5 Jurisdiction and powers of Court

• (1) Every Judge may exercise, either in Chambers or in open Court, all the powers and jurisdiction given to the Court under this Act:

  Provided that the public examination of a bankrupt and an application for an order of discharge or annulment shall be heard and disposed of in open Court.

  (2) In considering any transaction, the Court shall be entitled to look at the real nature of the transaction, notwithstanding that the transaction is formally of another character or is described by the parties thereto as being of another character.

  Compare: 1908 No 12 s 7

6 Powers of Registrars and District Court Judges

• (1) The Registrar or any District Court Judge, during any vacation, or during the illness of a Judge, or while there is no Judge at the place where the office of the Court is situated, shall have all the powers and jurisdiction of the Court under this Act:

  Provided that a Registrar or District Court Judge shall not have power by reason only of this section—

  • (a) To grant an order of discharge or annulment:

  • (b) To commit for contempt of Court:

  • (c) To exercise any of the jurisdiction conferred upon the Court by Part 13 of this Act:

  • (d) To conduct any public examination under section 69 of this Act.

  (2) Where any application is made to the Registrar or District Court Judge, he may, if in doubt as to the proper order to be made, refer the application to a Judge at the next convenient opportunity, and the Judge may hear and determine the application.

  (3) Any decision made by a Registrar or District Court Judge may be varied or discharged by a Judge, and the provisions of section 8 of this Act shall apply to any decision of a Judge made under this subsection.

  (4) No appeal shall lie direct to the Court of Appeal from any decision of a Registrar or District Court Judge.

  Compare: 1908 No 12 s 12

  The words “District Court Judge” were substituted for the word “Magistrate”, as from 1 April 1980, pursuant to section 18(2) District Courts Amendment Act 1979 (1979 No 125).

7 Questions of fact may be tried before jury

• Where any question of fact arises before the Court in any proceedings under this Act, the Court may, if it thinks fit, direct the truth thereof to be determined by the verdict of a jury.

  Compare: 1908 No 12 s 14

8 Rehearings and appeals

• (1) The High Court may review, rescind, or vary any decision of that Court or any Judge thereof under this Act.

  (2) Except as provided in subsection (4) of section 6 of this Act, an appeal shall lie to the Court of Appeal, by any person aggrieved, from any decision of the High Court or any Judge thereof under this Act.

  Compare: 1908 No 12 ss 9, 16; UK Act s 108

  The words “High Court” were substituted for the words “Supreme Court”, as from 1 April 1980, pursuant to section 12 Judicature Amendment Act 1979 (1979 No 124).

9 Effect of appeal

• (1) Subject to the provisions of this section, a notice of appeal shall not stay proceedings under the decision appealed from unless the High Court or the Court of Appeal so orders.

  (2) Where any person has been adjudged a bankrupt and an appeal is filed against the order of adjudication, the bankrupt, or any other interested person, may apply to the High Court or the Court of Appeal for an order that the adjudication be suspended until the disposal of the appeal.

  (3) If the High Court or the Court of Appeal grants an application under subsection (2) of this section, it may impose such conditions as it thinks fit as to any matter, thing, act, or decision which was made or done by any person, or which ought to have been made or done by any person, between the adjudication and the making of the order suspending the adjudication.

  (4) If an appeal is not allowed in any case where the order has been suspended, the High Court or Court of Appeal may at any time make such order as it thinks fit as to any matter, thing, act, or decision which was made or done by any person, or which ought to have been made or done, during the period between the adjudication and the dismissal of the appeal.

  (5) In any case where the order has not been suspended and the appeal is allowed, the High Court or Court of Appeal may at any time make such order as it thinks fit as to any matter, thing, act, or decision which was made or done by any person, or which ought to have been made or done, during the period between the adjudication and the determination of the appeal.

  The words “High Court” were substituted for the words “Supreme Court”, as from 1 April 1980, pursuant to section 12 Judicature Amendment Act 1979 (1979 No 124).

10 Court may extend time

• Where by this Act, or by the rules, or by any regulations made under this Act, the time for doing any act or thing is limited, the Court may extend the time, either before or after the expiration thereof, upon such terms (if any) as it thinks fit.

  Compare: 1908 No 12 s 18(2)

11 Proceedings not annulled by defects

• Proceedings under this Act shall not be annulled or set aside by reason of any defect, misnomer, or inaccurate description, or of the omission, of anything required to be done in or concerning any such proceedings in any case where no person is injuriously affected thereby; and any Court having jurisdiction may, in any case where any such error or omission is made, direct the same to be rectified, and may order the proceedings to be continued upon such terms as it thinks best in the interests of all concerned.

  Compare: 1908 No 12 s 167

12 Solicitors' costs

• Any money paid, either before or after adjudication, by a bankrupt to his solicitor for costs in procuring the order of adjudication, except for costs and expenses as prescribed, shall be recoverable by the Assignee.

  Compare: 1908 No 12 s 174(4)

13 Power to make rules

• (1) Rules may from time to time be made in the manner prescribed by the Judicature Act 1908 relating to the procedure of the High Court under this Act and to appeals to the Court of Appeal under this Act, and to give effect to this Act.

  (2) Without limiting the general power conferred by subsection (1) of this section, it is hereby declared that rules may be made under this section as to all or any of the following matters:

  • (a) The manner in which proceedings under this Act may be commenced, and transferred from one registry of the Court to another:

  • (b) Where proceedings under this Act may be commenced:

  • (c) The forms to be used in any proceedings under this Act:

  • (d) The service of documents filed or issued in any proceedings under this Act:

  • (e) The amendment of defects and errors in any proceedings under this Act:

  • (f) The mode in which evidence may be given in any proceedings under this Act:

  • (g) The attestation and verification of documents for use in proceedings under this Act:

  • (h) The proof of the identity of persons who are parties to or involved in proceedings under this Act:

  • (i) The summoning of witnesses and the discovery of documents in proceedings under this Act:

  • (j) The appearance of creditors or other persons in proceedings under this Act, and the procedure in case of the absence of any creditor or other person:

  • (k) The notices to be given in connection with any proceedings under this Act, and by and to whom the same shall be given; and the manner of advertising under this Act:

  • (l) The consolidation of proceedings under this Act; and the substitution of parties to proceedings under this Act:

  • (m) Authorising the continuation of proceedings under this Act after the death of the debtor to whom they relate:

  • (n) Authorising proceedings under this Act to be commenced against one or more partners without including others; and providing for the disclosure of the names of other partners:

  • (o) The scale of costs to be allowed to solicitors and others in respect of proceedings under this Act:

  • (p) The granting of costs, and the cases in which security for costs must be given:

  • (q) The execution of processes and the enforcement of orders under this Act:

  • (r) The time within which and the manner in which appeals to the Court of Appeal may be brought:

  • (s) Such matters as are contemplated by or necessary for giving full effect to the provisions of this Act and for the due administration thereof.

  (3) Provision may be made by any such rules for adopting in whole or in part the practice and procedure of the High Court, whether prescribed by any Act or by rules, for all or any of the purposes thereof.

  (4) Nothing in this section shall authorise the making of rules for the purposes of Part 16 of this Act.

  Compare: 1908 No 12 ss 17, 18, 19, 27, 28, 29, 33, 36, 37, 38, 45, 46, 48, 49, and 174; 1952 No 56 s 78

  The words “High Court” were substituted for the words “Supreme Court”, as from 1 April 1980, pursuant to section 12 Judicature Amendment Act 1979 (1979 No 124).

14 Regulations

• The Governor-General may from time to time, by Order in Council, make regulations for all or any of the following purposes:

  • (a) [Repealed]

  • (b) Prescribing the times at which and the manner in which meetings of creditors may be held, and the right to vote thereat:

  • (c) Prescribing the times within which and the manner in which debts and claims of creditors may be made and proved; and the allowance or disallowance of any such debt or claim:

  • (d) Providing for the public examination of bankrupts:

  • (e) Prescribing the expenses which may be paid to a bankrupt, or any other person, who is required to attend any examination by the Assignee:

  • (f) Prescribing the steps to be taken by an undischarged bankrupt who seeks the consent of the Assignee to leaving New Zealand and the circumstances in which and the conditions on which any such consent may be granted:

  • (g) Prescribing the accounts to be kept by the Assignee, the audit of those accounts, and the fees payable in respect of such audit:

  • (h) Prescribing the manner of advertising under this Act:

  • (i) Providing for the appointment, retirement, removal, discharge, and control of trustees under Part 15 of this Act, and for the accounts to be kept by them, and for the audit of those accounts:

  • (j) Prescribing the scale of fees of the High Court and the Court of Appeal in respect of proceedings under this Act:

  • (k) Providing for such matters as are contemplated by or necessary for giving full effect to the provisions of this Act and for the due administration thereof.

  Paragraph (a) was repealed, as from 1 July 1994, by section 2 Insolvency Amendment Act 1994 (1994 No 40).

  Paragraph (g) was substituted, as from 11 June 1985, by section 3 Insolvency Amendment Act 1985 (1985 No 87). See also SR 1970/260.

  The words “High Court” were substituted for the words “Supreme Court”, as from 1 April 1980, pursuant to section 12 Judicature Amendment Act 1979 (1979 No 124).

15 Appointment of Official Assignee for New Zealand, etc

• (1) There shall be appointed from time to time under the State Sector Act 1988—

  • (a) A suitable person to be the Official Assignee for New Zealand under this Act:

  • (b) A suitable person to be the Deputy Official Assignee for New Zealand under this Act:

  • (c) Such other suitable persons as may be required to be Official Assignees under this Act.

  (2) There shall be appointed from time to time under the State Sector Act 1988 such suitable persons as may be required to be Deputy Assignees to assist in the administration of estates.

  (3) Assignees and Deputy Assignees shall be officers of the Court.

  (4) The Deputy Official Assignee for New Zealand shall discharge his duties and exercise his powers subject to the control and direction of the Official Assignee for New Zealand.

  (5) Every Assignee appointed under subsection (1)(c) of this section, and every Deputy Assignee appointed under subsection (2) of this section, shall discharge his duties and exercise his powers subject to the control and direction of the Official Assignee for New Zealand and the Deputy Official Assignee for New Zealand.

  (6) Nothing in this section shall affect sections 18(2) and 29 of this Act.

  Subsection (1) was substituted, as from 10 December 1976, by section 2(1) Insolvency Amendment Act 1976 (1976 No 94).

  Subsections (4) and (5) were inserted, as from 10 December 1976, by section 2(2) Insolvency Amendment Act 1976 (1976 No 94).

  Section 15 was substituted, as from 11 June 1985, by section 4(1) Insolvency Amendment Act 1985 (1985 No 87).

  The references to the State Sector Act 1988, in subsection (1) and (2), were substituted, as from 1 April 1988, for references to the State Services Act 1962 pursuant to section 88(2) State Sector Act 1988 (1988 No 20).

16 Assignee may act on behalf of another Assignee

• Any Assignee or Deputy Assignee may act on behalf of or in the place of any other Assignee or Deputy Assignee, and while so acting shall have all the authority and powers of the Assignee or Deputy Assignee for whom or in the place of whom he acts.

17 Office and name of Assignee

• (1) Every Assignee may sue and be sued in the name of “The Official Assignee in Bankruptcy of the property of (Inserting the name of the bankrupt)”, and in that name may do all acts necessary or expedient to be done in the execution of his office.

  (2) Every Assignee or Deputy Assignee may administer oaths and take statutory declarations, and may appear in Court and examine the bankrupt in any proceedings.

  (3) Every Assignee shall have a seal of office, which shall be kept and used by him, and shall be applicable to all estates of which he has charge.

  (4) Every Assignee may execute all documents by signing his private name over the official name, and it shall not be necessary to affix a seal to any document, but nothing in this subsection shall prevent the Assignee from affixing his seal to any document.

  Compare: 1908 No 12 s 25

18 Vacation of office

• (1) A person shall not act or continue to act as Assignee of any bankrupt estate of which he is a creditor (not being a creditor in the capacity of the Assignee of the property of any other bankrupt or the liquidator of any company or an appointee under Part 17 of this Act) if the creditors by resolution declare that they do not wish him to act as Assignee.

  (2) In any case where such a disqualification occurs, the chief executive of the department of State that, with the authority of the Prime Minister, is for the time being responsible for the administration of this Act may appoint some other Assignee to be the Assignee of that estate.

  (3) If an Assignee is adjudged bankrupt he shall vacate that office, but nothing in this subsection shall affect the question of his employment in any other position in the Public Service; and, subject to the provisions of the State Sector Act 1988, he shall be eligible for reappointment as an Assignee on his discharge.

  Compare: 1908 No 12 s 24

  Subsection (2) was substituted, as from 1 October 1995, by section 10(3) Department of Justice (Restructuring) Act 1995 (1995 No 39).

  The reference to the State Sector Act 1988, in subsection (3) was substituted, as from 1 April 1988, for a reference to the State Services Act 1962 pursuant to section 88(2) State Sector Act 1988 (1988 No 20).

19 Acts of bankruptcy

• (1) A debtor commits an act of bankruptcy in each of the following cases:

  • (a) If, in New Zealand or elsewhere, he makes a disposition of all or substantially all of his property to a trustee for the benefit of all or any of his creditors:

  • (b) If, in New Zealand or elsewhere, he fraudulently, or with intent to give any creditor a preference over other creditors,—

    • (i) Makes any disposition of his property or any part thereof; or

    • (ii) Creates any charge thereon or gives any security thereover; or

    • (iii) Makes any payment; or

    • (iv) Incurs any obligation:

  • (c) If, with intent to defeat or delay his creditors, he departs, or attempts to depart, or is about to depart, out of New Zealand, or (being out of New Zealand) remains out of New Zealand, or departs from his dwellinghouse, or otherwise absents himself, or keeps to any premises or to part thereof to avoid his creditors:

  • (d) If a creditor has obtained a final judgment or final order against the debtor for any amount, and, execution thereon not having been stayed, the debtor has served on him in New Zealand, or, by leave of the Court, elsewhere, a bankruptcy notice under this Act, and he does not, within 14 days after the service of the notice in a case where the service is effected in New Zealand, and in a case where the service is effected elsewhere then within the time limited in that behalf by the order giving leave to effect the service, either comply with the requirements of the notice or satisfy the Court that he has a counterclaim, set-off, or cross demand which equals or exceeds the amount of the judgment debt or sum ordered to be paid, and which he could not set up in the action in which the judgment was obtained, or the proceedings in which the order was obtained:

  • (e) If he gives notice to any of his creditors that he has suspended or is about to suspend payment of his debts:

  • (f) If at any meeting of his creditors he admits that he is in insolvent circumstances, and if either:

    • (i) A majority in number and value of the creditors present at the meeting by resolution at the meeting require him to file a debtor's petition; or

    • (ii) He consents to file a debtor's petition and he does not within 48 hours (excluding any holiday) from the time of his consent file the petition:

  • (g) If possession has been taken under execution issued against him or his property on any legal process and the judgment or order in respect of which the execution is issued is not satisfied within 7 days after possession has been taken:

    Provided that, where an interpleader summons has been taken out in regard to the property seized, the time elapsing between the taking out of the summons and the time when the proceedings on the summons are finally disposed of, settled, or abandoned shall not be taken into account in calculating the said period of 7 days:

  • (h) If a writ of sale directed against any land of the debtor or any interest therein has been delivered to a Sheriff, and that land or interest has been advertised for sale, in at least one newspaper published or circulating in the town or district in which the land is situated, under that process:

    Provided that, if the judgment or order in pursuance of which the writ of sale issued is satisfied within 7 days after the said writ of sale has been both delivered to the Sheriff and advertised, no act of bankruptcy shall have been committed:

  • (i) If a return of nulla bona, or that no sufficient goods whereon to levy can be found, has been made to any execution issued against him or his property on any legal process:

  • (j) If, with intent to prejudice his creditors or to prefer one creditor above another, he removes or attempts to remove any of his property from any place, or conceals or attempts to conceal any of his property:

  • (k) If he is required by law to keep a trust account and any Court has given judgment against him for non-payment of trust money and the judgment is unsatisfied for 7 days.

  (2) For the purposes of paragraph (d) of subsection (1) of this section and of section 20 of this Act,—

  • (a) Any person who is for the time being entitled to enforce a final judgment or final order shall be deemed to be a creditor who has obtained a final judgment or final order; and

  • (b) Where leave is given by the Court to enforce an award made on a submission to arbitration, being an award under which money is payable by a debtor to another person,—

    • (i) The award shall be deemed to be a final order obtained by that person against the debtor; and

    • (ii) The arbitration proceedings shall be deemed to be proceedings in which the final order was made.

  Compare: 1908 No 12 s 26; 1927 No 41 s 2(4)

20 Bankruptcy notice

• A bankruptcy notice under paragraph (d) of subsection (1) of section 19 of this Act shall be in the prescribed form, and shall require the debtor to pay so much of the judgment debt or sum ordered to be paid in accordance with the terms of the judgment or order as remains unpaid, together with costs, or to secure or compound for the same to the satisfaction of the creditor or the Court, and shall state the consequences of non-compliance with the notice, and shall be served in the prescribed manner:

  Provided that a bankruptcy notice under that paragraph—

  • (a) May specify an agent to act on behalf of the creditor in respect of any payment or other thing required by the notice to be made to, or done to the satisfaction of, the creditor:

  • (b) Shall not be invalidated by reason only that the sum specified in the notice as the amount due exceeds the amount actually due, unless the debtor within the time allowed for payment gives notice to the creditor that he disputes the validity of the notice on the ground of that misstatement; but if the debtor does not give any such notice he shall be deemed to have complied with the bankruptcy notice if within the time allowed he takes such steps as would have constituted a compliance with the notice had the actual amount due been correctly specified therein.

  Compare: 1927 No 41 s 2

21 Petition by debtor

• A debtor may file a petition to have himself adjudged bankrupt, and on the filing of such a petition the debtor shall be deemed to be adjudged bankrupt, with the same consequences in all respects as if the Court had made an order adjudging him bankrupt.

  Compare: 1908 No 12 s 31

22 Debtors' joint petition

• Any 2 or more persons, being partners, may file a debtors' joint petition, and it shall have the effect of an order of adjudication against them jointly and against each of them separately.

  Compare: 1908 No 12 s 32

23 Petition by creditor

• A creditor may file a bankruptcy petition against a debtor, if—

  • (a) The debt owing from the debtor to the petitioning creditor, or, if 2 or more creditors join in the petition, the aggregate amount of debts owing to the several petitioning creditors, amounts to a sum not less than $200; and

  • (b) The debtor, whether before or after incurring the debt, has committed an act of bankruptcy within 3 months before the filing of the petition; and

  • (c) The debt is a liquidated sum payable either immediately or at some certain future time.

  Compare: 1908 No 12 s 34

24 Restrictions on execution

• (1) Upon the filing of a petition by a creditor under the provisions of section 23 of this Act, except with the leave of the Court,—

  • (a) No execution shall be issued by that creditor against the debtor in respect of his property or person to recover any debt on which the petition is based; and

  • (b) No such execution previously issued by that creditor shall be continued.

  (2) The Court may, at any time after the filing of a creditor's petition, stay any other execution against the debtor in respect of his property or person or may permit any other execution to issue on such terms, if any, as the Court thinks fit; and (except as provided in section 27 of this Act) any Court out of which any other execution against the debtor has been issued may, on proof that a bankruptcy petition has been filed and is pending against the debtor, either stay the execution for such period as it thinks fit or allow it to continue on such terms as that Court thinks fit.

  (3) If execution is stayed under subsection (3) of section 27 of this Act, section 50 of this Act shall apply as if the stay of execution were an adjudication.

  (4) In this section the term execution means any of the following acts:

  • (a) Issuing or proceeding with any writ or warrant for the possession, seizure, or sale of any property, or any writ of attachment, in pursuance of any judgment or order obtained against the debtor in any Court in its civil jurisdiction, other than a judgment or order for possession of any tenement obtained against the debtor on the ground that he is a trespasser or that his tenancy has expired:

  • (b) Issuing or proceeding with a committal warrant under a judgment summons order under section 14 of the Imprisonment for Debt Limitation Act 1908:

  • (c) Obtaining in favour of a judgment creditor a garnishee order under rule 270, or an order that the judgment creditor be at liberty to sue a subdebtor under paragraph (c) of subclause (2) of rule 271, of the District Courts Rules 1948:

  • (d) Having a charging order nisi made absolute under rule 585 of the High Court Rules in Schedule 2 to the Judicature Act 1908:

  • (e) Commencing or continuing proceedings in any Court for the appointment of a receiver of any property:

    Provided that this paragraph shall not apply to anything done under section 27 of this Act:

  • (f) Exercising any power of re-entry conferred by any lease, or any power of determining any lease, whether granted before or after the commencement of this Act:

  • (g) Seizing or selling any property by way of distress for rent.

  (5) Upon the withdrawal or dismissal of the petition any execution may be issued or continued.

  Compare: 1908 No 12 s 44(2)

  Subsection (4)(d) was amended by substituting the words “585 of the High Court Rules” for “rule 326 of the revoked Code of Civil Procedure”.

25 Where petitioner is a secured creditor

• If the petitioning creditor is a secured creditor, the Court shall not make an order of adjudication unless the creditor satisfies the Court that the amount of the debt exceeds the value of the security by at least $200.

  Compare: 1908 No 12 s 35

26 Court's power on creditor's petition

• (1) The Court, on being satisfied that the allegations stated in a creditor's petition are true, may, in its discretion, adjudge the debtor bankrupt.

  (2) If the Court is not satisfied that the allegations stated in the creditor's petition have been proved, or is satisfied that the debtor is able to pay his debts or that it is just and equitable not to make an order of adjudication or that for other sufficient cause no order ought to be made, the Court may dismiss the petition.

  (3) Without limiting the provisions of subsection (2) of this section, where the debtor has made a disposition of all or substantially all of his property to a trustee for the benefit of his creditors generally, or has made a proposal under section 140 of this Act, or where he has applied for a summary instalment order under section 146 of this Act, the Court may, on the application of the trustee or the debtor or any creditor, if it appears desirable so to do, order (where applicable) that the making of the disposition or proposal shall not be deemed to be an act of bankruptcy, and may stay or dismiss the petition and stay the filing of any other petition and make such order as to costs as it thinks fit, and any such costs, if made payable to the petitioner, may be ordered to be paid out of the estate.

  (4) When the act of bankruptcy relied on is that specified in paragraph (d) or paragraph (k) of subsection (1) of section 19 of this Act, the Court may, if it thinks fit, stay or dismiss the petition on the ground that an appeal is pending from the judgment or order.

  (5) Where the debtor appears on the petition and denies that he is indebted to the petitioner or that he is indebted to such an amount as would justify the petitioner in presenting a petition against him, the Court, on such security (if any) being given as it requires for payment to the petitioner of any debt which may be established against the debtor and of the costs of establishing the debt, may, instead of dismissing the petition, stay all proceedings on the petition for such time as is required for the trial of the question relating to the debt.

  (6) Where proceedings on a creditor's petition have been stayed, the Court may, if by reason of that delay or for any other cause it thinks just, make an order of adjudication on the petition of some other creditor, and it shall thereupon dismiss on such terms as it thinks just the petition on which proceedings have been stayed.

  (7) The Court may at any time make an order staying the proceedings under a creditor's petition, for such time, on such terms, and subject to such conditions as the Court thinks fit.

  (8) Where a creditor's petition relates to more than one debtor, the Court may dismiss the petition as to one or more of them without prejudice to the effect of the petition in relation to the other or others of them.

  (9) If the petitioner does not proceed with due diligence, or if at the hearing of the petition the petitioner offers no evidence, the Court may substitute as petitioner any other creditor to whom the debtor is indebted in the amount required by this Act in the case of a petitioning creditor. The petitioner so substituted shall file a fresh petition, but may rely upon the act of bankruptcy alleged in the original petition.

  (10) A creditor's petition shall not after filing be withdrawn without the leave of the Court.

  Compare: 1908 No 12 ss 30, 37(3), 39, 40, 41, 42, 43, 46, 47, 50; UK Act, s 5(4)

27 Court may appoint Assignee as receiver

• (1) The Court may if it thinks fit, on the application of a creditor, at any time after the filing of a creditor's petition against a debtor and before adjudication, appoint an Assignee as receiver and manager of the whole or any part of the debtor's property. In any such order the Court may authorise the Assignee so appointed to take possession of any property, to sell any property that is perishable or likely to depreciate rapidly in value, and to exercise such control over the debtor's business or property as the Court directs. No order shall be made for the exercise of control over a debtor's business except to the extent to which in the opinion of the Court it is necessary for the purpose of conserving the debtor's property.

  (2) At any time after the appointment of a receiver and manager under subsection (1) of this section the Court may, on the application of the creditor or of the Assignee, make any further order under that subsection.

  (3) Upon notice of the appointment of a receiver and manager being advertised in the prescribed manner, no execution within the meaning of subsection (4) of section 24 of this Act shall be issued by any creditor against the debtor in respect of the debtor's property or person or (if previously issued) shall be continued:

  Provided that the Court may, on the application of any creditor or other person interested, allow any such execution to be issued or (as the case may be) to be continued on such terms and conditions as the Court thinks fit.

  Compare: 1908 No 12 s 44(1)

28 Date of adjudication

• The date of adjudication for the purposes of this Act is,—

  • (a) If a person is adjudicated bankrupt on a debtor's petition, the date on which, and the time at which, the petition is filed; or

  • (b) If a person is adjudicated bankrupt on a creditor's petition, the date on which, and the time at which, the Court order is made.

  Compare: 1908 No 12 s 51

  Section 28 was substituted, as from 26 April 1999, by section 2 Insolvency Amendment Act 1999 (1999 No 21).

28A Date of adjudication to be recorded

• (1) If—

  • (a) A person is adjudicated bankrupt on a debtor's petition, the Registrar must record in the debtor's petition the date on which, and the time at which, the petition was filed; or

  • (b) A person is adjudicated bankrupt on a creditor's petition, the Court must record in the order of adjudication the date on which, and the time at which, the order was made.

  (2) If any question arises as to whether an act was done or a transaction was entered into or effected before or after the date of adjudication, that act or transaction is, in the absence of proof to the contrary, deemed to have been done or entered into or effected, as the case may be, after that date.

  Section 28A was inserted, as from 26 April 1999, by section 2 Insolvency Amendment Act 1999 (1999 No 21).

29 Registrar to give notice of adjudication to Assignee

• (1) The Registrar must, forthwith after any adjudication, give notice of the adjudication to the Assignee the Registrar considers most appropriate to administer the estate, and that Assignee becomes the Assignee of the property of the bankrupt.

  (2) Despite subsection (1), the Official Assignee for New Zealand may at any time direct that any other Assignee is the Assignee of the property of the bankrupt, and every such direction has effect according to its tenor.

  The proviso to section 29 was substituted, as from 1 October 1995, by section 10(3) Department of Justice (Restructuring) Act 1995 (1995 No 39).

  Section 29 was substituted, as from 3 June 1998, by section 2 Insolvency Amendment Act 1998 (1998 No 50).

30 Order of adjudication to be final

• Subject to the provisions of this Act relating to appeals, an order of adjudication, or an adjudication arising from the filing of a debtor's petition, shall be final and conclusive with respect to the validity of the adjudication and to the existence of all requisites thereto; and shall be binding on all persons, whether parties to the proceedings or not.

  Compare: 1908 No 12 s 54

31 Assignee to advertise adjudication

• As soon as practicable after the Assignee receives notice of any adjudication, he shall advertise the adjudication and the date of adjudication in the prescribed manner.

  Compare: 1908 No 12 s 52(2)

  Section 31 was amended, as from 26 April 1999, by section 3 Insolvency Amendment Act 1999 (1999 No 21) by substituting the words “of adjudication” for the word “thereof”.

32 Effect of adjudication on Court proceedings

• Subject to section 55 of the Apprenticeship Act 1983, upon an adjudication being advertised, all proceedings to recover any debt provable in the bankruptcy shall be stayed, but the Court may, on application by any creditor or person interested, allow any proceedings commenced to be continued on such terms and conditions as it thinks just.

  Compare: 1908 No 12 s 53(2)

  Section 32 was amended by section 58(1) Apprenticeship Act 1983 (1983 No 16) by substituting the words “Subject to section 55 of the Apprenticeship Act 1983, upon” for the word “Upon”.

33 Assignee to send notice to bankrupt

• (1) Forthwith after he receives the notice of any adjudication, the Assignee shall send to the bankrupt, at the address given in the bankruptcy petition or at his last known address, a notice in the prescribed form requiring him to make out a statement in the prescribed form showing particulars of his assets, debts, and liabilities, the name, address, and occupation of every creditor, and the securities held by each creditor, and to file the same together with his answers to the prescribed questions within the time specified by the Assignee in the notice, and (if required by the Assignee) to attend at a place and time fixed by the Assignee and there to be examined by the Assignee or some other person as to his bankruptcy.

  (2) The bankrupt may from time to time file with the Assignee any further or amended statement or answers.

  Compare: 1908 No 12 s 58(1), (2)

34 First meeting of creditors

• (1) Except as otherwise provided in section 34A of this Act, or where the Assignee considers that special circumstances would justify the delay, the Assignee shall summon the first meeting of creditors for a day not later than 14 days after the date on which the bankrupt files the statement and answers referred to in section 33 of this Act, or (if the bankrupt fails to file them before the expiration of 14 days after the date of adjudication), for a day not later than 28 days after the date of adjudication. Any such meeting may be summoned by sending a notice of the time and place thereof by ordinary post to—

  • (a) The bankrupt at his last known address; and

  • (b) Each creditor named in the bankrupt's statement of affairs at the address given therein or such address as may be known to the Assignee; and

  • (c) Such other creditors (if any) as are known to the Assignee.

  (2) The Assignee shall at the same time advertise in the prescribed manner notice of the time and place appointed for the meeting.

  Compare: 1908 No 12 s 94

  Subsection (1) was amended by section 2 Insolvency Amendment Act 1990 (1990 No 7) by substituting the words “Except as otherwise provided in section 34A of this Act, or where the Assignee considers that special circumstances would justify the delay, the Assignee shall” for the words “Except where the Assignee considers that special circumstances would justify the delay, he shall,”.

34A Assignee may dispense with first meeting of creditors

• The Assignee shall not be required to summon a first meeting of creditors under section 34 of this Act in any case where—

  • (a) The Assignee considers, having regard to the assets and liabilities of the bankrupt, the likely result of the bankruptcy, and any other relevant matters, that no such meeting should be summoned; and

  • (b) The Assignee gives notice in writing to each creditor named in the bankrupt's statement of affairs and to such other creditors (if any) as are known to the Assignee stating—

    • (i) That the Assignee does not consider that the meeting should be held; and

    • (ii) The reasons for the Assignee's view; and

    • (iii) That no such meeting will be summoned unless a creditor gives notice in writing to the Assignee, within 14 days after receiving the notice, requiring the meeting to be summoned; and

  • (c) No notice requiring the meeting to be summoned is received by the Assignee within that period.

  Section 34A was inserted, as from 19 March 1990, by section 3 Insolvency Amendment Act 1990 (1990 No 7).

35 Particulars to be supplied by Assignee

• (1) Except where he has called a meeting without the bankrupt having filed the statement of affairs, the Assignee shall send to each creditor, with the notice summoning the meeting,—

  • (a) A summary of the bankrupt's statement of his assets and liabilities together with a list of his creditors as shown in his statement; and

  • (b) Either extracts from, or a summary of, the bankrupt's explanation of the causes of his bankruptcy; and

  • (c) Any observations on any aspect of the bankruptcy that the Assignee thinks fit to make.

  (2) The proceedings at the meeting shall not be invalidated by reason of any such notice or summary not having been sent or received before the meeting.

  Compare: 1908 No 12 s 94; clause 3 First Schedule UK Act

36 Further meetings

• (1) The Assignee may from time to time summon a further meeting of creditors, and shall call a further meeting of creditors when required by one-fourth in value of the creditors who have proved their debts.

  (2) The provisions of subsection (1) of section 34 of this Act as to the manner of summoning the first meeting of creditors shall apply to the summoning of any further meeting of creditors.

  Compare: 1908 No 12 s 94(3), (4)

37 Conduct of meetings

• (1) The chairman of every meeting shall be the Assignee or some person appointed for the time being by him. If the Assignee or any person so appointed is not present at the meeting, the creditors may elect one of their number who is qualified to vote to act as chairman. Any person so appointed or elected shall have power to administer any oath which the Assignee could have administered if present.

  (2) The bankrupt shall, if required by the Assignee, attend all meetings of creditors and, if required by the Assignee or the chairman or any creditor or his representative, submit to an examination on oath or otherwise by the Assignee or chairman and any creditor or his representative, and he shall sign a statement of any evidence he gives under any such examination if required by the Assignee or chairman.

  (3) The Assignee or chairman may adjourn any meeting from time to time and place to place.

  (4) If he is present at any meeting or any adjournment thereof, the Assignee shall report on the administration of the estate and shall give any creditor such further information as he may properly require and shall, if required, produce to each meeting and to any adjournment thereof all books of account, deeds, and papers then in his possession relating to the property of the bankrupt.

  (5) The Assignee, or the creditors present at the meeting, by ordinary resolution, may consent to the presence of any other person at any meeting of creditors.

  (6) The Assignee shall cause to be kept minutes of the proceedings at every meeting. The minutes shall be signed by him or by the chairman.

  Compare: 1908 No 12 ss 60, 95

38 Quorum at meetings

• A meeting may proceed if the Assignee (or some person appointed by him) and one creditor are present or represented. If the meeting is not adjourned and a quorum is not present, the meeting shall lapse, in which case the Assignee may summon another meeting of creditors.

  Compare: 1908 No 12 s 95

39 Representation at meetings

• (1) A creditor may be represented at any meeting by—

  • (a) Any barrister or solicitor:

  • (b) Any public accountant or any person who is keeping the creditor's books of account:

  • (c) Any person who is an authorised agent of the creditor under a power of attorney:

  • (d) Any other person who satisfies the Assignee that he represents the creditor.

  (2) Without restricting the generality of subsection (1) of this section, a creditor may also be represented,—

  • (a) In the case of the Crown, by any officer of the appropriate Government Department:

  • (b) In the case of any public body, by any officer of that body:

  • (c) In the case of any company, by any of its directors, or its general manager, secretary, or accountant, or any other person authorised in writing by any such director, or its general manager, secretary, or accountant:

  • (d) In the case of a partnership, by any of the partners.

  Compare: 1908 No 12 s 96

40 Voting at meetings

• (1) An ordinary resolution shall be carried by a majority of those creditors or their representatives present and voting thereon:

  Provided that it shall be decided upon by a majority in value of those creditors or their representatives present and voting thereon if any creditor or his representative so demands, and in any such case, for the purpose of voting at the meeting, and not otherwise,—

  • (a) The Assignee may admit or reject proofs of debt, and may for that purpose adjourn the meeting; and

  • (b) Any person whose proof has been admitted shall be deemed to be a creditor.

  (2) A secured creditor may vote in respect of the debt due to him only after valuing, surrendering, or realising his security in accordance with the provisions hereafter appearing in this Act in respect of secured creditors.

  (3) A creditor shall not vote in respect of any debt on or secured by a current bill of exchange or promissory note unless he is willing to treat the liability to him thereon of every person who is liable thereon antecedently to the debtor, and who is not a bankrupt, as a security in his hands, and to estimate the value thereof, and, for the purposes of voting, but not for the purposes of dividend, to deduct it from his proof:

  Provided that the Assignee may at any time require the production of the bill or note.

  (4) No person shall vote in favour of any resolution which would directly or indirectly place him, or his partner or employer or employee, or the creditor whom he represents, or the creditor's partner or employer or employee, in a position to receive any remuneration out of the estate of the debtor otherwise than as a creditor rateably with the other creditors of the debtor.

  (5) If an order of adjudication is made against one partner of a firm, any creditor to whom that partner is indebted jointly with the other partners of the firm, or any of them, may prove his debt for the purpose of voting at any meeting of creditors, and shall be entitled to vote thereat.

  (6) Where a meeting of creditors is called by notice, the proceedings had and resolutions passed at the meeting shall, unless the Court otherwise orders, be valid notwithstanding that some creditors have not received notice of the meeting.

  Compare: 1908 No 12 ss 96, 97

41 Appointment of expert or committee to assist Assignee

• (1) At any meeting of creditors, the creditors may by resolution appoint any expert to assist the Assignee in the administration of the estate, and may by resolution provide for his remuneration out of the estate.

  (2) At any meeting of creditors, the creditors may by resolution appoint a committee of any persons to assist the Assignee in the administration of the estate, and may, with the approval of the Court, provide for their remuneration out of the estate.

  (3) Where any supervisors appointed under section 57 of the Bankruptcy Act 1908 were in office immediately before the commencement of this Act, they shall continue in office after the commencement of this Act, and all the provisions of that Act relating to supervisors shall, notwithstanding their repeal, continue in force in relation to the property of the bankrupt in connection with whose estate the supervisors were appointed.

  Compare: 1908 No 12 s 57

42 Property passing to Assignee and commencement of bankruptcy

• (1) All the property and powers of the bankrupt specified in subsection (2) of this section are hereby vested upon adjudication or as soon thereafter as this section becomes applicable thereto in the Assignee of the bankrupt's property:

  Provided that, upon any other Assignee becoming the Assignee of the property of the bankrupt the said property and powers are hereby vested, thereupon or as soon thereafter as this section becomes applicable thereto, in that other Assignee, but without prejudice to any disposition made by any former Assignee.

  (2) Subject to the provisions of subsection (3) of this section, and subject to the provisions of sections 47, 48, 49, 50, and 59 of this Act, the property and powers of the bankrupt to vest in the Assignee and be divisible amongst his creditors shall comprise the following:

  • (a) All property whatsoever and wheresoever situated belonging to or vested in the bankrupt at the commencement of the bankruptcy, or acquired by or devolving upon him before his discharge:

  • (b) The capacity to exercise and to take proceedings for exercising all such powers in or over or in respect of any property whatsoever and wheresoever situated as might have been exercised by the bankrupt for his own benefit at the commencement of the bankruptcy or before his discharge.

  (3)  notwithstanding anything else in this Act, property held by the bankrupt in trust for any other person shall not pass to the Assignee.

  (4) The time of the commencement of the bankruptcy shall be calculated as follows:

  • (a) If a debtor is adjudged bankrupt on a creditor's petition, the bankruptcy shall relate back to and commence at the time of the act of bankruptcy on which the order is made adjudging him a bankrupt or, if the bankrupt is proved to have committed more acts of bankruptcy than one, the bankruptcy shall relate back to and commence at the time of the first of the acts of bankruptcy proved to have been committed by the bankrupt within 3 months immediately preceding the filing of the petition:

  • (b) Where a person is adjudged bankrupt on a debtor's petition, the bankruptcy shall commence at the time of the filing of the petition, or (where the debtor is proved to have committed an act or acts of bankruptcy) the bankruptcy shall relate back to and commence at the time of the first of the acts of bankruptcy proved to have been committed by the bankrupt within 3 months immediately preceding the filing of the debtor's petition, or (if at the time of the filing of the debtor's petition the hearing of a creditor's petition is pending or a creditor's petition is being heard) within 3 months immediately preceding the filing of the creditor's petition:

  Provided that the bankruptcy shall not relate back to any prior act of bankruptcy, unless at the time of committing the prior act the bankrupt was indebted to some creditor or creditors in a sum not less than $200.

  (5) Nothing in the Land Transfer Act 1952 shall restrict the operation of this section, and nothing in this section shall affect the operation of any other enactment or rule of law which prevents any property from passing to the Assignee.

  Compare: 1908 No 12 ss 53(1), 55, 61

  Subsection (3) was amended, as from 1 February 2002, by section 63(2) Property (Relationships) Amendment Act 2001 (2001 No 5) by omitting the expression “Subject to section 43 of this Act, but”. See section 63(5) of that Act which states that “in any case where a person has been adjudged bankrupt, or there has been an order or election to administer an estate under Part 17 of the Insolvency Act 1967, before 1 February 2001, the Insolvency Act 1967” applies as if section 63 of that Act had not been enacted.

43 Loans by wife to husband, and by husband to wife

• [Repealed]

  Section 43 was repealed, as from 1 February 2002, by section 63(1) Property (Relationships) Amendment Act 2001 (2001 No 5). See section 63(5) of that Act which states that “in any case where a person has been adjudged bankrupt, or there has been or order or election to administer an estate under Part 17 of the Insolvency Act”, before 1 February 2001, the Insolvency Act 1967 applies as if section 63 of that Act had not been enacted.

44 Restrictions on bankrupt dealing with property

• Subject to the provisions of section 49 of this Act, after adjudication—

  • (a) Neither a bankrupt nor any person (other than the Assignee) claiming through or under him shall have power to recover any property forming part of the bankrupt's estate or to make any release or discharge thereof:

  • (b) The bankrupt shall not execute, whether before or after he obtains his discharge, any power of appointment or any other power vested in him so as to defeat or destroy any contingent or other estate or interest in any property to which (in default of appointment or otherwise in case of non-execution of the power) he may be beneficially entitled at any time before his discharge.

  Compare: 1908 No 12 ss 67, 68

45 Assignee may require bankrupt to contribute towards payment of debts

• (1) A bankrupt must pay any amount, or make periodic payments, to the Assignee as required by the Assignee during the bankruptcy.

  (2) The Assignee may impose conditions in respect of those payments.

  (3) Before the Assignee may require the bankrupt to make those payments, the Assignee must—

  • (a) have regard to all the circumstances of the bankruptcy and the bankrupt's conduct, earning power, responsibilities, and prospects; and

  • (b) make reasonable allowance for the maintenance of the bankrupt, the bankrupt's spouse, and the bankrupt's family.

  (4) The Court may, on the application of the bankrupt or any creditor,—

  • (a) vary, suspend, or cancel the bankrupt's obligation to make the payments under this section:

  • (b) remit any arrears owing by the bankrupt.

  Section 45 was substituted, as from 3 May 2001, by section 3 Insolvency Amendment Act 2001 (2001 No 22).

45A Court may order that money due to bankrupt be assigned to Assignee

• (1) The Court may, on the application of the Assignee, make an order assigning or charging to or in favour of the Assignee any money due to the bankrupt or to become due or payable to the bankrupt.

  (2) That assignment or charge operates as a discharge to the person who pays the Assignee.

  Sections 45A and 45B were inserted, as from 3 May 2001, by section 3 Insolvency Amendment Act 2001 (2001 No 22).

45B Application of section 104 to payments by bankrupt or assignments by Court

• The Assignee must apply the following payments in accordance with section 104:

  • (a) any amount paid by the bankrupt under section 45:

  • (b) any amount paid to the Assignee under an order made under section 45A.

  Sections 45A and 45B were inserted, as from 3 May 2001, by section 3 Insolvency Amendment Act 2001 (2001 No 22).

46 Onus of proof in connection with default in payment

• Where default has been made in complying with an order under section 45 of this Act, in any proceedings in connection with the default, the onus shall be on the bankrupt to show that the default was not wilful.

47 Protection of certain transactions against relation back

• (1) Subject to the provisions of section 50 of this Act (which section relates to the effect of bankruptcy on an execution or attachment) and of sections 54 to 57 of this Act (which sections relate to the avoidance of certain gifts and other transactions), nothing in section 42 of this Act shall invalidate, in the case of a bankruptcy,—

  • (a) Any payment by the bankrupt to any of his creditors; or

  • (b) Any disposition by the bankrupt for valuable consideration; or

  • (c) Any disposition of property made for valuable consideration by—

    • (i) A person who became entitled to the property under a disposition made by the bankrupt; or

    • (ii) A person who became entitled, whether before or after the adjudication of the bankrupt, to the property through a person to whom subparagraph (i) of this paragraph applies; or

  • (d) Any contract, dealing, or transaction by or with the bankrupt for valuable consideration—

  if the following conditions are complied with, namely, that—

  • (e) The person (other than the bankrupt) to, by, or with whom the payment, disposition, contract, dealing, or transaction was made, executed, or entered into, had not at the time of the payment, disposition, contract, dealing, or transaction notice of any available act of bankruptcy committed by the bankrupt before that time and otherwise acts in good faith; and

  • (f) The payment, disposition, contract, dealing, or transaction takes place before the adjudication:

    Provided that this paragraph shall not apply to a disposition to which subparagraph (ii) of paragraph (c) of this subsection relates.

  (2) Any payment, disposition, contract, dealing, or transaction by or with a trustee or an agent of a bankrupt shall for the purposes of this section have the same effect as if made by or with the bankrupt himself.

  Compare: 1908 No 12 s 82

48 Validity of certain other transactions with bankrupt

• A payment of money or delivery of property to or to the order of a person who has been or subsequently is adjudged bankrupt, or to or to the order of a person claiming by assignment from him, shall, notwithstanding anything in this Act, be a good discharge to the person paying the money or delivering the property if payment or delivery was made before the adjudication was advertised and the person making the payment or giving delivery satisfies the Court that he had no knowledge of the adjudication or the presentation of a bankruptcy petition and that the payment or delivery was either in the ordinary course of business or otherwise in good faith.

  Compare: 1908 No 12 s 82A; 1956 No 60 s 6

49 Dealings with undischarged bankrupt: bank accounts

• (1) The following shall be valid against the Assignee if they are completed (within the meaning of subsection (2) of section 50 of this Act) before any intervention by the Assignee:

  • (a) All transactions by a bankrupt with any person dealing with him in good faith and for value, in respect of property which is acquired by the bankrupt or devolves upon him after the adjudication:

  • (b) All executions and attachments in good faith against the property acquired by the bankrupt or which devolves upon him after the adjudication, being executions and attachments in respect of debts or liabilities incurred by the bankrupt after the adjudication.

  (2) Any estate or interest in any property to which subsection (1) of this section applies which by virtue of this Act is vested in the Assignee shall determine and pass in such manner and to such extent as may be required for giving effect to any such transaction or execution.

  (3) For the purposes of subsection (1) of this section, the receipt of any money, security, or negotiable instrument from, or by the order or direction of, a bankrupt by his banker, and any payment and any delivery of any security or negotiable instrument made to, or by the order or direction of, a bankrupt by his banker, shall be deemed to be a transaction by the bankrupt with that banker dealing with him for value.

  (4) For the purposes of subsection (1) of this section, a payment of money or delivery of property by a legal personal representative to, or by the direction of, a bankrupt shall be deemed to be a transaction for value.

  (5) Where a banker has ascertained that a person having an account with him is an undischarged bankrupt, then, unless the banker is satisfied that the account is on behalf of some other person, it shall be his duty forthwith to inform the Assignee of the existence of the account, and thereafter he shall not make any payments out of the account, except under an order of the Court, or in accordance with instructions from the Assignee, unless by the expiration of one month from the date of giving the information no instructions have been received from the Assignee.

  Compare: 1908 No 12 s 82B; 1956 No 60 s 7

50 Rights of execution creditor and duties of Sheriff

• (1) Notwithstanding the provisions of section 42 of this Act, but subject to subsections (3), (4), and (8) of this section and to section 56 of this Act, where a creditor has issued execution against the goods or lands of a debtor, or has attached any debt due to him, he shall be entitled to retain the benefit of the execution or attachment (including any proceeds thereof) if he has completed the execution or attachment before the debtor is adjudged bankrupt, and before notice of the filing of any bankruptcy petition against the debtor or of the commission of any available act of bankruptcy by the debtor other than any act of bankruptcy which may be committed by virtue of the said execution or attachment, but otherwise shall not be entitled to retain the benefit thereof.

  (2) For the purposes of subsection (1) of this section and of subsection (1) of section 49 of this Act, an execution against goods is completed by seizure and sale; an attachment of a debt is completed by receipt of the debt; and an execution against land is completed by sale or, in the case of an equitable interest, by the appointment of a receiver.

  (3) Subject to the provisions of subsection (8) of this section, where any property of a debtor is taken in execution and, before the sale thereof or the completion of the execution by the receipt or recovery of the full amount of the levy, notice is served on the Sheriff that the debtor has been adjudged a bankrupt, the Sheriff shall, on being so required, deliver any goods and money seized or received in part satisfaction of the execution to the Assignee, but the costs of the execution shall be a first charge on any goods or money so delivered, and the Assignee may sell the goods or a sufficient part thereof for the purpose of satisfying that charge.

  (4) Subject to the provisions of subsection (8) of this section, where, under an execution in respect of a judgment for a sum exceeding $100, any property of a debtor is sold or any money is paid in order to avoid a sale, the Sheriff shall deduct the costs of the execution from the proceeds of the sale or the money paid and retain the balance for 14 days, and if within that time notice is served on him of the debtor having filed a bankruptcy petition, or of a bankruptcy petition having been filed against the debtor, the Sheriff shall apply the said balance as hereafter specified in this subsection:

  • (a) Where notice is so served on the Sheriff of the debtor having filed a bankruptcy petition, the Sheriff shall pay the balance to the Assignee, who shall be entitled to retain it as against the execution creditor:

  • (b) Subject to the provisions of paragraph (a) of this subsection, where notice is so served on the Sheriff of a bankruptcy petition having been filed against the debtor, the Sheriff shall retain the balance until the petition is disposed of; and, if at any time before the original petition is disposed of notice is served on the Sheriff of any other such petition, he shall retain the balance until the last of the petitions are disposed of:

  • (c) Where the debtor is adjudged a bankrupt on a petition of which notice has been so served on the Sheriff, he shall pay the balance to the Assignee, who shall be entitled to retain it as against the execution creditor:

  • (d) In any other case, the Sheriff shall pay the balance to the execution creditor, who shall (subject to the provisions of section 56 of this Act) be entitled to retain it as against the Assignee.

  (5) No execution, attachment, or other process in respect of the debtor's property or person shall be commenced or continued after the bankruptcy is advertised, or notice is given to the creditor by the Assignee, in respect of any debt provable in the bankruptcy, and no distress for rent due by the bankrupt shall thereafter be levied, but if previously levied may be proceeded with.

  (6) Subsections (1) and (2) of this section shall apply to payment by a debtor to a creditor to avoid an execution or attachment during the currency thereof as if the payment were the proceeds thereof and the time of the payment were the time of the completion thereof.

  (7) Any person who purchases in good faith under a sale by the Sheriff any property of a debtor on which an execution has been levied shall in all cases acquire a good title to it against the Assignee.

  (8) The rights conferred by this section on the Assignee may be set aside by the Court in favour of the creditor to such extent and subject to such terms as the Court thinks fit.

  Compare: 1908 No 12 ss 53(3), (4), 80, 81

51 Assignment of money payable to dairy farmer in respect of sales of milk

• (1) In this section, unless the context otherwise requires,—

  Dairy farmer means a person whose business wholly or partly is the production and supply, by himself or his agents, of milk

  Milk includes cream

  Purchaser means any person to whom a dairy farmer sells or supplies milk.

  (2) A contract in writing by a dairy farmer by the terms whereof a person who makes or has made advances to a dairy farmer becomes assignee of or is otherwise entitled to receive money which is then or thereafter becomes payable to the dairy farmer by a purchaser, or any part of that money, is valid in law.

  (3) Notice in writing to the purchaser of the contract shall be effectual to charge in the hands of the purchaser the money which the dairy farmer is entitled to receive from the purchaser at the time of the service of the notice, and also all other money which may thereafter from time to time become payable by the purchaser in respect of milk purchased or acquired by him from the dairy farmer.

  (4) The charge shall operate immediately upon receipt by the purchaser of the milk in respect whereof the money becomes payable, and shall further operate for the benefit of the person entitled under the contract to the extent provided by the contract, and the purchaser shall pay the money only to the person who under the terms of the contract is entitled to receive the same or to his duly authorised agent.

  (5) No such contract shall be liable to be impeached or set aside under any provisions of this Act relating to preference, except only (so far as those provisions are applicable) to the extent of advances made to the dairy farmer before the making of the contract.

  (6) Notice of an act of bankruptcy committed by the dairy farmer shall not affect the validity of the contract or of any advances made thereafter to the dairy farmer, or the right and security of the person who under the terms of the contract is entitled to receive money from the purchaser. The rights of the parties under the contract shall, unless earlier determined by agreement, continue until the actual date when the dairy farmer is adjudged a bankrupt, and shall not be affected by any relation back of the bankruptcy to an earlier date.

  Compare: 1927 No 41 s 12

52 Bankrupt allowed to retain furniture, tools of trade, etc

• (1) The bankrupt shall be entitled, within 7 days immediately after adjudication or within such further time as the Assignee allows, to select and retain as his own property his necessary tools of trade to the value in the opinion of the Assignee of $500 and his necessary household furniture and effects, including the wearing apparel of himself and family, to the value in the opinion of the Assignee of $2,000:

  Provided that this provision is without prejudice to any valid security or hire purchase agreement there may be over or in respect of the same, and shall not confer any rights upon the bankrupt to any other portion of his property, if—

  • (a) His necessary tools of trade do not in the opinion of the Assignee amount in value to $500 or are subject to any such security or hire purchase agreement; or

  • (b) His necessary household furniture and effects do not in the opinion of the Assignee amount in value to $2,000 or are subject to any such security or hire purchase agreement.

  (2) The Assignee may allow the bankrupt to retain necessary tools of trade to a value in excess of $500, and necessary household furniture and effects to a value of excess of $2,000, subject to the consent of the creditors expressed by resolution.

  (3) The powers conferred on the bankrupt by this section in respect of furniture and household effects may be exercised in the event of his death by a member of his family approved for the purpose by the Assignee or the Court.

  (4) The Governor-General may from time to time, by Order in Council, amend subsection (1), or the proviso to that subsection, or subsection (2), of this section by increasing any amount specified in that provision.

  Compare: 1908 No 12 s 121

  Subsection (1) and the proviso were amended, as from 6 November 1986, by section 2(1)(a), (b), (c), and (d) Insolvency Amendment Act 1986 (1986 No 91) by substituting the expressions “$500” and “$2,000” for the expressions “$100” and “$300”.

  Subsection (2) was amended, as from 6 November 1986, by section 2(1)(e) and (f) Insolvency Amendment Act 1986 (1986 No 91) by substituting the expressions “$500” and “$2,000” for the expressions “$100” and “$300”.

  Subsection (4) was inserted, as from 6 November 1986, by section 2(2) Insolvency Amendment Act 1986 (1986 No 91).

53 Assignee may make allowance to bankrupt

• (1) The Assignee may from time to time, subject to the consent of the creditors expressed by resolution, make such an allowance of money as he thinks just out of the property to the bankrupt or any member of his family for the support of the bankrupt and his family.

  (2) The Assignee may allow the bankrupt to retain any money the bankrupt has in his possession or in a bank account at the time of adjudication for the immediate maintenance of himself and his family up to a limit of $400.

  (3) The Governor-General may from time to time, by Order in Council, amend subsection (2) of this section by increasing the amount specified in that section.

  Compare: 1908 No 12 s 71

  Subsection (2) was amended, as from 6 November 1986, by section 3(1) Insolvency Amendment Act 1986 (1986 No 91) by substituting the expression “$400” for the expression “$40”.

  Subsection (3) was inserted, as from 6 November 1986, by section 3(2) Insolvency Amendment Act 1986 (1986 No 91).

54 Voidable gifts

• (1) Any gift of property shall be voidable as against the Assignee if the donor is adjudged bankrupt within 2 years after the making of the gift.

  (2) Any gift of property shall, if the donor is not adjudged bankrupt within 2 years after the making of the gift but is adjudged bankrupt within 5 years after the making of the gift, be voidable as against the Assignee, unless the party claiming under the gift proves that the donor was at the time of the making of the gift or at any time thereafter up to his adjudication able to pay all his debts without the aid of the property comprised in the gift, and that if the gift was a settlement, the interest of the settlor in the property passed to the trustees of the settlement on the execution thereof.

  (3) Whenever a disposition is made for valuable consideration but not for adequate consideration in money or money's worth and where, having regard to the difference between the value of the property disposed of and the value of the consideration and all other circumstances, the Court is satisfied that the intention of the debtor was to make a gift of the difference between the consideration and the value thereof and the gift would be voidable as against the Assignee under subsection (1) or subsection (2) of this section, then the Court may, having regard to all the circumstances of the case, order the donee to pay to the Assignee any amount not exceeding the value of the said difference.

  (4) Any covenant or contract made by any person (hereafter in this section called the settlor) in consideration of his or her marriage, either for the future payment of money for the benefit of the settlor's wife or husband or children, or for the future settlement on or for the settlor's wife or husband or children of property wherein the settlor had not at the time of the marriage any estate or interest, whether vested or contingent, in possession or remainder, shall, if the settlor is adjudged bankrupt and the covenant or contract has not been executed at the commencement of his bankruptcy, be voidable as against the Assignee except so far as it enables the persons entitled under the covenant or contract to claim dividends in the settlor's bankruptcy under or in respect of the covenant or contract, but any such claim to dividends shall be a deferred debt payable in accordance with paragraph (i) of subsection (1) of section 104 of this Act.

  (5) Any payment of money (not being a payment of premiums on a policy of life assurance), or any transfer of property made by the settlor in pursuance of a covenant or contract within the meaning of subsection (4) of this section, shall be voidable against the Assignee, unless the persons to whom the payment or transfer was made prove—

  • (a) That the payment or transfer was made more than 2 years before the date of the adjudication; or

  • (b) That, at the time of the payment or transfer or at any time thereafter up to the adjudication the settlor was able to pay all his debts without the aid of the money so paid or the property so transferred; or

  • (c) That the payment or transfer was made in pursuance of a covenant or contract to pay or transfer money or property expected to come to the settlor from or on the death of a particular person named in the covenant or contract and was made within 3 months after the time when the money or property came into the possession or under the control of the settlor;

  but, in the event of any such payment or transfer becoming void, the persons to whom it was made shall be entitled to claim dividends under or in respect of the covenant or contract in like manner as if it had not been executed at the commencement of the bankruptcy.

  (6) In this section gift means any disposition made otherwise than in good faith and for valuable consideration.

  (7) The Court may, if it thinks it just and equitable in all the circumstances, take into account past consideration and treat it as being valuable consideration.

  Compare: 1908 No 12 ss 75, 78; UK Act s 42(2), (3)

55 Proceedings where bankrupt has improved property of another person

• (1) Whenever a person has, without adequate consideration in money or money's worth, erected buildings upon or otherwise improved land or any other property of another person, or has purchased land or other property in another person's name, or has provided money to purchase land or other property in the name or on behalf of another person, or has paid instalments for the purchase or towards the purchase of any land or other property in the name or on behalf of another person, then, if the value of the assets of the first-mentioned person has been reduced thereby, and if—

  • (a) The first-mentioned person is adjudged bankrupt within 2 years thereafter; or

  • (b) The first-mentioned person is not adjudged bankrupt within the said period of 2 years thereafter but is adjudged bankrupt within 5 years thereafter and that other person cannot prove that the bankrupt was at the time of the act referred to or at any time thereafter up to the adjudication able to pay all his debts without the aid of money or other property comprised in the disposition,

  subject to the provisions of subsection (3) of this section, the provisions specified in subsection (2) of this section shall apply.

  (2) The provisions which shall so apply are as follows:

  • (a) The Court may, on the application of the Assignee, ascertain the value of the improvements, or the amount expended or paid upon or for the land or other property, by or on behalf of the bankrupt (including any payments of legal expenses, interest, rates, and other expenses or charges), and may order the other person to pay the amount so ascertained to the Assignee:

  • (b) If the other person fails to comply with the order, the Court, by the same or a subsequent order, may (in addition to any other power it may have to enforce compliance with the order) direct the Assignee to sell the whole or a sufficient part of the land with improvements thereon or of other property, and to convey or transfer the same to the purchaser; and the Court may make all vesting or other orders necessary for that purpose:

  • (c) The Assignee shall retain the whole or so much of the amount so ascertained as is necessary, along with all other assets in the estate, to pay the creditors in full (including the payment of interest under section 104 of this Act), and any balance of the amount shall be paid to the other person. Where any money has been retained by the Assignee under this paragraph and the creditors have been paid in full, any surplus of the proceeds of the bankrupt's estate shall be paid to the said other person to the extent of the amount so retained before any payment is made to the bankrupt.

  (3) The Court may refuse to make an order for the payment of the amount calculated in accordance with paragraph (a) of subsection (2) of this section, or may make an order for the payment of such lesser amount as the Court thinks fit if—

  • (a) The other person mentioned in that subsection acted in good faith and has altered his position in the reasonably held belief that the bankrupt's action was valid and would not be set aside; and

  • (b) In the opinion of the Court it is inequitable to order payment of all or any part of the amount, as the case may be.

  (4) Nothing in the Land Transfer Act 1952 shall restrict the operation of this section.

  Compare: 1908 No 12 ss 76, 77

56 Voidable preferences

• (1) Every conveyance or transfer of property, every charge made on any property, every obligation incurred, every execution under any judicial proceeding suffered, and every payment made (including any payment made in pursuance of a judgment or order of a Court), by any person unable to pay his debts as they become due from his own money, shall be voidable as against the Assignee, if—

  • (a) It is in favour of any creditor or any person in trust for any creditor with a view to giving that creditor or any surety or guarantor for the debt due to that creditor a preference over the other creditors; and

  • (b) The person making, suffering, paying, or incurring the same is adjudged bankrupt within 2 years after the making, suffering, paying, or incurring of the same.

  (2) Every conveyance or transfer of property, every charge made on any property, every obligation incurred, every execution under any judicial proceeding suffered, and every payment made (including any payment made in pursuance of a judgment or order of a Court), shall be voidable as against the Assignee, if—

  • (a) It is made, paid, suffered, or incurred by any person unable to pay his debts as they become due from his own money in favour of any creditor or any person in trust for any creditor; and

  • (b) It is made, paid, suffered, or incurred within the period specified in subsection (3) of this section:

  Provided that nothing in this subsection shall apply to any such transaction or any such payment in respect of any liability incurred, or accruing due, during or after the said period.

  (3) The period referred to in subsection (2) of this section shall be one month immediately preceding the person's adjudication:

  Provided that, if the adjudication is made on a creditor's petition, the period shall be the time between the service on the person of the bankruptcy petition and the adjudication in any case where that is more than one month:

  Provided also that, if the person is adjudged bankrupt on his own petition while a creditor's petition is pending being heard, the period shall be the time between the service on the debtor of the creditor's petition and the adjudication in any case where that is more than one month.

  Compare: 1908 No 12 s 79(1)

57 Voidable securities

• (1) Every security or charge over any property of a bankrupt shall be voidable as against the Assignee of the bankrupt's estate if it is executed or given by the debtor within the period commencing 12 months immediately before the filing of a creditor's petition and ending with the adjudication or, if the adjudication takes place on the grantor's own petition, within the period of 12 months immediately preceding the filing thereof:

  Provided that, if the grantor is adjudged bankrupt on his own petition when a creditor's petition is pending being heard, the period shall be the period commencing 12 months immediately before the filing of the creditor's petition and ending with the adjudication.

  (2) Subsection (1) of this section shall not affect any security or charge in so far as it relates to—

  • (a) Money actually advanced or paid, or the actual price or value of property sold or supplied, or any other valuable consideration given in good faith, by the grantee of the security or charge to the grantor at the time of or at any time after the execution thereof; or

  • (b) The securing by the grantor of the security or charge of any unpaid purchase money owing by him to the grantee, whether for that property or not, if the instrument for securing the same is executed not later than 21 days after the date of the sale of the property.

  (3) For the purposes of subsection (2) of this section, where any security or charge was given by the bankrupt after the commencement of the period specified in subsection (1) of this section, all payments received by the grantee after the security or charge was given shall be deemed to have been appropriated so far as may be necessary towards repayment of money actually advanced or paid by the grantee to the grantor on or after the giving of the security or charge, or towards payment of the actual price or value of property sold by the grantee to the grantor on or after the giving of the security or charge, or towards payment of any other liability of the grantor to the grantee in respect of any other valuable consideration given in good faith on or after the giving of the security or charge:

  Provided that nothing in this subsection shall apply to any payments received by any registered bank within the meaning of the Reserve Bank of New Zealand Act 1989 in good faith in the ordinary course of its business and without negligence.

  (4) Subsection (1) of this section shall not affect any security or charge given—

  • (a) Pursuant to an agreement to give the security or charge if the agreement was made before the commencement of the period specified in the said subsection (1); or

  • (b) In substitution for an existing security or charge executed or given before the commencement of the said period:

    Provided that, unless the existing security or charge is one to which subsection (2) of this section relates, the said subsection (1) shall affect any such substituted security or charge to the extent that the amount secured by the substituted security or charge exceeds the amount secured by the existing security or charge, and to the extent that the value of the property subject to the substituted security or charge at the date of the substitution exceeds the value of the property subject to the existing security or charge at that date.

  Compare: 1908 No 12 s 79(2)

  The words “registered bank”, in the proviso to subsection (3), were substituted, as from 1 February 1990, for the words “trading bank” pursuant to section 187 Reserve Bank of New Zealand Act 1989 (1989 No 157).

  The reference to the Reserve Bank of New Zealand Act 1989, in the proviso to subsection (3), was substituted for a reference to the Reserve Bank of New Zealand Act 1964, as from 1 February 1990, pursuant to section 186(1) Reserve Bank of New Zealand Act 1989 (1989 No 157).

58 Assignee may recover property or value thereof

• (1) In any case where, under any of the provisions of section 54 (except subsection (3)) of this Act, sections 56, 57, and 162 of this Act, and section 60 of the Property Law Act 1952, any disposition is voidable as against the Assignee or as against the appointee within the meaning of Part 17 of this Act, if the Assignee or appointee wishes to set aside the disposition, he shall do so by filing the prescribed notice in the Court and serving a copy thereof on the persons on whom service is required in accordance with regulations made under this Act.

  (2) Subject to the provisions of subsections (4) and (5) of this section, in any case where any such disposition is set aside, the Court may—

  • (a) Order that the person to whom the disposition was made, or his personal representative, or any person claiming through him (not being a person claiming through him who received the property comprised in the disposition or any part of it or any interest in it, as the case may be, in good faith and for valuable consideration or who claims through such a person), shall transfer to the Assignee or appointee the property or any part of it or any interest in it retained by him:

  • (b) Order that the person to whom the disposition was made, or his personal representative, or any person claiming through him (not being a person claiming through him who received the property comprised in the disposition or any part of it or any interest in it, as the case may be, in good faith and for valuable consideration or who claims through such a person), shall pay to the Assignee or appointee such sum, not exceeding the value of the property when the disposition was set aside, as the Court thinks proper.

  (3) For the purpose of giving effect to any order under subsection (2) of this section the Court may make such further order as it thinks fit.

  (4) Subject to subsections (5) and (6) of this section, the remedies given to the Assignee by subsections (2) and (3) of this section are in addition to all other rights and remedies (if any) available to the Assignee or appointee, and nothing in the said subsections (2) and (3) shall restrict any such other rights and remedies.

  (5) A disposition that has been made in favour of any person may be set aside pursuant to subsection (1) of this section notwithstanding that the property or part of it or any interest in it has at the time of the setting aside been received by any other person in good faith and for valuable consideration, but the Assignee or appointee shall not have any right or remedy against that other person if that other person claims through a person to whom the disposition was originally made by or on behalf of the bankrupt.

  (6) Recovery by the Assignee or appointee of any property or the value thereof (whether under this section or under any other provision of this Act or under any other enactment or in equity or otherwise) may be denied wholly or in part if—

  • (a) The person from whom recovery is sought received the property in good faith and has altered his position in the reasonably held belief that the transfer or payment of the property to him was validly made and would not be set aside; and

  • (b) In the opinion of the Court it is inequitable to order recovery or recovery in full, as the case may be.

  (7) Nothing in the Land Transfer Act 1952 shall restrict the operation of this section.

  Compare: 1908 No 12 s 79(3); 1963 No 71 s 81; Bankruptcy Act 1949 s 66 (Canada)

  Subsection (1) was amended, as from 1 February 2002, by section 63(3) Property (Relationships) Amendment Act 2001 (2001 No 5) by omitting the expression “section 43(3) of this Act”. See section 63(5) of that Act which states that “in any case where a person has been adjudged bankrupt, or there has been or order or election to administer an estate under Part 17 of the Insolvency Act 1967”, before 1 February 2001, the Insolvency Act 1967 applies as if section 63 of that Act had not been enacted.

59 Procedure on second bankruptcy

• (1) Notwithstanding anything to the contrary in section 42 of this Act, where after the commencement of this Act an undischarged bankrupt again becomes bankrupt—

  • (a) All the property that may have been acquired by or devolved on the bankrupt since the adjudication in respect of the former bankruptcy and all property that has been acquired by or devolved on the bankrupt since the later bankruptcy and before his discharge from that bankruptcy shall vest in the Assignee of the later bankruptcy:

    Provided that nothing in this paragraph shall upset any payment or disposition by or with the concurrence of the Assignee in the former bankruptcy:

  • (b) The Assignee in the later bankruptcy shall pay any surplus to the Assignee in the former bankruptcy who shall treat it as an asset in the estate in the former bankruptcy:

  • (c) Where the Assignee in any bankruptcy receives notice of a subsequent petition against the bankrupt, the Assignee shall hold any property then in his possession which has been acquired by or has devolved on the bankrupt since adjudication until the petition has been disposed of, and if on the petition an order of adjudication is made, or if he receives notice that the bankrupt has filed a debtor's petition, he shall transfer all such property or the proceeds thereof (deducting his costs and expenses) to the Assignee in the later bankruptcy.

  (2) Notwithstanding anything in subsection (1) of this section, if the Court is of the opinion that any of the assets in the later bankruptcy were acquired independently of the creditors in that bankruptcy, or if any of the assets devolved on the bankrupt, the Court may, if it thinks just so to do, order that all or any part of the assets that were so acquired or so devolved or the proceeds thereof shall vest in the Assignee in the former bankruptcy.

  Compare: UK Act s 39

60 General duties of bankrupt

• In addition to every other duty imposed on the bankrupt by this Act or any other enactment or by law, he shall, to the utmost of his power, aid in the realisation of his property and the distribution of the proceeds amongst his creditors; and, more particularly, shall from time to time—

  • (a) Give a complete and accurate list of his property and of his creditors and debtors and such other information as to his property as the Assignee requires; and attend before the Assignee whenever called upon to do so; and, if required to do so by the Assignee, verify any statement by statutory declaration:

  • (b) Disclose to the Assignee as soon as practicable any property which may be acquired by him before his discharge and would be divisible amongst his creditors:

  • (c) Supply to the Assignee such information as he may require regarding his expenditure and sources of income after adjudication:

  • (d) Execute such powers of attorney, conveyances, transfers, deeds, assurances, and instruments, and generally do all such acts and things in relation to his property (whether within or outside New Zealand) and the distribution of the proceeds amongst his creditors, as are required by the Assignee, or prescribed by any regulations or rules made under this Act, or directed by the Court by any order made in reference to any particular bankruptcy, or on any application by the Assignee or any creditor:

  • (e) Deliver on demand all or any of his property that is divisible amongst his creditors and is under his possession or control to the Assignee or anyone authorised by him to take possession of it or any part thereof:

  • (f) Deliver on demand to the Assignee or anyone authorised by him any property that is acquired by him before his discharge:

  • (g) Notify the Assignee immediately in writing of any change of his address, and of any change of his employment and of any change of his name.

  Compare: 1908 No 12 ss 60, 86

61 Bankrupt to give up books, etc, to Assignee and to make out statement of financial position, etc

• (1) Immediately upon adjudication the bankrupt shall deliver up to the Assignee, at his office, all books of account, papers, deeds, instruments, and writings relating to his estate in his custody or power, and discover such as are in the custody or power of any other person; and shall furnish from time to time such information and particulars as are necessary to enable the Assignee or any person employed by him to prepare the bankrupt's statement of financial position of his estate.

  (2) If so required by the Assignee, the bankrupt shall, within a reasonable time, prepare and deliver to the Assignee full, true, and particular accounts and statements of financial position, showing the particulars of his trading and of his stocktaking, and of his profits or losses during any period not being earlier than 3 years before the commencement of the bankruptcy, and for this purpose he shall have full access to all his books and papers in the possession of the Assignee, and, if necessary in the opinion of the Assignee, he shall have the assistance of an accountant at the expense of the estate.

  Compare: 1908 No 12 s 59

  Section 61 was amended, as from 1 October 1997, pursuant to 6(1) Financial Reporting Amendment Act 1997 (1997 No 17) by substituting the words “statement of financial position” for the words “balance sheet”.

62 Prohibition of bankrupt entering business

• (1) An undischarged bankrupt must not, without the consent of the Assignee or the Court either directly or indirectly,—

  • (a) enter into, carry on, or take part in the management or control of, any business:

  • (b) be employed by a relative of the bankrupt or by any company, trust, trustee, or incorporated society, that is managed or controlled by a relative of the bankrupt.

  (2) Nothing in this section restricts section 151 of the Companies Act 1993.

  Subsection (1)(a) was amended, as from 1 July 1994, by section 2(1) Insolvency Amendment Act 1993 (1993 No 116) by omitting the words “, or become a director of”.

  Subsection (2) was substituted, as from 1 July 1994, by section 2(2) Insolvency Amendment Act 1993 (1993 No 116).

  Section 62 was substituted, as from 3 May 2001, by section 4 Insolvency Amendment Act 2001 (2001 No 22).

63 Court may order debtor to be arrested

• (1) On the application of any creditor made at any time after the filing of a petition against a debtor and before adjudication, or on the application of the Assignee made at any time after he has been appointed an interim receiver or after the order of adjudication and before the discharge of the bankrupt, if it appears that there is probable ground for believing that the debtor is about to go abroad or quit his place of residence either temporarily or permanently with a view to defeating, delaying, or embarrassing proceedings under this Act, the Court may by warrant cause the debtor to be arrested and kept in custody until he finds sureties to the satisfaction of the Court that he will appear and attend from time to time as the Court orders until he is discharged by the Court.

  (2) Any person so arrested may apply to the Court at any time for a summons against the Assignee or creditor to show cause why he should not be discharged from custody.

  Compare: 1908 No 12 s 88

  Subsection (1) was amended, as from 3 May 2001, by section 5 Insolvency Amendment Act 2001 (2001 No 22) by inserting the words “either temporarily or permanently”.

64 Court may order debtor's property to be seized

• (1) On the application of any creditor made at any time after the filing of a petition against a debtor and before adjudication, or on the application of the Assignee made at any time after he has been appointed an interim receiver, if it appears that there is probable ground for believing—

  • (a) That the debtor is about to remove any of his property with a view of preventing or delaying possession being taken of the property for the purposes of this Act, or that he has concealed or is about to conceal or destroy any of his property or any of his books, documents, or writings; or

  • (b) That the debtor is about to go abroad or has gone abroad or quit his place of residence either temporarily or permanently with a view of defeating, delaying, or embarrassing proceedings under this Act,—

  the Court may order that any of the property of the debtor (wheresoever it may be found) shall be seized and kept until such time as the Court directs; and, upon the making of such an order, all the provisions of section 65 of this Act shall apply as if the person had been adjudged bankrupt.

  (2) Any person whose property is seized under subsection (1) of this section may apply at any time to the Court for a summons against the Assignee or creditor to show cause why his property should not be delivered up to him, and the Court may make such order as it thinks fit.

  Compare: 1908 No 12 s 88

  Subsection (1)(b) was amended, as from 3 May 2001, by section 6 Insolvency Amendment Act 2001 (2001 No 22) by inserting the words “either temporarily or permanently”.

65 Seizure of bankrupt's property

• (1) If authorised by a warrant issued by the Court, the Assignee or any other person, together with such assistants as may be necessary, may seize any part of the property of a bankrupt in the custody or possession of the bankrupt or of any other person, and, with a view to such seizure, break open any building or room of the bankrupt where the bankrupt is supposed to be, or any building or receptacle of the bankrupt where any of his property is supposed to be, and seize and take possession of his property therein.

  (2) Where there is reason to believe that any property of the bankrupt, or any book, paper, or document relating to the affairs or property of the bankrupt, is concealed in any building, aircraft, ship, carriage, vehicle, premises, or place, the Court may, if it thinks fit, grant a search warrant to the Assignee or any other person authorising the Assignee or other person named in the warrant, together with such assistants as may be necessary, to enter and search the building, aircraft, ship, carriage, vehicle, premises, or place and to seize and take possession of any such property or books, papers, or documents, and (if necessary) to use force for making entry, whether by breaking open doors or otherwise, and to break open any box or receptacle therein or thereon by force if necessary.

  Compare: 1908 No 12 s 89

66 Bankrupt refusing to quit tenement

• Notwithstanding anything in the Land Transfer Act 1952, if the bankrupt or the wife or husband of the bankrupt or any member of his or her family refuses, when required by the Assignee, to quit and deliver up possession of any tenement forming part of the property vested in the Assignee under the bankruptcy, the Assignee may apply to a District Court for an order that the person forthwith quit and deliver up possession of the premises, and that Court may make such order as it thinks fit.

  Compare: 1908 No 12 s 90

67 Redirection to Assignee of letters of bankrupt

• (1) The Court, upon the application of the Assignee, may from time to time order that, for such time as it thinks fit, postal articles addressed to the bankrupt shall be redirected, sent, or delivered by the Postmaster-General to the Assignee, or otherwise as the Court directs. Any such articles may be opened by the Assignee, and any property therein belonging to the bankrupt may be retained by the Assignee and shall form part of the bankrupt's estate.

  (2) The Court, upon the application of an Assignee appointed receiver and manager of the property of a debtor under section 27 of this Act, may from time to time order that, for such time as it thinks fit, postal articles addressed to the debtor shall be redirected, sent, or delivered by the Postmaster-General to the Assignee or otherwise as the Court directs. Any such articles may be opened by the Assignee, and any property therein belonging to the debtor may be retained by the Assignee in accordance with the provisions of the said section 27.

  Compare: 1908 No 12 s 91

68 Assignee may examine persons respecting bankrupt or his property

• (1) The Assignee may, at any time before or after the making of the order of discharge, summon to appear before him and examine on oath—

  • (a) The bankrupt; or

  • (b) The wife or husband of the bankrupt; or

  • (c) Any other person known or suspected to have in his possession any of the property, or any book, paper, or document relating to the affairs or property, of the bankrupt, or supposed to be indebted to the bankrupt, or whom he thinks capable of giving any information respecting the bankrupt, his trade, dealings, or property, or concerning his income from any source, or his expenditure—

  and may require the person so summoned to produce and surrender to the Assignee any book, paper, or document in his custody or power relating to the dealings or property of the bankrupt.

  (2) The Assignee may, instead of summoning before himself and examining the bankrupt or such other person as aforesaid, summon him to appear before a District Court Judge or another Assignee at an appointed time and place, and the District Court Judge or other Assignee is hereby empowered to administer the oath and conduct the examination.

  (3) The examination of the bankrupt and every such person shall be committed to writing, and the bankrupt or other person, on being required to do so, shall sign the same.

  (4) If the bankrupt or any other person so summoned fails without reasonable excuse to come before the Assignee or District Court Judge at the time appointed, then the District Court Judge or the Court may, on the application of that Assignee, by warrant, cause the bankrupt or any such person to be apprehended and brought up for examination before the Court.

  (5) All expenses occasioned by such apprehension and examination before the Court may be ordered to be paid by the person apprehended and examined, if it appears to the Court that the evidence given by him was necessary for the purposes of the estate.

  (6) The bankrupt, and every other person attending on any such summons, may have such expenses allowed to him or them as may be prescribed by regulations made under this Act, and no person so summoned to attend shall be liable to any penalty or punishment for failing to obey the summons unless the prescribed expenses of his attendance are first paid or tendered to him.

  (7) Save with the consent of the Court, on the application of the Assignee and subject to such conditions as the Court may prescribe, it shall not be lawful for any person to publish a report of any examination held before an Assignee or District Court Judge under this section or of any matter arising in the course of any such examination; and every person who, in breach of this subsection, publishes any such report commits an offence and is liable on summary conviction to a fine not exceeding $200.

  (8) A person in respect of whose property an Assignee has been appointed a receiver and manager under section 27 of this Act shall for the purpose of this section be deemed to be a bankrupt.

  Compare: 1908 No 12 s 92

  The words “District Court Judge” were substituted for the word “Magistrate”, as from 1 April 1980, pursuant to section 18(2) District Courts Amendment Act 1979 (1979 No 125).

68A Assignee may obtain documents

• The Assignee may, by notice in writing, require the bankrupt, the bankrupt's spouse, or any other person to deliver to the Assignee any book, paper, or document relating to the dealings or property of the bankrupt in that person's possession or under that person's control as the Assignee requires.

  Section 68A was inserted, as from 3 May 2001, by section 7 Insolvency Amendment Act 2001 (2001 No 22).

69 If Assignee or creditors desire it, bankrupt to be publicly examined

• (1) If the Assignee, at any time after adjudication and before the making of an absolute order of discharge, files in the Court a statement to the effect that it is desirable that the bankrupt should submit to a public examination, or if the creditors, at any meeting before the making of an absolute order of discharge, pass an ordinary resolution to the like effect, and a copy of the resolution certified by the Assignee or chairman is filed in the Court, the Court shall hold a public sitting for the examination of the bankrupt as soon as practicable after the expiration of 7 days after the date on which notice of the filing of the statement or certified resolution is served on the bankrupt; and the bankrupt shall attend thereat, and shall be examined as to his conduct, dealings, and property.

  (2) At least 7 days' notice of the intention to hold the examination shall be advertised in the prescribed manner by the Assignee and shall be sent to the creditors.

  (3) Before any such examination, the Assignee shall file in the Court a full report on the estate, and the conduct of the bankrupt, and on all other matters with which it is desirable for the purposes of this Act that the Court should be acquainted.

  (4) The Assignee, or any creditor who has proved his claim, or the counsel for the Assignee or for any creditor who has proved his claim, may, without any notice to the bankrupt, examine him.

  (5) The bankrupt shall be examined upon oath, and it shall be his duty to answer all such questions as the Court puts or allows to be put to him.

  (6) Such notes of the examination as the Court thinks proper shall be taken down in writing, and shall be read over to and signed by the bankrupt, and they shall be open to the inspection of any creditor or his solicitor at all reasonable times.

  (7) The bankrupt shall not be deemed to have passed his public examination until the Court, by order, declares that his affairs have been sufficiently investigated and that his examination is finished.

  (8) The provisions of subsections (4), (5), and (6) of section 68 of this Act shall apply in connection with any public examination under this section as if it were an examination under that section.

  Compare: 1908 No 12 s 124

70 Privilege and representation of witnesses

• (1) Any bankrupt or other person who is being examined by the Court, or by an Assignee or a District Court Judge, under any of the powers given by this Act, shall answer all questions relating to the business or property of the bankrupt, to the causes of bankruptcy, and to the disposition of the bankrupt's property, and shall not be excused from answering any question on the ground that the answer may incriminate or tend to incriminate him.

  (2) A statement made by any bankrupt or person in answer to any question put by or before the Court, or an Assignee or a District Court Judge, shall not, in criminal proceedings, be admissible in evidence against the maker of the statement, except upon a charge of perjury against the maker of the statement in respect of his sworn testimony upon the examination or a charge under paragraph (c) of subsection (1) of section 128 of this Act.

  (3) Whenever a bankrupt or other person is examined by the Court, or by an Assignee or a District Court Judge, under any of the powers given by this Act, he may be represented by counsel who may also examine him; and his answers to counsel shall form part of his examination.

  Compare: 1908 No 12 s 93

  The words “District Court Judge” were substituted for the word “Magistrate”, as from 1 April 1980, pursuant to section 18(2) District Courts Amendment Act 1979 (1979 No 125).

71 Assignee's general powers

• Subject to the provisions of this Act, the Assignee may—

  • (a) Hold property of every description:

  • (b) Bring, institute, or defend any action or other legal proceedings relating to the property of the bankrupt, and also, with the leave of the Court in which any proceedings were commenced by the debtor before adjudication, continue the proceedings in his own name:

  • (c) Refer any dispute to arbitration, compromise all debts, claims, and liabilities, whether present or future, certain or contingent, liquidated or unliquidated, subsisting or supposed to subsist between the bankrupt and any person who may have incurred any liability to the bankrupt, on the receipt of such sums, payable at such times, and generally on such terms as are agreed upon:

  • (d) Make such compromise or other arrangements as are thought expedient with creditors, or persons claiming to be creditors, in respect of any debts provable under the bankruptcy:

  • (e) Accept as the consideration for the sale of any property of the bankrupt a sum of money payable at a future time, subject to such conditions as to security and otherwise as the Assignee thinks fit:

  • (f) Make such compromise or other arrangements as are thought expedient with respect to any claim arising out of or incidental to the property of the bankrupt, made or capable of being made on the Assignee by any person or by the Assignee on any person:

  • (g) Carry on the business of the bankrupt as far as is necessary or expedient for the beneficial disposal of the same, and for that purpose may employ and pay the bankrupt or any other person:

  • (h) Expend money of the bankrupt's estate for the repair, maintenance, upkeep, or renovation of the property of the bankrupt, whether or not the work is necessary for the purpose of the salvage of the property:

  • (i) Borrow any money and mortgage any property of the bankrupt:

  • (j) Employ any person to transact any business or do any act required to be transacted or done in the course of administration of a bankruptcy, including the receipt and payment of money:

  • (k) Prove and draw a dividend in respect of any debt due to the bankrupt:

  • (l) Divide in its existing form amongst the creditors according to its estimated value any property which from its peculiar nature or other special circumstances cannot readily or advantageously be sold:

  • (m) Give receipts and execute discharges and releases for any money received by him, which receipts, discharges, or releases shall effectively discharge the person paying the money from all responsibility in respect of the application thereof, and execute any powers of attorney, deeds, and other instruments for the purpose of carrying into effect the provisions of this Act:

  • (n) Exercise in relation to the bankrupt's property any power conferred on a trustee by the Trustee Act 1956 or by the Court under that Act; and for the purposes of the exercise and conferring of those powers the Assignee shall be deemed to be the trustee of the bankrupt's property:

  • (o) Exercise any authority or power or do any act in relation to the bankrupt's property which the bankrupt could have exercised or done if he were not bankrupt:

  • (p) From time to time appoint an agent by power of attorney or otherwise to act for him, either in or out of New Zealand, in respect of any particular estate or estates, and delegate to any such agent all or any of the powers hereby conferred upon the Assignee in respect of the estate or of any bankrupt, and from time to time revoke any such appointment and fix the remuneration for any such agent, which shall be paid out of the estate:

  Provided that the powers conferred upon the Assignee by this section shall be in furtherance of and not in limitation of all other powers vested in him.

  Compare: 1908 No 12 ss 25, 63, 70

72 Power of Assignee to sell

• (1) Subject to the provisions of this Act, the Assignee may sell the whole or any part of the property of the bankrupt by public auction or public tender on such terms and conditions as he thinks fit, with power to buy in at any auction or to rescind or vary any contract for sale on such terms as he thinks fit, and with power also to sell the whole thereof to any person or to sell the same in parcels and in any order.

  (2) In addition to the powers given by subsection (1) of this section, but subject to the provisions of this Act, the Assignee may sell by private contract—

  • (a) Any perishable property:

  • (b) Any property offered for sale by public auction or public tender and not sold:

  • (c) Any property which, by reason of its nature, situation, value, or other special circumstances, he considers it unnecessary or inadvisable to sell by public auction or public tender:

  • (d) Any property for which authority has been given by a resolution of creditors to sell by private contract:

    Provided that the sale shall be in accordance with the terms of the authority so conferred:

  • (e) Securities in any company, securities of the Government of New Zealand, and securities issued by any local authority, if the sale is made through a person authorised to undertake trading activities on a registered exchange's securities market (within the meaning of section 2(1) of the Securities Markets Act 1988).

  (3) The Assignee may surrender to a building society in accordance with the rules of the society any shares of the bankrupt in the society.

  (4) Except in the case of perishable property or any property the sale of which might, in the opinion of the Assignee, be prejudiced from any cause by the delay, none of the property of the bankrupt shall be sold until after the date fixed for the first meeting of creditors:

  Provided that the Assignee may, after consulting with any creditor or creditors, sell any property before the date fixed for the first meeting if expenses will be incurred by the delay.

  (5) Where a document is made or executed in professed exercise of the power to sell conferred by this section, the title of any person acquiring title thereunder shall not be impeachable except on the ground of fraud, or be affected on the ground that no case has arisen to authorise the sale, or that the power was otherwise improperly or irregularly exercised.

  Compare: 1908 No 12 s 63(a); 1927 No 41 s 4

  Section 72(2)(e): amended, on 24 November 2009, pursuant to section 23(3) of the Securities Markets Amendment Act 2009 (2009 No 54).

  Subsection (2)(e) was amended, as from 1 December 2002, by section 30 Securities Markets Amendment Act 2002 (2002 No 44) by substituting the words “person authorised to undertake trading activities on a registered exchange's market (within the meaning of section 2(1) of the Securities Markets Act 1988)” for the words “member of a registered stock exchange”.

  Subsection (2)(e) was amended, as from 1 July 2003, by section 262 Local Government Act 2002 (2002 No 84) by omitting the words “within the meaning of Part 1 of the Local Authorities Loans Act 1956”. See sections 273 to 314 of that Act as to the savings and transitional provisions.

73 No lien over bankrupt's books, etc

• (1) No person shall be entitled as against the Assignee to withhold possession of any deed or instrument belonging to the bankrupt, or the books of account or any accounts, receipts, bills, invoices, or other papers of a like nature relating to the accounts or trade dealings or business of the bankrupt or to claim any lien thereon.

  (2) Any person (other than the wife or husband of the bankrupt) to whom a debt is owing in respect of services performed in connection with the books of account of the bankrupt or any deed or instrument over which that person would but for subsection (1) of this section have had a lien shall be entitled to be treated as a preferential creditor in the bankruptcy up to an amount not exceeding $100 for those services in accordance with section 104(1)(d)(v).

  Compare: 1941 No 26 s 4; 1908 No 12 s 174(5)

  Subsection (2) was amended, as from 29 May 2004, by section 3 Insolvency Amendment Act 2004 (2004 No 11) by substituting the expression “section 104(1)(d)(v)” for the words “subparagraph (iii) of paragraph (d) of subsection (1) of section 104 of this Act”.

74 Assignee may exercise bankrupt's right to transfer stock, etc

• (1) When any part of the property of the bankrupt consists of securities in any company, securities of the Government of New Zealand, securities issued by any local authority, shares in ships, or any other property transferable in the books of any company, office, or person, standing in his name in his own right, the Assignee may exercise the right to transfer the property to the same extent as the bankrupt might have exercised it if he had not become bankrupt; and all persons whose acts or consents are necessary shall, at the request of the Assignee, do whatever is necessary to enable the transfer to be completed.

  (2) Where consent is required to the transfer of any such securities of a company, then, notwithstanding anything expressed to the contrary in the articles of association or the constitution of the company, that consent shall not be unreasonably withheld.

  (3) Where in accordance with the articles of association or the constitution of a company any such securities must be offered for sale to a member or shareholder of the company, the member or shareholder shall, if he or she agrees to purchase, pay a reasonable price therefor.

  (4) Where, in accordance with section OD 1 of the Income Tax Act 2004, a company is deemed to be under the control of the bankrupt and any one or more of the following persons, namely, the bankrupt's wife or husband, a lineal ancestor or descendant of the bankrupt, the wife or husband of such an ancestor or descendant, a brother of the bankrupt, the wife of such a brother, a sister of the bankrupt, and the husband of such a sister, the Court may, on application by the Assignee, authorise the Assignee or a person appointed by him to examine the books and papers of the company and to examine on oath any member or shareholder of the company about the affairs of the company.

  Compare: 1908 No 12 s 85

  Subsection (1) was amended, as from 1 July 2003, by section 262 Local Government Act 2002 (2002 No 84) by omitting the words “within the meaning of Part 1 of the Local Authorities Loans Act 1956”. See sections 273 to 314 of that Act as to the savings and transitional provisions.

  Subsection (2) was amended, as from 1 July 1994, by section 2 Company Law Reform (Transitional Provisions) Act 1994 (1994 No 16) by inserting the words “within the meaning of the Companies Act 1955 and any company or overseas company within the meaning of the Companies Act 1993”.

  Subsection (3) was substituted, as from 1 July 1994, by section 2 Company Law Reform (Transitional Provisions) Act 1994 (1994 No 16).

  Subsection (4) was amended, as from 1 July 1994, by section 2 Company Law Reform (Transitional Provisions) Act 1994 (1994 No 16) by inserting the words “or shareholder”.

  Subsection (4) was amended, as from 1 April 1995, by section YB 1 Income Tax Act 1994 (1994 No 164) by substituting the words “section OD 1 of the Income Tax Act 1994” for the words “section 7 of the Income Tax Act 1976”. The reference to section 7 of the Income Tax Act 1976 replaced, as from 1 April 1977, an earlier reference to section 3 of the repealed Land and Income Tax Act 1954.

  Subsection (4) was amended, as from 1 April 2005, by section YA 2 Income Tax Act 2004 (2004 No 35) by substituting the words “Income Tax Act 2004” for the words “Income Tax Act 1994”

75 Disclaimer of onerous property other than shares

• (1) Where any property of the bankrupt (excluding shares in a company), whether acquired before or after the adjudication, is unsaleable or not readily saleable, the Assignee, notwithstanding that he has endeavoured to sell or has taken possession of the property, or exercised any act of ownership in relation thereto, but subject to the provisions of this section, may, by writing signed by him and filed in the Court within 12 months after the adjudication or such extended period as may be allowed by the Court, disclaim the property:

  Provided that, where any such property has not come to the knowledge of the Assignee within one month after the adjudication, or was not acquired by the bankrupt until after adjudication, he may disclaim that property at any time within 12 months after he has become aware thereof or within such extended period as may be allowed by the Court.

  (2) The disclaimer shall operate to determine, as from the date of disclaimer, the rights, interests, and liabilities of the bankrupt and his property in or in respect of the property disclaimed, and shall also discharge the Assignee from all personal liability in respect of the property disclaimed as from the time when the property vested in him, but shall not, except so far as is necessary for the purpose of releasing the bankrupt and his property and the Assignee from liability, affect the rights or liabilities of any other person.

  (3) The Assignee shall not be entitled to disclaim any property in pursuance of this section in any case where an application in writing has been made to the Assignee by any person who has any interest in the property requiring him to decide whether he will disclaim or not, and the Assignee has, for a period of 28 days after the receipt of the application, or such extended period as may be allowed by the Court, failed to give notice whether he disclaims the property or not.

  (4) Subject to subsection (7) of this section, the Court, on the application of—

  • (a) The Assignee; or

  • (b) Any person who claims any interest in any disclaimed property; or

  • (c) Any person who is under any liability not discharged by this Act in respect of any disclaimed property—

  may, on hearing such persons as the Court thinks fit, make an order for the vesting of the property or the delivery thereof in or to any person entitled thereto, or in or to any person to whom it seems just that it should be delivered by way of compensation for any liability referred to in paragraph (c) of this subsection, or in or to any other person whom the Court thinks fit, or in or to the bankrupt who shall be entitled to retain it as against the Assignee. Any such order shall be on such terms as the Court thinks fit, but no costs shall be payable by the Assignee in respect of any such order.

  (5) On any such vesting order being made, the property comprised therein shall vest accordingly in the person therein named in that behalf without any conveyance, transfer, or assignment for the purpose, subject and without prejudice to any underlease, subtenancy, or mortgage thereof, unless the underlessee, subtenant, or mortgagee consents to the vesting order.

  (6) The Court may, on any such application as aforesaid, make such orders with respect to fixtures, tenants' improvements, and other matters arising out of the tenancy of any property disclaimed as the Court thinks just.

  (7) Where the property disclaimed is a leasehold interest in any property, the Court shall not make a vesting order in favour of any person, except upon the terms of making the person subject to the same liabilities and obligations as the bankrupt was subject to under the lease in respect of the property at the date of adjudication.

  (8) The rights and powers of the lessor of any disclaimed land shall not be prejudiced or affected by the disclaimer or by any vesting order, or by anything contained in this section, except as expressly provided in this section.

  (9) Any person injured by the operation of a disclaimer under this section shall be deemed to be a creditor of the bankrupt to the extent of the injury, and may accordingly prove the same as a debt under the bankruptcy.

  Compare: 1908 No 12 s 84

76 Termination of contracts

• (1) If the bankrupt is party to any contract, the Assignee may,—

  • (a) Subject to the terms of the contract and to all relevant rules of law, continue the contract; or

  • (b) Terminate the contract by giving notice of termination to the other party and filing a copy thereof in the Court.

  (2) If the Assignee terminates the contract he shall have the same rights as the bankrupt would have had if the bankrupt had then terminated the contract.

  (3) The Assignee shall not be entitled to terminate any contract in pursuance of this section in any case where application in writing has been made to the Assignee by any party to the contract requiring him to decide whether to terminate the contract or not, and the Assignee has, for a period of 28 days after the receipt of the application or such extended period as may be allowed by the Court, failed to give notice whether he is terminating the contract or not. If the Assignee, after any such application, does not within the said period or extended period terminate the contract he shall be deemed to have continued it.

  (4) The Court may, on the application of any person who is, as against the Assignee, entitled to the benefit or subject to the burden of a contract made with the bankrupt, make an order terminating the contract on such terms as to payment by or to either party of damages for the non-performance of the contract or otherwise as the Court considers equitable. Any damages payable under the order to any such person may be proved by him as a debt under the bankruptcy.

  (5) Any person injured by the termination of a contract under this section shall be deemed to be a creditor of the bankrupt to the extent of the injury, and may accordingly prove the same as a debt under the bankruptcy.

  Compare: 1908 No 12 s 84

77 Termination of a contract otherwise than by Assignee

• Where a bankrupt is a party to a contract and that contract is on the adjudication terminated by the other party to the contract under the provisions of the contract, then, notwithstanding anything to the contrary in the contract, the Assignee shall be entitled to recover from the other party such sum as the Court thinks just and equitable in all the circumstances, not exceeding the amount by which the amount payable to the bankrupt under the contract exceeds the aggregate of the amount paid to the bankrupt plus the cost of completion of the contract and a reasonable penalty for delay in completion of the contract.

78 Disclaimer of liability under shares

• (1) The Assignee may, by serving notice of disclaimer on the company and filing a copy thereof in the Court, disclaim liability under any shares owned by the bankrupt in any company, whether the shares are acquired by the bankrupt before or after his adjudication.

  (2) The disclaimer shall operate to determine, as from the disclaimer, the liabilities of the bankrupt and his property in respect of the shares, and shall also discharge the Assignee from all personal liability in respect of the shares as from the time when the shares vested in him, but shall not, except so far as is necessary for the purpose of releasing the bankrupt and his estate and the Assignee from liability, affect the rights or liabilities of any other person.

  (3) The Assignee shall not be entitled to disclaim liability under any shares in pursuance of this section in any case where an application in writing has been made to the Assignee, by the company or any person having any interest in the shares, requiring him to decide whether he will disclaim or not, and the Assignee has, for a period of 28 days after the receipt of the application or such extended period as may be allowed by the Court, failed to give notice whether he disclaims liability under the shares or not.

  (4) Upon disclaimer the Assignee may, subject to the provisions of any other Act and to the rules of the company, transfer the shares—

  • (a) To any person having an interest in them; or

  • (b) To the bankrupt (with his consent), if no person has an interest in them or if the person having an interest in them declines to accept the transfer, and the bankrupt shall thereafter be entitled, as against the Assignee, to retain the shares and any money derived from the sale thereof.

  (5) If no transfer takes place pursuant to subsection (4) of this section, the directors of the company may sell or (subject to the approval of the Court and notwithstanding anything to the contrary in any enactment) cancel the shares as they think fit.

  (6) In any case where, because the bankrupt has ceased to be a director of the company on adjudication, the number of the directors has fallen below the minimum required by law or by the company's articles of association or constitution, the Assignee shall, for the purpose of enabling a transfer under subsection (4) of this section to be registered or for the purpose of enabling the shares to be sold or cancelled under subsection (5) of this section, be deemed to be a director of the company.

  (7) Where the Assignee has disclaimed liability under any shares in a company that has not been put into liquidation, the company may prove for the amount of calls made before adjudication in respect of the shares held by the bankrupt and not paid, and may also prove for the value, estimated as the Assignee and the company may agree or failing agreement as the Court directs, of the liability for calls to be made in respect of the shares within one year after the adjudication.

  (8) In estimating any such liability in the case of a mining company registered under the Companies Act 1955, the Court shall have due regard to the provisions of that Act relating to the forfeiture of shares in a mining company on which a call remains unpaid.

  Compare: 1908 No 12 ss 84, 111

  Subsection (6) was amended, as from 1 July 1994, by section 2 Company Law Reform (Transitional Provisions) Act 1994 (1994 No 16) by inserting the words “or constitution”.

  Subsection (7) was substituted, and subsection (8) was inserted, as from 1 July 1994, by section 2 Company Law Reform (Transitional Provisions) Act 1994 (1994 No 16).

79 Liability for rentcharge on bankrupt's land after disclaimer

• (1) Where, on a disclaimer under section 75 of this Act, land subject to a rentcharge vests in the Crown or any other person, that shall not, subject to subsection (2) of this section, impose on the Crown or the said other person or its or his successors in title any personal liability in respect of the rentcharge.

  (2) This section shall not affect any liability in respect of sums accruing due after the Crown or the said other person, or some person claiming through or under the Crown or the said other person, has taken possession or control of the land or has entered into occupation thereof.

  (3) This section shall apply to land vesting and sums accruing due before, as well as after, the commencement of this Act.

  Compare: 1908 No 12 s 84A; 1956 No 60 s 10

80 Assignee's duties in respect of land subject to a mortgage

• (1) Where any interest in land is owned by the bankrupt and is subject to a mortgage or charge, the Assignee, if he does not disclaim, shall either—

  • (a) Register under the Land Transfer Act 1952 transmission of the interest in the land to him; or

  • (b) Give notice to the mortgagee or other person entitled under the charge that he does not intend so to register transmission or cannot register transmission.

  (2) Notice under paragraph (b) of subsection (1) of this section shall be deemed to be notice to the mortgagee or any other person entitled under the charge that the interest of the bankrupt has vested in the Assignee. Thereupon the mortgagee or person entitled under the charge shall, in the event of entering into possession or selling, be liable to account to the Assignee as if the Assignee were the registered proprietor.

  (3) In any case where the Assignee does not register transmission, whether or not notice has been given in accordance with paragraph (b) of subsection (1) of this section, if the bankrupt is in possession of the interest in the land at the time of the adjudication and remains in possession thereof until his discharge from the bankruptcy, then, as from his discharge, the Assignee shall not be entitled to claim the interest in the land unless he obtains the consent of the Court. The Court may give or refuse to give consent having regard to the good faith of the bankrupt, the length of time from the date of adjudication, the value of the improvements made by the bankrupt, and all other relevant matters.

81 Banking and investment of money received by Assignee

• (1) The Assignee shall have a bank account into which he shall pay all money received by him in a manner prescribed by regulations made under this Act.

  (2) The Assignee may, with the approval of the Controller and Auditor-General, invest money not required for immediate disbursement in respect of a particular estate in any investments so approved. Any interest or dividends so accruing shall be credited to that estate.

  Compare: 1908 No 12 s 119; 1931 No 5 s 18; 1933 No 41 s 50

82 Bankruptcies involving partnerships

• (1) Under every adjudication made against 2 or more persons jointly, distinct accounts shall be kept by the Assignee of the joint estate and also of the separate estate of each bankrupt; and the joint estate shall be applied in the first place in satisfaction of the debts due by the bankrupts jointly, and the separate estate shall be applied in the first place in satisfaction of the debts of the separate creditors; and in case there is a surplus of the separate estate, that surplus shall be carried to the account of the joint estate; and in case there is a surplus of the joint estate, that surplus shall be carried to the account of the separate estate of each bankrupt in proportion to the right and interest of each bankrupt in the joint estate.

  (2) When a member of a partnership is adjudged bankrupt, the Court may authorise the Assignee to commence and prosecute any action in the names of the Assignee and of the bankrupt's partner; and any release by the partner of the debt or demand to which the action related shall be void; but notice of the application for authority to commence the action shall be given to him, and he may show cause against it, and on his application the Court may, if it thinks fit, direct that he shall receive his proper share of the proceeds of the action, and if he does not claim any benefit therefrom he shall be indemnified against costs in respect thereof as the Court directs.

  Compare: 1908 No 12 ss 72, 73

83 Bankruptcy discharges liability of bankrupt and certain employees

• (1) Subject to subsections (2) and (3) of this section, where at the time any person (hereafter in this section referred to as the bankrupt) is adjudicated bankrupt, the bankrupt employs any person who is not an apprentice within the meaning of the Apprenticeship Act 1983 (hereafter in this section referred to as the employee) under any written contract of employment that provides for the training of the employee in any profession or occupation, that adjudication shall, as between the bankrupt and the employee, be a complete discharge of their respective liabilities under that contract.

  (2) If the employee so requests, the bankrupt shall, at the cost of the employee, assign the employee to any person specified by the employee in that behalf; and any service of the employee with that person shall, to the extent of the time of that service, be deemed to have been good service under the contract between the bankrupt and the employee.

  (3) If, after the bankrupt has obtained a discharge, the Court is of the opinion that the bankrupt is in a position to accept the services of the employee for the remainder of the term of the contract between them, the Court may, on the application of the employee, order the term of the training to be completed from a date specified in the order, upon the same terms as originally provided.

  Section 83 was substituted, as from 1 November 1983, by section 58(1) Apprenticeship Act 1983 (1983 No 16).

84 Discretion of Assignee

• (1) Subject to the provisions of this Act, the Assignee shall, in the administration of the property of the bankrupt, have regard to any resolution of the creditors at any meeting.

  (2) In any case where the Assignee or any creditor is of the opinion that any such resolution conflicts with this Act or any rule of law or is unjust or is not fair or equitable, the Assignee or any creditor may, if he thinks fit, apply to the Court for directions in the matter.

  (3) Subject to the provisions of this Act, the Assignee shall use his own discretion in the management of the estate.

  Compare: 1908 No 12 s 64

85 Assignee may obtain directions of Court

• (1) The Assignee may apply to the Court for its opinion, advice, or direction on any question respecting the administration of the property of the bankrupt or its distribution among his creditors, or respecting the powers, duties, and discretions, of the Assignee.

  (2) Any Assignee acting under any opinion, advice, or direction of the Court shall be deemed to have discharged his duty as Assignee in the subject-matter of the application, notwithstanding that the order giving the opinion, advice, or direction is subsequently invalidated, overruled, set aside, or otherwise rendered of no effect:

  Provided that this subsection shall not extend to indemnify any Assignee in respect of any act done in accordance with any such opinion, advice, or direction if he has been guilty of any fraud or wilful concealment or misrepresentation in obtaining the opinion, advice, or direction or in acquiescing in the Court making the order giving the opinion, advice, or direction.

  Compare: 1908 No 12 s 65; 1956 No 61 s 69

86 Appeal from decision of Assignee

• If the bankrupt or any creditor or any other person is aggrieved by an act or decision of the Assignee, he may, within 21 days from the date of that act or decision or within such further period as the Court allows, apply to the Court, and the Court may confirm, reverse, or modify the act or decision complained of, and make such order as it thinks fit.

  Compare: 1908 No 12 s 66

87 Provable debts

• (1) Except as provided in subsections (2) and (3) of this section, all debts and liabilities, present or future, certain or contingent, to which the bankrupt is subject at the time of his adjudication, or to which he becomes subject before his discharge by reason of any obligation incurred before the time of his adjudication, shall be debts provable in bankruptcy.

  (2) Any fine or penalty imposed or order for the payment of money made pursuant to any conviction or under section 42 of the Criminal Justice Act 1954 or section 19 of the Criminal Justice Act 1985 or section 106 of the Sentencing Act 2002 shall not be provable in the bankruptcy, but the provisions of any other Act as to recovery of any such sum of money shall not be otherwise affected.

  (3) Where a person has been adjudged a bankrupt before the commencement of this Act, no debt or liability which would not have been provable in the bankruptcy if this Act had not been passed shall be provable in the bankruptcy.

  Compare: 1908 No 12 s 98

  Subsection (2) was amended by section 150(1) Criminal Justice Act 1985 (1985 No 87) by inserting the words “or section 19 of the Criminal Justice Act 1985”.

  Subsection (2) was amended, as from 30 June 2002, by section 186 Sentencing Act 2002 (2002 No 9), by inserting the words “or section 106 of the Sentencing Act 2002” after the words “Criminal Justice Act 1985”. See sections 148 to 160 of that Act for the transitional and savings provisions. See clause 2 Sentencing Act Commencement Order 2002 (SR 2002/176).

88 Creditors to prove upon adjudication

• (1) Every creditor shall prove his debt, whether a preferential claim or not, as soon as may be after the making of the order of adjudication.

  (2) A debt may be proved in such manner as may be prescribed by regulations made under this Act.

  (3) Subject to section 89 of this Act, a creditor shall bear the cost of proving his debt unless the Court orders otherwise.

  (4) Every creditor who has lodged a proof shall be entitled to see and examine the proofs of other creditors before the first meeting and at all reasonable times.

  (5) A creditor may from time to time amend or withdraw his proof. Every such amendment shall be subject to the same formalities as the original proof.

  Compare: 1908 No 12 s 100

89 Assignee to examine proofs and admit or reject

• (1) The Assignee shall have power to admit or reject proofs either wholly or in part, and he shall examine every proof and the grounds of the debt and, as soon as is convenient, admit it or reject it in whole or in part, or require further evidence in support of it.

  (2) The Assignee shall have power to summon before him, and to examine on oath or otherwise, any person who has tendered or made a proof, or who has made a declaration or statement, and may also summon before him any such person or any person capable of giving evidence concerning any such proof or the debt sought to be proved; and, if any person so summoned fails to attend, or refuses to be sworn or to give evidence, subsections (4) and (5) of section 68 of this Act shall be read as applicable to any summons or examination under this section.

  (3) If the Assignee rejects a proof, he shall forthwith serve notice on the creditor of the grounds of the rejection.

  (4) Within 21 days, or within such further time as the Court allows, after the Assignee has served notice on any creditor of the rejection of his proof, that creditor may apply to the Court to reverse or modify the decision, and the Court, on the hearing of the application, may reverse or modify the decision in whole or in part or uphold it. If no application is made under this subsection, the creditor shall have no right to prove for the debt or claim in respect of which the proof has been disallowed.

  (5) The Court may, if it thinks that a proof has been improperly admitted, on the application of the Assignee or the bankrupt or any creditor, after notice to the creditor who made the proof, expunge the proof or reduce its amount.

  (6) If the Assignee fails to decide upon the admission or rejection of a proof for 14 days after notice to decide upon it has been given to him by the bankrupt or any creditor, the Court may, on the application of the bankrupt or that creditor, admit or reject the proof or make such other order as it thinks fit.

  (7) The Assignee shall be a party to any application under any of the provisions of subsections (4) to (6) of this section; and the bankrupt and any creditor may give notice to the Court hearing the proceedings, and upon so doing shall be deemed to be a party to the proceedings.

  (8) If a proof is for a sum of not more than $200,000, an application under any of subsections (4) to (6) may be made to a District Court; and in that case—

  • (a) the High Court Rules and sections 71 to 78 of the District Courts Act 1947, with all necessary modifications, apply to an appeal under subsection (1) as if the application were an action commenced pursuant to that Act and the amount of the proof in dispute were the amount of a claim:

  • (b) the provisions of the District Courts Act 1947 as to transfers of proceedings to the High Court apply as if the application were an action commenced pursuant to that Act and the amount of the proof in dispute were the amount of a claim:

  • (c) with the leave of the High Court, any party may appeal to the Court of Appeal from a decision of the High Court under this subsection.

  (9) Where the application is transferred to or heard by the High Court the provisions of subsection (2) of section 8 of this Act shall apply.

  (10) In any proceedings in a Court under this section, the Court before which the proceedings are heard may, if it thinks fit,—

  • (a) Allow any costs of any creditor to be added to his proof of debt:

  • (b) Allow any costs of any party to be paid out of the bankrupt's estate:

  • (c) Order any costs to be paid by any party to the proceedings other than the Official Assignee.

  Compare: 1908 No 12 s 101

  Subsection (8) was amended by section 16(1) District Courts Amendment Act 1979 (1979 No 125) by substituting the expression “$12,000” for the expression “$2,000”. The sum was further increased to $50,000, as from 1 July 1992, by section 10 District Courts Amendment Act 1989 (1989 No 107), and to $200,000 by section 19(1) District Courts Amendment Act 1991 (1991 No 61).

  In subsection (8) the words “District Court” were substituted for the words “Magistrate's Court”, as from 1 April 1980, pursuant to section 18(2) District Courts Amendment Act 1979 (1979 No 125).

  In subsections (8) and (9) the words “High Court” were substituted for the words “Supreme Court”, as from 1 April 1980, pursuant to section 12 Judicature Amendment Act 1979 (1979 No 124).

  Subsection (8) was substituted, as from 24 November 2003, by section 4 District Courts Amendment Act 2002 (2002 No 63). See section 5 of that Act for the transitional provision relating to appeals. See clause 2 District Courts Amendment Act Commencement Order 2003 (SR 2003/281).

90 Proof by secured creditors

• (1) If a secured creditor realises his security, he may prove for the balance due to him, after deducting the net amount realised.

  (2) If a secured creditor surrenders his security to the Assignee for the general benefit of the creditors, he may prove for his whole debt.

  (3) A secured creditor who has so surrendered his security may, with the leave of the Court or Assignee and subject to such terms and conditions as to costs or otherwise as the Court or Assignee thinks fit, at any time before the Assignee has realised the property secured—

  • (a) Withdraw the surrender and rely on his security; or

  • (b) Submit a fresh proof of debt.

  (4) If a secured creditor does not either realise or surrender his security, he shall, before ranking for dividend, state in his proof the particulars of his security, the date when it was given, and the value at which he assesses it, and shall be entitled to receive a dividend only in respect of the balance due to him after deducting the value so assessed.

  (5) Where a security is so valued—

  • (a) The Assignee may at any time redeem it on payment to the creditor of the assessed value:

  • (b) If the Assignee is dissatisfied with the value at which a security is assessed, he may require that the property comprised in any security so valued be offered for sale at such time and on such terms and conditions as may be agreed on between the creditor and the Assignee or, in default of agreement, as the Court may direct; and if the sale be by public auction the creditor, or the Assignee on behalf of the estate, may bid or purchase:

  Provided that the creditor may at any time, by notice in writing, require the Assignee to elect whether he will or will not exercise his power of redeeming the security or requiring it to be realised, and if the Assignee does not, within 6 months after he receives the notice, signify in writing to the creditor his election to exercise the power, he shall not be entitled to exercise it; and the interest in the property comprised in the security which is vested in the Assignee shall vest in the creditor, and the amount of his debt shall be reduced by the amount at which the security has been valued.

  (6) Where a creditor has so valued his security, he may at any time amend the valuation and proof on showing to the satisfaction of the Assignee, or the Court, that the valuation and proof were made in good faith on a mistaken estimate or that the security has diminished or increased in value since its previous valuation; but every such amendment shall be made at the cost of the creditor, and upon such terms as the Court shall order, unless the Assignee shall allow the amendment without application to the Court.

  (7) Where a valuation has been amended in accordance with subsection (6) of this section, the creditor shall forthwith repay any surplus dividend which he may have received in excess of that to which he would have been entitled on the amended valuation, or, as the case may be, shall be entitled to be paid, out of any money for the time being available for dividend, any dividend or share of dividend which he may have failed to receive by reason of the inaccuracy of the original valuation, before that money is made applicable to the payment of any future dividend, but he shall not be entitled to disturb the distribution of any dividend declared before the date of the amendment.

  (8) If a creditor after having valued his security subsequently realises it, or if it is realised under the provisions of subsection (5) of this section, the net amount realised shall be substituted for the amount of any valuation previously made by the creditor, and shall be treated in all respects as an amended valuation made by the creditor.

  (9) If a secured creditor does not comply with the foregoing provisions of this section he shall be excluded from all share in any dividend.

  (10) Subject to the provisions of subsection (5) of this section, a creditor shall in no case receive more than 100 cents in the dollar, and interest as provided by this Act.

  Compare: UK Act Second Schedule rules 10–18; 1908 No 12 s 102

91 Goods on hire purchase

• (1) In this section,—

  • (a) cash price, creditor, debtor, and goods have the same meanings as in section 2 of the Credit (Repossession) Act 1997

  • (b) hire purchase agreement has the same meaning as in section 2(1) of the Administration Act 1969 (except that an agreement made otherwise than at retail is not a hire purchase agreement for the purposes of this Act)

  • (c) purchaser means the person to whom goods are disposed of under a hire purchase agreement, and, if the rights of that person are transferred by assignment or by operation of law, includes the person for the time being entitled to those rights.

  (2) Subsection (3) applies where a debtor who is the purchaser of any goods comprised in a hire purchase agreement is adjudged bankrupt and the creditor has taken possession of the goods within 21 days before the adjudication and the creditor has not sold or disposed of the goods before adjudication or if the creditor takes possession of the goods after adjudication.

  (3) The creditor must not, without the consent in writing of the Assignee, sell or dispose of the goods or part with possession of the goods (except for the purposes of storage or repair) until after the expiration of 1 month from the date on which the creditor serves on the Assignee the notice required to be served on debtors under section 20 of the Credit (Repossession Act) 1997.

  (4) Notwithstanding anything in the Credit (Repossession) Act 1997, the Assignee may,—

  • (a) At any time within 1 month from the date of the service on the Assignee of the notice mentioned in subsection (3), exercise the right to introduce a buyer conferred by section 30 of that Act; or

  • (b) At any time before the creditor sells or agrees to sell the goods pursuant to section 25 of that Act, settle the obligations of the debtor in accordance with section 31 of that Act.

  (5) If a creditor has, either before or after the adjudication of the debtor, taken possession of any goods comprised in a hire purchase agreement and the Assignee has not exercised, in relation to the goods, the powers conferred on the Assignee by subsection (4), the creditor may prove in bankruptcy for the amount which (having regard to the provisions of section 35 of the Credit (Repossession) Act 1997) the creditor might have recovered from the debtor, and in any such event the creditor must lodge with the creditor's proof of debt the post-possession notice mentioned in section 20 and the statement of account mentioned in section 33 of that Act, and the Assignee has the rights conferred on debtors by sections 20 to 36 of that Act.

  (6) The creditor may assign the goods to the Assignee if, at the time of the adjudication of a debtor who is the purchaser of any goods comprised in a hire purchase agreement, the creditor has not taken possession of the goods, or has taken possession of the goods and not sold or disposed of or parted with possession of them, and in that event the creditor is entitled to prove for the net balance due to the creditor under the agreement.

  Section 91 was substituted, as from 1 August 1972, by section 54(1) Hire Purchase Act 1971 (1971 No 147).

  Section 91 was substituted, as from 1 July 1998, by section 46 Credit (Repossession) Act 1997 (1997 No 85).

  Subsection (1) was substituted, as from 1 April 2005, by section 139 Credit Contracts and Consumer Finance Act 2003 (2003 No 52). See sections 141 to 143 of that Act as to the transitional provisions.

92 Trade discounts

• A creditor proving his debt shall deduct therefrom all trade discounts which he would otherwise have given if the debtor had not become bankrupt.

  Compare: 1908 No 12 s 103

93 Set-off

• Where mutual credit has been given by the bankrupt and any other person, or where there are mutual debts between the bankrupt and any other person, or where any person entitled to prove in respect of any debt or demand is indebted or liable to the bankrupt in respect of any debt or demand, the account between the bankrupt and that person shall be stated, and one debt or demand may be set against another, and no more than appears due on either side on the balance of account shall be claimed or paid on either side:

  Provided that a person shall not be entitled under this section to claim the benefit of any set-off against the property of a bankrupt where he had, at the time of giving credit to the bankrupt, notice of an available act of bankruptcy committed by the bankrupt; and a creditor claiming the benefit of a set-off shall, in his proof, declare that he had at the time of giving credit no notice of such an act of bankruptcy.

  Compare: 1908 No 12 s 104

93A Definitions relating to set-off under netting agreement

• In this Act, unless the context otherwise requires,—

  Bank means the Reserve Bank of New Zealand

  Bilateral netting agreement means an agreement that provides, in respect of transactions between 2 persons to which the agreement applies,—

  • (a) That on the occurrence of an event specified in the agreement, all or any of those transactions must (or may, at the option of a party) be terminated and—

    • (i) An account taken of all money due between the parties in respect of the terminated transactions; and

    • (ii) All obligations in respect of that money satisfied by payment of the net amount due from or on behalf of the party having a net debit to or on behalf of the party having a net credit; or

  • (b) That each transaction is to be debited or credited to an account with the effect that the rights and obligations of each party that existed in respect of the relevant account prior to the transaction are extinguished and replaced by rights and obligations in respect of the net debit due on the relevant account after taking into account that transaction; or

  • (c) That amounts payable by each party to the other party are to be paid or satisfied by payment of the net amount of those obligations by the party having a net debit to the party having a net credit;—

  but does not include any bilateral netting agreement that is part of a multilateral netting agreement

  Clearing house means a person that provides clearing or settlement services in respect of financial transactions between parties to a multilateral netting agreement

  Multilateral netting agreement means an agreement that provides for the settlement, between more than 2 persons, of payment obligations arising under transactions that are subject to the agreement, and that provides, in respect of transactions to which it relates, that debits and credits arising between the parties are to be brought into account so that amounts payable by or to each party are satisfied by—

  • (a) Payment by or on behalf of each party having a net debit to or on behalf of a clearing house (whether as agent or as principal) or a party having a net credit; and

  • (b) Receipt by or on behalf of each party having a net credit from or on behalf of a clearing house (whether as agent or as principal) or a party having a net debit:

  Netted balance means any amount calculated under a netting agreement as the net debit payable by or on behalf of a party to the agreement to or on behalf of another party to the agreement in respect of all or any transactions to which the netting agreement applies

  Netting agreement means a bilateral netting agreement or a recognised multilateral netting agreement

  Recognised clearing house means a clearing house declared under section 310K of the Companies Act 1993 to be a recognised clearing house

  Recognised multilateral netting agreement means a multilateral netting agreement that is contained in, or is subject to, the rules of a recognised clearing house.

  Sections 93A to 93I were inserted, as from 26 April 1999, by section 4 Insolvency Amendment Act 1999 (1999 No 21).

93B Application of set-off under netting agreement

• (1) Sections 93A to 93I apply—

  • (a) To a netting agreement—

    • (i) Made in or evidenced by writing; and

    • (ii) In respect of which the application of sections 93A to 93I has not been expressly excluded; and

    • (iii) Whether made before or after the commencement of this section; and

  • (b) To all obligations under a netting agreement (whether those obligations are payable in New Zealand currency or in some other currency).

  (2) Sections 93A to 93I apply despite—

  • (a) Any disposal of rights under a transaction that is subject to a netting agreement in contravention of a prohibition in the netting agreement; or

  • (b) The creation of a charge or other interest in respect of the rights referred to in paragraph (a) in contravention of a prohibition in the netting agreement.

  Sections 93A to 93I were inserted, as from 26 April 1999, by section 4 Insolvency Amendment Act 1999 (1999 No 21).

93C Calculation of netted balance

• If a person who is a party to a netting agreement is bankrupt,—

  • (a) Any netted balance payable by or to the bankrupt must be calculated in accordance with the netting agreement; and

  • (b) That netted balance constitutes the amount that may be claimed in the bankruptcy or is payable to the bankrupt, as the case may be, in respect of the transactions that are included in the calculation.

  Sections 93A to 93I were inserted, as from 26 April 1999, by section 4 Insolvency Amendment Act 1999 (1999 No 21).

93D Mutuality required for transactions under bilateral netting agreements

• Sections 93A to 93I apply to transactions that are subject to a bilateral netting agreement only if those transactions constitute mutual credits or mutual debts.

  Sections 93A to 93I were inserted, as from 26 April 1999, by section 4 Insolvency Amendment Act 1999 (1999 No 21).

93E When mutuality required for transactions under recognised multilateral netting agreements

• (1) Sections 93A to 93I apply to transactions that are subject to a recognised multilateral netting agreement, whether or not those transactions constitute mutual credits or mutual debts.

  (2) Despite subsection (1), sections 93A to 93I do not apply to transactions that are subject to a recognised multilateral netting agreement if—

  • (a) Those transactions do not constitute mutual credits or mutual debts; and

  • (b) A party to any of those transactions is acting as a trustee for another person; and

  • (c) The party acting as trustee is not authorised by the terms of the trust of which the party is a trustee to enter into the transaction.

  Sections 93A to 93I were inserted, as from 26 April 1999, by section 4 Insolvency Amendment Act 1999 (1999 No 21).

93F Application of set-off under section 93 to transactions subject to netting agreements

• (1) Section 93 does not apply to transactions that are subject to a netting agreement to which sections 93A to 93I apply.

  (2) However, a netted balance is to be treated as an amount to which section 93 applies if the bankrupt and the other party to the netting agreement also have mutual credits or mutual debts between them that are not subject to the netting agreement.

  Sections 93A to 93I were inserted, as from 26 April 1999, by section 4 Insolvency Amendment Act 1999 (1999 No 21).

93G Transactions under netting agreement and voidable preferences

• (1) Nothing in sections 93A to 93I prevents the operation of section 56 in relation to any transaction to which a netting agreement applies.

  (2) For the purposes of section 56, the following are obligations incurred:

  • (a) A transaction entered into by a bankrupt under a netting agreement if the effect of the transaction is to reduce any netted balance payable by or to the bankrupt:

  • (b) A netting agreement entered into by a bankrupt to the extent that the effect of entering into the netting agreement is to reduce any amount that was owing by or to the bankrupt at the time the bankrupt entered into the agreement.

  Sections 93A to 93I were inserted, as from 26 April 1999, by section 4 Insolvency Amendment Act 1999 (1999 No 21).

93H Set-off under netting agreement not affected by notice under section 58

• The filing of a notice under section 58 in respect of a transaction that is subject to a netting agreement does not affect the operation of section 93C in respect of the transaction, and that section continues to apply to the transaction until the transaction is set aside under section 58.

  Sections 93A to 93I were inserted, as from 26 April 1999, by section 4 Insolvency Amendment Act 1999 (1999 No 21).

93I Disclaimer of onerous property and termination of netting agreement not permitted

• (1) The Assignee must not—

  • (a) disclaim, under section 75 or section 78, any property of a bankrupt that relates to a transaction under a netting agreement:

  • (b) terminate, under section 76, a netting agreement or any contract of a bankrupt that constitutes a transaction under a netting agreement:

  • (c) if the bankrupt is a participant in a designated payment system, disclaim or terminate a payment instruction or a settlement except in accordance with the rules of the designated payment system.

  (2) In this section,—

  • (a) participant has the meaning set out in section 2(1) of the Reserve Bank of New Zealand Act 1989; and

  • (b) designated payment system, payment instruction, rules, and settlement have the meanings set out in section 156L of that Act.

  Sections 93A to 93I were inserted, as from 26 April 1999, by section 4 Insolvency Amendment Act 1999 (1999 No 21).

  Section 93I was substituted, as from 21 August 2003, by section 48(1) Reserve Bank of New Zealand Amendment Act 2003 (2003 No 46).

94 Interest

• (1) Unless authorised by any enactment or rule of law, no interest shall be included in any proof of debt unless—

  • (a) It has been allowed by a Court in entering judgment; or

  • (b) The claim is based on an agreement which provided for the paying of interest.

  (2) Where interest may be so included, it shall be calculated only up to the date of adjudication.

  Compare: 1908 No 12 s 105

95 Debt payable at future time

• Any creditor in respect of a debt not payable at the time of the adjudication may prove the debt as if it were payable presently, deducting therefrom any interest charged or allowed in the transaction between the date of the adjudication and the date on which the money is payable or if no interest was charged allowing thereout discount at the rate relating to interest on judgment debts in the High Court:

  Provided that no discount shall be made from a debt payable within 3 months of the adjudication.

  Compare: 1908 No 12 s 106

96 Debt owing on invalid security

• A creditor whose debt is secured by a security which, by or under the provisions of this or any other Act, is declared wholly or in part void against the Assignee in the bankruptcy shall be entitled to prove for so much of the money which is owing to him as is not admitted to be secured under the said security.

  Compare: 1908 No 12 s 107

97 Bankrupt liable as a member of several firms

• (1) Subject to the provisions of section 82 of this Act, if a bankrupt was at the date of adjudication liable in respect of distinct contracts as a member of 2 or more distinct firms, or as a sole contractor and also as a member of a firm, the circumstance that the firms are in whole or in part composed of the same individuals, or that the sole contractor is also one of the joint contractors, shall not prevent proof in respect of the contracts against the properties respectively liable on the contracts.

  (2) Subject to the provisions of section 82 of this Act, any separate creditor of a bankrupt shall be at liberty to prove his debt under any adjudication of bankruptcy made against the bankrupt jointly with any other person.

  Compare: 1908 No 12 s 108

98 Assignee to estimate value of contingent debt

• An estimate may be made by the Assignee of the value of any debt or liability proved under the bankruptcy which, by reason of its being subject to any contingency or contingencies or for any other reason, does not bear a certain value but which the Assignee considers may be fairly estimated. If the Assignee considers that the value cannot be fairly estimated he shall reject the proof.

  Compare: 1908 No 12 s 109(1)

99 Appeal against estimate of value

• (1) Any person who is aggrieved by any estimate made by the Assignee under section 98 of this Act or who has had his proof rejected under that section may appeal to the Court.

  (2) If, in the opinion of the Court, the value of the debt or liability cannot be fairly estimated, the Court may make an order to that effect, and thereupon the debt or liability shall, for the purposes of this Act, be deemed to be a debt not provable in the bankruptcy.

  (3) If, in the opinion of the Court, the value of the debt or liability can be fairly estimated, the Court may assess the value, and may give all necessary directions for this purpose, and the amount of the value when assessed shall be deemed to be a debt provable in the bankruptcy.

  Compare: 1908 No 12 s 109

100 Right of judgment creditor to prove for costs

• Every person who, under a verdict, judgment, decree, order, or rule in or of any Court obtained before the adjudication, would have been entitled to recover costs from the bankrupt if he had not become bankrupt may prove for the amount of those costs when taxed, although the taxation is not had before the adjudication.

  Compare: 1908 No 12 s 115

101 When company may prove for unpaid calls

• (1) Where the bankrupt is at the time of the adjudication a member or shareholder of a company that has not been put into liquidation, the company may prove for the amount of calls made before the adjudication in respect of the shares held by the bankrupt and not paid, and may claim for the value, estimated as the Assignee and the company may agree or failing agreement as the Court directs, of the liability to calls to be made in respect of the shares within one year after the date of the adjudication.

  (2) In estimating any such liability in the case of a mining company registered under the Companies Act 1955, the Court shall have due regard to the provisions of that Act relating to the forfeiture of shares in a mining company on which a call remains unpaid.

  Compare: 1908 No 12 s 111

  Section 101 was substituted, as from 1 July 1994, by section 2 Company Law Reform (Transitional Provisions) Act 1994 (1994 No 16).

102 Saving of provisions of Companies Acts

• Nothing in section 101 of this Act affects the provisions of section 226 of the Companies Act 1955 or sections 103 and 268 of the Companies Act 1993, as the case may be, in the event of the company being put into liquidation.

  Section 102 was substituted, as from 1 July 1994, by section 2 Company Law Reform (Transitional Provisions) Act 1994 (1994 No 16).

103 When a surety for bankrupt may prove

• Where any person is at the time of the adjudication surety or liable for any debt or liability of the bankrupt, and pays or satisfies the debt or liability, or any part of it in discharge of the whole, although he does so after the adjudication, the following provisions shall have effect:

  • (a) If the creditor has proved, the surety or person liable may stand in his place in respect of the proof:

  • (b) If the creditor has not proved, the surety or person liable may prove for the payment made by him as a debt, not disturbing former dividends, and may receive dividends.

  Compare: 1908 No 12 s 114

104 Priorities

• (1) Subject to the provisions of this section and to any other enactment, the money received by the Assignee by the realisation of the property of a bankrupt shall be applied by him as follows:

  • (a) First, in payment of the fees and expenses properly incurred by the Assignee in carrying out the duties and exercising the powers of the Assignee and the remuneration of the Assignee:

  • (b) Secondly, in payment of the costs and expenses incurred by the creditor in procuring the order of adjudication, inclusive of and subsequent to the preparation and filing of the petition, or (as the case may be) the costs and expenses incurred by the debtor's solicitor on the debtor's behalf in procuring the order of adjudication in accordance with the prescribed scale:

  • (c) [Repealed]

  • (d) fourthly, in payment rateably of,—

    • (i) subject to subsection (1A), all unpaid wages or salary of any employee, whether or not earned wholly or in part by way of commission, and whether payable for time or for piece work, in respect of services provided to the bankrupt during the 4 months before the adjudication:

    • (ii) subject to subsection (1A), any holiday pay payable to an employee (or, if the employee has died, to any other person in the employee's right) on the termination of the employment before or by reason of the adjudication:

    • (iii) subject to subsection (1A), any compensation for redundancy owed to an employee that accrues before or by reason of the adjudication:

    • (iv) subject to subsection (1A), any reimbursement or payment provided for, or ordered by, the Employment Relations Authority, the Employment Court, or the Court of Appeal under section 123(b) or section 128 of the Employment Relations Act 2000, to the extent that the reimbursement or payment does not relate to any matter set out in section 123(c) of the Employment Relations Act 2000, in respect of wages or other money or remuneration lost during the 4 months before the adjudication:

    • (v) all sums payable under section 73(2):

    • (vi) subject to subsection (1A), all amounts payable to the Commissioner of Inland Revenue in accordance with section 163(1) of the Child Support Act 1991:

    • (via) all amounts payable to the Commissioner of Inland Revenue in accordance with section 167(2) of the Tax Administration Act 1994 as applied by section 67 of the KiwiSaver Act 2006:

    • (vii) subject to subsection (1A), all amounts payable to the Commissioner of Inland Revenue in accordance with section 167(2) of the Tax Administration Act 1994 as applied by section 25 of the Student Loan Scheme Act 1992:

  • (e) Fifthly, in payment rateably of—

    • (i) All amounts payable to the Commissioner of Inland Revenue in accordance with section 167(2) of the Tax Administration Act 1994:

    • (ii) [Repealed]

    • (iii) all amounts payable to the Accident Compensation Corporation in accordance with section 115(17) of the Accident Rehabilitation and Compensation Insurance Act 1992 or clause 4 of Schedule 5 of the Accident Insurance Act 1998 or clause 4 of Schedule 4 of the Injury Prevention, Rehabilitation, and Compensation Act 2001:

    • (iv) Duty payable within the meaning of section 2(1) of the Customs and Excise Act 1996:

  • (f) Sixthly, in payment of all debts admitted in the bankruptcy, including any amount for salary or wages that is not a preferred claim, but excluding any debts specified in paragraph (g) or paragraph (i) of this subsection:

  • (g) Seventhly, in payment rateably (unless otherwise provided in any other enactment) of the following debts:

    • (i) Any unpaid wages owing to the bankrupt's wife or husband (as the case may be) where the wife or husband is or was employed by the bankrupt in the bankrupt's trade or business:

    • (ii) Any other deferred debts, except the debts mentioned in section 54 of this Act:

  • (h) Eighthly, in payment of interest from the date of the adjudication on all debts admitted in the bankruptcy (except those mentioned in section 54 of this Act) at the rate for the time being in force in the case of judgment debts in the High Court:

  • (i) Ninthly, in payment rateably of the debts referred to in section 54 of this Act, together with interest calculated in accordance with paragraph (h) of this subsection:

  • (j) Tenthly, subject to the provisions of paragraph (c) of subsection (2) of section 55 of this Act, in payment to the bankrupt of any surplus.

  (1A) The total sum to which priority is to be given under any, or all, of subparagraphs (1)(d)(i) to (iv), (vi), and (vii) must not, in the case of any one employee, exceed $15,000 or any greater amount that is prescribed under subsection (1B) at the date of adjudication.

  (1B) The sum stated in subsection (1A) must be adjusted as follows:

  • (a) subject to paragraph (d), an adjustment must be made, by the Governor-General by Order in Council, after the 3-year period starting on 1 July 2003 and ending on 30 June 2006 and after every 3-year period following that (an adjustment period):

  • (b) subject to paragraph (d), the Order in Council must be made within 3 months of the end of an adjustment period:

  • (c) each adjustment must reflect any overall percentage increase, over the relevant adjustment period, in average weekly earnings (total, private sector), calculated by reference to the last Quarterly Employment Survey published by Statistics New Zealand (or, if that survey ceases to be published, a survey certified by the Government Statistician as an equivalent to that survey) within the relevant adjustment period:

  • (d) if, in an adjustment period, there is no change, or an overall decrease, in the percentage movement in average weekly earnings (total, private sector), as so calculated, no adjustment may be made for that adjustment period:

  • (e) if, in accordance with paragraph (d), no adjustment is made, the next adjustment made for any succeeding adjustment period must reflect any overall percentage increase in average weekly earnings (total, private sector) between the date of the last adjustment and the end of the relevant adjustment period for which the adjustment is to be made:

  • (f) all adjustments are cumulative and must be rounded to the nearest $20:

  • (g) any correction to a Quarterly Employment Survey upon which an adjustment is based must be disregarded until the adjustment that takes effect in the following adjustment period which must reflect the corrected information in the calculation of that adjustment and must otherwise be made in accordance with this section.

  (2) Subject to the provisions of this section, where any payment has been made—

  • (a) To any employee in the employment of a bankrupt on account of wages or salary; or

  • (b) To any such employee or, in the case of his death, to any other person in his right, on account of holiday pay,—

  out of money advanced by some person for that purpose, the person by whom the money was advanced shall in a bankruptcy have a right of priority in respect of the money so advanced and paid up to the amount by which the sum in respect of which the employee would have been entitled to priority in the bankruptcy has been diminished by reason of the payment having been made:

  Provided that the person shall be entitled to priority only to the extent that the total advances made within the period of 4 months immediately preceding the adjudication exceed the payments received from the bankrupt during that period, but nothing in this proviso shall apply to any advance made or any payment received by any registered bank within the meaning of the Reserve Bank of New Zealand Act 1989, if the advance was made or the payment was received by the bank in good faith in the ordinary course of business and without negligence.

  (3) In this section,—

  • (aa) employee means any person of any age employed by an employer to do any work for hire or reward under a contract of service (including a homeworker as defined in section 5 of the Employment Relations Act 2000):

  • (a) The expression holiday pay, in relation to any person, means all sums payable to him by the bankrupt under the Holidays Act 2003, and includes all sums which by or under any other enactment or any award, agreement, or contract of service are payable to him by the bankrupt as holiday pay:

  • (b) Any remuneration in respect of a period of holiday or of absence from work through sickness or other good cause shall be deemed to be wages in respect of services rendered to the bankrupt during that period.

  (4) Notwithstanding anything to the contrary in this Act, where before the commencement of this Act a person has been adjudged bankrupt or there has been an order or election to administer his estate under Part 4 of the Administration Act 1952, his property shall be applied in accordance with the priorities which would have operated if this Act had not come into force.

  (5) This section, as in force on the date on which a person is adjudicated bankrupt, continues to apply to that bankruptcy regardless of any amendment to this section that comes into force after the date on which the person is adjudicated bankrupt.

  Compare: 1908 No 12 ss 112, 120

  Subsection (1)(a) was substituted, as from 1 July 1994, by section 3(1) Insolvency Amendment Act 1994 (1994 No 40).

  Subsection (1)(c) was substituted, as from 19 March 1990, by section 5(3) Insolvency Amendment Act 1990 (1990 No 7).

  Subsection (1)(c) was repealed, as from 1 July 1994, by section 3(2) Insolvency Amendment Act 1994 (1994 No 40).

  Subsection (1)(d)(i) proviso was amended, as from 19 October 1978, by section 2(1) Insolvency Amendment Act 1978 (1978 No 99) by substituting the words “$1,500, or such greater amount as is from time to time prescribed by the Governor-General by Order in Council,” for the words “four hundred dollars”.

  Subsection (1)(d)(iv) was inserted, as from 1 July 1992, by section 251 Child Support Act 1991 (1991 No 142).

  Subsection (1)(d) was substituted, as from 29 May 2004, by section 4(1) Insolvency Amendment Act 2004 (2004 No 11).

  Subsection (1)(d)(via) was inserted, as from 1 December 2006, by section 231 KiwiSaver Act 2006 (2006 No 40). See section 232 of that Act as to the transitional provision requiring all KiwiSaver contributions to be paid to the Commissioner in the first 3 months. See clause 2(2) KiwiSaver Act Commencement Order 2006 (SR 2006/357).

  Subsection (1)(e) was substituted, as from 1 April 1992, by section 90 Student Loan Scheme Act 1992 (1992 No 141), with application to liabilities to repay student loans as from 1 April 1992.

  Subsection (1)(e) was substituted, as from 1 April 1993, by section 6 Student Loan Schemes Amendment Act 1993 (1993 No 12)).

  Subsection (1)(e)(i) and (ii) were amended, as from 1 April 1995, by section YB 1 Income Tax Act 1994 (1994 No 164) by substituting the words “section 167(2) of the Tax Administration Act 1994” for the words “section 365(2) of the Income Tax Act 1976”.

  Subsection (1)(e)(ii) was repealed, as from 29 May 2004, by section 4(2) Insolvency Amendment Act 2004 (2004 No 11).

  Subsection (1)(e)(iii) was substituted, as from 1 July 1999, by section 415(1) Accident Insurance Act 1998 (1998 No 114).

  Subsection (1)(e)(iii) was substituted, as from 1 April 2002, by section 337(1) Injury Prevention, Rehabilatation, and Compensation Act 2001 (2001 No 49). See Part 10 of that Act for provisions relating to transition from competitive provision of workplace accident insurance. See Part 11 of that Act for transitional provisions relating to entitlements provided by Corporation.

  Subsection (1)(e)(iv) was inserted, as from 30 March 1995, by section 3(2) Customs Amendment Act 1995 (1995 No 7).

  Subsection (1)(e)(iv) was substituted, as from 1 October 1996, by section 289(1) Customs and Excise Act 1996 (1996 No 27).

  Subsection (1)(g)(ii) was amended, as from 1 February 2002, by section 63(4)(a)Property (Relationships) Amendment Act 2001 (2001 No 5) by substituting the expression “section 54” for the expression “sections 43 and 54”. See section 63(5) of that Act which states that “in any case where a person has been adjudged bankrupt, or there has been or order or election to administer an estate under Part 17 of the Insolvency Act 1967”, before 1 February 2001, the Insolvency Act 1967 applies as if section 63 of that Act had not been enacted.

  Subsection (1)(h) was amended, as from 1 February 2002, by section 63(4)(b) Property (Relationships) Amendment Act 2001 (2001 No 5) by substituting the expression “section 54” for the expression “sections 43 and 54”. See section 63(5) of that Act which states that “in any case where a person has been adjudged bankrupt, or there has been or order or election to administer an estate under Part 17 of the Insolvency Act 1967”, before 1 February 2001, the Insolvency Act 1967 applies as if section 63 of that Act had not been enacted.

  Subsection (1)(i) was amended, as from 1 February 2002, by section 63(4)(c) Property (Relationships) Amendment Act 2001 (2001 No 5) by omitting the expression “the debts referred to in section 43, and, and”. See section 63(5) of that Act which states that “in any case where a person has been adjudged bankrupt, or there has been or order or election to administer an estate under Part 17 of the Insolvency Act 1967”, before 1 February 2001, the Insolvency Act 1967 applies as if section 63 of that Act had not been enacted.

  Subsections (1A) and (1B) were inserted, as from 29 May 2004, by section 4(3) Insolvency Amendment Act 2004 (2004 No 11).

  Subsection (2) proviso was amended, as from 1 February 1990, pursuant to section 187 Reserve Bank of New Zealand Act 1989 (1989 No 157) by substituting the words “registered bank” for the words “trading bank”.

  Subsection (2) proviso was amended, as from 1 February 1990, pursuant to section 186(1) Reserve Bank of New Zealand Act 1989 (1989 No 157) by substituting a reference to the “Reserve Bank of New Zealand Act 1989” for a reference to the “Reserve Bank of New Zealand Act 1964”.

  Subsections (2) was amended, as from 29 May 2004, by section 4(4) Insolvency Amendment Act 2004 (2004 No 11) by substituting the word “employee” for the words “servant or worker” wherever they occur.

  Subsection (3) was amended, as from 29 May 2004, by section 4(5)(a) Insolvency Amendment Act 2004 (2004 No 11) by substituting the words “In this section” for the words “For the purpose of paragraph (d) of subsection (1) of this section”.

  Subsection (3)(aa) was inserted, as from 29 May 2004, by section 4(5)(b) Insolvency Amendment Act 2004 (2004 No 11).

  Subsection (3)(a) was amended pursuant to section 36 Holidays Act 1981 (1981 No 15) by substituting a reference to the “Holidays Act 1981” for a reference to the “Annual Holidays Act 1944”.

  Subsection (3)(a) was amended, as from 1 April 2004, by section 91(2) Holidays Act 2003 (2003 No 129) by substituting the words “Holidays Act 2003” for the words “Holidays Act 1981”.

  Subsection (5) was inserted, as from 29 May 2004, by section 4(6) Insolvency Amendment Act 2004 (2004 No 11).

105 Assignee to declare dividends as soon as possible

• (1) Subject to the retention of such sums as may be necessary for the costs of administration or otherwise, the Assignee shall, with all convenient speed, declare and distribute dividends among the creditors whose debts have been admitted in the bankruptcy:

  Provided that no dividend shall be distributed until 2 months have elapsed from the date of adjudication.

  (2) Notice of the time when and place where any dividend will be paid shall be sent to every creditor whose debt has been admitted in the bankruptcy, and shall be advertised.

  (3) Any creditor whose debt has been admitted in the bankruptcy may at any time after 2 months from the date of adjudication apply to the Court for an order requiring the Assignee to proceed with the distribution of the assets of the estate forthwith, in such manner as the Court directs, having regard to the circumstances of the case.

  (4) In any such case the Court may make such order as it thinks fit, or may refuse to make any such order.

  (5) In the calculation and distribution of a dividend the Assignee shall make provision:

  • (a) For debts provable appearing from the bankrupt's statements or otherwise to be due or owing to persons—

    • (i) Who are resident in places so distant from the place where the Assignee is acting that in the ordinary course of communication they have not had sufficient time to tender their proofs or to establish them if disputed; or

    • (ii) Whose address is not known to the Assignee; or

    • (iii) Who, the Assignee has reason to believe, have not had notice of the bankruptcy:

  • (b) For debts provable in respect of claims not yet determined.

  (6) In the case of a dividend declared after the expiration of 4 months after the date of adjudication, it shall not be obligatory on the Assignee to make provision for debts of the nature of those referred to in subsection (5) of this section, save where the Court otherwise orders.

  (7) Any creditor who has not proved his debt before the declaration of any dividend shall be entitled to be paid a dividend out of any money for the time being remaining in the hands of the Assignee available for future distribution amongst the creditors, but he shall not be entitled to disturb the distribution of any dividend declared before he proved his debt.

  (8) Any creditor who has duly amended his proof after the declaration of a dividend shall, if his claim is increased by the amendment, be entitled to be paid a further dividend in respect of the increase out of any money for the time being remaining in the hands of the Assignee available for future distribution among the creditors; but he shall not be entitled to disturb the distribution of any dividend declared before the said proof was amended.

  (9) Any creditor who has duly amended his proof so as to reduce his claim after receiving a dividend shall refund to the Assignee the dividend received on the amount by which his claim is thus reduced.

  (10) The creditors of 2 or more bankrupts jointly shall not receive any dividend out of the separate property of any one of those bankrupts until his separate creditors have received the full amount of their respective debts (including interest), nor shall any separate creditor receive a dividend out of the joint property until the creditors of the bankrupts jointly have received the full amount of their respective debts (including interest).

  (11) When the Assignee has converted into money all the property of the bankrupt, or so much thereof as can in his opinion be realised without needlessly protracting the bankruptcy, he shall declare a final dividend.

  Compare: 1908 No 12 s 123

106 Rights of creditors of joint debtor

• If one partner of a firm is adjudged bankrupt, any creditor to whom the bankrupt is indebted jointly with the other partners of the firm or any of them shall not receive any dividend out of the separate property of the bankrupt until all the separate creditors have received the full amount of their debts.

  Compare: UK Act s 63(1)

107 Discharge of bankrupt

• (1) Subject to the provisions of this section, a person who is adjudged a bankrupt after the commencement of this Act is hereby discharged from the bankruptcy upon the expiration of 3 years from the date of adjudication, unless he is sooner discharged in accordance with section 110 of this Act.

  (2) Subject to the provisions of this section, a person who was an undischarged bankrupt immediately before the commencement of this Act is hereby discharged from bankruptcy upon the expiration of 3 years from the date of the commencement of this Act, unless he is sooner discharged in accordance with section 110 of this Act.

  (3) Subsections (1) and (2) of this section shall not operate to discharge a bankrupt from bankruptcy, if the Assignee or (with the leave of the Court) any creditor whose claim has been admitted has entered an objection, in the prescribed manner, to the discharge of the bankrupt by force of either of those subsections, and the objection has not been withdrawn before the time when the bankrupt would have been so discharged but for this subsection.

  (4) An objection entered under subsection (3) of this section may be withdrawn in the prescribed manner.

  (5) Where an objection is withdrawn after the time when the bankrupt would have been discharged under subsection (1) or subsection (2) of this section but for subsection (3) of this section, and there is no other objection to the discharge of the bankrupt that has not been withdrawn, the bankrupt is hereby discharged from the bankruptcy upon the withdrawal of the objection.

  (6) This section does not operate to discharge a bankrupt from a bankruptcy, if—

  • (a) At the time when he would have been so discharged but for this subsection, he is still undischarged from an earlier bankruptcy; or

  • (b) In any case where the bankrupt has to be publicly examined under section 69 of this Act, he has not passed that examination.

  (7) Any discharge of a bankrupt under the foregoing provisions of this section shall have the same consequences in all respects as if the Court had granted an order of discharge of the bankrupt.

108 Bankrupt may apply for discharge

• Subject to the provisions of paragraph (d) of subsection (1) of section 110 of this Act, the bankrupt may at any time and from time to time apply to the Court for an order of discharge, and the hearing shall be in accordance with section 109 of this Act.

  Compare: 1908 No 12 ss 125, 130

109 Examination of bankrupt concerning his discharge

• (1) If any objection has been entered in accordance with subsection (3) of section 107 of this Act and not withdrawn, or in any case to which subsection (6) of that section applies, the Assignee shall, as soon as practicable after the expiration of 3 years from the date of adjudication or the date of the commencement of this Act, whichever later occurs, call on the bankrupt to appear before the Court to be publicly examined concerning his discharge, and the Court shall conduct the examination.

  (2) Where the Assignee has so called on the bankrupt to appear before the Court to be examined concerning his discharge, or where the bankrupt has made an application for his discharge under section 108 of this Act, the Assignee shall prepare and file in the Court a report as to the affairs of the bankrupt, the causes of his bankruptcy, and the manner in which the bankrupt has performed the duties imposed on him under this Act or obeyed the orders of the Court and as to his conduct both before and after the bankruptcy, and as to any other fact, matter, or circumstance that would assist the Court in making its decision.

  (3) Subsections (2), (4), (5), and (8) of section 69 of this Act shall, so far as they are applicable and with the necessary modifications, apply to any public examination under this section.

  (4) A creditor who intends to oppose the discharge of a bankrupt on grounds other than those mentioned in the Assignee's report shall give notice of his intended opposition, setting out the grounds thereof, to the Assignee and to the bankrupt within the time prescribed by the rules.

  Compare: 1908 No 12 s 126; Bankruptcy Act 1949 s 128 (Canada)

110 Court may grant or refuse discharge

• (1) At the hearing of any application for an order of discharge under section 108 of this Act, or at any examination under section 109 of this Act, the Court, having regard to all the circumstances of the case, may:

  • (a) Grant an immediate order of discharge:

  • (b) Grant an order of discharge subject to such conditions (including consenting to any judgment or order for the payment of any sum of money) as it thinks fit, or suspend an order for discharge for such time as it thinks fit:

  • (c) Grant an order of discharge with or without such conditions as it thinks fit to take effect at a specified future date:

  • (d) Refuse an order of discharge, in which case the Court may specify the earliest date on which the bankrupt may apply again to the Court for an order of discharge.

  (2) Section 107 of this Act shall be read subject to any order of the Court under this section.

  (3) Where the Court has granted an order of discharge subject to the bankrupt consenting to any judgment and the bankrupt consents, the Court may from time to time vary the judgment as it thinks fit.

  Compare: 1908 No 12 s 127

111 Court may order bankrupt not to engage in business after discharge

• (1) Without restricting the provisions of section 110 of this Act, the Court, when granting the order of discharge or at any earlier time, may make an order prohibiting the bankrupt after his discharge from doing all or any of the following things without the leave of the Court:

  • (a) Entering into or carrying on any business or class of business either alone or in partnership with any person:

  • (b) Being engaged in the management or control of any business carried on by or on behalf of, or being in the employ of, any of the following persons, namely, the bankrupt's wife or husband, a lineal ancestor or descendant of the bankrupt, the wife or husband of such an ancestor or descendant, a brother of the bankrupt, the wife of such a brother, a sister of the bankrupt, and the husband of such a sister:

  • (c) Acting as a director or taking part directly or indirectly in the management of any company or class of company.

  • (d) [Repealed]

  (2) Any such prohibition may be for a specified period or without any time limit.

  (3) The Court may at any time cancel or vary any such order.

  Subsection (1)(d) was inserted, as from 1 January 1974, by section 48(4) Syndicates Act 1973 (1973 No 17).

  Subsection (1)(d) was impliedly repealed, as from 1 September 1983, by section 75(1) Securities Act 1978 (1978 No 103).

112 Court may reverse order of discharge

• (1) At any time within 2 years after the grant of an absolute order of discharge, or after the taking effect of a suspended or conditional order of discharge, the Court may, on the application of the Assignee or of any creditor, reverse that order of discharge if, after notice to the bankrupt, any facts are established to the satisfaction of the Court which, had they been known to the Court at the time of granting the order, would have justified the Court in refusing to grant the order or in imposing any conditions precedent to its taking effect.

  (2) No such application for a reversal of the order of discharge shall be entertained if the facts upon which it is intended to be based were known to or could by the exercise of reasonable diligence have been ascertained by the Assignee or the creditor making the application at the time of the granting of the order of discharge.

  (3) The reversal of any order of discharge shall not prejudice or affect the rights or remedies which any other person would have had in case the reversal had not been made, and any property acquired by the bankrupt since the granting of the order which is reversed, and vested in him at the date of the reversal, shall vest in the Assignee subject to any encumbrances thereon, and shall, in the first instance, be applied by the Assignee in satisfaction of debts incurred by the bankrupt since the date of the order so reversed.

  (4) Upon the Court reversing any such order of discharge, the Court may then, or at any subsequent time, grant a new order of discharge, either absolute, suspended, or conditional.

  Compare: 1908 No 12 s 129

113 Absolute discharge where failure to comply with conditions

• In case of the failure to comply with all or any of the conditions fixed by a conditional order of discharge, the Court may at any time grant an absolute order of discharge to the bankrupt on his application, if the Court is satisfied that the failure to comply with the conditions arises from circumstances for which the bankrupt cannot justly be held responsible.

  Compare: 1908 No 12 s 131

114 Debts from which discharge releases bankrupt

• A discharge shall release the bankrupt from all debts provable in the bankruptcy except the following:

  • (a) Any debt or liability incurred by means of any fraud or fraudulent breach of trust to which he was a party:

  • (b) Any debt or liability whereof he has obtained forbearance by any fraud to which he was a party:

  • (c) Any judgment debt or any amount payable under any order for which he is liable under section 45 or section 110 of this Act:

  • (d) Any amount payable under a maintenance order under the Family Proceedings Act 1980:

  • (e) Any amount payable under the Child Support Act 1991.

  Compare: 1908 No 12 s 132

  Paragraph (d) was amended, as from 1 January 1970, by section 133 Domestic Proceedings Act 1968 (1968 No 62) by substituting the words “Domestic Proceedings Act 1968” for the words “Destitute Persons Act 1910”.

  Paragraph (d) was substituted, as from 1 October 1981, by section 189(1) Family Proceedings Act 1980 (1980 No 94).

  Paragraph (d) was substituted, and paragraph (e) was inserted, as from 1 July 1992, by section 252 Child Support Act 1991 (1991 No 142).

115 Discharge conclusive evidence of bankruptcy

• A discharge shall be conclusive evidence of the bankruptcy and of the validity of the proceedings therein; and in any proceedings instituted against a bankrupt who has obtained an order of discharge in respect of any debt from which he is released by the order, the bankrupt may plead that the cause of action occurred before his discharge.

  Compare: 1908 No 12 s 133

116 Discharge not to release partners, co-trustees, etc

• A discharge shall not release any person who at the date of adjudication was a partner or co-trustee with the bankrupt, or was jointly bound or had made any joint contract with him, or any person who was surety or in the nature of a surety for him.

  Compare: 1908 No 12 s 134

117 Discharged bankrupt to assist Assignee

• A discharged bankrupt shall, notwithstanding his discharge, give such assistance as the Assignee or the Court requires in the realisation and distribution of such of his property as is vested in the Assignee.

  Compare: 1908 No 12 s 135

118 Publication of information regarding bankrupt's discharge

• (1) In any case where the Court refuses to grant a discharge or suspends the order of discharge, the fact thereof may be published in the prescribed manner.

  (2) The chief executive of the department of State that, with the authority of the Prime Minister, is for the time being responsible for the administration of this Act may from time to time, as that chief executive thinks fit, publish a list of undischarged bankrupts.

  (3) No action shall lie against the Crown or the chief executive of that department of State in respect of any publication made under this section in good faith and with reasonable care.

  Compare: 1927 No 41 s 14

  Subsection (2) was substituted, as from 1 October 1995, by section 10(3) Department of Justice (Restructuring) Act 1995 (1995 No 39).

  Subsection (3) was substituted, as from 1 October 1995, by section 10(3) Department of Justice (Restructuring) Act 1995 (1995 No 39).

119 When Court may annul adjudication

• (1) In any of the following cases the Court may by order, on the application of the Assignee or any person interested, annul the adjudication—

  • (a) Where the Court is of the opinion that the order of adjudication should not have been made:

  • (b) Where the Court is satisfied that the debts of the bankrupt have been fully paid or satisfied:

  • (c) Where the Court is of the opinion that the liability of the bankrupt to pay his or her debts should be revived because since the date of adjudication there has been a substantial change in the financial circumstances of the bankrupt:

  • (d) Where the Court has approved a composition under Part 12 of this Act.

  (2) If an application is made on any ground specified in paragraphs (a) to (c) of subsection (1) of this section by any person other than the Assignee, a copy of the application shall be served on the Assignee in such manner and within such time as the Court may direct.

  (3) The Assignee may appear on the hearing of any application made on any ground specified in paragraphs (a) to (c) of subsection (1) of this section as if the Assignee were a party to the proceeding.

  (4) If the order of annulment is made on the ground specified in paragraph (a) of subsection (1) of this section, the adjudication shall be annulled from and after the date of the adjudication.

  (5) If the order of annulment is made on any ground specified in paragraphs (b) to (d) of subsection (1) of this section, the adjudication shall be annulled as from the date of the order.

  (6) Where application is made to the Court to annul any order of adjudication on the ground that the order ought not to have been made by reason of a defect in form or procedure, subject to section 11 of this Act, the Court may, in addition to annulling the order, exercise its powers to correct the defect and order that the petition be reheard as if no order of adjudication had been made.

  (7) Where an order of annulment is made on any ground specified in paragraphs (a) to (c) of subsection (1) of this section—

  • (a) The Court may, on the application of the Assignee, order, in addition to any costs that may be awarded, the payment of such fee by way of remuneration for the Assignee's services as the Court considers reasonable:

  • (b) Any such fee shall be paid into the Crown Bank Account:

  • (c) No commission shall be payable under section 166 of this Act in respect of any services for which any such fee is paid.

  Section 119 was substituted, as from 19 March 1990, by section 4 Insolvency Amendment Act 1990 (1990 No 7).

120 Effect of annulment

• (1) Where an order annulling an adjudication has been made, all property of the bankrupt vested in the Assignee under the bankruptcy, and not sold or disposed of under any contract of sale or disposition entered into by the Assignee while it was so vested is hereby revested in the bankrupt without the necessity of any conveyance, transfer, or assignment of any kind.

  (2) An order annulling an adjudication shall not prejudice or affect the validity of any contract, sale, disposition, or payment duly made or anything duly done by the Assignee before the making of that order; and every such contract, sale, disposition, and payment shall have effect as if it had been made by the bankrupt while no order of adjudication was in force.

  Compare: 1908 No 12 s 137

121 Composition with creditors