Bankruptcy

The team at Meyer Vandenberg is here to help with all your legal issues arising in relation to bankruptcy. Our extensive experience includes working with creditors, debtors, joint property owners and trustees.

If you are a creditor, we can work with you to use the bankruptcy law to recover your debt from an insolvent debtor.

If you are a debtor at risk of bankruptcy or already bankrupt, we can advise and represent you for a multiple of issues concerning your bankruptcy.  For example:

  • If you have been served with a Bankruptcy Notice, we can advise you about your options for dealing with the Notice, including negotiating with your creditors or setting the Bankruptcy Notice aside.
  • If you are already bankrupt, we can act to challenge the Sequestration Order, or negotiate on your behalf with your creditors and your trustee to annul your bankruptcy, or liaise with your trustee generally to ensure they act within their power and you retain the assets you are entitled to under bankruptcy law.

If you are a person who owns property jointly with a bankrupt person, we can work with you to ensure your full entitlement in the property is recognised by the incoming trustee.

If you are a trustee in bankruptcy, we can act to protect your rights and meet your obligations arising under bankruptcy law, and assist you recover assets to the bankrupt estate for distribution to creditors.

What we do

In every case we:

  • Take the time to properly understand the facts, evidence and surrounding circumstances of your situation
  • Consider your legal position based on the current state of relevant law, and determine the best strategy to protect your interests
  • Deliver advice in plain English about your legal position, options for the next steps and our recommendations tailored to your situation and based on our expertise
  • Negotiate at any time with the other parties to resolve as quickly as possible the issues between them, whether the negotiation be formally by mediation or informally by communications between the parties (and their lawyers).

We can also, as required:

  • Prepare and run court proceedings (litigation) for you, including appeals
  • Prepare and help you execute documents recording and giving effect to settlement reached between the parties or court orders.

Bankruptcy as relates to creditors

  • Prepare Bankruptcy Notices
  • Prepare Creditor’s Petitions
  • Prepare Proofs of Debt
  • Negotiate and liaise with the trustee in bankruptcy about the debt at issue.

Bankruptcy as relates to debtors or bankrupts

  • Negotiate and liaise with your trustee about issues arising in your bankruptcy
  • Prepare applications to set aside a Bankruptcy Notice
  • Prepare applications to set aside a Sequestration Order
  • Prepare applications for review of a Sequestration Order
  • Prepare section 73 composition proposals and negotiate with relevant parties
  • Prepare and liaise with relevant parties about any debt arrangements, personal insolvency agreements, or annulment proposals by you.

Bankruptcy as relates to joint property owners

  • Negotiate and liaise with the trustee in bankruptcy about the asset at issue
  • Negotiate, prepare and implement deeds of agreement or sale of assets
  • Prepare applications for appointment of trustees for sale.

Bankruptcy as relates to trustees in bankruptcy

  • Advise you about legal issues arising in the bankruptcy, including voidable transactions, access to superannuation, competing property interests and after-acquired property of the bankrupt
  • Negotiate, prepare and implement deeds of agreement or sale of assets
  • Prepare applications for declarations and consequent orders under sections 120, 121, 121A and 122 of the Bankruptcy Act 1966 (Cth)
  • Prepare applications for delivery up of vacant possession of property
  • Prepare applications for appointment of trustees for sale.

The MV difference

  • Experts in bankruptcy law who work for creditors, debtors, joint property owners and trustees in bankruptcy, and who have a thorough knowledge of each party’s powers, duties and entitlements.
  • A commitment to protecting your interests having regard to both legal and non-legal interests.
  • A focus on practical and plain-English advice, with commercial recommendations to resolve issues.
  • A commitment to collaboration with other parties to determine and implement the best strategy to protect your interests, ensure all entitlements are recognised and resolve any dispute.
  • True passion for this area of law.
  • Strong connections with local bankruptcy trustees, which enables candid and productive discussions to resolve issues and achieve optimal outcomes for all parties.
  • Frank and fearless advice to you about the strength of your legal position, and the likely outcome of any dispute.
  • Full and frank disclosure of all legal costs to ensure a properly informed decision about the next steps is made and there are no unhappy legal costs surprises along the way.

FAQs

A Bankruptcy Notice is a document issued by the Official Receiver (who sits in the Australian Financial Security Authority (AFSA)) at the request of a creditor who has obtained a final judgment or order from a court against a debtor for payment of money.  The Bankruptcy Notice requires the debtor to pay or secure the payment of the amount claimed in the notice within 21 days of the notice being served on the debtor.

If the debtor does not comply with the Bankruptcy Notice or apply to the court to set it aside within 21 days then the debtor will have committed an “act of bankruptcy”.  Once an “act of bankruptcy” has been committed, the creditor who served the Bankruptcy Notice can commence court proceedings against the debtor and ask the court to make an order bankrupting the debtor (called a Sequestration Order).

A trustee in bankruptcy is the person in charge of administering a bankrupt estate upon the making of a Sequestration Order.  The trustee can either be the Official Trustee in Bankruptcy or a trustee who is registered with AFSA on the National Personal Insolvency Index and permitted to have control of the administration of bankruptcies.

The trustee will undertake investigations into the bankrupt estate and the bankrupt’s financial affairs.  These investigations can date back a number of years in order to ascertain whether or not invalid transactions have taken place, such transfers that were done in order to defeat creditors or make preferential payments.

The trustee has a duty to recover property for the benefit of the bankrupt estate.  Once the trustee has recovered all of the divisible property, the trustee will then realise the property and make distributions to creditors in proportion to their proved debts.

A Proof of Debt is a document which allows an unsecured creditor to lodge a claim against the bankrupt estate for payment of the total debt amount owing to the creditor, potentially including legal costs and interest.  It is also the necessary first step for a creditor to participate and vote at a meeting of creditors or to receive a dividend.  Before a creditor is allowed to vote at a meeting of creditors or a dividend is paid, the trustee must adjudicate on the Proof of Debt and decide whether to admit or reject it.  To ensure the Proof of Debt is accepted it must be clearly drafted and it is best practice to substantiate the claim by annexing supporting documents.

The general rule under the bankruptcy regime in Australia is that all property of a bankrupt vests in her trustee as soon as she becomes bankrupt and all property acquired during her bankruptcy vests in her trustee as soon as she acquires it.  However, there are exceptions to the general rule.  For example, the bankrupt is allowed to keep personal property that has sentimental value and most household items of reasonable value.

Similarly, a bankrupt is allowed to keep money transferred into a regulated superannuation fund before bankruptcy.  However, the trustee may be able to access money held in such a fund where unusual lump sum payments were made into the fund before the bankruptcy in the hope of keeping that money away from the trustee or creditors, or where money is paid out of the superannuation fund after bankruptcy as a pension, in which case the money will be treated as income and the bankrupt may have to pay a contribution to the trustee.

If you are bankrupt and plan on accessing your superannuation fund, it is important to obtain expert advice to ensure the monies held in your regulated superannuation fund do not end up in the hands of your trustee.

If a debtor owns property with another person and then becomes bankrupt, the bankrupt’s interest in the property will vest in the trustee and from that point on the trustee will have a beneficial interest in the property.  For example, if A and B own a house together and they each have a 50% share in the house, then A’s 50% share will vest in his trustee as soon as he becomes bankrupt, so the trustee will have a 50% share and B will have a 50% share.  The trustee’s beneficial interest will become a legal interest upon registration of a transfer.  However, there may be circumstances where the legal title does not reflect the real interests of the registered proprietors and so, for example B is entitled to more than a 50% share.

If the trustee decides to recover the bankrupt’s interest in the property, the joint property owner can always negotiate with the trustee to buy the bankrupt’s former interest.  However, if that option is not affordable or the joint property owner and the trustee cannot agree on a price, the trustee can make an application to the court for the appointment of trustees for sale, who will sell the property and divide the proceeds after the trustee’s fees, mortgage, legal fees and agents fees have been paid.

If you own property jointly with a bankrupt it is important to seek expert advice about your legal interests and entitlements before you take part in negotiations with the trustee to ensure you put your best case forward, and you do not short change yourself.