Commonwealth Numbered Regulations - Explanatory Statements

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BANKRUPTCY RULES (AMENDMENT) 1996 NO. 252

STATUTORY RULES 1996 No. 252

ISSUED BY THE AUTHORITY OF THE ATTORNEY-GENERAL AND MINISTER FOR JUSTICE

BANKRUPTCY ACT 1966

BANKRUPTCY RULES (AMENDMENT)

Paragraph 315(1)(f) of the Bankruptcy Act 1966 (the Act) provides that the Governor-General may make rules in relation to the fees or other payments to be charged in respect of proceedings under the Act.

Schedule 4 of the Bankruptcy Rules provides for fees to be taken in the office of the Registrar of the Federal Court.

Item 1 of Schedule 4 provides for a fee of $800 for the presentation of a petition under sections 43 or 244 of the Act. Item 9 of Schedule 4 provides for a fee of $800 for an application of the Court in respect of which no other fee is prescribed. Subrule 179(1AAA) provides that if a corporation is liable to pay a fee specified in item 1 or 9 of Schedule 4, the amount of the fee payable is twice the amount specified in the Schedule. Items 1 and 9 are for applications to the Federal Court. These fees, which are provided for in the Bankruptcy Rules (Amendment) [SR 1996 No. 191], commenced on 1 September 1996.

In the Senate, on 9 October 1996, the Government announced that there would be amendments to the fees for an application to the Federal Court.

The purpose of these Rules is to provide for these amendments.

The Rules provide that the fee for the presentation of a petition under section 43 or 244 of the Act is $500 for a person and $1,200 for a corporation. The Rules provide that the fee for an application for which no other fee is prescribed is, with certain exceptions, $500 for a person and $1,200 for a corporation.

The Rules provide that the reduced fees apply from 1 September 1996, effectively overriding the previous fees.

The Rules provide that those people who paid a higher fee under the existing Rules are entitled, upon application, to a refund of the difference between the previous higher fee and the new lower fee.

Details of the Rules are as follows:

Rule 1 - Commencement

Rule 1 provides for these Rules to commence on 1 December 1996.

Rule 2 - Amendment

Rule 2 provides for the Bankruptcy Rules to be amended as set out in these Rules.

Rule 3 - Application

Rule 3 provides for the retrospective reduction of the fees payable for item 1 and 9. Rule 3 provides that the amendments of the Bankruptcy Rules made by rule 4 and subrules 5.2 and 5.3 apply to a petition presented or an application made on or after 1 September 1996.

Rule 4 - Rule 179 (Fees and percentages)

Subrule 179(1AAA) provides that if a corporation is liable to pay a fee prescribed by rule 179, under item 1 or 9 in Schedule 4, the amount of the fee payable is twice the amount of the fee specified in the Schedule. Subrule 179(1AA) provides that "corporation" has the same meaning as in the Corporations Law.

The fee payable by a corporation, under item 1 or 9 in Schedule 4, is no longer twice that specified in the Schedule.

Rule 4 omits subrules 179(1AAA) and 179(1AA).

Rule 5 - Schedule 4 (Fees to be taken in the office of the Registrar)

Subrule 5.1 omits the existing heading to Schedule 4 and substitutes a new heading. The new heading differs from the existing heading in that it includes an interpretation provision. The interpretation provision provides that in this Schedule 'corporation' has the same meaning as in the Corporations Law. This interpretation was previously provided for in subrule 179(1AA), which has been omitted by rule 4.

Subrule 5.2 omits existing item 1 in Schedule 4 and substitutes new item 1. New item 1 provides that the fee for the presentation of a petition under section 43 of 244 of the Act is $1,200 for a corporation and $500 for another person.

Subrule 5.3 omits existing item 9 in Schedule 4 and substitutes new items 9 and 10. New item 9 provides that for an application by a person (other. than a corporation) to the Court for which no other fee is prescribed, except in prescribed circumstances, the fee is $500. New item 10 provides that for an application by a corporation to the Court for which no other fee is prescribed, except an application for substituted service, the fee is $1,200.

Existing note 1 to Schedule 4 notes that subrule 179(1AAA) provides for a fee payable by a corporation in respect of items 1 or 9 to be twice the fee specified in the Schedule. This is not now the case.

The note following new item 10 provides that Note 1 to Schedule 4 should be omitted.

Rule 6 - Transitional provision

As outlined above, it is intended that a person who, prior to the commencement of these Rules on 1 December 1996, paid a higher fee than the fee provided for in these Rules will be entitled to a refund of the difference between the previous higher fee and the lower fee provided for in these Rules.

Subrule 6.1 provides that the rule applies to a person who, before 1 December 1996, paid a fee mentioned in item 1 or 9 in Schedule 4.

Subrule 6.2 provides that a person may apply in writing to a Registrar of the Court for payment of the difference between the fee paid and the fee payable under item 1, 9 or 10 (as the case requires) immediately after the commencement of these Rules.

Subrule 6.3 provides that the Registrar must make the payment as soon as practicable after receiving an application.

Subrule 6.4 defines "Old Rules" to be the Bankruptcy Rules as in force immediately before 1 December 1996.

The Rules commence on 1 December 1996.