Bankruptcy Act - Australia

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If the rules of court prescribe a form for the purposes of this subsection, the petition must be in the form prescribed.

      (2) Except with the leave of the Court, a creditor’s petition shall not be withdrawn after presentation.

      49 Change of petitioners [see Table B]

      Where a creditor’s petition is not prosecuted with due diligence or where for any other reason the Court considers it proper to do so, the Court may permit to be substituted as petitioner or petitioners another creditor or other creditors to whom the debtor is indebted in the amount required by this Act in the case of a petitioning creditor, and the petition may be proceeded with as if the substituted creditor or creditors had been the petitioning creditor.

      50 Taking control of debtor’s property before sequestration

      [see Table B]

      (1) At any time after a bankruptcy notice is issued, or a creditor’s petition is presented, in relation to a debtor, but before the debtor becomes a bankrupt, the Court may:

      (a) direct the Official Trustee or a specified registered trustee to take control of the debtor’s property; and

      (b) make any other orders in relation to the property.

      (1A) The Court may give a direction or make an order only if:

      (a) a creditor has applied for the Court to make a direction; and

      (b) the Court is satisfied that it is in the interests of the creditors to do so; and

      (c) the debtor has not complied with the bankruptcy notice.

      (1B) If the Court directs a trustee to take control of the debtor’s property, the Court must specify when the control is to end.

      (2) Without limiting the generality of subsection (1), the Court may, at any time after giving a direction under subsection (1), summon the debtor, or an examinable person in relation to the debtor, for examination under this section in relation to the debtor.

      (3) A summons to a person under subsection (2) shall require the person to attend:

      (a) at a specified place and at a specified time on a specified day; and

      (b) before the Court, the Registrar or a magistrate, as specified in the summons;

      to be examined on oath under this section about the debtor and the debtor’s examinable affairs.

      (4) A summons to a person under subsection (2) may require the person to produce at the examination books (including books of an associated entity of the debtor) that:

      (a) are in the possession of the first-mentioned person; and

      (b) relate to the debtor or to any of the debtor’s examinable affairs.

      (5) For the purpose of the examination under this section of a person summoned under subsection (2), subsections 81(2) to (17), inclusive, apply, with any modifications prescribed by the regulations, as if:

      (a) a sequestration order had been made against the debtor when the Court gave the direction under subsection (1) of this section;

      (b) the examination were being held under section 81; and

      (c) a reference in those subsections to a creditor were a reference to a person who has a debt that would be provable in the debtor’s bankruptcy if a sequestration order had been made as mentioned in paragraph (a) of this subsection.

      51 Costs of prosecuting creditor’s petition

      Subject to section 109, the prosecution of a creditor’s petition to and including the making of a sequestration order on the petition shall be at the expense of the creditor.

      52 Proceedings and order on creditor’s petition

      (1) At the hearing of a creditor’s petition, the Court shall require proof of:

      (a) the matters stated in the petition (for which purpose the Court may accept the affidavit verifying the petition as sufficient);

      (b) service of the petition; and

      (c) the fact that the debt or debts on which the petitioning creditor relies is or are still owing;

      and, if it is satisfied with the proof of those matters, may make a sequestration order against the estate of the debtor.

      (1A) If the Court makes a sequestration order, the creditor who obtained the order must give a copy of it to the Official Receiver before the end of the period of 2 days beginning on the day the order was made.

      Penalty: 5 penalty units.

      Note: See also section 277B (about infringement notices).

      (1B) Subsection (1A) is an offence of strict liability.

      Note: For strict liability, see section 6.1 of the Criminal Code.

      (2) If the Court is not satisfied with the proof of any of those matters, or is satisfied by the debtor:

      (a) that he or she is able to pay his or her debts; or

      (b) that for other sufficient cause a sequestration order ought not to be made;

      it may dismiss the petition.

      (3) The Court may, if it thinks fit, upon such terms and conditions as it thinks proper, stay all proceedings under a sequestration order for a period not exceeding 21 days.

      (4) A creditor’s petition lapses at the expiration of:

      (a) subject to paragraph (b), the period of 12 months commencing on the date of presentation of the petition; or

      (b) if the Court makes an order under subsection (5) in relation to the petition — the period fixed by the order;

      unless, before the expiration of whichever of those periods is applicable, a sequestration order is made on the petition or the petition is dismissed or withdrawn.

      (5) The Court may, at any time before the expiration of the period of 12 months commencing on the date of presentation of a creditor’s petition, if it considers it just and equitable to do so, upon such terms and conditions as it thinks fit, order that the period at the expiration of which the petition will lapse be such period, being a period exceeding 12 months and not exceeding 24 months, commencing on the date of presentation of the petition as is specified in the order.

      53 Consolidation of proceedings

      (1) Where 2 or more members of a partnership or 2 or more joint debtors have become bankrupts, the Court may consolidate the proceedings upon such terms as it thinks fit.

      (2) Where the Court makes an order under subsection (1), section 110 applies in the administration under this Act of all of the estates to which the order relates.

      (3) Where the Court makes an order under subsection (1) in relation to the estates of 2 or more bankrupts, the Court may, in the order:

      (a) declare a specified date to be, for the purpose of the application of the provisions of Division 3 of Part VI in the administration of the joint estate, the date on which all the petitions relevant to the administration of those estates shall be deemed to have been presented;

      (b) declare a specified date to be, for that purpose, the date of the bankruptcy in respect of each of those estates; and

      (c) declare a specified time to be, for that purpose, the time that is the commencement of the bankruptcy in respect of all those estates;

      and, if the Court does so, those estates shall be administered accordingly.

      54 Bankrupt’s statement of affairs

      (1) Where a sequestration order is made, the person against whose estate it is made shall, within 14 days from the day on which he or she is notified of the bankruptcy:

      (a) make out and file with the Official Receiver a statement of his or her affairs; and

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