Commonwealth Consolidated Acts Commonwealth Consolidated Acts(1) Where a secured creditor has estimated the value of his or her security for the purposes of voting at a meeting of creditors at which a special resolution requiring the debtor to execute a personal insolvency agreement was passed:
(a) he or she is not entitled to estimate the value of the security for the purposes of proving part of his or her debt under the agreement at any other amount except with the approval of the Court; and
(b) he or she shall, upon request in writing by the trustee of a personal insolvency agreement executed in accordance with the special resolution, surrender the security upon payment of the amount at which he or she has estimated the value of his or her security for the purposes of voting or, if the Court has approved his or her estimating the value of his or her security at another amount under paragraph (a), upon payment of that other amount.
(2) The Court shall not grant its approval under paragraph (1)(a) unless it is satisfied that:
(a) the estimate made for the purposes of voting was made in good faith on a mistaken basis; or
(b) the value of the security has changed since that estimate was made.
(3) Subject to subsection (4), where a secured creditor has voted at a meeting of creditors at which a special resolution referred to in subsection (1) was passed in respect of the whole of his or her debt without having surrendered his or her security:
(a) he or she shall be deemed to have estimated his or her security as having no value; and
(b) he or she shall, upon request in writing by the trustee of a personal insolvency agreement executed in accordance with the special resolution, surrender the security.
(4) The Court may, upon application by a secured creditor to whom subsection (3) applies, if it is satisfied that his or her failure to estimate the value of his or her security was due to inadvertence, upon such terms as the Court considers just and equitable:
(a) relieve him or her from the obligation to surrender the security; and
(b) permit him or her to estimate its value for the purposes of proving part of his or her debt under the personal insolvency agreement.
(5) Subject to subsection (4), if a creditor referred to in subsection (1) or (3) fails to comply with a request in writing under that subsection, the trustee by whom the request was made may apply to the Court for an order requiring the creditor to surrender the security to which the request related and the Court may make an order accordingly.
(6) The right conferred on a secured creditor under section
90, as applied in relation to personal insolvency agreements, to
realize his or her security and prove for the balance due to him or her is not
exercisable where the trustee of such an agreement has requested the surrender
of the security under this section.