Australian Bankruptcy Law and Practice: paper

By Paul McQuade, Michael Gronow

Looseleaf

$10,645.67* RRP

Date: 10/09/2012

Code: 30135605

Lawbook Co., AUSTRALIA

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Australian Bankruptcy Law & Practice update 151 July 2012

UPDATED ANNOTATIONS

The updated annotations reference new case law and legislative amendments and are to ss 5(1), 27(1), 40(1), 43(1), 52(2), 52(3), 58(1), 58(3), 59A, 60(2), 60(4), 62 and 63B of the Bankruptcy Act 1966. Highlights include:

[27.1.10] Section 27(1): “jurisdiction … exclusive”
The case Barwick v Goodridge (2011) 255 FLR 245; [2011] NSWSC 1233 has been added to the list of cases of non-exclusive jurisdiction.

[40.1.335] Section 40(1)(g): Compliance with bankruptcy notice
Discussion on the payment into court of the judgment debt in light of Lewis v Lamru Pty Ltd [2011] FCA 1177.

The new case of Napiat Pty Ltd v Salfinger (No 7) (2011) 9 ABC(NS) 485; [2011] FCA 1322 has been cited in several paragraphs including [43.1.15], [43.1.20] and [43.1.25].

[52.2.30] Section 52(2): “other sufficient cause” – improper motive or abuse of process
This paragraph has been updated with the decision in Napiat Pty Ltd v Salfinger (No 7) (2011) 9 ABC(NS) 485; [2011] FCA 1322, where Foster J considered that is was not an abuse of process for a creditor to seek to register and enforce in Israel a judgment it had obtained while simultaneously pursuing bankruptcy proceedings in Australia.

[52.2.50] Section 52(2): “other sufficient cause” – other cases
Bank of Western Australia v Henderson (No 3) (2011) 253 FLR 458; [2011] FMCA 840 has been added to the list of examples of cases where “other sufficient cause” was held not to exist.

[52.3.10] Section 52(3): Stay of proceedings – appeal pending and
[52.3.15] Section 52(3): Discretion to grant stay
New cases Nolten v Groeneveld Australia Pty Ltd [2011] FCA 1494 and Bourke v Westpac Banking Corporation [2012] FCA 6 cited.

[58.1.20] Section 58(1): Interest in deceased estate – as beneficiary under will or otherwise
This paragraph has been restructured with commentary found under the following subheadings:
• Beneficiary under will;
• Examples of rights accrued prior to commencement of bankruptcy;
• Rights accruing after commencement of bankruptcy; and
• Family provision claims.
Thomas v Pickering [2011] NSWSC 572 is a new case noted in this paragraph.

[58.1.37] Section 58(1)(b): After-acquired income of the bankrupt
The decision in Barwick v Goodridge (2011) 255 FLR 245; [2011] NSWSC 1233 is discussed with respect to the concepts “after-acquired income”, “implied exclusion” and “Rights”.

[58.3.10] Section 58(3): “in respect of a provable debt”
The commentary in this paragraph has been restructured under the following subheadings:
• Contempt proceedings;
• Declaration proceedings;
• Other examples of claims held to be “in respect of” provable debts; and
• Other examples of claims for which leave not required under s 58(3).
Wakeling v Wade (No 2) [2011] FCA 1452 is a new case discussed in this paragraph.

[58.3.43] Section 58(3)(b): bankrupt’s right to appear in legal proceedings
New case Kowalski v Public Trustee [2011] QSC 323 discussed.

[58.3.50] Section 58(3)(b): Leave to proceed – when granted
7Steel Building Solutions Pty Ltd v Wright [2011] FCA 328 and Starr v Starr [2011] FCA 746 is discussed with respect to whether leave under s 58(3) is required.

[59A.0.30] Pt VIII of Family Law Act
The relationship between Pt VIII of the Family Law Act 1975 and ss 59A and 58 of the Bankruptcy Act 1966 is discussed. Oliver v Malanos (2011) 199 FCR 136; [2011] FCA 1354 cited.

[60.2.05] Section 60(2): Kinds of proceeding affected
New case Duckworth v Water Corporation [2012] WASC 30 cited.

[60.2.10] Section 60(2): What constitutes “election … to prosecute or discontinue”
Savage v Australian Unity Funds Management Ltd [2011] NSWCA 270 cited.

[60.4.07] Section 60(4): Examples of actions preserved and not preserved to the bankrupt under subsection (4)
Moss v Eaglestone (2011) 257 FLR 96; [2011] NSWCA 404, a case involving a claim in negligence, is discussed in detail.

[62.0.15] Action by or against joint contractor
New commentary on the cases Euphoric Pty Ltd v Magar [2011] NSWSC 469 and Ellis v Fisher [2011] VSC 621.

[63B.0.05] General note
Deputy Commissioner of Taxation v Prentice (Trustee) [2011] FCA 1535 cited.

DIGEST OF JUDGMENTS

[C58.1.50] Barwick v Goodridge (2011) 255 FLR 245; [2011] NSWSC 1233 has been added to the Digest of Judgments.

LEGISLATIVE AMENDMENTS

Family Law Act 1975
The extracts of the Family Law Act 1975 have been amended by the Crimes Legislation Amendment Act (No 2) 2011 (No 174, 2011) commencing 5 June 2012, and the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (No 189, 2011), commencing 7 June 2012. The amendments are to s 4 (definitions).

Family Law Rules 2004
The extracts of the Family Law Rules 2004 have been amended by the Family Law Amendment Rules 2012 (No 1) (SLI No 95, 2012). The amendment commenced on 7 June 2012 and affects the Dictionary in Sch 1.

ITSA FORMS

The following ITSA Forms have been updated:
• [RG1A.25] Bankruptcy Essential Forms and Information;
• [RG3.0] Form 3: Statement of Affairs;
• [RG6.0] Form 6: Debtor’s Petition;
• [RG7.0] Form 7: Statement of Claim and Proxy;
• [RG14.0] Form 14: Request to Advertise Meeting of Creditors;
• [RG17.0] Debt Agreement Proposal and Explanatory Statement;
• [RG27.0] Form 27: Application for the Issue of a 77CA Notice; and
• [RG65.0] ITSA Credit Application.

FEES, CHARGES & OTHER AMOUNTS

Fees in the Federal Court and Federal Magistrates Court increased on 1 July 2012. See [FC10.0]–[FC50.20].

A feature in the online service is a Breaking News section which links to documents or articles of interest to bankruptcy practitioners : current news including topical discussion papers, up-to-date information on Bills before Parliament, important ITSA information and media releases.

Features

The authors Michael Gronow (Victorian Bar) and Paul McQuade (Queensland Bar) both specialise in commercial law
The level of detail on the legislation, case law and practical aspects of bankruptcy work makes this a unique service. Legislation in the service includes the full text of the Bankruptcy Act 1966 (Cth), rules, regulations, Federal Magistrates Act 1999 (Cth) and extracts of the Federal Magistrates Court Rules. Changes to the legislation is updated online overnight.
Extensive annotations immediately follow each section of the legislation identifying each Part of the Bankruptcy Act
Two flowcharts provide diagrams of the procedure to be followed in relation to meetings of creditors. Each Schedule of the Bankruptcy Regulations and the Forms are easily identified whether online or paper.
Over time we have expanded the coverage by introducing Recent Developments, Standards for Trustees, Registrars, ITSA Trustees, Digest of Judgments, Australian Bankruptcy Cases (New Series), Explanatory Memoranda, Forms, Registered, Recommended Reading and Statutes Case Annotations.
The well- established case report series, the Australian Bankruptcy Cases (New Series), which was introduced in 2003, publishes quarterly. This report series is also available as an annual bound volume (for paper subscribers only).
Online has the added benefit of hyperlinking to the full judgments of reported and unreported bankruptcy cases.