Bankruptcy Act. Australia

Bankruptcy Act

and in respect of such period as he or she determines, shall form part of that estate or fund, as the case may be.

(3) Where, on or after the date of commencement of this section (in the subsection referred to as the commencing date), the Official Trustee receives an amount by way of interest on moneys (other than moneys of the kind referred to in paragraph (1) (b)), or on investments, that form part of the Common Fund by virtue of subsection 20B(3):

(a) if the interest accrued in respect of a period that ended before the commencing date — the amount of the interest forms part of the estate in respect of which those moneys or investments were held immediately before the commencing date; or

(b) if the interest accrued in respect of a period that commenced before, but ended on or after, the commencing date — an amount that bears to the amount of that interest the same proportion as the number of days in the part of the period in respect of which the interest accrued that occurred before the commencing date bears to the number of days in that period forms part of the estate in respect of which those moneys or investments were held immediately before the commencing date.

(3A) Where, on or after the date of commencement of this subsection (in this subsection referred to as the commencing day), the Official Trustee receives an amount by way of interest on moneys held or received by the Official Trustee by reason of being trustee of a fund referred to in paragraph (1) (b) (in this subsection referred to as the appropriate fund), being moneys that form part of the Common Fund:

(a) if the interest accrued in respect of a period that ended before the commencing date — the amount of the interest forms part of the appropriate fund; or

(b) if the interest accrued in respect of a period that commenced before, but ended on or after, the commencing day — an amount that bears to the amount of that interest the same proportion as the number of days in the part of the period in respect of which the interest accrued that occurred before the commencing day bears to the number of days in that period forms part of the appropriate fund.

(4) Where it is established that:

(a) moneys held by the Official Trustee as the trustee of the estate of a bankrupt or of a deceased debtor do not form part of the estate; or

(b) moneys held by the Official Trustee as part of a fund referred to in paragraph (1) (b) do not form part of the fund;

interest on those moneys is payable to the person to whom those moneys are payable, out of the Common Fund, at the rate prescribed by the regulations for the purposes of this section and in respect of the period during which those moneys are held by the Official Trustee.

(5) For the purposes of subsection (2), moneys shall be taken to have been held, or to be likely to be held, by the Official Trustee for a prescribed reason if the moneys have been held, or are likely to be held, as the case may be, by the Official Trustee:

(a) by reason of the institution or defending of legal proceedings in good faith;

(b) by reason that a person has, or has had, under consideration, in good faith, the institution or defending of legal proceedings; or

Part III Courts

Division 2 Jurisdiction and powers of courts in bankruptcy

27 Bankruptcy courts

(1) The Federal Court and the Federal Magistrates Court have concurrent jurisdiction in bankruptcy, and that jurisdiction is exclusive of the jurisdiction of all courts other than:

(a) the jurisdiction of the High Court under section 75 of the Constitution; or

(b) the jurisdiction of the Family Court under section 35 or 35A of this Act.

29 Courts to help each other

(1) All Courts having jurisdiction under this Act, the Judges of those Courts and the officers of or under the control of those Courts shall severally act in aid of and be auxiliary to each other in all matters of bankruptcy.

(2) In all matters of bankruptcy, the Court:

(a) shall act in aid of and be auxiliary to the courts of the external Territories, and of prescribed countries, that have jurisdiction in bankruptcy; and

(b) may act in aid of and be auxiliary to the courts of other countries that have jurisdiction in bankruptcy.

(3) Where a letter of request from a court of an external Territory, or of a country other than Australia, requesting aid in a matter of bankruptcy is filed in the Court, the Court may exercise such powers with respect to the matter as it could exercise if the matter had arisen within its own jurisdiction.

(4) The Court may request a court of an external Territory, or of a country other than Australia, that has jurisdiction in bankruptcy to act in aid of and be auxiliary to it in any matter of bankruptcy.

(5) In this section, prescribed country means:

(a) the United Kingdom, Canada and New Zealand;

(b) a country prescribed by the regulations for the purposes of this subsection; and

30 General powers of Courts in bankruptcy

(1) The Court:

(a) has full power to decide all questions, whether of law or of fact, in any case of bankruptcy or any matter under Part IX, X or XI coming within the cognizance of the Court; and

(b) may make such orders (including declaratory orders and orders granting injunctions or other equitable remedies) as the Court considers necessary for the purposes of carrying out or giving effect to this Act in any such case or matter.

(2) The Court may direct such inquiries to be made and accounts to be taken for the purposes of any proceeding before the Court as the Court considers necessary and may, when directing an account to be taken, or subsequently, give special directions as to the manner in which the account is to be taken or vouched.

(3) If in a proceeding before the Federal Court under this Act a question of fact arises that a party desires to have tried before a jury, the Federal Court may, if it thinks fit, direct the trial of that question to be had before a jury, and the trial may be had accordingly in the same manner as if it were the trial of an issue of fact in an action.

(5) Where:

(a) a bankrupt, a debtor or any other person has failed to comply with an order or direction of a Registrar, or with a direction or requirement of an Official Receiver or trustee, under this Act; or

(b) a trustee has failed to comply with an order, direction or requirement of a Registrar, or with a requirement or request of the Inspector-General, under this Act;

the Court may, on the application of the Registrar, Official Receiver, trustee or Inspector-General, as the case requires:

(c) order the person who has failed to comply with the order, direction, requirement or request, as the case may be, to comply with it; or

(d) if it thinks fit, make an immediate order for the committal to prison of that person.

(6) The power conferred on the Court by subsection (5) is in addition to, and not in substitution for, any other right or remedy in respect of the failure to comply with the order, direction, requirement or request, as the case may be.

31 Exercise of jurisdiction

(1) In exercising jurisdiction under this Act, the Court shall hear and determine the following matters in open Court:

(a) creditors’ petitions;

(b) examinations under this Act;

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