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[F.A.Q.]
Fiji Consolidated Legislation |
LAWS OF FIJI
CHAPTER 48
BANKRUPTCY
_______
ARRANGEMENT OF SECTIONS
PART I-PRELIMINARY
SECTION
1.
Short
title.
2.
Interpretation.
PART
II-PROCEEDINGS FROM ACT OF
BANKRUPTCY
TO
DISCHARGE
ACTS OF BANKRUPTCY
3.
Acts of
bankruptcy.
4.
Bankruptcy notices.
RECEIVING ORDER
5.
Jurisdiction to make receiving
order.
6.
Conditions on which creditor may
petition.
7.
Proceedings and order on creditor's
petition.
8.
Debtor's petition and order
thereon.
9.
Effect of receiving
order.
10.
Power to appoint interim
receiver.
11.
Power to stay pending
proceedings.
12.
Power to appoint special
manager.
13.
Advertisement of receiving order.
PROCEEDINGS CONSEQUENT ON ORDER
14.
First meeting of
creditors.
15.
Meetings to be governed by
rules.
16.
Debtor's statement of affairs.
PUBLIC EXAMINATION OF THE DEBTOR
17.
Public examination of debtor.
COMPOSITION OR SCHEME OF ARRANGEMENT
18.
Compositions and schemes of
arrangement.
19.
Effect of composition or scheme.
ADJUDICATION OF BANKRUPTCY
20.
Adjudication of bankruptcy where composition not accepted or
approved.
21.
Appointment of
trustee.
22.
Committee of
inspection.
23.
Power to accept composition or scheme after bankruptcy
adjudication.
CONTROL
OVER PERSON AND
PROPERTY
OF
DEBTOR
24. Duties
of debtor as to discovery and realization of
property.
25. Arrest
of debtor under certain
circumstances.
26. Re-direction
of debtor's
letters.
27. Inquiry
as to debtor's conduct, dealings and
property.
28. Discharge
of
bankrupt.
29. Fraudulent
settlements.
30. Effect
of order of
discharge.
31. Power
for court to annul adjudication in certain cases.
PART
III-ADMINISTRATION OF
PROPERTY
PROOF OF
DEBTS
32. Description
of debts provable in
bankruptcy.
33. Mutual
credit and
set-off.
34. Rules
as to proof of
debts.
35. Priority
of
debts.
36. Preferential
claim in case of
apprenticeship.
37. Landlord's
power of distress in case of
bankruptcy.
38. Postponement
of husband's and wife's claims.
PROPERTY
AVAILABLE FOR PAYMENT
OF
DEBTS
39. Relation
back to trustee's
title.
40. Description
of bankrupt's property divisible amongst
creditors.
41. Provisions
as to second bankruptcy.
EFFECT
OF BANKRUPTCY ON
ANTECEDENT
AND
OTHER TRANSACTIONS
42. Restriction
of rights of creditor under execution or
attachment.
43. Duties
of sheriff as to goods taken in
execution.
44. Avoidance
of certain
settlements.
45. Avoidance
of general assignments of book debts unless
registered.
46. Avoidance
of preference in certain
cases.
47. Protection
of bona fide transactions without
notice.
48. Validity
of certain payments to bankrupt and
assignee.
49. Dealings
with undischarged bankrupt.
REALIZATION OF PROPERTY
50. Possession
of property by
trustee.
51. Seizure
of property of
bankrupt.
52. Appropriation
of proportion of pay or salary to
creditors.
53. Appropriation
of income of property restrained from
anticipation.
54. Vesting
and transfer of
property.
55. Disclaimer
of onerous
property.
56. Powers
of trustee to deal with
property.
57. Powers
exercisable by trustee with permission of committee of
inspection
58. Power
to allow bankrupt to manage
property.
59. Allowance
to bankrupt for maintenance or
service.
60. Right
of trustee to inspect goods pawned,
etc.
61. Limitation
of trustee's powers in relation to
copyright.
62. Protection
of official receiver and trustee from personal liability in certain
cases.
DISTRIBUTION OF PROPERTY
63.
Declaration and distribution of
dividends.
64.
Joint and separate
dividends.
65.
Provisions for creditors residing at a distance,
etc.
66.
Right of creditor who has not proved debt before declaration of a
dividend.
67.
Interest on
debts.
68.
Final
dividend.
69.
No action for
dividend.
70.
Right of bankrupt to surplus.
PART IV-OFFICIAL RECEIVER AND STAFF
71.
Appointment of official receiver and deputy official
receivers.
72.
Status of official
receiver.
73.
Duties of official receiver as regards the debtor's
conduct.
74.
Duties of official receiver as to debtor's estate.
PART
V-TRUSTEES IN
BANKRUPTCY
OFFICIAL
NAME
75.
Official name of trustee.
APPOINTMENT
76.
Power to appoint joint or successive
trustees.
77.
Proceedings in case of vacancy in office of trustee.
CONTROL OVER TRUSTEE
78.
Discretionary powers of trustee and control
thereof.
79.
Appeal to court against
trustee.
80.
Control of official receiver over trustees.
REMUNERATION AND COSTS
81.
Remuneration of
trustee.
82.
Allowance and taxation of costs.
RECEIPTS, PAYMENTS, ACCOUNTS, AUDIT
83.
Trustee to furnish list of
creditors.
84.
Trustee to furnish statement of
accounts.
85.
Books to be kept by
trustee.
86.
Annual statement of
proceedings.
87.
Trustee not to pay into private
account.
88.
Payment of money into
bank.
89.
Investment of surplus
funds.
90.
Audit of trustee's account.
VACATION OF OFFICE BY TRUSTEE
91.
Release of
trustee.
92.
Office of trustee vacated by
insolvency.
93.
Removal of trustee.
PART
VI-CONSTITUTION, PROCEDURE AND POWERS OF
COURT
JURISDICTION
94.
Jurisdiction in
bankruptcy.
95.
Judge may exercise his powers in
chambers.
96.
Official receiver to make payments in accordance with directions of
court
97.
General powers of the
court.
98.
Disqualifications of bankrupt.
JUDGMENT DEBTORS
99.
Power to make receiving order in lieu of committal order
APPEALS
100.
Appeals in bankruptcy.
PROCEDURE
101.
Discretionary power of
court.
102.
Consolidation of
petitions.
103.
Power to change carriage of
proceedings.
104.
Continuance of proceedings on death of
debtor.
105.
Power to stay
proceedings.
106.
Power to present petition against one
partner.
107.
Power to dismiss petition against some respondents
only.
108.
Property of partners to be vested in same
trustee.
109.
Actions by trustee and bankrupt's
partners.
110.
Actions on joint
contracts.
111.
Proceedings in partnership
name.
112.
Court to be auxiliary to other British
courts.
113.
Commitment to prison.
PART
VII-SUPPLEMENTAL
PROVISIONS
APPLICATION
OF ACT
114.
Married
women.
115.
Exclusion of
companies.
116.
Application of Act in case of small
estates.
117.
Administration in bankruptcy of estate of person dying insolvent.
GENERAL RULES
118.
Power to make general
rules.
FEES, ETC.
119.
Fees. etc.
EVIDENCE
120.
Gazette to be
evidence.
121.
Evidence of proceedings at meetings of
creditors.
122.
Evidence of proceedings in
bankruptcy.
123.
Swearing of
affidavits.
124.
Death of debtor or
witness.
125.
Certificate of appointment of trustee.
MISCELLANEOUS
126.
Computation of
time.
127.
Service of
notices.
128.
Formal defect not to invalidate
proceedings.
129.
Exemption of deeds, etc., from stamp
duty.
130.
Acting of corporations, partners,
etc.
131.
Certain provisions to bind Crown.
UNCLAIMED FUNDS OR DIVIDENDS
132.
Unclaimed and indistributed dividends or funds under this Act.
PART VIII- BANKRUPTCY OFFENCES
133.
Fraudulent
debtors.
134.
Undischarged bankrupt obtaining
credit.
135.
Frauds by bankrupts,
etc.
136.
Bankrupt guilty of gambling,
etc.
137.
Bankrupt failing to keep proper
accounts.
138.
Bankrupt absconding with
property.
139.
False claim,
etc.
140.
Order by court for prosecution on report of
trustee.
141.
Criminal liability after discharge or
composition.
142.
Trial and punishment of
offences.
143.
Form of
charge.
144.
Director of Public Prosecutions to act in certain
cases.
145.
Evidence as to frauds by
agents.
146.
Application of Bankruptcy Rules, 1915.
------------------------------------------
BANKRUPTCY
Ordinances
Nos. 22 of 1944, 39 of 1965, 37 of
1966.
Order 7th
October, 1970. Act No. 14 of 1975
AN ACT
RELATING TO BANKRUPTCY
[1st May, 1945.]
PART I-PRELIMINARY
Short title
1.
This Act may be cited as the Bankruptcy
Act.
Interpretation
2.
In this Act, unless the context otherwise requires-
"affidavit" includes statutory declaration, affirmation and attestation on honour;
"available act of bankruptcy" means any act of bankruptcy available for a bankruptcy petition at the date of the presentation of the petition on which the receiving order is made;
"the court" means the court having jurisdiction in bankruptcy under this Act;
"debt provable in bankruptcy" or "provable debt" includes any debt or liability by this Act made provable in bankruptcy;
"gazetted" means published in the Gazette;
"general rules" includes forms;
"goods" includes all chattels personal;
"local bank" means any bank in Fiji;
"ordinary resolution" means a resolution decided by a majority in value of the creditors present, personally or by proxy, at a meeting of creditors and voting on the resolution;
"prescribed" means prescribed by general rules within the meaning of this Act;
"property" includes money, goods, things in action, land and every description of property whether real or personal and whether situate in Fiji or elsewhere; also obligations, easements, and every description of estate, interest, and profit, present or future, vested or contingent, arising out of or incidental to property as above defined;
"resolution" means ordinary resolution;
"secured creditor" means a person holding a mortgage, charge or lien on the property of the debtor, or any part thereof, as a security for a debt due to him from the debtor;
"sheriff" includes any person charged with the execution of any process;
"special resolution" means a resolution decided by a majority in number and three-fourths in value of the creditors present, personally or by proxy, at a meeting of creditors and voting on the resolution;
"trustee" means the trustee in bankruptcy of a debtor's estate.
PART
II-PROCEEDINGS FROM ACT OF
BANKRUPTCY
TO
DISCHARGE
ACTS OF BANKRUPTCY
Acts of bankruptcy
3.-(1)
A debtor commits an act of bankruptcy in each of the following
cases:-
(a) if in Fiji or elsewhere he makes a conveyance or assignment of his property to a trustee or trustees for the benefit of his creditors generally;
(b) if in Fiji or elsewhere he makes a fraudulent conveyance, gift, delivery or transfer of his property, or of any part thereof;
(c) if in Fiji or elsewhere he makes any conveyance or transfer of his property, or any part thereof, or creates any charge thereon, which would under this or any other Act be void as a fraudulent preference if he were adjudged bankrupt;
(d) if with intent to defeat or delay his creditors he does any of the following things, namely, departs out of Fiji, or being out of Fiji remains out of Fiji, or departs from his dwelling-house, or otherwise absents himself, or begins to keep house, or removes his property or any part thereof beyond the jurisdiction of the court;
(e) if execution against him has been levied by seizure of his goods in any civil proceedings in any court, and the goods have been either sold or held by the sheriff for twenty-one days:
Provided that, where an interpleader summons has been taken out in regard to the goods seized, the time elapsing between the date at which such summons is taken out and the date at which the proceedings on such summons are finally disposed of, settled or abandoned, shall not be taken into account in calculating such period of twenty-one days;
(f) if he files in the court a declaration of his inability to pay his debts or presents a bankruptcy petition against himself;
(g) if a creditor has obtained a final judgment or final order against him for any amount, and, execution thereon not having been stayed, has served on him in Fiji, or, by leave of the court, elsewhere, a bankruptcy notice under this Act, and he does not within seven days after service of the notice, in case the service is effected in Fiji, and in case 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 counter-claim, 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:
For the purposes of this paragraph and section 4, 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;
(h) if the debtor gives notice to any of his creditors that he has suspended, or that he is about to suspend, payment of his debts.
(2)
In this Act the expression "a debtor", unless the context otherwise implies,
includes any person, whether domiciled in Fiji or
not, who, at the time when any
act of bankruptcy was done or suffered by him-
(a) was personally present in Fiji; or
(b) ordinarily resided or had a place of residence in Fiji; or
(c) was carrying on business in Fiji, personally, or by means of an agent or manager; or
(d) was a member of a firm or partnership which carried on business in Fiji,
Bankruptcy notices
4.
A bankruptcy notice under this Act shall be in the prescribed form, and shall
require the debtor to pay the judgment debt or sum
ordered to be paid in
accordance with the terms of the judgment or order, or to secure or compound for
it 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-
(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 such misstatement; but, if the debtor does not give 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.
RECEIVING ORDER
Jurisdiction to make receiving order
5.
Subject to the conditions hereinafter specified if a debtor commits an act of
bankruptcy the court may, on a bankruptcy petition
being presented either by a
creditor or by the debtor, make an order, in this Act called a receiving order,
for the protection of
the estate.
Conditions on which creditor may petition
6.-(1)
A creditor shall not be entitled to present a bankruptcy petition against a
debtor unless-
(a) the debt owing by the debtor to the petitioning creditor, or, if two or more creditors joint in the petition, the aggregate amount of debts owing to the several petitioning creditors, amounts to one hundred dollars; and
(b) the debt is a liquidated sum, payable either immediately or at some certain future time; and
(c) the act of bankruptcy on which the petition is grounded has occurred within three months before the presentation of the petition; and
(d) the debtor is domiciled in Fiji, or within a year before the date of the presentation of the petition has ordinarily resided, or had a dwelling-house or place of business, or has carried on business, in Fiji, personally or by means of an agent or manager, or is or within the said period has been a member of a firm or partnership of persons which has carried on business in Fiji by means of a partner or partners, or an agent or manager,
nor,
where a deed of arrangement has been executed, shall a creditor be entitled to
present a bankruptcy petition founded on the execution
of the deed, or on any
other act committed by the debtor in the course or for the purpose of the
proceedings preliminary to the execution
of the deed, in cases where he is
prohibited from so doing by any law for the time being in force relating to
deeds of arrangement.
(2) If the
petitioning creditor is a secured creditor, he must in his petition either state
that he is willing to give up his security
for the benefit of the creditors in
the event of the debtor being adjudged bankrupt, or give an estimate of the
value of his security.
In the latter case, he may be admitted as a petitioning
creditor to the extent of the balance of the debt due to him, after deducting
the value so estimated, in the same manner as if he were an unsecured
creditor.
Proceedings and order on creditor's petition
7.-(1)
A creditor's petition shall be verified by affidavit of the creditor, or of some
person on his behalf having knowledge of the
facts, and served in the prescribed
manner.
(2) At the hearing the
court shall require proof of the debt of the petitioning creditor, of the
service of the petition, and of the
act of bankruptcy, or, if more than one act
of bankruptcy is alleged in the petition, of some one of the alleged acts of
bankruptcy
and, if satisfied with the proof, may make a receiving order in
pursuance of the petition.
(3) If
the court is not satisfied with the proof of the petitioning creditor's debt, or
of the act of bankruptcy, or of the service
of the petition, or is satisfied by
the debtor that he is able to pay his debts, or that for other sufficient cause
no order ought
to be made, the court may dismiss the
petition.
(4) When the act of
bankruptcy relied on is non-compliance with a bankruptcy notice to pay, secure
or compound for a judgment debt,
or sum ordered to be paid, 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
the court may require for payment to the petitioner of any
debt which may be established against him in due course of law, and of
the costs
of establishing the debt, may, instead of dismissing the petition, stay all
proceedings on the petition for such time as
may be required for trial of the
question relating to the debt.
(6)
Where proceedings are stayed, the court may, if by reason of the delay caused by
the stay of proceedings or for any other cause
it thinks just, make a receiving
order on the petition of some other creditor, and shall thereupon dismiss, on
such terms as it thinks
just, the petition in which proceedings have been stayed
as aforesaid.
(7) A creditor's
petition shall not, after presentation, be withdrawn without the leave of the
court.
Debtor's petition and order thereon
8.-(1)
A debtor's petition shall allege that the debtor is unable to pay his debts, and
the presentation thereof shall be deemed an
act of bankruptcy without the
previous filing by the debtor of any declaration of inability to pay his debts,
and the court shall
thereupon make a receiving
order.
(2) A debtor's petition
shall not, after presentation, be withdrawn without the leave of the
court.
Effect of receiving order
9.-(1)
On the making of a receiving order the official receiver shall be thereby
constituted receiver of the property of the debtor,
and thereafter, except as
directed by this Act, no creditor to whom the debtor is indebted in respect of
any debt provable in bankruptcy
shall have any remedy against the property or
person of the debtor in respect of the debt, or shall commence any action or
other
legal proceedings, unless with the leave of the court and on such terms as
the court may impose.
(2) But this
section shall not affect the power of any secured creditor to realize or
otherwise deal with his security in the same
manner as he would have been
entitled to realize or deal with it if this section had not been
passed.
Power to appoint interim receiver
10.
The court may, if it is shown to be necessary for the protection of the estate,
at any time after the presentation of a bankruptcy
petition, and before a
receiving order is made, appoint the official receiver to be interim receiver of
the property of the debtor,
or of any part thereof, and direct him to take
immediate possession thereof or of any part thereof.
Power to stay pending proceedings
11.-(1)
The court may, at any time after the presentation of a bankruptcy petition, stay
any action, execution or other legal process
against the property or person of
the debtor, and any court in which proceedings are pending against a debtor may,
on proof that
a bankruptcy petition has been presented by or against the debtor,
either stay the proceedings or allow them to continue on such
terms as it may
think just.
(2) Where the court
makes an order staying any action or proceedings, or staying proceedings
generally, the order may be served by
sending a copy thereof, under the seal of
the court, by post to the address for service of the plaintiff or other party
prosecuting
such proceeding.
Power to appoint special manager
12.-(1)
The official receiver of a debtor's estate may, on the application of any
creditor or creditors, and if satisfied that the nature
of the debtor's estate
or business or the interests of the creditors generally require the appointment
of a special manager of the
estate or business other than the official receiver,
appoint a manager thereof accordingly to act until a trustee is appointed, and
with such powers (including any of the powers of a receiver) as may be entrusted
to him by the official
receiver.
(2) The special manager
shall give security and account in such manner as the official receiver may
direct.
(3) The special manager
shall receive such remuneration as the creditors may, by resolution at an
ordinary meeting, determine, or,
in default of any such resolution, as may be
prescribed.
Advertisement of receiving order
13.
Notice of every receiving order, stating the name, address and description of
the debtor, the date of the order, the court by which
the order is made, and the
date of the petition, shall be
gazetted
in the prescribed manner.
PROCEEDINGS CONSEQUENT ON ORDER
First meetings of creditors
14.
As soon as may be after the making of a receiving order against a debtor a
general meeting of his creditors (in this Act referred
to as the first meeting
of creditors) shall be held for the purpose of considering whether a proposal
for a composition or scheme
of arrangement shall be accepted or whether it is
expedient that the debtor shall be adjudged bankrupt, and generally as to the
mode
of dealing with the debtor's property.
Meetings to be governed by rules
15.
With respect to the summoning of and proceedings at the first and other meetings
of creditors, the rules in the First Schedule shall
be observed.
Debtor's statement of affairs
16.-(1)
Where a receiving order is made against a debtor, he shall make out and submit
to the official receiver a statement of and in
relation to his affairs in the
prescribed form, verified by affidavit, and showing the particulars of the
debtor's assets, debts
and liabilities, the names, residences and occupations of
his creditors, the securities held by them respectively, the dates when
the
securities were respectively given, and such further or other information as may
be prescribed or as the official receiver may
require.
(2) The statement shall
be so submitted within the following times, namely:-
(a) if the order is made on the petition of the debtor, within three days from the date of the order;
(b) if the order is made on the petition of a creditor, within seven days from the date of the order;
but
the court may, in either case for special reasons, extend the
time.
(3) If the debtor fails
without reasonable excuse to comply with the requirements of this section, the
court may, on the application
of the official receiver, or of any creditor,
adjudge him bankrupt.
(4) Any
person stating himself in writing to be a creditor of the bankrupt may,
personally or by agent, inspect the statement at all
reasonable times, and take
any copy thereof or extract therefrom, but any person untruthfully so stating
himself to be a creditor
shall be guilty of a contempt of court, and shall be
punishable accordingly on the application of the trustee or official
receiver.
PUBLIC EXAMINATION OF THE DEBTOR
Public examination of debtor
17.-(1)
Where the court makes a receiving order, it shall, save as in this Act provided,
hold a public sitting, on a day to be appointed
by the court, for the
examination of the debtor, and the debtor shall attend thereat, and shall be
examined as to his conduct, dealings,
and
property.
(2) The examination
shall be held as soon as conveniently may be after the expiration of the time
for the submission of the debtor's
statement of
affairs.
(3) The court may adjourn
the examination from time to
time.
(4) Any creditor who has
tendered a proof, or his representative authorised in writing, may question the
debtor concerning his affairs
and the causes of his
failure.
(5) The official receiver
shall take part in the examination of the debtor, and for the purpose may employ
a barrister and solicitor
if he so
desires.
(6) If a trustee is
appointed before the conclusion of the examination, he may take part
therein.
(7) The court may put
such questions to the debtor as it may think
expedient.
(8) The debtor shall be
examined upon oath, and it shall be his duty to answer all such questions as the
court may put or allow to
be put to him. Such notes of the examination as the
court thinks proper shall be taken down in writing, and shall be read over
either
to or by the debtor and signed by him, and may thereafter, save
as
(8) The court shall, before
approving the proposal, hear a report of the official receiver as to the terms
thereof, and as to the
conduct of the debtor, and any objections which may be
made by or on behalf of any
creditor.
(9) If the court is of
opinion that the terms of the proposal are not reasonable, or are not calculated
to benefit the general body
of creditors, the court shall refuse to approve the
proposal.
(10) If any facts are
proved on proof of which the court would be required either to refuse, suspend
or attach conditions to the debtor's
discharge, were he adjudged bankrupt, the
court shall refuse to approve the proposal, unless it provides reasonable
security for
the payment of not less than twenty-five cents in the dollar on all
the unsecured debts provable against the debtor's
estate.
(11) In any other case the
court may either approve or refuse to approve the
proposal.
(12) If the court
approves the proposal, the approval may be testified by the seal of the court
being attached to the instrument containing
the terms of the proposed
composition or scheme, or by the terms being embodied in an order of the
court.
(13) A composition or
scheme accepted and approved in pursuance of this section shall be binding on
all the creditors so far as relates
to any debts due to them from the debtor or
provable in bankruptcy, but shall not release the debtor from any liability
under a judgment
against him in an action for seduction, or under an affiliation
order, or under a judgment against him as a co-respondent in a matrimonial
cause, except to such an extent and under such conditions as the court expressly
orders in respect of such
liability.
(14) A certificate of
the official receiver that a composition or scheme has been duly accepted and
approved shall, in the absence
of fraud, be conclusive as to its
validity.
(15) The provisions of a
composition or scheme under this section may be enforced by the court on
application by any person interested,
and any disobedience of an order of the
court made on the application shall be deemed a contempt of
court.
(16) If default is made in
payment of any instalment due in pursuance of the composition or scheme, or if
it appears to the court,
on satisfactory evidence, that the composition or
scheme cannot, in consequence of legal difficulties, or for any sufficient
cause,
proceed without injustice or undue delay to the creditors or to the
debtor, or that the approval of the court was obtained by fraud,
the court may,
if it thinks fit, on application by the official receiver or the trustee or by
any creditor, adjudge the debtor bankrupt,
and annul the composition or scheme,
but without prejudice to the validity of any sale, disposition or payment duly
made or things
duly done, under or in pursuance of the composition or
scheme.
Where a debtor is adjudged
bankrupt under this subsection any debt provable in other respects, which has
been contracted before the
adjudication, shall be provable in the
bankruptcy.
(17) If under or in
pursuance of a composition or scheme a trustee is appointed to administer the
debtor's property or manage his
business, or to distribute the composition,
section 27 and Part V shall apply as if the trustee were a trustee in a
bankruptcy, and
as if the terms "bankruptcy", "bankrupt", and "order of
adjudication" included respectively a composition or scheme of arrangement,
a
compounding or arranging debtor, and an order approving the composition or
scheme.
(18) Part III shall, so
far as the nature of the case and the terms of the composition or scheme admit,
apply thereto, the same interpretation
being given to the words "trustee",
"bankruptcy", "bankrupt", and "order of adjudication" as in subsection
(17).
(19) No composition or
scheme shall be approved by the court which does not provide for the payment in
priority to other debts of
all debts directed to be so paid in the distribution
of the property of a
bankrupt.
(20) The acceptance by a
creditor of a composition or scheme shall not release any person who under this
Act would not be released
by an order of discharge if the debtor had been
adjudged bankrupt.
Effect of composition or scheme
19.
Notwithstanding the acceptance and approval of a composition or scheme, the
composition or scheme shall not be binding on any creditor
so far as regards a
debt or liability from which, under the provisions of this Act, the debtor would
not be released by an order
of discharge in bankruptcy, unless the creditor
assents to the composition or scheme.
ADJUDICATION OF BANKRUPTCY
Adjudication of bankruptcy where composition not accepted or approved
20.-(1)
Where a receiving order is made against a debtor, then, if the creditors at the
first meeting or any adjournment thereof by
ordinary resolution resolve that the
debtor be adjudged bankrupt, or pass no resolution, or if the creditors do not
meet, or if a
composition or scheme is not approved in pursuance of this Act
within fourteen days after the conclusion of the examination of the
debtor or
such further time as the court may allow, the court shall adjudge the debtor
bankrupt; and thereupon the property of the
bankrupt shall become divisible
among his creditors, and shall vest in a
trustee.
(2) Notice of every order
adjudging a debtor bankrupt, stating the name, address and description of the
bankrupt, and the date of
the adjudication, shall be
gazetted
and advertised in a local paper in the prescribed manner, and the date of the
order shall, for the purposes of this Act, be the date
of the
adjudication.
Appointment of trustee
21.-(1)
Where a debtor is adjudged bankrupt, or the creditors have resolved that he be
adjudged bankrupt, the creditors may by ordinary
resolution appoint some fit
person, whether a creditor or not, to fill the office of trustee of the property
of the bankrupt; or
they may resolve to leave his appointment to the committee
of inspection hereinafter
mentioned.
A person shall be
deemed not fit to act as trustee of the property of a bankrupt where he has been
previously removed from the office
of trustee of a bankrupt's property for
misconduct or neglect of duty.
(2)
The person so appointed shall give security in manner prescribed to the
satisfaction of the court, and the court, if satisfied
with the security, shall
certify that his appointment has been duly made, unless the court objects to the
appointment on the ground
that it has not been made in good faith by a majority
in value of the creditors voting, or that the person appointed is not fit to
act
as trustee, or that his connexion with or relation to the bankrupt, or his
estate or any particular creditor makes it difficult
for him to act with
impartiality in the interests of the creditors
generally.
(3) The appointment of
a trustee shall take effect as from the date of the
certificate.
(4) The official
receiver may be appointed the trustee by the creditors and in such case there
shall be no committee of inspection,
but the official receiver may do with the
permission of the court all things which may be done by a trustee with the
permission of
the committee of
inspection.
(5) If a trustee is
not appointed by the creditors within four weeks from the date of the
adjudication, or in the event of there being
negotiations for a composition or
scheme pending at the expiration of those four weeks, then within seven days
from the close of
those negotiations by the refusal of the creditors to accept,
or of the court to approve, the composition or scheme, the official
receiver
shall report the matter to the court, and thereupon the court shall appoint some
fit person to be trustee of the bankrupt's
property, and shall certify the
appointment:
Provided that the
creditors or the committee of inspection (if so authorised by resolution of the
creditors) may, at any subsequent
time, if they think fit, appoint a trustee,
and, on the appointment being made and certified, the person appointed shall
become trustee
in the place of the person appointed by the
court.
(6) When a debtor is
adjudged bankrupt after the first meeting of creditors has been held, and a
trustee has not been appointed prior
to the adjudication, the official receiver
shall forthwith summon a meeting of creditors for the purpose of appointing a
trustee.
Committee of inspection
22.-(1)
The creditors qualified to vote may, at their first or any subsequent meeting,
by resolution, appoint a committee of inspection
for the purpose of
superintending the administration of the bankrupt's property by the
trustee.
Qualifications of committee
(2) The committee of
inspection shall consist of not more than five nor less than three persons,
possessing one or other of the following
qualifications:-
(a) that of being a creditor or the holder of a general proxy or general power of attorney from a creditor:
Provided that no creditor and no holder of a general proxy or general power of attorney from a creditor shall be qualified to act as a member of the committee of inspection until the creditor has proved his debt and the proof has been admitted; or
(b) that of being a person to whom a creditor intends to give a general proxy or general power of attorney:
Provided that no such person shall be qualified to act as a member of the committee of inspection until he holds such a proxy or power of attorney, and until the creditor has proved his debt and the proof has been admitted.
Meetings of committee
(3) The committee of
inspection shall meet at such times as they shall from time to time appoint,
and, failing such appointment, at
least once a month; and the trustee or any
member of the committee may also call a meeting of the committee as and when he
thinks
necessary.
Quorum
(4) The committee may act
by a majority of their members present at a meeting, but shall not act unless a
majority of the committee
are present at the meeting.
Resignation of office
(5) Any member of the
committee may resign his office by notice in writing signed by him, and
delivered to the trustee.
Vacation of office
(6) If a member of the
committee becomes bankrupt or compounds or arranges with his creditors, or is
absent from five consecutive
meetings of the committee, his office shall
thereupon become vacant.
Removal
(7) Any member of the
committee may be removed by an ordinary resolution at any meeting of creditors
of which seven days' notice has
been given stating the object of the
meeting.
Filling a vacancy
(8) On a vacancy occurring
in the office of a member of the committee, the trustee shall forthwith summon a
meeting of creditors for
the purpose of filling the vacancy, and the meeting may
by resolution appoint another creditor, or other person eligible as above,
to
fill the vacancy.
Continuing members may act
(9) The continuing members
of the committee, provided there be not less than two such continuing members,
may act notwithstanding
any vacancy in their body; and, where the number of
members of the committee of inspection is for the time being less than five,
the
creditors may increase that number so that it does not exceed
five.
If no committee court gives consent
(10) If there be no
committee of inspection, any act or thing or any direction or permission by this
Act authorised or required to
be done or given by the committee may be done or
given by the court on the application of the trustee, or by the official
receiver,
save in the case where he himself is acting as trustee.
Power to accept composition or scheme after bankruptcy adjudication
23.-(1)
Where a debtor is adjudged bankrupt the creditors may, if they think fit, at any
time after the adjudication, by a majority
in number and three-fourths in value
of all the creditors who have proved, resolve to accept a proposal for a
composition in satisfaction
of the debts due to them under the bankruptcy, or
for a scheme of arrangement of the bankrupt's affairs; and thereupon the same
proceedings
shall be taken and the same consequences shall ensue as in the case
of a composition or scheme accepted before adjudication.
If court approves
(2) If the court approves
the composition or scheme, it may make an order annulling the bankruptcy and
vesting the property of the
bankrupt in him or in such other person as the court
may appoint, on such terms, and subject to such other person as the court may
appoint, on such terms, and subject to such conditions, if any, as the court may
declare.
Default, etc.
(3) If default is made in
payment of any instalment due in pursuance of the composition or scheme or if it
appears to the court that
the composition or scheme cannot proceed without
injustice or undue delay, or that the approval of the court was obtained by
fraud,
the court may, if it thinks fit, on application by any person interested,
adjudge the debtor bankrupt, and annul the composition
or scheme, but without
prejudice to the validity of any sale, disposition or payment duly made, or
thing duly done, under or in pursuance
of the composition or scheme. Where a
debtor is adjudged bankrupt under this subsection all debts, provable in other
respects, which
have been contracted before the date of such adjudication, shall
be provable in the bankruptcy.
CONTROL OVER PERSON AND PROPERTY OF DEBTOR
Duties of debtor as to discovery and realization of property
24.-(1)
Every debtor against whom a receiving order is made, shall, unless prevented by
sickness or other sufficient cause, attend the
first meeting of his creditors,
and shall submit to such examination and give such information as the meeting
may require.
To discover property
(2) He shall give such
inventory of his property, such list of his creditors and debtors, and of the
debts due to and from them respectively,
submit to such examination in respect
of his property or his creditors, attend such other meeting of his creditors,
wait at such
times on the official receiver, special manager, or trustee,
execute such powers of attorney, conveyances, deeds, and instruments
and
generally do all such acts and things in relation to his property and the
distribution of the proceeds amongst his creditors,
as may be reasonably
required by the official receiver, special manager or trustee, or may be
prescribed by general rules, or be
directed by the court by any special order or
orders made in reference to any particular case, or made on the occasion of any
special
application by the official receiver, special manager, trustee or any
creditor or person interested.
To aid in realization
(3) He shall, if adjudged
bankrupt, aid, to the utmost of his power, in the realization of his property
and the distribution of the
proceeds among his creditors.
Committal
(4) If a debtor wilfully
fails to perform the duties imposed on him by this section, or to deliver up
possession of any part of his
property which is divisible amongst his creditors
under this Act, and which is for the time being in his possession or under his
control, to the official receiver or to the trustee, or to any person authorised
by the court to take possession of it, he shall,
in addition to any other
punishment to which he may be subject, be guilty of a contempt of court, and may
be punished accordingly.
Arrest of debtor under certain circumstances
25.-(1)
The court may, by warrant addressed to any police officer or prescribed officer
of the court, cause a debtor to be arrested,
and any books, papers, money and
goods in his possession to be seized, and him and them to be safely kept as
prescribed until such
time as the court may order under the following
circumstances: -
After issue of bankruptcy notice
(a) if after a bankruptcy notice has been issued under this Act, or after presentation of a bankruptcy petition by or against him, it appears to the court that there is probable reason for believing that he has absconded or is about to abscond, with a view of avoiding payment of the debt in respect of which the bankruptcy notice was issued, or of avoiding service of a bankruptcy petition, or of avoiding appearance to any such petition, or of avoiding examination, in respect of his affairs, or of otherwise avoiding, delaying or embarrassing proceedings in bankruptcy against him;
After presentation of petition
(b) if, after presentation of a bankruptcy petition by or against him, it appears to the court that there is probable cause for believing that he is about to remove his goods with a view of preventing or delaying possession being taken of them by the official receiver or trustee, or that there is probable ground for believing that he has concealed or is about to conceal or destroy any of his goods, or any books, documents or writings which might be of use to his creditors in the course of his bankruptcy;
After service of petition
(c) if, after service of a bankruptcy petition on him, or after a receiving order is made against him, he removes any goods in his possession above the value of ten dollars, without the leave of the official receiver or trustee;
Attend examination
(d) if, without good cause shown, he fails to attend any examination order by the court:
Provided that no arrest upon a bankruptcy notice shall be valid and protected, unless the debtor before or at the time of his arrest is served with such bankruptcy notice.
Payment after arrest may be fraudulent preference
(2) No payment or
composition made or security given after arrest made under this section shall be
exempt from the provisions of this
Act relating to fraudulent
preferences.
Re-direction of debtor's letters
26.
Where a receiving order is made against a debtor, the court, on the application
of the official receiver or trustee, may from time
to time order that for such
time, not exceeding six months, as the court thinks fit, letters, telegrams,
cablegrams, and other postal
articles, addressed to the debtor at any place or
places mentioned in the order for re-direction, shall be re-directed, sent or
delivered
by the Permanent Secretary for Posts and Telecommunications, or the
officers acting under him, or by any other person in charge of
the transmission
and receipt of telegrams and cablegrams, to the official receiver, or the
trustee, or otherwise, as the court directs
and the same shall be done
accordingly.
Inquiry as to debtor's conduct, dealings and property
27.-(1)
The court may on the application of the official receiver or trustee, at any
time after a receiving order has been made against
a debtor, summon before it
the debtor or his wife, or any person known or suspected to have in his
possession any of the estate or
effects belonging to the debtor, or supposed to
be indebted to the debtor, or any person whom the court may deem capable of
giving
information respecting the debtor, his dealings or property, and the
court may require any such person to produce any documents in
his custody or
power relating to the debtor, his dealings or property.
In case of refusal
(2) If any person so
summoned, after having been tendered a reasonable sum, refuses to come before
the court at the time appointed
or refuses to produce any such documents having
no lawful impediment made known to the court at the time of its sitting and
allowed
by it, the court may, by warrant, cause him to be apprehended and
brought up for examination.
Examination on oath
(3) The court may examine
on oath, either by word of mouth or by written interrogatories, any person so
brought before it concerning
the debtor, his dealings or
property.
Order to pay
(4) If any person on
examination before the court admits that he is indebted to the debtor, the court
may, on the application of the
official receiver or trustee, order him to pay to
the official receiver or trustee, at such time and in such manner as to the
court
seems expedient, the amount admitted, or any part thereof, either in full
discharge of the whole amount in question or not, as the
court thinks fit, with
or without costs of the examination.
Order to deliver property
(5) If any person on
examination before the court admits that he has in his possession any property
belonging to the debtor, the court
may, on the application of the official
receiver or trustee, order him to deliver to the official receiver or trustee
such property
or any part thereof, at such time, and in such manner, and on such
terms, as to the court may seem just.
Examination out of Fiji
(6) The court, may, if it
thinks fit, order that any person who, if in Fiji, would be liable to be brought
before it under this section
shall be examined in any other place out of
Fiji.
Discharge of bankrupt
28.-(1)
A bankrupt may, at any time after being adjudged bankrupt, apply to the court
for an order of discharge, and the court shall
appoint a day for hearing the
application, but the application shall not be heard until the public examination
of the bankrupt is
concluded. The application shall, except when the court in
accordance with rules under this Act otherwise directs, be heard in open
court.
Powers of court
(2) On the hearing of the
application the court shall take into consideration a report of the official
receiver as to the bankrupt's
conduct and affairs (including a report as to the
bankrupt's conduct during the proceedings under his bankruptcy), and may either
grant or refuse an absolute order of discharge, or suspend the operation of the
order for a specified time, or grant an order of
discharge subject to any
conditions with respect to any earnings or income which may afterwards become
due to the bankrupt, or with
respect to his after-acquired
property:
Provided that where the
bankrupt has committed any offence under this Act or any other offence connected
with his bankruptcy, or where
in any case any of the facts specified in
subsection (4) are proved, the court shall either-
(a) refuse the discharge; or
(b) suspend the discharge for such period as the court thinks proper; or
(c) suspend the discharge until a dividend of not less than fifty cents in the dollar has been paid to the creditors; or
(d) require the bankrupt as a condition of his discharge to consent to judgment being entered against him by the official receiver or trustee for any balance or part of any balance of the debts provable under the bankruptcy which is not satisfied at the date of the discharge, such balance or part of any balance of the debts to be paid out of the future earnings or after-acquired property of the bankrupt in such manner and subject to such conditions as the court may direct; but execution shall not be issued on the judgment without leave of the court, which leave may be given on proof that the bankrupt has since his discharge acquired property or income available towards payment of his debts.
(3)
If at any time after the expiration of two years from the date of any order made
under this section the bankrupt satisfies the
court that there is no reasonable
probability of his being in a position to comply with the terms of such order,
the court may modify
the terms of the order or of any substituted order, in such
manner and upon such conditions as it may think
fit.
(4) The facts hereinbefore
referred to are-
(a) that the bankrupt's assets are not of a value equal to fifty cents in the dollar on the amount of his unsecured liabilities, unless he satisfies the court that the fact that the assets are not of a value equal to fifty cents in the dollar on the amount of his unsecured liabilities has arisen from circumstances for which he cannot justly be held responsible;
(b) that the bankrupt has contracted any debt provable in the bankruptcy without having at the time of contracting it any reasonable or probable ground of expectation (proof whereof shall lie on him) of being able to pay it;
(c) that the bankrupt has failed to account satisfactorily for any loss of assets or for any deficiency of assets to meet his liabilities;
(d) that the bankrupt has brought on, or contributed to, his bankruptcy by rash and hazardous speculations, or by unjustifiable extravagance in living, or by gambling, or by culpable neglect of his business affairs;
(e) that the bankrupt has put any of his creditors to unnecessary expense by a frivolous or vexatious defence to any action properly brought against him;
(f) that the bankrupt has brought on or contributed to his bankruptcy by incurring unjustifiable expense in bringing any frivolous or vexatious action;
(g) that the bankrupt has, within three months preceding the date of the receiving order, when unable to pay his debts as they became due, given any undue preference to any of his creditors;
(h) that the bankrupt has, within three months preceding the date of the receiving order, incurred liabilities with a view of making his assets equal to fifty cents in the dollar on the amount of his unsecured liabilities;
(i) that the bankrupt has, on any previous occasion, been adjudged bankrupt, or made a composition or arrangement with his creditors;
(j) that the bankrupt has been guilty of any fraud or fraudulent breach of trust.
Certificate that bankruptcy was caused by misfortune
(5) With a view to
removing any legal disqualification on account of bankruptcy which is removed if
the bankrupt obtains from the
court his discharge with a certificate to the
effect that the bankruptcy was caused by misfortune without any misconduct on
his part,
the court may, if it thinks fit, grant such certificate, but a refusal
to grant such a certificate shall be subject to appeal as
provided in section
100.
When are assets fifty cents in the dollar
(6) For the purposes of
this section, a bankrupt's assets shall be deemed of a value equal to fifty
cents in the dollar on the amount
of his unsecured liabilities when the court is
satisfied that the property of the bankrupt has realized, or is likely to
realize,
or with due care in realization might have realized, an amount equal to
fifty cents in the dollar on his unsecured liabilities, and
a report by the
official receiver or the trustee shall be prima facie evidence of the amount of
such liabilities.
Report of official receiver
(7) For the purpose of
this section, the report of the official receiver shall be prima facie evidence
of the statements therein contained.
Notice of application for discharge
(8) Notice of the
appointment by the court of the day for hearing the application for discharge
shall be published in the prescribed
manner, and sent fourteen days at least
before the day so appointed to each creditor who has proved, and the court may
hear the official
receiver and the trustee, and may also hear any creditor. At
the hearing the court may put such questions to the debtor and receive
such
evidence as it may think fit.
(9)
The powers of suspending and of attaching conditions to a bankrupt's discharge
may be exercised concurrently.
Duties of discharged bankrupt
(10) A discharged bankrupt
shall, notwithstanding his discharge, give such assistance as the trustee may
require in the realization
and distribution of such of his property as is vested
in the trustee, and, if he fails to do so, he shall be guilty of a contempt
of
court; and the court may also, if it thinks fit, revoke his discharge, but
without prejudice to the validity of any sale, disposition
or payment duly made
or thing duly done subsequent to the discharge but before its
revocation.
Fraudulent settlements
29.
In either or the following cases, that is to say:-
(a) in the case of a settlement made before and in consideration of marriage where the settlor is not at the time of making the settlement able to pay all his debts without the aid of the property comprised in the settlement; or
(b) in the case of any covenant or contract made in consideration of marriage for the future settlement on or for the settlor's wife or children of any money or property wherein he had not at the date of his marriage any estate or interest (not being money or property of or in right of his wife),
if
the settlor is adjudged bankrupt or compounds or arranges with his creditors,
and it appears to the court that such settlement,
covenant or contract was made
in order to defeat or delay creditors or was unjustifiable having regard to the
state of the settlor's
affairs at the time when it was made, the court may
refuse or suspend an order of discharge, or grant an order subject to
conditions,
or refuse to approve a composition or arrangement, as the case may
be, in like manner as in cases where the debtor has been guilty
of
fraud.
Effect of order of discharge
30.-(1)
An order of discharge shall not release the bankrupt-
(a) from any debt on a recognizance nor from any debt with which the bankrupt may be chargable at the suit of the Crown or of any person for any offence against any law relating to any branch of the general revenue of Fiji, or at the suit of the sheriff or other public officer on a bail bond entered into for the appearance of any person prosecuted for any such offence; and he shall not be discharged from such excepted debts unless the Chief Accountant shall certify in writing his consent to the bankrupt being discharged therefrom; or
(b) from any debt or liability incurred by means of any fraud or fraudulent breach of trust to which he was a party, nor from any debt or liability whereof he has obtained forbearance by any fraud to which he was a party; or
(c) from any liability under a judgment against him in an action for seduction, or under an affiliation order, or under a judgment against him as a co-respondent in a matrimonial cause, except to such an extent and under such conditions as the court expressly orders in respect of such liability.
(2)
An order of discharge shall release the bankrupt from all other debts provable
in bankruptcy.
(3) An order of
discharge shall be conclusive evidence of the bankruptcy, and of the validity of
the proceedings therein, and in any
proceedings that may be 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.
(4) An order of
discharge shall not release any person who at the date of the receiving order
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.
Power for court to annul adjudication in certain cases
31.-(1)
Where in the opinion of the court a debtor ought not to have been adjudged
bankrupt, or where it is proved to the satisfaction
of the court that the debts
of the bankrupt are paid in full, the court may, on the application of any
person interested, by order
annul the adjudication.
Effect of annulment
(2) Where an adjudication
is annulled under this section all sales and dispositions of property and
payments duly made, and all acts
theretofore done, by the official receiver,
trustee, or other person acting under their authority, or by the court, shall be
valid,
but the property of the debtor who was adjudged bankrupt, shall vest in.
such persons as the court may appoint, or, in default of
any such appointment,
revert to the debtor for all his estate or interest therein on such terms and
subject to such conditions, if
any, as the court may declare by
order.
Advertisement of order
(3) Notice of the order
annulling an adjudication shall be forthwith gazetted and published in a
newspaper published and circulating
in
Fiji.
(Amended by
37 of 1966, s. 17.)
Meaning of "payment in full"
(4) For the purpose of
this section, any debt disputed by a debtor shall be considered as paid in full
if the debtor enters into a
bond, in such sum and with such sureties as the
court approves, to pay the amount to be recovered in any proceedings for the
recovery
of or concerning the debt, with costs, and any debt due to a creditor
who cannot be found or cannot be identified shall be considered
as paid in full
if paid into court.
PART III-ADMINISTRATION OF PROPERTY
PROOF OF DEBTS
Description of debts provable in bankruptcy
32.-(1)
Demands in the nature of unliquidated damages arising otherwise than by reason
of a contract, promise or breach of trust shall
not be provable in
bankruptcy.
Creditor with notice of act of bankruptcy
(2) A person having notice
of any act of bankruptcy available against the debtor shall not prove under the
order for any debt or liability
contracted by the debtor subsequently to the
date of his so having notice.
What may be proved
(3) Save as aforesaid, all
debts and liabilities, present or future, certain or contingent, to which the
debtor is subject at the
date of the receiving order, or to which he may become
subject before his discharge by reason of any obligation incurred before the
date of the receiving order, shall be deemed to be debts provable in
bankruptcy.
Estimate of uncertain debts
(4) An estimate shall be
made by the trustee of the value of any debt or liability provable as aforesaid,
which by reason of its being
subject to any contingency or contingencies, or for
any other reason, does not bear a certain value.
Appeal from estimate
(5) Any person aggrieved
by any estimate made by the trustee as aforesaid may appeal to the
court.
If not capable of being fairly estimated
(6) If, in the opinion of
the court, the value of the debt or liability is incapable of being 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 bankruptcy.
Estimation before court
(7) If, in the opinion of
the court, the value of the debt or liability is capable of being fairly
estimated, the court may assess
the value, and the amount of the value when
assessed shall be deemed to be a debt provable in bankruptcy.
Meaning of "liability"
(8) For the purposes of
this Act, "liability" shall include-
(a) any compensation for work or labour done;
(b) any obligation or possibility of an obligation to pay money or money's worth on the breach of any express or implied covenant, contract, agreement, or undertaking, whether the breach does or does not occur, or is or is not likely to occur or capable of occurring, before the discharge of the debtor;
(c) generally, any express or implied engagement, agreement, or undertaking, to pay, or capable of resulting in the payment of, money or money's worth; whether the payment is, as respects amount, fixed or unliquidated, as respects time, present or future, certain or dependent on any one contingency or on two or more contingencies; as to mode of valuation, capable of being ascertained by fixed rules or as matter of opinion.
Mutual credit and set-off
33.
Where there have been mutual credits, mutual debts or other mutual dealings,
between a debtor against whom a receiving order shall
be made under this Act and
any other person proving or claiming to prove a debt under the receiving order,
an account shall be taken
of what is due from the one party to the other in
respect of such mutual dealings, and the sum due from the one party shall be set
off against any sum due from the other party, and the balance of the account,
and no more, shall be claimed or paid on either side
respectively; but a person
shall not be entitled under this section to claim the benefit of any set-off
against the property of a
debtor in any case where he had, at the time of giving
credit to the debtor, notice of an act of bankruptcy committed by the debtor
and
available against him.
Rules as to proof of debts
34.
With respect to the mode of proving debts, the right of proof by secured and
other creditors, the admission and rejection of proofs,
and the other matters
referred to in the Second Schedule, the rules in that Schedule shall be
observed.
Priority of debts
35.-(1)
In the distribution of the property of a bankrupt there shall be paid in
priority to all other debts-
One year's rates and taxes
(a) all Crown taxes and local rates due from the bankrupt at the date of the receiving order, and having become due and payable within twelve months next before that date not exceeding in the whole one year's assessment;
Crown rents
(b) all Crown rents not more than twelve months in arrears;
Clerk's or servant's wages
(c) all wages or salary, whether or not earned wholly or in part by way of commission, of any clerk or servant in respect of service rendered to the bankrupt during four months before the date of the receiving order, not exceeding one hundred dollars;
Labourer's wages
(d) all wages of any labourer or workman not exceeding fifty dollars, whether payable for time or for piecework, in respect of services rendered to the bankrupt during two months before the date of the receiving order:
Provided that where any labourer in husbandry has entered into a contract for the payment of a portion of his wages in a lump sum at the end of the period of hiring, the priority under this section shall extend to the whole of such sum, or a part thereof, as the court may decide to be due under the contract, proportionate to the time of service up to the date of the receiving order;
Workmen's Compensation
(e) unless the bankrupt has at the date of the receiving order, under such a contract with insurers as is mentioned in section 27 of the Workmen's Compensation Act, rights capable of being transferred to and vested in the workmen, all amounts due in respect of any compensation or liability for compensation under the said Act accrued before the date of the receiving order.
(Cap. 94.)
(2) Where any compensation under the Workmen’s Compensation Act is a weekly payment, the amount due in respect thereof shall, for the purposes of paragraph (e) of subsection (1) be taken to be the amount of the lump sum for which the weekly payment could, if redeemable, be redeemed if the employer made an application for that purpose under the said Act.
(Cap. 94.)
They rank equally inter se
(3) The foregoing debts shall rank equally between themselves, and shall be paid in full, unless the property of the bankrupt is insufficient to meet them, in which case they shall abate in equal proportions between themselves.
To be paid forthwith
(4) Subject to the
retention of such sums as may be necessary for the costs of administration or
otherwise, the foregoing debts shall
be discharged forthwith as far as the
property of the debtor is sufficient to meet them.
First charge on distress
(5) In the event of a
landlord or other person distraining or having distrained on any goods or
effects of a bankrupt within three
months next before the date of the receiving
order the debts to which priority is given by this section shall be a first
charge on
the goods or effects so distrained on, or the proceeds of the sale
thereof:
Provided that in respect
of any money paid under any such charge the landlord or other person shall have
the same rights of priority
as the person to whom such payment is
made.
Insolvent estate of deceased person
(6) This section shall
apply, in the case of a deceased person who dies insolvent, as if he were a
bankrupt, and as if the date of
his death were substituted for the date of the
receiving order.
Application of joint and separate estates in partnership bankruptcies
(7) In the case of
partners the joint estate shall be applicable in the first instance in payment
of their joint debts, and the separate
estate of each partner shall be
applicable in the first instance in payment of his separate debts. If there is a
surplus of the separate
estates, it shall be dealt with as part of the joint
estate. If there is a surplus of the joint estate, it shall be dealt with as
part of the respective separate estates in proportion to the right and interest
of each partner in the joint estate.
All other debts pari passu
(8) Subject to the
provisions of this Act, all debts proved in the bankruptcy shall be paid pari
passu.
Surplus
(9) If there is any
surplus after payment of the foregoing debts it shall be applied in payment of
interest from the date of the receiving
order at the rate of four per cent per
annum on all debts proved in the bankruptcy.
Savings
(10) Nothing in this
section shall prejudice the provisions of any enactment relating to deeds of
arrangement respecting the payment
of expenses incurred by the trustee under a
deed of arrangement which has been avoided by the bankruptcy of the
debtor.
Preferential claim in case of apprenticeship
36.-(1)
Where at the time of the presentation of the bankruptcy petition any person is
apprenticed or is an articled clerk to the bankrupt,
the adjudication of
bankruptcy shall, if either the bankrupt or apprentice or clerk gives notice in
writing to the trustee to that
effect, be a complete discharge of the indenture
of apprenticeship or articles of agreement; and, if any money has been paid by
or
on behalf of the apprentice or clerk to the bankrupt as a fee, the trustee
may, on the application of the apprentice or clerk, or
of some person on his
behalf, pay such sum as the trustee, subject to an appeal to the court, thinks
reasonable, out of the bankrupt's
property, to or for the use of the apprentice
or clerk, regard being had to the amount paid by him or on his behalf, and to
the time
during which he served with the bankrupt under the indenture or
articles before the commencement of the bankruptcy, and to the other
circumstances of the case.
Alternative power of trustee
(2) Where it appears
expedient to a trustee, he may, subject to the provisions of section 22 (2) of
the Fiji National Training Act,
on the application of any apprentice or articled
clerk to the bankrupt, or any person acting on behalf of such apprentice or
articled
clerk, instead of acting under the preceding provisions of this
section, transfer the indenture of apprenticeship or articles of
agreement to
some other
person.
(Section
amended by 39 of 1965, s. 33.)
(Cap.
93.)
Landlord's power of distress in case of bankruptcy
37.
The landlord or other person to whom any rent is due from the bankrupt may at
any time, either before or after the commencement
of the bankruptcy, distrain
upon the goods or effects of the bankrupt for the rent due to him from the
bankrupt, with this limitation,
that, if such distress for rent be levied after
the commencement of the bankruptcy, it shall be available only for six month's
rent
accrued due prior to the date of the order of adjudication and shall not be
available for rent payable in respect of any period subsequent
to the date when
the distress was levied, but the landlord or other person to whom the rent may
be due from the bankrupt may prove
under the bankruptcy for the surplus due for
which the distress may not have been available.
Postponement of husband's and wife's claims
38.-(1)
Where a married woman has been adjudged bankrupt, her husband shall not be
entitled to claim any dividend as a creditor in respect
of any money or other
estate lent or entrusted by him to his wife for the purposes of her trade or
business, until all claims of
the other creditors of his wife or valuable
consideration in money or money's worth have been
satisfied.
(2) Where the husband
of a married woman has been adjudged bankrupt, any money or other estate of such
woman lent or entrusted by
her to her husband for the purpose of any trade or
business carried on by him or otherwise, shall be treated as assets of his
estate,
and the wife shall not be entitled to claim any dividend as a creditor
in respect of any such money or other estate until all claims
of the other
creditors of her husband for valuable consideration in money or money's worth
have been satisfied.
PROPERTY AVAILABLE FOR PAYMENT OF DEBTS
Relation back to trustee's title
39.-(1)
The bankruptcy of a debtor, whether it takes place on the debtor's own petition
or upon that of a creditor or creditors, shall
be deemed to have relation back
to, and to commence at, the time of the act of bankruptcy being committed on
which a receiving order
is made against him, or, if the bankrupt is proved to
have committed more acts of bankruptcy than one, to have relation back to,
and
commence at, the time of the first of the acts of bankruptcy proved to have been
committed by the bankrupt within three months
next preceding the date of the
presentation of the bankruptcy petition; but no bankruptcy petition, receiving
order or adjudication
shall be rendered invalid by reason of an act of
bankruptcy anterior to the debt of the petitioning
creditor.
(2) Where a receiving
order is made against the judgment debtor in pursuance of section 99, the
bankruptcy of the debtor shall be
deemed to have relation back to, and to
commence at, the time of the order, or if the bankrupt is proved to have
committed any previous
act of bankruptcy, then to have relation back to, and to
commence at, the time of the first of the acts of bankruptcy proved to have
been
committed by the debtor within three months next preceding the date of the
order.
Description of bankrupt's property divisible amongst creditors
40.
The property of the bankrupt divisible amongst his creditors, and in this Act
referred to as the property of the bankrupt, shall
not comprise the following
particulars:-
(a) property held by the bankrupt on trust for any other person; and
(b) the tools (if any) of his trade and the necessary wearing apparel and bedding of himself, his wife and children, to a value, inclusive of tools and apparel and bedding, not exceeding forty dollars in the whole;
But
it shall comprise the following particulars:-
(i) all such property as may belong to or be vested in the bankrupt at the commencement of the bankruptcy, or may be acquired by or devolve on him before his discharge; and
(ii) the capacity to exercise and to take proceedings for exercising all such powers in or over or in respect of property as might have been exercised by the bankrupt for his own benefit at the commencement of his bankruptcy or before his discharge; and
(iii) all goods, being at the commencement of the bankruptcy in the possession, order or disposition of the bankrupt, in his trade or business by the consent and permission of the true owner, under such" circumstances that he is the reputed owner thereof:
Provided
that things in action other than debts due or growing due to the bankrupt in the
course of his trade or business shall not
be deemed goods within the meaning of
this section.