Commonwealth Numbered Acts

[Index] [Table] [Search] [Search this Act] [Notes] [Noteup] [Previous] [Next] [Download] [Help]

BANKRUPTCY AMENDMENT ACT 1987 No. 119 of 1987 - SECT 4

Interpretation
4. (1) Section 5 of the Principal Act is amended:
(a) by inserting "paper," before "writing" in the definition of "books" in
subsection (1);
(b) by omitting "other" from the definition of "books" in subsection (1);

   (c)  by omitting "or" (last occurring) from paragraph (c) of the definition
of "the trustee" in subsection (1);

   (d)  by adding the following word and paragraph at the end of the
        definition
of "the trustee" in subsection (1):

"or (e) in relation to a trust:

        (i)    if only one person is a trustee of the trust-that person; or

        (ii)   if 2 or more persons are trustees of the trust-any one or more
               of those persons;
in his, her or its capacity as a trustee, or in their respective capacities as
trustees, as the case may be, of the trust;";

   (e)  by omitting from subsection (1) the definitions of "corporation" and
        "the property of the bankrupt" and respectively substituting the
        following definitions:

" 'corporation' includes any body corporate;
'the property of the bankrupt', in relation to a bankrupt, means:

   (a)  except in subsections 58 (3) and (4):

        (i)    the property divisible among the bankrupt's creditors; and

        (ii)   any rights and powers in relation to that property that would
               have been exercisable by the bankrupt if he or she had not
               become a bankrupt; and

   (b)  in subsections 58 (3) and (4):

        (i)    the property, rights and powers referred to in paragraph (a) of
               this definition; and

        (ii)   any other property of the bankrupt;";

   (f)  by omitting from subsection (1) the definition of "the first meeting
        of creditors";

   (g)  by inserting in subsection (1) the following definitions in their
        respective appropriate alphabetical positions (determined on a
        letter-by-letter basis):

" 'associated entity', in relation to a person, means:

   (a)  an entity (other than a company) that is, or has been, associated with
        the person; or

   (b)  a company that is, or has been, associated with the person at a time
        when the company is, or was, as the case may be, a private company;
'breach of duty' means malfeasance, misfeasance, negligence, wilful default or
breach of trust;
'child', in relation to a person, includes an adopted child, a step-child, or
an ex-nuptial child, of the person;
'close relative', in relation to a person, means a spouse, de facto spouse,
parent, child, brother, sister, half-brother, or half-sister, of the person;
'company' means a corporation, other than a corporation that is incorporated
within Australia or an external Territory and is:

   (a)  a public authority; or

   (b)  an instrumentality or agency of the Crown in right of the
        Commonwealth, in right of a State or in right of a Territory of the
        Commonwealth;
'company officer', in relation to a corporation, includes:

   (a)  a director or secretary of the corporation;

   (b)  a receiver and manager of property of the corporation appointed under
        a power contained in an instrument;

   (c)  an official manager or deputy official manager of the corporation;

   (d)  a liquidator of the corporation appointed in a voluntary winding up of
        the corporation; and

   (e)  a trustee or other person administering a compromise or arrangement
        made between the corporation and another person or other persons;
but does not include:

   (f)  a receiver who is not also a manager;

   (g)  a receiver and manager appointed by a court; or

   (h)  a liquidator appointed by a court;
'declaration of intention' means a declaration that has been presented under
section 54A and accepted under section 54C;
'declared debtor' means a debtor who has presented under section 54A a
declaration of intention;
'de facto spouse', in relation to a person, means an individual of the
opposite sex to that person who is living with that person as his or her
spouse on a bona fide domestic basis although not legally married to that
person;
'director', in relation to a corporation, includes:

   (a)  any person occupying or acting in the position of director of the
        corporation, by whatever name called and whether or not validly
        appointed to occupy, or duly authorised to act in, the position;

   (b)  any person in accordance with whose directions or instructions the
        directors of the corporation are accustomed to act; and

   (c)  if the corporation has a committee of management, council or other
        governing body:

        (i)    a member of that committee of management, council or other
               governing body;

        (ii)   any person occupying or acting in the position of member of
               that committee of management, council or other governing body,
               by whatever name called and whether or not validly appointed to
               occupy, or duly authorised to act, in the position; and

        (iii)  any person in accordance with whose directions or instructions
               the members of that committee of management, council or other
               governing body are accustomed to act;
'end' means:

   (a)  in relation to a bankruptcy-the discharge of the bankrupt from the
        bankruptcy;

   (b)  in relation to:

        (i)    a deed of assignment, deed of arrangement, or composition,
               under Part X; or

        (ii)   a composition or scheme of arrangement under Division 6 of Part
               IV;
the time when the deed, composition or scheme, as the case may be, ceases to
be in effect; or

   (c)  in relation to an administration under Part XI-the end of the
        administration;
'enforcement process', in relation to a frozen debt, means, in the case of a
judgment debt:

   (a)  process of a court issued to enforce in any manner payment of the
        judgment debt; or

   (b)  without limiting the generality of paragraph (a), process of a court
        for attaching, in order to meet the judgment debt, a debt or other
        money payable or owing, or to become payable or owing, to the declared
        debtor;
'entity' means a natural person, company, partnership or trust;
'examinable affairs', in relation to a person, means:

   (a)  the person's dealings, transactions, property and affairs; and

   (b)  the financial affairs of an associated entity of the person, in so far
        as they are, or appear to be, relevant to the person or to any of his
        or her conduct, dealings, transactions, property and affairs;
'examinable matter' means:

   (a)  in relation to a person who is or has been a trustee of a bankrupt's
        estate-the administration by the person of a bankrupt's estate or,
        without limiting the generality of the foregoing, any act done, or
        omitted to be done, by or on behalf of the person in connection with
        the administration of a bankrupt's estate; or

   (b)  in relation to a person who is or has been the controlling trustee,
        within the meaning of Part X, in relation to a debtor whose property
        has become subject to control under Division 2 of that Part:

        (i)    the performance or exercise by the person; or

        (ii)   without limiting the generality of subparagraph (i), any act
               done, or omitted to be done, by or on behalf of the person in
               connection with the performance or exercise;
of a function, duty or power of the person as the controlling trustee, within
the meaning of that Part, in relation to such a debtor;
'examinable period', in relation to an application under section 139A by the
trustee of a bankrupt's estate, means the period beginning:

   (a)  if, at a time or times during the period beginning 4 years before, and
        ending 2 years before, the commencement of the bankruptcy, the
        bankrupt became unable to pay his or her debts, as they became due,
        from his or her own money-at that time, or at the first of those
        times, as the case may be; or

   (b)  in any other case-2 years before the commencement of the bankruptcy;
and ending on the day on which the application is made;
'examinable person', in relation to a person (in this definition called the
'relevant person'), means:

   (a)  if the relevant person is a debtor and property of the debtor is known
        or suspected to be in the possession of a person-that person;

   (b)  if the relevant person has become a bankrupt and any of the property
        of the bankrupt is known or suspected to be in the possession of a
        person-that person;

   (c)  in any case-a person who is believed to be indebted to the relevant
        person;

   (d)  if a person, including:

        (i)    a person who is an associated entity of the relevant person; or

        (ii)   a person with whom an associated entity of the relevant person
               is or has been associated;
may be able to give information about the relevant person or any of the
relevant person's examinable affairs-that person; or

   (e)  if books (including books of an associated entity of the relevant
        person):

        (i)    are in the possession of a person, including a person of a kind
               referred to in subparagraph (d) (i) or (ii); and

        (ii)   may relate to the relevant person or any of the relevant
               person's examinable affairs;
that person;
'frozen debt' means a debt that:

   (a)  is owed by a declared debtor; and

   (b)  would, if the debtor had become a bankrupt when the declaration of
        intention was accepted under section 54C, be provable in the
        bankruptcy;
but does not include a debt in respect of the debtor's liability under a
maintenance agreement or maintenance order (whenever entered into or made);
'in the possession of' includes in the custody of or under the control of;
'modifications' includes additions, omissions and substitutions;
'net value', in relation to property, means:

   (a)  if the property is unencumbered-the value of the property;

   (b)  if the property is encumbered and the unencumbered value of the
        property exceeds the amount or value of the encumbrances-the amount of
        the excess; or

   (c)  in any other case-a nil amount;
'net worth', in relation to an entity, in relation to a time, means:

   (a)  if the entity is a trust and the total value of the trust property as
        at that time exceeds the total of the amounts of the trustee's
        liabilities as at that time (other than liabilities constituted by the
        rights of persons as beneficiaries under the trust)-the amount of the
        excess;

   (b)  if the entity is not a trust and the total value of the entity's
        assets as at that time exceeds the total of the amounts of the
        entity's liabilities as at that time-the amount of the excess; or

   (c)  in any other case-a nil amount;
'operations', in relation to an entity, means all of the following:

   (a)  the business, trading, transactions and dealings of the entity:

        (i)    whether alone or jointly with another entity or other entities;
               and

        (ii)   whether or not as agent, bailee or trustee;

   (b)  the profits, income and receipts of the entity;

   (c)  the losses, outgoings and expenditure of the entity;
'parent', in relation to a person, means a person of whom the first-mentioned
person is a child;
'personal services', in relation to a bankrupt, means services of a physical,
intellectual or other kind supplied by the bankrupt himself or herself:

   (a)  whether or not in a capacity as employee; and

   (b)  whether or not the supply of the services by the bankrupt discharged
        the obligations of an entity to supply services;
'premises' includes:

   (a)  any land;

   (b)  any structure, building, aircraft, vehicle, vessel or place (whether
        built on or not); and

   (c)  any part of such a structure, building, aircraft, vehicle, vessel or
        place;
'private company', in relation to a particular time, means a company other
than a company that, as at that time:

   (a)  has been admitted to the official list of a securities exchange within
        the meaning of the Securities Industry Act 1980 or a law of a State or
        the Northern Territory corresponding to that Act; and

   (b)  has not been removed from that official list;
'proceeds', in relation to enforcement process in respect of a debt, means:

   (a)  the proceeds of selling property under the enforcement process;

   (b)  money taken under the enforcement process;

   (c)  money received as a result of attachment under the enforcement
        process; or

   (d)  money paid to avoid the taking or sale of property under, or to avoid
        attachment under, the enforcement process;
'professional advice' means financial, business or legal advice given by a
person in the performance of the functions attaching to the person's
professional capacity;
'state of affairs', in relation to an entity, means all of the following:

   (a)  the property and assets of the entity:

        (i)    whether held alone or jointly with another person or other
               persons; and

        (ii)   whether or not held as agent, bailee or trustee;

   (b)  the liabilities of the entity:

        (i)    whether actual or contingent;

        (ii)   whether owed alone or jointly with another person or other
               persons; and

        (iii)  whether or not owed as trustee;
'stay period', in relation to a declaration of intention presented by a
debtor, means the period beginning on the day on which the declaration was
accepted under section 54C and ending when:

   (a)  the period of 7 days beginning on that day ends;

   (b)  a creditor's petition or a debtor's petition is presented against the
        debtor;

   (c)  the debtor signs an authority under section 188; or

   (d)  a sequestration order is made against the debtor;
whichever happens first;"; and

   (h)  by inserting after subsection (1) the following subsections:

"(1A) A reference in this Act to books of an associated entity of a person
does not limit the generality of any other reference in this Act to books.

"(1B) A reference in this Act to an entity includes, in the case of a trust, a
reference to the trustee of the trust.

"(1C) Paragraph (b) of the definition of 'examinable affairs' in subsection
(1) does not limit the generality of a reference in this Act to a person's
conduct, dealings, transactions, property or affairs.".

(2) The definition of "the property of the bankrupt" that subsection (1) of
this section inserts in subsection 5 (1) of the Principal Act applies in
relation to a bankrupt in respect of a bankruptcy whenever the date of the
bankruptcy occurred. 


AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback