be subject to control under Division 2 of Part X. of the Act—the expiration of a period of one month commencing on and including the day on which the registered trustee so ceases to be the controlling trustee, are each a prescribed time for furnishing an account in relation to the debtor.
(2.) For the purposes of sub-section (1.) of section 211 of the Act, the account shall be in accordance with Form 33.
Notice of execution of deed, &c.
81.—(1.) Where a trustee is required by sub-paragraph (i) of paragraph (a) of sub-section (1.) of section 218 of the Act or by paragraph (a) of sub-section (2.) of that section to give notice of a fact to a creditor, the trustee shall serve a notice containing particulars of the fact on the creditor.
(2.) For the purposes of sub-paragraph (ii) of paragraph (a) of sub-section (1.) of section 218 of the Act, a notice shall be published in such newspaper or newspapers as the trustee thinks appropriate.
Modifications of provisions of Act applied by section 231.
The following modifications of the provisions of the Act specified in section 231 of the Act are prescribed for the purposes of that section:—
“(1.) Subject to this Division, all debts and liabilities to which a bankrupt was subject at the date of the bankruptcy are provable in his bankruptcy.”; and
(ii) by omitting sub-section. (8.) and inserting in its stead the following sub-section:—
(b) an express or implied engagement, agreement or undertaking to pay, or capable of resulting in the payment of, money or money’s worth, whether the payment is—
(b) section 113 of the Act is modified—
(i) by omitting from sub-section (1.) the words “of the presentation of a petition on which, or by virtue of the presentation of which, a person became a bankrupt” and inserting in their stead the words “of the making of a sequestration order”; and
(ii) by omitting from that sub-section the words “or, in the case of a debtor’s petition, the presentation of the petition is”;
(c) section 125 of the Act is omitted;
(d) section 135 of the Act is modified by omitting from sub-section (1.) the words “or of the committee of inspection”;
(e) section 162 of the Act is modified—
(ii) by omitting from sub-section (4.) the words “or the committee of inspection fails,”; and
(iii) by omitting from sub-section (6.) the words “or by the committee of inspection”; and
(f) section 177 of the Act is modified by omitting from sub-section (1.) the words “or by the committee of inspection”.
Modification of provisions of Act applied by section 237.
83.—(1.) The following modifications of the provisions of the Act specified in section 237 of the Act are prescribed for the purposes of that section:—
(i) by omitting sub-section (1.) and inserting in its stead the following sub-section: —
“(1.) Subject to this Division, all debts and liabilities to which a bankrupt was subject at the date of the bankruptcy are provable in his bankruptcy.”; and
(ii) by omitting sub-section (8.) and inserting in its stead the following sub-section:—
(b) an express or implied engagement, agreement or undertaking to pay, or capable of resulting in the payment of, money or money’s worth, whether the payment is—
(b) section 113 of the Act is modified—
(i) by omitting from sub-section (1.) the words “of the presentation of a petition on which, or by virtue of the presentation of which, a person became a bankrupt” and inserting in their stead the words “of the making of a sequestration order”; and
(ii) by omitting from that sub-section the words “or, in the case of a debtor’s petition, the presentation of the petition is”;
(c) section 135 of the Act is modified by omitting from sub-section (1.) the words “or of the committee of inspection”;
(d) section 148 of the Act is modified by omitting all words after the word “after” and inserting in their stead the words “there has been full compliance with the terms of the deed of arrangement.”;
(e) section 162 of the Act is modified—
(ii) by omitting from sub-section (4.) the words “or the committee of inspection fails,”; and
(iii) by omitting from sub-section (6.) the words “or by the committee of inspection”; and
(f) section 177 of the Act is modified by omitting from sub-section (1.) the words “or by the committee of inspection “.
(2.) Sections 133 to 139 (inclusive) of the Act are modified to the extent that they do not apply to or in relation to any property of the debtor to which the deed of arrangement does not relate.
Modification of provisions of Act applied by section 243.
The following modifications of the provisions of the Act specified in section 243 of the Act are prescribed for the purposes of that section:—
“(1.) Subject to this Division, all debts and liabilities to which a bankrupt was subject at the date of the bankruptcy are provable in his bankruptcy.”; and
(ii)by omitting sub-section (8.) and inserting in its stead the following sub-section:—
(b) an express or implied engagement, agreement or undertaking to pay, or capable of resulting in the payment of, money or money’s worth, whether the payment is—
(b) section 148 of the Act is modified by omitting all words after the word “after” and inserting in their stead the words “there has been full compliance with the terms of the composition.”;
(c) section 162 of the Act is modified—
(ii) by inserting in sub-section (2.), after the word “trustee” (second occurring), the words “for distribution to creditors”;
(iii) by omitting from sub-section (4.) the words “or the committee of inspection fails,”; and
(iv) by omitting from sub-section (6.) the words “or by the committee of inspection”; and
(d) section 177 of the Act is modified by omitting from sub-section (1.) the words “or by the committee of inspection “.
Application of Rules in relation to deeds of assignment deeds of arrangement and compositions.
85.—(1.) Subject to this rule, Part I., Divisions 1, 4 and 5 of Part III., Divisions 1 and 3 of Part V., Part IX., Part X., Part XI., Part XII, Part XIII, Part XV., Part XVI. and Part XVII of these Rules apply, with necessary modifications, to and in relation to proceedings under, and the administration of estates under, Part X. of the Act.
(2.) Where a rule makes provision for the purpose of, or in relation to, a section of the Act that applies to and in relation to deeds of assignment, deeds of arrangement or compositions by virtue of Part X. of the Act, and that rule is not included in the rules referred to in the last preceding sub-rule, that rule applies, by virtue of this sub-rule, but subject to this rule and with necessary modifications, to and in relation to proceedings under, and the administration of estates under, Part X. of the Act.
(3.) Where a form is specified or referred to in a rule that applies to and in relation to proceedings under, and the administration of estates under, Part X. of the Act by virtue of a preceding sub-rule of this rule, the form shall be altered in such manner as the circumstances of the case require for the purpose of rendering it applicable in respect of such a proceeding or the administration of such an estate.
(4.) Where an expression that is, in specified circumstances, required by sub-section (2.), (3.) or (4.) of section 231 of the Act to be read in a particular manner occurs in a rule that applies, by virtue of this rule, to and in relation to proceedings under, and the administration of estates under, Part X. of the Act, that expression shall be read in the rule in like manner if it is necessary to do so in order that the rule may be capable of application to and in relation to a proceeding that relates to, or an estate that is being administered in accordance with, a deed of assignment.
(5.) Where an expression that is, in specified circumstances, required by sub-section (2.), (3.) or (4.) of section 237 of the Act to be read in a particular manner occurs in a rule that applies, by virtue of this rule, to and in relation to proceedings under, and the administration of estates under, Part X. of the Act, that expression shall be read in the rule in like manner if it is necessary to do so in order that the rule may be capable of application to and in relation to a proceeding that relates to, or an estate that is being administered in accordance with, a deed of arrangement.
(6.) Where an expression that is, in specified circumstances, required by sub-section (1.). (2.) or (3.) of section 243 of the Act to be read in a particular manner occurs in a rule that applies, by virtue of this rule, to and in relation to proceedings under, and the administration of estates under, Part X. of the Act, that expression shall be read in the rule in like manner if it is necessary to do so in order that the rule may be capable of application to and in relation to a proceeding that relates to, or an estate that is being administered in accordance with, a composition.
(7.) If, after taking into account the modifications and adaptations made by this rule, a rule referred to in sub-rule (1.) or (2.) of this rule is incapable of application to or in relation to a proceeding that relates to, or an estate that is being administered in accordance with, a deed of assignment, a deed of arrangement or a composition, as the case may be, or is inconsistent with this Part, that rule does not so have application.
Part VIII.—Administration of Estates of Deceased Persons in Bankruptcy.
Form of petition for the administration of the estate of a deceased person in bankruptcy.
A petition under section 244 of the Act shall be in accordance with Form 37 and shall have written on it, or attached to it, a note, for signature by the Registrar, in accordance with Form 6.
Form of statement of affairs and affidavit.
87.—(1.) For the purposes of paragraph (a) of sub-section (1.) of section 246 of the Act—
(a) an affidavit verifying a statement shall be in accordance with Form 38; and
(b) a statement shall be in accordance with Form 39.
(2.) For the purposes of sub-section (1.) of section 247 of the Act, a statement shall be in accordance with Form 39.
Petition for the administration of the estate of a deceased person in bankruptcy under section 247 of the Act.
A petition under sub-section (1.) of section 247 of the Act shall be in accordance with Form 40.
Notice of order for the administration of the estate of a deceased person.
For the purposes of sub-section (4.) of section 310 of the Act, publication in such newspaper or newspapers as the Registrar thinks appropriate is a prescribed manner of publication.
Modifications of the Act in relation to administrations in Part XI.
The following modifications of the provisions of the Act specified in section 248 of the Act are prescribed for the purposes of that section:—
(a) section 66 of the Act is modified by omitting from sub-section (5.) the word “spouse” and inserting in its stead the words “widow or widower, as the case may be,”;
(b) section 73 of the Act is modified—
“(1.) Where the legal personal representative or a beneficiary of a deceased person whose estate is being administered under Part XI. desires to make a proposal to the creditors of the estate for—
(a) a composition in satisfaction of the debts of the estate; or
(b) a scheme of arrangement of the affairs of the estate,
he may lodge with the trustee a proposal in writing signed by him setting out the terms of the proposed composition or scheme of arrangement and particulars of any sureties or securities forming part of the proposal.”; and
(ii) by omitting sub-section (3.) and inserting in its stead the following sub-section:—
“(3.) The legal personal representative or beneficiary, as the case may be, may, at the meeting, amend the terms of his proposal.”;
(c) section 74 of the Act is modified by omitting sub-section (1.) and inserting in its stead the following sub-section:—
“(1.) If the proposal for a composition or scheme of arrangement made by the legal personal representative or a beneficiary of a deceased person whose estate is being administered under Part XI. is accepted by his creditors in accordance with the last preceding section, the legal personal representative or beneficiary, as the case may be, or the trustee, may apply to the Court for approval of the composition or scheme of arrangement.”;
(d) section 75 of the Act is modified by omitting sub-sections (2.), (6.), (7.) and (8.);
(e) section 79 of the Act is omitted;
(f) section 82 of the Act is modified—
“(1.) Subject to this Division, all debts and liabilities, present or future, certain or contingent, to which the estate of a deceased person, being an estate that is being administered under Part XI., was subject at the date of the order for the administration of the estate under that Part or to which the estate may become subject by reason of an obligation incurred before the date of that order, are provable in the administration of the estate under that Part.”; and
(ii) by omitting from paragraph (b) of sub-section (8.) the words “whether or not the breach occurs, is likely to occur or is capable of occurring, before the discharge of the bankrupt” and inserting in their stead the words “whenever the breach is likely to occur”;
(g) section 111 of the Act is modified by omitting the word “spouse” (wherever occurring) and inserting in its stead the words “widow or widower, as the case may be,”;
(h) section 112 of the Act is modified by omitting from sub-section (2.) the word “spouse” and inserting in its stead the words “widow or widower, as the case may be,”; and
(j) section 122 of the Act is modified by omitting sub-section (1.) and inserting in its stead the following sub-sections:—
“(1.) Where, within six months before the presentation of a petition on which an order under Part XI. is made in relation to a deceased person, the person executed a conveyance or transfer of property or a charge on property, made a payment or incurred an obligation at a time when he was unable to pay his debts as they became due from his own money, in favour of a creditor, having the effect of giving that creditor a preference, priority or advantage over other creditors, the conveyance, transfer, charge, payment or obligation is void as against the trustee under the order.
“(1a.) Where a person administering the estate of a deceased person in respect of whom an order has been made under Part XI., within six months before the presentation of the petition on which the order was made, executed a conveyance or transfer of property or a charge on property, made a payment or incurred an obligation in the course of administering the estate of the deceased person and at a time when he was unable to pay the debts of the deceased person out of the estate of the deceased person as they became due, in favour of a creditor of the deceased person, having the effect of giving that creditor a preference, priority or advantage over other creditors of the deceased person, the conveyance, transfer, charge, payment or obligation is void as against the trustee under the order.”.
Application of rules in relation to proceedings, &c., under Part XI. of the Act.
91.—(1.) Subject to this rule, Part I., Divisions 2, 3, 4, 5, 6 and 7 of Part II., Divisions 1, 2, 4 and 5 of Part III., Part V., Part IX., Part X., Part XI., Part XII., Part XIII., Part XV., Part XVI. and Part XVII. of these Regulations apply, with necessary modifications, to and in relation to proceedings under, and the administration of estates under, Part XI. of the Act.
(2.) Where a rule makes provision for the purpose of or in relation to a section of the Act that applies to and in relation to the administration of estates under Part XI. of the Act and that rule is not included in the rules referred to in the last preceding sub-rule, that rule applies, by virtue of this sub-rule and with necessary modifications, to and in relation to proceedings under, and the administration of estates under, Part XI. of the Act.
(3.) Where a form is specified or referred to in a rule that applies to and in relation to proceedings under, and the administration of estates under, Part XI. of the Act, by virtue of a preceding sub-rule of this rule, the form shall be altered in such manner as the circumstances of the case require for the purpose of rendering it applicable in respect of such a proceeding or the administration of such an estate.
(4.) Where an expression that is, in specified circumstances, required by sub-section (3.) of section 248 of the Act to be read in a particular manner occurs in a rule that applies by virtue of this rule to and in relation to proceedings under, and the administration of estates under, Part XI. of the Act, that expression shall be read in the rule in like manner if it is necessary to do so in order that the rule may be capable of application to and in relation to such a proceeding or the administration of such an estate.
(5.) If, after taking into account the modifications and adaptations made by this rule, a rule referred to in sub-rule (1.) or (2.) of this rule is incapable of application to or in relation to a proceeding under, or the administration of an estate under, Part XI. of the Act, or is inconsistent with this Part, that rule does not so have application.
Part IX.—Meetings of Creditors.
Summoning of first meeting of creditors.
Where the date, time and place have been appointed for holding the first meeting of the creditors of a bankrupt, the official receiver—
(a) shall cause notice of the date, time and place so appointed to be published in the Gazette and in such newspaper or newspapers as he thinks appropriate;
(b) shall cause notice of the meeting, in accordance with Form 41, to be delivered or posted to the bankrupt and to each of the bankrupt’s creditors whose business or residential address is known to the official receiver; and
(c) if the bankrupt has lodged his statement of affairs—shall cause to be delivered or posted to each creditor referred to in the last preceding paragraph a summary of the statement of affairs,
not less than seven days before the day appointed for holding the meeting.
Summoning of other meetings of creditors.
Where a meeting of creditors of a bankrupt, not being the first meeting of the creditors, is convened by the official receiver or, if another person is the trustee of the estate of the bankrupt, by the trustee, he shall cause notice, in accordance with Form 42, of the date, time and place appointed for the holding of the meeting to be delivered or posted—
(a) to each creditor of the bankrupt whose business or residential address is known to him;
(b) if the meeting is convened by the official receiver and another person is trustee of the estate of the bankrupt—to that other person; and
(c) if the meeting is convened by the trustee—to the official receiver, not less than seven days before the day so appointed.
Proceedings at other meetings of creditors of a bankrupt.
94.—(1.) The provisions of sections 65, 66, 67 and 68 of the Act apply to and in relation to a meeting of creditors (not being the first meeting of creditors) of a bankrupt as if a reference to the first meeting of creditors were a reference to the meeting of creditors.
(2.) Where an officer appointed by the official receiver is, by virtue of rule 71 of these Rules, entitled to vote at a meeting of creditors as proxy of a creditor, the officer shall, for the purposes of the application of the provisions of section 67 of the Act to and in relation to the meeting by virtue of the last preceding sub-rule, be deemed to be a proxy of the creditor.
Adjournment of meeting.
95.—(1.) A meeting of creditors may, by resolution, be adjourned from time to time.
(2.) Where a meeting is adjourned, the adjourned meeting shall, unless it is otherwise provided by the resolution by which it is adjourned, be held at the same place as the original meeting.
(3.) This rule does not apply to or in relation to a meeting held for the purposes of Division 2 of Part X. of the Act.
Quorum.
96.—(1.) At a meeting of creditors, two creditors, being creditors entitled to vote at the meeting, present personally, by attorney or by proxy constitute a quorum.
(2.) If a quorum is not present within thirty minutes after the time appointed for the meeting, any creditor, or attorney or proxy of a creditor, entitled to vote at the meeting who is present at the meeting or, if it is a meeting of creditors of a bankrupt and the official receiver or other trustee of the bankrupt is present, the official receiver or trustee may adjourn the meeting to such date and place as he appoints.
(3.) The date so appointed shall be not earlier than seven days, and not later than fourteen days, from the date on which the adjournment takes place.
(4.) This rule does not apply to or in relation to a meeting of creditors held under Division 2 of Part X. of the Act.
Notice of adjournment of meeting.
97.—(1.) Where a meeting of creditors is adjourned, notice of the adjournment shall forthwith be given, in the manner specified in rule 93 of these Rules, to all the creditors by the person by whom the meeting was summoned.
(2.) A meeting of creditors on the date and at the place to which the meeting was adjourned shall not be deemed incompetent to act for the purposes of the Act by reason only of a failure to comply with the last preceding sub-rule unless the Court, on the application of a creditor, otherwise declares.
Minutes of meeting.
98.—(1.) The chairman shall cause minutes of the proceedings at a meeting of creditors to be prepared and shall sign the minutes not later than fourteen days after the date of the meeting.
(2.) Where the creditors pass a resolution at a meeting of creditors, not being a meeting called in pursuance of an authority under section 188 of the Act, the chairman of the meeting shall—
(a) forthwith sign a certificate, in accordance with Form 36, relating to the resolution; and
(b) cause the certificate to be filed.
(3.) Where the creditors pass a special resolution under section 181 of the Act, the chairman of the meeting shall, in addition to complying with the last preceding sub-rule, forthwith cause a copy of the certificate signed for the purposes of that sub-rule to be served on the official receiver and on the trustee referred to in the resolution.
(4.) If the chairman dies without having complied with a preceding provision of this rule or becomes incapable whether through illness or other cause of complying with such a provision, the trustee of the bankrupt or debtor or the person who called the meeting, if he attended the meeting, or a creditor who attended the meeting may comply with the provision in place of the chairman.
(5.) Where a meeting is adjourned by resolution under rule 95 of these Rules, the person by whom it is adjourned shall cause a minute to that effect to be prepared and shall sign the minute not later than fourteen days after the day on which the meeting was adjourned.
Persons ineligible to vote.
99.—(1.) Where the trustee of a bankrupt or debtor is a creditor or the proxy or attorney of a creditor of the bankrupt or debtor, the trustee, or a person who is the partner, clerk or solicitor of the trustee or the clerk of the solicitor of the trustee is not elegible to vote at a meeting of the creditors of the bankrupt or debtor on a resolution concerning the remuneration or conduct of the trustee.
(2.) Where a person attends a meeting of creditors as proxy or attorney of a creditor, the person is not eligible to take part in any discussions at the meeting concerning a resolution, or to vote on a resolution, that would have the effect of entitling the person, his partner or his employer, either directly or indirectly, to any remuneration or other benefit out of the estate of the bankrupt.
(3.) The last preceding sub-rule does not prevent a person taking part in a discussion on or voting on—
(a) a resolution passed for the purposes of Division 2 of Part VI. of the Act; or
(b) a resolution appointing a person to be the trusteee of the bankrupt, being a resolution that he is expressly authorized by his instrument of appointment to vote on.
(4.) Where a person who attends a meeting of creditors as proxy or attorney of a creditor is himself one of the creditors, sub-rule (2.) of this rule does not prevent the person from taking part in a discussion on or voting on a resolution in the capacity of creditor.
(5.) Sub-rule (2.) of this rule does not apply to or in relation to a meeting of creditors held for the purposes of Division 2 of Part X. of the Act.
Proxy.
A person may appoint another person to vote as his proxy at a meeting held for the purposes of the Act—
(a) by signing, and delivering to that other person, an instrument in accordance with Form 43; or
(b) by causing a telegram, in accordance with Form 44, to be transmitted to the chairman of the meeting.
Part X.—Practice and Procedure.
Division 1.—Preliminary.
Address for service.
101.—(1.) Unless the Court otherwise orders, a person is not entitled to file a document for the purpose of a proceeding unless by that document, or by a document previously filed by him, he gives or has given an address for service that is, under this rule, his address for service for the purpose of that proceeding.
(2.) A person may give an address as his address for service for the purpose of a proceeding by stating that address as his address for service—
(a) in the first document filed by him in that proceeding; or
(b) in a notice of change of address for service filed for the purpose,
and, in the case of a notice referred to in paragraph (b) of this sub-rule, serving a copy of the notice on each other party to the proceeding who has an address for service for the purpose of the proceeding.
(3.) Where a person is represented by a solicitor, the address given as the person’s address for service—
(a) shall be not more than fifteen miles from the office of the Registrar in which the document stating the address is filed; and
(b) shall be the address of the solicitor or of a solicitor acting as agent for the solicitor.
(4.) Where a person who is not represented by a solicitor and does not have an address for service for the purpose of a proceeding files a document and his address is stated in the document but not as his address for service, he shall be deemed to give the address so stated as his address for service for the purpose of that proceeding by that document.
(5.) Where a telephone is installed at the address given as a person’s address for service for the purpose of a proceeding, particulars of the telephone number of that telephone shall be included in the particulars of that address given by the person in the document by which he states that address as his address for service.
Division 2.—Applications to the Court.
Procedure on application to the Court.
102.—(1.) Subject to the Act and to this rule, an application to the Court that is not required to be made by petition shall be instituted by filing an application, in accordance with Form 45.
(2.) Subject to these Rules, an application—
(a) shall specify the date on which it is proposed that the application will be heard by the Court;
(b) shall specify the place at which it is proposed that the application will be heard by the Court;
(c) shall specify the order that the Court will, on the hearing of the application, be asked to make; and
(d) shall be signed by the solicitor representing the applicant.
(3.) An application shall bear date the day on which it is filed.
(4.) An application shall have written on it the names of the persons (if any) on whom the applicant intends to serve the application.
Affidavit in support of application.
103.—(1.) The grounds on which the Court will be asked to make the order specified in an application, and the facts on which the applicant proposes to rely in support of the application for that order, shall be stated in the affidavit filed in support of the application.
(2.) Where service of an application is effected on a person, a copy of each affidavit filed in support of the application shall be served on the person at the time of the service of the application or within a reasonable time before the hearing of the application.
Service of application.
104.—(1.) Subject to these Rules, service of an application on a person shall be effected by serving a copy of the application on the person—
(a) if the application is an application to the Court sitting in chambers—not less than twenty-four hours before the time fixed for hearing the application; or
(b) in any other case—not less than eight days before the hearing date of the application.
(2.) Where, for any reason, it is impracticable to effect service of an application on a person in accordance with the last preceding sub-rule, the applicant may state in the application his intention to apply to the Court, upon the hearing of the application, for an order abridging the time within which the application is required to be served on the person.
(3.) Where an application containing a statement referred to in the last preceding sub-rule is served on a person—
(a) the applicant shall be deemed to have filed an application to the Court for an order abridging the time accordingly; and
(b) the application that is so to be deemed to have been filed—
(i) shall be deemed to have been set down for hearing by the Court on the day and at the time and place fixed for the hearing of the first-mentioned application; and
(ii) shall be deemed to have been served on the person at the time at which the first-mentioned application was served on the person.
Court may order service on other persons.
105.—(1.) Where, on the hearing of an application to the Court, the Court is of the opinion that the application should be served on a person on whom it has not been served, it may direct the applicant to serve the application on that person and fix a date, time and place for the further hearing of the application.
(2.) Where the Court gives a direction under the last preceding sub-rule, the date, time and place to be specified in the copy of the application that is served on the person to whom the direction relates is the date, time and place fixed under that sub-rule.
Opposition to application.
106.—(1.) A person who intends to oppose an application, not being an application to the Court sitting in chambers, shall, not less than three days before the hearing date of the application—
(a) file a notice, in accordance with Form 46, setting out the grounds on which he intends to oppose the application; and
(b) serve a copy of the notice on the applicant.
(2.) A person who intends to oppose an application shall, within a reasonable time before the hearing of the application commences, file an affidavit setting out the facts, not being facts set out in an affidavit filed in support of the application, on which he intends to rely on the hearing of the application.
(3.) A person filing an affidavit referred to in the last preceding sub-rule shall cause a copy of the affidavit to be served on the applicant as soon as practicable after the affidavit has been filed.
(4.) Notwithstanding sub-rule (2.) of this rule, the Court may permit the use, in opposition to an application, of an affidavit that is filed subsequently to the commencement of the hearing of the application.
Affidavit in answer or in reply.
107.—(1.) A person to whom this sub-rule applies may, before the hearing of the application or, by leave of the Court, during the hearing of the application file an affidavit in answer to an affidavit in support of the application.
(2.) The last preceding sub-rule applies—
(a) in the case of an application to the Court sitting in chambers—to any person affected by the application; or
(b) in any other case—to a person who has filed a notice, in relation to the application, in accordance with the last preceding rule.
(3.) A person filing an affidavit in accordance with sub-rule (1.) of this rule shall cause a copy of the affidavit to be served on the applicant as soon as practicable after the affidavit has been filed.
(4.) A person on whom a copy of an affidavit in answer is served may, before the hearing of the application or, by leave of the Court, during the hearing of the application, file an affidavit in reply to that affidavit.
(5.) The person filing an affidavit in reply to an affidavit filed by another person shall cause a copy of the affidavit in reply to be served on the other person as soon as practicable after the affidavit in reply has been filed.
Amendments.
108.—(1.) Where the Court or the Registrar allows the amendment of a document, being a written process, proceeding or notice, under section 33 of the Act, the person who filed the document shall amend the document—
(a) by writing the alteration or addition on the document in red ink or otherwise in such manner as to distinguish the alteration or addition from the original matter or any previous amendment; or
(b) by adding to, or interleaving in, the document pages on which the alteration or addition is written.
(2.) When a document is amended, the solicitor for the person who filed the document shall write at the top of the front page of the document, particulars of the order allowing the amendment and of the date on which the amendment is made, in accordance with the following form:—
“Amended the day of , 19 , in pursuance of the order of dated the day of , 19 .”.
(3.) A solicitor writing on a document the particulars required by the last preceding sub-rule shall sign his name immediately under those particulars.
Amendments not effective until served.
109.—(1.) Where a process, proceeding or notice is amended before the process, proceeding or notice has been served on a person on whom it is required or intended to be served, service on the person of the process, proceeding or notice, otherwise than as amended, is not due service for the purpose of these Rules.
(2.) Subject to these Rules and to any order made by the Court, where a process, proceeding or notice is amended after service of it has been effected on a person, service of the amended process, proceeding or notice on the person shall be effected—
(a) if the person has an address for service—by serving a copy of the amended process, proceeding or notice on the person on the day on which it is amended or on the next following day; or
(b) in any other case—by serving a copy of the amended process, proceeding or notice on the person as soon as practicable after the amendment is made.
Reply to amended process. & c.
110. Where a process, proceeding or notice has been amended, the person on whom service of a copy of the amended process, proceeding or notice has been effected shall not file a document in reply to the first-mentioned process, proceeding or notice but may file a document in reply to the amended process, proceeding or notice.
Consequential amendment of document.
111.—(1.) Where a document is amended after a document (in this rule referred to as “the subsequent document”) has been filed in reply to that document, the person who filed the subsequent document may, within such time after service of the amended document was effected on him as is specified in the order allowing the amendment of the document, amend the subsequent document, without the leave of the Court or the Registrar, in such manner as he considers desirable.
(2.) Rules 108, 109 and 110 of these Rules apply to and in relation to an amendment of a document made under the last preceding sub-rule in like manner as they apply to an amendment made to a document by leave of the Court.
Dispensing with service of amended process.
112. The Court may dispense with the service of a process, proceeding or notice that has been amended on a person on whom the process, proceeding or notice had been served before its amendment in such circumstances as it thinks fit or may allow notice of the amendment to be given to the person in place of service of the amended process, proceeding or notice.
Directions as to practice and procedure.
113.—(1.) Where the Court is satisfied that—
(a) the provisions of the Act relating to practice and procedure and the rules made under the Act do not make provision with respect to the practice and procedure applicable in the circumstances of a particular case; or
(b) difficulty arises or doubt exists as to the practice or procedure applicable in the circumstances of a particular case,
the Court may give such directions with respect to the practice and procedure to be followed in the case as the Court considers necessary.
(2.) Subject to any order made by a court on appeal, an act done or proceeding taken in accordance with a direction in force under the last preceding sub-rule shall be deemed to have been duly done or taken.
(3.) Where a direction given by the Court under sub-rule (1.) of this rule is varied by a court on appeal, any act done or proceeding taken in accordance with the direction as so varied shall be deemed to have been duly done or taken.
Trial by jury.
114.—(1.) Where the Court directs, in accordance with sub-section (3.) of section 30 of the Act, the trial of a question of fact to be had before a jury, the party who desires to have the question tried before a jury shall reduce the question to writing and submit it to the Court for the Court’s approval.
(2.) The Court may—
(a) at any time after it has approved a question but before the trial commences, allow the question to be amended; or
(b) at any time after the trial has commenced but before the jury returns its verdict, amend the question,
on such terms as the Court thinks fit.
Division 3.—The Registrar.
Records of Court.
A Registrar in Bankruptcy has the custody of such of the records of the Court as are kept in the office of the Registrar and of the documents filed in that office or ordered to be deposited for safe custody, or impounded, in that office and, except as provided by sub-section (2.) of section 35 of the Act, those records and documents shall not, without the permission of that Registrar, be removed from that office except for use by the Court, a Judge or an officer of the Court.
Sealing and stamping of process.
116.—(1.) A summons, order or warrant, not being a warrant referred to in sub-section (2.) of section 36 of the Act, or any other process or document, issued out of the Federal Court of Bankruptcy may be signed by the Registrar on behalf of that court and stamped with the stamp in the custody of the Registrar in accordance with sub-section (4.) of section 26 of the Act.
(2.) A summons, order or warrant, not being a warrant referred to in sub-section (2.) of section 36 of the Act, or any other process or document, issued out of a court having jurisdiction in bankruptcy (other than the Federal Court of Bankruptcy) in the exercise of that jurisdiction may be signed by a Registrar on behalf of that court and sealed with the appropriate seal or stamped with the appropriate stamp of that court or, if the rules of that court so permit, stamped with the stamp in the custody of the Registrar in accordance with sub-section (4.) of section 26 of the Act.
Office copies.
117.—(1.) Subject to the next succeeding sub-rule, where—
(a) a copy of a document filed in the office of a Registrar in Bankruptcy has been lodged with the Registrar;
(b) the Registrar is satisfied that the copy is a true copy of the document; and
(c) the fees specified in items 25 and 26 in the Third Schedule have been paid to the Registrar,
the Registrar shall, if the document is filed in connexion with a proceeding in the Federal Court of Bankruptcy, stamp it with the stamp in the custody of the Registrar in accordance with sub-section (4.) of section 26 of the Act or, in any other case, certify on the copy that if is a true copy of the document.
(2.) The Registrar may decline to stamp or certify a copy of a document if it is not clearly and legibly written or printed or, in the case of a photographic copy or a copy of a like nature, if it is not approximately the same size as the document of which it is a copy.
(3.) The Registrar may, instead of stamping or certifying a copy of a document lodged with him for the purpose, on payment of the fees specified in items 24 and 26 in the Third Schedule, cause a copy of the document to be made and stamp or certify, as the case requires, that copy.
Proceedings before the Registrar.
118.—(1.) Subject to the next succeeding sub-rule, the provisions of these Rules relating to proceedings before the Court apply, insofar as they are capable of application, to and in relation to proceedings under the Act or under these Rules before the Registrar in like manner as those provisions apply to and in relation to proceedings before the Court.
(2.) Where these Rules make separate provision in relation to proceedings before the Court sitting in Chambers and the Court sitting in Court, those provisions apply to and in relation to proceedings before the Registrar in like manner as they apply to and in relation to proceedings before the Court sitting in Chambers.
(3.) Where a form is specified or referred to in a provision that applies to and in relation to proceedings before the Registrar, the form shall be altered in such manner as the circumstances of the case require for the purpose of rendering it applicable in respect of such a proceeding.
Submission of questions of law to Court.
119.—(1.) If, either before or after the Registrar has given his decision on an application made to him under these Rules, a question of law arises which the Registrar or a party to the application wishes to have determined by the Court, the Registrar shall—
(a) state the facts in the form of a special case for the opinion of the Court; and
(b) refer the special case for hearing and determination by the Court.
(2.) Where a question of law is referred to the Court under the last preceding sub-rule, the Registrar may give directions with respect to the giving of notice of the date on which, and time and place at which, the question of law will be heard by the Court to the parties to the application who have an address for service for the purpose of the proceeding to which the application relates, and the parties shall comply with any such directions.
(3.) Where a question of law referred to the Court under sub-rule (1.) of this rule is heard and determined by the Court, the Court may dispose of the question of law or refer it back to the Registrar with such directions as it may think fit.
Division 4.—Service of Process.
Service at address for service.
120.—(1.) Where a person has an address for service in connexion with a proceeding, service on the person of a document in connexion with the proceeding may be effected by posting (under prepaid post) the document as a letter addressed to the person or his solicitor, as the case may be, at his address for service or by delivering the document at that address.
(2.) The last preceding sub-rule does not apply in relation to the service of a document service of which is, in accordance with these Rules, to be effected personally.
(3.) Where service of a document is effected on a person, in accordance with sub-rule (1.) of this rule, by posting the document to the person or to his solicitor, service of the document shall, unless the contrary is proved, be deemed to have been effected on the person at the time when the letter would, in the ordinary course of post, be delivered at the address to which it is posted.
Persons under sixteen not to serve documents.
A document shall be deemed not to have been duly served on a person in Australia for the purposes of the Act or of these Rules if the document is delivered to the person in Australia by a person who has not attained the age of sixteen years.
Proof of personal service of document.
122.—(1.) Where service of a document is effected on a person by delivering the document or a copy of the document to the person personally, the due service of the document shall be deemed not to have been proved by affidavit unless the person who delivered the document to the person to be served states in an affidavit—
(a) the date on which and the place at which the document was delivered; and
(b) the means by which he established that the person to whom the document was delivered was the person required to be served with the document.
(2.) An affidavit of service of a document on a person personally shall be in accordance with Form 47.
(3.) Where a document relating to a proceeding is delivered to a person for the purpose of effecting service of the document on the person and the person admits to the person who delivered the document to him that he is a specified person referred to in the document or a specified person to whom that proceeding relates, the admission is evidence that he is that specified person.
Service or companies, &c.
123.—(1.) Where a company, corporation, association, society or body of persons has a registered office under a law of the Commonwealth, a State or a Territory of the Commonwealth, a document may be served on the company, corporation, association, society or body of persons by leaving it at, or sending it by post as a prepaid letter to, that registered office.
(2.) Where the Court is satisfied that a document has been brought to the knowledge of a company, corporation, association, society or body of persons but has not been served in accordance with the last preceding sub-rule, it may order that service of the document shall be deemed to have been effected in accordance with these Rules.
Division 5.—Judgments and Orders.
Filing or judgments and orders.
124.—(1.) Subject to these Rules, the person on whose application an order has been made by the Court has the carriage of the order.
(2.) The person having the carriage of an order shall, within seven days after the making of the order, deliver to the Registrar a draft of the order for settling by the Registrar.
(3.) Subject to the next succeeding sub-rule, the Registrar shall settle a draft order informally unless a person who appeared before the Court on the hearing of the application has requested the Registrar to settle the order formally or the Registrar is of the opinion that the order ought to be settled formally.
(4.) Where an order is made under paragraph (b) of section 34 of the Act, the Court may settle the order or may direct the Registrar to settle the order.
(5.) Where the Registrar settles a draft order informally, he shall, forthwith after settling the draft order, inform the person having the carriage of the order that he has settled the order and that person shall then lodge with the Registrar a fair copy of the order as so settled.
(6.) Where an order is required to be settled formally, the Registrar shall fix a date, time and place for settling it and give notice of the date, time and place so fixed to the person having the carriage of the order.
(7.) Where notice under the last preceding sub-rule is given to a person, the person shall cause a copy of the draft order and notice of the date, time and place fixed for settling the draft to be served on each person who appeared before the Court on the hearing of the application to which the order relates.
(8.) As soon as possible after the Registrar has settled an order formally, the person having the carriage of the order shall lodge with the Registrar a fair copy of the order as so settled.
(9.) Where the person having the carriage of an order fails to perform any act that he is required to perform by this rule, within the time limited for performing that act or, if no time is limited, within a reasonable time, any other person who appeared on the hearing of the application to which the order relates, or the Registrar, may do the act on his behalf.
(10.) Where a fair copy of an order as settled by the Registrar is lodged with the Registrar, the Registrar shall—
(a) if the order was made by the Federal Court of Bankruptcy—sign, seal and file the order; or
(b) in any other case—cause the order to be signed and sealed as an order of the court by which it was made, and when it has been so signed and sealed, file the order.
Part XI.—Evidence.
Division 1.—Witnesses.
Summons to witness.
125.—(1.) The Registrar may, at the request of a prescribed person, summon a person to attend before the Court on a day and at a time and place specified in the summons and there and then to give evidence or to give evidence and produce any documents in his custody or control that he is required by the summons to produce.
(2.) A summons under the last preceding sub-rule shall be in accordance with Form 48.
(3.) A summons for the attendance of a witness to give evidence may be directed to two or more witnesses.
(4.) A summons to produce documents shall not be directed to more than one witness.
(5.) A person who has been summoned to attend before the Court as a witness shall appear and report himself on the day and at the time and place specified in the summons and then from day to day, unless excused by the Court.
(6.) For the purposes of this rule—
(a) in the case of a proceeding instituted by petition—the petitioner and a person on whom the petition has been served are each a prescribed person;
(b) in the case of a proceeding instituted by application to the Court sitting in Court—the applicant and a person who has filed a notice under rule 106 of these Rules are each a prescribed person; and
(c) in the case of a proceeding instituted by application to the Court sitting in Chambers—the applicant and a person on whom the application has been or is to be served are each a prescribed person.
Service of summons.
126.—(1.) Service of a summons on a person named in the summons shall be effected by delivering the summons to the person personally.
(2.) Where a summons is directed to two or more witnesses, the summons delivered to one of the witnesses need not specify the name of any other witness.
Conduct money and witnesses’ expenses.
127.—(1.) Where a summons issued under section 81 of the Act or under rule 125 of these Rules is served on a person (in this sub-rule referred to as “the witness “), the witness is entitled to be paid such sum as conduct money as is sufficient to pay the reasonable expenses of the witness in travelling to and from his place of residence to the place where he is required by the summons to attend and of his residential accommodation at the last-mentioned place if it is reasonable that he should be provided with accommodation.
(2.) A person, other than a bankrupt summoned under section 69 of the Act, who—
(a) attends to give evidence in a proceeding;
(b) attends to give evidence and produce documents in a proceeding; or
(c) attends to produce documents in a proceeding,
in accordance with a summons or at the request of a party to the proceeding is entitled to payment, whether or not he is called to give evidence, by the person on whose behalf he is summoned to give evidence or at whose request he attends, as the case may be, of expenses in accordance with the scale of witnesses’ expenses contained in the Second Schedule (less any amount previously paid to him for his expenses of attendance).
(3.) Where the Court or the Registrar, as the case may be, determines that such higher amount as the Court or the Registrar fixes is payable to a person referred to in the last preceding sub-rule, that higher amount is payable in lieu of the amount payable in accordance with that sub-rule.
Compliance with summons to produce documents.
Where a summons under rule 125 of these Rules is served on an officer of a Department of State of the Commonwealth or of a State or on an officer of an authority of the Commonwealth or a State requiring the officer to produce documents in the custody of the Department or the authority, as the case may be, the officer shall be deemed to have complied with the summons if, before the time specified in the summons, he causes the documents specified in the summons to be lodged with the Registrar for the District specified in the summons.
Summons under section 81 of the Act.
129.—(1.) An application to the Court or to the Registrar for a summons under sub-section (1.) of section 81 of the Act shall set out the grounds on which ‘the application is made and, except where the application is made by the trustee of the bankrupt to whom the application relates, shall be accompanied by an affidavit setting out the facts relied on by the applicant in support of his application.
(2.) A summons under sub-section (1.) of section 81 of the Act shall be in accordance with Form 49.
Registrar may settle commission to take evidence.
Where an order is made under paragraph (b) of section 34 of the Act, the Court may settle the form of the commission that is to be issued or direct that the form of that commission be settled by the Registrar.
Transcript of evidence.
131.—(1.) Subject to sub-rule (5.) of this rule, where any evidence, argument, ruling or direction in a proceeding before the Court, or any evidence given before the Registrar, is taken down by an approved shorthand writer or is recorded by means of a steno-type machine, the transcript of the evidence, argument, ruling or direction shall be certified by the approved shorthand writer or by
the person who operated the steno-type machine, as the case may be, by writing under his hand, to be a true transcript of the evidence, argument, ruling or direction.
(2.) Subject to sub-rule (5.) of this rule, where any evidence, argument, ruling or direction in a proceeding before the Court, or any evidence given before the Registrar, is recorded by means of sound recording apparatus, the Registrar shall have the custody of the record of the evidence, argument, ruling or direction.
(3.) The Registrar shall give such directions as he considers necessary for ensuring that, in any case where a transcript of the record of any evidence, argument, ruling or direction made in accordance with a direction of the Court under sub-section (2.) of section 255 of the Act or of any record of any evidence given before the Registrar made in accordance with sub-section (3.) of that section is or may be required, a transcript is prepared, and, for the purpose of enabling the transcript to be prepared, the record shall be produced out of the custody of the Registrar.
(4.) Where a transcript of a record is prepared in accordance with the directions of the Registrar given under the last preceding sub-rule, the person who prepared the transcript, or under whose supervision the transcript was prepared, shall certify on the transcript, by writing under his hand, that the transcript is a true transcript of a record produced out of the custody of the Registrar.
(5.) Where a witness in a proceeding before the Court signs a transcript of any of the evidence given by him in the proceeding, the transcript shall also be signed by the Registrar and sealed.
Division 2.—Affidavits.
Form of affidavit.
132.—(1.) An affidavit shall—
(a) be drawn up in the first person;
(b) state the full name, address and occupation of the deponent;
(c) state the source of the information of any facts or circumstances set out in the affidavit that are not within the deponent’s own knowledge; and
(d) as far as practicable, be divided into paragraphs.
(2.) Where an affidavit is divided into paragraphs in accordance with paragraph (d) of the last preceding sub-rule—
(a) each paragraph shall, as far as practicable, be confined to a distinct part of the subject of the affidavit; and
(b) the paragraphs shall be numbered consecutively.
(3.) Where reference is made to a date in an affidavit, the ordinal number of the day of the month, or the ordinal number of the day of the month and the year, as the case may be, shall be written in figures.
(4.) Where reference is made to a sum of money in an affidavit, the sum of money shall be written in figures and symbols.
Alterations.
Where an affidavit that is filed in connexion with a proceeding contains, in the jurat or in the body of the affidavit, an interlineation, alteration or erasure, the affidavit shall not, without leave of the Court or the Registrar, as the case may be, be used in the proceeding unless—
(a) in the case of an interlineation or alteration, not being an alteration by erasure—the interlineation or alteration is initialled by the person before whom the affidavit is sworn; or
(b) in the case of an erasure—the erasure is initialled by the person before whom the affidavit is sworn and any words or figures that appear, at the time the affidavit is sworn, to be written over the erasure, are written in the margin of the affidavit and initialled by that person.
Scandalous, &c., matter may be struck out by the Court.
134. The Court may, on the application of a party to proceedings, order that scandalous, irrelevant or objectionable matter included in an affidavit filed in connexion with proceedings be struck out and may further order that the costs of the application be paid as between solicitor and client by the person by or on whose behalf the affidavit was filed.
Cross-examination of deponent.
135.—(1.) Where a party to a proceeding has served on another party to the proceeding a copy of an affidavit filed by that first-mentioned party in connexion with the proceeding, the second-mentioned party may, a reasonable time before the date fixed for the hearing of the proceeding, serve on the first-mentioned party a notice in writing requiring the production of the deponent for cross-examination on the hearing.
(2.) Where a notice under the last preceding sub-rule has been served on a party who filed an affidavit, the affidavit shall not be used as evidence unless the deponent is produced for cross-examination before the Court or the Court gives special leave to use the affidavit.
(3.) The party producing a deponent for cross-examination is not entitled to demand or receive the expenses of producing the deponent, in the first instance, from the party requiring the production of the deponent.
(4.) The party on whom a notice under sub-rule (1.) of this rule has been served may compel the attendance of the deponent to whom the notice relates for cross-examination in the same way as he might compel the attendance of a witness to give evidence before the Court.
Presumption of proper execution of affidavits.
136. Where an affidavit purports to have been sworn at a place before a person before whom an affidavit is permitted by section 262 of the Act to be sworn, the affidavit shall, without proof of the signature of that person or of his title, be deemed, unless the contrary is proved, to have been sworn before such a person.
Affirmations.
137. Where a deponent of an affidavit objects to swearing on oath to the truth of the statements contained in the affidavit, he may solemnly and sincerely declare and affirm that he objects to swearing an oath and that the statements contained in the affidavit are true, and the introductory words of the affidavit, and the jurat to the affidavit, shall be altered accordingly.
Defects in affidavits.
138.—(1.) Where, in an affidavit filed for the purpose of a proceeding, there is a defect, by misdescription of parties or deponents or otherwise, in the title or jurat to the affidavit, or there is any irregularity in the form of the affidavit, the Court by which the proceeding is tried, or the Registrar, as the case may be, may direct that a memorandum be written on the affidavit authorizing the use of the affidavit notwithstanding the defect or irregularity, and the affidavit may then be used in the proceeding.
(2.) An affidavit to be used in a proceeding shall, unless the Court or the Registrar, as the case may be, otherwise directs, be filed before it is so used.
Form of attestation clause where deponent is illiterate or blind.
139.—(1.) Where a person before whom an affidavit is to be made has reason to believe that the deponent is illiterate or blind, that person shall, before the deponent is sworn—
(a) ensure that the affidavit is read to the deponent in the presence of that person;
(b) satisfy himself that the deponent appears to understand the matter contained in the affidavit; and
(c) ensure that the deponent signs the affidavit (whether by making his mark or otherwise) in the presence of that person,
and, after the deponent is sworn, certify, in the jurat to the affidavit, that the affidavit was so read and signed and that the deponent appeared to understand the matter contained in the affidavit.
(2.) Where an affidavit that is sworn by a person who is illiterate or blind does not bear the certificate referred to in the last preceding sub-rule in the jurat, the affidavit is not admissible in evidence in a proceeding unless the Court or the Registrar, as the case may be, is satisfied that the affidavit was read over to the deponent and that the deponent appeared to understand the matter contained in the affidavit.
Form of attestation clause where there are two or more deponents.
140.—(1.) Subject to the next succeeding sub-rule, where an affidavit is sworn by two or more deponents, the full name of each deponent who swears before a person shall be inserted in the attestation clause relating to the swearing of the affidavit by that deponent or those deponents.
(2.) Where an affidavit referred to in the last preceding sub-rule is made by all the deponents at the same time before the same person, the attestation clause may specify that the affidavit was made by all of the deponents named in the affidavit.
Extracts from documents.
141.—(1.) Instead of annexing a document to an affidavit or marking a document an exhibit to an affidavit, the relevant portion of the document may be included in the body of the affidavit.
(2.) Where a portion of a document is included in the body of an affidavit, the party filing the affidavit shall produce the document to the Court or the Registrar, as the case may be, whenever the party uses the affidavit in a proceeding.
Division 3.—Interrogatories, Discovery, Inspection and Admissions.
Interrogatories.
142.—(1.) A party to a proceeding in the Court may apply to the Court for leave to deliver interrogatories in writing for the examination of another party to the proceeding.
(2.) A party to a proceeding in the Court may apply to the Court for leave to deliver further interrogatories arising from the answers given by a party to previous interrogatories.
(3.) Where the Court gives leave, in accordance with this rule, to deliver interrogatories or further interrogatories, a copy of the interrogatories that are to be delivered shall be filed before the interrogatories are delivered.
(4.) An application under sub-rule (1.) of this rule may be made ex parte.
(5.) The Court may, on an application under this rule, give leave to the applicant to deliver interrogatories or further interrogatories to be answered by a specified officer, servant or agent of a body corporate or body of persons.
Affidavit in answer.
143.—(1.) Interrogatories shall be answered by filing an affidavit in answer and serving a copy of the affidavit on the person who delivered the interrogatories within the period fixed by the Court when giving leave to deliver the interrogatories or, if a period was not so fixed, within a period of fourteen days after delivery of the interrogatories.
(2.) Where a body corporate or other body of persons is interrogated, the affidavit in answer may, subject to an order made by the Court in accordance with sub-rule (5.) of the last preceding rule, be made by the secretary or other proper officer or by a servant or agent of the body.
Affidavit in answer may include objections.
144.—(1.) Objection to answering a question included in interrogatories may be taken in the affidavit in answer to the interogatories filed and served in accordance with sub-rule (1.) of the last preceding rule—
(a) on the ground that the question is scandalous, irrelevant, unreasonable, prolix, oppressive or unnecessary;
(b) on the ground that the matter inquired into by the question is not sufficiently material at that stage; or
(c) on any other ground.
(2.) Where objection is taken in accordance with the last preceding sub-rule, the grounds of objection shall be set out in the affidavit in reply.
Order to answer or to answer further.
Where a person objects to answering a question, or refuses or omits to answer, within the period required by sub-rule (1.) of rule 143 of these Rules, a question included in interrogatories delivered in accordance with this Division or where a person answers interrogatories so delivered insufficiently, the Court may, on the application of the person who delivered the interrogatories, require the first-mentioned person to answer or to answer further, as the case may be, either by affidavit or on oral examination.
Discovery.
A party to a proceeding in the Court may, not later than fourteen days before the date set down for the hearing of the proceeding, serve on another party to the proceeding a notice of discovery, in accordance with Form 50, requiring the last-mentioned party to make discovery on oath of the documents that are or have been in his possession, custody or power relating to a matter in question in the proceeding.
Affidavit of discovery.
147.—(1.) Where a party to a proceeding is served with a notice of discovery—
(a) if the party is a body corporate or other body of persons—the secretary or other proper officer or servant or agent of the body; or
(b) in any other case—the party,
shall make discovery of documents by filing an affidavit of discovery, and serving a copy of the affidavit on the party who caused the notice of discovery to be served on him, not later than ten days after service of the notice on him.
(2.) A party’s affidavit of discovery shall—
(a) specify the documents relating to matters in question in the proceeding that are in the possession, custody or power of the party;
(b) specify the documents relating to matters in question in the proceeding that are not but have been in the possession, custody or power of the party and state, to the best of the knowledge and belief of the party, whether they are still in existence and, if so, who has possession of them;
(c) specify the documents that he objects to producing, and the grounds of his objection to producing them;
(d) state that he has not at the time of swearing the affidavit and has never had in his possession, custody or power, or in the possession, custody or power of a solicitor, agent or other person on his behalf—
(i) any deed, account, book of account, voucher, receipt, letter, memorandum, paper or writing that relates to matters in question in the proceeding or in which an entry relating to such a matter has been made; or
(ii) a copy of or extract from any such deed, account, book of account, voucher, receipt, letter, memorandum, paper or writing, that is not specified or referred to in the affidavit; and
(e) specify a reasonable time and place as the time and place at which the documents that the party does not object to producing may be inspected.
(3.) In an affidavit of discovery, it is not necessary to specify each letter from a person to another person, but it is sufficient to specify the number of letters from the person to the other person and the dates of the first such letter and the last such letter, respectively.
(4.) Where the specification in an affidavit of discovery of documents in respect of which privilege is claimed would derogate from the privilege attached to the documents, it is not necessary to specify each of the documents in the affidavit but it is sufficient if—
(a) the documents are tied in a bundle that is marked as an exhibit to the affidavit and are referred to in the affidavit as the documents in that bundle;
(b) the number of documents in that bundle is stated in the affidavit; and
(c) the documents in that bundle are numbered consecutively and each of those documents is initialled by the person before whom the affidavit is sworn.
Order for discovery.
148.—(1.) Upon application made to the Court by a party to a proceeding, the Court may make such order for the filing of an affidavit of discovery or a further affidavit of discovery as the Court considers necessary in order to dispose fairly of the matters in question or to save costs in the proceeding.
(2.) Where an order has been made requiring a party to a proceeding to file an affidavit of discovery, the party shall, within ten days after the date of the order or within such other time as the Court orders, file the affidavit and serve a copy of the affidavit on the applicant for the order.
Failure to discover document.
Where—
(a) a party to a proceeding has filed an affidavit of discovery;
(b) a document relating to matters in question in the proceeding was, at the time the party swore the affidavit, in the possession, custody or power of the party or such a document was not at that time, but had been, in the possession, custody or power of the party; and
(c) the document was not specified or referred to in that affidavit of discovery or in another affidavit of discovery filed by the party in pursuance of an order of the Court,
the party is not entitled, except by leave of the Court, to put the document or a copy of the document in evidence, or to furnish or cause to be furnished evidence of the document, at the trial of the proceeding.
Inspection of documents.
150.—(1.) Subject to the next succeeding sub-rule, a party to a proceeding may, by notice in writing to another party, request the other party to produce, for inspection by the party giving the notice, a document specified in the notice, being a document that is referred to in a petition, application to the Court, affidavit or other document filed on behalf of that other party in connexion with the proceeding.
(2.) A document referred to in an affidavit of discovery filed on behalf of a party shall not be specified in a notice given to the party under the last preceding sub-rule if, in the affidavit, the party—
(a) objected to producing the document on a ground stated in the affidavit; or
(b) stated that the document was not in his possession, custody or power.
(3.) A party to whom a notice under sub-rule (1.) of this rule has been given shall, within four days after receipt of the notice, specify in writing to the party who gave the notice—
(a) the ground on which he objects to the production of a document specified in the notice; or
(b) the date on which and the time and place at which he will produce the document for inspection.
(4.) A document produced for inspection in pursuance of a notice under sub-rule (1.) of this rule may be inspected and copied by the party to whom it is produced or by his solicitor.
(5.) Where a party to a proceeding to whom a notice to produce a document has been given under sub-rule (1.) of this rule fails to produce the document for inspection and copying, the party is not entitled, except by leave of the Court, to put the document or a copy of the document in evidence, or to furnish or cause to be furnished evidence of the document, at the trial of the proceeding.
Notice to admit documents.
151.—(1.) A party to a proceeding may, at any time not less than five days before the date fixed for the trial of the proceeding, by notice, in accordance with Form 51, served on another party to the proceeding, call upon that other party to make the admissions with respect to a document that are indicated in that notice, and that other party may, by notice served on the first-mentioned party, make such of those admissions as he is willing to make.
(2.) If the other party desires to challenge the authenticity of the document, the party shall, before the trial of the proceeding, serve on the party giving the notice a notice that he does not admit the document and requires it to be proved at the trial.
(3.) If the other party refuses or fails to serve a notice under the last preceding sub-rule within the time prescribed by that sub-rule, and fails to serve, before the trial of the proceeding, a notice under sub-rule (1.) of this rule, the party shall be deemed to have made the admission indicated in the notice served on him, unless the Court otherwise orders.
(4.) Where a party to a proceeding does not admit a document after service on him of a notice under sub-rule (1.) of this rule, the costs of proving the document shall, unless the Court certifies that the refusal to admit was reasonable, be paid by the party.
(5.) Where a notice to admit a document has not been given by a party to a proceeding, the party is not entitled to the costs of proving the document unless the taxing officer is of the opinion that the omission to give the notice saved expense.
(6.) An admission made or deemed to have been made under this rule with respect to a document does not prevent the party who made or is deemed to have made the admission from objecting to the admission of the document in evidence on a ground that is not inconsistent with his admission.
(7.) A party to a proceeding who has made or is to be deemed to have made an admission with respect to a document under this rule may, by leave of the Court given on such terms as the Court thinks fit, amend or withdraw the admission.
Notice to admit facts.
152.—(1.) Subject to sub-rule (5.) of this rule, a party to a proceeding may, at any time not later than five days before the date fixed for the trial of the proceeding, by notice in writing served on another party to the proceeding, call upon the other party to admit, for the purpose of the proceeding, any specific fact or facts mentioned in the notice, and that other party may, by notice in writing, admit the fact or any of those facts.
(2.) If the party on whom a notice to admit has been served refuses or fails to admit in writing a fact mentioned in the notice within two days before the date fixed for the trial of the proceeding, the Court may order that party to pay the costs of proving the fact.
(3.) An admission of a party to a proceeding in pursuance of a notice to admit served under sub-rule (1.) of this rule shall be deemed to be made only for the purpose of the proceeding and shall not be used—
(a) against the party in any other proceeding; or
(b) in favour of any person other than the party giving the notice.
(4.) The Court may at any time allow the party to amend or withdraw an admission made under this rule upon such terms as the Court thinks fit.
(5.) Nothing in this rule shall be deemed to authorize a party to a proceeding to call upon another party to admit a fact which that other party has denied in a document filed in connexion with the proceeding.
(6.) A notice referred to in sub-rule (1.) of this rule shall be in accordance with Form 52 and an admission of a fact in answer to such notice shall be in accordance with Form 53.
(7.) An admission made under this rule with respect to a fact does not prevent the party who made the admission from objecting to the admission of the fact in evidence on a ground that is not inconsistent with his admission.
Affidavit of signature of admission.
An affidavit by the solicitor representing a party, or by a clerk of that solicitor, of the due signature of admissions made in pursuance of a notice to admit documents or facts is sufficient evidence of those admissions, if that evidence is required.
Notice to produce documents.
154.—(1.) A party to a proceeding may, by notice in writing served on another party to the proceeding not less than five days before the date set down for the hearing of the proceeding, require the other party to produce, at the trial of the proceeding, a document specified in the notice, being a document that is in the possession, custody or power of that other party.
(2.) A notice referred to in the last preceding sub-rule shall be in accordance with Form 54.
Division 4.—Inquiries and Accounts.
Verification of accounts.
155.—(1.) Where the Court directs, under sub-section (2.) of section 30 of the Act, that an account be taken, the person whose account is to be taken shall, unless the Court otherwise orders, make out the account and verify it by affidavit.
(2.) The account shall be exhibited to the affidavit verifying the account and shall be filed with the affidavit.
(3.) The items on each side of the account shall be numbered consecutively.
Power of the Registrar to summon witnesses.
156.—(1.) Where the Court directs inquiries to be made or accounts to be taken by the Registrar or by another person—
(a) if the inquiries are to be made or accounts are to be taken by the Registrar—the Registrar may, of his own motion, summon a person to attend before the Registrar; or
(b) in any other case—the Registrar may, at the request of the person by whom the inquiries are directed to be made or the accounts are to be taken, summon a person to attend before the person at whose request the summons is issued,
on a day and at a time and place specified in the summons and then and there to give evidence and to produce any books or documents in his custody or under his control which he is required by the summons to produce.
(2.) A summons under the last preceding sub-rule shall be in accordance with Form 48.
(3.) Service of a summons under sub-rule (1.) of this rule shall be effected on a person by serving the summons on the person personally.
Duty of witness to continue in attendance.
A person who has been summoned to attend before another person under the last preceding rule shall appear and report himself on the day and at the time and place specified in the summons and then from day to day, unless excused by that last-mentioned person.
Part XII.—Review and Appeals.
Review of order, direction or act of Registrar.
An application under sub-section (5.) of section 14 of the Act may be made within twenty-one days from the date on which the order, direction or act sought to be reviewed was made, given or done.
Leave to appeal to the High Court.
159.—(1.) An application to the Court under sub-section (1.) of section 39 of the Act for leave to appeal to the High Court from a judgment, order or sentence of the Court shall be filed within twenty-one days after the day on which the judgment, order or sentence of the Court was given, made or pronounced.
(2.) An application to the Court for leave to appeal to the High Court shall state—
(a) whether the applicant desires to appeal from the whole or part only, and what part, of the judgment, order or sentence;
(b) briefly, but specifically, the grounds that will be relied on in support of the appeal and any other grounds relied on in support of the application for leave to appeal; and
(c) what judgment, order or sentence the appellant would seek in lieu of that given, made or pronounced, if leave to appeal were granted.
(3.) An application to the Court for leave to appeal to the High Court may, subject to the next succeeding sub-rule, be made ex parte.
(4.) Where—
(a) a party to the proceeding in which the judgment, order or sentence was given, made or pronounced has given to the applicant for leave to appeal notice in writing that he desires to be heard in opposition to, or on any question arising in connexion with, an application for leave to appeal to the High Court;
(b) the application is in respect of an offence against the Act and the applicant is serving a term of imprisonment for that offence; or
(c) the applicant is the Registrar and the application relates to a judgment, order or sentence given, made or pronounced in respect of an offence against the Act,
application for leave to appeal to the High Court shall not be made ex parte.
(5.) Where application for leave to appeal to the High Court is made to the Court ex parte, the Court may, if it thinks fit, adjourn the hearing of the application and direct that the application be served on a person interested in the application on whom the Court thinks that the application ought to be served.
Part XIII.—Taxation of Costs.
Application for order for costs.
Where a party to, or a person affected by, a proceeding who did not, at the time when the proceeding was disposed of by the Court, make application for an order for costs in the proceeding makes such an application to the Court, the party or person shall serve the application—
(a) if a sequestration order was made in the proceeding—on the trustee of the bankrupt; or
(b) in any other case—on each other party or each party, as the case may be, to the proceeding.
Form of bill of costs.
161.—(1.) A bill of costs—
(a) shall be written on one side only of the paper with a margin upon one side of each sheet; and
(b) subject to the next succeeding sub-rule and to sub-rule (3.) of the next succeeding rule, shall be so prepared that—
(i) the items are numbered consecutively;
(ii) there is specified in relation to each item the date on which the work to which the item refers was done; and
(iii) professional charges and disbursements, respectively, are shown separately.
(2.) The last preceding sub-rule applies in relation to a bill of costs for a gross sum as if sub-paragraphs (i) and (ii) of paragraph (b) of that sub-rule had been omitted.
Scale of costs.
162.—(1.) Subject to this rule and except where otherwise ordered, in all proceedings commenced or instituted after the commencement of the Act, solicitors are entitled to charge and be allowed costs as set forth in the Second Schedule.
(2.) Where a sequestration order is made in a proceeding instituted by a petition in which non-compliance with a bankruptcy notice is specified as the act of bankruptcy or one of the acts of bankruptcy committed by the debtor, the costs to be allowed to the solicitor for the petitioning creditor shall, if the solicitor so desires, be, in addition to his proper disbursements, One hundred and thirty dollars, and, if the petitioning creditor has been granted his costs of an adjournment of the proceeding, a further amount in respect of that adjournment—
(a) if counsel attended on the hearing when the proceeding was adjourned—of Thirteen dollars; or
(b) in any other case—of Fifteen dollars.
(3.) Where a solicitor brings in a bill of costs under sub-rule (2.) of this rule, the solicitor is not required—
(a) to itemize details of the work involved or services performed; or
(b) to attend or cause a clerk to attend on the taxing of the bill.
(4.) Where—
(a) a solicitor for a trustee represents the trustee in a proceeding in a court other than a court having jurisdiction in bankruptcy under the Act; and
(b) the solicitor’s costs in respect of the proceeding are to be taxed under section 167 of the Act,
the solicitor is entitled to charge and be allowed costs in accordance with the scale of costs applicable in the court in which the proceeding was instituted or, if there is no scale of costs so applicable, such costs as are reasonable having regard to the work involved.
(5.) Where a solicitor’s costs relating to conveyancing work performed by the solicitor for a trustee are to be taxed under section 167 of the Act, the solicitor is entitled to charge and be allowed costs in accordance with the scale of solicitors’ costs applicable to conveyancing work in the State or Territory where the property to which the work relates is situated.
Appointment to tax bill.
163.—(1.) A bill of costs shall be filed before it is taxed.
(2.) Where a solicitor files a bill of costs in which he seeks to be allowed costs under sub-rule (2.) of the last preceding rule—
(a) the taxing officer shall—
(i) inform the official receiver that the bill has been lodged for taxing and may be inspected at the office of the Registrar; and
(ii) afford the official receiver an opportunity of inspecting the bill and informing him whether or not he requires a time to be fixed for taxing the bill; and
(b) the taxing officer shall not appoint a time for taxing the bill unless the official receiver requires him to do so or the taxing officer is of the opinion that the solicitor who brought in the bill should be afforded an opportunity of being present at the taxation of the bill.
(3.) Where the taxing officer does not appoint a time for taxing a bill referred to in the last preceding sub-rule, the taxing officer shall tax the bill in the absence of the solicitor who brought in the bill and then inform that solicitor of the amount allowed on the taxing of the bill.
(4.) Where a bill of costs, not being a bill referred to in sub-rule (2.) of this rule, is filed, the taxing officer shall appoint a date, time and place for the taxing of the bill.
(5.) When the taxing officer appoints a date, time and place for the taxing of a bill—
(a) the taxing officer shall give notice of the date, time and place so appointed to the person who filed the bill; and
(b) the person who filed the bill shall cause a copy of the bill and notice of the date, time and place so appointed to be served—
(i) if the bill relates to a proceeding in which a sequestration order was made or relates to a bankrupt—on the trustee of the bankrupt; or
(ii) in any other case—on each other party to the proceeding, not less than five days before the day appointed for taxing the bill.
Disallowance of unreasonable costs.
164.—(1.) The taxing officer may, on the taxation of a bill of costs, disallow in whole or in part fees, disbursements or charges that, in his opinion, were incurred or increased—
(a) by a payment of unusually high fees to counsel or unusually high charges or expenses to witnesses or other persons;
(b) improperly, unreasonably, negligently or unnecessarily; or
(c) in any other unusual manner.
(2.) Where the same solicitor acts in a proceeding for two or more parties in the same interest, the taxing officer may, on the taxation of the bill of costs of the solicitor, disallow so much of the costs as he considers were unnecessarily incurred by the delivery or service of separate papers or the institution of separate proceedings.
(3.) Where, in the opinion of the taxing officer, two or more documents could have been served at the same time, he may, on the taxation of a bill of costs, allow only one fee in respect of the service of those documents.
General provisions in connexion with drawing and perusing certain documents.
165.—(1.) Where a sum is allowed on taxation of a bill of costs in respect of the drawing of a document by a solicitor, a sum is not to be allowed in respect of a copy made for the use of the solicitor or his agent or for inclusion in a brief to counsel to settle the document.
(2.) Item 10 and item 11 in the Second Schedule do not apply in respect of a document drawn by counsel.
(3.) An allowance is not to be made in relation to the drawing of a part of a document that, in the opinion of the taxing officer, constitutes the unnecessary repetition or adaptation of matter in respect of the drawing or perusing of which an allowance in respect of costs is made in the same proceeding.
(4.) A sum in respect of instructions for an affidavit to be used in a proceeding, being an affidavit made by the solicitor who has the conduct of the proceeding or his clerk, is not to be allowed by the taxing officer on the taxation of a bill of costs in relation to the proceeding.
(5.) The allowances for instructions for a special affidavit, and for attending on the deponent to be sworn, include all attendances on the dependent to settle and read over the affidavit.
Restriction of allowances for drawing and perusing documents.
A sum is not to be allowed on the taxation of a bill of costs in respect of—
(a) the perusal of a document with the contents of which a solicitor is already familiar; or
(b) the delivery, service or perusal of a document in a proceeding in which the same solicitor acts for all parties,
unless the taxing officer is of opinion that an allowance should be made in respect of the matter and, in that event, he may make such allowance in respect of the matter as he thinks fit.
Evidence.
167.—(1.) Such just and reasonable charges and expenses as appear to have been properly incurred in procuring evidence and the attendance of witnesses shall be allowed.
(2.) A witness who attends to give evidence in more than one matter is entitled to a proportionate part only of his expenses in each matter.
Calculation of folios.
168.—(1.) For the purposes of the taxation of a bill of costs, a folio comprises seventy-two words, and a figure shall be counted as one word.
(2.) Where, in a document—
(a) reference is made to a date and the ordinal number of the day of the month or the year is not written in figures; or
(b) reference is made to a sum of money and the sum of money is not written in figures and symbols,
the words in the reference shall be reckoned as figures or figures and symbols, as the case may be, for the purpose of calculating the number of folios in the document.
Disbursements.
169.—(1.) Subject to this Part, the party whose bill of costs or charges is being taxed is entitled to have allowed by the taxing officer all disbursements that, in the opinion of the taxing officer, have been properly incurred.
(2.) For the purposes of the last preceding sub-rule, the taxing officer may decline to allow a disbursement unless payment is proved by the production of vouchers in respect of the payment or is otherwise proved to the satisfaction of the taxing officer.
Counsel’s fees.
170.—(1.) Subject to sub-rule (1.) of the last preceding rule and to the next succeeding sub-rule, the taxing officer may, on the taxation of a bill of costs, allow such sums in respect of fees paid to counsel as he considers reasonable in the circumstances.
(2.) Where a hearing (whether in open Court or in Chambers and whether witnesses are examined or cross-examined or not) extends beyond the day on which the hearing began, the taxing officer may allow such refresher fees as he considers reasonable in the circumstances in respect of each five hours or part of five hours (including any luncheon adjournment) of the hearing that occurs—
(a) on a day subsequent to the day on which the hearing began; and
(b) subsequent to the expiration of the first five hours (including any luncheon adjournment) beyond which the hearing is extended without being concluded.
(3.) Where a practitioner acts in the capacities of both barrister and solicitor, or in the capacity of counsel, instructed by his partner acting as solicitor, the taxing officer shall (in cases where a fee would have been allowed to independent counsel) allow to the practitioner in respect of—
(a) the drawing or settling of any document; or
(b) the appearance of the practitioner as counsel at the trial of a proceeding,
such sum as counsel’s fee as the taxing officer in his discretion thinks just and reasonable having regard to the fact that the practitioner is acting both as barrister and solicitor, or as counsel instructed by his partner acting as solicitor, as the case may be.
(4.) Where a practitioner acts in the capacities of both barrister and solicitor, or in the capacity of counsel, instructed by his partner acting as solicitor, items 7 and 19 in the Second Schedule do not apply but the taxing officer may allow such sum as he considers reasonable in the circumstances in respect of the work done by the practitioner in preparing for the hearing and in preparing notes, being notes known as “brief notes”, for use on the hearing.
Taxing officer’s discretion.
171.—(1.) Where a fee or allowance specified in the Second Schedule is discretionary, it shall, unless otherwise provided, be allowed at the discretion of the taxing officer.
(2.) The taxing officer, in the exercise of his discretion, shall take into consideration—
(a) the other fees and allowances of the solicitor and counsel (if any) in respect of the work to which such a fee or allowance applies;
(b) the nature and importance of the proceeding;
(c) the amount involved;
(d) the interest of the parties;
(e) the estate or person liable to bear the costs;
(f) the general conduct and costs of the proceeding; and
(g) the other circumstances of the particular case.
(3.) Notwithstanding any other provision of this Part, where the taxing officer is of the opinion that the amount that would otherwise be allowed in respect of an item in a bill of costs, being an amount calculated by reference to an item in the Second Schedule, is, in the circumstances of the particular case, inadequate having regard to the nature or amount of the work performed to which the item relates, the taxing officer may allow such larger amount as he considers reasonable.
(4.) Such amount shall be allowed as the taxing officer in his discretion thinks reasonable, having regard to all the circumstances of the particular case, for work and labour properly performed and not specifically provided for by these Rules, but in respect of which, in the opinion of the taxing officer, an allowance should be made.
(5.) Where it was necessary for a solicitor to travel from his place of business in connexion with a matter for which a fee is allowed on taxation of the solicitor’s bill of costs, the taxing officer may allow such additional sum as he considers reasonable in respect of the expense incurred by the solicitor in so travelling and of his residential accommodation (if any) while living away from his residence together with such further sum as compensation for his absence from his place of business in respect of each day that he is so absent.
Certificate of taxation.
172.—(1.) Where a bill of costs or a bill of charges has been taxed, the taxing officer shall, if the person by whom the bill was filed furnishes to him a certificate of taxation, in accordance with Form 55, relating to the bill, sign the certificate and return it to that person.
(2.) Where the taxing officer taxes a bill of costs or a bill of charges in pursuance of an order of the Court and the costs or charges are payable otherwise than out of the estate of the bankrupt to whose estate the costs or charges relate, particulars of the order, insofar as it relates to payment of the costs or charges, shall be included in the certificate of taxation relating to that bill.
(3.) The person who lodges a bill of costs for taxation shall, upon the issue, to him of a certificate of taxation in relation to that bill, serve the certificate of taxation on the person liable to pay the costs or charges.
Review of taxation.
173.—(1.) An appeal under sub-section (8.) of section 167 of the Act from a decision of the taxing officer with respect to the taxation of a bill of costs or bill of charges shall be instituted by filing an application to the Court to review the taxation of the bill within twenty-one days after the day on which the taxing officer signs a certificate of taxation in relation to that bill.
(2.) A person who appeals against the allowing or disallowing of an item or items in a bill of costs or bill of charges shall specify that item or those items in the application by which he institutes the appeal.
(3.) An application to review the taxation of a bill of costs or a bill of charges shall be heard and determined by the Court upon the evidence that had been brought in before the taxing officer, and further evidence shall not be received upon the hearing of the application unless the Court otherwise directs.
Part XIV.—Warrants.
Warrant under section 81.
174.—(1.) Where a person is arrested in pursuance of a warrant issued under section 81 of the Act and it is impracticable for the person to be brought before the Court, Registrar or magistrate by which or by whom the warrant was issued on the day on which the person is arrested, the person by whom he is arrested shall forthwith inform the Registrar of the District in which the warrant was issued of the arrest of the person and of the day on which it will be practicable for the person to be brought before the Court, Registrar or magistrate.
(2.) Upon receipt of the information referred to in the last preceding sub-rule, the Registrar shall fix a date, time and place for the person who has been arrested to be brought before the Court, Registrar or magistrate by which or by whom the warrant for the arrest of the person was issued and cause the person arrested to be informed of that date, time and place.
Arrest under section 78.
Where a person is arrested in pursuance of a warrant issued under section 78 of the Act, the person by whom he is arrested shall forthwith inform the Registrar of the District in which the warrant was issued of the arrest.
Application to commit person for contempt of Court.
176.—(1.) An application for the punishment of a person for contempt of court shall specify the contempt of which the person is alleged to be guilty and shall be served on the person personally not less than three days before the hearing date of the application unless the Court otherwise orders.
(2.) A copy of each affidavit intended to be used by the applicant upon the hearing of the application shall be served on the person accused at the same time as the application is served on him.
(3.) Where the Court orders the committal of a person to prison for contempt of court, the Court may direct that the warrant for committal of the person to prison lie in the office of the Registrar for a period specified in the order and be not executed if the person complies with a condition specified in the direction.
(4.) Where the Court gives a direction under the last preceding sub-rule in relation to a warrant for the committal of a person to prison—
(a) the warrant is void if the person complies with the condition specified in the direction; and
(b) the Registrar shall issue the warrant for execution upon being satisfied that the person has failed to comply with a condition specified in the direction.
Form of search warrant.
For the purposes of section 130 of the Act, a warrant shall be in accordance with Form 56.
Attachment of property.
178.—(1.) Where—
(a) the trustee of the estate of a bankrupt; or
(b) a person authorized by such a trustee, by writing under his hand in accordance with Form 57,
takes possession of, or attaches, property of the bankrupt and leaves it in the custody of the bankrupt or of some other person, he shall make an inventory of the property and furnish to the person in whose custody the property is left a notice of attachment, in accordance with Form 58, together with a copy of the inventory.
(2.) The last preceding sub-rule applies in relation to the estate of a deceased person that is being administered under Part XI. of the Act and to the property of a debtor to which a deed of assignment under Part X. of the Act applies as if—
(a) references to the trustee of the estate of a bankrupt were read as references to the trustee of the estate of a deceased person that is being so administered or the trustee under a deed of assignment under Part X. of the Act, as the case may be;
(b) references to the property of the bankrupt were read as references to the property of the deceased person or of the debtor, as the case may be; and
(c) references to the custody of the bankrupt were read as references to the custody of the personal representative of the deceased person or the custody of the debtor, as the case may be.
Part XV.—Fees and Percentages.
Fees and percentages.
179.—(1.) Subject to this rule, the fees specified in the Third Schedule are payable in respect of the matters in relation to which they are so specified.
(2.) A fee is payable upon furnishing an account (not being an account in respect of which a fee is payable under the next succeeding sub-rule) to the Registrar in accordance with paragraph (a) of sub-section (1.) of section 175 of the Act or sub-section (1.) of section 211 of the Act.
(3.) A fee is payable upon furnishing an account to the Registrar in accordance with paragraph (a) of sub-section (1.) of section 175 of the Act in respect of a composition or scheme of arrangement under Division 6 of Part IV. of the Act or in respect of a composition under Part X. of the Act.
(4.) The fee payable under sub-rule (2.) or sub-rule (3.) of this rule upon furnishing an account in respect of the estate of a bankrupt or deceased person or in respect of a debtor is—
(a) if the prescribed amount in respect of the estate or debtor is less than Twenty thousand dollars—a fee equal to three per centum of that prescribed amount;
(b) if the prescribed amount in respect of the estate or debtor exceeds Twenty thousand dollars but does not exceed Forty thousand dollars—a fee equal to the sum of Six hundred dollars and an amount equal to two and one-half per centum of the amount by which the prescribed amount exceeds Twenty thousand dollars; or
(c) in any other case—a fee equal to the sum of One thousand one hundred dollars and an amount equal to one and one-quarter per centum of the amount by which the prescribed amount exceeds Forty thousand dollars,
less the fee or the sum of the fees paid upon furnishing a previous account or previous accounts in respect of the estate or the debtor and less any fee paid by the official receiver in respect of the estate under rule 181 of these Rules.
(5.) Where a fee is payable under sub-rule (2.) of this rule upon furnishing an account in respect of the estate of a bankrupt or deceased person or in respect of a debtor, the prescribed amount for the purpose of the last preceding sub-rule is an amount equal to the total amount received by the trustee, or the sum of the total amounts received by each trustee, of the estate or in relation to the debtor, as the case may be, up to the end of the period to which the account relates less any amounts paid to secured creditors in respect of their securities up to that date and any amounts paid by any trustee in carrying on the business of the bankrupt, deceased person or debtor.
(6.) Where a fee is payable under sub-rule (3.) of this rule upon furnishing an account in respect of a debtor, the prescribed amount for the purpose of sub-rule (4.) of this rule is the total amount received by the trustee, or the sum of the total amounts received by each trustee, for distribution to the creditors of the debtor or the total amount (if any) distributed by the debtor to his creditors in accordance with the composition or scheme of arrangement, as the case may be.
(7.) Where two or more trustees act in succession, the amount paid by one of those trustees to the other trustee shall not be taken to be an amount received by the trustee to whom it is paid for the purpose of whichever of the last two preceding sub-rules is applicable.
(8.) Where—
(a) a person becomes a bankrupt subsequently to—
(i) the Court’s approval of his proposal for a composition or scheme of arrangement under Division 6 of Part III. of the Act or Division 5 of Part IV. of the repealed Act;
(ii) the acceptance by his creditors of a composition under Part X. of the Act or Part XI. of the repealed Act or of a scheme of arrangement under Part XI. of the repealed Act; or
(iii) the execution by him of a deed of arrangement under Part X. of the Act or Part XII. of the repealed Act or of a deed of assignment under Part X. of the Act or Part XI. of the repealed Act; and
(b) the trustee of the estate of the bankrupt receives moneys, as property of the bankrupt, that were included in a sum by reference to which a fee has been paid under sub-rule (2.) or (3.) of this rule, under rule 181 of these Rules or under Item 14 of Table A of the Third Schedule to the Bankruptcy Rules made under the repealed Act in relation to the composition, scheme of arrangement, deed of arrangement or deed of assignment,
those moneys shall be deemed not to be moneys received by the trustee of his estate for the purpose of the application of sub-rule (5.) of this rule or rule 181 of these Rules, as the case may be, in relation to the estate of the bankrupt.
(9.) Where an application is made—
(a) to the Court or to the Registrar by an official receiver acting otherwise than as trustee of an estate;
(b) to the Court by the Inspector-General, the Registrar or a trustee for the committal of a debtor or a bankrupt to prison;
(c) to the Court by a debtor or by a bankrupt to be released from prison;
(d) under sub-section (3.) of section 254 of the Act or under the provisions of that sub-section in its application in relation to moneys paid into the Consolidated Revenue Fund under sub-section (5.) of section 154 of the Act;
(e) to the Court under sub-section (2.) of section 295 of the Act; or
(f) to the Registrar for the postponement of fees in accordance with rule 183 of these Rules,
a fee is not payable in respect of the application or an affidavit or other document filed in support of or in connexion with the application or an order made in respect of the application.
Payment of fees and percentages.
Subject to the succeeding provisions of this Part, a document shall not be filed, issued or otherwise dealt with and any other matter or thing shall not be done in the Court or in the office of the Registrar unless the fee (if any) payable upon or in respect of the filing, sealing, issuing or otherwise dealing with the document, or upon or in respect of the doing of that matter or thing, has been paid.
Fees payable by official receivers.
181.—(1.) Where the official receiver acts as trustee of the estate of a bankrupt or deceased person, a fee is payable to the Registrar by the official receiver in respect of the estate upon the declaration of a dividend by the official receiver or upon his ceasing to act as the trustee of the estate.
(2.) The fee payable under the last preceding sub-rule is a fee equal to the fee that would be payable if the official receiver had filed a statement under sub-section (1.) of section 175 of the Act of his receipts and payments in respect of the estate at the date of declaring the dividend or ceasing to act as trustee, as the case may be, and the prescribed amount in respect of the estate were an amount ascertained in the manner provided by sub-rule (5.) of rule 179 of these Rules.
Fees and percentages payable to the official receiver.
182.—(1.) The fees specified in the Fourth Schedule are payable to the official receiver in respect of the matters in relation to which they are so specified.
(2.) Where the official receiver acts as trustee of the estate of a bankrupt
or as trustee of the estate of a deceased person in respect of whose estate an order for administration has been made under Part XI. of the Act or takes control of the property of a debtor by virtue of a direction of the Court under section 50 of the Act, the official receiver is entitled to receive—
(a) if the prescribed amount in respect of the estate or the debtor does not exceed One thousand dollars—a fee of One hundred and fifty dollars;
(b) if the prescribed amount in respect of the estate or the debtor exceeds One thousand dollars but does not exceed Twenty thousand dollars—a fee equal to the sum of One hundred and fifty dollars and an amount equal to ten per centum of the amount by which the prescribed amount exceeds One thousand dollars;
(c) if the prescribed amount exceeds Twenty thousand dollars but does not exceed Forty thousand dollars—a fee equal to the sum of Two thousand and fifty dollars and an amount equal to seven and one-half per centum of the amount by which the prescribed amount exceeds Twenty thousand dollars; or
(d) if the prescribed amount exceeds Forty thousand dollars—a fee equal to the sum of Three thousand five hundred and fifty dollars and an amount equal to five per centum of the amount by which the prescribed amount exceeds Forty thousand dollars.
(3.) Where the official receiver carries on the business of a bankrupt or deceased person or, having been directed to take control of the property of a debtor under section 50 of the Act, carries on the business of the debtor, the official receiver is entitled to receive a fee calculated at the rate of two and one-half per centum of the amount received by him in the course of carrying on the business of the bankrupt, deceased person or debtor.
(4.) For the purpose of sub-rule (2.) of this rule, the prescribed amount in respect of an estate or of a debtor is an amount ascertained by deducting from the amount realised or brought to credit by the official receiver in the estate or in relation to the debtor any amounts paid to secured creditors in respect of their securities and any amounts paid by the official receiver in carrying on the business of the bankrupt, deceased person or debtor.
Registrar may postpone fees.
The Registrar may, in a particular case for special reasons, direct that the payment of the whole or a part of a fee be postponed until such time, and upon such conditions (if any), as the Registrar thinks fit to direct.
Remission of fees by Attorney-General.
184.—(1.) Where it appears to the Attorney-General that it would be proper to do so owing to the exceptional circumstances of the particular case, the Attorney-General may reduce or remit a fee payable under these Rules in that particular case.
(2.) The Attorney-General may remit fees included in a class of fees specified by him that are payable under these Rules by persons included in a class of persons specified by him.
Part XVI.—Persons under Disability.
An infant may be represented by a next friend or guardian.
185.—(1.) Where an infant desires to institute a proceeding, a person may institute the proceeding as the next friend of the infant.
(2.) Except in a case where the Court has appointed a person to be the next friend of an infant for the purpose of instituting a proceeding, before the name of a person is used as next friend of an infant in connexion with a proceeding by an infant, the person shall consent, in writing, to act as next friend of the infant in the proceeding, and the consent shall be filed in the office of the Registrar of the appropriate District.
(3.) Where an infant is a party to a proceeding, other than the party who instituted the proceeding, the infant may take part in the proceeding by his guardian ad litem.
Service on infant.
186.—(1.) Subject to the next succeeding sub-rule, where a document is required to be served on an infant in connexion with a proceeding, due service of the document on the infant shall be deeemed not to have been effected unless—
(a) the document has been served on the infant; and
(b) a copy of the document has been served on the father or guardian of the infant or on a person over the age of twenty-one years with whom the infant is residing or in whose care he is.
(2.) Where a party to a proceeding who is an infant has an address for service for the purpose of the proceeding, a document, not being a document that is required to be served on the party personally, may be served on the party at the address for service in a manner specified in rule 120 of these Rules.
Persona of unsound mind.
187.—(1.) A person of unsound mind may institute a proceeding by the committee (if any) of his person or estate or, if there is no committee able and willing to act for him in the proceeding, by his guardian ad litem.
(2.) Except in a case where the Court has appointed a person to be the guardian ad litem of a person of unsound mind for the purpose of instituting a proceeding, before the name of a person is used as the guardian ad litem of a person of unsound mind in connexion with the institution of a proceeding by the person of unsound mind, the person shall consent, in writing, to act as the guardian ad litem of the person of unsound mind in the proceeding, and the consent shall be filed in the office of the Registrar of the appropriate District.
(3.) Where a person of unsound mind is a party to a proceeding, other than the party who instituted the proceeding, a committee of his person or estate or, if there is no committee able and willing to act for him in the proceeding, a guardian ad litem of the person of unsound mind may take such action in and in relation to the proceeding on behalf of the person of unsound mind as the committee or guardian thinks fit and the person might have taken if he had not been of unsound mind.
(4.) For the purposes of this Part, a committee who institutes a proceeding or takes any other action in or in relation to a proceeding on behalf of a person of unsound mind shall be deemed to be the guardian ad litem of the person of unsound mind for the purpose of the proceeding.
Service of document on person of unsound mind.
188.—(1.) Subject to the next succeeding sub-rule, service of a document shall be deemed not to have been duly effected on a person of unsound mind unless the document has been served—
(a) if there is a committee of the person of the person of unsound mind-on that committee;
(b) if there is no such committee but there is a committee of the estate of the person of unsound mind—on that committee; or
(c) in any other case—on a person with whom the person of unsound mind is residing or the person in whose care he is.
(2.) Where a party to a proceeding who is a person of unsound mind has an address for service for the purpose of the proceeding, a document, not being a document that is required to be served on the party personally, may be served on the party at the address for service in a manner specified in rule 120 of these Rules.
Appointment of guardian ad litem of infant.
189.—(1.) An infant may consent, in writing, to a person being appointed to be his guardian ad litem for the purpose of a proceeding.
(2.) Where an infant has so consented—
(a) the person may make application to the Registrar to be appointed guardian ad litem of the infant for that purpose; and
(b) there shall be filed in support of the application an affidavit by a credible person deposing to the fitness of the applicant to act as guardian ad litem of the infant.
(3.) An application under this rule may be made ex parte.
Appointment of guardian ad litem of person of unsound mind.
190.—(1.) Where a committee of the person or estate of a person of unsound mind desires to institute a proceeding or take any part in a proceeding on behalf of the person of unsound mind, the committee shall file a consent to act on behalf of the person of unsound mind in the proceeding.
(2.) Where there is no committee of a party to a proceeding (being a party who is of unsound mind) who is able and willing to act for the party, a fit and proper person may apply to the Registrar to be appointed to be the guardian ad litem of the party for that purpose.
(3.) There shall be filed in support of an application under the last preceding sub-rule an affidavit by a credible person deposing to the fitness of the applicant to act as guardian ad litem of the person of unsound mind.
(4.) An application under sub-rule (2.) of this rule may be made ex parte.
(5.) In sub-rule (2.) of this rule, a reference to a party to a proceeding shall be read as including a reference to a person desiring to institute a proceeding.
Order appointing guardian ad litem.
Where, upon an application made to the Registrar under either of the last two preceding rules, the Registrar is satisfied that the applicant is a fit and proper person to be appointed to be the guardian ad litem of the infant or person of unsound mind for the purpose of the proceeding and that it is desirable that he be appointed so to act, the Registrar shall appoint the applicant accordingly.
Appointment of guardian in other circumstances.
192.—(1.) Where a person who is a party to a proceeding or desires to institute a proceeding is an infant or person of unsound mind, the Court may, at any stage of the proceeding, or before the institution of the proceeding, if it thinks it advisable so to do, appoint a fit and proper person to be the next friend or guardian ad litem of the person for that purpose.
(2.) An appointment under this rule may be made by the Court upon application by another party to the proceeding, by a person willing and able to act as the next friend or guardian ad litem or by the Court of its own motion.
Removal of guardian ad litem.
The Court may, subject to such conditions as the Court thinks fit, remove a person from the office of next friend or guardian ad litem of an infant or guardian ad litem of a person of unsound mind if—
(a) the person makes application to retire from the office; or
(b) the Court considers that it is desirable that the person should be removed from the office.
Notice of appointment of guardian.
194.—(1.) Subject to sub-rule (3.) of this rule, a person who, after the institution of a proceeding, becomes the next friend or guardian ad litem of a party to the proceeding shall serve notice of the fact on each other party to the proceeding who has an address for service for the purpose of the proceeding.
(2.) Notice that a person has become a next friend or guardian ad litem shall be served on the day on which the person becomes the next friend or guardian ad litem or on the next following day.
(3.) Where an order appointing a person to be a next friend or guardian ad litem is made upon the application of a party to a proceeding, it is not necessary for the notice required by sub-rule (1.) of this rule to be served on that party.
Part XVII.—Miscellaneous.
Non-compliance with rules not to render proceedings void.
195.—(1.) Subject to the next succeeding sub-rule, non-compliance with these Rules does not render a proceeding void unless the Court so directs.
(2.) Where the provisions of these Rules have not been complied with in relation to a proceeding—
(a) the proceeding may be set aside, either wholly or in part, as irregular, or may be amended or otherwise dealt with in such manner and upon such terms as the Court thinks fit; or
(b) the Court may, upon such terms as the Court thinks fit, relieve a party from the consequences of non-compliance with these Rules.
(3.) An application to set aside a proceeding as irregular shall not be allowed—
(a) unless the application is made within a reasonable time after the irregularity came to the knowledge of the applicant; or
(b) if the applicant has taken a fresh step after knowledge of the irregularity.
(4.) An application to set aside a proceeding as irregular shall specify the irregularity intended to be relied on in support of the application.
Signature on documents filed on behalf of a partnership.
Where a member of a partnership or a person authorized by a partnership to do so signs a document in his own name on behalf of the partnership and adds the capacity in which he signs the document, the document shall, for the purposes of these Rules, be deemed to have been signed by the partnership.
Memoranda under section 128 of the Act.
197.—(1.) For the purposes of sub-section (2.) of section 128 of the Act, the memorandum shall be in accordance with Form 59.
(2.) For the purposes of sub-section (4.) of section 128 of the Act, the withdrawal of a memorandum referred to in the last preceding sub-rule shall be in accordance with Form 60.
Unclaimed moneys.
198.—(1.) Where—
(a) a trustee of the estate of a bankrupt;
(b) a trustee of a deed of assignment or a deed of arrangement, whether the deed was executed under the Act or the repealed Act;
(c) a trustee of a composition or a scheme of arrangement, whether the composition or scheme was accepted or approved under the Act or the repealed Act; or
(d) a trustee of the estate of a deceased person in respect of which an order has been made under Part XI. of the Act or Part X. of the repealed Act,
pays moneys into the Consolidated Revenue Fund in pursuance of sub-section (2.) of section 254 of the Act, the trustee shall furnish to the officer to whom the moneys are so paid a statement setting out—
(e) the name and address of the trustee;
(f) the name of the bankrupt, the name of the debtor to whom the deed of assignment, the deed of arrangement, composition or scheme of arrangement related or the name of the deceased person, as the case may be, and the number allotted by the Registrar in respect of the bankruptcy, deed of assignment, deed of arrangement, composition, scheme of arrangement or estate of a deceased person, as the case may be; and
(g) the names and addresses, so far as known to the trustee, of the persons entitled to receive the moneys.
(2.) Where a trustee pays moneys into the Consolidated Revenue Fund, the trustee shall cause a copy of the statement referred to in the last preceding sub-rule to be filed.
Withdrawal of unclaimed moneys.
199.—(1.) An application under sub-section (3.) of section 254, or sub-section (2.) of section 295, of the Act may be made ex parte.
(2.) Where an application referred to in the last preceding sub-rule is filed, the Registrar shall furnish to the Court upon the hearing of the application a certificate under his hand certifying whether any previous application has been made to the Court under a provision referred to in that sub-rule in relation to the moneys or any part of the moneys to which the application relates.
Searches.
200.—(1.) Except where otherwise expressly provided by the Act, a person may, on payment of the fee provided for in item 28 in the Third Schedule, inspect—
(a) the index of proceedings kept by the Registrar, other than the index containing particulars of bankruptcy notices; or
(b) subject to sub-rule (3.) of this rule, any document filed in connexion with a proceeding.
(2.) Subject to the next succeeding sub-rule, a person who inspects a document may take extracts from, or make a copy of, the document.
(3.) A person is not entitled to inspect, take an extract from, or make a copy of, a bankruptcy notice unless—
(a) the person, or, if the person is the solicitor acting for another person, that other person, is a person specified in the bankruptcy notice or is a party to a proceeding that relates to the bankruptcy notice; or
(b) a petition has been filed specifying as an act of bankruptcy the failure of a person specified in the bankruptcy notice to comply with the requirements of that notice.
Correction of notice published in the Gazette.
Where—
(a) after a notice relating to a proceeding has been published in the Gazette, the title of the proceeding is amended;
(b) after notice of a matter has been published in the Gazette, the matter is altered or amended; or
(c) a notice of a matter has been inaccurately published in the Gazette,
the person who caused the notice to be published in the Gazette shall cause a further notice, in a form that incorporates the amendments or alterations, or corrects the inaccuracies, to be published in the Gazette.
Computation of time.
202.—(1.) Where, in these Rules, a period of time, dating from a given day, act or event, is prescribed or allowed for any purpose, the time shall, unless the contrary intention appears, be reckoned exclusive of that day or of the day of that act or event.
(2.) Where the last day of a period during which an act may be done or a proceeding taken falls on—
(a) a Saturday or a Sunday;
(b) a day that is a public holiday or a bank holiday in the place in which the act is to be or may be done or the proceeding is to be or may be taken; or
(c) any other day on which the office of the Registrar for the District in which the act is to be or may be done or the proceeding is to be or may be taken is closed,
the act may be done or the proceeding may be taken on the first day following that is not such a day.
(3.) Where—
(a) a period of time is permitted or allowed under these Rules for the doing of an act or the taking of a proceeding; and
(b) the period is a period that is less than five days,
a Saturday, a Sunday or a day referred to in paragraph (b) or (c) of the last preceding sub-rule is to be disregarded in calculating the first-mentioned period.
THE SCHEDULES.
FIRST SCHEDULE.
Form 1
Rule 5.
TITLE OF DOCUMENTS FOR USE IN A PROCEEDING IN THE COURT
IN THE (here insert “FEDERAL COURT OF BANKRUPTCY” or, if the proceeding is instituted in another court, the name of that court followed by the words “EXERCISING FEDERAL JURISDICTION IN BANKRUPTCY”)BANKRUPTCY DISTRICT OF
No.
of 19
Re: (here insert name of debtor, deceased debtor or bankrupt)
Ex parte: (here insert name of petitioner or applicant)
(Here insert name of respondent, if any)
(Respondent.)
Form 2
Rule 5.
TITLE OF DOCUMENTS NOT FOR USE IN A PROCEEDING IN THE COURT
BANKRUPTCY DISTRICT OF
No.
of 19
Re: (here insert name of debtor or bankrupt)
___________
Rule 7.
Form 3
APPLICATION FOR ISSUE OF BANKRUPTCY NOTICE
(Here insert full name and address of judgment creditor) requests the Registrar to issue a bankruptcy notice addressed to (name, address and occupation of judgment debtor), hereinafter referred to as “the judgment debtor”.
I produce (here state “an office copy of the final judgment” or otherwise describe the document to be filed in accordance with rule 7 (2.) of these Rules) against the judgment debtor obtained by in the Court of on the day of , 19 .
Execution of the final judgment (or order) has not been stayed at the time of the making of this application.
Solicitor for the Judgment Creditor.
Form 4
Rule 8.
BANKRUPTCY NOTICE
To: (name, address and occupation of judgment debtor)
WHEREAS (name and address of judgment creditor)
(hereinafter referred to as “the judgment creditor”) has claimed that the sum of $ is due by you to him under a final judgment (or order) obtained by him against you in the Court of on the day of , 19 , being a judgment (or an order) the execution of which has not been stayed:
THEREFORE TAKE NOTICE that within days after service of this notice on you, excluding the day on which this notice is served on you, you are required—
(a) to pay the sum of $ so claimed by the judgment creditor to (here insert “the judgment creditor” or, if the judgment or order requires payment to be made to a court or a person other than the judgment creditor, the name and address of the court or the other person to whom payment is required to be made); or
(b) to secure the payment of the sum referred to in the last preceding paragraph to the satisfaction of the (name of the Court) or the judgment creditor (or his agent whose name and address are ) or compound the sum so specified to the satisfaction of the judgment creditor (or his agent):
AND FURTHER TAKE NOTICE that if, within the period set out above, you fail either to comply with either of the abovementioned requirements of this notice or to satisfy the (here insert the name of the Court) that you have a counter-claim, set-off or cross demand equal to or exceeding the sum specified in paragraph (a) of this notice, being a counter-claim, set-off or cross demand that you could not have set up in the action (or proceeding) in which the judgment (or order) was obtained, you will have committed an act of bankruptcy on which bankruptcy proceedings may be taken against you.
Note: If you have a counter-claim, set-off or cross demand equal to or exceeding the sum specified in paragraph (a) of this notice, being a counter-claim, set-off or cross demand that you could not have set up in the action (or proceeding) in which the judgment (or order) was obtained, you may, under sub-section (7.) of section 41 of the Bankruptcy Act 1966, within the period set out above, file an affidavit to that effect, and, if you do so, the time for complying with the requirements of this notice shall be deemed to have been extended until the Court determines whether it is satisfied that you have such a counter-claim, set-off or cross demand.
This notice was issued on the application of (name of the solicitor for the judgment creditor or the name of the judgment creditor, as the case may be) whose address for service is
Form 5
Rule 12.
CREDITOR’S PETITION
I, (full name, address and occupation of petitioning creditor), petition the Court for a sequestration order against the estate of (full name of debtor) who resides at (and carries on business at ) and whose occupation is , hereinafter referred to as “the debtor”.
The debtor was at the date of the commission of the act of bankruptcy specified in paragraph 4 of this petition personally present in Australia (or ordinarily resident in Australia, or as the case may be).
The debtor is justly and truly indebted to me in the sum of $ for (consideration for debt to be shown).
I do not, nor does any person on my behalf, hold any security over the property of the debtor or any part of it for the payment of the amount specified in the last preceding paragraph.
or
3. I hold security over the property (or part of the property) of the debtor, being (here specify particulars of the security), but the security is valued at $ , leaving an unsecured balance owing to me of $
or
I hold security over the property (or part of the property) of the debtor for payment of the amount specified in the last preceding paragraph, being (here specify particulars of the security), but I am willing to surrender the security for the benefit of the creditors generally in the event of a sequestration order being made against the estate of the debtor.
The debtor, within six months before the presentation of this petition, committed the following act (or acts) of bankruptcy (here set out nature and date or dates of the act or acts of bankruptcy relied on).
(a) If the petitioner is a corporation, the petition may be under the seal of the corporation and the sealing need not be in the presence of a person other than a person required to witness the sealing of a document by the corporation.
Form 6
Rules 12 and 86.
NOTE TO BE ATTACHED TO CREDITOR’S PETITION
To:
Take notice that the attached petition has been presented to the Court and will be heard at the sitting of the Court on the day of , 19 , at o’clock in the noon at . If you intend to deny or dispute any statements in that petition or to oppose that petition on any other ground, you should—
(a) file in my office at a notice setting out or referring to the statements that you intend to deny or dispute or the other grounds on which you intend to oppose the petition;
(b) serve a copy of that notice on the solicitor for the petitioner not less than three days before the day specified above as the day fixed for the hearing of that petition; and
(c) attend before the Court upon the hearing of the petition on the day and at the time and place mentioned above.
Form 7 Rule 17
APPLICATION TO APPOINT RECEIVER BEFORE SEQUESTRATION
APPLICATION is made to the Court on behalf of (full name and address of applicant) for the following orders:—
and for a direction as to the amount that the applicant should deposit with to meet his fees and expenses of taking control of the property of the debtor.
This application has been set down for hearing by the Court at on the day of , 19 , at o’clock in the noon or so soon thereafter as the course of business will permit.
Solicitor for the applicant.
This application is filed by on behalf of whose address for service is
Form 8 Rule 20.
NOTICE OF INTENTION TO OPPOSE PETITION
To:
TAKE NOTICE that (full name of debtor) intends to deny (or dispute) the following statements in the petition of dated the day of , 19 :—
(or to oppose the petition of dated the day of , 19 , on the following grounds:— ).
Solicitor for the Debtor.
This notice is filed by on behalf of whose address for service is
Form 9 Rule 24.
DEBTOR’S PETITION
I, (full name of debtor), who reside at and whose occupation is petition the Registrar in Bankruptcy for the abovementioned Bankruptcy District for the purpose of becoming a bankrupt by force of section 55 of the Bankruptcy Act 1966.
(If the debtor is carrying on any business, or has carried on a business in respect of which liabilities are set out in the debtor’s statement of affairs, here set out the address at which, and the business name (if any) under which, he is carrying on the business.)
(If the petition is presented by a majority of the members of a partnership under section 56 of the Act, here set out that fact and also set out the full names, addresses and occupations of the other partners.)
Form 10
Rules 24 and 30.
AFFIDAVIT VERIFYING STATEMENT OF AFFAIRS
I, (full name, address and occupation) make oath and say that the Statement of Affairs annexed to this affidavit and consisting of sheets numbered 1 to (inclusive) contains, to the best of my knowledge and belief, a true and complete statement of my affairs as at the (a) day of , 19 .
Sworn by the deponent the day of 19 , at before me:
(a) Here insert, in the case of a creditor’s petition, the date of the sequestration order or, in the case of a debtor’s petition, the date of swearing of this affidavit.
Form 11
Rules 24, 30 and 78.
STATEMENT OF AFFAIRS
Part I.
Summary
Part II.
Unsecured Creditors
First columnNo.
Second columnName
Third columnAddress
Fourth columnAmount of debt
Fifth columnYear when contracted
Sixth columnNature of debt
$
Where a creditor owes moneys to the debtor and the amount owing by the creditor is less than the amount owing to the creditor, particulars of these amounts are to be included in this Part and not in Part VI. of this Statement. Particulars of these amounts are to be set out in the third column, immediately below the address of the creditor, as follows:—
Amount owing to creditor $
Amount owed by creditor $
If a creditor holds a bill of exchange or a promissory note, particulars of the bill of exchange or promissory note so held are to be set out in the second column of this Part immediately below the name of the creditor.
Part III.
Secured Creditors
No.
Name of creditor
Address
Amount of debt
Year when contracted
Particulars of security
Date when given
Estimated value of security at present
Estimated deficiency
Estimated surplus
$
$
$
$
Total ...
Total ...
Part IV.
Hire-Purchase Agreements
No.
Name of finance company
Address
Date of agreement
Particulars of goods under agreement
Arrears of hire (if any)
Amount required to complete agreement
Present value of goods
Estimated surplus
Estimated deficiency
$
$
Notes: 1. Credit sales or terms sales are not to be included in this Part, but are to be included in Part II.
2. Where goods previously held under hire-purchase agreement have been repossessed and sold, the balance owing (if any) is to be shown in Part II.
Part V.
Property
Nature of Property
Estimated value
$
1 Cash at bank (specify name and address of bank)....................
2 Cash in hand............................................
3 Cash deposited with solicitor (if any) for costs of petition or other proceedings
4 Stock in trade (at cost $ ) situated at...........................
Note: This Part should contain full particulars of every description of property in which the bankrupt has an interest, being property defined by the sub-section (1.) of section 5 of the Bankruptcy Act 1966, except property of which particulars are set out in Part III. or Part IV. of this Statement.
Part VI.
Debts Due to the Estate
Note: Where the Estate owes money to a debtor and the amount owing by the Estate is less than the amount owing to the Estate, particulars of these amounts are to be included in this Part and not in Part II. of this Statement. Particulars of these amounts are to be set out in the third column, immediately under the address of the debtor, as follows:—
Amount owing to the Estate $
Amount owing by the Estate $
Part VII.
General
I am not an undischarged bankrupt or insolvent under a Commonwealth Act or under a State Act and I have never previously become a bankrupt (except on the day of , 19 ).
I have not previously compounded with my creditors, or made any assignment or arrangement for the benefit of my creditors (except on the day of , 19 ).
I have not, during the past five years, carried on any business on my own account or in partnership.
or
I have, during the past five years, carried on business on my own account (or in partnership) as a , and have kept the following books of account in connexion with that business: —
Particulars of my contingent liabilities and any other liabilities not specified in a previous Part of this Statement are as follows:—
Particulars of my contingent assets not included in a previous Part of this Statement are follows:—
(Signature of bankrupt).
Form 12
Rule 26.
SEQUESTRATION ORDER
Before the Honourable Mr. Justice
The day of , 19 .
The petition filed on the day of , 19 , on behalf of (full name, address and occupation of the petitioning creditor) (hereinafter referred to as “the petitioning creditor”) against (full name, address and occupation of the debtor) (hereinafter referred to as “the debtor”) was heard this day (or as the case may be), Mr. being counsel for the petitioning creditor (and Mr. being counsel for the debtor).
The Court, being satisfied that the debtor has committed the following act of bankruptcy, namely, (here set out the nature and date of the act of bankruptcy) and with the proof of the other matters of which proof is required under sub-section (1.) of section 52 of the Bankruptcy Act 1966, hereby makes a sequestration order against the estate of the debtor.
The Court also makes the following orders:—
By the Court,
This order is filed by on behalf of whose address for service is
Form 13
Rule 32.
SUMMONS
To: (full name and address of person)
In pursuance of the power conferred by rule 32 of the Bankruptcy Rules, I, , the Registrar in Bankruptcy summon you to attend before a Registrar in Bankruptcy at on the day of , 19 ,
at the hour of o’clock in the noon to be examined on oath as to your conduct, trade dealings, property and affairs in accordance with section 69 of the Bankruptcy Act 1966.
Form 14
Rule 35.
APPLICATION TO COURT TO APPROVE COMPOSITION OR SCHEME OF ARRANGEMENT
APPLICATION is made to the Court on behalf of (full name of bankrupt or of trustee, as the case may be) for approval of the composition (or scheme of arrangement) that was accepted by the creditors of , by special resolution passed at a meeting of the creditors on the day of , 19 .
This application has been set down for hearing by the Court at on the day of , 19 , at o’clock in the noon, or so soon thereafter as the course of business will permit.
Solicitor for the Bankrupt (or Trustee).
This application is filed by on behalf of whose address for service is
Form 15
Rule 37.
PROOF OF DEBT
I, (full name, address and occupation) make oath and say:—
(full name of bankrupt) was at the date on which he became a bankrupt, namely, the day of , 19 , and still is, justly and truly indebted to me (or, as the case may be) in the sum $ , in accordance with the particulars specified in the account annexed to this affidavit and marked with the letter “A”.
Security is not held by me (or by ) or by any person on my (or his) behalf for the payment of the whole or any part of the sum specified in the last preceding paragraph.
or
2. The following security is held by me (or by ) for the payment of the whole (or part) of the sum specified in the last preceding paragraph:—
(3. The vouchers by which the debt can be substantiated are specified in the account referred to in paragraph 1 of this affidavit.
(4. I am authorized by to swear this affidavit on his behalf and I know of my own knowledge that the facts set out in the preceding paragraphs of this affidavit and the particulars set out in the annexure to this affidavit are true.)
| Sworn by the deponent the day of , 19 , at before me: | |
| | |
“A”
PARTICULARS OF ACCOUNT
Date
Consideration
Amount
Vouchers (if any)
$
This is the annexure marked “A” referred to in the affidavit of sworn the day of , 19 , before me:
Form 16
Rule 37.
PROOF OF DEBTS DUE TO EMPLOYEES
I, (full name, address and occupation) make oath and say:—
(full name of bankrupt) was at the date on which he became a bankrupt, namely, the day of , 19 , and still is, justly and truly indebted to a person whose name, address and occupation are specified in the Schedule annexed to this affidavit and marked with the letter “A” in respect of wages or salary due to that person as an employee of the bankrupt for services rendered to the bankrupt during the period and in the amount specified in the Schedule in relation to the name of that person.
I am an employee of the abovementioned bankrupt and I make this affidavit on behalf of all the persons whose names are specified in the Schedule referred to in the last preceding paragraph.
To the best of my knowledge and belief, none of the persons whose names are specified in the Schedule annexed to this affidavit holds any security for payment of the amount or any part of the amount due to him in respect of wages or salary as specified in that Schedule.
or
3. The name of each of the persons specified in the Schedule annexed to this affidavit who holds security for payment of the amount or part of the amount due to him, and particulars of the security held by him, are as follows:—
| sworn by the deponent the day of , 19 , at before me: | |
Schedule “A”
No.
Full name of employee
Address
Occupation
Period in respect of which wages or salary due
Amount
$
This is the annexure marked “A” referred to in the affidavit of sworn the day of , 19 , before me:
Form 17
Rule 39.
CERTIFIED LIST OF PROOFS OF DEBT
I, (full name and address of trustee) certify that the following list contains particulars of every proof of debt received by me in connexion with the estate of the abovementioned bankrupt and that the particulars of those proofs of debt set out in that list are true and correct.
LIST
No.
Name of creditor
Amount of proof
Amount admitted
Amount rejected
Whether further evidence required
$
$
$
Form 18
Rule 42.
DISCLAIMER
In pursuance of section 133 of the Bankruptcy Act 1966 (and by leave of the Court granted on the day of , 19 ), I, , the trustee of the estate of the abovenamed bankrupt, hereby disclaim the following property of the bankrupt, being land that is burdened with onerous covenants (or being property that is unsaleable or not readily saleable or being an unprofitable contract, as the case may be):—
(Notice of intention to disclaim the lease referred to above was given to (here set out the name of each person to whom notice was given and the date on which the notice was given to that person) and no person to whom notice was so given has required me to apply to the Court for leave to disclaim the lease.)
Form 19
Rule 43.
NOTICE OF INTENTION TO DISCLAIM LEASE
Rule 43.
To:
I, , the trustee of the estate of the abovementioned bankrupt hereby give you notice of my intention to disclaim the lease (set out such particulars of the lease as will identify the lease and the property the subject of the lease).
You may, within 28 days after this notice is given to you, serve on me a notice requiring me to apply to the Court for leave to disclaim the lease. Unless you serve such a notice on me within that period, the lease may be disclaimed without the leave of the Court and without further notice to you.
Form 20
Rule 45.
APPLICATION REQUIRING TRUSTEE TO DECIDE WHETHER TO DISCLAIM PROPERTY
To: , the trustee of the estate of the abovementioned bankrupt.
In pursuance of paragraph (a) of sub-section (6.) of section 133 of the Bankruptcy Act 1966, application is hereby made to you by (full name, address and occupation of applicant) requiring you to decide whether you will disclaim the property described in the Schedule to this notice or not.
I have the following interest in the property:—
THE SCHEDULE
Description of Property
(Signature of Applicant).
Form 21
Rules 47 and 67.
STATEMENT OF REALIZATION AND DISTRIBUTION OF ESTATE
Particulars of the realization of the property of the abovementioned bankrupt and of the distribution of his estate as at the day of , 19 , are as follows:—
Receipts Payments
The assets not yet realized are estimated to produce $
The debtor’s estimate of the amount likely to be available for payment of dividends was $
Form 22 Rule 48.
NOTICE OF INTENTION TO DECLARE FINAL DIVIDEND
To:
You have claimed to be a creditor of the abovenamed bankrupt but have not proved your debt. I, , the trustee of the estate of the bankrupt, now give you notice, in pursuance of section 145 of the Bankruptcy Act 1966, that if you do not prove your debt on or before the day of , 19 , I shall proceed to declare a final dividend in the estate of the bankrupt without regard to your claim.
Note:
Under sub-section (2.) of section 145 of the Bankruptcy Act 1966, you may make application to the Court for further time to prove your debt. However, if you have not proved your debt before the expiration of the time set out in this notice or of any further time allowed by the Court, the moneys not yet distributed by me are required to be distributed without regard to your debt.
Form 23 Rule 49.
NOTICE OF OBJECTION TO DISCHARGE
I, (full name, address and occupation of objector), object to the discharge of (full name, address and occupation of bankrupt) from bankruptcy by force of section 149 of the Bankruptcy Act 1966 on the following grounds:—
Registrar (or Trustee or Creditor).
Form 24 Rule 50.
WITHDRAWAL OF OBJECTION TO DISCHARGE
I, (full name, address and occupation of person withdrawing objection), withdraw the objection to the discharge, of (full name, address and occupation of bankrupt) from bankruptcy by force of section 149 of the Bankruptcy Act 1966 that was filed by me on the day of , 19 .
Registrar (or Trustee or Creditor).
Form 25 Rule 51.
CERTIFICATE OF DISCHARGE
I, , the Registrar in Bankruptcy for the abovementioned Bankruptcy District, certify that (full name, address and occupation of bankrupt), who became a bankrupt on the day of , 19 , was discharged from bankruptcy by force of section 149 of the Bankruptcy Act 1966 on the day of , 19 .
Form 26
Rule 52.
APPLICATION FOR ORDER OF DISCHARGE
I, (full name, address and occupation of bankrupt), who became a bankrupt on the day of , 19 , apply to the Court for an order of discharge under section 150 of the Bankruptcy Act 1966. Annexed to this application and marked with the letter “A” is a list, certified by the trustee of my estate, setting out the names and addresses of my creditors known to him.
(Signature of bankrupt).
This application is filed by on behalf of the bankrupt whose address for service is
Form 27
Rule 52.
NOTICE OF APPLICATION FOR DISCHARGE
TAKE NOTICE that an application to the Court by (full name, address and occupation of bankrupt) under section 150 of the Bankruptcy Act 1966 for an order of discharge from bankruptcy has been set down for hearing by the Court at on the day of , 19 , at o’clock in the noon, or so soon thereafter as the course of business will permit.
Form 28
Rule 55.
NOTICE OF INTENTION TO OPPOSE APPLICATION FOR ORDER OF DISCHARGE
To:
TAKE NOTICE that I, (full name and address of creditor), a creditor whose debt has been proved in the estate of the abovementioned bankrupt, intend, upon the hearing of his application for an order of discharge, to oppose his application and to rely on (and submit evidence of) the following matters in opposition to his application:—
(Signature of creditor).
This notice is filed by on behalf of , whose address for service is
Form 29
Rule 61.
BOND
Commonwealth of Australia.
BY THIS BOND I, (full name and address of applicant to be registered as trustee) (hereinafter referred to as “the trustee”) bind myself to the Commonwealth of Australia for the payment to it of the sum of Four thousand dollars.
The condition of this Bond is that this Bond is to be void if the trustee at all times well and sufficiently performs and executes all the duties required of him in any office of—
(a) trustee of the estate of a bankrupt;
(b) trustee of a composition or scheme of arrangement under Division 6 of Part IV. of the Bankruptcy Act 1966 or under Division 5 of Part IV. of the repealed Act;
(c) trustee of a deed of assignment, a deed of arrangement or a composition under Part X. of the Bankruptcy Act 1966;
(d) trustee of a deed of assignment or a composition or scheme of arrangement under Part XI. of the repealed Act;
(e) trustee of a deed of arrangement under Part XII. of the repealed Act;
(f) trustee of the estate of a bankrupt in respect of which an order has been made under Part IX. of the Bankruptcy Act 1966 or under Part IX. of the repealed Act; or
(g) trustee of the estate of a deceased person in respect of which an order has been made under Part XI. of the Bankruptcy Act 1966 or under Part X. of the repealed Act,
to which he is duly appointed, otherwise it shall remain of full force and effect.
Signed, sealed and delivered by the trustee in the presence of:
Form 30
Rule 61.
BOND
Commonwealth of Australia
BY THIS BOND I, (full name and address of surety) (hereinafter referred to as “the surety”) bind myself to the Commonwealth of Australia for the payment to it of the sum of Four thousand dollars.
Whereas (full name and address of applicant to be registered as trustee) (hereinafter referred to as “the trustee”) is bound to the Commonwealth of Australia in the sum of Four thousand dollars upon the condition that his bond is to be void if he at all times well and sufficiently performs and executes all the duties required of him in any office of—
(a) trustee of the estate of a bankrupt;
(b) trustee of a composition or scheme of arrangement under Division 6 of Part IV. of the Bankruptcy Act 1966 or under Division 5 of Part IV. of the repealed Act;
(c) trustee of a deed of assignment, a deed of arrangement or a composition under Part X. of the Bankruptcy Act 1966;
(d) trustee of a deed of assignment or a composition or scheme of arrangement under Part XI. of the repealed Act;
(e) trustee of a deed of arrangement under Part XII. of the repealed Act;
(f) trustee of the estate of a bankrupt in respect of which an order has been made under Part IX. of the Bankruptcy Act 1966 or under Part IX. of the repealed Act; or
(g) trustee of the estate of a deceased person in respect of which an order has been made under Part XI. of the Bankruptcy Act 1966 or under Part X. of the repealed Act,
to which he is duly appointed:
Form 30—continued
And whereas the surety has agreed to bind himself as surety for the due performance by the trustee of his obligations under the abovementioned bond:
Now the condition of this Bond is that this Bond is to be void if the surety pays to the Commonwealth such sum or sums (not exceeding Four thousand dollars either in one sum or in the aggregate) as the trustee may become liable to pay under his abovementioned bond and fails to pay to the Commonwealth, being a sum or sums that he becomes liable to pay by reason of a failure to comply with the conditions of that bond during the currency of this Bond, otherwise it will remain of full force and effect.
This Bond continues in force until the expiration of three months after notice of intention to revoke this Bond has been given to the Registrar and to the trustee.
The revocation of this Bond does not release the surety from, or affect, any liability of the surety under this Bond existing immediately before the revocation or in respect of liability of the surety arising out of any failure by the trustee to comply, before the revocation of this Bond, with the condition of the bond referred to in the first recital to this Bond.
Signed, sealed and delivered by the surety in the presence of: (a)
(a) If the surety is a corporation, the bond may be under the seal of the corporation and the sealing need not be in the presence of a person other than a person required to witness the sealing of a document by the corporation.
Form 31
Rule 63.
OBJECTION BY CREDITOR TO APPOINTMENT OF TRUSTEE
I (full name and address of creditor) object to the appointment of (full name and address of person appointed) to the office of trustee of the estate of the abovementioned bankrupt on the following ground:—
Creditor.
Form 32
Rule 65.
APPLICATION FOR DIRECTIONS
APPLICATION is made to the Court on behalf of (full name and address of trustee), the trustee of the estate of the abovementioned bankrupt, in pursuance of sub-section (4.) of section 134 of the Bankruptcy Act 1966, for directions in respect of the following matter in connexion with the administration of the estate of the bankrupt:—
This application has been set down for hearing by the Court at on the day of , 19 , at o’clock in the noon, or so soon thereafter as the course of business will permit.
Solicitor for the Trustee.
This application is filed by on behalf of whose address for service is .
Form 33
Rules 73 and 80.
TRUSTEE’S ACCOUNT OF RECEIPTS AND PAYMENTS
Particulars of the receipts and payments for the period commencing on the day of , 19 , and ending on the day of 19 , are as follows:—
Receipts
Particulars
Estimated value according to bankrupt’s Statement of Affairs
Total receipts as shown in last trustee’s account filed
Receipts in this period
Total receipts to date
$
$
$
$
Receipts in respect of assets shown in bankrupt’s Statement of Affairs:—
Other receipts:—
Total.......................
Payments
Particulars
Total payments as shown in last trustee’s account filed
Payments in this period
Total payments to date
Legal expenses..........................
Trustee’s remuneration (specify basis of calculation).
Fees paid to Registrar.....................
Costs of securing and protecting assets..........
Charges of Auctioneers, Estate Agents, etc........
Postage and Stationery.....................
Printing or Duplicating....................
Advertising............................
Allowance to debtor......................
Trading Payments........................
Amounts paid to secured creditors.............
Amounts paid to creditors entitled to priority in payment of their debts
Dividend now declared of in the $ on....
Dividends previously declared of in the $ on..
Total.............................
Form 34
Rule 77.
NOTICE OF MEETING
TAKE NOTICE that (full name and address of debtor) has on the day of , 19 , signed an authority under sub-section (1.) of section 188 of the Bankruptcy Act 1966 authorizing (full name and address of registered trustee or solicitor) to call a meeting of his creditors (and to take over control of his property) and that, in pursuance of section 194 of the Bankruptcy Act 1966, a meeting of the creditors of the abovementioned debtor will be held at on the day of , 19 , at o’clock in the noon.
Trustee (or Solicitor).
Form 35
Rule 78.
STATUTORY DECLARATION VERIFYING STATEMENT OF AFFAIRS
I (full name, address and occupation) do solemnly and sincerely declare that the Statement of Affairs annexed to this statutory declaration and consisting of sheets numbered 1 to (inclusive) contains, to the best of my knowledge and belief, a true and complete statement of my affairs as at the day of , 19 .
And I make this solemn declaration by virtue of the Statutory Declarations Act 1959-1966, and subject to the penalties provided by that Act for the making of false statements in statutory declarations, conscientiously believing the statements contained in this declaration to be true in every particular.
Declared at the day of , 19 , before me:
Form 36
Rules 79 and 98.
CERTIFICATE THAT RESOLUTION PASSED
I, (full name and address of chairman or either person giving the certificate), being (capacity in which he gives the certificate), certify that at a meeting of creditors of , duty called and held on the day of , 19 , at , the following (special) resolution was passed:—(here insert the exact words of the resolution passed).
Chairman (or as the case may be).
Form 37
Rule 86.
CREDITOR’S PETITION FOR ADMINISTRATION OF ESTATE OF DECEASED DEBTOR
I, (full name, address and occupation of petitioning creditor) petition the Court for an order for the administration in bankruptcy of the estate of the late (full name, former address and occupation of deceased debtor) (hereinafter referred to as “the deceased debtor”) who died on the day of , 19 .
The deceased debtor was at the date of his death personally present in Australia (or ordinarily resident in Australia, or as the case may be).
The estate of the deceased debtor is justly and truly indebted to me in the sum of $ for (consideration for debt to be shown).
I do not, nor does any person on my behalf, hold any security over the property of the deceased debtor or any part of it for the payment of the amount specified in the last preceding paragraph.
or
I hold security over the property (or part of the property) of the deceased debtor, being (here specify particulars of the security), but the security is valued at $ , leaving an unsecured balance owing to me of $ .
or
I hold security over the property (or part of the property) of the deceased debtor for payment of the amount specified in the last preceding paragraph, being (here specify particulars of the security), but I am willing to surrender the security for the benefit of the creditors generally in the event of an order being made for the administration in bankruptcy of the estate of the deceased debtor.
(Here state whether or not a person has been authorized to administer the estate of the deceased debtor and, if a person has been so authorized, the manner in which he was authorized.)
(a) If the petitioner is a corporation, the petition may be under the seal of the corporation and the sealing need not be in the presence of a person other than a person required to witness the sealing of a document by the corporation.
Signed by the petitioner in my presence: (a)
(Signature, address and occupation of witness)
This petition is filed by on behalf of whose address for service is
Form 38
Rule 87.
AFFIDAVIT VERIFYING STATEMENT IN CONNEXION WITH ESTATE OF DECEASED PERSON
I, (full name, address and occupation), the legal personal representative (or the person administering the estate) of the late (full name, former address and occupation of deceased), make oath and say that the sheets annexed to this affidavit and numbered 1 to (inclusive) are, to the best of my knowledge and belief, a true and complete statement of the affairs of the abovenamed deceased and of my administration of his estate.
| Sworn by the deponent the day of , 19 , at before me: | |
Form 39
Rule 87.
STATEMENT OF AFFAIRS
Part 1.
Corpus Account
RECEIPTS
PAYMENTS
No.
Date
Particulars
Received
Bank
No.
Date
Particulars
Paid
Bank
$
$
$
$
Balance
Total
Total
PART II.
Assets Transferred to Beneficiaries
Date
Particulars of assets transferred to beneficiaries and of beneficiaries to whom transferred
Value
$
Total..........
Form 39—continued
PART III.
Income Account
RECEIPTS
PAYMENTS
No.
Date
Particulars
Received
Bank
No.
Date
Particulars
Paid
Bank
$
$
$
$
Balance
Total
Total
PART IV.
Assets Remaining in Estate
Particulars of assets
Value
$
Total
PART V.
Unsecured Creditors
First column
Second column
Third column
Fourth column
Fifth column
Sixth column
No.
Name
Address
Amount of debt
Year when contracted
Consideration
$
$
Where a creditor owes moneys to the deceased and the amount owing by the creditor is less than the amount owing to the creditor, particulars of these amounts are to be included in this Part. Particulars of these amounts are to be set out in the third column immediately below the address of the creditor, as follows:—
Amount owing to creditor $
Amount owed by creditor $
If a creditor holds a bill of exchange or a promissory note, particulars of the bill of exchange or promissory note so held are to be set out in the second column of this Part immediately below the name of the creditor.
Form 39—continued
Part VI.
Secured Creditors
No.
Name of creditor
Address
Amount of debt
Year when contracted
Particulars of security
Date when given
Estimated value of security at present
Estimated deficiency
Estimated surplus
$
$
$
$
Total..
Total..
PART VII.
Hire-purchase Agreements
No.
Name of finance company
Address
Date of agreement
Particulars of goods under agreement
Arrears of hire (if any)
Amount required to complete agreement
Present value of goods
Estimated surplus
Estimated deficiency
$
$
$
$
$
Total..
(Signature.)
Form 40 Rule 88.
PETITION BY PERSON ADMINISTERING ESTATE OF DECEASED PERSON
I, (full name, address and occupation of petitioner), the person administering the estate of the late (full name, former address and occupation of deceased person) (hereinafter referred to as “the deceased debtor”) petition the Court for an order for the administration in bankruptcy of the estate of the deceased debtor who died on the day of , 19 .
The deceased debtor was at the date of his death personally present in Australia (or ordinarily resident in Australia or as the case may be).
The sheets accompanying this petition and numbered 1 to (inclusive) are, to the best of my knowledge and belief, a true and complete statement of the affairs of the deceased debtor and of my administration of his estate.
(a) If the petitioner is a corporation, the petition may be under the seal of the corporation, and the sealing need not be in the presence of a person other than a person required to witness the sealing of a document by the corporaties.
(If the deceased debtor was, at the date of his death, carrying on business in Australia either personally or as a member of a firm or partnership in respect of which liabilities are set out in his statement of affairs, here set out the address at which and the business or firm name (if any) under which he was carrying on business.)
4. (Here state whether the petitioner has been authorized to administer the estate of the deceased debtor and, if he has been so authorized, the manner in which he was authorized.)
Dated this day of 19 .
Signed by the petition in my presence: (a)
(signature, address and occupation of witness) This petition is filed by on behalf of whose address for service is .
Form 41
Rule 92.
NOTICE OF FIRST MEETING OF CREDITORS
To:
TAKE NOTICE that the first meeting of the creditors of (full name, address and occupation of bankrupt) who became a bankrupt on the day of , 19 , will be held at on the day of , 19 , at o’clock in the noon.
Official Receiver.
Under section 66 of the Bankruptcy Act 1966, a creditor is not entitled to vote at a first meeting of creditors (except on a motion to elect the chairman of the meeting) unless the creditor has made known to the chairman of the meeting particulars of his debt, or, except as mentioned below, if the creditor is a secured creditor or if the creditor is the spouse of the bankrupt. A secured creditor may vote in respect of his debt if he surrenders his security or may vote in respect of the balance (if any) of his debt after deducting the value at which he estimates the security if he has furnished to the chairman, in writing, particulars of his security and of the value at which he estimates it.
Under section 67 of the Bankruptcy Act 1966, a creditor may vote at the first meeting of creditors either in person or by his attorney or by a proxy appointed in writing by the creditor or his attorney. A person is not entitled to vote as proxy (except on a motion to elect the chairman of the meeting) unless the instrument by which he is appointed has been lodged with the chairman. A person is not entitled to vote as attorney (except on a motion to elect the chairman of the meeting) unless the instrument by which he is appointed has been produced to the chairman or the chairman is otherwise satisfied that he is the duly authorized attorney of the creditor.
Form 42
Rule 93.
NOTICE OF MEETING
To:
TAKE NOTICE that a meeting of the creditors of (full name, address and occupation of bankrupt) will be held at on the day of , 19 , at o’clock in the noon for the purpose of .
(Signature and title of person summoning the meeting.)
Form 43
Rule 100.
INSTRUMENT OF APPOINTMENT OF PROXY
I, (full name and address of creditor), a creditor, appoint of to be my proxy at the meeting of the creditors of the abovementioned bankrupt/debtor to be held on the day of , 19 , (or any meeting of the creditors of the abovementioned bankrupt/debtor ) to vote (here set out the powers of the proxy).
| Signed by the abovementioned creditor in my presence: | |
| (Signature, address and occupation of witness) | |
Form 44
Rule 100.
APPOINTMENT OF PROXY BY TELEGRAM
The Chairman,
Meeting of creditors of (name of bankrupt or debtor)
(Address of meeting)
(Full name and address of creditor) appoints of to be his proxy at the meeting to held on the day of , 19 , to vote (here set out the powers of proxy).
Form 45
Rule 102.
APPLICATION TO THE COURT
APPLICATION is made to the Court on behalf of (full name and address of applicant) for the following orders:—
This application has been set down for hearing by the Court at on the day of , 19 , at o’clock in the noon, or so soon thereafter as the course of business will permit.
Solicitor for the applicant.
This application is filed by on behalf of whose address for service is .
Form 46
Rule 106.
NOTICE OF INTENTION TO OPPOSE MOTION
To: (full name of applicant)
TAKE NOTICE that (full name and address) intends to oppose the making of the orders sought by the applicant in his application dated the day of , 19 , on the following grounds:—
This notice is filed by on behalf of whose address for service is
Form 47
Rule 122.
AFFIDAVIT OF PERSONAL SERVICE
I (full name, address and occupation) make oath and say:—
1. On the day of 19 , at o’clock in the noon, I served with by delivering it to him personally at (full address).
(Here set out how the deponent identified the person served.)
Annexed to this affidavit and marked with the letter “ ” is a true (or sealed) copy of the
I have attained the age of 16 years.
Sworn by the deponent the day of , 19 , at before me:
(Signature of deponent)
Form 48
Rules 125 and 156.
SUMMONS TO WITNESS
To: (full name and address of witness)
In pursuance of the power conferred by rule 125 (or 156) of the Bankruptcy Rules, I, , the Registrar in Bankruptcy, summon you to attend at on the day of , 19 , at the hour of o’clock in the noon to give evidence in connexion with the (give short particulars of the proceedings) (and then and there to produce any documents in your custody or under your control that relate to that matter, and in particular, the following documents:—
).
Form 49
Rule 129.
SUMMONS UNDER SECTION 81 OF THE BANKRUPTCY ACT
To: (full name and address of person summoned)
In pursuance of the power conferred on the Court (or the Registrar) by section 81 of the Bankruptcy Act 1966, the Court (or the Registrar) hereby summons you to attend before the Court (or the Registrar or a magistrate) at on the day of , 19 , at the hour of o’clock in the noon to give evidence in connexion with (give short particulars of the matters concerning which the person is to be examined) and to produce any of the following documents that are in your custody or power and relate to the abovementioned bankrupt or his trade dealings or affairs:—(or, if the summons is directed to the bankrupt, to give evidence and to produce any documents in your custody or power relating to yourself or to your trade dealings, property or affairs, and, in particular, the following documents:—
).
(By the Court.)
Note.—Sub-section (2.) of section 81 of the Bankruptcy Act 1966 authorizes the issue of a warrant for the apprehension of a person who having been served with a summons and tendered a reasonable sum for expenses refuses or fails to attend at the time appointed and has no lawful excuse made known to the Court, Registrar or magistrate before which or before whom he has been summoned to appear and allowed by that Court, Registrar or magistrate.
Form 50
Rule 146.
NOTICE OF DISCOVERY
To:
TAKE NOTICE that (name of party) requires you to make discovery on oath of the documents that are or have been in your possession, custody or power relating to the matters that are in question in this proceeding (or the following matters that are in question in this proceeding:—
).
Solicitor for
Form 51 Rule 151.
NOTICE TO ADMIT DOCUMENTS
To:
TAKE NOTICE that (full name of party) proposes to give in evidence the several documents referred to in the First and Second Schedules to this notice. Those documents may be inspected by you or by your solicitor or agent at on the day of , 19 , between the hours of
You are called upon to admit, before the hearing of the proceeding—
(a) that the documents referred to in the First Schedule are original documents that were duly written, signed or executed, as the case may be, on the respective dates specified in that Schedule by the persons by whom they purport to have been written, signed or executed;
(b) that the documents referred to in the Second Schedule are true copies of the documents of which they purport to be copies; and
(c) that, where particulars of the service, sending or delivery of an original document are specified in the third column of the Second Schedule in relation to a reference to a copy of that document in the first column of the Second Schedule that original document was served, sent or delivered as specified in the third column of the Second Schedule.
FIRST SCHEDULE
Original Documents
Description of documents
Date on which written, signed or executed
SECOND SCHEDULE
Copies of Documents
First column
Second column
Third column
Description of documents
Date on which original written, signed or executed
Particulars of service, sending or delivery of original
Solicitor for the
Form 52
Rule 152.
NOTICE TO ADMIT FACTS
To:
TAKE NOTICE that (full name of party) calls on you to admit, within days after service of this notice on you, for the purpose of this proceeding only, each of the following facts:—
_____
Form 53
Rule 152.
ADMISSION OF FACTS
To:
(Full name of party) hereby admits, for the purpose of this proceeding only, the facts specified hereunder subject to the qualifications (if any) specified in relation to any of those facts.
These admissions are not to be used against the said in any other proceedings or by any person other than (full name of party requesting the admission) in this proceeding.
Facts admitted
Qualifications (if any) subject to which the facts are admitted
Solicitor for the
Form 54
Rule 154.
NOTICE TO PRODUCE DOCUMENTS
To:
TAKE NOTICE that you are required to produce and show to the Court on the hearing of this petition (or application) the following documents:—
Dated tills day of , 19 .
Form 55 Rule 172.
CERTIFICATE OF TAXATION
I certify that I have taxed and allowed the bill of costs (or charges) of (full name of person whose bill has been taxed and the capacity in which the costs or charges were incurred) at dollars cents.
(The Court, by order made on the day of , 19 , ordered that these costs (or charges) be paid ).
Taxing Officer.
Form 56 Rule 177.
SEARCH WARRANT
To:
You are hereby authorized, at any time of the day (or night), to enter and search (description of the building or premises) and seize any property of (full name, address and occupation of bankrupt), a person against whose estate a sequestration order was made by the (name of court) on the day of , 19 (or who has become a bankrupt by virtue of the presentation of a debtor’s petition to the (name of court) on the day of , 19 ), whether in the custody or possession of the bankrupt or of any other person, and, for the purposes of the exercise of the foregoing powers, to break open any house, building, room or receptacle of the bankrupt or any other person where the bankrupt or any of his property is or where you have reasonable cause to believe the bankrupt or any of his property may be found. And for so doing, this shall be your sufficient Warrant.
This Warrant remains in force up to and including the day of , 19 .
By the Court,
Form 57 Rule 178.
AUTHORITY TO TAKE POSSESSION OF OR ATTACH PROPERTY
In pursuance of rule 178 of the Bankruptcy Rules, I, (full name of trustee), the trustee of the estate of in respect of whose estate a sequestration order was made by the Court on the day of , 19 , hereby authorize (full name, address and occupation) to take possession of, or attach, the property of the said bankrupt on my behalf.
Form 58 Rule 178.
NOTICE OF TAKING POSSESSION OR ATTACHMENT OF PROPERTY
To:
In pursuance of rule 178 of the Bankruptcy Rules, I, (full name of trustee or of person authorized by trustee), being the trustee (or a person authorized by the trustee) of the estate of in respect of whose estate a sequestration order was made by the Court on the day of , 19 , give you notice that I have this day taken possession of (or attached) the property of the said bankrupt specified in the copy of the inventory signed by me and furnished to you with this notice.
Trustee (or Person authorized by the trustee).
Form 59
Rule 197.
MEMORANDUM BY TRUSTEE CLAIMING PROPERTY AFTER NOTICE BY INTENDING VENDOR, MORTGAGOR OR LESSOR
To:
TAKE NOTICE that (full name and address of trustee), the trustee of the estate of (full name, address and occupation of bankrupt), against whose estate a sequestration order was made on the day of , 19 , claims (here specify the property) in respect of which a notice under sub-section (1.) of section 128 of the Bankruptcy Act 1966 was given to the trustee on the day of , 19 , by
Trustees.
Form 60
Rule 197.
NOTICE OF WITHDRAWAL OF MEMORANDUM BY TRUSTEE CLAIMING PROPERTY
To:
TAKE NOTICE that (full name and address of trustee), the trustee of the estate of (full name, address and occupation of bankrupt) against whose estate a sequestration order was made on the day of , 19 , withdraws the memorandum under sub-section (2.) of section 128 of the Bankruptcy Act 1966 by which he claimed (here specify property in terms identical with those in memorandum) in respect of which a notice under sub-section (1.) of section 128 of the Bankruptcy Act 1966 was given to the trustee on the day of , 19 , by .
Trustees.
SECOND SCHEDULE
Rule 162.
Scale of Solicitors’ Costs and Witnesses’ Expenses
Item No.
Matters in Connexion with which Costs are Payable
Amount
Instructions
$
1
For bankruptcy notice, including application for issue of the notice..........
7.00
2
For petition, including affidavit verifying petition, or to oppose petition (not including, where applicable, any special affidavit in support)
9.00
3
To make or oppose an application to the Court........................
9.00
4
To make or oppose an application in Chambers or examination before the Registrar
7.00
5
For special affidavit.........................................
6.00
6
For case of opinion of counselor for counsel to advise on evidence..........
6.00
7
For brief for counsel.........................................
11.00
8
For statement of affairs.......................................
11.00
9
For a necessary notice not otherwise provided for......................
4.00
Drawing
10
A necessary document (other than a document specified in item 11)—per folio...
0.60
11
A statement of affairs under a sequestration order—
If 5 folios or less or, if more than 5 folios, for first 5 folios................
4.00
If more than 5 folios—for each folio or part of a folio in excess of 5 folio.....
0.60
Second Schedule—continued
Scale of Solicitors’ Costs and Witnesses’ Expenses—continued
Item No.
Matters in Connexion with which Costs are Payable
Amount
Copies
$
12
Of necessary documents for which no other provision is made—per folio
0.25
13
Carbon or machine made copy—per folio............................
0.15
Perusals
14
Petitions, affidavits, notices to produce or admit, applications to the Court or the Registrar, statements of facts, counsel’s opinion or advice—
If 6 folios or less.........................................
2.00
If more than 6 folios—per folio................................
0.30
15
Depositions, reports, exhibits, accounts, bills of costs or deeds or documents not otherwise provided for—
If 20 folios or less.........................................
2.00
If more than 20 folios—per folio...............................
0.10
Service
16
Personal service of any document of which personal service is required ........If served by a solicitor at a distance of more than three miles from the nearest place of business or office of the solicitor serving the document, according to the time occupied and the fares paid.
4.00
17
Service on a solicitor for a party..................................
2.00
18
Service by post.............................................
2.00
Attendances
19
On counsel—(a) With a brief or other papers or to appoint consultation or conference or to mark refresher
2.00
(b) On consultation or conference with counsel—
If half an hour or less....................................
6.00
If over half an hour—per hour or part of an hour..................
11.00
20
In Court or Chambers on hearing without counsel—
(a) for a hearing lasting less than one hour or for the first hour of the hearing...
13.00
(b) for each hour or part of an hour of the hearing after the first hour........
11.00
(c) for each hour or part of an hour when likely to be heard but not heard.....
4.00
21
In Court or Chambers on hearing with counsel—(a) for each hour or part of an hour of the attendance during the hearing......
11.00
(b) for each hour or part of an hour of the attendance when likely to be heard but not heard
4.00
If a person other than a solicitor attends in place of a solicitor, the allowance shall not exceed two-thirds of the allowance payable for an attendance by a solicitor
22
To hear reserved judgment.....................................
4.00
23
On taxation of costs—
(a) if a solicitor attends—per hour or part of an hour...................
9.00
(b) if a clerk attends—per hour or part of an hour.....................
4.00
24
At meeting of creditors or committee of creditors—per hour or part of an hour
11.00
25
To file or deliver any documents or papers, to obtain an appointment, to insert advertisements, or other attendance of a similar nature that does not involve the exercise of skill or legal knowledge and is not otherwise provided for
2.00
26
To swear an affidavit or on deponent to be sworn.......................
3.00
27
Attendance not otherwise provided for—
(a) involving the exercise of skill or legal knowledge—per hour or part of an hour
11.00
(b) not involving the exercise of skill or legal knowledge—per hour or part of an hour
6.00
Second Schedule—continued
Scale of Solicitors’ Costs and Witnesses’ Expenses—continued
____________
THIRD SCHEDULE
Rule 179.
Fees to be Taken in the Office of the Registrar
Item No.
Matter
Fee
$
1
On filing an application for the issue of a bankruptcy notice, including signed copies
10.00
2
On filing a petition..........................................
12.00
3
On filing an affidavit........................................
0.50
4
On altering the date, time or place fixed for the hearing of a petition that has not been served on the respondent or all respondents
2.00
5
On filing a notice of intention to oppose a petition or other application to the Court
3.00
6
For an order adjourning a petition................................
3.00
7
On filing an application to a Registrar.............................
2.00
8
For an order made by the Registrar...............................
2.00
9
For a summons, other than a summons under rule 32—
(a) If the summons is directed to one person........................
3.00
(b) If the summons is directed to two or more persons—
(i) for the first person....................................
3.00
(ii) for each additional person...............................
1.00
Third Schedule—continued
Fees to be Taken in the Office of the Registrar—continued
Item No.
Matter
Fee
$
10
On filing an application (other than an application for discharge from bankruptcy)—
(a) for hearing before the Court sitting in Court ......................
10.00
(b) for hearing before the Court sitting in Chambers....................
3.00
11
For an order (other than an order adjourning a hearing or granting or refusing an order of discharge from bankruptcy) made—
(a) by the Court sitting in Court................................
5.00
(b) by the Court sitting in Chambers.............................
3.00
12
On a creditor entering an objection to the discharge of a bankrupt...........
6.00
13
On filing an application under section 150 of the Act for an order of discharge, including the order made on the application
10.00
14
For each creditor to be notified of an application for discharge from bankruptcy..
0.50
15
On filing a certificate under section 204 (7.) or section 204 (8.) of the Act relating to a special resolution, not being a resolution accepting a composition
2.00
16
On filing a copy of a deed of assignment or deed of arrangement or certificate relating to a special resolution accepting a composition
12.00
17
On filing a bill of costs or bill of charges............................
3.00
18
For taxing a bill of costs or bill of charges—for every dollar or part of a dollar found due upon taxation
0.05
19
For a certificate of taxation.....................................
2.00
20
For a certificate of the Registrar, other than a certificate of taxation or a certificate under rule 22
5.00
21
On filing a bond of a trustee or of a surety to a trustee’s bond..............
3.00
22
A copy, not being a photographic copy, of a transcript—(a) ......for the first or second copy supplied to a party—per folio of 72 words
0.08
(b) for each additional copy supplied to the same party—per folio of 72 words...
0.03
23
Reasons for judgment—for each copy—per page......................
0.50
24
For a photographic copy of a document—per page.....................
0.40
25
For examining a copy of a document supplied by a party for the purpose of being sealed, stamped or certified as a true copy—per page
0.50
26
For an office copy of a document, in addition to the fee for copying the document or examining the copy of the document supplied by the party requesting the office copy
0.50
27
For signing, sealing or signing and sealing a document or copy of a document (not being a document or copy of a document issued at the time the original is signed) in respect of which no other fee is payable
1.00
28
For searching in the indexes kept by the Registrar, including, where allowed, inspecting documents filed in connexion with a proceeding or in relation to a debtor and making copies of or taking extracts from documents so filed—for each name to be searched
0.50
29
For a search in the indexes kept by the Registrar, being a search made by an officer at the request of another person—for each name to be searched
1.00
FOURTH SCHEDULE
Official Receiver’s Fees Rule 182.
Item No.
Matter
Fee
$
1
For an official receiver’s officer making a seizure, attachment and inventory of a bankrupt’s property—for each hour or part of an hour during which the officer is absent from his office in connexion with the seizure or attachment
3.00
2
For the use of a room for a meeting or adjourned meeting of creditors
convened by an official receiver..................................
5.00
3
For official stationery, printing, books, postage, telegrams and local telephone calls—
(a) for every 20 creditors, or part of 20 creditors, in an estate..............
10.00
(b) for every 20 debtors, or part of 20 debtors, in an estate...............
8.00
4
For a notice to a creditor of a court sitting, of a meeting of creditors or of a dividend
0.50
_______________
By Authority: A. J. Arthur, Commonwealth Government Printer, Canberra