Bankruptcy Act - Australia

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in relation to an estate or a personal insolvency agreement in respect of which there are 2 or more joint and several trustees — be read as a reference to all of the trustees or any one or more of the trustees.

      (5) To avoid doubt, a Federal Magistrate is taken to be a Judge of a Court having jurisdiction under this Act.

      (6) For the purposes of this Act, the members of a person’s family are taken to include the following (without limitation):

      (a) a de facto partner of the person;

      (b) someone who is the child of the person, or of whom the person is the child, because of the definition of child in this section;

      (c) anyone else who would be a member of the person’s family if someone mentioned in paragraph (a) or (b) is taken to be a member of the person’s family.

      5A Acting in accordance with a person’s directions or instructions

      For the purposes of this Act, a person shall not be regarded as a person in accordance with whose directions or instructions the directors of a body corporate are accustomed to act merely because the directors act on advice given by the person in the proper performance of the functions attaching to the person’s professional capacity or to the person’s business relationship with the directors or with the body corporate.

      5B Associated entities: companies

      (1) For the purposes of this Act, a company is associated with a person if the person:

      (a) is a company officer of the company or otherwise is concerned, or takes part, in the company’s management; or

      (b) is able to control, or to influence materially, the company’s activities or internal affairs; or

      (c) is a member of the company; or

      (d) is in a position to cast, or to control the casting of, a vote at a general meeting of the company; or

      (e) has power to dispose of, or to exercise control over the disposal of, a share in the company; or

      (f) is financially interested in the company’s success or failure or apparent success or failure; or

      (g) is owed a debt by the company; or

      (h) is employed, or is engaged under a contract for services, by the company; or

      (j) acts as agent for the company in any transaction or dealing; or

      (k) gives professional advice to the company.

      (2) For the purposes of this Act, a company is also associated with a person if the company:

      (a) holds property jointly with the person; or

      (b) is dealing with the person’s property as an agent for the person; or

      (c) is a trustee of a trust under which the person is capable of benefiting; or

      (d) acquires or disposes of property as a result of dealing with the person.

      (3) The circumstances set out in subsections (1) and (2) are the only circumstances in which a company is associated with a person for the purposes of this Act.

      5C Associated entities: natural persons

      (1) For the purposes of this Act, a natural person (in this section called the associate) is associated with another person if the other person:

      (a) holds property jointly with the associate; or

      (b) is a trustee of a trust under which the associate is capable of benefiting; or

      (ba) can benefit under a trust of which the associate is a trustee; or

      (c) is employed, or is engaged under a contract for services, by the associate; or

      (d) acts as agent for the associate in any transaction or dealing; or

      (da) is a principal for whom the associate acts as an agent; or

      (e) is an attorney of the associate under a power of attorney; or

      (f) has appointed the associate as the other person’s attorney under a power of attorney; or

      (g) gives professional advice to the associate; or

      (h) is given professional advice by the associate.

      (2) A natural person (the associate) is also associated with another person if the associate has acquired or disposed of property as a result of dealing with the other person.

      (3) The circumstances set out in subsections (1) and (2) are the only circumstances in which a natural person is associated with another person for the purposes of this Act.

      5D Associated entities: partnerships

      For the purposes of this Act, a partnership is associated with a person if, and only if, the person:

      (a) is a partner in the partnership;

      (b) is able to control, or to influence materially, the partnership’s activities or internal affairs;

      (c) is financially interested in the partnership’s success or failure or apparent success or failure;

      (d) is a creditor of the partnership;

      (e) is employed, or is engaged under a contract for services, by the partnership;

      (f) acts as agent for the partnership in any transaction or dealing; or

      (g) gives professional advice to the partnership.

      5E Associated entities: trusts

      For the purposes of this Act, a trust is associated with a person if, and only if, the person:

      (a) is the settlor, or one of the settlors, of the trust;

      (b) has power under the terms of the trust to appoint or remove a trustee of the trust or to vary, or cause to be varied, any of the terms of the trust;

      (c) is a trustee of the trust;

      (d) is able to control, or to influence materially, the activities of the trustee of the trust;

      (e) if a trustee of the trust is a company — is a company officer of the company or otherwise is concerned, or takes part, in the company’s management;

      (f) is capable of benefiting under the trust;

      (g) is a creditor of the trustee of the trust;

      (h) is employed, or is engaged under a contract for services, by the trustee of the trust;

      (j) acts as agent for the trustee of the trust in any transaction or dealing; or

      (k) gives professional advice to the trustee of the trust.

      5F Controlling an entity in relation to a matter

      (1) Subject to this section, a person shall be taken, for the purposes of this Act, to control an entity at a particular time in relation to a matter if, and only if:

      (a) no act, omission or decision inconsistent with the person’s directions, instructions or wishes was; and

      (b) having regard to all the circumstances, it may reasonably be expected that no such act, omission or decision would have been;

      done or made at that time, in relation to the matter, by or on behalf of the entity.

      (2) A person shall not be taken to control an entity at a particular time in relation to a matter merely because:

      (a) no act, omission or decision inconsistent with advice given by the person in the proper performance of the functions attaching to his or her professional capacity, or to his or her business relationship with the entity, was; and

      (b) having regard to all the circumstances, it may reasonably be expected that no such act, omission or decision would have been;

      done or made at that time, in relation to that matter, by or on behalf of the entity.

      (3)

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