Commonwealth Consolidated Acts

[Index] [Table] [Search] [Search this Act] [Notes] [Noteup] [Previous] [Next] [Download] [Help]


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of those periods is applicable, a sequestration order is made on the petition or the petition is dismissed or withdrawn.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

AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback