Commonwealth Numbered Acts

BANKRUPTCY AMENDMENT ACT 1980 No. 12 of 1980 - SECT 142

142. (1) Section 250 of the Principal Act is repealed and the following
sections are substituted:



"249A. (1) Where-

   (a)  an amount equal to the value of improvements made to property owned by
        a deceased person in respect of whose estate an order is made for
        administration under this Part and another person or other persons as
        joint tenants forms, for the purposes of section 249, part of the
        divisible property of the estate of the deceased person; and

   (b)  the property is owned by that other person, or is owned (whether as
        joint tenants or otherwise) by all or some of those other persons and
        no other person, on the day on which the order for the administration
        of the estate under this Part is made, there is created, by force of
        this sub-section, a charge on that property to secure the payment of
        that amount.



"(2) The charge created on property by sub-section (1)-

   (a)  is subject to every charge or encumbrance to which the property was
        subject immediately before the time at which the order for
        administration under this Part was made;

   (b)  subject to sub-section (3), has priority over all other charges or
        encumbrances whatsoever; and

   (c)  subject to sub-section (3), is not affected by any change of ownership
        of the property.



"(3) A charge created by sub-section (1) on any property-

   (a)  ceases to have effect in respect of the property upon the sale of the
        property to a bona fide purchaser for value who, at the time of the
        purchase, has no notice of the charge; and

   (b)  is postponed in favour of a further charge, or an encumbrance, on the
        property acquired bona fide and for value by a person who, at the time
        of the acquisition, had no notice of the first-mentioned charge.



"(4) Where a charge is created by sub-section (1) on property of a particular
kind and the provisions of any law of the Commonwealth or of a State or
Territory provide for the registration of charges over property of that kind,
the trustee of the estate may cause the charge to be registered under the
provisions of that law and, if he does so, a person who purchases or otherwise
acquires the property, or an interest in the property, after registration of
the charge shall, for the purposes of sub- section (3), be deemed to have
notice of the charge. Effect of order under Part in case of deceased person
who was bankrupt

"250.(1) Where an order is made for the administration of the estate of a
deceased person under this Part who was, at the time of his death, a bankrupt-

   (a)  property-

        (i)    that was acquired by, or devolved on, the deceased person on or
               after the date of the bankruptcy; and

        (ii)   that is divisible amongst the creditors of the deceased person,
               but had not been distributed amongst the creditors in the
               bankruptcy before the date on which the order was made, shall
               (subject to any disposition of that property made by
               the trustee in the bankruptcy without knowledge of the
               presentation of the petition on which the order was made and
               subject also to section 126 in its application to the
               administration of deceased estates under this Part by virtue of
               section 248) vest forthwith in the trustee of the estate of the
               deceased person;

   (b)  property-

        (i)    that is acquired by, or devolves on, the estate of the deceased
               person on or after the date of the making of the order; and

        (ii)   that is divisible amongst the creditors of the estate under
               this Part, vests in the trustee of the estate of the deceased
               person under this Part as soon as it is acquired by, or
               devolves on, the estate;

   (c)  the trustee in the bankruptcy-

        (i)    shall be deemed to be a creditor in the administration of the
               estate of the deceased person under this Part in respect of any
               unsatisfied balance of his expenses in the bankruptcy, the
               liabilities incurred by him in administering the estate in the
               bankruptcy and the debts proved in the bank- ruptcy (whether or
               not those debts are entitled to priority, or are postponed, in
               the bankruptcy);

        (ii)   shall rank equally with the ordinary unsecured creditors of the
               estate of the deceased person in its administration under this
               Part; and

        (iii)  may, where he has lodged a proof of debt in the administration
               under this Part, amend that proof of debt, without the consent
               of the trustee of the estate of the deceased person under this
               Part, for the purpose of adding-

                (A)  his expenses in the bankruptcy that have accrued after
                     the proof of debt was lodged;

                (B)  liabilities incurred by him in administering the estate
                     in the bankruptcy after the proof of debt was lodged; or

                (C)  debts proved in the bankruptcy after the proof of debt
                     was lodged, or, with the consent of the trustee of the
                     estate of the deceased person, for any other purpose;

   (d)  a charge or charging order that, by virtue of sub-section 118 (9), is
        void as against the trustee in the bankruptcy continues to be void as
        against that trustee; and

   (e)  a transaction that, by virtue of section 120, 121 or 122, is void as
        against the trustee in the bankruptcy continues to be void as against
        that trustee.



"(2) Where-

   (a)  the trustee of the estate of a bankrupt who has died receives, after
        the death of the bankrupt, notice of the presentation of a creditor's
        petition against the deceased bankrupt, being a petition that was
        presented before he died; or

   (b)  the trustee of the estate of a bankrupt who has died receives notice
        of the presentation of a petition for the administration of the estate
        of the deceased bankrupt under this Part, the trustee shall hold the
        after-acquired property of the deceased bankrupt that is then in the
        possession of the trustee, or the proceeds thereof, until the petition
        has been dealt with by the Court or has lapsed.



"(3) Where the trustee of the estate of a bankrupt who has died receives,
after the death of the bankrupt, notice of the reference to the Court of a
debtor's petition against the deceased bankrupt, being a petition that was
presented before he died, the trustee shall hold the after-acquired property
of the deceased bankrupt that is then in the possession of the trustee, or the
proceeds thereof, until the Court has dealt with the petition.



"(4) Where the trustee of the estate of a bankrupt who has died is holding
after-acquired property of the deceased bankrupt, or the proceeds of any such
property, in pursuance of sub-section 59 (2) or (3) or sub- section (2) or (3)
of this section and an order is made for the administration of the estate of
the deceased bankrupt under this Part, the trustee shall-

   (a)  in a case where the trustee is also the trustee in relation to the
        administration of the estate of the deceased bankrupt under this
        Part-hold all such property, and the proceeds of such property, as
        trustee in relation to the administration of the estate of the
        deceased bankrupt under this Part; or

   (b)  in any other case-deliver all such property, and pay the proceeds of
        such property, to the trustee in relation to the administration of the
        estate of the deceased bankrupt under this Part.



"(5) Where a law of the Commonwealth or of a State or Territory of the
Commonwealth requires the transmission of property to be registered, and
enables the trustee in relation to the administration of the estate of a
deceased person under this Part to be registered as the owner of any such
property that is part of the property of the estate, that property,
notwithstanding that it vests in equity in the trustee by virtue of sub-
section (1), does not vest in the trustee at law until the requirements of
that law have been complied with.



"(6) In sub-sections (2), (3) and (4), 'after-acquired property', in relation
to a deceased bankrupt, means such of the property that was acquired by, or
devolved on, the bankrupt on or after the date of the bankruptcy and before he
died or that was acquired by, or devolved on, the estate of the bankrupt after
his death, being property divisible among the creditors of the deceased
bankrupt, as has not been distributed amongst the creditors in the
bankruptcy.".

(2) Notwithstanding the repeal of section 250 of the Principal Act effected by
sub-section (1) of this section, where an order has been made by the Court
before the commencement of this section for the administration of the estate
of a deceased person, being a deceased person who was, at the time of his
death, a bankrupt, under Part XI of the Principal Act, the provisions of
section 250 of the Principal Act continue to apply, after the commencement of
this section, subject to sub-section (3) of this section, as if that section
of the Principal Act had not been repealed.

(3) Section 250 of the Principal Act has effect, after the commencement of
this section, in relation to the administration of the estate of a deceased
person referred to in sub-section (2) of this section as if-

    (a) "The Official Receiver in Bankruptcy or the trustee" (wherever
occurring) were omitted from paragraph (a) of sub-section (1) and "the
Official Trustee or a registered trustee" were substituted;

   (b)  "The Official Receiver in Bankruptcy or" were omitted from paragraph
        (b) of sub-section (1);

    (c) "The Official Receiver in Bankruptcy or a trustee" (first occurring)
were omitted from sub-section (2) and "the trustee in relation to the
administration of the estate of a deceased person under this Part" were
substituted; and

   (d)  "The Official Receiver in Bankruptcy or a trustee" (second occurring)
        were omitted from sub-section (2) and "the trustee of the estate of a
        bankrupt" were substituted.