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Fiji 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.
Provisions as to second bankruptcy
41.-(1)
Where a second or subsequent receiving order is made against a bankrupt, or
where an order is made for the administration in
bankruptcy of the estate of a
deceased bankrupt, then for the purposes of any proceedings consequent upon any
such order, the trustee
in the last preceding bankruptcy shall be deemed to be a
creditor in respect of any unsatisfied balance of the debts provable against
the
property of the bankrupt in that
bankruptcy.
(2) In the event of a
second or subsequent receiving order made against a bankrupt being followed by
an order adjudging him bankrupt,
or in the event of an order being made for the
administration in bankruptcy of the estate of a deceased bankrupt, any property
acquired
by him since he was last adjudged bankrupt, which at the date when the
subsequent petition was presented had not been distributed
amongst the creditors
in such last preceding bankruptcy, shall (subject to any disposition thereof
made by the official receiver
or trustee in that bankruptcy, without knowledge
of the presentation of the subsequent petition, and subject to the provisions of
section 49) vest in the trustee in the subsequent bankruptcy or administration
in bankruptcy as the case may
be.
(3) Where the trustee in any
bankruptcy receives notice of a subsequent petition in bankruptcy against the
bankrupt or after his decease
of a petition for the administration of his estate
in bankruptcy, the trustee shall hold any property then in his possession which
has been acquired by the bankrupt since he was adjudged bankrupt until the
subsequent petition has been disposed of, and, if on the
subsequent petition an
order of adjudication or an order for the administration of the estate in
bankruptcy is made, he shall transfer
all such property or the proceeds thereof
(after deducting his costs and expenses) to the trustee in the subsequent
bankruptcy or
administration in bankruptcy, as the case may be.
EFFECT OF BANKRUPTCY ON ANTECEDENT AND OTHER TRANSACTIONS
Restriction of rights of creditor under execution or attachment
42.-(1)
Where a creditor has issued execution against the goods or lands of a debtor, or
has attached any debt due to him, he shall
not be entitled to retain the benefit
of the execution or attachment against the trustee in bankruptcy of the debtor,
unless he has
completed the execution or attachment before the date of the
receiving order, and before notice of the presentation of any bankruptcy
petition by or against the debtor or of the commission of any available act of
bankruptcy by the debtor.
(2) For
the purposes 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 seizure, or, in the case of an equitable
interest, by the appointment
of a
receiver.
(3) An execution levied
by seizure and sale on the goods of a debtor is not invalid by reason only of
its being an act of bankruptcy,
and a person who purchases the goods in good
faith under a sale by the sheriff shall, in all cases, acquire a good title to
them
against the trustee in bankruptcy.
Duties of sheriff as to goods taken in execution
43.-(1)
Where any goods of a debtor are 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 a receiving order has been
made against the debtor,
the sheriff shall, on request, deliver the goods and
any money seized or received in part satisfaction of the execution to the
official
receiver, but the costs of the execution shall be a first charge on the
goods or money so delivered, and the official receiver or
trustee may sell the
goods, or an adequate part thereof, for the purpose of satisfying the
charge.
(2) Where, under an
execution in respect of a judgment for a sum exceeding forty dollars, the goods
of a debtor are sold or money
is paid in order to avoid sale, the sheriff shall
deduct his costs of the execution from the proceeds of sale or the money paid,
and retain the balance for fourteen days, and, if within that time notice is
served on him of a bankruptcy petition having been presented
by or against the
debtor, and a receiving order is made against the debtor thereon or on any other
petition of which the sheriff
has notice, the sheriff shall pay the balance to
the official receiver, or, as the case may be, to the trustee, who shall be
entitled
to retain it as against the execution
creditor.
(3) Where any goods in
the possession of an execution debtor at the time of seizure by a sheriff are
sold by such sheriff without
any claim having been made to the same, the
purchaser of the goods so sold shall acquire a good title to such goods, and no
person
shall be entitled to recover against such sheriff or any other person
lawfully acting under his authority, for any sale of such goods
or for paying
over the proceeds thereof prior to the receipt of a claim to such goods, unless
it is proved that the person from whom
recovery is sought had notice, or might
by making reasonable inquiry have ascertained that such goods were not the
property of the
execution
debtor:
Provided that nothing in
this subsection contained shall affect the right of any claimant, who may prove
that at the time of sale
he had a title to such goods, to any remedy to which he
may be entitled against any person other than such sheriff.
Avoidance of certain settlements
44.-(1)
Any settlement of property, not being a settlement made before, and in
consideration of, marriage, or made in favour of a purchaser
or incumbrancer in
good faith and for valuable consideration, or a settlement made on or for the
wife or children of the settlor
of property which has accrued to the settlor
after marriage in right of his wife, shall, if the settlor becomes bankrupt
within two
years after the date of the settlement, be void against the trustee
in the bankruptcy, and shall, if the settlor becomes bankrupt
at any subsequent
time within ten years after the date of the settlement, be void against the
trustee in the bankruptcy, unless the
parties claiming under the settlement can
prove that the settlor was, at the time of making the settlement, able to pay
all his debts
without the aid of the property comprised in the settlement, and
that the interest of the settlor in such property passed to the
trustee of such
settlement on the execution thereof.
Covenants in marriage settlements to settle after-acquired property
(2) Any covenant or
contract made by any person (hereinafter 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 date of the marriage any estate or interest,
whether vested or
contingent, in possession or remainder, and not being money or property in right
of the settlor's wife or husband,
shall, if the settlor is adjudged bankrupt and
the covenant or contract has not been executed at the date of the commencement
of
his bankruptcy, be void against the trustee in the bankruptcy, except so far
as it enables the persons entitled under the covenant
or contract to claim for
dividend in the settlor's bankruptcy, under or in respect of the covenant or
contract, but any such claim
to dividend shall be postponed until all claims of
the other creditors for valuable consideration in money or money's worth have
been satisfied.
Transfers and payments under such covenants
(3) Any payment of money
(not being payment of premiums on a policy of life assurance) or any transfer of
property made by the settlor
in pursuance of such a covenant or contract as
aforesaid shall be void against the trustee in the settlor's bankruptcy unless
the
persons to whom the payment or transfer was made prove
either-
(a) that the payment or transfer was made more than two years before the date of the commencement of the bankruptcy; or
(b) that at the date of the payment or transfer 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 three months after 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 being declared void, the persons to
whom it was made shall be entitled to claim
for dividend 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.
(4) For the purposes
of this section "settlement" includes any conveyance or transfer of
property.
Avoidance of general assignments of book debts unless registered
45.-(1)
Where a person engaged in any trade or business makes an assignment to any other
person of his existing or future book debts
or any class thereof, and is
subsequently adjudicated bankrupt, the assignment shall be void against the
trustee as regards any book
debts which have not been paid at the commencement
of the bankruptcy, unless the assignment has been registered as if the
assignment
were a bill of sale given otherwise than by way of security for the
payment of a sum of money, and the provisions of the law with
respect to the
registration of bills of sale shall apply
accordingly:
Provided that nothing
in this section shall have effect so as to render void any assignment of book
debts due at the date of the assignment
from specified debtors, or of debts
growing due under specified contracts, or any assignment of book debts included
in a transfer
of a business made
bona
fide and for value, or any assignment of
assets for the benefit of creditors
generally.
(2) For the purposes of
this section "assignment" includes assignment by way of security and other
charges on book debts.
Avoidance of preference in certain cases
46.-(1)
Every conveyance or transfer of property, or charge thereon made, every payment
made, every obligation incurred, and every judicial
proceeding taken or suffered
by any person unable to pay his debts as they become due from his own money in
favour of any creditor,
or of any person in trust for any creditor, with a view
of giving such creditor, or any surety or guarantor for the debt due to such
creditor, a preference over the other creditors, shall, if the person making,
taking, paying or suffering the same is adjudged bankrupt
on a bankruptcy
petition presented within three months after the date of making, taking, paying
or suffering the same, be deemed
fraudulent and void as against the trustee in
the bankruptcy.
(2) This section
shall not affect the rights of any person making title in good faith and for
valuable consideration through or under
a creditor of the
bankrupt.
Receiving order in lieu of committal
(3) Where a receiving
order is made against a judgment debtor in pursuance of section 99, this section
shall apply as if the debtor
had been adjudged bankrupt on a bankruptcy petition
presented at the date of the receiving order.
Protection of bona fide transactions without notice
47.
Subject to the foregoing provisions of this Act with respect to the effect of
bankruptcy on an execution or attachment, and with
respect to the avoidance of
certain settlements, assignments and preferences, nothing in this Act shall
invalidate, in the case of
a bankruptcy-
(a) any payment by the bankrupt to any of his creditors;
(b) any payment or delivery to the bankrupt;
(c) any conveyance or assignment by the bankrupt for valuable consideration;
(d) any contract, dealing or transaction by or with the bankrupt for valuable consideration:
Provided
that both the following conditions are complied with, namely:-
(i) that the payment, delivery, conveyance, assignment, contract, dealing, or transaction, as the case may be, takes place before the date of the receiving order; and
(ii) that the person (other than the debtor) to, by, or with whom the payment, delivery, conveyance, assignment, contract, dealing or transaction was made executed, or entered into, has not at the time of the payment, delivery, conveyance, assignment, contract, dealing or transaction, notice of any available act of bankruptcy committed by the bankrupt before that time.
Validity of certain payments to bankrupt and assignee
48.
A payment of money or delivery of property to a person subsequently adjudged
bankrupt, or to 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 the payment or delivery is made before the actual
date on which the receiving order is made and without notice of the presentation
of a bankruptcy petition, and is either pursuant to the ordinary course of
business or otherwise bona fide.
Dealings with undischarged bankrupt
49.-(1)
All transactions by a bankrupt with any person dealing with him
bona
fide and for value, in respect of
property, whether real or personal, acquired by the bankrupt after the
adjudication, shall, if completed
before any intervention by the trustee, be
valid against the trustee, and any estate or interest in such property which by
virtue
of this Act is vested in the trustee shall determine and pass in such
manner and to such extent as may be required for giving effect
to any such
transaction.
For the purposes of
this subsection, 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 such banker dealing with him
for
value.
(Amended by
37 of 1966, s. 14.)
Duties of bankers
(2) 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 trustee in the
bankruptcy
or the official receiver 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 trustee in the
bankruptcy, unless by the expiration of one
month from the date of giving the
information no instructions have been received from the trustee or the official
receiver.
REALIZATION OF PROPERTY
Possession of property by trustee
50.-(1)
The trustee shall, as soon as may be, take possession of the deeds, books, and
documents of the bankrupt, and all other parts
of his property capable of manual
delivery.
(2) The trustee shall,
in relation to and for the purpose of acquiring or retaining possession of the
property of the bankrupt, be
in the same position as if he were a receiver of
the property appointed by the court, and the court may, on his application,
enforce
such acquisition or retention
accordingly.
(3) Where any part of
the property of the bankrupt consists of stock, shares in ships, shares, or any
other property transferable
in the books of any company, office, or person, the
trustee may exercise the right to transfer the property to the same extent as
the bankrupt might have exercised if he had not become
bankrupt.
(4) Where any part of
the property of the bankrupt consists of things in action, such things shall be
deemed to have been duly assigned
to the
trustee.
(5) Subject to the
provisions of this Act with respect to property acquired by a bankrupt after
adjudication, any treasurer or other
officer, or any banker, attorney, or agent
of a bankrupt, shall pay and deliver to the trustee all money and securities in
his possession
or power, as such officer, banker, attorney, or agent, which he
is not by law entitled to retain as against the bankrupt or the trustee.
If he
does not, he shall be guilty of a contempt of court and may be punished
accordingly on the application of the trustee.
Seizure of property of bankrupt
51.
Any person acting under warrant of the court may seize any part of the property
of a bankrupt, or of a debtor against whom a receiving
order has been made, in
the custody or possession of the bankrupt or the debtor, or of any other person,
and with a view to such
seizure may break open any house, building or room of
the bankrupt or the debtor where the bankrupt or the debtor is supposed to
be,
or any building or receptacle of the bankrupt or the debtor where any of his
property is supposed to be; and where the court
is satisfied that there is
reason to believe that property of a bankrupt, or of a debtor against whom a
receiving order has been
made, is concealed in a house or place not belonging to
him, the court may, if it thinks fit, grant a search warrant to any police
officer or officer of the court, who may execute it according to its
tenor.
Appropriation of proportion of pay or salary to creditors
52.-(1)
Where a bankrupt is an officer of the army, navy or air force or an officer or
clerk or otherwise employed or engaged in the
civil service of Fiji, the trustee
shall receive for distribution amongst the creditors so much of the bankrupt's
pay or salary,
as the court, on the application of the trustee and with the
consent of the Minister charged with responsibility for the armed forces,
or the
Judicial and Legal Services Commission, the Public Service Commission or the
Police Service Commission, as the case may be,
may direct. Before making any
order under this subsection, the court shall communicate with such Minister or
Commission, as to the
amount, time and manner of payment to the trustee and
shall obtain the written consent of the Minister or the Commission to the terms
of such payment.
(2) Where a
bankrupt is in receipt of a salary or income other than as aforesaid, the court,
on the application of the trustee, shall
from time to time make such order as it
thinks just for the payment of the salary or income, or of any part thereof, to
the trustee,
to be applied by him in such manner as the court may
direct.
(3) Nothing in this
section shall take away or abridge any power contained in any written law to
dismiss a
bankrupt.
(Amended
by Order 7th October, 1970)
Appropriation of income of property restrained from anticipation
53.
Where a married woman who has been adjudged bankrupt has separate property the
income of which is subject to a restraint on anticipation,
the court shall have
power, on the application of the trustee, to order that, during such time as the
court may order, the whole
or some part of such income be paid to the trustee
for distribution amongst the creditors, and in the exercise of such power the
court shall have regard to the means of subsistence available for the woman and
her children.
Vesting and transfer of property
54.-(1)
Until a trustee is appointed, the official receiver shall be the trustee for the
purposes of this Act, and, immediately on a
debtor being adjudged bankrupt, the
property of the bankrupt shall vest in the
trustee.
(2) On the appointment of
a trustee, the property shall forthwith pass to and vest in the trustee
appointed.
(3) The property of the
bankrupt shall pass from trustee to trustee, including under that term the
official receiver when he fills
the office of trustee, and shall vest in the
trustee for the time being during his continuance in office, without any
conveyance,
assignment or transfer
whatsoever.
(4) The certificate of
appointment of a trustee shall for all purposes of any law in force in any part
of Fiji requiring registration
or recording of conveyances or assignments of
property, be deemed to be a conveyance or assignment of property, and may be
registered
and recorded accordingly.
Disclaimer of onerous property
55.-(1)
Where any part of the property of the bankrupt consists of land of any tenure
burdened with onerous covenants, of shares or
stock in companies, of
unprofitable contracts, or of any other property that is unsaleable, or not
readily saleable, by reason of
its binding the possessor thereof to the
performance of any onerous act, or to the payment of any sum of money, the
trustee, 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, at any
time within twelve months after the first appointment
of a trustee 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 trustee within one month
after such appointment, he may
disclaim such property at any time within twelve
months after he has become aware thereof or such extended period as may be
allowed
by the court.
Effect of
disclaimer
(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 trustee from all personal
liability in
respect of the property disclaimed as from the date 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 trustee from
liability, affect the rights or liabilities of any
other person.
Disclaimer of leases
(3) A trustee shall not be
entitled to disclaim a lease without the leave of the court, except in any cases
which may be prescribed
by general rules, and the court may, before or on
granting such leave, require such notices to be given to persons interested, and
impose such terms as a condition of granting leave, and make such orders with
respect to fixtures, tenant's improvements, and other
matters arising out of the
tenancy, as the court thinks just.
Abandonment of right of disclaimer
(4) The trustee 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 trustee by any person
interested in the property requiring him to decide whether he will disclaim or
not, and
the trustee has for a period of twenty-eight days after the receipt of
the application, or such extended period as may be allowed
by the court,
declined or neglected to give notice whether he disclaims the property or not;
and, in the case of a contract, if the
trustee, after such application as
aforesaid, does not within the said period or extended period disclaim the
contract, he shall
be deemed to have adopted it.
Rescission of contracts
(5) The court may, on the
application of any person who is, as against the trustee, entitled to the
benefit or subject to the burden
of a contract made with the bankrupt, make an
order rescinding 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 to the
court may seem equitable, and any damages payable under
the order to any such
person may be proved by him, as a debt under the bankruptcy.
Vesting orders
(6) The court may, on
application by any person either claiming any interest in any disclaimed
property or under any liability not
discharged by this Act in respect of any
disclaimed property, and on hearing such persons as it thinks fit, make an order
for the
vesting of the property in or delivery thereof to any person entitled
thereto, or to whom it may seem just that the same should be
delivered by way of
compensation for such liability as aforesaid, or a trustee for him, and on such
terms as the court thinks just;
and 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 or assignment for the
purpose:
Provided that, where the
property disclaimed is of a leasehold nature, the court shall not make a vesting
order in favour of any person
claiming under the bankrupt, whether as
under-lessee or as mortgagee by demise, except upon the terms of making that
person-
(a) subject to the same liabilities and obligations as the bankrupt was subject to under the lease in respect of the property at the date when the bankruptcy petition was filed; or
(b) if the court thinks fit, subject only to the same liabilities and obligations as if the lease had been assigned to that person at that date;
and
in either event (if the case so requires) as if the lease had comprised only the
property comprised in the vesting order; and
any mortgagee or under-lessee
declining to accept a vesting order upon such terms shall be excluded from all
interest in and security
upon the property, and, if there is no person claiming
under the bankrupt who is willing to accept an order upon such terms, the
court
shall have power to vest the bankrupt's estate and interest in the property in
any person liable either personally or in a
representative character, and either
alone or jointly with the bankrupt to perform the lessee's covenants in the
lease, freed and
discharged from all estates, incumbrances, and interests
created therein by the bankrupt.
Disclaimer by official receiver as interim trustee
(7) Where, on the release,
removal, resignation or death of a trustee in bankruptcy, an official receiver
is acting as trustee, he
may disclaim any property which might be disclaimed by
a trustee under the foregoing provisions, notwithstanding that the time
described
by this section for such disclaimer has expired, but such power of
disclaimer shall be exercisable only within twelve months after
the official
receiver has become trustee in the circumstances, aforesaid, or has become aware
of the existence of such property,
whichever period may last
expire.
(8) 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.
Powers of trustee to deal with property
56.
Subject to the provisions of this Act, the trustee may do all or any of the
following things-
(a) sell all or any part of the property of the bankrupt (including the goodwill of the business, if any, and the book debts due or growing due to the bankrupt), by public auction or private contract, with power to transfer the whole thereof to any person or company, or to sell the same in parcels;
(b) give receipts for any money received by him, which receipts shall effectually discharge the person paying the money from all responsibility in respect of the application thereof;
(c) prove, rank, claim and draw a dividend in respect of any debt due to the bankrupt;
(d) exercise any powers, the capacity to exercise which is vested in the trustee under this Act, and execute any powers of attorney, deeds and other instruments, for the purpose of carrying into effect the provisions of this Act;
(e) deal with any property to which the bankrupt is beneficially entitled in the same manner as the bankrupt might have dealt with it.
Powers exercisable by trustee with permission of committee of inspection
57.
The trustee may, with the permission of the committee of inspection, do all or
any of the following things:-
(a) carry on the business of the bankrupt, so far as may be necessary for the beneficial winding up of the same;
(b) bring, institute or defend any action or other legal proceeding relating to the property of the bankrupt;
(c) employ a barrister and solicitor or other agent to take any proceedings or do any business which may be sanctioned by the committee of inspection;
(d) 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 stipulations as to security and otherwise as the committee thinks fit;
(e) mortgage or pledge any part of the property of the bankrupt for the purpose of raising money for the payment of his debts;
(f) refer any dispute to arbitration, compromise any 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 may be agreed on;
(g) make such compromise or other arrangement as may be thought expedient with creditors, or persons claiming to be creditors, in respect of any debts provable under the bankruptcy;
(h) make such compromise or other arrangement as may be 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 trustee by any person or by the trustee on any person;
(i) 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 be readily or advantageously sold.
The
permission given for the purposes of this section shall not be a general
permission to do all or any of the abovementioned things,
but shall only be a
permission to do the particular thing or things for which permission is sought
in the specified case or cases.
Power to allow bankrupt to manage property
58.
The trustee, with the permission of the committee of inspection, may appoint the
bankrupt himself to superintend the management of
the property of the bankrupt
or of any part thereof, or to carry on the trade (if any) of the bankrupt for
the benefit of his creditors,
and in any other respect to aid in administering
the property, in such manner and on such terms as the trustee may
direct.
Allowance to bankrupt for maintenance or service
59.
The trustee may from time to time, with the permission of the committee of
inspection, make such allowance as he may think just
to the bankrupt out of his
property for the support of the bankrupt and his family, or in consideration of
his services if he is
engaged in winding up his estate, but any such allowance
may be reduced by the court.
Right of trustee to inspect goods pawned, etc.
60.
Where any goods of a debtor against whom a receiving order has been made are
held by any person by way of pledge, pawn or other
security, it shall be lawful
for the official receiver or trustee, after giving notice in writing of his
intention to do so, to inspect
the goods, and where such notice has been given,
such person as aforesaid shall not be entitled to realize his security until he
has given the trustee a reasonable opportunity of inspecting the goods and of
exercising his right of redemption if he thinks fit
to do so.
Limitation of trustee's powers in relation to copyright
61.
Where the property of a bankrupt comprises the copyright in any work or any
interest in such copyright, and he is liable to pay
to the author of the work
royalties or a share of the profits in respect thereof, the trustee shall not be
entitled to sell, or authorise
the sale of, any copies of the work, or to
perform or authorise the performance of the work, except on the terms of paying
to the
author such sums by way of royalty or share of the profits as would have
been payable by the bankrupt, nor shall he, without the
consent of the author or
of the court, be entitled to assign the right or transfer the interest or to
grant any interest in the right
by licence, except upon terms which will secure
to the author payments by way of royalty or share of the profits at a rate not
less
than that which the bankrupt was liable to pay.
Protection of official receiver and trustee from personal liability in certain cases
62.
Where the official receiver or trustee has seized or disposed of any goods,
chattels, property or other effects in the possession
or on the premises of a
debtor against whom a receiving order has been made, without notice of any claim
by any person in respect
of the same, and it is thereafter made to appear that
the said goods, chattels, property or other effects were not, at the date of
the
receiving order, the property of the debtor, the official receiver or trustee
shall not be personally liable for any loss or
damage arising from such seizure
or disposal sustained by any person claiming such property, nor for the costs of
any proceedings
taken to establish a claim thereto, unless the court is of
opinion that the official receiver or trustee has been guilty of negligence
in
respect of the same.
DISTRIBUTION OF PROPERTY
Declaration and distribution of dividends
63.-(1)
Subject to the retention of such sums as may be necessary for the cost of
administration, or otherwise, the trustee shall, with
all convenient speed,
declare and distribute dividends amongst the creditors who have proved their
debts.
First dividend
(2) The first dividend, if
any, shall be declared and distributed within four months after the conclusion
of the first meeting of
creditors unless the trustee satisfies the committee of
inspection that there is sufficient reason for postponing the declaration
to a
later date.
Subsequent dividends
(3) Subsequent dividends
shall, in the absence of sufficient reason to the contrary, be declared and
distributed at intervals of not
more than six months.
Notice of intention to declare
(4) Before declaring a
dividend, the trustee shall cause notice of his intention to do so to be
gazetted in the prescribed manner,
and shall also send reasonable notice thereof
to each creditor mentioned in the bankrupt's statement who has not proved his
debt.
Notice of dividend
(5) When the trustee has
declared a dividend he shall send to each creditor who has proved, a notice
showing the amount of the dividend
and when and how it is payable, and a
statement in the prescribed form as to the particulars of the
estate.
Joint and separate dividends
64.-(1)
Where one partner of a firm is adjudged bankrupt, a 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
respective debts.
(2) Where joint
and separate properties are being administered, dividends of the joint and
separate properties shall, unless otherwise
directed by the court on the
application of any person interested, be declared together, and the expenses of
and incidental to such
dividends shall be fairly apportioned by the trustee
between the joint and separate properties, regard being had to the work done
for
and the benefit received by each property.
Provisions for creditors residing at a distance, etc.
65.-(1)
In the calculation and distribution of a dividend the trustee shall make
provision for debts provable in bankruptcy appearing
from the bankrupt's
statements, or otherwise, to be due to persons resident in places so distant
from the place where the trustee
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, and also for debts provable in bankruptcy the
subject of claims not yet
determined.
(2) The trustee shall
also make provision for any disputed proofs or claims, and for the expenses
necessary for the administration
of the estate or
otherwise.
(3) Subject to the
other provisions of this section, the trustee shall distribute as dividend all
money in hand.
Right of creditor who has not proved debt before declaration of a dividend
66.
Any creditor who has not proved his debt before the declaration of any dividend
or dividends shall be entitled to be paid out of
any money for the time being in
the hands of the trustee any dividend or dividends he may have failed to receive
before that money
is applied to the payment of any future dividend or dividends,
but he shall not be entitled to disturb the distribution of any dividend
declared before his debt was proved by reason that he has not participated
therein.
Interest on debts
67.-(1)
Where a debt has been proved, and the debt includes interest, or any pecuniary
consideration in lieu of interest, such interest
or consideration shall, for the
purposes of dividend, be calculated at a rate not exceeding five per cent per
annum, without prejudice
to the right of a creditor to receive out of the estate
any higher rate of interest to which he may be entitled after all the debts
proved in the estate have been paid in full.
Rules to discover relation between principal and interest
(2) In dealing with the
proof of the debt, the following rules shall be observed:-
(a) any account settled between the debtor and the creditor within three years preceding the date of the receiving order may be examined, and if it appears that the settlement of the account forms substantially one transaction with any debt alleged to be due out of the debtor's estate (whether in the form of renewal of a loan or capitalization of interest or ascertainment of loans or otherwise), the account may be reopened and the whole transaction treated as one;
(b) any payments made by the debtor to the creditor before the receiving order, whether by way of bonus or otherwise, and any sums received by the creditor before the receiving order from the realization of any security for the debt, shall, notwithstanding any agreement to the contrary, be appropriated to principal and interest in the proportion that the principal bears to the sum payable as interest at the agreed rate;
(c) where the debt due is secured and the security is realized after the receiving order, or the value thereof is assessed in the proof, the amount realized or assessed shall be appropriated to the satisfaction of principal and interest in the proportion that the principal bears to the sum payable as interest at the agreed rate.
Final dividend
68.-(1)
When the trustee has realized all the property of the bankrupt, or so much
thereof as can, in the joint opinion of himself and
of the committee of
inspection, be realized without needlessly protracting the trusteeship, he shall
declare a final dividend, but
before so doing he shall give notice in manner
prescribed to the persons whose claims to be creditors have been notified to
him,
but not established to his satisfaction, that if they do not establish
their claims to the satisfaction of the court within a time
limited by the
notice, he will proceed to make a final dividend, without regard to their
claims.
(2) After the expiration
of the time so limited, or, if the court on application by any such claimant
grants him further time for
establishing his claim, then on the expiration of
such further time, the property of the bankrupt shall be divided among the
creditors
who have proved their debts, without regard to the claims of any other
persons.
No action for dividend
69.
No action for dividend shall lie against the trustee but, if the trustee refuses
to pay any dividend, the court may, if it thinks
fit, order him to pay it, and
also to pay out of his own money interest thereon for the time that it is
withheld, and the costs of
the application.
Right of bankrupt to surplus
70.
The bankrupt shall be entitled to any surplus remaining after payment in full of
his creditors, with interest, as by this Act provided,
and of the costs,
charges, and expenses of the proceedings under the bankruptcy
petition.
PART IV-OFFICIAL RECEIVER AND STAFF
Appointment of official receiver and deputy official receivers
71.
There shall be an official receiver of debtors' estates for Fiji and as many
deputy official receivers as may be required from time
to time who shall have
jurisdiction in such areas as may be specified. The official receiver and the
deputy official receivers shall
be appointed, be removable by and be under the
general authority and directions of the Minister and they shall also be officers
of
the court. A deputy official receiver shall have the same powers, rights and
duties within the area for which he is appointed as
an official receiver under
this Act.
Status of official receiver
72.-(1)
The duties of the official receiver shall have relation both to the conduct of
the debtor and to the administration of his
estate.
(2) The official receiver
may, for the purposes of affidavits, verifying proofs, petitions, or other
proceedings under this Act, administer
oaths.
(3) All provisions in this
or any other Act, referring to the trustee in a bankruptcy shall, unless the
context otherwise requires,
or the Act otherwise provides, include the official
receiver when acting as
trustee.
(4) The trustee shall
supply the official receiver with such information, and give him such access to
and facilities for inspecting
the bankrupt's books and documents, and generally
shall give him such aid, as may be requisite for enabling the official receiver
to perform his duties under this Act.
Duties of official receiver as regards the debtor's conduct
73.
As regards the debtor, it shall be the duty of the official
receiver-
(a) to investigate the conduct of the debtor and to report to the court, stating whether there is reason to believe that the debtor has committed any act which constitutes an offence under this Act or any enactment repealed by this Act, or which would justify the court in refusing, suspending or qualifying an order for his discharge;
(b) to make such other reports concerning the conduct of the debtor as the court may direct;
(c) to take such part as he may deem fit in the public examination of the debtor;
(d) to take such part and give such assistance in relation to the prosecution of any fraudulent debtor as the Director of Public Prosecutions may direct.
Duties of official receiver as to debtor's estate
74.-(1)
As regards the estate of a debtor, it shall be the duty of the official
receiver-
(a) pending the appointment of a trustee, to act as interim receiver of the debtor's estate, and, where a special manager is not appointed, as manager thereof;
(b) to authorise the special manager to raise money or make advances for the purposes of the estate in any case where, in the interests of the creditors, it appears necessary so to do;
(c) to summon and preside at the first meeting of creditors;
(d) to issue forms of proxy for use at the meetings of creditors;
(e) to report to the creditors as to any proposal which the debtor may have made with respect to the mode of liquidating his affairs;
(f) to advertise the receiving order, the date of the creditors' first meeting, and of the debtor's public examination, and such other matters as it may be necessary to advertise;
(g) to act as trustee during any vacancy in the office of trustee.
(2)
For the purpose of his duties as interim receiver or manager, the official
receiver shall have the same powers as if he were a
receiver and manager
appointed by the court, but shall, as far as practicable, consult the wishes of
the creditors with respect to
the management of the debtor's property, and may
for that purpose, if he thinks it advisable, summon meetings of the persons
claiming
to be creditors, and shall not, unless the court otherwise orders,
incur any expense beyond such as is requisite for the protection
of the debtor's
property or the disposing of perishable
goods:
Provided that, when the
debtor cannot himself prepare a proper statement of affairs, the official
receiver may, subject to any prescribed
conditions, and at the expense of the
estate, employ some person or persons to assist in the preparation of the
statement of affairs.
PART
V-TRUSTEES IN
BANKRUPTCY
OFFICIAL
NAME
Official name of trustee
75.
The official name of a trustee in bankruptcy shall be "the trustee of the
property of a bankrupt" (inserting the name of the bankrupt),
and by that name
the trustee may, in any part of Fiji or elsewhere, hold property of every
description, make contracts, sue and be
sued, enter into any engagements binding
on himself, and his successors in office, and do all other acts necessary or
expedient to
be done in the execution of his office.
APPOINTMENT
Power to appoint joint or successive trustees
76.-(1)
The creditors may, if they think fit, appoint more persons than one to the
office of trustee, and when more persons than one
are appointed they shall
declare whether any act required or authorised to be done by the trustee is to
be done by all or any one
or more of such persons, but all such persons are in
this Act included under the term "trustee", and shall be joint tenants of the
property of the bankrupt.
(2) The
creditors may also appoint persons to act as trustees in succession in the event
of one or more of the persons first named
declining to accept the office of
trustee, or failing to give security, or of the appointment of any such person
not being certified
by the court.
Proceedings in case of vacancy in office of trustee
77.-(1).
If a vacancy occurs in the office of a trustee, the creditors in general meeting
may appoint a person to fill the vacancy,
and thereupon the same proceedings
shall be taken as in the case of a first
appointment.
(2) The official
receiver shall, on the requisition of any creditor, summon a meeting for the
purpose of filling any such
vacancy.
(3) If the creditors do
not, within three weeks after the occurrence of a vacancy, appoint a person to
fill the vacancy, the official
receiver shall report the matter to the court,
and the court may appoint a trustee; but in such case the creditors or committee
of
inspection shall have the same power of appointing a trustee in the place of
the person so appointed by the court as in the case
of a first
appointment.
(4) During any
vacancy in the office of trustee the official receiver shall act as
trustee.
CONTROL OVER TRUSTEE
Discretionary powers of trustee and control thereof
78.-(1)
Subject to the provisions of this Act, the trustee shall, in the administration
of the property of the bankrupt and in the distribution
thereof amongst his
creditors, have regard to any directions that may be given by resolution of the
creditors at any general meeting
or by the committee of inspection, and
any
(2) If one-fourth in number or
value of the creditors dissent from the resolution, or the bankrupt satisfies
the court that the remuneration
is unnecessarily large, the court shall fix the
amount of the remuneration.
(3)
The resolution shall express what expenses the remuneration is to cover, and no
liability shall attach to the bankrupt's estate,
or to the creditors, in respect
of any expenses which the remuneration is expressed to
cover.
(4) Where a trustee acts
without remuneration, he shall be allowed out of the bankrupt's estate such
proper expenses incurred by him
in or about the proceedings of the bankruptcy as
the creditors may, with the sanction of the court,
approve.
(5) A trustee shall not,
under any circumstances whatsoever, make any arrangement for or accept from the
bankrupt, or any barrister
and solicitor, auctioneer, or any other person that
may be employed about a bankruptcy, any gift, remuneration, or pecuniary or
other
consideration or benefit whatsoever beyond the remuneration fixed by the
creditors and payable out of the estate, nor shall he make
any arrangement for
giving up, or give up, any part of his remuneration, either as receiver,
manager, or trustee, to the bankrupt
or any barrister and solicitor, or other
person that may be employed about a bankruptcy.
Allowance and taxation of costs
82.-(1)
Where a trustee or manager receives remuneration for his services as such, no
payment shall be allowed in his accounts in respect
of the performance by any
other person of the ordinary duties which are required by this Act or rules
thereunder to be performed
by himself.
Barrister and solicitor as trustee
(2) Where the trustee is a
barrister and solicitor, he may contract that the remuneration for his services
as trustee shall include
all professional services.
Taxation
(3) All bills and charges
of barristers and solicitors, managers, accountants, auctioneers, brokers, and
other persons, not being
trustees, shall be taxed by the prescribed officer, and
no payments in respect thereof shall be allowed in the trustee's accounts
without proof of such taxation having been made. The taxing officer shall
satisfy himself before passing such bills and charges that
the employment of
such barristers and solicitors and other persons, in respect of the particular
matters out of which such charges
arise, has been duly sanctioned. The sanction
must be obtained before the employment, except in case of urgency, and in such
cases
it must be shown that no undue delay took place in obtaining the
sanction.
Delivery of bill for taxation
(4) Every such person
shall, on request by the trustee (which request the trustee shall make a
sufficient time before declaring a
dividend), deliver his bill of costs or
charges to the proper officer for taxation, and, if he fails to do so within
seven days after
the receipt of the request, or such further time as the court,
on application, may grant, the trustee shall declare and distribute
the dividend
without regard to any claim by him, and thereupon any such claim shall be
forfeited as well against the trustee personally
as against the
estate.
RECEIPTS, PAYMENTS, ACCOUNTS, AUDIT
Trustee to furnish list of creditors
83.
The trustee or official receiver shall, whenever required by any creditor so to
do, furnish and transmit to him by post a list of
the creditors showing the
amount of the debt due to each creditor, and shall be entitled to charge for
such list the sum of two cents
per folio of seventy-two words, together with the
cost of the postage thereof.
Trustee to furnish statement of accounts
84.
It shall be lawful for any creditor, with the concurrence of one-sixth of the
creditors (including himself), at any time to call
upon the trustee or official
receiver to furnish and transmit to the creditors a statement of the accounts up
to the date of such
notice, and the trustee shall, upon the receipt of such
notice, furnish and transmit such statement of the
accounts:
Provided that the person
at whose instance the accounts are furnished shall deposit with the trustee or
official receiver, as the
case may be, a sum sufficient to pay the costs of
furnishing and transmitting the accounts, which sum shall be repaid to him out
of the estate if the creditors or the court so direct.
Books to be kept by trustee
85.
The trustee shall keep, in manner prescribed, proper books, in which he shall
from time to time cause to be made entries or minutes
of proceedings at
meetings, and of such other matters as may be prescribed, and any creditor of
the bankrupt may, subject to the
control of court, personally or by his agent,
inspect any such books.
Annual statement of proceedings
86.-(1)
Every trustee in a bankruptcy shall from time to time, as may be prescribed, and
not less than once in every year during the
continuance of the bankruptcy,
transmit to the official receiver a statement showing the proceedings in the
bankruptcy up to the
date of the statement, containing the prescribed
particulars, and made out in the prescribed
form.
(2) The official receiver
shall cause the statements so transmitted to be examined, and shall call the
trustee to account for any
misfeasance, neglect, or omission, which may appear
on the said statements or in his accounts or otherwise, and may require the
trustee
to make good any loss which the estate of the bankrupt may have
sustained by the misfeasance, neglect or omission.
Trustee not to pay into private account
87.
No trustee in a bankruptcy or under any composition or scheme of arrangement
shall pay any sums received by him as trustee into
his private banking
account.
Payments of money into bank
88.-(1)
A Bankruptcy Estates Account shall be kept by the official receiver with such
bank as the Chief Accountant* may direct, and
all moneys received by him in
respect of proceedings under the provisions of this Act shall be paid to that
account.
*
Delegated to Administrator-General by Notice 30th July,
1968
(2) Every trustee in
bankruptcy shall in such manner and at such times as the official receiver shall
direct pay the money received
by him to the Bankruptcy Estates Account at such
bank as may be authorised under subsection (1), and the official receiver shall
furnish him with a certificate of receipt of the money so
paid:
Provided
that-
(a) if it appears to the committee of inspection that, for the purpose of carrying on the debtor's business or obtaining advances, or because of the probable amount of the cash balance, or if the committee shall satisfy the court that for any other reason it is for the advantage of the creditors that the trustee should have an account with the local bank, the court shall, on the application of the committee of inspection, authorise the trustee to make his payments into and out of such local bank as the committee may select;
(b) in any bankruptcy, composition or scheme of arrangement in which the official receiver is acting as trustee, or in which a trustee is acting without a committee of inspection, the court may, if for special reasons it thinks fit to do so, upon the application of the official receiver or other trustee, authorise the trustee to make his payments into and out of such local bank as the court may direct.
(3)
Where the trustee opens an account in a local bank, he shall open and keep it in
the name of the debtor's estate, and any interest
receivable in respect of the
account shall be part of the assets of the estate, and the trustee shall make
his payments into and
out of the local bank in the prescribed
manner.
(4) Subject to any general
rules relating to small bankruptcies under the provision of section 116, where
the debtor at the date of
the receiving order has an account at a bank, such
account shall not be withdrawn until the expiration of seven days from the day
appointed for the first meeting of creditors, unless the court, for the safety
of the account, or other sufficient cause, orders
the withdrawal of the
account.
(5) If a trustee at any
time retains for more than ten days a sum exceeding one hundred dollars, or such
other amount as the court
in any particular case authorises him to retain, then,
unless he explains the retention to the satisfaction of the court, he shall
pay
interest on the amount so retained in excess at the rate of twenty per cent per
annum, and shall have no claim to remuneration,
and may be removed from his
office by the court, and shall be liable to pay any expenses occasioned by
reason of his default.
(6) All
payments out of money standing to the credit of the official receiver in the
Bankruptcy Estates Account shall be made by the
said bank in the prescribed
manner.
Investment of surplus funds
89.-(1)
Whenever the cash balance standing to the credit of the Bankruptcy Estates
Account is in excess of the amount which in the opinion
of the official receiver
is required for the time being to answer demands in respect of bankrupts'
estates, the official receiver
may place the same or any part thereof on fixed
deposit with the bank.
(2)
Whenever any money so placed on deposit is, in the opinion of the official
receiver, required to answer any demands in respect
of bankrupts' estates, the
official receiver shall thereupon withdraw such money from fixed deposit and
repay the same to the credit
of the cash balance of the Bankruptcy Estates
Account.
(3) All interest accruing
from any money so placed on deposit shall be paid by the official receiver to
the credit of a separate account
entitled the Bankruptcy Contingency Fund at
such bank as the *Chief Accountant may direct. The official receiver may in his
discretion
invest any money paid to the credit of such fund in British
Government securities. Where it appears that it is in the public interest
to do
so and that other funds are not available or properly chargeable the court may,
on the application of the official receiver,
authorise him to employ money in
the Bankruptcy Contingency Fund to defray the cost in whole or in part of any of
the following:-
(a) the prosecution of any debtor for any bankruptcy offences alleged to have been committed by him;
(b) the institution of proceedings and the payment of expenses of witnesses (if any) for the discovery or recovery of property belonging to any debtor;
(c) the institution of proceedings to set aside an alleged fraudulent preference;
(d) the employment of a barrister and solicitor in matters connected with an estate which by reason of their difficulty or other good cause cannot be dealt with by the official receiver himself;
(e) the employment of interpreters in cases where the court is unable to provide an interpreter;
(f) the payment of expenses involved in arresting a debtor and bringing him before the court;
(g) any other expenditure which the court may deem fit.
The
court may in its discretion order that the fund be reimbursed in whole or in
part in the event of any money being recovered as
a result of the expenditure so
authorised.
*
Delegated to Administrator-General by Notice 30th July, 1968.
Audit of trustee's accounts
90.-(1)
Every trustee shall, at such times as may be prescribed, but not less than twice
in each year during his tenure of office, send
to the official receiver an
account of his receipts and payments as such
trustee.
(2) The account shall be
in a prescribed form, shall be made in duplicate, and shall be verified by
statutory declaration in the prescribed
form.
(3) The official receiver
shall cause the accounts so sent to be audited, and, for the purposes of the
audit, the trustee shall furnish
the auditor with such vouchers and information
as the auditor may require, and the auditor may at any time require the
production
of and inspect any books or accounts kept by the
trustee.
(4) When any such account
has been audited, one copy thereof shall be filed and kept by the official
receiver, and the other copy
shall be filed with the court, and each copy shall
be open to the inspection of any creditor, or of the bankrupt or of any person
interested.
VACATION OF OFFICE BY TRUSTEE
Release of trustee
91.-(1)
When the trustee has realized all the property of the bankrupt, or so much
thereof as can, in his opinion, be realized without
needlessly protracting the
trusteeship, and distributed a final dividend, if any, or has ceased to act by
reason of a composition
having been approved, or has resigned, or has been
removed from his office, the court shall, on his application, cause a report on
his accounts to be prepared, and, on his complying with all the requirements of
the court, shall take into consideration the report,
and any objection which may
be urged by any creditor or person interested against the release of the
trustee, and shall either grant
or withhold the release
accordingly.
(2) Where the release
of a trustee is withheld, the court may, on the application of any creditor or
person interested, make such
order as it thinks just, charging the trustee with
the consequences of any act or default he may have done or made contrary to his
duty.
(3) An order of the court
releasing the trustee shall discharge him from all liability in respect of any
act done or default made
by him in the administration of the affairs of the
bankrupt, or otherwise in relation to his conduct as trustee, but any such order
may be revoked on proof that it was obtained by fraud or by suppression or
concealment of any material
fact.
(4) The foregoing provisions
of this section shall apply to the official receiver when he is, or is acting
as, trustee, and when the
official receiver has been released under this section
he shall continue to act as trustee for any subsequent purposes of the
administration
of the debtor's estate, but no liability shall attach to him
personally by reason of his so continuing in respect of any act done,
default
made, or liability incurred before his
release.
(5) Where the trustee has
not previously resigned or been removed, his release shall operate as a removal
of him from his office and
thereupon the official receiver shall be the
trustee.
(6) Where, on the release
of a trustee, the official receiver is, or is acting as, trustee, no liability
shall attach to him personally
in respect of any act done or default made, or
liability incurred, by any prior trustee.
Office of trustee vacated by insolvency
92.
If a receiving order is made against a trustee, he shall thereby vacate his
office of trustee
Removal of trustee
93.-(1)
The creditors may, by ordinary resolution, at a meeting specially called for
that purpose, of which seven days' notice has been
given, remove a trustee
appointed by them, and may, at the same or any subsequent meeting, appoint
another person to fill the vacancy
as hereinafter provided in case of a vacancy
in the office of trustee.
(2) If the
court is of opinion-
(a) that a trustee appointed by the creditors is guilty of misconduct or fails to perform his duties under this Act; or
(b) that his trusteeship is being needlessly protracted without any probable advantage to the creditors; or
(c) that he is by reason of unsoundness of mind, or continued sickness or absence, incapable of performing his duties; or
(d) that his connexion with or relation to the bankrupt or his estate, or any particular creditor, might make it difficult for him to act with impartiality in the interest of the creditors generally, or where in any other matter he has been removed from office on the ground of misconduct, the court may remove him from his office.
(Amended by 37 of 1966, s. 14.)
PART VI-CONSTITUTION, PROCEDURE AND POWERS OF COURT
Jurisdiction in bankruptcy
94.
The court having jurisdiction in bankruptcy shall be the Supreme
Court:
Provided that the Chief
Justice may by order delegate all or any part of the jurisdiction of the Supreme
Court in bankruptcy to any
magistrates' court, either generally or for the
purpose of any particular case or class of cases.
Judge may exercise his powers in chambers
95.
Subject to the provisions of this Act, and to general rules, a judge of the
court may exercise in chambers the whole or any part
of his
powers.
Official receiver to make payments in accordance with directions of court
96.
Where any moneys or funds have been received by the official receiver under this
Act and the court makes an order declaring that
any person is entitled to such
moneys or funds, the official receiver shall make payment accordingly to that
person.
General powers of the court
97.-(1)
Subject to the provisions of this Act, the court shall have full power to decide
all questions of priorities, and all other
questions whatsoever, whether of law
or of fact, which may arise in any case of bankruptcy coming within its
cognizance, or which
the court may deem it expedient or necessary to decide for
the purpose of doing complete justice or making a complete distribution
of
property in any such case.
(2)
Where default is made by a trustee, debtor or other person in obeying any order
or direction given by the official receiver, the
court may on the application of
the official receiver order such defaulting trustee, debtor or person to comply
with the order or
directions so given; and the court may also, if it thinks fit
upon any such application, make an immediate order for the committal
of such
defaulting trustee, debtor or
person:
Provided that the power
given by this subsection shall be deemed to be in addition to and not in
substitution for any other right
or remedy in respect of such
default.
Disqualifications of bankrupt
98.-(1)
Where a debtor is adjudged bankrupt, he shall be disqualified
from-
(a) being appointed or acting as a justice of the peace; or
(b) being elected to, or holding or exercising the office of mayor or member of a town council, or chairman or member of a district council, or member of a school committee. (Substituted by 14 of 1975, s. 9.)
(2)
If a person is adjudged bankrupt whilst holding the office of justice of the
peace, mayor or member of a town council, chairman
or member of a district
council or member of a school committee, his office shall thereupon become
vacant. (Substituted
by 14 of 1975, s. 9.)
(3) The
disqualifications to which a bankrupt is subject under this section shall be
removed and cease if and when-
(a) the adjudication of bankruptcy against him is annulled; or
(b) a period of five years has elapsed from the date of his discharge; or
(c) he obtains from the court his discharge with a certificate to the effect that his bankruptcy was caused by misfortune without any misconduct on his part.
The
court may grant or withhold such certificate as it thinks fit, but any refusal
of such certificate shall be subject to appeal
as provided in section
100.
JUDGMENT DEBTORS
Power to make receiving order in lieu of committal order
99.
Where application is made by a judgment creditor to the court for the committal
of a judgment debtor, the court may, if it thinks
fit, decline to commit, and in
lieu thereof, with the consent of the judgment creditor and on payment by him of
the prescribed fee,
make a receiving order against the debtor. In such case the
judgment debtor shall be deemed to have committed an act of bankruptcy
at the
time the order is made, and the provisions of this Act, except Part VIII, shall
apply as if for references to the presentation
of a petition by or against a
person there were substituted references to the making of such a receiving
order.
APPEALS
Appeals in bankruptcy
100.-(1)
The court may review, rescind or vary any order made by
it.
(2) Orders of a magistrates'
court in bankruptcy matters shall, at the instance of the person aggrieved, be
subject to appeal but
no appeal shall be entertained except in conformity with
such general rules as may for the time being be in force in relation to
the
appeal.
(3) Where by this Act an
appeal to the court is given against any decision of the official receiver, the
appeal shall be brought within
twenty-one days from the time when the decision
appealed against is pronounced or made.
PROCEDURE
Discretionary power of court
101.-(1)
Subject to the provisions of this Act and to general rules, the costs of and
incidental to any proceeding in court under this
Act shall be in the discretion
of the court.
Adjournment
(2) The court may at any
time adjourn any proceedings before it upon such terms, if any, as it may think
fit to impose.
Amendment
(3) The court may at any
time amend any written process or proceeding under this Act upon such terms, if
any, as it may think fit
to impose.
Extension of time
(4) Where by this Act or
by general rules, the time for doing any act is limited, the court may extend
the time either before or after
the expiration thereof upon such terms, if any,
as it may think fit to impose.
Evidence
(5) Subject to general
rules, the court may in any matter take the whole or any part of the evidence
either viva voce, or by interrogatories,
or upon affidavit, or, out of Fiji, by
commission.
Consolidation of petitions
102.
Where two or more bankruptcy petitions are presented against the same debtor or
against joint debtors, the court may consolidate
the proceedings, or any of
them, on such terms as the court thinks fit.
Power to change carriage of proceedings
103.
Where the petitioner does not proceed with due diligence on his petition, the
court may substitute as petitioner any other creditor
to whom the debtor may be
indebted in the amount required by this Act in the case of the petitioning
creditor.
Continuance of proceedings on death of debtor
104.
If a debtor by or against whom a bankruptcy petition has been presented dies,
the proceedings in the matter shall, unless the court
otherwise orders, be
continued as if he were alive.
Power to stay proceedings
105.
The court may at any time, for sufficient reason, make an order staying the
proceedings under a bankruptcy petition, either altogether
or for a limited
time, on such terms and subject to such conditions as the court may think
just.
Power to present petition against one partner
106.
Any creditor whose debt is sufficient to entitle him to present a bankruptcy
petition against all the partners of a firm may present
a petition against any
one or more partners of the firm without including the others.
Power to dismiss petition against some respondents only
107.
Where there are more respondents than one to a petition, the court may dismiss
the petition as to one or more of them, without prejudice
to the effect of the
petition as against the other or others of them.
Property of partners to be vested in same trustee
108.
Where a receiving order has been made on a bankruptcy petition by or against one
member of a partnership, any other bankruptcy petition
by or against a member of
the same partnership shall be filed with the first-mentioned petition, and,
unless the court otherwise
directs, the same trustee or receiver shall be
appointed as may have been appointed in respect of the property of the first
mentioned
member of the partnership, and the court may give such directions for
consolidating the proceedings as it thinks just.
Actions by trustee and bankrupt's partners
109.
Where a member of a partnership is adjudged bankrupt, the court may authorise
the trustee to commence and prosecute any action in
the names of the trustee and
of the bankrupt's partner; and any release by such partner of the debt or demand
to which the action
relates 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.
Actions on joint contracts
110.
Where a bankrupt is a contractor in respect of any contract jointly with any
person or persons, such person or persons may sue or
be sued in respect of the
contract without the joinder of the bankrupt.
Proceedings in partnership name
111.
Any two or more persons, being partners,
or any person carrying on business under a partnership name, may take
proceedings or be proceeded
against under this Act in the name of the firm, but
in such case the court may, on application by any person interested, order the
names of the persons who are partners in such firm or the name of such person to
be disclosed in such manner and verified on oath
or otherwise, as the court may
direct.
Court to be auxiliary to other British courts
112.
The Fiji court and all the officers thereof, shall, in all matters of
bankruptcy, act in aid of and be auxiliary to every British
court elsewhere
having jurisdiction in bankruptcy or insolvency, and an order of the court
seeking aid, with a request to the Fiji
court, shall be deemed sufficient to
enable the Fiji court to exercise, in regard to the matters directed by the
order, such jurisdiction
as either the court which made the request, or the Fiji
court, could exercise in regard to similar matters within their respective
jurisdiction.
Commitment to prison
113.
Where the court commits any person to prison, the commitment may be to such
convenient prison as the court thinks expedient, and,
if the officer in charge
of any prison refuses to receive any person so committed, he shall on conviction
be liable for every such
refusal to a fine not exceeding two hundred
dollars.
PART VII-SUPPLEMENTAL PROVISIONS
APPLICATION OF ACT
Married women
114.-(1)
Every married woman who carries on a trade or business, whether separately from
her husband or not, shall be subject to the
bankruptcy laws as if she were
feme-sole.
(2) Where a married
woman carries on a trade or business and a final judgment or order for any
amount has been obtained against her,
whether or not expressed to be payable out
of her separate property, that judgment or order shall be available for
bankruptcy proceedings
against her by a bankruptcy notice as though she were
personally bound to pay the judgment debt or sum ordered to be
paid.
Exclusion of companies
115.
A receiving order shall not be made against any corporation or against any
association or company registered under the Companies Act or any enactment
repealed by that Act.
(Cap.
247.)
Application of Act in case of small estates
116.
Where a petition is presented by or against a debtor, if the court is satisfied,
by affidavit or otherwise, or the official receiver
reports to the court, that
the property of the debtor is not likely to exceed in value six hundred dollars,
the court may make an
order that the debtor's estate be administered in a
summary manner, and thereupon the provisions of this Act shall be subject to
the
following modifications:-
(a) if the debtor is adjudged bankrupt the official receiver shall be the trustee in the bankruptcy;
(b) 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 the trustee with the permission of the committee of inspection;
(c) such other modifications may be made in the provisions of this Act as may be prescribed by general rules with the view of saving expense and simplifying procedure, but nothing in this section shall permit the modification of the provisions of this Act relating to the examination or discharge of the debtor:
Provided
that the creditors may at any time, by special resolution, resolve that some
person other than the official receiver be appointed
trustee in the bankruptcy,
and thereupon the bankruptcy shall proceed as if an order for summary
administration had not been made.
Administration in bankruptcy of estate of person dying insolvent
117.-(1)
Any creditor of a deceased debtor whose debt would have been sufficient to
support a bankruptcy petition against the debtor,
had he been alive, may present
to the court a petition in the prescribed form praying for an order for the
administration of the
estate of the deceased debtor, according to the law of
bankruptcy.
The order
(2) Upon the prescribed
notice being given to the personal representative of the deceased debtor, the
court may, in the prescribed
manner, upon proof of the petitioner's debt, unless
the court is satisfied that there is a reasonable probability that the estate
will be sufficient for the payment of the debts owing by the deceased, make an
order for the administration in bankruptcy of the
deceased debtor's estate, or
may, upon cause shown, dismiss the petition with or without
costs.
Property to vest in official receiver
(3) Upon an order being
made for the administration of a deceased debtor's estate, the property of the
debtor shall vest in the official
receiver, as trustee thereof, and he shall
forthwith proceed to realize and distribute it in accordance with the provisions
of this
Act:
Provided that the
creditors shall have the same powers as to appointment of trustees and
committees of inspection as they have in
other cases where the estate of a
debtor is being administered or dealt with in bankruptcy, and the provisions of
this Act, relating
to trustees and committees of inspection, shall apply to
trustees and committees of inspection appointed under the power so
conferred.
If no committee of
inspection is appointed, any act or thing or any direction or permission which
might have been done or given by
a committee of inspection may be done or given
by the court.
Application of Act
(4) With the modifications
hereinafter mentioned, all the provisions of Part III (relating to the
administration of the property of
a bankrupt) and, subject to any modifications
that may be made therein by general rules under subsection (10), the following
provisions,
namely, section 27 (which relates to inquiries as to the debtor's
conduct, dealings and property), section 82 (which relates to the
costs of the
trustees, managers, and other persons), section 116 (which relates to the
summary administration of small estates),
and subsection (4) of section 91 so
far as it relates to the effect of the release of the official receiver shall,
so far as the
same are applicable, apply to the case of an administration order
under this section in like manner as to an order of adjudication
under this Act,
and section 37 shall apply as if for the reference to an order of adjudication
there were substituted a reference
to an administration order under this
section.
Priority of claims
(5) In the administration
of the property of the deceased debtor under an order of administration, the
official receiver or trustee
shall have regard to any claim by the personal
representative of the deceased debtor to payment of the proper funeral and
testamentary
expenses incurred by him in and about the debtor's estate, and such
claims shall be deemed a preferential debt under the order and
shall,
notwithstanding anything to the contrary in the provisions of this Act relating
to the priority of other debts, be payable
in full, out of the debtor's estate,
in priority to all other debts.
Surplus
(6) If, on the
administration of a deceased debtor's estate, any surplus remains in the hands
of the official receiver or trustee,
after payment in full of all the debts due
from the debtor, together with the costs of the administration and interest as
provided
by this Act in case of bankruptcy, such surplus shall be paid over to
the personal representative of the deceased debtor's estate,
or dealt with in
such other manner as may be prescribed.
Effect of notice to personal representative of the presentation of the petition
(7) Notice to the personal
representative of a deceased debtor of the presentation by a creditor of a
petition under this section
shall, in the event of an order for administration
being made thereon, be deemed to be equivalent to notice of an act of
bankruptcy,
and after such notice no payment or transfer of property made by the
personal representative shall operate as a discharge to him
as between himself
and the official receiver or trustee; save as aforesaid nothing in this section
shall invalidate any payment made
or any act or thing done in good faith by the
personal representative before the date of the order for
administration.
Personal representative may present petition
(8) A petition for the
administration of the estate of a deceased debtor under this section may be
presented by the personal representative
of the debtor, and, where a petition is
so presented by such a representative, this section shall apply subject to such
modifications
as may be prescribed by general rules made under subsection
(10).
"Creditor"
(9) Unless the context
otherwise requires, "creditor", in this section, means one or more creditors
qualified to present a bankruptcy
petition as in this Act
provided.
Rules
(10) General rules for
carrying into effect the provisions of this section may be made in the same
manner and to the like effect and
extent as in bankruptcy.
GENERAL RULES
Power to make general rules
118.
The Chief Justice may, from time to time, make general rules for carrying into
effect the objects of this Act.
FEES, ETC.
Fees, etc.
119.
The Chief Justice may, from time to time, prescribe a scale of fees and
percentages to be charged for or in respect of proceedings
under the provisions
of this Act.
EVIDENCE
Gazette to be evidence
120.-(1)
A copy of the Gazette containing any notice inserted therein in pursuance of
this Act shall be evidence of the facts stated
in the
notice.
(2) The production of a
copy of the Gazette containing any notice of a receiving order, or of an order
adjudging a debtor bankrupt,
shall be conclusive evidence in all legal
proceedings of the order having been duly made, and of its date.
Evidence of proceedings at meetings of creditors
121.-(1)
A minute of proceedings at a meeting of creditors under the provisions of this
Act, signed at the same or the next ensuing meeting,
by a person describing
himself as, or appearing to be, chairman of the meeting at which the minute is
signed, shall be received in
evidence without further
proof.
(2) Until the contrary is
proved, every meeting of creditors in respect of the proceedings whereof a
minute has been so signed shall
be deemed to have been duly convened and held,
and all resolutions passed or proceedings had thereat to have been duly passed
or
had.
Evidence of proceedings in bankruptcy
122.
Any petition or copy of a petition in bankruptcy, any order or certificate or
copy of an order or certificate made by the court,
any instrument or copy of an
instrument, affidavit or document made or used in the course of any bankruptcy
proceedings or other
proceedings had under the provisions of this Act, shall, if
it appears to be sealed with the seal of the court or purports to be
signed by
any judge thereof, or is certified as a true copy by the Chief Registrar
thereof, be receivable in evidence in all legal
proceedings
whatsoever.
Swearing of affidavits
123.
Subject to general rules, any affidavit to be used in the court may be sworn
before any person authorised to administer oaths in
the court, or before a
magistrate or a justice of the peace for the Division where it is sworn, or, in
the case of a person residing
out of Fiji, before any person qualified to
administer oaths in the country where he resides (he being certified to be
qualified
as aforesaid by an overseas representative of Fiji, or by a notary
public).
(Amended
by 37 of 1966, s. 14. and 14 of 1975, s. 9.)
Death of debtor or witness
124.
In the case of the death of the debtor or his wife, or of a witness whose
evidence has been received by the court in any proceeding
under the provisions
of this Act, the deposition of the person so deceased, purporting to be sealed
with the seal of the court, or
a copy thereof purporting to be so sealed, shall
be admitted as evidence of the matters therein deposed to.
Certificate of appointment of trustee
125.
A certificate of the court that a person has been appointed trustee under the
provisions of this Act shall be conclusive evidence
of his
appointment.
MISCELLANEOUS
Computation of time
126.-(1)
Where by the provisions of this Act any limited time from or after any date or
event is appointed or allowed for the doing of
any act or the taking of any
proceeding, then in the computation of that limited time the same shall be taken
as exclusive of the
day of that date or of the happening of that event, and as
commencing at the beginning of the next following day; and the act or
proceeding
shall be done or taken at latest on the last day of that limited time as so
computed, unless the last day is a Sunday
or a public holiday or a day on which
the offices of the court are wholly closed, in which case any act or proceeding
shall be considered
as done or taken in due time if it is done or taken on the
next day afterwards which is not one of the days in this section
specified.
(2) Where by the
provisions of this Act, the time limited for doing any act or thing is less than
six days, a Sunday, a public holiday
and any other day on which the offices of
the court are wholly closed shall be excluded in computing such
time.
(3) Where by the provisions
of this Act, any act or proceeding is directed to be done or taken on a certain
day, then, if that day
happens to be one of the days in this section specified,
the act or proceeding shall be considered as done or taken in due time if
it is
done or taken on the next day afterwards which is not one of the days in this
section specified.
Service of notices
127.
All notices and other documents for the service of which no special mode is
directed may be sent by post to the last known address
of the person to be
served therewith.
Formal defect not to invalidate proceedings
128.-(1)
No proceeding in bankruptcy shall be invalidated by any formal defect or by any
irregularity, unless the court before which
an objection is made to the
proceeding is of opinion that substantial injustice has been caused by the
defect or irregularity, and
that the injustice cannot be remedied by any order
of the court.
(2) No defect or
irregularity in the appointment or election of a receiver, trustee or member of
a committee of inspection shall vitiate
any act done by him in good
faith.
Exemption of deeds, etc., from stamp duty
129.
Every deed, transfer, assignment or other assurance relating solely to freehold
or leasehold property, or to any mortgage, charge
or other encumbrance on, or
any estate, right or interest in, any real or personal property which is part of
the estate of any bankrupt,
and which, after the execution of the deed,
conveyance, assignment or other assurance, either at law or in equity, is or
remains
the estate of the bankrupt or of the trustee under the bankruptcy, and
every power of attorney, proxy, paper, writ, order, certificate,
affidavit, bond
or other instrument or writing relating solely to the property of any bankrupt,
or to any proceeding under any bankruptcy,
shall be exempt from stamp duty,
except in respect of fees under this
Act.
For the purposes of this
section "bankruptcy" shall include any proceeding under the provisions of this
Act whether before or after
adjudication and "bankrupt" shall include any debtor
proceeded against under this Act,
Acting of corporations, partners, etc.
130.
For all or any of the purposes of this Act, a corporation may act by any of its
officers authorised in that behalf under the seal
of the corporation, a firm may
act by any of its members, and a person of unsound mind may act by his committee
or the appointed
manager of his estate.
Certain provisions to bind Crown
131.
Save as provided in this Act, the provisions of this Act relating to the
remedies against the property of a debtor, the priorities
of debts, the effect
of a composition or scheme of arrangement, and the effect of a discharge, shall
bind the Crown.
UNCLAIMED FUNDS OR DIVIDENDS
Unclaimed and undistributed dividends or funds under this Act
132.-(1)
Where the trustee, under any bankruptcy composition or scheme, pursuant to this
Act, or the Ordinance repealed by this Act,
has under his control any unclaimed
dividend which has remained unclaimed for more than six months, or where, after
making a final
dividend, he has in his hands or under his control any unclaimed
or undistributed money arising from the property of the debtor,
he shall
forthwith pay it to the Bankruptcy Estates Account at such bank as may be
authorised under section 88. The official receiver
shall furnish him with a
certificate of receipt of the money so paid, which shall be an effectual
discharge to him in respect
thereof.
The official receiver may
at any time order any such trustee to submit to him an account verified by
affidavit of the sums received
and paid by him as aforesaid, and may direct and
enforce an audit of the
account.
The official receiver may
from time to time appoint a person to collect and get in all such unclaimed or
undistributed funds or dividends,
and for the purposes of this section the court
shall have and, at the instance of the official receiver, may exercise, all the
powers
conferred by this Act with respect to the discovery and realization of
the property of a debtor, and the provisions of Part II with
respect thereto
shall, with any necessary modifications, apply to proceedings under this
section.
(2) The provisions of
this section shall not, except as expressly declared herein, deprive any person
of any larger or other right
or remedy to which he may be entitled against such
trustee.
(3) Where any unclaimed
dividends or undistributed money paid into the Bankruptcy Estates Account in
pursuance of this section shall
have remained in that account for a period of
two years, the official receiver shall transfer such money to the credit of the
Bankruptcy
Contingency Fund.
(4)
Any person claiming to be entitled to any money paid into the Bankruptcy Estates
Account or the Bankruptcy Contingency Fund, pursuant
to this section, may apply
to the official receiver for payment to him of the same, and the official
receiver, if satisfied that
the person claiming is so entitled, shall make an
order for the payment to such person of the sum due. If the money claimed has
been
paid to the credit of the Bankruptcy Contingency Fund and the said fund is
insufficient to meet the sum required to be paid, the
deficiency shall be met by
the Chief Accountant out of the Consolidated
Fund.
Any person dissatisfied with
the decision of the official receiver in respect of his claim may appeal to the
court.
PART VIII-BANKRUPTCY OFFENCES
Fraudulent debtors
133.-(1)
Any person who has been adjudged bankrupt or in respect of whose estate a
receiving order has been made shall in each of the
cases following be guilty of
an offence:-
Non-discovery of property
(a) if he does not to the best of his knowledge and belief fully and truly discover to the trustee all his property, real and personal, and how and to whom and for what consideration and when he disposed of any part thereof, except such part as has been dispose of in the ordinary way of his trade (if any) or laid out in the ordinary expense of his family, unless he proves that he had no intent to defraud;
(Amended by 37 of 1966, s. 14)
Non-delivery of property
(b) if he does not deliver up to the trustee, or as he directs, all such part of his real and personal property as is in his custody or under his control, and which he is required by law to deliver up, unless he proves that he had no intent to defraud;
(Amended by 37 of 1966, s. 14)
Non-delivery of books, etc.
(c) if he does not deliver up to the trustee, or as he directs, all books, documents, papers and writings in his custody or under his control relating to his property or affairs, unless he proves that he had no intent to defraud;
Concealment of property
(d) it, after the presentation of a bankruptcy petition by or against him, or within twelve months next before such presentation, he conceals any part of his property to the value of twenty dollars or upwards, or conceals any debt due to or from him, unless he proves that he had no intent to defraud;
Removal of property
(e)
if, after the presentation of a bankruptcy petition by or against him, or within
twelve months next before such presentation, he
fraudulently removes any part of
his property to the value of twenty dollars or upwards;
Omission in statement of affairs
(f) if he makes any material omission in any statement relating to his affairs, unless he proves that he had no intent to defraud;
Not informing trustee of false claim
(g) if, knowing or believing that a false debt has been proved by any person under the bankruptcy, he fails for the period of a month to inform the trustee thereof;
Preventing production of books, etc.
(h) if, after the presentation of a bankruptcy petition by or against him, he prevents the production of any book, document, paper or writing affecting or relating to his property or affairs, unless he proves that he had no intent to conceal the state of his affairs or to defeat the law;
Destruction, etc., of books, etc.
(i) if, after the presentation of a bankruptcy petition by or against him, or within twelve months next before such presentation, he conceals, destroys, mutilates or falsifies, or is privy to the concealment, destruction, mutilation or falsification of any book or document affecting or relating to his property or affairs, unless he proves that he had no intent to conceal the state of his affairs or to defeat the law;
False entries in books, etc.
(j) if, after the presentation of a bankruptcy petition by or against him, or within twelve months next before such presentation, he makes or is privy to the making of any false entry in any book or document affecting or relating to his property or affairs, unless he proves that he had no intent to conceal the state of his affairs or to defeat the law;
Parting with, alteration, etc., of documents
(k) if, after the presentation of a bankruptcy petition by or against him, or within twelve months next before such presentation, he fraudulently parts with, alters, or makes any omission in, or is privy to the fraudulently parting with, altering, or making any omission in, any document affecting or relating to his property or affairs;
Accounting for property by fictitious losses, etc.
(l) if, after the presentation of a bankruptcy petition by or against him, or at any meeting of his creditors within twelve months next before such presentation, he attempts to account for any part of his property by fictitious losses or expenses;
Obtaining property on credit by fraud
(m) if, within twelve months next before the presentation of a bankruptcy petition by or against him, or, in the case of a receiving order made under the provisions of section 99, before the date of the order, or after the presentation of a bankruptcy petition and before the making of a receiving order, he, by any false representations or other fraud, has obtained any property on credit and has not paid for the same;
Obtaining property on credit on pretence of carrying on business
(n) if, within twelve months next before the presentation of a bankruptcy petition by or against him, or, in the case of a receiving order made under the provisions of section 99, before the date of the order, or after the presentation of a bankruptcy petition and before the making of a receiving order, he obtains under the false pretence of carrying on business, and, if a trader, of dealing in the ordinary way of his trade, any property on credit and has not paid for the same, unless he proves that he had no intent to defraud;
Pawning property obtained on credit
(o) if, within twelve months next before the presentation of a bankruptcy petition by or against him, or in the case of a receiving order made under the provisions of section 99, before the date of the order, or after the presentation of a bankruptcy petition and before the making of a receiving order, he pawns, pledges or disposes of any property which he has obtained on credit and has not paid for, unless, in the case of a trader, such pawning, pledging or disposing is in the ordinary way of his trade, and unless in any case he proves that he had no intent to defraud;
Obtaining consent of creditors by fraud
(p) if he is guilty of any false representation or other fraud for the purpose of obtaining the consent of his creditors or any of them to an agreement with reference to his affairs or to his bankruptcy;
(q) if he makes default in payment for the benefit of creditors of any portion of a salary or other income in respect of the payment of which the court is authorised to make an order.
For
the purpose of this subsection, the expression "trustee" means the official
receiver of the debtor's estate or trustee administering
his estate for the
benefit of his creditors.
(2) Any
person guilty of an offence in the cases mentioned respectively in paragraphs
(m), (n) and (o) of subsection (1) shall be
liable on conviction to imprisonment
for any term not exceeding five
years.
(3) Where any person pawns,
pledges or disposes of any property in circumstances which amount to an offence
under paragraph (o) of
subsection (1), every person who takes in pawn or pledge
or otherwise receives the property knowing it to be pawned, pledged or disposed
of in such circumstances as aforesaid shall be guilty of an offence and on
conviction thereof liable to be punished in the same way
as if he had received
the property knowing it to have been obtained in circumstances amounting to a
felony under section 313 of the
Penal
Code.
(Cap.
17.)
Undischarged bankrupt obtaining credit
134.
Where an undischarged bankrupt-
(a) either alone or jointly with any other person obtains credit to the extent of twenty dollars or upwards from any person without informing that person that he is an undischarged bankrupt; or
(b) engages in any trade or business under a name other than that under which he was adjudicated bankrupt without disclosing to all persons with whom he enters into any business transaction the name under which he was adjudicated bankrupt,
he
shall be guilty of an offence.
Frauds by bankrupts, etc.
135.-(1)
If any person who has been adjudged bankrupt or in respect of whose estate a
receiving order has been made-
(a) in incurring any debt or liability, has obtained credit under false pretences or by means of any other fraud; or
(b) with intent to defraud his creditors or any of them, has made or caused to be made any gift or transfer of, or charge on, his property; or
(c) with intent to defraud his creditors, has concealed or removed any part of his property since, or within two months before, the date of any unsatisfied judgment or order for payment of money obtained against him,
he
shall be guilty of an offence.
(2)
For the purposes of paragraph (b) of subsection (1) it is hereby declared that
if any person who has been adjudged bankrupt, or
in respect of whose estate a
receiving order has been made, has with intent to defraud his creditors or any
of them caused or connived
at the levying of any execution against his property
he shall be deemed to have made a transfer of or charge on his
property.
Bankrupt guilty of gambling, etc.
136.-(1)
Any person who has been adjudged bankrupt, or in respect of whose estate a
receiving order has been made, shall be guilty of
an offence, if, having been
engaged in any trade or business, and having outstanding at the date of the
receiving order any debts
contracted in the course and for the purposes of such
trade or business-
(a) he has, within two years prior to the presentation of the bankruptcy petition, materially contributed to or increased the extent of his insolvency by gambling or by rash and hazardous speculations, and such gambling or speculations are unconnected with his trade or business; or
(b) he has, between the date of the presentation of the petition and the date of the receiving order, lost any part of his estate by such gambling or rash and hazardous speculations as aforesaid; or
(c) on being required by the official receiver at any time, or in the course of his public examination by the court, to account for the loss of any substantial part of his estate incurred within a period of a year next preceding the date of the presentation of the bankruptcy petition, or between that date and the date of the receiving order, he fails to give a satisfactory explanation of the manner in which such loss was incurred:
Provided
that, in determining for the purposes of this section whether any speculations
were rash and hazardous, the financial position
of the accused person at the
time when he entered into the speculations shall be taken into
consideration.
(2) A prosecution
shall not be instituted against any person under this section except by order of
the court.
(3) Where a receiving
order is made against a person under the provisions of section 99, this section
shall apply as if for references
to the presentation of a petition there were
substituted references to the making of a receiving order.
Bankrupt failing to keep proper accounts
137.-(1)
Any person who has been adjudged bankrupt or in respect of whose estate a
receiving order has been made shall be guilty of an
offence, if, having been
engaged in any trade or business during any period in the two years immediately
preceding the date of the
presentation of the bankruptcy petition, he has not
kept proper books of account throughout that period and throughout any further
period in which he was so engaged between the date of the presentation of the
petition and the date of the receiving order, or has
not preserved all books of
account so kept:
Provided that a
person who has not kept or has not preserved books of account shall not be
convicted of an offence under this section-
(a) if his unsecured liabilities at the date of the receiving order did not exceed, in the case of a person who has not on any previous occasion been adjudged bankrupt or insolvent or made a composition or arrangement with his creditors, one thousand dollars or in any other case two hundred dollars; or
(b) if he proves that in the circumstances in which he traded or carried on business the omission was honest and excusable.
(2)
A prosecution shall not be instituted against any person under this section
except by order of the court.
(3)
For the purposes of this section, a person shall be deemed not to have kept
proper books of account if he has not kept such books
or accounts as are
necessary to exhibit or explain his transactions and financial position in his
trade or business, including a
book or books containing entries from day to day
in sufficient detail of all cash received and cash paid, and, where the trade or
business has involved dealings in goods, statements of annual stocktakings, and
(except in the case of goods sold by way of retail
trade to the actual consumer)
accounts of all goods sold and purchased showing the buyers and sellers thereof
in sufficient detail
to enable the goods and the buyers and sellers thereof to
be identified.
(4) Paragraphs (i),
(j) and (k) of subsection (1) of section 133 shall, in their application to such
books as aforesaid, have effect
as if "two years next before the presentation of
the bankruptcy petition" were substituted for the time mentioned in those
paragraphs
as the time prior to the presentation within which the acts or
omissions specified in those paragraphs constitute an
offence.
(5) Where a receiving
order is made against a person under the provisions of section 99, this section
shall apply as if for references
to the presentation of a petition there were
substituted references to the making of the receiving order.
Bankrupt absconding with property
138.
If any person who is adjudged bankrupt, or in respect of whose estate a
receiving order has been made, after the presentation of
a bankruptcy petition
by or against him, or within six months before such presentation, quits Fiji and
takes with him, or attempts
or makes preparation to quit Fiji and take with him,
any part of his property to the amount of forty dollars or upwards, which ought
by law to be divided amongst his creditors, he shall (unless he proves that he
had no intent to defraud) be guilty of an offence.
False claim, etc.
139.
If any creditor, or any person claiming to be a creditor, in any bankruptcy
proceedings, wilfully and with intent to defraud makes
any false claim, or any
proof, declaration or statement of account, which is untrue in any material
particular, he shall be guilty
of an offence, and shall on conviction be liable
to imprisonment for a term not exceeding one
year.
(Amended by
37 of 1966, s. 14.)
Order by court for prosecution on report of trustee
140.
Where an official receiver or trustee in a bankruptcy reports to the court that
in his opinion a debtor who has been adjudged bankrupt
or in respect of whose
estate a receiving order has been made has been guilty of any offence under this
Act, or where the court is
satisfied that upon the representation of any
creditor or member of the committee of inspection that there is ground to
believe that
the debtor has been guilty of any such offence, the court shall, if
it appears to the court that there is a reasonable probability
that the debtor
will be convicted, and that the circumstances are such as to render a
prosecution desirable, order that the debtor
be prosecuted for such
offence.
Criminal liability after discharge or composition
141.
Where a debtor has been guilty of any criminal offence, he shall not be exempt
from being proceeded against therefor by reason that
he has obtained his
discharge or that a composition or scheme of arrangement has been accepted or
approved.
Trial and punishment of offences
142.
-(1) A person guilty of an offence under this Act in respect of which no special
penalty is imposed by this Act shall be liable,
on conviction, to imprisonment
for a term not exceeding two
years:
(Amended by
37 of 1966, s. 14.)
Provided that
the maximum term of imprisonment which may be awarded on conviction for an
offence under the provisions of section 135
shall be one
year.
(2) Proceedings in respect
of any such offence shall not be instituted after one year from the first
discovery thereof, either by
the official receiver or by the trustee in the
bankruptcy, or, in the case of proceedings instituted by a creditor, by the
creditor,
nor in any case shall they be instituted after three years from the
commission of the offence.
Form of charge
143.
In a charge for an offence under the provisions of this Act, it shall be
sufficient to set forth the substance of the offence charged
in the words of
this Act specifying the offence, or as near thereto as circumstances admit,
without alleging or setting forth any
debt, act of bankruptcy, trading,
adjudication, or any proceedings in, or order, warrant or document of, the court
acting under this
Act.
Director of Public Prosecutions to act in certain cases
144.
Where the court orders the prosecution of any person for any offence under the
provisions of this Act or for any offence arising
out of or connected with any
bankruptcy proceedings, it shall be the duty of the Director of Public
Prosecutions to institute and
carry on the
prosecution:
Provided that, where
the order of the court is made on the application of the official receiver and
based on his report, the official
receiver may institute the prosecution and
carry on the proceedings, if or so long as those proceedings are conducted
before a magistrates'
court, unless in the course thereof circumstances arise
which render it desirable that the remainder of the proceedings should be
carried on by the Director of Public Prosecutions.
Evidence as to frauds by agents
145.
A statement or admission made by any person in any compulsory examination or
deposition before the court on the hearing of any matter
in bankruptcy shall not
be admissible as evidence against that person in any proceedings in respect of
any offence relating to frauds
by agents, bankers, or factors.
PART IX-RULES
Application of Bankruptcy Rules 1915
146.-(1)
Unless and until the Chief Justice shall make rules under the powers conferred
by sections 117, 118 and 119, the Bankruptcy
Rules, 1915, as from time to time
amended up to the date of the commencement of this Act, made under the
Bankruptcy Act, 1914, of
the Imperial Parliament, and the scale of fees
prescribed under the said Act, are declared to be in force in Fiji and shall be
read
with and considered part of this
Act:
Provided that-
(a) it shall be lawful for the Chief Justice by rule to amend or revoke any of the said rules; and
(b) it shall be lawful for any court to construe the said rules with such verbal alteration not affecting the substance as may be deemed expedient to render the same applicable to any matters before the court, provided always that any such construction shall not be inconsistent with the provisions of this Act.
(2)
In any proceeding in bankruptcy taken in Fiji the decision of the court on the
construction to be placed on any of the provisions
of the said rules, with
respect to practice and procedure, shall be final, and no action, suit or other
legal proceedings or process
shall be brought, taken, issued or allowed in Fiji
against any person in respect of any act or thing done or purporting to be done
in pursuance of any order or direction of the court under the aforesaid
rules.
FIRST
SCHEDULE
(Section 15)
MEETINGS OF CREDITORS
First Meeting of Creditors
1.
The first meeting of creditors shall be summoned for a day not later than
twenty-eight days after the date of the receiving order,
unless the court for
any special reason deem it expedient that the meeting be summoned for a later
day.
2.
The official receiver shall summon shall summon the meeting by giving not less
than six clear days’ notice of the time and
place thereof in the
Gazette.
3.
The official receiver shall also, as soon
as practicable, send to each creditor mentioned in the debtor’s statement
of affairs,
a notice of the time and place of the first meeting of creditors,
accompanied by a summary of the debtor’s statement of affairs,
including
the cause of his failure, and any observations thereon, which the official
receiver may think fir to make; but the proceedings
at the first meeting shall
not be invalidated by reason of any such notice or summary not having been sent
or received before the
meeting.
4.
The meeting shall be held at such place
as is in the opinion of the official receiver most convenient for the majority
of the
creditors.
5.
The official receiver or the trustee may
at any time summon a meeting of creditors, and shall do so whenever so directed
by the court,
or so requested by a creditor in accordance with the provisions of
this Act.
Subsequent Meetings
6.
Meetings subsequent to the first meeting
shall be summoned by sending notice of the time and place thereof to each
creditor at the
address given in his proof, or if he has not proved, at the
address given in the debtor’s statement of affairs, or at such
other
address as may be know to the person summoning the meeting.
Chairman
7.
The official receiver, or some person
nominated by him, shall be the chairman at the first meeting. The chairman at
subsequent meetings
shall be such person as the meeting by resolution
appoint.
Voting
8.
A person shall not be entitled to vote as
a creditor at the first or any other meeting of creditors unless he has duly
proved a debt
provable in bankruptcy to be due to him from the debtor, and the
proof has been duly lodged before the time appointed for the
meeting.
9.
A creditor shall vote at any such meeting
in respect of any unliquidated or contingent debt, or any debt the value of
which is not
ascertained.
10. For the purpose of voting, a secured creditor shall, unless he surrenders his security, 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 vote only in respect of the balance (if any) due to him, after deducting the value of his security. If he votes in respect of his whole debt he shall be deemed to have surrendered his security unless the court on application is satisfied that the omission to value his security has risen from inadvertence.
11.
A creditor shall not vote in respect of any debt on or secured by a current bill
of exchange or promissory note held by him, unless
he is willing to treat the
liability to him thereon of every person who is liable thereon antecedently to
the debtor, and against
whom a receiving order has not been made, 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.
Trustee may Redeem Security
12.
It shall be competent to the trustee or to the official receiver, within
twenty-eight days after a proof estimating the value of
a security as aforesaid
has been made use of in voting at any meeting, to require the creditor to give
up the security for the benefit
of the creditors generally on payment of the
value so estimated with an addition thereto of twenty per
cent:
Provided that where a
creditor has put a value on such security, he may, at any time before he has
been required to give up such security
as aforesaid, correct such valuation by a
new proof and deduct *such new value from his debt, but in that case such
addition of twenty
per cent shall not be made if the trustee requires the
security to be given up.
Firms
13.
If a receiving order 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.
Power of Chairman
14.
The chairman of a meeting shall have power to admit or reject a proof for the
purpose of voting, but his decision shall be subject
to appeal to the court. If
he is in doubt whether the proof of a creditor should be admitted or rejected he
shall mark the proof
as objected to, and shall allow the creditor to vote,
subject to the vote being declared invalid in the event of the objection being
sustained.
Proxies
15.
A creditor may vote either in person or by
proxy.
16.
Every instrument of proxy shall be in the prescribed form, and shall be issued
by the official receiver of the debtor's estate or
by any deputy official
receiver, or, after the appointment of a trustee, by the trustee, and every
insertion therein shall be in
the handwriting of the person giving the proxy, or
of any manager or clerk, or other person in his regular employment or of any
person
authorised to administer oaths in the
court.
17.
General and special forms of proxy shall be spent to the creditors together with
a notice summoning a meeting of creditors, and
neither the name nor the
description of the official receiver, or of any other person shall be printed or
inserted in the body of
any instrument of proxy before it is so
sent.
18.
A creditor may given a general proxy to his manager or clerk, or any other
person in his regular employment. In such case the instrument
of proxy shall
state the relation in which the person to act thereunder stands to the
creditor.
19.
A creditor may give a special proxy to any person to vote at any specified
meeting or adjournment thereof on all or any of the following
matters:-
(a) for or against any specific proposal for a composition or scheme of arrangement;
(b) for or against the appointment of any specified person as trustee at a specified rate of remuneration, or as member of the committee of inspection, or for or against the continuance in office of any specified person as trustee or member of a committee of inspection;
(c) on all questions relating to any matter other than those above referred to, arising at any specified meeting or adjournment thereof.
20.
A proxy shall not be used unless it is deposited with the official receiver or
trustee before the meeting at which it is to be
used.
21.
Where it appears to the satisfaction of the court that any solicitation has been
used by or on behalf of a trustee or receiver in
obtaining proxies, or in
procuring the trusteeship or receivership, except by the direction of a meeting
of creditors, the court
shall have power, if it thinks fit, to order that no
remuneration shall be allowed to the person by whom or on whose behalf such
solicitation may have been exercised, notwithstanding any resolution of the
committee of inspection or of the creditors to the
contrary.
22.
A creditor may appoint the official receiver to act in manner prescribed as his
general or special proxy.
Adjournment
23.
The chairman of a meeting may, with the consent of the meeting, adjourn the
meeting from time to time and from place to place.
Quorum
24.
A meeting shall not be competent to act for any purpose, except the election of
a chairman, the proving of debts, and the adjournment
of the meeting, unless
there are present, or represented thereat, at least three creditors, or all the
creditors if their number
does not exceed
three.
25.
If within half an hour from the time appointed for the meeting a quorum of
creditors is not present or represented, the meeting
shall be adjourned to such
other day as the chairman may appoint, being not less than three nor more than
twenty-one days later.
Minutes
26.
The Chairman of every meeting shall cause
minutes of the proceedings at the meeting to be drawn up and fairly entered in a
book kept
for that purpose, and the minutes shall be signed by him or by the
chairman of the next ensuing meeting.
Proxy-holders not to Vote on certain Resolutions
27.
No person acting either under a general
or special proxy shall vote in favour of any resolution which would directly or
indirectly
place himself, his partner or employer 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:
Provided that where any
person holds special proxies to vote for the appointment of himself as trustee
he may use the said proxies
and vote
accordingly.
28.
There vote of the trustee, or of his partner, clerk, barrister and solicitor or
his clerk, either as creditor, or as proxy for a
creditor, shall not be reckoned
in the majority required for passing any resolution affecting the remuneration
or conduct of the
trustee.
SECOND
SCHEDULE
(Section
34)
Proofs of Debts in Ordinary Cases
1.
Every creditor shall prove his debt as soon as may be after the making of a
receiving
order.
2.
A debt may be proved by delivering or sending through the post in a prepaid
letter to the official receiver, or, if a trustee has
been appointed, to the
trustee, an affidavit verifying the
debt.
3.
The affidavit may be made by the creditor himself, or by some person authorised
by or on behalf of the creditor. If made by a person
so authorised it shall
state his authority and means of
knowledge.
4.
The affidavit shall contain or refer to a statement of account showing the
particulars of the debt, and shall specify the vouchers,
if any, by which the
same can be substantiated. The official receiver or trustee may at any time call
for the production of the
vouchers.
5.
The affidavit shall state whether the creditor is or is not a secured creditor,
and if it is found at any time that the affidavit
made by or on behalf of a
secured creditor has omitted to state that he is a secured creditor, the secured
creditor shall surrender
his security to the official receiver or trustee for
the general benefit of the creditors unless the court on application is
satisfied
that the omission has arisen from inadvertence, and in that case the
court may allow the affidavit to be amended upon such terms
as to the repayment
of any dividends or otherwise as the court may consider to be
just.
6.
A creditor shall bear the cost of proving his debt, unless the court otherwise
specially orders.
Inspection of Proofs by Creditors
7.
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.
Deduction of Trade Discounts
8.
A creditor proving his debt shall deduct therefrom all trade discounts, but he
shall not be compelled to deduct any discount, not
exceeding five per cent on
the net amount of his claim, which he may have agreed to allow for payment in
cash.
Proof by Secured Creditors
9.
If a secured creditor realizes his security, he may prove for the balance due to
him, after deducting the net amount
realized.
10.
If a secured creditor surrenders his security to the official receiver or
trustee for the general benefit of the creditors, he may
prove for his whole
debt.
Assessment of Security
11.
If a secured creditor does not either realize 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.
Redemption of Security
12. (a) Where a security is so valued the trustee may at any time redeem it on payment to the creditor of the assessed value.
(b) If the trustee 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 times and on such terms and conditions as may be agreed on between the creditor and the trustee, or as, in default of such agreement, the court may direct. If the sale be by public auction the creditor, or the trustee on behalf of the estate, may bid or purchase.
Creditor may call on Trustee to Redeem
(c) The creditor may at any time, by notice in writing, require the trustee to elect whether he will or will not exercise his power of redeeming the security or requiring it to be realized, and if the trustee does not, within six months after receiving the notice, signify in writing to the creditor his election to exercise the power, he shall not be entitled to exercise it; and the equity of redemption, or any other interest in the property comprised in the security which is vested in the trustee, shall vest in the creditor and the amount of his debt shall be reduced by the amount at which the security has been valued.
Amendment of Assessment
13.
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 trustee, or the court,
that the valuation and proof were made bona fide 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 trustee shall allow the
amendment without application to the
court.
14.
Where a valuation has been amended in accordance with the foregoing rule, 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.
15.
If a creditor after having valued his security subsequently realize it, or if it
is realized under the provisions of rule 12, the
net amount realized 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.
16.
If a secured creditor does not comply with the foregoing rules he shall be
excluded from all share in any
dividend.
17.
Subject to the provisions of rule 12, a creditor shall in no case receive more
than one hundred cents in the dollar, and interest
as provided by this
Act.
Proof in Respect of Distinct Contracts
18.
If a debtor was, at the date of the receiving order, liable in respect of
distinct contracts as a member of two or more distinct
firms, or as a sole
contractor, and also as a member of a firm, the circumstances 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.
Rent and other Periodical Payments
19.
When any rent or other payment falls due at stated periods, and the receiving
order is made at any time other than one of those periods,
the persons entitled
to the rent or payment may prove for a proportionate part thereof up to the date
of the order as if the rent
or payment grew due from day to day.
Interest where it is not agreed for
20.
On any debt or sum certain, payable at a certain time or otherwise, whereon
interest is not reserved or agreed for, and which is
overdue at the date of the
receiving order and provable in bankruptcy the creditor may prove for interest
at a rate not exceeding
four per cent per annum to the date of the order from
the time when the debt or sum was payable, if the debt or sum is payable by
virtue of a written instrument at a certain time, and if payable otherwise, then
from the time when a demand in writing has been
made giving the debtor notice
that interest will be claimed from the date of the demand until the time of
payment.
Future Debts
21.
A creditor may prove for a debt not payable when the debtor committed an act of
bankruptcy as if it were payable presently, and
may receive dividends equally
with the other creditors deducting only thereout a rebate of interest at the
rate of five per cent
per annum computed from the declaration of a dividend to
the time when the debt would have become payable, according to the terms
on
which it as contracted.
Admission or rejection of proofs
22.
The trustee shall examine every proof and the grounds of the debt, and in
writing admit or reject it, in whole or in part, or require
further evidence in
support of it. If he rejects a proof he shall state in writing to the creditor
the grounds of the
rejection.
23.
If the trustee thinks that a proof has been improperly admitted the court may,
on the application of the trustee, after notice to
the creditor who made the
proof, expunge the proof or reduce its amount.
Appeal
24.
If a creditor is dissatisfied with the decision of the trustee in respect of a
proof, the court may, on the application of the creditor,
reverse or vary the
decision.
25.
The court may also expunge or reduce a proof upon the application of a creditor
if the trustee declines to interfere in the matter,
or, in the case of a
composition or scheme, upon the application of the
debtor.
26.
For the purpose of any of his duties in relation to proofs the trustee may
administer oaths and take
affidavits.
27.
The official receiver, before the appointment of a trustee, shall have all the
powers of a trustee with respect to the examination,
admission, and rejection of
proofs, and any act or decision of his in relation thereto shall be subject to
the like appeal.
Controlled by Ministry of the Attorney-General
-----------------------------------
CHAPTER
48
BANKRUPTCY
SECTION 119-BANKRUPTCY (FEES) RULES
Made by the Chief Justice
Rules 20th Jan., 1969, 6th Nov., 1974
Short title
1.
These Rules may be cited as the Bankruptcy (Fees) Rules.
Interpretation
2.
In the Schedule any reference to a numbered rule or form is a reference to the
rule or form so numbered in the Bankruptcy Rules,
1915, as from time to time
amended up to the commencement of the Act.
Present scale of fees not to remain in force
3.
The scale of fees prescribed under the Bankruptcy Act, 1914, of the Imperial
Parliament, shall forthwith be no longer in force in
Fiji.
Fees in Supreme Court
4.
The fees to be taken in the Supreme Court Registry for and in respect of
proceedings in bankruptcy shall be those set out in Part
I of the Schedule and,
where no fees are prescribed in Part I, such of those fees set out in Part I of
Appendix 2 of the Supreme
Court Rules as may be applicable,
mutatis
mutandis.
Fees of Official Receiver
5.
The fees to be taken and percentages to be charged by the Official Receiver for
and in respect of proceedings in bankruptcy shall
be those set out in Part 2 of
the Schedule.
_______
SCHEDULE
PART
I
FEES TO BE TAKEN
IN THE SUPREME COURT
$
1.
On filing a declaration by a debtor of inability to pay his debts . . . . 1
-00
2.
On issuing a bankruptcy notice, including two sealed copies..........
2-00
And for every additional sealed
copy required after the first
two
copies.................................................................................
0.50
3.
(a) On presenting a bankruptcy
petition-
(i) If presented by the
debtor ................................................
10-00
(ii) If presented by a creditor
..............................................
12-00
(b) On filing a petition under
section 117 of the Act-
(i) If filed
by the personal representative of the
deceased
debtor............................................................
10-00
(ii) If filed by a creditor
..................................................
12-00
(No additional fee shall be
taken for sealing the receiving
order
or an order dismissing the
petition or granting leave to
withdraw
the
petition).
4.
On sealing a receiving order under section 99 of the Act ................
10-00
5.
On an application for annulment of adjudication or rescission
of
receiving order on the ground that
the debts have been paid
in
full...................................................................................
5-00
(One fee only shall be charged
where annulment and
rescission are the
subject of one
application).
6.
On an application for an order of discharge, not including
expenses
of gazetting the same in
respect of each debtor covered by
the
application..........................................................................
3-00
7.
On an application for leave to act as a director or take part in
the
management of a company
...................................................
4-00
8.
On an application to the Court to approve a composition, a
fee
computed at the following rates on
the gross amount of
the
composition-
(i)
On every $200 or fraction of $200 up to $10,000 ...........
3-00
(ii) On every $200 or fraction of
$200 beyond $10,000........
1-50
(For the purpose of
calculating this fee the gross amount
means
the amount to be provided under
the terms of the composition
for
ordinary and preferential creditors, and for costs, charges
and
expenses, and for fees and
percentages (other than this
fee).
Where a fee has been taken
on a previous application to the
Court
to approve a composition, or where a fee has been paid
to
the Official Receiver on the audit
of the accounts, four-fifths of
the
amount thereof shall be deducted from the fee payable on
an
application to approve a
composition).
9.
On an application to the Court to approve a scheme
of
arrangement, a fee computed at the
following rates on the gross
amount of
the estimated assets (but not exceeding the
gross
amount of the unsecured
liabilities)-
(i) On every $200 or
fraction of $200 up to $10,000 ..........
3-00
(ii) On every $200 or fraction of
$200 beyond $10,000........
1-50
Provided that where a fee has
been taken on a previous
application
to the Court to approve a scheme, or where
a
fee has been paid to the Official
Receiver on the audit of
the accounts
four-fifths of the amount thereof shall
be
deducted from the fee payable on an
application to
approve a
scheme.
10.
Where a Judge deals with a judgment summons under section 99 of the
Act-
(i) On the issue of the judgment
summons or of a
successive
summons.........................................................................
1-00
(ii) On sealing an order, other
than a receiving order, made on
a
judgment summons ........................................................
2-00
11.
On application for the hearing of a public examination of a debtor ....
l-00
(No additional fee shall be taken
in respect of the hearing of
the
public
examination)
12.
For taking an affidavit or an affirmation or a declaration, except
for
proof of debts and except a
declaration by a shorthand
writer
under rule 67 (Form
71)
(i) For each person making the
same.....................................
0-50
(ii) in addition, for each
exhibit or schedule therein referred
to
and required to be marked
............................................ 0-20
PART
2
FEES TO BE TAKEN
BY THE OFFICIAL RECEIVER
14.
On a proof of debt above $4 (other than a proof of
workmen's
wages under rule
251)...........................................
0-50
15.
On an application to the Official Receiver to appoint a
special
manager or to carry on the
business of a debtor ...............
1-00
16.
On an application by a trustee to the Official Receiver acting
as
committee of inspection under
section 22 of the Act or rule
324-
(a)
Where the assets are certified by the Official Receiver
as
not likely to realise more than
$1,000................
1-00
(b)
Where the assets are likely to exceed $1,000 ............
2-00
17.
On an application to the Official Receiver under section
132
of the
Act for payment of money out of
the Bankruptcy Estates
Account or the
Bankruptcy Contingency Fund ...............
0-50
18.
On an application to the Official
Receiver-
(a)
For the re-issue of a lapsed cheque or money order;
or
(b)
After six months from the date of issue, for the re-issue
of
a lapsed payable order, in respect
of moneys standing to
the credit of
the Bankruptcy Estates Account or
the
Bankruptcy Contingency Fund
.....................
0-50
19.
On filing a bond with the Official Receiver .....................
1-00
20.
For the Official Receiver taking an affidavit or an affirmation or
a
declaration, except for proof of
debts and except a declaration by
a
shorthand writer under rule 67 (Form
71)
(i) For each person making the
same...................... 0-50
(ii)
In addition, for each exhibit or schedule therein referred
to
and required to be marked
...........................
0-20
21.
On the insertion in the Gazette and a newspaper of a notice by
the
Official Receiver authorised by
the Act or the Bankruptcy Rules,
1915,
the amount necessary to pay the cost of such a notice.
(The
Official Receiver may require the
deposit of an amount, not
exceeding
$100 to be made in respect of this fee before the
petition is filed.)
22.
On the net assets realised or brought to credit by the
Official
Receiver, whether acting as
interim receiver, receiver, or trustee,
after deducting any sums paid to
secured creditors in respect of
their
securities, and not being assets realised by a special
manager or moneys received and spent
in carrying on the
business of the
debtor, and on net assets realised by the
Official
Receiver when acting as
trustee to administer a debtor's
property
under a composition or
scheme, after deducting any sums paid
to
secured creditors in respect of
their securities and not being
moneys
received and spent in carrying on the business of
a
debtor-
On
the first $2,000 or fraction thereof per cent ..............
7-50
On the next $3,000 or fraction
thereof per cent ............. 6-00
On
the next $5,000 or fraction thereof per cent .............
4-50
On the next $10,000 or fraction
thereof per cent ............ 3-00
On
all further sums .....................................
2-00
23.
On the amount distributed to creditors by the Official
Receiver
when acting as trustee under
a composition-
On the first $1,000 or
fraction thereof per cent ..............
3-00
On the next $1,000 or fraction
thereof per cent ............. 2-25
On
the next $2,000 or fraction thereof per cent .............
1-50
On all further sums per cent
.............................
0-75
24.
On the amount distributed in dividend or otherwise to
unsecured
creditors by the Official
Receiver when acting otherwise than
as
trustee under a
composition-
On the first $2,000 or
fraction thereof per cent ..............
3-75
On the next $3,000 or fraction
thereof per cent ............. 3-00
On
the next $5,000 or fraction thereof per cent .............
2-25
On the next $10,000 or fraction
thereof per cent ............ 1-50
On
all further sums .....................................
1-00
25.
For the Official Receiver acting as interim receiver of the
property
of a debtor in addition to
the percentage chargeable
on
realisation, on every
order.................................
9-00
And, in addition, where the order
is in force for a longer period
than
fourteen days, for every seven days after the first
fourteen,
and for every fraction of
seven days .........................
3-00
26.
For each notice by the Official Receiver to a creditor of a first
or
any other meeting, or sitting of
the Court ....................
0-15
27.
For each notice by the Official Receiver to a creditor of
an
adjourned meeting or an adjourned
sitting of the Court ........
0-15
28.
For the Official Receiver supervising a special manager or
the
carrying on of a debtor's
business, where the estimated
assets
exceed $200, a fee according to
the following scale-
If the gross
assets are estimated by the Official Receiver not
to
exceed $1,000 per week
...............................
3-00
If to exceed $1,000 but not to
exceed $10,000 per week. ......
6-00
If to exceed $10,000 but not to
exceed $20,000 per week...... 9-00
If
to exceed $20,000 but not to exceed $40,000 per week
12-00
If to exceed $40,000
...............................................
15-00
29.
For travelling, lodging, subsistence, keeping possession and
other
necessary work performed by the
Official Receiver incidental to
his
duties ..................................................................
reasonable
expenses
30.
For official stationery, printing, books, forms and postages,
each
estate-
................................................
(i)
For every ten applications to debtors to an estate,
or
fraction of ten
......................................
0-30
(ii) For every ten creditors or
fraction of ten where the
estimated
assets exceed $200 .........................
1-50
(iii) Where the estimated assets
do not exceed $200-
For every ten
creditors or fraction of ten up to twenty 1
-50
For every ten creditors or
fractions of ten
above
twenty......................................
0-75
31.
On the audit of the accounts forwarded by a trustee to the Official
Receiver-
On every $200 or fraction of
$200 up to $10,000 of the gross
amount
of the assets realised and brought to credit ........
3-00
On every $200 or fraction of $200
of the gross amount of the
assets
realised and brought to credit in excess of $10,000 . . . 1
-50
Provided that, where a fee has
been taken on an application
to
approve a composition or scheme of arrangement,
four-
fifths of the amount thereof
shall be deducted from this
fee.
32.
On every application for release by trustee in non-summary
cases-
On every $200 or fraction of
$200 of the gross amount of the
assets
realised and brought to credit.....................
0-35
33.
On every payment under section
132
of the Act of money out of
the
Bankruptcy Estates
Account-
On every $6-00 or part
thereof-
(a)
of each dividend, where the money consists of
unclaimed
dividends.......................................
0-10
(b)
of the amount paid out, where the money consists
of
undistributed funds or balances
....................
0-10
34.
(i) For serving a bankruptcy notice bankruptcy petition,
or
subpoena, or an order not
serviceable by post ...........
1-00
(ii) For serving an order
serviceable by post .................
0-15
These fees include the making of
the affidavit of service
but not the
oath fee or the stamp
duty.
35.
For the notice to creditors of a debtor's application for an order
of
discharge:
For
each creditor....................................... 0-15
Controlled by Ministry of the Attorney-General
--------------------------------------
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