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INSOLVENCY LECTURE 4

INSOLVENCY LECTURE 4. LAW EXTENSION COMMITTEE Last revised 29 November 2010. 1. ADMINISTRATION OF THE ESTATE. See Keays Chapter 6 Initial actions by the Trustee – note section 19: See also section 129 .

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INSOLVENCY LECTURE 4

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  1. INSOLVENCY LECTURE4 LAW EXTENSION COMMITTEE Last revised 29 November 2010 1

  2. ADMINISTRATION OF THE ESTATE • See Keays Chapter 6 • Initial actions by the Trustee – note section 19: See also section 129. • Examining the books and records of the bankrupt – section 77(1)(a) requires the bankrupt to deliver up all of the books in the bankrupt’s possession and which relate to the bankrupt’s “examinable affairs”: see Griffin v Pantzer [2004] FCAFC 113at [175]. • This overrides the bankrupt’s right to the privilege against self-incrimination. Note definition of “books” in section 5 and penalty for non-compliance in section 78(1); 2

  3. ADMINISTRATION OF THE ESTATE • Delivery up of books of an associated entity of the bankrupt: section 77(1)(a)(i). Note the definition of “associated entity”; • Where a sequestration order has been made the bankrupt is required to file a Statement of Affairs with the Official Receiver within 14 days from the date on which they are notified of bankruptcy. • A Statement of Affairs must be filed prior to the Official Receiver accepting a debtor’s petition where there is a voluntary bankruptcy: sections 55(2), 56B(3) and 57(2). ; • Interview with bankrupt: section 77(b); • Giving notice of the bankruptcy to banks and other financial institutions, the Australian Taxation Office and debtors of the bankrupt; 3

  4. ADMINISTRATION OF THE ESTATE • Relations with Creditors • (a) informing creditors: note section 19(1)(d); • (b) rights of creditors: • give lawful directions to the trustee (section 177); • appeal to the court in relation to any action of the trustee which affects a creditor; • fix trustee remuneration (section 162); • initiate and take part in public examination under section 81; • inspect accounts and records kept by trustee (section 173); • inspect the proofs of debt of other creditors (section 101); • apply to the court for review of any decision by the trustee in respect of a proof of debt (section 104(1)); 4

  5. ADMINISTRATION OF THE ESTATE • certain creditors can be paid in priority (section 109); • creditors who have lodged a proof of debt are entitled to be paid a dividend (section 140); • creditors may by resolution move the trustee (section 181); • creditors may indemnify the trustee. • Meetings of Creditors – notice (section 64 and section 64A) , chairperson (section 64K and section 64P), quorum (section 64N), minutes (section 64L), adjournment (section 64Y), right to vote (section 64ZA), motions (section 64ZD), resolutions (section 5). 5

  6. ADMINISTRATION OF THE ESTATE • Taking possession of property • The trustee must take possession of all of the bankrupt’s property immediately, where it is physically possible to do so: section 129(1) – includes title deeds. • The trustee can apply to the court seeking an order for the enforcement of possession: section 129(2). • Investigations • Section 19AA empowers the trustee to carry out an investigation in relation to the bankrupt’s conduct and examinable affairs, and the books, records and accounts kept by the bankrupt as far as they relate to the bankruptcy: • Search warrants: section 130(1), (2). Note section 77 and section 78; • Access to premises: section 77AA; • Access to books of associated entities: section 77A; • Private examinations: section 77C notices – inquisitorial in nature. 6

  7. ADMINISTRATION OF THE ESTATE • Note: notices of examination cannot be oppressive and the Court has power to review any challenge to a section 77C notice. • Offshore information notices: section 81A; • Public examinations: section 81. This is a broad administrative and inquisitorial power and can include a requirement that person produce documents at the examination. Note such an examination often follows an interview at the Trustee’s office (section 77(1)(b). • Who may be examined? See definitions of “examinable persons” and ”examinable affairs” in section 5; • Is the power to examine restricted? Yes, if it is an abuse of process (Keays page 146) or where it requires examinees (other than bankrupts) to answer questions which may incriminate themselves ; • The power can be used to assist in the conduct of contemplated or existing legal proceedings: see Crawford v Sellars (Trustee) in the matter of Hussen (Bankrupt) [2000] FCA 162 7

  8. ADMINISTRATION OF THE ESTATE • Disclaimer of Assets - this will occur where the retention of property is too onerous or where the property is worth little or is unsaleable: section 133. • Carrying on business – see section 134. • Assignment of rights of action – see section 134. • Can seek directions from the court - see section 134(4). • Consolidation of estates – see section 53. • Realising assets – note that the trustee has 20 years from the date of bankruptcy to claim property: section 127 (but subject to section 129AA). 8

  9. ADMINISTRATION OF THE ESTATE • Income of the bankrupt • Division 4B of the Act provides for the collection of monetary contributions by trustees depending on the level of income of the bankrupt. Division 4B contains what is known as the “supervised account regime” (section 139ZIA) which comprises powers given to the Official Receiver to issue a notice to the bankrupt’s employer/or bank in effect garnisheeing the bankrupt’s wages so as to collect the amount assessed. For high income bankrupts a “supervised account “ regime has been introduced. • Contribution assessment period – section 139K. A trustee may assess a bankrupt’s income in this period. • The “actual income threshold amount” is defined in section 139K. Note the method of calculation set out in section 139S. “Income” is defined in section 139L. 9

  10. ADMINISTRATION OF THE ESTATE • The process of assessment is set out in section 139W and the decision may be reviewed in accordance with section 139ZA. Note also the hardship provisions set out in section 139T(2) • It is possible for the Official Receiver to collect from persons other than the bankrupt: section 139ZK(2). • Claims of creditors • Debts provable in bankruptcy: section 82(1); • Non-provable claims: section 82(2); • Secured creditors: section 5 and section 58(5); • Proofs of debt: section 84(1); 10

  11. ADMINISTRATION OF THE ESTATE • Distribution of the estate • Section 140(1) requires the trustee to declare and pay dividends ”with all convenient speed”. Before paying a dividend, the trustee has to ensure that the bankrupt has filed a statement of affairs. If not, leave of the court must be obtained. Dividends can only be paid to creditors who have proved their debts: section 140(1) and a trustee not need not pay a dividend in an amount less than $25. • Special priorities – see section 109. 11

  12. KEY DATES IN A BANKRUPTCY “the date of the bankruptcy” - s 5 [Nichols 64] “the commencement of the bankruptcy” - s 5 [Nichols 64] s 115 - commencement of a bankruptcy s 116 - property divisible amongst creditors - all property which belonged to the bankrupt at the commencement of the bankruptcy need to read these 4 provisions together 12

  13. KEY DATES IN A BANKRUPTCY “the date of the bankruptcy” - s 5 [Nichols 64] – this is date on which a sequestration order was made against the estate or where, in a case where the bankrupt presented a debtor’s petition, the date which they became bankrupt by reason of section 55, 56E or 57. “the commencement of the bankruptcy” - s 5 [Nichols 64] – this is the time at which the bankruptcy is by virtue of section 115 deemed to have commenced. 13

  14. KEY DATES IN A BANKRUPTCY s 115 - commencement of a bankruptcy – Where a creditor’s petition is used, then generally the bankruptcy is taken to have relation back to, and to have commenced at, the time of the commission of the earliest act of bankruptcy committed by the person within the period or 6 months immediately before the date on which the creditors petition was presented (I.e. filed) If the bankruptcy is as a result of the acceptance of a debtor’s petition, the bankruptcy is taken to have relation back to and commenced at the time indicated in the table set out in s 115(2): see Keays p 29 s 116 - property divisible amongst creditors - all property which belonged to the bankrupt at the commencement of the bankruptcy 14

  15. RELATION BACK - sections 115 and 116 s 115 – If a person becomes a bankrupt on a creditor’s petition (and sub-section 1A does not apply), then the bankruptcy is taken to have “relation back to”, and to have commenced at, the time of the commission of the earliest act of bankruptcy committed by the person within the period of 6 months immediately before the date on which the creditor’s petition was presented. See the following diagram from Keays at pg 29: Act of bankruptcy Act of bankruptcy Petition presented Sequestration order made 16/2/2006 23/3/2006 21/9/2006 5/11/2006 15

  16. RELATION BACK - sections 115 and 116 With respect to debtor’s petitions, see section 115(2) What does “relation back” mean? According to Lord Esher MR in Re Pollit [Nichols 298] “The title of the trustee in the subsequent bankruptcy related back to that act of bankruptcy. What does that mean? The result of the relation back is, that all subsequent dealings with the debtor's property must be treated as if the bankruptcy has taken place at the moment when the act of bankruptcy was committed. The debtor must be considered as having become a bankrupt the moment the deed was executed. Then, he being a bankrupt, all the money which he then had, and all the money which was owing to him, passed to the trustee in the bankruptcy for the purpose of being distributed by him amongst the bankrupt's creditors.” 16

  17. RELATION BACK - sections 115 and 116 Where a person commits an act of bankruptcy, that person is not entitled to deal with his or her estate. He or she has no right to gather it in if not already in his or her hands or to make payment to his or her creditors out of that which he or she has actually at his or her command. He or she can have no good discharge to a debtor who pays him or her with notice of the act of bankruptcy, because the debt made by subsequent bankruptcy proceedings will be turned into a debt due to his or her trustee, and not to himself or herself -Ponsford, Baker & Co v Union of London and Smith's Bank Ltd [1906] 2 Ch 444. See Keays p 30 17

  18. RELATION BACK - sections 115 and 116 InAnscor Pty Ltd v Clout [Keays at pg 30-31] Lindgren J stated: “The vesting in the trustee in bankruptcy does not take place upon the commencement of the bankruptcy; it takes place forthwith upon the debtor’s becoming a bankrupt. A debtor becomes a bankrupt on the making of a sequestration order upon a creditor’s petition (s 43(2) of the Act) or upon the endorsement by the Official Trustee of a debtor’s petition as ‘accepted’ (s 55(4A) of the Act). Until then, there is no trustee in bankruptcy in whom property can vest ... The ‘commencement of the bankruptcy’, however, marks the time as at which the items of property constituting the ‘property of the bankrupt’ are to be identified. Those items of property constitute the property which vests in the trustee in bankruptcy forthwith upon the debtor’s becoming a bankrupt. Such an item of property will not vest in the trustee in bankruptcy if it no longer exists when the debtor becomes a bankrupt, or if it still exists then but has been transferred in the meanwhile for full value under a transaction protected by s 123 as mentioned in the preceding paragraph. Statements to the effect that avoidance by the trustee is effective as from ‘the date of the accruer of [the trustee’s] title, or, in other words ... from the date of the act of bankruptcy to which the title of trustee relates back’ …... do not signify that there is an actual vesting in the trustee at the commencement of the bankruptcy. They signify that, the transfer by the debtor/bankrupt being disregarded, if the property still exists at the commencement of the bankruptcy, it will form part of the property of the bankrupt which will vest in the trustee forthwith upon the debtor’s becoming a bankrupt, if the property also still exists then.” 18

  19. RELATION BACK - sections 115 and 116 The result of the doctrine of relation back is that all subsequent dealings with the debtor’s property must be treated as if the bankruptcy had taken place at the moment when the act of bankruptcy was committed. This means that the trustee is entitled to property of the bankrupt which would not otherwise be available to the estate at the date of bankruptcy. If a creditor’s petition has an extended life (see section 52(5)) i.e. up to 24 months, then it may be that the period is extended even further. Applying this to Keays’ diagram on pages 29-30, a sequestration order might not be made until 2008 if the life of the petition has been extended because the court has considered it just and equitable: see Nichols page 174. There will be no relation back period where a debtor’s petition has been presented and the debtor did not commit an act of bankruptcy in the 6 months preceding the presentation of the petition. 19

  20. PROPERTY DIVISIBLE AMONG CREDITORS - S 116 S 58 vests the property of the bankrupt in the trustee [Lecture 1] All property owned at date of commencement of bankruptcy or acquired after that date - s 116(1) – is property divisible amongst the creditors of the bankrupt. Trustee takes subject to the equities. 20

  21. PROPERTY DIVISIBLE AMONG CREDITORS - S 116 See Keays page 99 – 101 and Lecture 1 slides There are exceptions to section 116(1) and they are to be found in s 116(2). Note section 116(2)(a), (b), (ba), (c), (ca), (d), (g) and (q) in particular. In relation to section 116(2)(a) see Clout (Trustee) v Anscor Pty Ltd[2003] FCA 326 at [44] and Jones v Southall & Bourke Pty Ltd [2004] FCA 539 at [56] and [62]. In relation to section 116(2)(b) see Rogers v Asset Loan Co. Pty Ltd[2006] FCA 434 at [37] - [38]. In Re Vaughan (1996) 71 FCR 34 a bankrupt was allowed to keep his box trailer as he used it to collect wood for heating his home in Tasmania. In relation to section 116(2)(g) see Re Iskenderian; ex parte Iskenderian Bros Pty Ltd (1989) 21 FCR 363. 21

  22. EXEMPT TRANSACTIONS: PAYMENTS MADE BY THE BANKRUPT - s 123 Section 123 protects certain transfers by the bankrupt against relation back. It does not protect void dispositions [see Lecture 5]. Four kinds of transactions are exempt : (a) a payment by the debtor to any of his or her creditors; (b) a conveyance, transfer or assignment by the debtor for market value; (c) a contract, dealing or other transaction by or with the debtor for market value; or (d) any transaction to the extent of a present advance made by an existing creditor; Such transactions are exempt if three criteria are satisfied : (e) the transaction took place before the day on which the debtor became a bankrupt (ie. the date the sequestration order was made by a court) ; (f) the person, other than the debtor, with whom it took place, did not, at the time of the transaction, have notice of the presentation of a petition against the debtor; and (g) the transaction was in good faith and in the ordinary course of business. 22

  23. EXEMPT TRANSACTIONS: PAYMENTS MADE BY THE BANKRUPT - s 123 As to the meaning of “good faith” and “in the ordinary course of business”, see Lecture 5 slides The burden of proving these three criteria lies on the person who asserts the validity of the transaction - s 123 (2) The fact that the transferee had notice that the debtor had committed an act of bankruptcy does not mean that a transaction is deemed not to have been in good faith and in the ordinary course of business - s 123 (3) Maintenance agreements and orders are protected - s 123 (6) [subject to ss 121, 128B, 128C - see lecture 5] “Payment” includes the drawing, making or indorsing of a bill of exchange, cheque or promissory note - s 123 (7) “Transaction” includes payment, delivery, conveyance, transfer, assignment, contract or dealing - s 123 (7) 23

  24. EXEMPT TRANSACTIONS: PAYMENTS MADE TO THE BANKRUPT - s 124 Payment of money or delivery of property to a bankrupt is valid if: before bankruptcy - made in good faith and in the ordinary course of business - s 124(1)(a) after bankruptcy - made in good faith and in the ordinary course of business and without negligence - s 124(1)(b) burden of proof is upon person asserting validity of transaction - s 124(2) knowledge or reason to suspect insolvency, or knowledge of an act of bankruptcy or the presentation of a creditor’s petition, does not deem the transaction not to have been made in good faith and in the ordinary course of business - s 124 (3) “without negligence” - Re Hasler (1974) 23 FLR 139 [Keays 98-99 and Nichols page 363] . Several days after the making of a sequestration order against a debtor’s estate, the bank paid two cheques drawn on one of the debtor’s accounts, which was in credit. The bank manager himself did not know of the sequestration order, but the bank had not followed its own procedures which required bank staff to become aware of customer bankruptcies - the bank could not show that it acted without negligence. 24

  25. OTHER EXEMPT TRANSACTIONS s 125(1) obliges a financial institution which has ascertained that it holds an account for a bankrupt, to inform the trustee in writing if the trustee fails within one month to give written instructions to the institution, it may deal with the account as it sees fit - s 125 (2) if the bankrupt acquires property after bankruptcy occurs, and another person then acquires that property in good faith and for valuable consideration, such acquisition shall be valid against the trustee - s 126 25

  26. NEXT LECTURE : LECTURE 5 Transactions void against the trustee Reading: Powerpoint slides Lecture 5 Keays, 104-129 Bankruptcy Act, ss 120-122, 128B-128C Nichols 323-356, 366-369 26

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