Commonwealth Numbered Acts

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

BANKRUPTCY AMENDMENT ACT 1987 No. 119 of 1987 - SECT 43

Property divisible among creditors
43. (1) Section 116 of the Principal Act is amended:

   (a)  by omitting from paragraph (1) (a) "and" (last occurring); and

   (b)  by inserting after paragraph (1) (b) the following paragraphs:

"; (c) property that is vested in the trustee of the bankrupt's estate by or
under an order under section 139D; and

   (d)  money that is paid to the trustee of the bankrupt's estate under an
        order under section 139E;".

(2) The amendments made by subsection (1) apply in relation to a bankrupt in
respect of a bankruptcy whenever the date of the bankruptcy occurred.

(3) Section 116 of the Principal Act is amended:

   (a)  by adding at the end of paragraph (2) (b) "at any time before the
        trustee realises that other household property";

   (b)  by omitting paragraph (2) (c) and substituting the following
        paragraphs:

"(c) ordinary tools of trade, plant and equipment, professional instruments,
and reference books, of the bankrupt whose aggregate value does not exceed the
prescribed amount, and such other property, if any, being such tools, plant
and equipment, professional instruments or reference books, as:

        (i)    the creditors determine by resolution; or

        (ii)   the Court, on application by the bankrupt, determines;
at any time before the trustee realises that other property;

   (ca) property used by the bankrupt primarily as a means of transport, being
        property whose aggregate value does not exceed the prescribed amount
        or, if before the trustee realises the last-mentioned property the
        creditors determine by resolution a greater amount in relation to that
        property, that greater amount;";

   (c)  by omitting from paragraph (f) "in the aggregate $1,200 or such
        greater amount as is prescribed for the purposes of this paragraph"
        and substituting ", in the aggregate, the prescribed amount";

   (d)  by omitting from paragraph (fa) "$1,200 per annum or such greater
        amount per annum as prescribed for the purposes of this paragraph" and
        substituting "the prescribed amount per annum";

   (e)  by omitting paragraph (o) and substituting the following paragraph:

"(p) amounts paid to the bankrupt under subsection (2C) or (4)."; and

   (f)  by omitting subsections (3) and (4) and substituting the following
        subsections:

"(2A) A reference in a paragraph of subsection (2) to the prescribed amount is
a reference to:

   (a)  in the case of paragraph (2) (c)-$500;

   (b)  in the case of paragraph (2) (ca)-$2,500; or

   (c)  in the case of paragraph (2) (f) or (fa)-$1,200;
or, if at the beginning of the date of the bankruptcy a greater amount is
prescribed for the purposes of that paragraph, to that greater amount.

"(2B) Where, because of a determination by the creditors, or by the Court,
under paragraph (2) (b), (c) or (ca), property that is vested in the trustee
ceases at a particular time to be property divisible among the creditors,
then, immediately after that time:

   (a)  the property revests in the bankrupt;

   (b)  the trustee is discharged from the trustee's liabilities in respect of
        the property; and

   (c)  the bankrupt becomes subject to those liabilities.

"(2C) Where:

   (a)  property used by the bankrupt primarily as a means of transport is
        vested in the trustee; and

   (b)  as at the time when the trustee realises that property:

        (i)    no other property has remained vested in the bankrupt by virtue
               of paragraph (2) (ca); and

        (ii)   no other property has, because of a determination by the
               creditors under paragraph (2) (ca), revested in the bankrupt by
               virtue of subsection (2B);
the trustee shall pay to the bankrupt so much of the proceeds of realising
that property as, when added to the aggregate of the amounts (if any) that the
trustee has previously paid to the bankrupt under this subsection, does not
exceed the prescribed amount within the meaning of paragraph (2) (ca).

"(2D) In subsections (3) and (4):
'exempt loan money', in relation to a particular time, means so much of the
principal sum of a loan to the bankrupt, or to the bankrupt and another person
or other persons, as was repaid, before that time, out of exempt money;
'exempt money' means money of any of the following kinds:

   (a)  proceeds of a kind referred to in paragraph (2) (d) or (e);

   (b)  damages or compensation of a kind referred to in paragraph (2) (g);

   (c)  amounts of a kind referred to in paragraph (2) (k), (m) or (ma);
'outlay', in relation to property, in relation to a particular time, means all
of the following:

   (a)  the money paid for the purchase, or used in the acquisition, of the
        property;

   (b)  the money paid before that time in respect of the extensions,
        alterations and improvements, if any, of the property constructed or
        made since that purchase or acquisition;
'protected money', in relation to a particular time, means:

   (a)  exempt money; or

   (b)  exempt loan money in relation to that time.

"(3) Where, as at the time when the bankrupt becomes a bankrupt, the whole, or
substantially the whole, of the money paid for the purchase, or used in the
acquisition, of particular property is protected money, paragraph (2) (n)
applies to the property.

"(4) Where, as at the time when the trustee realises particular property to
which paragraph (2) (n) does not apply, the outlay in relation to the property
is in part protected money and in part other money, the trustee shall pay to
the bankrupt so much of the proceeds of realising the property as can fairly
be attributed to that protected money.".

(4) The amendments made by subsection (3) apply as provided in subsection 106
(1). 


AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback