Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
 Download Full Day's HansardDownload Full Day's Hansard    View Or Save XMLView/Save XML

Previous Fragment    Next Fragment
Wednesday, 23 March 1966


The TEMPORARY CHAIRMAN

There being no objection, leave is granted.


Mr SNEDDEN - I move-

1.   In clause 39, omit sub-clause (1.), insert the following sub-clauses: - "(1.) Notwithstanding anything contained in any other Act, but subject to the next succeeding sub-section, an appeal does not lie to the High Court from a judgment, order or sentence of the Court given made or pronounced under this Act except by leave of the Court or of the High Court. " (1a.) An appeal lies to the High Court from an order of the Court being a sequestration order or, on a question of law, from an order of the Court convicting a person of an offence against this Act.".

2.   In clause 40, sub-clause (1.), omit paragraph (e), insert the following paragraph: - " (e) if, at a meeting of any of his creditors -

(i)   he consents to present a debtor's petition under this Act and does not, within seven days from the dale on which he so consented, present the petition; or

(ii)   he consents to sign an authority under section 188 of this Act and does not, within seven days from the date on which he so consented, sign such an authority and inform the chairman of the meeting, in writing, of the name of the person in whose favour the authority has been signed; ".

3.   Omit clause 56, insert the following clause: - "56.-(1) Subject to this section, the provisions of the last preceding section apply in relation to a petition against a partnership. " (2.) A debtor's petition againsta partnership-

(a)   may be presented to the Registrar by a majority of those members of the partnership who are resident in Australia at the time of the presentation of the petition; and

(b)   shall be accompanied by -

(i)   a statement of affairs of each member of the partnership by whom the petition is presented; and

(ii)   a statement of the partnership affairs, verified by affidavit. " (3.) Where a debtor's petition is presented against a partnership by partners not comprising all the members of the partnership, the Registrar shall not accept the petition or the statements of affairs accompanying it but shall refer them to the Court. " (4.) Upon such a reference, the Court may order that the petition and the statements of affairs be accepted by the Registrar or may dismiss the petition. " (5.) In the application of the last preceding section in relation to a debtor's petition against a partnership -

(a)   the references in sub-sections (2.) and (3.') to the statement of affairs shall be read as references to the statements of affairs;

(b)   the reference in sub-section (3.) to the debtor shall be read as a reference to each of the members of the partnership; and

(c)   the reference in sub-section (4.) to the statement of affairs shall be read as a reference to any of the statements of affairs. " (6.) Where a debtor's petition presented against a partnership is accepted by the Registrar in pursuance of an order of the Court under sub-section (4.) of this section, each partner resident in Australia, not being a partner by whom the petition was presented, shall, within fourteen days after the date on which the petition is accepted by the Registrar, make out and file in the office of the Registrar a statement of his affairs in accordance with the prescribed form and verified by affidavit. " (7.) If a person required by the last preceding sub-section to make out and file a statement of his affairs fails to file that statement in accordance with that sub-section he is guilty of contempt of court.".

4.   In clause 58 sub-clause (2.), omit " Trustee ", insert "Receiver".

Regarding the amendment to clause 39, as the Bill stands, an appeal as of right from a court exercising bankruptcy jurisdiction to the High Court may only be made against a sequestration order.In all other cases, appeal is by leave only. Under the existing Act, an appeal as of right lies to the High Court in all cases from an order of a court exercising bankruptcy jurisdiction. The amendment would provide for an appeal as of right to the High Court from a court exercising bankruptcy jurisdiction where the appeal is against: (a) a sequestration order, or (b) a conviction, but on a question of law only.

The amendment to clause 40 has resulted from a proposal put forward by the honorable member for Moreton and to which I referred earlier. It is a modification of his proposal. He suggested that a debtor should commit an act of bankruptcy if he gave an undertaking to any of his creditors to sign an authority to bring his affairs under Part X of the Bill, that is, to place his affairs in the hands of a trustee with a view to effecting some arrangement with his creditors outside bankruptcy. On examining the matter, and having regard to the views of the members of the Bankruptcy Law Review Committee whose advice I sought on the matter, it appeared to me that paragraph (e) of sub-clause (1.) of clause 40 should be amended to provide that it would be an act of bankruptcy if a debtor, at a meeting of any of his creditors, consents to sign an authority under clause 188 and fails to do so within seven days. Such an amendment would bring paragraph (e) into line with paragraph (f). Paragraph (e) relates to what a debtor consents to do at a meeting of his creditors; paragraph (f) to what a debtor is requested by a meeting of his creditors to do.

The amendment relating to clause 56 substitutes a new clause 56, providing for the presentation of a debtor's petition against a partnership. It has been found that the clause as it stands in the Bill is defective; it does not make adequate provision for the lodgment of a statement of the partnership affairs as well as a statement of the separate affairs of each partner who joined in the petition. The amendment proposed would cure this defect.

The purpose of the amendment to clause 58 is to correct a drafting error in the Bill, which refers to 'The Official Trustee in Bankruptcy ' instead of to ' The Official Receiver in Bankruptcy'.







Suggest corrections