Bankruptcy Act - Australia

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a period of more than 6 years has elapsed since the judgment was given or the order was made; or

      (ii) the operation of the judgment or order is suspended under section 37.

      (5) A bankruptcy notice is not invalidated by reason only that the sum specified in the notice as the amount due to the creditor exceeds the amount in fact due, unless the debtor, within the time allowed for payment, gives notice to the creditor that he or she disputes the validity of the notice on the ground of the misstatement.

      (6) Where the amount specified in a bankruptcy notice exceeds the amount in fact due and the debtor does not give notice to the creditor in accordance with subsection (5), he or she shall be deemed to have complied with the notice if, within the time allowed for payment, he or she takes such action as would have constituted compliance with the notice if the amount due had been correctly specified in it.

      (6A) Where, before the expiration of the time fixed for compliance with the requirements of a bankruptcy notice:

      (a) proceedings to set aside a judgment or order in respect of which the bankruptcy notice was issued have been instituted by the debtor; or

      (b) an application has been made to the Court to set aside the bankruptcy notice;

      the Court may, subject to subsection (6C), extend the time for compliance with the bankruptcy notice.

      (6C) Where:

      (a) a debtor applies to the Court for an extension of the time for complying with a bankruptcy notice on the ground that proceedings to set aside a judgment or order in respect of which the bankruptcy notice was issued have been instituted by the debtor; and

      (b) the Court is of the opinion that the proceedings to set aside the judgment or order:

      (i) have not been instituted bona fide; or

      (ii) are not being prosecuted with due diligence;

      the Court shall not extend the time for compliance with the bankruptcy notice.

      (7) Where, before the expiration of the time fixed for compliance with the requirements of a bankruptcy notice, the debtor has applied to the Court for an order setting aside the bankruptcy notice on the ground that the debtor has such a counter-claim, set-off or cross demand as is referred to in paragraph 40(1) (g), and the Court has not, before the expiration of that time, determined whether it is satisfied that the debtor has such a counter-claim, set-off or cross demand, that time shall be deemed to have been extended, immediately before its expiration, until and including the day on which the Court determines whether it is so satisfied.

      42 Payment etc. of debt to Commonwealth or State after service of bankruptcy notice

      (1) Where a bankruptcy notice under this Act is served on a debtor by the Commonwealth or a State, it is a sufficient compliance with the notice if, within the time allowed by the notice, the debtor pays the amount required to be paid by the notice to, or secures it or compounds it to the satisfaction of:

      (a) the Secretary of the Attorney-General’s Department, or the Crown Solicitor of the State, as the case may be; or

      (b) if an agent of the Commonwealth, or of the State, as the case may be, is specified in the notice for the purpose, the agent so specified.

      (2) A statement that the debtor may comply with the notice in the manner referred to in subsection (1) may be included in a bankruptcy notice issued on the application of the Commonwealth or a State.

      Division 2 Creditors’ petitions

      43 Jurisdiction to make sequestration orders

      (1) Subject to this Act, where:

      (a) a debtor has committed an act of bankruptcy; and

      (b) at the time when the act of bankruptcy was committed, the debtor:

      (i) was personally present or ordinarily resident in Australia;

      (ii) had a dwelling-house or place of business in Australia;

      (iii) was carrying on business in Australia, either personally or by means of an agent or manager; or

      (iv) was a member of a firm or partnership carrying on business in Australia by means of a partner or partners or of an agent or manager;

      the Court may, on a petition presented by a creditor, make a sequestration order against the estate of the debtor.

      (2) Upon the making of a sequestration order against the estate of a debtor, the debtor becomes a bankrupt, and continues to be a bankrupt until:

      (a) he or she is discharged by force of subsection 149(1); or

      (b) his or her bankruptcy is annulled by force of subsection 74(5) or 153A(1) or under section 153B.

      44 Conditions on which creditor may petition

      (1) A creditor’s petition shall not be presented against a debtor unless:

      (a) there is owing by the debtor to the petitioning creditor a debt that amounts to $5,000 or 2 or more debts that amount in the aggregate to $5,000, or, where 2 or more creditors join in the petition, there is owing by the debtor to the several petitioning creditors debts that amount in the aggregate to $5,000;

      (b) that debt, or each of those debts, as the case may be:

      (i) is a liquidated sum due at law or in equity or partly at law and partly in equity; and

      (ii) is payable either immediately or at a certain future time; and

      (c) the act of bankruptcy on which the petition is founded was committed within 6 months before the presentation of the petition.

      (2) Subject to subsection (3), a secured creditor shall, for the purposes of paragraph (1) (a), be deemed to be a creditor only to the extent, if any, by which the amount of the debt owing to him or her exceeds the value of his or her security.

      (3) A secured creditor may present, or join in presenting, a creditor’s petition as if he or she were an unsecured creditor if he or she includes in the petition a statement that he or she is willing to surrender his or her security for the benefit of creditors generally in the event of a sequestration order being made against the debtor.

      (4) Where a petitioning creditor is a secured creditor, he or she shall set out in the petition particulars of his or her security.

      (5) Where a secured creditor has presented, or joined in presenting, a creditor’s petition as if he or she were an unsecured creditor, he or she shall, upon request in writing by the trustee within 3 months after the making of a sequestration order, surrender his or her security to the trustee for the benefit of the creditors generally.

      (6) A secured creditor to whom subsection (5) applies who fails to surrender his or her security when requested to do so by the trustee in accordance with that subsection is guilty of contempt of court.

      45 Creditor’s petition against partnership

      (1) A creditor of a partnership may present a petition against the partnership if he or she is entitled to present a petition against any one of the members of the partnership in respect of a partnership debt.

      (2) A creditor who is entitled to present a petition against a partnership may present a petition against any of the members of the partnership without including the others.

      46 Petition against 2 or more joint debtors

      (1) A creditor’s petition may be presented against 2 or more joint debtors, whether partners or not.

      (2) Where there are 2 or more respondents to a creditor’s petition, the Court may make a sequestration order against one or more of them and dismiss the petition in so far as it relates to the other or others.

      47 Requirements as to creditor’s petition

      (1) A creditor’s petition must be verified by an affidavit of a person who knows the relevant

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